(dissenting): We are called upon to construe a very-short will. The will provides:
“I, Grace E. McConchie, being of sound mind, do hereby bequeath all my earthly possessions to my four children, Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McConchie. I wish said property or real estate to be held in common as long as my children live. Either of them dieing, their share goes to the surviving above-mentioned children, but in case of any of said children dieing and leaving children of their own, those children are to take their parent’s share, and said real estate still be kept together and after the present encumbrance is canceled no other mortgage shall ever be put on real estate again. . . .”
Three constructions are possible.
1. It might be construed as creating an estate in fee simple in the four children subject to an executory limitation in favor of the children of any child who should die leaving children, or to the surviving children in case any child should die without children. Thus a gift to B and his heirs and if he should die without surviving children, then to his surviving brothers, was held to create a fee simple in B subject to an executory limitation to his brothers. {Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017.)
The will directs that if any child dies “their share” goes to the survivors, and if any child dies leaving children, “those children are to take their parent’s share.” These expressions are common where ,a fee is given to one person with an executory limitation shifting the title to others upon a stated event. But as there is no express language giving a fee to the children, and no additional expression pointing in that direction, it would be an innovation to say the children received a fee subject to an executory gift over. Nevertheless, this construction would give the grandchildren an interest in the property — and that was the manifest wish of the testatrix.
2. It might be construed as giving a fee to the children with a substitutional gift over in case any child should die before the-testator.
Where A devises property to B and his heirs, but if he shall die to C and his heirs, the gift to C is substitutionary. The clear purpose is to avoid an intestacy in the event B should predecease the testator. Hence C takes only in the event B dies before the testator, otherwise, B, the chief object of the testator’s bounty, would only take a life estate. But the reason for that rule does not apply in the limitation before us, as the testator has guarded against an *786intestacy by providing where the property shall go if any child dies either with or without children.
3. It might be construed as giving a life estate to the children with alternative remainders over.
While the first clause in the will gives the land to the four children, there is no express language defining the estate of such children. The third sentence in the will reads:
“Either of them dieing, their share goes to the surviving above-mentioned children, but in case of any of said children dieing and leaving children of their own, those children are to take their parent’s share, and said real estate still be kept together and after the present encumbrance is canceled no other mortgage shall ever be put on real estate again.”
The clear meaning of this language, construed in the light of the entire will, is that one-fourth of the property is to go to each child and if any child should die without children the property is to go to the surviving children, but if any child should die leaving children, the property is to go 'to such children. The words “without children” are supplied by necessary intendment, as the sentence would be meaningless without such words. Suppose the will had provided: “To my four children B, C, D, and E, and on the death of either child without children, to the surviving children, but on the death of either child leaving children, to such children.” Would not the meaning be the same as expressed in the will? Thus each child would take a life estate with alternative remainders over.
As each child must die either with children or without children, all possible events for the destination of the property is provided for in the will. All possibilities are exhausted.
Restatement of Property, § 108, Comment c, reads:
“c. Construction — Limitation of further alternative interests exhausting all possible contingencies. When a conveyance transfers an interest in land to a named conveyee with no express language defining the estate of such conveyee, and also transfers further interests in the same land limited upon various contingencies, which, taken together, exhaust all combinations of events possible at the death of the first conveyee, the intent of the conveyor required for the operation of the rule stated in this section is manifested, and an estate for life is created.
"Illustration: 9. A, owning Blaekacre in fee simple absolute, transfers Blackacre ‘to B and on B’s death survived by children to such children and their heirs, but on B’s death unsurvived by children, to the C Orphan Asylum.’ B receives an estate for life.”
The majority opinion adopts the second or substitutionary construction. If we examine the reason for the rule and the authorities *787it is submitted the conclusion cannot be supported. It destroys the gift to the grandchildren and thus sets aside the manifest intention of the testatrix. I favor the third construction.
Counsel for appellees in their brief state:
“All parties wish a final determination that will set at rest forever all questions as to title of the lands herein. Prospective purchasers of oil leases and of mineral rights in these lands hesitate to venture large sums of money upon grants and conveyances of plaintiffs, so long as there lurks in the minds of counsel for such purchasers a fear that the six minor grandchildren now living may be able to litigate anew after they reach majority, and yet more that other grandchildren of Grace McConehie may hereafter be born, since her four living children (plaintiffs) are all young, and that such unknown and unborn may be entitled to their day in court at any time until each has attained majority. Even the defendant Laconia Savings Bank has a concern, in that said bank made only the four children parties in foreclosure and did not implead any minors, any grandchildren, any heirs known or unknown, born or unborn, nor make any effort to bar such.
“Without oil or mineral rights to give as security, the owners of the land, whether fee title be vested in Grace E. McConehie’s four adult children named in her will, or whether they have only a life estate with remainder in her six minor grandchildren now in being and such others, if any, as may yet be born, the money cannot be raised which the bank desires to have promptly in redemption from its loan and investment. Although not technically affecting legal rights in the matter, the practical situation is that the four plaintiffs must give rights in the lands to secure money to redeem, or the mortgage which so worried the aged mother will take the ranch from the McConchies. It is not practically possible for six living minors, resident in three different counties of Kansas and also in California, to cooperate with plaintiffs and to find a way to have legal guardians in four jurisdictions and approval of lease or sale or mortgage by such minors, and also make sure to a tentative purchaser or investor that unknown and unborn heirs cannot arise at some future time to make legal claims.”
But it is not necessary to destroy the remainder in the grandchildren to accomplish the desired result. In a proper case, where it appears necessary for the preservation of the interests of all the parties, a court of equity has power to enter a decree directing a sale of land which is binding on outstanding future interests. The court may direct the proceeds be held in trust for the benefit of all persons who had interests in the land, or may direct the purchase of other lands with the title held under the same limitations. (Gavin v. Curtin, 171 111. 640, 49 N. E. 523, 40 L. R. A. 776.) See, also, 3 Simes, Future Interests, 295-304, sections 789-794; Schnebly, “Power of Life Tenant or Remainderman to Extinguish Other Interests by Judicial Process,” 42 Harv. Law Rev. 30, 54.