Woods, J.
It is clear that the plaintiff, in the two-fold relation of administrator and sole heir to his deeased daughter, Sarah Emma Yeaton, is entitled to whatever share or interest she had at the time of her death, in the personal and real property of the testator, Ebenezer Yeaton, if any she did have, that could be transmitted by intestacy or descent. This interest or share is claimed to have been, an absolute title and right of present possession, in common with the other children of the plaintiff, and with the children of Oliver Yeaton, to all that residuiim of the personal and real property of the testator, given by his will to Mary Yeaton, his widow, for life, with remainder over to those children, and such others as should afterwards be born to the above-named Leavitt and Oliver, except what the widow took by her election, as hereafter shown.
The clause in the'will, under which the claim arises, and which is to receive a construction in this case, is as follows : “ Item 3d. I give to my beloved wife, Mary Yeaton, the use of all the rest and residue of my estate, real, personal or mixed, wherever the same may be lying or being situated or found, to her, for and during her natural life, and no longer; and then to descend and go to the children of said Oliver Yeaton, and to the children of said Leavitt H. Yeaton, and to such other children as they may hereafter have, in equal shares, in fee.”
The widow, Mary Yeaton, soon after the death of the testator, declined the devise and legacy created for her by the will, and took her dower, allowance and her distributive shares, in the personal and real estate, and never accepted the provisions made for her by the will. Mahala Yeaton, a child of the plaintiff, and Susan Emma Yeaton, a child of Oliver Yeaton, have been born since the decease of the testator, and Sarah Emma, one of the children of the plaintiff, living at that time, has since deceased, leaving the plaintiff her sole heir, who has also taken letters of administration on her estate.
[465]*465The first question which presents itself arises upon the construction of the clause in the will which has been recited, whether the deceased daughter of the plaintiff, in common with his other children and the children of Oliver Yeaton, took by the will a vested interest in the residuiim of the personal and real property of the testator, subject to the widow’s right of election, in the nature of a remainder limited upon her life estate, or merely a contingent interest, depending, in the case of each child, upon the event of his or her surviving the widow, on the termination of whose life estate, the property was, by the terms of the will, subjected to a division among them. In the latter alternative, the interest of the intestate terminated, of course, with her own life; whereas in the former, whether as a remainder or a present devise, it was incapable of being defeated by any event, and was transmitted, like other property, by descent or intestacy, according to its quality, to the administrator or heir.
And it seems to be immaterial, whether we consider the property as having once vested for life in Mary Yeaton, the widow, and her life estate as having been extinguished by her own act, in the nature of a surrender or forfeiture, and so letting those in remainder into possession, or treat the devise to her as having lapsed, or as otherwise having absolutely failed, and her life estate as having never existed; for in such case the ulterior limitations will take effect as if no precedent estate had been created by the will. Com. Dig. Devise, K; Fearne Con. Rem. &c. 525.
We think that the limitations over to the children in this case were vested, and not eorA"«gent interests. By the terms of the will, they were to < effect upon the determination of the precedent estate «A lA.r oiu, in favor of pi r sons ascertained and in esse. Ti;!ey were created by apt words to create a vested re r - 1 ler. “ To Mary Yeaton,” “ to her, for and during ’■ • ' ui life, and no longer, and then to descend and L j j children, &c., in fee,” are the [466]*466significant words of the instrument. Even in those cases in which it has been the intention of the testator to postpone to a certain time the control of the ulterior devisees over the property, the remainders have been held to have vested. Hall v. Tufts, 18 Pick. 455. In the case of Bateman v. Roach, 9 Mod. 105, which was a bequest of a sum of money to one for life, with remainder over to children, to be paid when twenty-one years of age, the remainder was held to have vested, so that upon the death of two of the children, before twenty-one, and during the life of the first devisee, their personal representatives were entitled to their shares. And it was there said, that where the legacy is payable out of personal property, it vests immediately; although, as in favor of the heir, when it is payable out of an estate in lands, if the legatee die before the day, the legacy is sunk and gone. The cases of Emerson v. Cutler, 14 Pick. 108; Crosby v. Wendell, 6 Paige Ch. Rep. 518; Nodine v. Greenfield, 7 Ib., 544; Macomb v. Miller, 9 Ib., 265; Bankhead v. Carlisle, 1 Hill C. R. 357, are cases in which the remainders have been holden to be vested under circumstances like the present.
There was, indeed, a contingency in this case, as regarded the children not born at the death of the testator. But it is well settled that in executory devises, and conveyances taking effect under the statute of uses, a gift to a class of persons may give a title first to one, and afterwards open and admit of a participation by others, as they shall be born, or otherwise become capable of the gift. 3 Preston on Conv. 555; Fearne’s Essay, 312; Ballard v. Ballard, 18 Pick. 41; Dingley v. Dingley, 5 Mass. Rep. 535 ; 4 Kent, 205.
And there seems uo reason for distinguishing in this particular, real estate from, chattels. A contrary opinion was indeed held by Chief Juá.fice Parsons, in Dingley v. Dingley, and adopted in the later case of Emerson v. Cutler; but no authority is referred to in Neither case, nor is any argu[467]*467ment used to sustain it. Nor was the point necessarily involved in either decision.
At common law, if any of the parties to whom a remainder was limited, failed to come in esse upon the termination of the particular estate, it was lost as to them, and vested wholly and forever in those capable at the time of receiving it; and this faculty of opening to re-vest in after-born children, and the like, pertains rather to executory devises and limitations of uses than to remainders strictly so called. And it is by precisely the same means, that personal property, which at common law could not admit of being limited like land in remainder, became capable of being secured to successive owners or usufructuaries in the way of remainders, although the property lawyers will not allow these limitations to be termed such. Blackstone Com. 173; Fearne’s Essay, ubi sup. It would therefore seem very strange, that the policy which through indulgence to last wills and family settlements, thus, by the same agencies, remodeled the nature of each kind of property, should have left them distinguished in the very important particular indicated by the eminent authorities referred to. The dintbiiction is not adverted to in the Essays of Mr. Fearhe, naú is disregarded in the cases of Van Vechten
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Woods, J.
It is clear that the plaintiff, in the two-fold relation of administrator and sole heir to his deeased daughter, Sarah Emma Yeaton, is entitled to whatever share or interest she had at the time of her death, in the personal and real property of the testator, Ebenezer Yeaton, if any she did have, that could be transmitted by intestacy or descent. This interest or share is claimed to have been, an absolute title and right of present possession, in common with the other children of the plaintiff, and with the children of Oliver Yeaton, to all that residuiim of the personal and real property of the testator, given by his will to Mary Yeaton, his widow, for life, with remainder over to those children, and such others as should afterwards be born to the above-named Leavitt and Oliver, except what the widow took by her election, as hereafter shown.
The clause in the'will, under which the claim arises, and which is to receive a construction in this case, is as follows : “ Item 3d. I give to my beloved wife, Mary Yeaton, the use of all the rest and residue of my estate, real, personal or mixed, wherever the same may be lying or being situated or found, to her, for and during her natural life, and no longer; and then to descend and go to the children of said Oliver Yeaton, and to the children of said Leavitt H. Yeaton, and to such other children as they may hereafter have, in equal shares, in fee.”
The widow, Mary Yeaton, soon after the death of the testator, declined the devise and legacy created for her by the will, and took her dower, allowance and her distributive shares, in the personal and real estate, and never accepted the provisions made for her by the will. Mahala Yeaton, a child of the plaintiff, and Susan Emma Yeaton, a child of Oliver Yeaton, have been born since the decease of the testator, and Sarah Emma, one of the children of the plaintiff, living at that time, has since deceased, leaving the plaintiff her sole heir, who has also taken letters of administration on her estate.
[465]*465The first question which presents itself arises upon the construction of the clause in the will which has been recited, whether the deceased daughter of the plaintiff, in common with his other children and the children of Oliver Yeaton, took by the will a vested interest in the residuiim of the personal and real property of the testator, subject to the widow’s right of election, in the nature of a remainder limited upon her life estate, or merely a contingent interest, depending, in the case of each child, upon the event of his or her surviving the widow, on the termination of whose life estate, the property was, by the terms of the will, subjected to a division among them. In the latter alternative, the interest of the intestate terminated, of course, with her own life; whereas in the former, whether as a remainder or a present devise, it was incapable of being defeated by any event, and was transmitted, like other property, by descent or intestacy, according to its quality, to the administrator or heir.
And it seems to be immaterial, whether we consider the property as having once vested for life in Mary Yeaton, the widow, and her life estate as having been extinguished by her own act, in the nature of a surrender or forfeiture, and so letting those in remainder into possession, or treat the devise to her as having lapsed, or as otherwise having absolutely failed, and her life estate as having never existed; for in such case the ulterior limitations will take effect as if no precedent estate had been created by the will. Com. Dig. Devise, K; Fearne Con. Rem. &c. 525.
We think that the limitations over to the children in this case were vested, and not eorA"«gent interests. By the terms of the will, they were to < effect upon the determination of the precedent estate «A lA.r oiu, in favor of pi r sons ascertained and in esse. Ti;!ey were created by apt words to create a vested re r - 1 ler. “ To Mary Yeaton,” “ to her, for and during ’■ • ' ui life, and no longer, and then to descend and L j j children, &c., in fee,” are the [466]*466significant words of the instrument. Even in those cases in which it has been the intention of the testator to postpone to a certain time the control of the ulterior devisees over the property, the remainders have been held to have vested. Hall v. Tufts, 18 Pick. 455. In the case of Bateman v. Roach, 9 Mod. 105, which was a bequest of a sum of money to one for life, with remainder over to children, to be paid when twenty-one years of age, the remainder was held to have vested, so that upon the death of two of the children, before twenty-one, and during the life of the first devisee, their personal representatives were entitled to their shares. And it was there said, that where the legacy is payable out of personal property, it vests immediately; although, as in favor of the heir, when it is payable out of an estate in lands, if the legatee die before the day, the legacy is sunk and gone. The cases of Emerson v. Cutler, 14 Pick. 108; Crosby v. Wendell, 6 Paige Ch. Rep. 518; Nodine v. Greenfield, 7 Ib., 544; Macomb v. Miller, 9 Ib., 265; Bankhead v. Carlisle, 1 Hill C. R. 357, are cases in which the remainders have been holden to be vested under circumstances like the present.
There was, indeed, a contingency in this case, as regarded the children not born at the death of the testator. But it is well settled that in executory devises, and conveyances taking effect under the statute of uses, a gift to a class of persons may give a title first to one, and afterwards open and admit of a participation by others, as they shall be born, or otherwise become capable of the gift. 3 Preston on Conv. 555; Fearne’s Essay, 312; Ballard v. Ballard, 18 Pick. 41; Dingley v. Dingley, 5 Mass. Rep. 535 ; 4 Kent, 205.
And there seems uo reason for distinguishing in this particular, real estate from, chattels. A contrary opinion was indeed held by Chief Juá.fice Parsons, in Dingley v. Dingley, and adopted in the later case of Emerson v. Cutler; but no authority is referred to in Neither case, nor is any argu[467]*467ment used to sustain it. Nor was the point necessarily involved in either decision.
At common law, if any of the parties to whom a remainder was limited, failed to come in esse upon the termination of the particular estate, it was lost as to them, and vested wholly and forever in those capable at the time of receiving it; and this faculty of opening to re-vest in after-born children, and the like, pertains rather to executory devises and limitations of uses than to remainders strictly so called. And it is by precisely the same means, that personal property, which at common law could not admit of being limited like land in remainder, became capable of being secured to successive owners or usufructuaries in the way of remainders, although the property lawyers will not allow these limitations to be termed such. Blackstone Com. 173; Fearne’s Essay, ubi sup. It would therefore seem very strange, that the policy which through indulgence to last wills and family settlements, thus, by the same agencies, remodeled the nature of each kind of property, should have left them distinguished in the very important particular indicated by the eminent authorities referred to. The dintbiiction is not adverted to in the Essays of Mr. Fearhe, naú is disregarded in the cases of Van Vechten v. Pearson, 5 Paige Ch. Rep. 512; and in Nodine v. Greenfield, and Macomb v. Miller, before cited.
We must, therefore, conclude the interest of these children in the personal as well‘as? -property to have been a vested interest, in those in bein re decease of the tes tator, subject to opeii in r , pect to both species of property, to admit to a participatioi such children of the same class as might afterwards be bo
The next question is, w i ?ip upon the refusal of Mary Yeaton to take the liifi cs ' J the ulterior limitations took effect in possessio or aw 'd her death, passing in the mean time, ao unci vised eP l.í,ío the heir, according to the claim of some of Me defendants in this suit.
[468]*468An estate in remainder vests in possession immediately upon the determination of the life estate, upon which it is limited, by the death of the tenant for life, or by the surrender or forfeiture of his estate.
It is also well settled that where there is a devise or legacy to two in succession, and it fail as to the first, for causes that would, but for the gift over, create a lapse, the next in succession or remainder shall take it. 2 Fonb. 366, 7 n.; Toller Exec. 237; Com. Dig. Devise, K.; Ram on Wills, 262; Goodwright v. Opie, 8 Mod. 126.
Whether, therefore, we consider the devise to Mary Yea-ton as having lapsed, by her refusal to take it, according to the decision in the like case of Hawley v. James, 5 Paige Ch. Rep. 418, or, according to the case put by Coke (Co. Lit. 298,) of a remainder given to an infant, who on coming of age refuses it, we treat the life estate as having for a moment vested in Mary Yeaton, the consequence seems to be the same. The children, in either case, according to established principles, take the property immediately.
There is, however, another aspect in which cases like this ¿ave been discussed, which deserves to be noticed.
The expectation of the testator apparently was, that Mary Yeaton wojuld accept the life estate provided by the will, and, consequently, that the portions of these children would not fall into their posséssion till after her death. And such may be said to have been his intention.
It is upon this ground-,fiat the heirs claim the possession and use of the property for the time intervening, under the general rule that lapsed legacies are td be treated as undevised property, and go to the heir; and that the use of this property, during the period indicated, should be so regarded, because the time when the (intention, of the testator was that the children should come into possession, has not arrived, and their receiving it soonler would • be an enlargement of the gift. \
The subject is discussed in' Jarman on Wills 513. “ A [469]*469question which has been agitated between the heir and devisee is, whether, in a series of consecutive limitations, a particular estate be void in its creation, from being limited to a person incapable by law, or refusing to take the remainders immediately expectant on such estate, are accelerated, or the interest in question descends to the testator’s heir at law as real estate undisposed of. The early authorities are clearly in favor of the acceleration. Thus it is laid down in Perkins, that if a man, seized of land devisable inffee, devise it to a monk for life, the remainder to a stranger in fee, and the devisor dies, the monk being alive, in this case the remainder shall take effect presently.”
So it was held by Gawdy, in Fuller v. Fuller, Cro. Eliz. 425, though the case did not raise the point, that if the devisee of an estate tail refuse, the devisee in remainder shall take immediately. And the same point, in regard to a devisee for life, was maintained, arguendo, in Cranmer's Case, Dyer 309, b.
The doctrine evidently proceeds upon the supposition, that though the ulterior devise is in terms not to take effect in possession until the decease of the prior devisee, if tenant for life, or his decease without issue, if tenant in tail, yet that, in point of fact, it is to be read as a limitation of a remainder, to take effect in every event which removes the prior estate out of the way.”
We think the present case falls within the principle, and that the heirs have no just claim to the intermediate profits.
Let the following decree be entered.
<£ The State of New Hampshire.
Superior court of judicature,
July term, A. D. 1854.
Strafford, ss.
In equity, Leavitt H. Yeaton v. Hiram It. Roberts & a.
This cause having been heard upon the bill of complaint, it appears that all the material matters, alleged in said bill, [470]*470are true as therein stated. Whereupon it is ordered, adjudged and decreed, and the court doth order, adjudge and decree, that upon the decease of Ebenezer Yeaton, the testator, as in said bill set forth, and the payment of all his just debts and the expenses of administration, the setting off an allowance to Mary Yeaton, widow of said testator, of her dower, allowance and distributive share in all his real and personal estate, and to Oliver Yeaton and wife and Theodore Yea-ton and wife, and the children of said Oliver, of the lot of land, and the buildings thereon, which were occupied by said Oliver and his father, at the date of said testator’s last will; and to Leavitt H. Yeaton of the amount due from said Leavitt H. to said testator, at the time of his decease, the children of Oliver Yeaton and the children of Leavitt H. Yeaton, living at the time of the decease of said testator, were entitled to all the rest, residue and remainder of the real and personal estate of said testator, and the possession and use thereof in common, in equal shares, subject to let in such other children as said Oliver and Leavitt H. might thereafter have; and that said Leavitt H. Yeaton, as sole heir and representative of Sarah Emma Yeaton, one of the children of said Leavitt H., who was living at the time of the decease of said testator, and survived him, but since deceased, is entitled to the share of said Sarah Emma Yea-ton in the estate of said testator, and the use and possession thereof as aforesaid; and that Susan Emma Yeaton, child of said Oliver Yeaton and Mahala Yeaton, child of said Leavitt H. Yeaton, both born since the decease of said testator, and before the bringing of the aforesaid bill of complaint, were at their births respectively entitled to their equal share, in common with said other children of Oliver Yeaton and Leavitt H. Yeaton aforesaid, of the real and personal estate of said testator remaining as aforesaid, and the use and possession thereof from the time of their respective births, subject to let in such other children as the said Oliver and Leavitt H. Yeaton might thereafter have; and that [471]*471all children which said Oliver Yeaton and Leavitt H. Yea-ton, or either of them, afterwards had, or may have, shall be entitled to equal shares in the real and personal estate of said testator remaining as aforesaid, with the use and possession thereof from their respective births, with the previously born children.
And it is further ordered and decreed that the right and interest of the said Leavitt H. Yeaton, complainant, and sole heir and representative of said Sarah Emma Yeaton, in the real and personal estate of said testator, remaining as aforesaid, is, and it is hereby adjudged and declared to be as follows, to wit: said Leavitt H. Eaton is seized of and well entitled to one equal undivided fourteenth part of all the real estate of said testator remaining as aforesaid, including the reversion of the widow’s dower therein, in common with said Ebenezer Yeaton, William H. Yeaton, John C. Yeaton, Mary E. Yeaton, Nahum Yeaton, Ariana Yea-ton, Frances B. Yeaton, Cyrus F. Yeaton, Arthur T. Yea-ton, Elizabeth S. Yeaton, Martha Ann Yeaton, Susan Emma Yeaton and Mahala Yeaton, children of said Oliver Yeaton and Leavitt H. Yeaton, subject to let in such other children as the said Oliver Yeaton and Leavitt H. Yeaton afterwards had or may have, to equal shares as aforesaid. And the said Leavitt H. Yeaton is also well entitled to one equal fourteenth part of all the personal estate of said testator remaining as aforesaid, subject to let in such other children as said Oliver and Leavitt H. Yeaton afterwards had, or may have, to equal shares as aforesaid. And the said Leavitt H. Yeaton is also well entitled to the rents, profits, income and use of one twelfth part of all the real and personal estate remaining as aforesaid, from and after the decease of said testator, up to the time of the birth of a child of said Oliver or Leavitt H. Yeaton; and from thence of one thirteenth part up to the time of the birth of another child of said Oliver or Leavitt H.; and from thence of one fourteenth part up to the birth of another child of said Oli[472]*472ver or Leavitt H. Yeaton; and in the same proportion onward until he shall receive said real and personal estate to which he is entitled as aforesaid into his own possession.
And it is further ordered and decreed that Hiram R. Roberts, administrator of the estate of Ebenezer Yeaton, deceased, testator as aforesaid, account for all the rents, profits income and use of said real and personal estate to which said Leavitt H. Yeaton is entitled as aforesaid, and pay the same to said Leavitt H. Yeaton, and also set off and deliver to said Leavitt H. Yeaton all such parts and portions of said personal estate of said testator as said Leavitt H. is entitled to as aforesaid, upon his, the said Leavitt H., giving bond to the judge of probate for said county of Strafford, with sufficient sureties, in such sum as the said judge may order, to pay, furnish and contribute to such person or persons as shall be entitled, his ratable proportion of all such real and personal estate as such children of said Oliver Yeaton and Leavitt H. Yeaton, born after the date of the aforesaid bill of complaint, or that hereafter may be born, shall be entitled to under the provisions of the said testator’s will as aforesaid. And it is further ordered and decreed that the plaintiff recover costs of this suit, taxed as between solicitor and client, which shall be paid by said Roberts, administrator of said testator’s estate, out of the general assets of the estate in the hands of said administrator.
And it is further ordered that a copy of said bill of complaint, and of this decree thereon, by the clerk of this court, be filed in the probate office, in said county of Strafford, and that the estate of said testator, so far as the parties to this suit, and the after-born children of said Oliver Yeaton and Leavitt H. Yeaton are interested therein as aforesaid, be settled and distributed in pursuance of this decree and order.
John James Gilchrist.”