OPINION OF THE COURT BY
FREAR, C.J.
(Perry, J., dissenting.)
The question is one of tbe construction of a will. The material parts of tbe will and other facts are set forth in tbe dissenting opinion of Mr. Justice Perry.
There are three classes of devisees — the testator’s wife, his sous,- and all his children, comprising three sous and six daughters. The question is, what interests have they under the will?
As to the wife, there seems to he little or no doubt. The first item of the will clearly gives her a life estate in one-third of the land in question. The fourth is in harmony with this. But upon the happening of certain contingencies set forth in the third item her estate may be divested, in which case she wonld thereafter have in place thereof a fixed yearly snm which would be a charge on the land, to be paid by the son or sons who wonld take the whole land under that item upon the happening of such contingencies.
As to the children, they have equal vested interests under the first item, subject to the widow’s interest, until the expiration of the lease to the Kilauea Sugar Company. The main question is, what have they after that under the third and.fourth items?
As to the sons, in so far as they take under the third item, they take, subject- to the charge in favor of the widow, a fee — -whether [380]*380defeasible or indefeasible, vested or contingent, by way of remainder or executory devise, remains to be seen.
If the payments prescribed in that item are conditions precedent, they of course cannot have a vested interest under that item until they perform the conditions, and the vesting of their estates will necessarily he contingent upon such performance. In such case they would take by way of contingent executory de^visei, to vest and take effect in possession upon such performance and at the same time divest the daughters and short-coming sons or their heirs of any interests that they might otherwise have either under the fomth item of the will or by descent. Whether such other interest would he hv devise or descent would depend upon whether the devise in the fourth item would vest at or before the expiration of the lease or on non-payment by the sons within a year thereafter, that is, according to whether the children would falce under the fourth item immediately by way of reimainder subject to he divested or by way of .executory ■ devise a year after, holding meanwhile as heirs.
If those payments are conditions subsequent, the sons take under the third item by way of remainder, to take effect in possession immediately upon the expiration of .the lease and to be subject to be divested, upon non-performance of the conditions, in favor of the devisees under the fourth item. Such remainder would be contingent. For, although courts lean strongly in favor of early vesting, they must yield to the clearly expressed intention of the testator. Iñ this case the devise, to take, effect in possession at a future time, being to the sons “or then mrviving sons or son”, it is impossible to say until that time arrives which sons, if any, will he entitled to take under that description, and, in order that a remainder may be vested, it is necessary not only that it he capable of taking effect in possession whenever the particular estate may determine, hut that there he a person in being and ascertained who answers the description of the remainderman at some time during the continuance of the particular estate and not merely at its termination. 20 Am. & Eng. Enc. of Law, 838 et. seq. and notes; 2 Underhill, Wills, § 865. [381]*381Here the contingency is inherent in the description of the devisees. There is not even a direct devise to all the sons with a divesting clause or devise over in the event of the death of one or more during the prescribed period.
• In any event, therefore, until the expiration of the lease, the sons Avould have, so far as the third item is concerned, only a contingent interest. And this perhaps would be as far as it would be necessary to go in this case if this item alone were concerned. But it will be necessary to decide what all the children take under the fourth item, and in doing so it will be necessary or at least convenient to say further whether the payments are conditions precedent or subsequent and therefore whether the sons would take under the third item by way of remainder or executory devise.
All the children take a fee, of course, under the fourth item, in so far as they take at all under that item. There is no conversion of the land into money, for the direction to sell is not imperative. Nor does the fact that there is only a direction to sell or lease and divide the proceeds at a future time, without any express devise, prevent there being a devise or even a present vested remainder. 2 Underhill, "Wills, § 866.
"Under this item the children must take either a vested or contingent remainder or a contingent executory devise. It could not be a contingent remainder; for to be a remainder at all, it would have to take effect in possession, if at all, immediately upon the expiration of the lease, but the only contingency — nonpayment by the sons — that would malee it a contingent remainder, if at all, might happen at any time within a year after the expiration of the lease.
The estate therefore must be either a vested remainder subject to be' divested upon the performance of the condition by the sons or else a contingent executory devise to vest and take effect in possession, if at all, a year after the termination of the lease in case the sons fail to perform the condition within that year. Which is it ?
With the exception of the argument based on the direction to [382]*382sell or lease and divide a.t a future time, which, as- we have seen, is by no. means conclusive, the arguments all seem to favor the theory of a vested remainder as against a contingent executory • devise.
In general there is a strong presumption in favor of early vesting. There is a strong presumption in favor of a remainder as against an executory devise. 'There is a strong presumption against intestacy as to a portion of'the estate — in this case for the short period from the expiration of the lease to the performance of the conditions in case they are performed or the end of the year in case they are not performed. There is a strong presumption that a condition imposed merely for convenience is not intended to delay the vesting of an estate, that is, is not intended as a condition precedent to the vesting, even if it should be to the enjoyment. .Here the children would take under the fourth item immediately but for the allowance of a year to the sons in which to make the prescribed payments, and that time is allowed for the sons’ convenience and not for the purpose of postponing all the children.
The will itself contains nothing to clearly rebut' these presumptions blit on the contrary supports the view'that the children were intended to take immediately upon the expiration of the lease rather than a year later. All three of these items show an intention on the part of the testator to treat all the children .equally as to quantity of interest. The first and. fourth items express this intention as clearly as it can be expressed. The third item merely gives the sons a privilege of obtaining all the land, but only on condition that they compensate the others for what they would otherwise have in the land. It is little more than one-method of division.
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OPINION OF THE COURT BY
FREAR, C.J.
(Perry, J., dissenting.)
The question is one of tbe construction of a will. The material parts of tbe will and other facts are set forth in tbe dissenting opinion of Mr. Justice Perry.
There are three classes of devisees — the testator’s wife, his sous,- and all his children, comprising three sous and six daughters. The question is, what interests have they under the will?
As to the wife, there seems to he little or no doubt. The first item of the will clearly gives her a life estate in one-third of the land in question. The fourth is in harmony with this. But upon the happening of certain contingencies set forth in the third item her estate may be divested, in which case she wonld thereafter have in place thereof a fixed yearly snm which would be a charge on the land, to be paid by the son or sons who wonld take the whole land under that item upon the happening of such contingencies.
As to the children, they have equal vested interests under the first item, subject to the widow’s interest, until the expiration of the lease to the Kilauea Sugar Company. The main question is, what have they after that under the third and.fourth items?
As to the sons, in so far as they take under the third item, they take, subject- to the charge in favor of the widow, a fee — -whether [380]*380defeasible or indefeasible, vested or contingent, by way of remainder or executory devise, remains to be seen.
If the payments prescribed in that item are conditions precedent, they of course cannot have a vested interest under that item until they perform the conditions, and the vesting of their estates will necessarily he contingent upon such performance. In such case they would take by way of contingent executory de^visei, to vest and take effect in possession upon such performance and at the same time divest the daughters and short-coming sons or their heirs of any interests that they might otherwise have either under the fomth item of the will or by descent. Whether such other interest would he hv devise or descent would depend upon whether the devise in the fourth item would vest at or before the expiration of the lease or on non-payment by the sons within a year thereafter, that is, according to whether the children would falce under the fourth item immediately by way of reimainder subject to he divested or by way of .executory ■ devise a year after, holding meanwhile as heirs.
If those payments are conditions subsequent, the sons take under the third item by way of remainder, to take effect in possession immediately upon the expiration of .the lease and to be subject to be divested, upon non-performance of the conditions, in favor of the devisees under the fourth item. Such remainder would be contingent. For, although courts lean strongly in favor of early vesting, they must yield to the clearly expressed intention of the testator. Iñ this case the devise, to take, effect in possession at a future time, being to the sons “or then mrviving sons or son”, it is impossible to say until that time arrives which sons, if any, will he entitled to take under that description, and, in order that a remainder may be vested, it is necessary not only that it he capable of taking effect in possession whenever the particular estate may determine, hut that there he a person in being and ascertained who answers the description of the remainderman at some time during the continuance of the particular estate and not merely at its termination. 20 Am. & Eng. Enc. of Law, 838 et. seq. and notes; 2 Underhill, Wills, § 865. [381]*381Here the contingency is inherent in the description of the devisees. There is not even a direct devise to all the sons with a divesting clause or devise over in the event of the death of one or more during the prescribed period.
• In any event, therefore, until the expiration of the lease, the sons Avould have, so far as the third item is concerned, only a contingent interest. And this perhaps would be as far as it would be necessary to go in this case if this item alone were concerned. But it will be necessary to decide what all the children take under the fourth item, and in doing so it will be necessary or at least convenient to say further whether the payments are conditions precedent or subsequent and therefore whether the sons would take under the third item by way of remainder or executory devise.
All the children take a fee, of course, under the fourth item, in so far as they take at all under that item. There is no conversion of the land into money, for the direction to sell is not imperative. Nor does the fact that there is only a direction to sell or lease and divide the proceeds at a future time, without any express devise, prevent there being a devise or even a present vested remainder. 2 Underhill, "Wills, § 866.
"Under this item the children must take either a vested or contingent remainder or a contingent executory devise. It could not be a contingent remainder; for to be a remainder at all, it would have to take effect in possession, if at all, immediately upon the expiration of the lease, but the only contingency — nonpayment by the sons — that would malee it a contingent remainder, if at all, might happen at any time within a year after the expiration of the lease.
The estate therefore must be either a vested remainder subject to be' divested upon the performance of the condition by the sons or else a contingent executory devise to vest and take effect in possession, if at all, a year after the termination of the lease in case the sons fail to perform the condition within that year. Which is it ?
With the exception of the argument based on the direction to [382]*382sell or lease and divide a.t a future time, which, as- we have seen, is by no. means conclusive, the arguments all seem to favor the theory of a vested remainder as against a contingent executory • devise.
In general there is a strong presumption in favor of early vesting. There is a strong presumption in favor of a remainder as against an executory devise. 'There is a strong presumption against intestacy as to a portion of'the estate — in this case for the short period from the expiration of the lease to the performance of the conditions in case they are performed or the end of the year in case they are not performed. There is a strong presumption that a condition imposed merely for convenience is not intended to delay the vesting of an estate, that is, is not intended as a condition precedent to the vesting, even if it should be to the enjoyment. .Here the children would take under the fourth item immediately but for the allowance of a year to the sons in which to make the prescribed payments, and that time is allowed for the sons’ convenience and not for the purpose of postponing all the children.
The will itself contains nothing to clearly rebut' these presumptions blit on the contrary supports the view'that the children were intended to take immediately upon the expiration of the lease rather than a year later. All three of these items show an intention on the part of the testator to treat all the children .equally as to quantity of interest. The first and. fourth items express this intention as clearly as it can be expressed. The third item merely gives the sons a privilege of obtaining all the land, but only on condition that they compensate the others for what they would otherwise have in the land. It is little more than one-method of division. Accordingly, it would seem that the intention was to leave the land to all, subject to the exercise of the' option by the sons, rather than to leave it to the sons subject to go over to all in case the sons should not exercise their option. The .third item strongly bears out this idea- It shows that the payments therein prescribed are conditions precedent, in which qase the sons could not take by way of remainder at all under [383]*383that item. They could take under that only by way. of contingent executory devise. The form of the proviso and its annexation to the devise itself, instead of being inserted in a subsequent clause, favor this construction. Moreover, even afterfhe expiration of the lease it may not be known for a year which, if any, of the surviving sons will be able or willing to make the payments. The provision for the payments to the others, the shortcoming sons as well as the daughters, also favors this construction. This and the use of the word “buy” tend to show that the testator thought the daughters and short-coming sons already had an interest to be in a certain sense bought out. The.sons may buy “the whole”, as if they would not otherwise then have the whole, or as if the others already had some. And it is only “by doing so”, that “they my sons, or he my son, will enter into full possession of all my lands, and their or his right and title will be undisputable, provided they or he (my son or sons) comply and fulfill the above mentioned conditions.” A distinction is. made also between the payments to the other children and those to the widow. The latter are merely charges on the land and may extend over a period of years, and no express words of .condition .are set forth in connection.with them, while the former are intended to be single payments respectively to- be made within a limited time and are put in the form of express conditions. The .sons woiild then at most take, not a contingent remainder, but •only a contingent executory devise under the third item.
Again, if there is any distinguishing feature in the results as between vested and contingent interests, it is that a vested interest passes from the designated devisee to' his heirs or assigns, while •a contingent interest does not. Now, this distinction between an interest that would pass by descent or devise or conveyance even Before the estate might take effect in possession and one that would not so pass, is apparently just what the testator had in mind, as to the estate of all the children under the fourth item, .for he there directs the division to be made among all the “children or their heirs and assigns,” as if they could devise or convey their respective interests before the period of distribution or tak[384]*384ing effect in possession or as if, in case they did not do so; their-interests would- pass to their heirs by descent in case of their death before such period. If such is the case, the children must have a vested estate.
The foregoing considerations favor the view that the sons would take a contingent executory devise as. against a contingent remainder under the third item; that all the children would take a vested remainder under the fourth item as against a contingent remainder in the sons under the third item; that under- both items all the children would take a vested remainder, subject to be divested as to the daughters and short-coming sons- in favor of the other sons upon their performance of the prescribed conditions as against the view that all the children on the one hand and the sons on the other hand take alternate contingent executory devises with a possible intermediate period of intestacy.
But since all the children have vested estates until the expiration of the lease as well as vested, though defeasible, remainders after that, the- lesser estates are merged in the greater and all the children have present vested estates in fee defeasible as to the interests of some of them upon the others’ performance of the conditions prescribed. And this would seem to be the intention of the testator as shown in all three clauses of the will. . He meant to give the land to all his children equally, subject to> the -widow’s interest, and, as one method of division after the expiration of the lease-, to give the sons -the option of obtaining the whole upon making proper payments in money to the others.
The questions are therefore answered as follows:
The widow has a life estate in ona-third of the land, subject to. be divested by the performance of the conditions prescribed in the third item, in which case she will thereafter have a fixed sum of $2,000 a year, which will be a charge on the land.
The children have equal vested estates in fee, subject to the' widow’s interest, defeasible as to the interests of the- daughters-' and short-coming sons upon the performance of the prescribed [385]*385conditions by the other son or sons, the sons having meanwhile contingent executory devises as to such interests.
Geo. A. Davi-s and F. M. Brooks for plaintiffs.
Andrews & Andrade for defendants.