Dtxreee, J.
Two questions are presented-to us for decision in this case. We will first consider the question which has been raised in regard to the construction of the second clause of the will of Elizabeth Amory. The clause is as follows : —
“ Second. I give, devise, and bequeath all my share, right, title, interest, claim, and demand in and to that portion of my late honored father’s estate, which was left by him for the use of my sister, Mrs. Sarah Skinner, during her life, now in part in the hands of Thomas Burgess, of Providence, in trust, to my son-in-law, Robert Hale Ives, of Providence, my executor and trustee, in special trust, for him to manage and improve and to collect and pay over the income and profits thereof as often as may be found convenient, equally to be divided between my grandchildren, Louisa Smith Howe and Mary Amory Howe, daughters of my deceased daughter, Julia Bowen Howe ; the said income and profits to be paid to and applied by my eldest unmarried daughter to the use and benefit of my said grandchildren, and in case of the death or marriage of both of my said daughters, then the same to be paid to the legal guardian of my said grandchildren, and to be applied for their sole use and benefit as aforesaid.
“ And in the event of the decease of either of my said granddaughters, Louisa S. or Mary A. Howe, without leaving issue then alive, my will is that her share of the property and estate devised and bequeathed herein by this item, shall vest in and enure to the benefit of her sister who may survive, subject to the conditions of the trust established in this clause, and in the event of the decease of both of my said grandchildren without leaving issue, then the property and estate hereby devised and bequeathed
to them shall go to and vest in my children and grandchildren as my heirs at law according to law, as undevised property.”
.The said Louisa S. Howe died after the making, of the will, during the life of the testatrix, without leaving issue then alive. The testatrix is dead, and her will was proved in 1858. The said Mary A. Howe died in 1866, leaving a son, Hobart Emlin Hare. The question put to us is, whether the said Mary A. Howe, under the foregoing clause, took an equitable estate of inheritance, which now vests in her son, or an estate for life only. The question arises from the fact, that the clause annexes no words of limitation, either to the estate given to the trustee, or to that given to the beneficiaries. If, however, the intent to create an estate in fee is plain, the absence of words of inheritance is immaterial. We think it clear, both from the requirements of the trust created and from the language used to describe the property devised, that the testatrix meant that the trustee should take all the estate which she had in the property mentioned, which was an estate in fee. The language used- to describe the interest devised to the
cestuis que trust
is more open to question; but still, on an examination of the entire clause, we have little doubt that the testatrix meant they should take an estate of inheritance. In
Stewart
v.
Garnett,
3 Sim. 398, the devise of the rents of an estate was held to pass the fee ; and it has also been held, that a devise in fee in trust for another, without words of limitation, will vest an equitable estate in fee in the
cestui que trust. Challenger
v. Sheppard, 8 T. R. 597;
Moore
v.
Cleg
horn, 10 Beav. 423. But, without relying too much on those cases as precedents, we think the closing paragraph of the clause makes it quite evident that the testatrix did not suppose she was giving the two granddaughters there named an estate for life only. She there provides that, in the event of the decease of either of them without leaving issue then alive,
her share of the property and estate,
devised by the clause, shall go to her surviving sister; and in the event of the decease of both without leaving issue, then the
property and estate thereby devised
to them shall go to her children and grandchildren as undevised property. If she had supposed that she had devised to each of them only a life estate, she could not have supposed that, upon the death of either of them, there would remain anything of the share of the
estate belonging to tbe deceased to go over to the survivor, or that, upon the death of both of them, there would remain anything of the estate devised to them to go over to her children and grandchildren. The fact, also, that the devise over was to take effect only in case of a death without leaving issue, leaves it to be inferred that it was in the mind of the testatrix that, in case there were surviving issue, such issue would succeed to the estate. It has been held that a devise without words of inheritance, with a limitation over, if the devisee dies under age, will give the first devisee an estate in fee by implication.
Frogmorton
v. Holyday, 3 Burr. 1618;
Doe
v. Wendale, 9 East, 400;
Doe
v. Coleman, 6 Price, 179;
Frovey
v.
Ranet,
10 East, 400;
Waring
v. Middleton, 3 Des. 249. We think the inference in favor of an estate of inheritance is quite as strong, where the devise over is contingent upon the death of the immediate devisee without leaving issue. In
Richardson et ux.
v.
Noyes et al.
2 Mass. 56, it was held that a devise, without words of inheritance, to three-sons, with a limitation over in these words, to wit: “ Also, my will is, that if either or any of them should die without children, the survivor or survivors to hold the interest or share of each or any of them so dying without children as aforesaid,” would pass to the first devisees an estate in fee simple, determinable on the contingency of their dying without issue, and on that contingency, vesting in the survivor or survivors by way of executory devise. We therefore conclude that the estate which vested in the said Mary A. Howe, under the clause in question, was an equitable estate of inheritance. We find nothing in other parts of the will, to which we have been referred, which would lead us to qualify this conclusion. We also think the estate was a fee simple conditional, not a fee tail, our opinion being that the second limitation over should be construed with reference to the first, and that, so construed, it well may, and should, be regarded as contingent, not upon an indefinite failure of issue, but upon a failure at the death of the surviving granddaughter.
The second question submitted to us for decision arises upon the following facts, to wit: WiUiam Bowen, whose will was proved February 20, 1832, devised to his daughter, Sarah Skinner, an equitable estate for life, with remainder in fee simple to his other three daughters, one of whom was Maria, the wife of
John Whipple. Mrs. Skinner died January 25, 1868. Maria, the wife of John Whipple, died in 1886, leaving five children. Mrs. Gammell, one of these children, died in 1839, leaving no issue ; and Mrs. Vinton, another of them, died in 1840, leaving no issue; and afterwards their father, John Whipple, deceased. The question put to us is, whether John Whipple (he being of kin next to Mrs. Vinton of the blood of Mrs. Gammell) inherited under the statute (Rev. St. ch. 159, § 6) from Mrs.
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Dtxreee, J.
Two questions are presented-to us for decision in this case. We will first consider the question which has been raised in regard to the construction of the second clause of the will of Elizabeth Amory. The clause is as follows : —
“ Second. I give, devise, and bequeath all my share, right, title, interest, claim, and demand in and to that portion of my late honored father’s estate, which was left by him for the use of my sister, Mrs. Sarah Skinner, during her life, now in part in the hands of Thomas Burgess, of Providence, in trust, to my son-in-law, Robert Hale Ives, of Providence, my executor and trustee, in special trust, for him to manage and improve and to collect and pay over the income and profits thereof as often as may be found convenient, equally to be divided between my grandchildren, Louisa Smith Howe and Mary Amory Howe, daughters of my deceased daughter, Julia Bowen Howe ; the said income and profits to be paid to and applied by my eldest unmarried daughter to the use and benefit of my said grandchildren, and in case of the death or marriage of both of my said daughters, then the same to be paid to the legal guardian of my said grandchildren, and to be applied for their sole use and benefit as aforesaid.
“ And in the event of the decease of either of my said granddaughters, Louisa S. or Mary A. Howe, without leaving issue then alive, my will is that her share of the property and estate devised and bequeathed herein by this item, shall vest in and enure to the benefit of her sister who may survive, subject to the conditions of the trust established in this clause, and in the event of the decease of both of my said grandchildren without leaving issue, then the property and estate hereby devised and bequeathed
to them shall go to and vest in my children and grandchildren as my heirs at law according to law, as undevised property.”
.The said Louisa S. Howe died after the making, of the will, during the life of the testatrix, without leaving issue then alive. The testatrix is dead, and her will was proved in 1858. The said Mary A. Howe died in 1866, leaving a son, Hobart Emlin Hare. The question put to us is, whether the said Mary A. Howe, under the foregoing clause, took an equitable estate of inheritance, which now vests in her son, or an estate for life only. The question arises from the fact, that the clause annexes no words of limitation, either to the estate given to the trustee, or to that given to the beneficiaries. If, however, the intent to create an estate in fee is plain, the absence of words of inheritance is immaterial. We think it clear, both from the requirements of the trust created and from the language used to describe the property devised, that the testatrix meant that the trustee should take all the estate which she had in the property mentioned, which was an estate in fee. The language used- to describe the interest devised to the
cestuis que trust
is more open to question; but still, on an examination of the entire clause, we have little doubt that the testatrix meant they should take an estate of inheritance. In
Stewart
v.
Garnett,
3 Sim. 398, the devise of the rents of an estate was held to pass the fee ; and it has also been held, that a devise in fee in trust for another, without words of limitation, will vest an equitable estate in fee in the
cestui que trust. Challenger
v. Sheppard, 8 T. R. 597;
Moore
v.
Cleg
horn, 10 Beav. 423. But, without relying too much on those cases as precedents, we think the closing paragraph of the clause makes it quite evident that the testatrix did not suppose she was giving the two granddaughters there named an estate for life only. She there provides that, in the event of the decease of either of them without leaving issue then alive,
her share of the property and estate,
devised by the clause, shall go to her surviving sister; and in the event of the decease of both without leaving issue, then the
property and estate thereby devised
to them shall go to her children and grandchildren as undevised property. If she had supposed that she had devised to each of them only a life estate, she could not have supposed that, upon the death of either of them, there would remain anything of the share of the
estate belonging to tbe deceased to go over to the survivor, or that, upon the death of both of them, there would remain anything of the estate devised to them to go over to her children and grandchildren. The fact, also, that the devise over was to take effect only in case of a death without leaving issue, leaves it to be inferred that it was in the mind of the testatrix that, in case there were surviving issue, such issue would succeed to the estate. It has been held that a devise without words of inheritance, with a limitation over, if the devisee dies under age, will give the first devisee an estate in fee by implication.
Frogmorton
v. Holyday, 3 Burr. 1618;
Doe
v. Wendale, 9 East, 400;
Doe
v. Coleman, 6 Price, 179;
Frovey
v.
Ranet,
10 East, 400;
Waring
v. Middleton, 3 Des. 249. We think the inference in favor of an estate of inheritance is quite as strong, where the devise over is contingent upon the death of the immediate devisee without leaving issue. In
Richardson et ux.
v.
Noyes et al.
2 Mass. 56, it was held that a devise, without words of inheritance, to three-sons, with a limitation over in these words, to wit: “ Also, my will is, that if either or any of them should die without children, the survivor or survivors to hold the interest or share of each or any of them so dying without children as aforesaid,” would pass to the first devisees an estate in fee simple, determinable on the contingency of their dying without issue, and on that contingency, vesting in the survivor or survivors by way of executory devise. We therefore conclude that the estate which vested in the said Mary A. Howe, under the clause in question, was an equitable estate of inheritance. We find nothing in other parts of the will, to which we have been referred, which would lead us to qualify this conclusion. We also think the estate was a fee simple conditional, not a fee tail, our opinion being that the second limitation over should be construed with reference to the first, and that, so construed, it well may, and should, be regarded as contingent, not upon an indefinite failure of issue, but upon a failure at the death of the surviving granddaughter.
The second question submitted to us for decision arises upon the following facts, to wit: WiUiam Bowen, whose will was proved February 20, 1832, devised to his daughter, Sarah Skinner, an equitable estate for life, with remainder in fee simple to his other three daughters, one of whom was Maria, the wife of
John Whipple. Mrs. Skinner died January 25, 1868. Maria, the wife of John Whipple, died in 1886, leaving five children. Mrs. Gammell, one of these children, died in 1839, leaving no issue ; and Mrs. Vinton, another of them, died in 1840, leaving no issue; and afterwards their father, John Whipple, deceased. The question put to us is, whether John Whipple (he being of kin next to Mrs. Vinton of the blood of Mrs. Gammell) inherited under the statute (Rev. St. ch. 159, § 6) from Mrs. Vinton the portion of the estate aforesaid, which came to her from her said sister, Mrs. Gammell; the inquiry being whether, in determining who is entitled as next of kin of the intestate “ of the blood of the person from whom the estate came or descended,” we are to look for the next of kin of the blood of the person from whom the estate came by the
immediate
or by some more
remote
descent. This question came before the Supreme Court of the United States in the case of
Gardner
v. Collins, 2 Pet. 58, and it was there held that the persons entitled under the statute were the next of kin of the intestate of the blood of the person from whom the estate came by
immediate
descent. • This decision was made in 1829, and, so far as we know, has since then been accepted as giving the correct construction of the statute. We think the construction there adopted rests upon valid reasons, and is the true construction, and, consequently, that the sixtieth part of the estate in question, which came to Mrs. Vinton from Mrs. Gammell, descended upon her decease to her father,' John Whipple, he being of kin next to her of the blood of Mrs. Gammell.
Decree accordingly.