The opinion of the court was delivered,
by Williams, J.All the assignments of error, except the last, *123present but one question, and that is: What estate did Ebenezer Hess take under the will of his father, George Hess, in the land devised to him ? By his will, dated December 10th 1856, the testator gave to his wife all his real and personal property to be enjoyed by her during her natural life ; and, after giving certain specific legacies to his three children, John, Margaret and James, and to his grandson George, devised his real and personal estate as follows: It is my will, after the death of the survivor of his parents, my son Ebenezer have one-third of all my real and personal property during his single life ; but if he should marry and have lawful issue, then I desire, on condition that he pay the foregoing legacies, viz., John, Margaret, James and grandson George, as above stated, that he shall have one-half of all my real property, including one-half of all the buildings on the farm on which I now live to be his for ever, in addition to what I have heretofore given him. It is my will that after the death of the survivor of their parents, my son David and daughter Nancy have each one-third of all my real and personal property during the single life of my son Ebenezer; but if he should marry and have lawful issue, then it is my will and desire that the said David and Nancy have each one-fourth of all my real property on which I now live, including one-fourth of all the buildings, to be enjoyed by them during their and each of their natural lives; and I desire that the survivor of them enjoy the portion of the other, during natural life, as before expressed; after which it is my will and desire that their and each of their (David and Nancy’s) respective portions be the property of my son Ebenezer absolutely, provided he have lawful issue, as above stated. The testator died on the 21st of October 1858. At the date of the will, and at his father’s death, Ebenezer Hess was a single man, but married in the fall of 1859. No children were born to him; his wife died in November 1862; he died October 2'lst 1864, 'and his mother, November 6th 1865. What estate, then, did he take under the will of his father ? Was it an estate tail in the whole land subject to the life estate of his mother therein, and to the life estates of his brother and sister and the survivor of them; or was it an estate for life in the one-third of the land, subject to his mother’s life estate, and an estate in fee in the whole land contingent upon his marriage and having issue, subject to the life estates given to his brother and sister and the survivor of them ? What, then, was the intention of the testator ? for his intention, as gathered from the whole will, must govern in its construction unless it is overruled or set aside by some positive and well-settled rule of law.
It is clear then that, after the life estate given to his wife, he intended that his son Ebenezer should have the one-third of his real éstate so long as he remained single, and that his son David and daughter Nancy should have each the one-third of his estate *124during the same period, for he has said so in express terms; and it is quite as evident, from the provisions which immediately follow both devises, that he intended that each of the three devisees should have the one-third of the estate so given until his son Ebenezer should marry and have lawful issue; and if these contingencies should occur that then, on condition of his paying the legacies given in the will, he should have the one-half of all his real property, with the right to its immediate possession and enjoyment on the death of his' mother, to be his for ever; and, if said contingencies should happen, that David and Nancy should have each, instead of the one-third, the one-fourth of all his real property during their and each of their natural lives, and that, upon the death of either, the survivor should enjoy the portion of the other during his or her natural life; and on the death of the survivor the said respective portions should be the property of his son Ebenezer absolutely. This is the plain and manifest intention of the testator. There can be no doubt that he intended his son Ebenezer should, in any event, have a life estate in the one-third of his real property, subject to the previous life estate given to his mother; and if he should marry and have lawful issue that then, on condition of his paying the legacies, he should have the whole of his real estate to be his absolutely and for ever, subject to the life estate of his mother, with the right to the immediate possession and enjoyment of the one-half thereof upon her death, and subject to the life estates of his brother and sister, and the survivor of them in the other one-half of said property. Is there then any rule of law which defeats the intention of the testator as expressed in his will ? The plaintiffs in error contend that the devise to Ebenezer comes within the rule in Shelley’s Case, and that under it he took an estate tail in the whole property, which vested in him immediately on the death of his father. Has the testator then made use of such a form of words as proprio vigore creates an estate tail, either in express terms or by necessary implication, contrary to the manifest intention of the testator ? The rule in Shelley’s Case is a rule of property and not a rule of construction, and is never applied to a devise unless the testator has used such words as, in and of themselves, create an estate tail, and no words are found in this will which, either in express terms or by necessary implication, create such an estate. The devise here is wholly unlike those in the cases cited by the counsel of the plaintiffs in error. There is no gift or devise of the property to Ebenezer and his issue; nor is there any gift or devise of it to him for life with a devise over, in default of lawful issue or in the event of his dying without issue. Neither is there any absolute gift of the fee, coupled with such words of limitation as would cut down the devise to an estate tail. A contingent estate only is given by the will, and it could not vest without the happening of the contin*125gencies upon -which the gift was to take effect. Whenever these events should occur the whole estate in fee would, by the express provisions of the will, immediately vest in the devisee, and not before, and no other or less estate than the whole fee could possibly vest. The estate given by the will was only to commence provided the devisee had lawful issue, not to terminate, or go over if he had no issue, or should die without issue. His having issue was a condition precedent to the vesting of the estate and not a condition subsequent by which it was to terminate. Marriage and the birth of issue were essential to the existence of the estate, and not conditions limiting or affecting its quality or duration. When real or personal estate, says Mr. Smith in his work on Executory Interests, is devised or bequeathed to a person, when or as soon as he shall obtain a given age, or when an event shall happen which may never occur at all, or at, or upon, or from and after his obtaining such age, or the happening of such event; and there are no other words indicative of an intent to confer a vested interest; and nothing in the form of the limitation itself to indicate an intent merely to delay the vesting in possession or enjoyment, and no disposition of the intermediate income; in such case, the interest of the devisee or legatee will be contingent until he attains the age specified, or the event described has happened. For, although in this case the person is ascertained, yet the property is only given at a future period which may never arrive; and the gift can no more attach upon him before that period, than it could, if the testator, continuing to live, were to defer making a devise or bequest till such period had actually arrived: Smith on Ex. Int. §§ 285-6. It is clear then that, under the provisions of the will, Ebenezer took only a contingent estate in fee, and that having died without ever having lawful issue, the estate did not vest in him, and as there was no devise over, in the event of his not having lawful issue, the fee descended, upon the death of the testator, to his heirs at law. The plaintiffs are therefore entitled, as his heirs, to the undivided two-sixths of the land in controversy, subject to the life estates of David and Nancy therein. Nor are they estopped from claiming the land by the acceptance of the money paid them by Ebenezer on account of the legacies given to them in the will. They were not paid in performance of the condition upon which he was to have the whole estate in fee, for the contingencies upon which the property could only become his, had not occurred. The payment of the legacies could neither enlarge the estate given to him by the will nor change its character. It could only give a title to the land in the event of the happening of the contingencies upon which the estate was to vest. The plaintiffs might lawfully receive the legacies, and there is nothing in the act of their acceptance under the circumstances to prevent them from claiming title to the land. The court was *126therefore right in the construction given to the will, and in charging the jury that the plaintiffs below were not estopped from claiming the land by the acceptance of the legacies.
Judgment affirmed.