DISSENTING OPINION OF
PERRY, J.This is a submission, under'the statute, upon an agreed statement of facts.
On December 12, 1891, one Christian Bertelmann, of Pilaa, Kauai, executed a will containing, among others, the following provisions: “First. In consideration of Agreement and Lease of all my lands (except 100 acres actually fenced off and two acres of taro land at Kahili), made by myself with the Kilauea Sugar Company, Limited, for the term of 25 years, commencing November 1st, 1890 and ending Nov. 1st-, 1915, at the rate of $6,000.00 per annum, payable quarterly in advance, I make the following Arrangements.
“I give, devise and bequeath said rents as follows:
“1st. To my lawful wife, Susan C. Bertelmann, a life rent of two thousand dollars ($2,000.00) yearly, payable quarterly, being one-third of above mentioned rent of 'six thousand dollars ($6,000.00) or in case of any possible change in the actual agreement with the Kilauea Sugar Company, an equivalent of one-third of all net receipts or income of lands now rented to Kilauea Sugar Company. In case of Susan Bertelmann’s death the above mentioned income of $2,000.00 a year, or equivalent of one-third as her distributive share of Dower would be equally divided amongst my children or surviving children.
“2nd. To each and every one of my children or surviving children an equal share of the four thousand dollars ($4,000.00) or the remaining two-thirds of the total income-, deriving from the rent of my lands to the Kilauea Sugar Company or equivalent thereof.”
■ “Third. At the expiration of twenty-five years’ lease to the Kilauea Sugar Company, it is my sincere; wish and will that my land should befall in equal shares and interest upon my three sons: — Frank Charles, ILenry Godfrey and Christian Sylvester Bertelmann or then surviving sons or son, provided, however, *386that at such a time these my sons or son, shall to pay to each one of my daughters or surviving daughters the sum of five thousand dollars ($5,000.00). In case one or two of my sons should be at that time, or within a year from that time unable ten furnish, produce or raise the necessary amount to pay to each one of my daughters or surviving daughters his share of the five thousand dollars ($5,000.00) per capita, the two or the one of my sons will have a right to buy the whole of my lands now leased to the II. S. Co. by paying:—
“1st. To each of my daughters or surviving daughters the amount aforesaid of five thousand dollars ($5,000.00).
“2nd. To my short-coming son or sons, the same amount of five thousand dollars ($5,000.00) each, being the same share as will be paid to my daughters. By doing so, they my sons, or he my son, will enter into' full possession of all my lands, and their or his right and title will be undisputable, provided they or he (my son or sons), comply and fulfill the above mentioned, conditions.
“3rd. To my wife, Susan Bertelmann, a life rent of two thousand ($2,000.00) per annum, I make the payment of all these amounts above given a charge from all my estate.
“Fourth. Should none of my sons be able to pay these amounts, then my lands will be sold at public auction, or leased over again according to circumstances and best advantage of my family. The money deriving from said sale or lease will be fully divided amongst my children or their lawful heirs and assigns after the distributive share of Dower will have been given to my wife, Susan Bertelmann according to law.”
By other clauses of the will, which clauses are not now in dispute nor material to be considered, the testator made specific disposition of the one hundred acres and the two acre tracts mentioned in the first clause. The testator died March 15, 1895, being at the time of his death seized of the lands referred to in the will.
Christian Bertelmann left surviving him his widow, three sons and six daughters. The plaintiffs are two of the sons, the defendants Helen Smith, Angeline Mossman, Minna Hall and Hattie Bannister are four of the daughter's and the defendant Susan Bertelmann Kahilina is the widow, named in the will as Susan Bertelmann.
*387The claims of tlie parties are thus stated in the submission: “That .Frank O. Bertelmann and Henry G. Bertelmann claim that they, the said Frank O. Bertelmann and Henry G. Bertelmann, own two undivided thirds in fee simple of the said estate under said will, and the said Susan Bertelmann Kahilina; Helen Smith, wife of William Smith and William Smith her husband; Angeline Mossman, wife of Harry Mossman, and Harry Moss-man her husband; Minna Hall, wife of Wilbur Hall, and Wilbur Hall her husband; Hattie Bannister, wife of Andrew Bannister, and Andrew Bannister her husband, claim that the said Frank C. Bertelmann and Henry G. Bertelmann own no such interest in the said estate, but that they, the said Frank O. Bertelmann and Harry G. Bertelmann own, and are well entitled to, two undivided ninths of the said estate under the said last will and testament of Christian Bertelmann, deceased; that they, the said Helen Smith, wife of 'William Smith, and William Smith her husband; Angeline Mossman, wife of Harry Mossman, and Harry Mossman her husband; Minna Hall, wife of Wilbur Hall, and Wilbur Hall her husband; Hattie Bannister, wife of Andrew Bannister, and Andrew Bannister her husband, own and are well entitled to four undivided ninths in the said lands and premises under the said last will and testament of Christian Bertelmann, deceased; that the said Susan Bertelmann Kahilina owns and is ■well entitled to her dower as set forth in the said last will and testament of the said Christian Bertelmann, deceased.”
The questions submitted are:
“1st. What right, title or interest, have the said Frank O. Bertelmann and Henry G. Bertelmann,.by, through, or under the said last will and testament- of Christian Bertelmann, deceased?
“2d. Further, what right, title or interest have the said Susan Bertelmann Kahilina, Helen Smith, wife of William Smith, and William Smith her husband; Angeline Mossman, wife of Harry Mossman, and Harry Mossman her husband; Minna Hall, wife of Wilbur Hall, and Wilbur Hall her husband, and Hattie Bannister, wife of Andrew Bannister, and Andrew Bannister her husband, by, through, or under the said last will and testament of said Christian Bertelmann, deceased?”
*388On behalf of the plaintiffs the main contention is that the three sons of decedent “took a vested interest in the realty in fee subject to be divested as to any of them in the event of their death before the expiration of the lease or upon their failure to pay the legacies provided in the -will” and that their interest was “a vested remainder expectant, subject to a condition, the violation of which would forfeit their estate.”
I respectfully dissent from tire construction given the will by the majority. It is doubtless an elementary rule of the construction of walls that no remainder will be construed to- be contingent which 'may consistently with the intention of the testator be deemed vested, and that the law favors the earliest possible vesting of estates and favors a remainder as against an executory devise. Still, an interest must be construed to be contingent if it is clearly so expressed and if it is necessary to- do' so- in order to carry out the intention of the testator. -So also-, under like circumstances, the other less favored constructions must be adopted.
A remainder is contingent “when it is so limited as to take effect to a person * * * not ascertained, or upon an event which may never happen.” Woodman v. Woodman, 89 Me. 128. In the case at bar, the remainder, if any, is, in my opinion, contingent. The devise expressed in the third clause, to- take effect at the expiration of the 25 years lease to the- Kilauea Sugar Co., is to the three sons, Frank, Henry and Christian, “or then surviving sons or son.” In order to- take, each taker must be alive at the time named. It is impossible to ascertain now which one or more of the sons will be alive at that time. There is an uncertainty as to whether any of the sons and as to what one, , if any, will ever have the right to the enjoyment of the- estate. See Bailey v. Hoppin, 12 R. I. 560, 567. For this reason alone, the remainder cannot be a vested one.
The argument is advanced that the remainder must be held to-be vested rather than contingent because no disposition of the land is otherwise made for the period prior to- the- expiration of the lease. This position, I think, cannot be upheld. By the first clause of the will, all of the rents of the land, for the period re*389ferred to, are disposed of for tbe benefit of the widow and children in stated proportions. This is the equivalent of a devise of the land itself for that time, — an estate for year's. See 3 Wash. Real Prop. 382; Earl v. Rowe, 35 Me. 414, 419; Reed v. Reed, 9 Mass. 372, 373; Caldwell v. Fulton, 31 Pa. St. 475, 479.
Another reason for regarding the remainder, if any, as contingent and not as vested, is that the testator has named another condition precedent to the vesting of the estate. Whether that condition will be performed or not, is uncertain. The condition referred to is that the surviving son or sons pay to the surviving daughters and to any delinquent son the sum of $5,000 each at the expiration of the lease or within one year thereafter. That the provision in question was intended as a condition, is not disputed; but it- is contended that the condition is subsequent. Whether a condition is precedent or subsequent is a question of construction to be determined in view of the language of each particular will. As usual, it is the intention of the testator which is to be sought. If from the language vised it is clearly evident that the testator intended “that a devisee to whom property is given should perform some act prior to the vesting of the estate, and without the performance of which it will not vest, the condition is precedent. Until it is performed the devisee has no title.” See 1 Underhill on Wills, Seciion 483. In stating what the devis’e to the sons is, and in the same sentence, the testator in the case at bar says, “provided, however, that at such a time these my sons or son, shall pay to each one of my daughters”, etc. Immediately following this is an alternative provision to be good in case one or two of the sons are unable to pay, and that is that the other two or one may have the whole property by paying to the delinquent son. or sons as well as to the daughters the sums named. “By doing so”, continues the testator, “they my sons, or he my son, will enter into full possession of all my lands, and their or his right and title will be undisputable”, again adding, as 'if to emphasize the point, “provided they or he (my son or sons) comply and fulfill the above mentioned conditions.” The obvious meaning of this is that if the conditions are not complied *390with, the sons will not have any right or title to- the lands under this clause. Proceeding- still further, the testator provides for the contingency of none of the sons being able to pay. In that event, he says, they are to be “sold at public auction or leased” and the proceeds divided among all the children after dower has been given the widow; in other words, in that event the lands, not yet vested in the sons, are not to go to them alone but to them and to certain other persons.
The intention of the testator seems to me to be clear. In view of the fact, however, that the sons are allowed one year after the expiration of the present lease to tire Kilauea Sugar Co-, within which to pay the -amounts stated, and that a period of time may elapse between the determination of the particular estate and the vesting of the interest of the sons, it may be that the testator’s intention cannot be carried out on the theory of a contingent remainder. If that is so, the limitation can, nevertheless, be supported as an executory devise. See 4 Kent Corn. p. 264 et seq.; 1 Bouvier’s Diet. 733; 1 Underhill on Wills, Sect. 874 et seq. In the interval, if any, between the determination of the particular estate and the taking effect of the limitation over, the fee will be in the testator’s heirs, in the absence of a. residuary clause. See 4 Kent Com. 270, 284.
The contention of the defendants seems to be, in effect, that a vested' remainder is devised to the daughters, with power to sell to the sons only, and that this restriction upon the power of alienation is invalid. I think that to so construe the language of the will would do violence to the intention of the testator. The mere use of the word “buy” in the first paragraph of the third clause, above quoted, cannot have the effect contended for. The word was there used evidently in the sense of “acquire title to.” If the argument of defendants were good at all, that the power or right to “buy” from the daughters presupposes a devise of the fee to the daughters, then such devise would of necessity be regarded as having been to the “short-coming sons” -as well as to the daughters. Such a construction, to-wit, that each of the daughters and each of the short-coming sons has a vested re*391mainder, subject though it be to- being divested, finds no support in the language of the will. If any vested remainder whatever could be held to have been given, it would be to each of the: nine children. The latter however, was not, as it seems to me, intended by the testator. If it had been, then certainly after he had once caused such estates to be vested in each and all of his nine children, he would not have permitted a divesting of anj of such interests in favor of some or all of the sons without providing some compensation therefor. Yet, what he said was that the surviving son or sons shall have the whole property, not by paying to the surviving daughters and short-coming sons and to the heirs of any deceased daughter and to those of any deceased son, but by paying to the surviving daughters (meaning daughters surviving at the expiration of the lease and not at the death of the testator) and to the short-coming sons only. This strongly supports the view that as between the three sons on the one hand and the nine children on the other the devises were of alternate contingent remainders or, at least, of alternate contingent executory devises. In other words, — and the testator wrote the four clauses in their natural order — if the sons pay the surviving daughters and short-coming sons, they shall have all the property; if they do not so pay, the nine, children shall have it all. If the testator omitted to provide, in certain contingencies, for the heirs of deceased sons or daughters, the court cannot remedy the defect. As I understand the majority opinion, it is not therein decided whether or not the condition named in the third clause requires the payment by the surviving sons of $5,000 to the heirs of any deceased son or daughter in order to defeat what is adjudged to be the vested interest of each son and daughter.
The irse of the word “assigns” in the fourth clause is not sufficient, I think, to overcome the indications contained in the other parts of the will showing that the devise was intended to be of contingent interests; nor is it inconsistent therewith. “Heirs” and “assigns” were named by the testator in that clause as persons to take by way of substitution for those dying or assigning, respectively, before that time. A conveyance of a contingent re*392mainder, if for a valuable consideration, would b© enforced at least in equity and would operate by way of estoppel to pass tbe interest or possibility of interest of the grantor to the assignee. There are authorities even to tbe effect that contingent remainders are alienable. See, for example, Belcher v. Burnett, 126 Mass. 230, 231; Drake v. Brown, 68 Pa. St. 223, 225.
The questions submitted should be answered as fellows: (1) The widow is entitled, (a) to a one-third interest in the land until tbe expiration of the lease to the Kilauea Sugar Company, (b) in case one or more of the sons pay as provided in clause 3, to a life rent of $2,000 per annum secured by a charge upon the property, and (c) if none of the sons pay as provided by clause 3, to a life estate in one-third of the land.
(2) Until the expiration of the present lease to the Kilauea Sugar Company, each of the children of the testator is entitled to an equal share of the remaining two-thirds interest in the land.
(3) At the expiration of said lease, the son or sons at that time surviving, will, provided he or they pay $5,000 to each of the daughters then surviving, and to each of the “short-coming” sons, if any, take the fee of the said lands, either as contingent remaindermen or by way of executory devis'e, subject 'to the charge in favor of the widow. In that event, the then surviving daughters and short-coming sons, if any, will be entitled to the sum of $5,000 each and no more.
(I) During the period, if any, intervening between the expiration of the present lease and the compliance by the son or sons with the condition as to payment, the heirs of the testator will be entitled to the land as provided by law, subject to the Avidow’s right of dower.
(5) If none of the sons comply Avith the condition of clause 3, then, subject to the widow’s life estate, all the land goes to the nine children.