By the Court. —
Jenkins, J.,delivering the opinion.
Complainants seek by their bill to set aside a decree rendered in a former suit in chancery (which they attach as an exhibit) reforming the marriage settlement of Thomas K. Dunham and Sarah A. his wife (formerly Anderson), to which they were not parties. They claim to. have had under the original settlement an interest, which was divested by the decree reforming it. They allege, that not having been parties to that suit, they are not bound by the decree, and this is undoubtedly true. But there is a preliminary question which must be determined in their favor before their right to impeach the former decree can be recognized, viz.: whether they had a vested interest under the marriage settlement anterior to its reformation. By the terms of the settle-’ ment the property was settled to the use of the parties to the marriage during their joint lives, then to the use of the survivor, then to the issue of the marriage, his, her, or their heirs and assigns, if such there be, and in default of each issue, to the “heirs of the wife (the property .being her’s), the property reverting back after the death of -the survivor to the heirs of Sarah Anderson, their heirs, executors, admmstrartors and assigns, and not the heirs of the said Thomas K. Dunham.” . It is under the last clause that complainants claim to take as • purchasers. If they did so take upon the execution of the marriage settlement, the subsequent decree reforming it, did infringe their vested rights, and they are entitled to be heard now, in opposition to the validity of that decree, but not otherwise.
After the termination of the life-estates created by the settlement, and on failure of issue of the marriage, the remainder was limited to the heirs of the grantor. To enable the plaintiffs in error to take as purchasers these words, “the heirs of Sarah Anderson” must appear to be descriptive of certain persons • to the exclusion of all others. Had the grantor used the words, “to the heirs of said Sarah A. now living,” or “to such persons as would be the heirs of the said Sarah A. were she now dead,” then the words would be de--scripiio• • personarnmi -and -those ■ answering - that • description would have taken as purchasers. There must be some words *751amounting to a description of a person, or of persons, or something in the context clearly indicating that the remainder, so created, shall vest. iV. Peasrn on Rem’s 208. Where the word “heirs” only is used, it must be taken in its most general sense, as referring to those persons who, upon the death of the grantor (in this case), would be her heirs. “Nemo est heres vivewtis,” and where the term is used in this general sense, the identification of those to take upon the happening of the contingency, is necessarily postponed to the death of that person, as whose heirs they are to take. In this view, had the plaintiffs .in error died before the grantor, they of course could not have- taken, nor could their heirs through them.
Again, had the grantor survived her husband, Dunham, (there being no children of this marriage), and then married again, not having survived her second husband, had then died, leaving children of the second marriage, and the plaintiffs in error surviving her, the latter could not have taken, because the children of the second marriage having intervened, would have been her heirs to their exclusion. Then it is clear that no interest vested in them.
But to escape this conclusion, we are called upon to hold that the words “heirs of Sarah A. Anderson” in this deed, mean such persons as would be her heirs should she die that instant — mean heirs apparent or presumptive. If there be any law for such construction we are not aware of it.
In our view of this case, there is no necessity to resort to the rule in Shelly’s case, which has been pressed upon our consideration; and consequently, the very able and learned argument of counsel for plaintiffs in error, in reply, to prove that it can not be brought within that rule does not control the case. These arguments have been highly entertaining and instructive, but we place the case upon another position assumed by counsel for defendants in error, viz.: “A limitar tion to the heirs of the grantor will continue in himself as the reversion in fee.”
Ream on Remainders, 50 and 51; Preston on Estates, 291; 1 P. Williams, 359; 2d Blackstone’s Com. 241 — note.
Thus considered, the reversion took effect in the grantor, and upon her death the estate would have passed to such persons as then became her'heirs at law; but as it could not be known who those persons would be until her death, no person *752'took a vested interest during her life, no person could take, under that clause, any interest whatever, vested, or contingent, as purchasers.
Had that clause been omitted entirely upon the happening of the specified contingency, the estate would have reverted, and would have passed to those whose heirship to the grantor was established by her death.
The deed does no more than specify the course to be taken by the estate, which it would have taken by law., without the .specification.
In this view, Mrs. Dunham had a perfect right to consent 'to the proposed reformation of the settlement; and the decree, making that reformation with her consent, divested no preexisting rights.
We affirm the judgment of the Court sustaining the demurrer.
JUDGMENT.
'Whereupon, it is adjudged by the Court, that the judgment ro"f the Court below be affirmed.