concurring in the result:
I concur in the result of the opinion, prepared by Judge • Riley, but with some of the reasonings by which that: *866result is reached, I do not concur. For example, if, as I understand the opinion to hold,- the effect of the first portion of Paragraph 9 of the will of James W. Smith, is to devise his estate jointly to his widow and son, even though subject to the provisions contained therein relating to the support contained in said will of said widow, Sopha Mae Smith, and the son, Robert J. Smith, I do not see how the Court can escape holding that when Robert -J. Smith died, and could no longer receive such support, his share in the estate passed to his heirs, but, of course, subject to the support provisions aforesaid. This I think would, logically, compel a further holding in favor of the contention of the plaintiffs in this suit. I cannot follow the reasoning by which this, to me, inescapable conclusion is avoided.
In my opinion, Robert J. Smith did not, by the first provision of Paragraph 9 of said will, receive any interest, other than that of remainderman, in the corpus and income of his father’s estate, beyond the right to his maintenance and support, along with that of his mother, Sopha Mae Smith. It was provided in the will' that this support of Sopha Mae Smith should end on her marriage, as, necessarily, it would end on her death; but, until the occurrence of one of such events, her right to support out of the whole of said estate continued regardless of what might happen to Robert J. Smith. The fact that he died did not affect her right of support from the whole of the estate of James W. Smith, even to the complete exhaustion thereof. It was only after the death or remarriage of Sopha Mae Smith that it was contemplated that the “unused” portion of the estate should pass to Robert J. Smith, and, naturally, would, under the statute, pass to his widow and heirs at law on his death. The will plainly so provides. Neither of these events having occurred, no present interest in the James W. Smith estate, in the sense of a right to possess the same or demand an accounting in respect thereto, has become vested in the widow and heirs at law of Roberet J. Smith, although on the death of Sopha Mae Smith, which is certain, or in the *867event of her marriage, which is possible, the “unused”' portion of the estate will pass to them, and they may be treated, as of this date, as having a vested remainder' therein.
It may be said that the title to the James W. Smith estate must necessarily be vested in some person or persons. I think this is true. In my opinion, however, considering the evident intent of the testator, and reading the will as a whole, such title passed to, and remains; vested in, Sopha Mae Smith, to the end that, if necessary,, she is empowered to dispose of the same for her necessary-support. Without such title she would not be able to use' the estate for her support. Whether we treat it as a life-estate, or some form of a defeasable fee, is not important. Of course, under the plain provisions of the will, her marriage would end her interest in the estate, and the-same would pass to Robert J. Smith or his heirs, as under the will it will do on her death.
The application of these views would reach, by different, reasonings, the same result as that stated in the opinion prepared by Judge Riley, and concurred in by a majority of the Court. This note is filed for the sole purpose of indicating my views as to the principles on which, as I think, the case should be decided, and not as registering any disagreement with the result reached by the majority..