delivered the opinion of the Court:
Upon the devise for life in joint tenancy to Mrs. Burgess and her son, with limitation in fee to the children or lawful *413descendants of the children of the son, no question is presented of the application of the Rule in Shelley’s Case. That rule, it is conceded, has no application to this case, and therefore it is not pretended by the defendant that the father, John E. Craig, took under the devise to himself and his mother more than a life estate in the property devised. Daniel v. Whartenby, 11 Wall. 639. Upon the death of Mrs. Burgess in 1843, John E. Craig, her son and joint devisee for life, became sole tenant for life, and the limitation over to his children and their descendants surviving at the time of the termination of the life estate, presents the plain case of a contingent remainder to the children or descendants surviving; and the limitation over to the right heirs of the testator, in default of persons to take, was simply retaining the reversion, which would descend to the heirs of the testator if not otherwise disposed of. The heirs in such case take by descent and not by devise as purchasers. Sugden’s Edition of Gilbert’s Uses and Trusts, p. 32; Godolphin v. Abingdon, 2 Atk. 57; Counden v. Clerk, Hobart, 29; Fearne, Cont. Rem. 50, 51. When, says Mr. Preston, “the limitation is to the right heirs, eo nomine, of the testator, the gift is void and the fee will descend.” 2 Prest, on Est. 17; Parsons v. Winslow, 6 Mass. 178; Ellis v. Page, 1 Cush. 161.
This being the result of the reservation to the right heirs of the testator, the residuary devise to Mrs. Burche, by which the rest, residue and remainder of the estate of the testator was given to her, embraced this reversion to the right heirs of the testator. It is a settled principle that wherever there is an executory devise or a contingent remainder of real estate, and the freehold or inheritance is not in the meantime disposed of, the freehold or inheritance descends to the testator’s heirs-at-law, to abide the event upon which the contingency may terminate. Parefoy v. Rogers, 2 Wm. Saund. 382, and note (1); Carter v. Barnardiston, 1 P. Will. 516, 517; Gore v. Gore, 3 P. Wms. 28; Stephens v. Stephens, Cas. Temp. Talb. 228; Fearne, Cont. Rem. and Ex. Dev. 537-543. The *414cases all seem to agree that a residuary devise, such as we have in the will- before us, will include every reversionary interest, however remote, which is undisposed of by the provisions of the will, whether the same be a reversion remaining after an interest created by the will or otherwise. Brigham v. Shattuck, 10 Pick. 308; Harper v. Blean, 3 Watts, 471; Young v. Young, 45 N. Y. 258. In the event of a failure of the remainder to vest, by reason of the default of issue or children of John E. Craig, there could have been no doubt of the right of Mrs. Burche to take under the residuary devise to her; and if so, it is equally clear that she took the reversion subject to the happening of the contingency.
The reversion in the property, reserved by the devise, having passed to Mrs. Burche by the residuary clause of the will, the question is, what was the effect, if any, of her deed of bargain and sale, dated the 21st of October, 1848, to John E. Craig, the surviving devisee for life, upon the contingent remainder limited to the children of Craig, the devisee for life? '
It is contended for the defendant that the operation of the deed from Mrs. Burche to Craig was to merge the life estate, then in Craig alone, into the estate of inheritance conveyed by the deed, and thus by the union or coalition of the particular estate and the inheritance the intermediate contingent remainder, dependent upon such particular estate, was destroyed. In this way, it is supposed, the particular life estate was terminated by being merged in the reversion in fee, and consequently there was no longer any particular estate of freehold to support the contingent remainder to the children. For the learning upon this particular question, see the case of Purefoy v. Rogers, 2 Wm. Saund. 386, 387, and notes. But whether the principle contended for has any application to this case depends upon another consideration.
As we have seen, the deed of bargain and sale from Mrs. *415Burche to Craig bears date the 21st of October, 1848, and it was not recorded to give it effect until June 1,1850. It appears that Rosa Craig, now Rosa Cover, one of the plaintiffs and the eldest of the children of John E. Craig, was born November 20, 1848, just one month after the execution of the deed to her father, and she was, of course, at the date of the deed, en ventre sa mere. The next oldest child was born July 27, 1850, within less than two months after the deed was recorded.
Now, it is well settled, both in England and in this country, that a child en ventre sa mere is deemed to be in esse, for the purpose of taking a remainder, or any other estate or interest which is for his benefit, whether by descent, by devise, or under the statute of distribution. 4 Kent Com. 249. The cases are full to this effect; and an infant en ventre sa mere, who by the course and order of nature was in. esse before the date of the deed, comes clearly within the description of lawful issue or child of John E. Craig. Reeve v. Long, 1 Salk. 227; Doe v. Clarke, 2 Hen. Black. 399; Pearce v. Carrington, L. R. 8 Ch. App. 969; Crisfield v. Storr, 36 Md. 129, 145. The child being in esse and capable of taking the estate, if the estate in remainder vested upon coming into being of the children of John E. Craig, the estate had been changed from a contingent into a vested remainder, before the execution of the deed by Mrs. Burche ; and hence was in no manner affected by that deed.
It is argued, however, for the defendant, that the period for the vesting of the estate in remainder was not the coming into existence of a child or children of' John E. Craig, but the death of the latter, leaving issue or children, or their descendants, surviving him. But we perceive nothing in the terms of the devise in remainder that requires such construction. The devise should be so construed as to vest the estate at the earliest possible moment, without violation of the manifest intention of the testator. In this case there is nothing on the face of the will to indicate an intention or *416purpose on the part of the testator to delay the vesting of the estate in remainder to the time of the termination of the life estate. And in the absence of such plain indication, the rule of construction is,"that the estate should be held as vested from the earliest period possible.
The devise is, that if John E. Craig should marry and die, leaving lawful issue of such marriage, or the lawful descendants of such children, and such lawful issue, or their lawful children, shall be in being at the time of the death of the survivor of the devisees for life, then the testator devised to such issue and children, and their heirs, in fee simple, the land and premises; but if John E. Craig should die without leaving such lawful issue surviving him, then the lands to go to the right heirs of the testator. In all the conditions here prescribed to the enjoyment of the estate by the issue or descendants of such issue of the devisee for life, there is nothing that precludes the vesting of such estate during the continuance of the life estate. On the 'contrary, there is strong reason for adopting the earliest period for vesting that can be done, in cases like the present; for thereby protection is given the interest in remainder, as the devisee for life may be under a temptation to frustrate the will of the testator, as was attempted in this case, by destroying the contingent remainder, by getting in and uniting the reversion and life estate in himself.
This question as to the time of vesting of estates devised in remainder was very fully examined by the Supreme Court of the United States in the case of Doe v. Considine, 6 Wall. 458, which would seem to be entirely conclusive of the question here. The cases therein cited with approval would seem to coyer this case to the exclusion of all doubt. In that case it was held that estates in remainder vest at the earliest period possible, unless there be a clear manifestation of the intention of the testator to the contrary. And in furtherance of this principle, the expression, “ upon the decease of A I give and devise the remainder,” was con*417strued to relate to the time of the enjoyment of the estate, and not to the time of the vesting in interest.
In 2 Jarman on Wills (5th Am. Ed.), Ch. 25, pp. 406-7, where most of the authorities upon this subject are collated, in the text and the notes, the author says: “It may be stated, as a general rule, that where a testator creates a particular estate, and then goes on to dispose of the ulterior interest, expressly in the event which will determine the prior estate, the words descriptive of such event, occurring in the latter devise, will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting;” and many examples are given to illustrate the principle.
In the case of Duffield v. Duffield, 1 Dow. & Cl. 311, in the House of Lords, Best, C. J., said that in the construction of devises of real estate, “ it has long been an established rule for the guidance of the court, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will.” And to accomplish this, words of seeming condition are, if possible, held to have only the effect of postponing the right of possession; and if the devise be clearly conditional, the condition will, if possible, be construed as a condition subsequent and not precedent, so as to confer an immediate vested estate, subject to be divested on the happening of the contingency. Hawkins on Wills, 237.
It is laid down in all the books of authority that the distinction between a vested and a contingent remainder does not depend on the contingency on which it is to vest in possession, but on that on which it is to vest in interest. Hence, Mr. Fearne (Cont. Bern. 215, 216, 217), lays it down as an unquestionable proposition, “ that it is not the uncertainty of ever taking effect in possession that makes a *418remainder contingent; for to that, every remainder for life or in tail is and must be liable; as the remainderman may die, or die without issue, before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacaut, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.”
In this case, the question is, whether the remainder to the issue or children, or their descendants, of John E. Craig was contingent until the death of John E. Craig, the devisee for life, or vested on the birth or coming into being, so as to enable it to take, of one of such children, with a liability to open and let in any after born child or children, embraced by the devise in remainder. This question would seem to be of easy solution, upon the principles we have stated. There being no condition precedent or clearly expressed intention in the devise to prevent the vesting of the estate in the child or children as they came into being, it follows, upon well settled principles, that the remainder limited to the children, or their descendants, of John E. Craig, became a vested remainder in fee in the first child born or that came into being and capable to take, and did not wait for the death of the father; and this remainder thus vested was subject to open and let in the after born children. And if such child or children and their descendants had all died in the lifetime of John E. Craig, the fee simple estate would have reverted to the heirs of the testator, and formed part of the residue of his estate, and passed under the residuary clause of his will. Doe v. Considine, supra; Doe v. Perryne, 3 T. Rep. 484, opinion of Buller, J.; Right v. Creber, 5 B. & Cr. 866; Doe v. Hopkinson, 5 Q. B. 223; Carver v. Jackson, 4 Pet. 1, 90.
The estate limited in remainder having been changed or converted from a contingent into a vested remainder, upon coming into being of the first child of the devisee for life, *419which happened before the execution of the deed of bargain and sale by Mrs. Burche to the devisee for life, it follows that the estate limited in remainder was in no manner affected by such deed. And as to the deed subsequently made by the devisee for life to Samuel H. Laughlin, that did not affect the estate in remainder, though it professed to convey the estate in fee; but only conveyed such estate as the grantor could lawfully convey, and that was a life estate in the premises.
It follows that the instruction of the court below, directing a verdict for the defendant, was erroneous; and therefore the judgment must be reversed, and a new trial awarded, and it is so ordered.
Judgment reversed and cause remanded for new trial.