The word "heirs" is essential to justify the application of the rule in Shelley's case, just as it is at common law to create an ordinary estate in fee simple. Thus, the rule does not apply when the limitation is to such persons as would be entitled to take from the life tenant by descent. Handy v. McKean, 64 Md. 560, 572, 4 Atl. Rep., 125; Hofsass v. Mann, 74 Md. 400, 22 Atl. Rep., 65; Hardage v. Strope, 58 Ark. 303, 24 S.W. Rep., 490. Nor does it apply when the word "heirs," in the phrase "heirs of the body," is used in the sense of children, and as a word of purchase. Carrigan v. Drake, 36 S.W. Rep., 354, 15 S.E. Rep., 339; Tyler v. Moore, 42 Pa. St., 371, 17 Atl. Rep., 216; Jackson v. Jackson, 127 Ind. 346, 26 N.E. Rep., 897. When applied to wills the rule is not allowed to override the manifest and clearly expressed intention of the testator, but the intention will always be carried into effect if it can be ascertained. McIlhenny v. McIlhenny, 137 Ind. 411, 37 N.E. Rep., 147.
The principle upon which the rule in Shelley's case rests, as illustrated by the authorities cited, excludes its application to a case like this, where the remainder is devised to an unborn child of the devisee of the life estate, though the child is spoken of in the will as the heir of such devisee. In the present case the manifest intention of the testator was that after the death of his wife the remainder of the estate in fee simple should go to her unborn child.
The distinction between vested and contingent remainders is this: In the first, there is some person in esse, known and ascertained, who, by the will of deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event whether the estate limited as *Page 239 a remainder shall take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depends shall have determined, so that the estate in remainder will never take effect. 2 Washb. Real Prop., 224. A child en ventre sa mere will not be regarded as a child born, unless he is born alive, and though he be regarded, by a fiction of law, as in esse when such being is for the benefit of the unborn child, yet if he is never born alive he can not take property under a will or transmit title by inheritance to another.
It would seem therefore to follow that the remainder in the present case was contingent upon the unborn child mentioned in the will being born alive. Had such contingent event never happened, then it may be, as is contended in this motion, that Mrs. Edna Y. Bailey would have taken under the will an estate in fee simple. But such event did occur; and upon the birth of the child the estate in remainder ceased to be contingent and became as much a vested estate in remainder as it would have been had the child Gertrude been born and living when the will was made and the testator died. Therefore upon Gertrude's birth the title to a life estate was in her mother, and the remainder in fee simple in herself. This vested remainder, though the land never came into the actual possession and enjoyment of its owner, was an estate of inheritance, and upon Gertrude's death descended to her heirs as found by the trial court. The motion is overruled.
Overruled.
Writ of error refused. *Page 240