I concur in so much of the opinion of Mr. Justice RUMSEY as relates to the construction of the deed of trust and the extent of the interests acquired by the cestuis que trustent thereunder; but I am not able to concur in the views expressed by him concerning the personal property that passed under the will of Paran Stevens. The difference between the provisions of the deed and those of the will are striking. In the deed there are no present words of grant to the children of Paran Stevens. Under the will, the bequest was distinctly to them after the life estate in their mother. The words used in the deed annex futurity to the grant. Those used in the will indicate a present gift. Upon the decease of the testator’s wife, the personal property, he declares, “shall belong to my children, the descendants of any deceased child to take the share their parent would have taken if living.” It is not and cannot be claimed that, if the provision ended there, there would not be an absolute vested .remainder in the three children of the testator in equal parts. But *928the will proceeds to provide as follows: “And, if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees in case of such failure of descendants, in the next clause of this will, and in the same proportions.”
The effect of this gift over is not to postpone the vesting in interest of the remainders created by the express words of the gift, limited upon the particular estate. It is unnecessary to go further than the statute to determine that the remainders vested. They so vest (1 Rev. St. p. 723) when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. Is it to be questioned that if Mrs. Stevens, the widow, had died before her son, Henry Leiden Stevens, the three children of Paran Stevens would have had the immediate right of possession? The test of that right, in connection with the vesting of the remainder, is not the certainty that the remainder-men will take in possession. “A remainder is vested where the interest is fixed, although it may be uncertain whether it will ever take effect in possession. It is the present capacity of taking effect in possession, should the possession become vacant, that distinguishes a vested from a contingent remainder.” Grout v. Townsend, 2 Denio, 338. What is the effect, then, of the gift over in this will? It is not a provision to prevent or postpone the vesting in interest, or to throw forward the ascertainment of who shall take as remainder-men, to the period of the death of the testator’s widow. It is merely an executory gift over, by way of substitution, on the contingency of an absolute failure of issue of the testator at the time of the death of his widow. The remainders given to the children are subject to be devested, but only in one event; that is, the total failure of issue of the testator to take the property in possession at the expiration of the particular estate. There is no' gift over to any one child. There is no provision for devesting the remainder on the death of any one child before the expiration of the intermediate estate. There is nothing which in any way would indicate survivorship among the children. All that is provided for relates, as clearly as language can state it, to the complete failure of issue of the testator at the time of the death of his widow. The testator contemplated and intended only one event, therefore, in which the remainders should be devested. That was the only condition that could by any possibility defeat the remainders vesting in possession. They must be devested as to all before that result can follow as to either of the interests in remainder.
The situation in this case may be illustrated by what was decided in Skey v. Barnes, 3 Mer. 340, where it was held that a devise over upon a contingency does not prevent the shares from vesting in the meantime, provided the words of bequest be in other respects sufficient to pass a present interest, although such a devise over of the entirety may be called in aid of other circumstances to show that no present interest was intended to pass. There are no other circumstances appearing in this case that would indicate an intention of the testator to postpone the vesting of the remainders in interest until the-*929death of his widow. There was a question of survivorship in the case cite-d, as affected by the nature of the property, biit that question is not involved here. The general case was that personal property was given to trustees upon trusts to pay interest to one person for life; after her death, to pay and divide the principal among such life tenant’s children and the issue of a deceased child as she should appoint; in default of appointment, to go and be equally divided among the life tenant’s children on certain conditions; and if there were no issue, or all should die before their respective portions became payable, then a gift over. It was held that the shares given to the children of the life tenant vested immediately, though liable to be devested by all dying without issue under a certain age; and it was also held that the share of a child so dying was properly payable to its representatives.
There is nothing in the will, nor in the surrounding circumstances, so far as we are able to judge from this record, that prevented the vesting of these remainders. They were subject to be devested, all or none. The devesting never has and never can occur, and Henry Leiden Stevens’ share in the personal property passed under his will. I therefore think that the judgment should be modified with reference to the personal property.
BARRETT and O’BRIEN, JJ„ concur.