DISSENTING OPINION.
VALLIANT, C. J. —This'is an action in ejectment in which the plaintiff claims an undivided one-fourth of a certain lot in the city of St. Louis. There is no dispute about the facts. John P. Lauman was the owner of the land November 20, 1877; on that day he made a deed which was duly acknowledged and recorded whereby he conveyed the land to William F. Lau-man in trust for certain purposes, to-wit: first, for the sole use and benefit of the grantor’s wife Catherina during her life, with power of disposition; second, for the sole use and benefit of the grantor after the death of his wife if he should survive her, with power of disposal; third, “From and after the death of said Cath-erina Lauman and said John F. Lauman, the said party of the second part and his successors in trust, shall hold the real estate above described, or so much thereof as *258shall not have been disposed of as above provided, to the use, benefit and behoof, share and share alike, of the children born or to be born of the marriage of said John F. Lanman and Catherina Lauman, the children now living being named as follows.” Then follow the mames of their fonr children living and directions to the trustee to collect the rents, pay the taxes, make repairs, etc., and divide the net income equally between the children paying to those 'who are of age their shares at. periods named and applying the shares of the (minors to their education and maintenance, after which comes the following clause in the deed, out of the con.flicting interpretations of which this law suit has arisen: “At the expiration of ten years from and after the date when the youngest of said children shall have attained lawful age, the said trustee or his successor in trust, shall make a final settlement with each of said children, paying over to each of them then living, and to the heirs a't law of such of them as may have departed .this life, their respective equal shares as aforesaid, of the said rents and profits, and thereupon this' trust shall cease and be determined, and the title to said real estate and every part and portion thereof, not disposed of as hereinbefore provided, shall without any act to be done or performed by said trustee or his successor in trust, pass to and become fully vested in fee simple in said children then living, and in the heirs at law of such of said children as may then be dead, to be held by them as tenants in common; according to their respective equal shares as aforesaid, and their inheritance from such of said children as may then be dead. ’ ’
The defendants interpret that clause to mean that the estate in remainder was contingent and was not to vest until ten years after the youngest child came of age and then to vest in the children then living and in the heirs of those then dead. The plaintiff contends that, taking that clause in connection with the whole *259deed, the estate in remainder was vested on the execution of the deed.
There were ho other children born to John F. Lañ-man and his wife than the four named in the deed, viz: John Henry, Catherina Maria Alvina, John Frederick: William, and Catherina Carolina Wilhelmina.
John F. Lauman, the grantor, died in 1879, Cathe-rina his wife survived him and died in 1893Í John Henry, the oldest child, died before his mother in 1892, leaving his widow, who is the plaintiff in this suit, but no child; he left a will by which he devised all his.estate to his widow the plaintiff, and she now claims title to an undivided fourth of the land by virtue of that will. The youngest child, Catherina Carolina Wilhelmina, came of age September 13, 1887; therefore, the date appointed for the termination of the trust came September 13, 1897. At that date all the children except John Henry were living, they are still living and in possession of the property in question and are the defendants in this suit. John Henry’s widow and devisee has married again and is now Mrs. Buxton.
There is but one question in the case, that is, did the deed create an equitable vested remainder in the children of the grantor? If yea, the plaintiff is entitled to recover; otherwise, not. The court rendered judgment for the defendants and the plaintiff appealed. We do not discover much difference in the opinions of the counsel in this case concerning the law of remainders or the rules by which vested are to be distinguished from contingent remainders, but the difficulty lies in the application of the rules, to the facts of the ca 3e.
The fact that the share of the estate the remainder-men may take, when the time specified for its enjoyment comes, may depend on a contingency, does not constitute it a contingent remainder. The remainder may be given to a class liable to be increased in number. .
*260In Tiedeman, E. P. (3 Ed.), sec. 302, it is said: “The general rule is that a remainder is contingent if the persons who are to take are not w esse, or are not definitely ascertained. But where the remainder is limited to a class, some of whom are not in esse, the remainder has repeatedly been held to be vested— liable, however, to open and let in those who are after-wards bom during the continuance of the particular estate. ” This court so held in Gates v. Seibert, 157 Mo. 254. Therefore, the fact that this grant was to the children bom and to be born does not militate against the proposition that it was a vested remainder.
Nor does the fact that the body of the property is liable to be diminished by the life tenant by exercise of the power of disposal affect the character of the remainder. The general rule of law is that where there is an absolute power of disposal in the first taker it will be construed to mean that an absolute estate in fee is granted and therefore there is no remainder left unless there are words in the will or deed clearly showing that it was the intention of the grantor to convey to the first taker an estate less than a fee and to reserve or otherwise dispose of the remainder. But where as in this case express words are used limiting the grant to the first taker to a life estate and disposing of the remainder in fee the remainder passes burdened with the power. [Tiedeman, R. P. (3 Ed.), sec. 298.] That rule is recognized by this court in Cornwell v. Wulff, 148 Mo. 542.
In one of. the briefs for respondent it is argued that if John F. Lauman had survived his wife he would have had the disposal of the property and it would have been subject to execution on a judgment against him, and that that condition was inconsistent with the power of the remaindermen to sell. Of course under the terms of our statute, section 3397, Eevised Statutes 1899, the deed in trust for the benefit of the grantor was void as to creditors, and the property was liable *261to be taken for Ms debts, bnt there is no creditor in tMs ease; the deed is good between the parties, and if there were creditors then tbe remaindermen wonld take subject to tbeir rights, the estate would vest with the burden.
It is an essential element to an estate of vested remainder that there be a present right of future enjoyment, but if that element is present the time appointed for the enjoyment to begin may depend on a contingency and the degree of enjoyment may be affected by a contingency that would burden the property, yet the estate would vest in praesenti. The author above quoted, in section 301, says: “No uncertainty of enjoyment will render the remainder contingent. The contingent or vested character of the remainder is only determined by the uncertainty which attends the vesting of the right to the estate.” And afterwards in the same section the author says: “Wherever there is a doubt as to whether a remainder is vested or contingent, the courts always incline to construe it a vested estate.” Therefore, when we are construing an instrument which creates a remainder and we find in it an element of contingency we must determine whether the contingency refers to the estate granted or to the time when the grantee may go'into possession; if it refers to the estate granted then the estate is a contingent remainder, but if it refers only to the period of enjoyment the estate is vested.
In a note to the text, Tiedeman on Real Property (3 Ed.), section 297, several tests to determine whether the remainder is vested or contingent are discussed and the test there suggested is: “the present capacity to convey an absolute title to the remainder.” But the author, continuing, says: “TMs test would, however, give rise to a qualification, where the remainder is to a class and some of the class are not yet in esse. The remainder, so far as those in esse are concerned, is held to be vested (see post, sec. 302), while such re-*262maindermen could not convey an absolute title, thus excluding tbe after-born members’ of tbe class from tbeir right in tbe remainder, although they can convey an absolute title to their own interest in it.” Under that rule, if this is a vested remainder, either of the four children named could, at any time after the execution of the deed, have conveyed his or her interest subject to diminution of the share by the birth of another of the class.
Where the contingency'named is such as to render it uncertain what person or persons will take the remainder when the time comes, then it is a contingent remainder. If in this case the deed had said that the remainder should go to those children of the grantor living at the time of the death of their mother, the life tenant, then the right of either child to have any part of it would be contingent on his or her surviving their motherland if that were the fact in this case this would be a contingent remainder, but it is not the fact.
In the. briefs we are referred to decisions of this court bearing on this question, but they all recognize the principles above stated and the only difference between them grows out of the difference in the facts. In Emison v. Whittlesey, 55 Mo. 254, the deed was to A in trust for the sole use of B, a married woman, for life, remainder in fee tó the children of herself and her husband living at the time of her death and the children of any of their deceased children living at the time, of her death.' The court said: “At the time of the deed, it was impossible to say that any one was in existence who would take the remainder. No one could tell that any of the children would survive the mother. It was, therefore, a contingent remainder.”
In DeLassus v. Gatewood, 71 Mo. 371, the remainder was to the children or their bodily heirs, living at the death of the life tenant. It was held that that was a contingent remainder because, although there were several children living when the will was made,.it was *263impossible to say that one of them would. survive the life tenant, their mother.
In Emmerson v. Hughes, 110 Mo. 627, the deed was to “Mary R. Goodman for and dnring her natural life and with remainder to the heirs of her body.” At the date of the deed she had six children living. She and. her six-'Children executed a deed conveying the land to defendant’s grantor; one of the children, after executing the deed, died during the lifetime of the life tenant, leaving an heir, who after the death of the life tenant-brought suit for his share of the land, and recovered judgment, which this court affirmed. In thát case -it. was contended by the defendant-that the deed conveyed, a life estate to Mrs. Goodman with a vested remainder to her children, but the court held that it was no remainder to the children, as children, at all, but the remainder was “to the heirs of her body,”, and who. would be such heirs could not be known until her death.
In contrast with those cases is Jones v. Waters, 17 Mo. 589, where the devise.was to the testator’s wife “for and during her natural life, and after her death to descend to her children by me, equally, share and share alike.” There it was held the children took a vested remainder,- they did not have to wait until they filled the description of the word “heirs,” their right did not depend on their surviving their mother. Without consuming the more time and space that would be required to review the other decisions of this court cited in the briefs, we are content to say that they all announce the governing principles above stated, and therefore we will proceed to their application to the facts of this case.
By the first clause of the deed the grantor com veyed to “the party of the second part, his heirs and assigns and his successors in this-trust, forever, the. following described real estate situated in-the city of St. Louis, to-wit,” etc. The grantor thereby parted with the whole estate, he reserved no part of it, it all *264went to the grantee for the uses and purposes therein-after specified. The deed created a legal and an equitable estate, the legal estate vested in the trustee, the equitable estate vested, or was to vest, in the beneficiaries named. The intention to pass the whole legal estate to the trustee was no more clear than was the intention to pass the whole equitable estate to his wife and children. The equitable estate he divided into an estate for life and an estate in fee in remainder. There is no doubt as to who was to be the beneficiary .of the one or who the beneficiaries of the other, for they are all named or described in the deed and the remainder-men are described as children, not as heirs, and there are no words to indicate that their right is to depend on their surviving the life tenant. Between the life estate given to his wife (and the fragment thereof extended for himself in case he should survive her) on the. one hand, and the remainder to his children on the other, there is no estate created, there is nothing between them. If therefore the equitable estate in fee did not vest until ten years after the youngest child came of age, as respondents contend, where was it between the termination of the life estate in 1893 and the expiration of the ten-year period in 1897? It was either in the trustee or it was in the children named and, if it was in them then, it had been in them since the execution of the deed. It was- specified in the deed that in that interval of time the trustee should collect the rents and pay them over or apply them as directed. In doing so he was not acting as a mere agent or as one executing a mere power, he was acting as trustee holding the title in trust and the persons to whom he was to pay the money collected were not mere donees of money, but they were equitable owners of the land and the money was theirs because it was the fruit of their land. To the extent, therefore, at least of enjoying the rents arising from the land, their proprietary use of the property began immediately on the termination of *265the life estate. The language of the deed is that after the death of the life tenant the trustee ‘ ‘ shall hold the real estate above described or so much thereof as shall iiot have been disposed of as above provided to the use, benefit and behoof share and share alike of the children born or to be born,” etc. He was to hold the. title for them, they were therefore the cestuis que trust of the title which he held and he was to collect and pay over to them the rents arising from their property. This he was to continue to do until the expiration' of ten years after the youngest child should have attained lawful age and then he was to “make a final settlement with each of said children paying over to each of them then living and to the heirs at law of such of them as may have departed this life, their respective shares as aforesaid of the said rents and profits.”
The language there used shows that the grantor understood that he had given the title to his children and the intervention of the trustee was only to put that much restriction on the use or enjoyment of -the estate, he doubtless thought it would be better for them to have the estate managed by a trustee until the youngest child should reach a comparatively , mature age. When the trustee should make his final settlement he was to pay to the children then living their respective shares and if any of them had died he was to pay it, not to the survivors of the class, but to the heirs of the deceased, that is, he was to pay it to those who had inherited the interest which the deceased children of the grantor had owned, but if the equitable title had not vested in the deceased children in their lifetime how could there be any heirs to such title?
So far there is nothing obscure in the meaning of the deed, and if the clause in question had ended with the words above quoted there would have been no room for controversy as to its meaning, the words preceding were all-sufficient to convey the whole title to the trustee for the use of the grantor’s wife for life and his *266.children in remainder in fee, but defendants are advised that the words following give a significance to the whole instrument and have the effect to qualify all that had gone before in the granting clause and to designate a time, not alone when the free and unrestricted enjoyment of the estate was to begin, but when the estate was for the first time to vest. The language is, “And thereupon [that is, upon the final settlement of the. trusteeship]' this trust shall cease and be determined, and the title to said real estate and every part and portion thereof* not disposed of as herein provided, shall without any act to be done or performed by said trustee or his successor in trust, pass to and become fully vested in fee simple in said children then living, and in the heirs at law of such of said children as may then be dead, to be held by them as tenants in common,-according to their respective equal shares as aforesaid, and their inheritance from. such' of said children as may then be dead.”
The office of the trustee would have ended and the title which the grantor’s children up to that time had held would have changed its character from an equitable to a legal estate by force of: the deed without any relinquishment of title from the trustee even if the words last quoted had not been added to what had preceded, therefore those words were unnecessary, but they did not alter the effect of all that had gone before. The conveyancer may have thought that unless such words were used the legal title would, remain in the trustee after he had settled his accounts and descend to his heirs, leaving only the equitable title in the testator’s, children, and in order-to put that trouble out of the way and avoid the consequence of a possible disinclination or accidental incapacity on the part of the trustee to execute a deed of relinquishment the words were used to render such a deed unnecessary. But whatever may have been the idea of thé conveyancer we are satisfied that the intention of the grantor gath*267ered from the whole deed was to give his children a vested fee in remainder and the office of the trustee was continued to the period named only to secure what the grantor deemed a judicious management of the property until his children were old enough to have mature judgment; in other words, it was a restriction on the use and a postponement of the time for full enjoyment of the estate, hut not a postponement of the time of the vesting of the title.
There is no question hut that the whole title which the grantors had before the execution of the deed passed out of them by its execution and whatever title they thereafter had in the property was derived from the' deed itself.
That deed' conveyed the whole legal title to the trustee and divided the equitable title into a life estate and remainder in fee. But for the active duties the trustee was given to perform; the deed would have fallen within the terms'of the Statute of Uses and Trusts, with the result that the equitable title would have drawn to it the legal title and the trustee would have been discharged. The active duties, however, suspended the merger of the title and, while those duties remained to be performed, the legal title was left in the trustee, while the equitable titles were in those for whom they were created. The active trust separated the legal from the equitable titles, as- well in the life estate as in the remainder, but rendered the one no more contingent than the other. The contingencies which might have resulted in postponing the enjoyment or in diminishing the quantity of the property to pass to the remaindermen, resulted, not from the fact that the legal title was withheld from them, but by the possibility of the numerical enlargement of the class or the exercise of the- power ..of disposal by. the life tenant, neither of which affected the character of the remainder. In the period of time between the termination of the life estate and the specified ten years after *268the youngest child came of age, where was the equitable title? It was in those for whose use and benefit the trustee held the legal title and to whom he was required to pay the rents. Then when the period of his active duties expired the Statute of Uses took the case in hand and he was discharged without being required to execute a deed transferring his legal title, the only thing required by him was to settle his accounts. That is in conformity to the language of the deed and also to the language of the statute.
"We hold, therefore, that title in fee in remainder to an undivided one-fourth of the land was vested in John Henry Lauman in his lifetime, and he had a right to dispose of it by will as he did, and the plaintiff as his devisee is entitled to recover. The judgment ought to be reversed and the cause remanded to be retried according to the law as herein expressed.
Gantt and Woodson, JJ., concur in the views herein expressed; Woodson, J., expresses his views on another point in a separate dissenting opinion.