(concurring): I agree that the grantee in the deed did not take an estate tail in the land conveyed.
The deed recites that the parties of the first part “do by these presents, remise, release and quitclaim unto the said party of the second part a life estate in and to the following property,” etc.
The instrument contained the following provisions:
“Said life estate shall be subject to the following conditions:
“1. If the party of the second part is living on the 10th day of September, 1941, then said life estate shall terminate, and in that event said parties of the first part do hereby remise, release and quitclaim unto said party of the second part said property as her sole and separate property.
“2. That during said twenty years from September 10, 1921, to September 10, 1941, no mortgage or lien can be executed by the party of the second part and constitute a lien against above-described property, except with the consent of the parties of the first, part.
“3. Should the said party of the second part die prior to September 10, 1941, and leave offspring said life estate shall be terminated, and in that event said parties of the first part do hereby remise, release and quitclaim said property unto said party of the second part, or her offspring, or their heirs.
*110“4. Should the party of the second part die prior to September 10, 1941, and leave no offspring, then the life estate shall be terminated and this property shall remain vested in the grantors herein or their heirs.”
What estate did the grantee, Ethel Dear, take in the land?
Under the settled rules of construction the meaning expressed by the language employed is to be derived from reading such conveyance as an entirety. Each sentence and paragraph is a single element in one whole. It is reasonable to infer that their modifying force upon each other was intended by the grantors, and this inference must be given effect by this court. When the various clauses and paragraphs, read seriatim, involve repugnancies but, read as mutually modifying one another permit a construction as a consistent whole, the latter construction should be adopted.
Thus a fee simple absolute by subsequent language may be cut down to fee simple defeasible, to an estate tail, or to a life estate; in like manner a life estate may be degraded to a term of years. To illustrate: A transfers land “to B and his heirs,” but by a later clause provides that “if B shall die without issue living at the time of his death, then to C and D and their heirs.” Here the gift over is on a definite failure of issue — the fee simple absolute in the first clause is reduced to fee simple defeasible, with an executory interest in C and D. This has been settled since the case of Pells v. Brown, Cro. Jac. 590, was decided in the year 1620, and has been so held in Kansas. (Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017.)
But if, after the limitation to “B and his heirs” the subsequent clause should read “if B shall die without issue, then to C and D and their heirs,” here the gift over being on an indefinite failure of issue, by necessary implication B takes an estate tail, with remainder in C and D. (Restatement, Property, § 61.) Compare, however, Cress v. Hamnett, 144 Kan. 128, 58 P. 2d 61.
If A transfers land “to B and his heirs, but on B’s death to go to C and his heirs,” the fee simple in B by the first clause is reduced to a life estate. (Restatement, Property, § 108 f.)
For other cases where a fee is reduced to a life estate see cases of the type of Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.
In the case before us the deed was dated September 10,1921. The point stressed in each paragraph is that the estate of the grantee is to end at a certain time, to wit, on September 10, 1941. This is the dominant objective. When an estate is to end at a fixed or'computable period of time, it creates a term of years and not a life estate. (Restatement, Property, § 112 and illustrations.) The grantee, *111Ethel Dear, received merely a term of twenty years. This eliminates any question of an estate tail under the Rule in Shelley’s Case.
A term of years is a nonfreehold estate. At common law a limitation to A for twenty years, remainder to B and his heirs, created a present estate in B subject to the term. If the limitation was to A for twenty years, remainder to the heirs of B, here the remainder by the early common law was void as there was no one having a freehold interest to take the seizin. After the rise of executory interests an interest after a term of years subject to a condition precedent was supported by calling it a springing executory interest. Under modern usage these early distinctions have passed and interests following a term of years are denominated remainders. (Restatement, Property, § 156.)
The premises considered, the following points seem clear:
Under paragraph one, Ethel Dear has a term of twenty years; she also has a remainder subject to a condition precedent. (Compare Klein v. United States, 283 U. S. 231, 51 S. Ct. 398, 75 L. Ed. 996.) The grantors have a defeasible reversion. If Ethel Dear is living on September 10, 1941, the reversion will shift to her, and she will then have a fee simple absolute.
While a total restraint on a legal life estate is void, that rule does not apply to a term of years.
Under paragraph three, the word “offspring” seems to have caused some perplexity. No doubt the primary meaning of the word “offspring” is the same as “issue.” It might denote an unending line of lineal descendants, so a limitation to A for life, the remainder to his offspring might raise an estate tail under the Rule in Shelley’s Case. (See Barber v. Pittsburg & C. Railway, 166 U. S. 83, 17 S. Ct. 488, 41 L. Ed. 925.) But like the word “issue,” the word “offspring” by reason of the context may be used in the sense of “children” or of descendants living at a particular time.
In paragraphs three and four, the word “or” might be translated to mean “and.” This is commonly done in an immediate gift to A or his heirs and is permissible where the gift is of a future interest to A or his heirs. Therefore, paragraph three means no more than this: “To Ethel Dear for a term ending September 10, 1941, but if she die before that time leaving offspring, then to her offspring and their heirs.” This would give her offspring, including children and grandchildren living on that date, an executory interest.
The most startling thing in the case'is the proposal to appoint a *112trustee for the unborn children. If the purpose is to extinguish the future interests of living persons and unborn persons created by this deed, attention is called to chapters 11 and 12 of the Restatement of Property, and the particular sections hereinafter cited. In a proper case a judicial sale may be made (sec. 179), and a binding decree may be made as to the future interests of living persons (sec. 180), and of future interests limited in favor of unborn persons (secs. 182, 183). Under the doctrine of representation the owners of these future interests are given their day in court. No authority, statutory or nonstatutory, has been pointed out whereby a trustee could be appointed to represent the owners of such future interests and to make a long-time lease that would bind such interests. Obviously, section 186 has no application. (See, also, Blocker et al. v. Blocker [1931], 103 Fla. 285, 137 So. 249; 23 R. C. L. 583-586.)