dissenting:
I dissent from so much of the opinion of the court in this ease as holds that Mrs. Moore and James W. Allison, Jr., who take the ultimate remainder in the residuum of their father’s *577estate, take a contingent and not a vested interest therein, and will briefly state my views, and cite the authorities upon which I mainly rely.
As an original proposition, I would never give my assent to the application of a rule of construction to the will in this case which requires that the words “my heirs at law according to the laws of the State of Virginia,” as used by the testator, James W. Allison, deceased, in disposing of the ultimate remainder in the residuum of his estate, to be taken as referring to his heirs, etc., to be ascertained as of the period of his own death, and not at the death of his daughter, Mrs. Moore, who is to enjoy the whole of this residuum during her life. The application of this purely technical rule of construction has doubtless worked a hardship in many cases, overturning the apparent intent of the testator, and I have the gravest apprehensions that this is the result in this instance; but the opinion of the court seems clearly to demonstrate that the doctrine of stare decisis fixes the rule upon us, and that under it the conclusion reached is inevitable as to who is to take the ultimate remainder in the residuum of the testator’s estate upon the death of his daughter, Mrs. Moore, without issue who attain the age of 21 years.
Having reached the conclusion that the heirs of the testator who were to take the ultimate remainder are to be determined as of the death of the testator, the learned judge below, in my opinion, was plainly right in holding that those heirs, Mrs. Moore and James W. Allison, Jr., each take a vested remainder in fee in an undivided one-half of the residuum of their father’s estate, subject to be divested only upon the happening of the events referred to in the intervening limitation to the children of Mrs. Moore, viz., the dying of Mrs. Moore leaving issue surviving her who attain the age of 21 years.
There has been no moment of time since- the death of the testator when the heirs in whom the ultimate remainders vest *578were not in being and ascertained, and therefore every requisite of a vested remainder is found to exist.
A remainder is none the less vested because it is liable to be divested. Lantz v. Massie’s Ex’x, 90 Va. 709, 40 S. E. 50, and authorities there cited. I refer also to the authorities cited in that part of the opinion of the court which deals with the bequest to trustees for the benefit of Mrs. Allison for life, with remainder to her son, James W. Allison, Jr., relying especially on Howbert v. Cawthorn, 100 Va. 649, 42 S. E. 683; Moore v. Lyons, 25 Wend. 119.
Amended and Affirmed.