(dissenting.) — Ejectment for the northwest quarter of section 7, township 53, range 35 in Platte county, Missouri.
The answers of defendants were general denials.
This controversy turns on the legal meaning, force and effect of the fifth clause of the will of George W. Yocum the original owner of the tract, the father of 'William Eranklin Yocum, the devisee named in the will, the father of the plaintiffs. That clause is the following:
“To my beloved son William Eranklin Yocum (my natural son), I bequeath absolutely the northwest quarter of section 7 of township 53 and range 35, the place I now reside on in Platte county, Missouri, subject forever to the reservation for my burial place made in clause two of this will;'and further, with this express understanding and restriction, namely, that if my said son dies without legal issue, descendants of Ms, legitimate issue of his, said land shall pass to Susan Evans, wife of Joseph B. Evans; Marina Botts, wife of Thomas Botts; Elzira Botts, wife of William Botts, my nieces; to Elizabeth Erame, my sister, wife of John Erame, and to George, son of my brother, Stephen Yocum, and Jane Yocum, wife of Milford Yocum, deceased, my sister, in equal parts.”
The cause was tried at the December term, 1897, of the circuit court, on the following agreed statement of facts, which is quoted so far as material:
“It is agreed that George W. Yocum is the common source *301of title; that he died September, 1854, leaving a will which was duly probated in the probate court of Platte county; that Susan Siler is in possession of one hundred acres of the land in controversy, and that William S. Kenney and Lucinda Kenney, his wife, are in possession of the remaining sixty acres of the land in controversy, and were at the time of the institution of this suit;.......that William E. Yocum in his lifetime, with his wife, for a valuable consideration, by warranty deed, dated September 15,1858, conveyed all the lands in controversy to William J. Norris, which deed is recorded; that William J. Norris, by warranty deed, conveyed the same land to Samuel Alexander, which deed is recorded; that Samuel Alexander conveyed said land, by warranty deed, to Elias Siler, which deed is recorded; that Elias Siler is dead and the defendants constitute the widow and heirs of said Elias Siler;....... that the plaintiffs are the legitimate issue of Wiliam EranMin Yocum, and were living at the time of William E. Yocum’s death, and were the only children of said William E. Yocum living at the time if his death; that he was married on the twenty-first day of February, 1854; that he died on the twenty-second day of February, 1892, and that plaintiffs at the time of the trial were respectively, 43, 40 and 38 years of age.”
After testimony was introduced as above by plaintiffs, and also the will of George W. Yocum, the defendants offered in evidence a deed from Samuel Alexander to Elias Siler, dated thirtieth day of March, 1871, purporting to convey the litigated land.
Plaintiffs objected to any evidence of title derived through William Franklin Yocum, by deed, for the reason that William Franklin Yocum by the terms of the will aforesaid, only had a life estate in said real estate; objection overruled, and plaintiffs excepted. Defendants offered in evidence the will of Elias Siler, which was objected to by plaintiffs, for reasons above; objection overruled, and plaintiffs excepted.
*302Thereupon plaintiffs moved the court to declare the law as follows: “The court declares the law to be that, under the will of George W. Yocum, deceased, William Eranklin Yocum only took a life estate in the real estate described in the will and in the petition, and that the plaintiffs are entitled to the possession of the land sued for, and judgment should be rendered for them for such possessionwhich declaration of law was refused by the court. To which ruling plaintiffs excepted. Upon this the court found in favor of defendants and gave judgment accordingly, and from this ruling results this appeal.
By the terms of the will, William Franklin Yocum took, what would have been at common law an estate-tail; but under . the provisions of section 8836, Revised Statutes 1889, this estate-tail was converted by the statute into an estate in the first taker for his natural life only. [Thompson v. Craig, 61 Mo. 312.]
In the case just cited, the provisions of the will of Phillip W. Thompson were as follows:
“ £I give, grant and devise, and bequeath to my said grandchild, Burrell Thompson (saving the life interest above granted and devised to my wife Penelope Thompson), all of the lands and improvements which lie,’ etc., embracing the land in question. •
“ £I give, grant, devise and bequeath to my granddaughter, Máry Ilutson, the lands of my estate situate,’ etc. (describing • other lands than those devised to plaintiff).
“ £It is my will that in the event that either of my grandchildren, above named, shall die before lawful age, or before leaving a lawful heir or heirs, the property above specified and intended to be given in this will, shall descend to and belong to the survivor of said grandchildren only, and to his or her heirs or legal representatives, and in the event of both said grandchildren, viz, Burrell Thompson and Mary Ilutson, dying before marriage, or in the event of leaving no lawful *303issue by marriage as aforesaid, it is my will that all my estate, intended in this will for them, shall be sold for the use and benefit of the poor persons of Saline county, Missouri, to' be expended and paid as my executor may deem' advisable and just.’
“It was admitted that plaintiff was twenty-one years of age and had a child or children living; and this, the last will of Phillip W. Thompson, and the written agreement sued on, were the evidence in the case. The defendant asked the court for the following declaration of law: which was refused: ‘That the plaintiff in this cause has only a conditional estate in the land mentioned in the petition, and if plaintiff shall die without leaving lawful issue, then and in that event the estate of the plaintiff in said land would cease, although the court may believe from the evidence that the plaintiff has arrived at the age of majority.’ ”
The action in that case was brought by Burrell Thompson against Hugh Craig on a written agreement for $625, which Craig promised to pay plaintiff for a certain piece of land, provided plaintiff should in twelve months thereafter be competent to give a good title to the land. Plaintiff alleged his competency and that he had made and tendered defendant a deed, such as was required, but defendant refused to receive it, and issue was joined on these allegations. On this state of facts, following Farrar v. Christy, 24 Mo. 453, and Harbison v. Swan, 58 Mo. 147, holding the statute already referred to, accomplished the stated change in the common law, it was ruled that Burrell Thompson, under the will of his grandfather, acquired but a life estate in the property devised to him, and that in consequence of this he could not make such a title to Craig as his agreement called for; and that his marriage and the birth of children to him, did not change the character of his estate. ■
In subsequent cases this court has followed the same con*304struction of the statute. [Emerson v. Hughes, 110 Mo. 627; Godman v. Simmons, 113 Mo. 122; Bone v. Tyrrell, 113 Mo. 175.]
A similar view was taken in Kentucky, upon a statute like ours, where there was a devisé to a young woman (unmarried at the time) and her children, and such devise was held to give her an estate for life with remainder to her children; the court remarking: “It has been observed that the words of the devise, abstractly and literally, import an immediate gift, not only to the devisee in being, but to those not in being. But there being no children m esse at the time of the devise, it could not have been the intention to give an immediate estate to them, for that would be impossible. And as the words of the devise, as conceded by all the authorities, manifest a clear intent that the children shall take, the only consistent and natural construction is, that the testator intended the devisee in being at the time, should take a life estate, remainder to the children.” [Carr v. Estill, 16 B. Mon. 312.]
' The fifth clause of the will created an estate of contingent remainder in the children of William Eranklin Yocum, which estate is said to be ereatefi in certain circumstances in one of two ways: i Where the estate in remainder is limited to take effect either in a dubious and uncertain person, or upon a dubioirs and uncertain event.” [A Black. Com. 169.]
The learned author of a work on descents, says: “A contingent remainder is that part of an estate in fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some particular person or persons, is provided to go to some other person or persons of two or more named, which of the two or more is left uncertain, and is to be fixed and made certain by succeeding events. The remainder itself is certain, but the person who is to have it is uncertain until it *305is determined by the events named.” [Bingham on Descents, 125.]
Chancellor Kent says that the definition (of a contingent remainder) in the New York Revised Statutes, 1723, sec. 13, is brief and precise. “A remainder,” says the statute, “is contingent, whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain.” [4 Kent (14 Ed.), 208, note. See, also, DeLassus v. Gatewood, 71 Mo. 371.]
In Daniel v. Whartenby, 17 Wall. 639, a case which arose in Delaware, where the rule in Shelly’s case is in force, a testator, James Tibbitt, devised his estate as follows: “All the rest, residue, and remainder of my estate, both real and personal, of what kind and nature soever, I give, devise, and bequeath to my son, Richard Tibbitt, during his natural life, and after his death to his issue, by him lawfully begotten of his body, to such issue, their heirs and assigns forever. In case my son, Richard Tibbitt, shall die without lawful issue, then, in that case, to my wife, Elizabeth Tibbitt, and my sister, Sarah Heath, and my sister, Rebecca Mull, during the natural life of each of them, and to the survivor of them, and, after the death of all of them, to James Whartenby, son of Thomas 'Whartenby, of the city of Philadelphia, to him, the said James Whartenby, his heirs and assigns forever. In case the said J ames Whartenby shall die before my son, Richard Tibbitt, my wife, Elizabeth, my sister, Sarah Heath, and my sister, Rebecca Mull, then, and in that ease.......the rest and remainder to William Whartenby, Thomas Whartenby and John Whartenby, children of said Thomas Whartenby, of Philadelphia, to them and their heirs and assigns forever.
“Richard Tibbitt, the first devisee, on the fourteenth of May, 1853, after the death of the testator, conveyed the premises to Jacob Hazel, who, on the same day, reconveyed to Richard. Richard died in April, 1863, without issue, not hav*306ing married. Elizabeth Tibbitt, the widow of the testator, and his two sisters, Sarah Heath and Rebecca Mull, were living at the time of the making of the will, survived the testator, and died before the commencement of this suit. J ames Whartenby, the devisee in remainder, and the next in succession, is still living and is the defendant in error in this case. The plaintiffs in error claim title by virtue of a sale under a judgment and execution against Richard Tibbitt. The rule in Shelley’s case is in force in Delaware, and an estate-tail may be barred there by such a conveyance as that by Richard to Hazel.”
James Whartenby brought ejectment against William Daniel for the devised premises, recovered judgment, and Daniel brought error. The question thus raised by the litigation was what estate the first taker, Richard, took, an estate in fee-tail, or whether he took only an estate for life, with remainder in fee to the issue of his body, contingent upon the birth of such issue, and, in default of such issue, remainder for life to his widow and two sisters, with remainder over in fee after their death to James Whartenby, the defendant in error. On the one hand it was insisted that the words “issue of his body by him lawfully begotten” were words of limitation and consequently the rule in Shelley’s case applied, while on the.other it was asserted that those words were, in legal effect, the synonym of children, and so were the words of purchase.
After stating and discussing the facts aforesaid, and giving divers reasons why the above rule did not apply, Mr. Justice Swayne, the spokesman of the court, said: “We entertain no doubt that the testator intended to give a life estate only to Richard, -and a fee simple to his issue, and that they should be the springhead of a new and independent stream of descents. We find nothing in the law of the case which prevents our giving effect to that intent. We hold that the rule in Shelley’s *307case, for the reasons stated, does not apply. The estate given to the children of Eichard was a contingent remainder. Upon the birth of the first child it would have vested, but subject to open and let in after-born children. The devise to Eichard and his issue disposed of the entire estate. The devises over to the widow and testator’s two sisters, and to James Whartenby, were executory devises. Upon the death of Eichard, with the possibility of issue extinct, the devise to James became a remainder in fee simple, vested at once in interest, but deferred as to the period of enjoyment until the termination of the intermediate life estates.” And so the judgment recovered by Whartenby was affirmed.
Inasmuch as the rule in Shelley’s case had been abolished in this State long before the present will was drafted, the case just cited and quoted from, seems decisive of the case at bar, saying nothing of cases already cited and quoted from, from our own reports, which announce in legal effect the same result.
It is objected, however, by defendants that no express estate was given to the prospective children of William Eranklin Yocum, and they took none by implication. The law appears to be well settled that a fee may pass by implication and so may an estate for life. Chancellor Kent says: “A fee will pass by will, by implication of law, as if there be a devise over of land after the death of the wife; the law, in that case, presumes the intention to be, that the widow shall be tenant for life. So, a devise over to B on the dying of A before twenty-one, shows an intention, that if A attains the age of twenty-one, he shall have a fee, and he takes it by implication.” [4 Com. (14 Ed.), *541.]
Washburn says: “A fee may be given, by implication, when the estate bears such a relation to some other estate as to render such a construction a reasonable one; as where the devise was to one ‘after the death of the testator’s wife,’ it was *308held to be a remainder in fee to him, and an estate for life, by implication, to the wife; so, where the devise was to A, if B died before he was twenty-one years of age: the estate to B was held to be a fee by implication if he attained the age of twenty-one years.” [3 Washburn (5 Ed.), 694-5.]
And in order that a life estate only should pass to a certain devisee, it is by no means necessary that the precise technical term usually employed for that purpose, should be used; any equivalent form of expression which clearly indicates an intention to pass but a life estate will accomplish the same object and effectuate the non-technical expressed, intention, which intention may be gathered from the four corners of the instrument. [Schorr v. Carter, 120 Mo. 409, and cases cited; McMillan v. Farrow, 141 Mo. 55, and cases cited; Cross v. Hock, 50 S. W. 786; Walton v. Dumtra, 54 S. W. 237, and cases cited.]
Section 8837, Revised Statutes 1889, declares that: “Where a remainder in lands or tenements, goods or chattels, shall be limited, by deed or otherwise, to take effect on the death of any person without heirs or heirs of his body, or without issue, or on failure of issue, the words ‘heirs’ or ‘issue’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.”
It has been ruled by this court that this section was evidently enacted to prevent the words “die without issue,” from being so construed, as to mean an “indefinite failure of issue,” as by some of the authorities the former words were construed to mean; that the words “dying without issue” in that section are to be construed to mean dying without issue living at the death of the person named as ancestor, or first taker; that the term “ancestor” as used in that section is the devisee of the life estate, whose issue, if any, are to take the remainder in fee; and that in case of failure of such issue, those who are to take *309the remainder over in fee, are executory devisees. [Naylor v. Godman, 109 Mo. 513, and cases cited.]
Under the foregoing authorities and statutory provisions, it is clear, first, that William Eranklin Yocum took but a life estate; second, his prospective children, a contingent ' remainder; third, the devises to Susan Evans and others, were executory devises; and fourth, under the ruling in Daniel v. Whartenby, supra, upon the birth of the first child to William Eranklin Yocum, the contingent remainder became a vested remainder in such child, but opened and let in the after-born children, and owing to the birth of such issue, the entire estate was disposed of, and left nothing for the executory devisees, but such children would of course, be postponed in the enjoyment of the fee simple vested in them until the termination of their father’s life estate.
Under these views, William Franklin Yocum had nothing he could convey but his life estate, and his children not deriving their title from him, but from their grandfather, were not bound by his warranty.
For these reasons, the judgment should be reversed and the cause remanded, with directions to enter judgment for plaintiffs. Marshall, J., concurs in this opinion.