If the language of the will which refers to the devolution of the remainder at the death of Mary M. McKinney, the life tenant, be given any effect at all, it clearly manifests the intention of the testatrix not to vest the remainder prior to the death of the life tenant, for the reason that, if the remainder became vested prior to that time, there was nothing left of the remainder to vest in the children of remainderman who might die previous to that time. In this case the life tenant, Mary B. McKinney, is still alive, and, if the mortgage deed of appellants effectually passed the title, then the conveyance may defeat the will of the testatrix if any of the appellants die prior to the death of the life tenant. The decision of the majority is, I think, in conflict with the great weight of authority on this subject. See the following cases cited on the brief of counsel: Tate v. Tate, 126 Tenn. 169; Bates v. Gillett,132 Ill. 287; Brownback v. Keister, 220 Ill. 544; Dohn v. Dohn, 110 Ky. 884; Ross v. Ware, 131 Ky. 828; Schaeffer v. Schaeffer, 54 W. Va. 681; Crapo v. Price,190 Mass. 317; Hospital Trust Co. v. Harris, 20 R.I. 408; Rosengarten v. Ashton, 228 Pa. 389; Paget v. Melcher, 156 N.Y. 399 *Page 1184 ; Straus v. Rost, 67 Md. 465; Whitesides v. Cooper,115 N.C. 570; Darnell v. Barton, 75 Ga. 377.
The majority rely upon our decisions in Black v. Bailey, 142 Ark. 201, and Jenkins v. Packingtown Realty Co., 167 Ark. 602, but neither of those decisions has any bearing on the present case. In Black v. Bailey the question involved was whether or not the title passed to a trustee, for, if there was no title vested in the trustee, there was no remainder, and the title passed in the first instance to the cestui que trust. In other words, the effect of the decision was that, there being no prior estate created by the will, there could be no remainder, either vested or contingent. The language of the devise in Jenkins v. Packingtown Realty Company was essentially different from the language of the will now under consideration. In that case the remainder over was devised directly to the children of the life tenants without restriction or limitation.
My conclusion in the present case is that the remainder was contingent, and that appellants had no vested interest which could pass under the mortgage to appellees.
The majority has not discussed the effect of the partition decree, hence I shall not do so further than to say that the chancery court had no jurisdiction in a partition suit to defeat the will of the testatrix by rendering a decree of partition between the contingent remaindermen.
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