RESPONSE TO APPLICATION EOR REHEARING.
HEAD, J.When we formerly had this case under consideration, we addressed ourselves to the question, upon which the rights of the parties, in this action, depended,'whether the remainder contingently limited to the children &c. of Mrs; Cade, upon the precedent life estate devised to Mrs. Terrell, by Mr. Catlin’s will, was valid or not, in view of the rule against perpetuities; it being argued, against its validity, that the contingencies upon which it was made- to depend were such that they might not have happened within a life or lives in being, and twenty-one years and a fraction afterwards. We did not inquire whether that remainder, if valid, was for life or in fee ; or, if for life only, whether subsequent contingent remainders limited thereon to others, by other provisions of the will, were valid or not, for the obvious reason that such inquiries were immaterial. If a valid contingent remainder was devised to the plaintiffs (grandchildren of Mrs. Cade) which became vested, in estate and possession, by the happening of the prescribed contingencies, they were entitled to recover in this action, without regard to the duration of their estate, whether for life or in fee; and without regard to the nature or validity of other remainders limited, or attempted to be limited, upon their estates, by other provisions of the will. It is now, in effect, argued, in support of an application for a rehearing, that because, as counsel contend, by the fifth item of the will, if daughters of Mrs. Cade had survived the contingencies upon which the remainder limited upon the life estate of Mrs. Terrell was to vest, whereby an estate in remainder became vested in them, the estate, so taken by the daughters, would have been for life only, upon which estate contingent remainders to others werej by said fifth item, *275attempted to be created; and that these latter limitations reach back behind the remainder thus completely vested in the daughters, and must be looked to, in determining the effect and validity of the limitations upon which the daughters took their estate ; and the argument proceeds, that these several limitations combined would create estates in perpetuity, offending the rule. The statement of the proposition refutes it. The limitations provided in item five presuppose the complete' investiture, in the daughters of Mrs. Cade, of the remainder contingently limited to them by items one and two, by the happening of the contingencies upon which they depend; and then declare that the estate so taken shall be for life only. Hence, until that estate became absolutely vested, by virtue of the provisions of items one and two, there was no field of operation for the provisions of item five ; from which it follows, that the latter provisions could exert no influence whatever upon the former, except to convert the estate which the daughters took under the former, from a fee into a life estate. So far as the provisions of item five demand, the case is precisely the same as if the estate taken by the daughters, under items one and two, had been, by the terms of the will itself, a vested, instead of a contingent, remainder for life ; for, as we have indicated, item five obliterates the contingencies of items one and two, as valid contingencies which have actually happened, and presupposes an estate completely vested in the daughters. In determining, therefore, the validity of the remainder to the children &c. of Mrs. Cade, entitling the plaintiffs to maintain this possessory action, we properly look only to the provisions of items one and two by which it was created.
Rehearing denied.