Opinion of the Court. The word "inherited" (which is applied to the real estate only) implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death. Devises or bequests in remainder, by the use of similar words, though preceded, as in this case, by the word "then," have been often held to be vested from the death of the testator. Bullock v. Downes, 9 H. L. Cas. 1; Mortimore v. Mortimore, 4 App. Cas. 448; Parker v. Converse, 5 Gray, 336; Dove v. Torr, 128 Mass. 38. The case of Thorndike v. Loring, 15 Gray, 391, cited for the defendants, is clearly distinguished by the fact that there the bequest of the principal at the expiration of fifty years was confined to "those who would then be my lawful heirs and entitled to my estate if I had then died intestate." The words "and equally divided per capita," while they qualify the effect of the word "inherited" so far as to prevent a taking by the grandchildren per stirpes as under the statute of descents, also plainly indicate a vested remainder. Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of the title in them. For instance, under a devise of an estate, legal or equitable, to the testator's children for life, and to be divided upon or after their death among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in afterborn grandchildren; although the number of grandchildren who will take, and consequently the proportional share of each, cannot of course be ascertained until the determination of the particular estate by the death of their parents. Doe v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167; Dingley v. Dingley, 5 Mass. 535; Doe v. Provoost, 4 Johns. 61; Linton v. Laycock, 33 Ohio St. 128; Doe v. Perryn, 3 T. R. 484; Randoll v. Doe, 5 Dow, 202. So a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest. Shattuck v. Stedman, 2 Pick. 468; Hallifax v. Wilson, 16 Ves. 168; In Opinion of the Court. re Bennett's Trust, 3 K. & J. 280; Strother v. Dutton, 1 DeG. & Jon. 675. The remainder, being vested according to the legal meaning of the words of gift, is not to be held contingent by virtue of subsequent provisions of the will, unless those provisions necessarily require it. The subsequent provisions of this will had other objects. The direction that if any grandchild shall have died before the final division, leaving children, they shall take and receive per stirpes the share of the estate, both real and personal, which their parent would have been entitled to have and receive if then living, was evidently intended merely to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren; and its only effect upon that gift is to divest the share of any grandchild deceased leaving issue, and to vest that share in such issue. Smithers v. Willock, 9 Ves. 233; Goodier v. Johnson, 18 Ch. D. 441; Darling v. Blan chard, 109 Mass. 176; 1 Jarman on Wills (4th ed.) 870. The addition, in the eighteenth clause of the will, of the provisions that any assignment, mortgage or pledge by any grandchild of his share shall be void, and that the executors, in the final partition and distribution, shall convey and pay to the persons entitled under the will, rather tends to show that the testator considered the estate to be vested, and to be in danger of being alienated but for these provisions; and, whatever their legal effect may be, they cannot be construed as making a remainder contingent, which the terms of the previous gift, and the general intent of the testator, as appearing from the whole will, require to be vested. Hall v. Tufts, 18 Pick. 455. For these reasons, we are of opinion that the will purports to devise to all the grandchildren per capita, children of the five surviving children of the testator, a vested remainder in fee; and to the children per stirpes of any grandchildren deceased before the arrival of the youngest grandchild at twentyone years of age, a similar estate in fee by way executory devise. II. To come within the rule of the common law against per Opinion of the Court. petuities, the estate, legal or equitable, granted or devised, must be one which, according to the terms of the grant or devise, is to vest upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother's womb as in being) and twenty-one years afterwards. In the case at bar, as the youngest grandchild must be in being in the lifetime of his parent, and that parent was born in the testator's lifetime, the devise to the grandchildren, and even the devise over, upon the arrival of the youngest grandchild at twenty-one years of age, to the children of any grandchild deceased before that time, must necessarily take effect, as to every devisee, within a life or lives in being and twenty-one years afterwards, and therefore do not violate the rule of the common law; and it is unnecessary to consider whether that rule is in force in Ohio. The statute of Ohio of December 17, 1811, in force at the making of this will and at the testator's death, imposed different restrictions upon grants and devises of real estate, by enacting that “no estate in fee simple, fee tail, or any lesser estate, in lands or tenements lying within this State, shall be given or granted by deed or will to any person or persons, but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will." 2 Chase's Statutes, 762. It was assumed at the argument, and can hardly be doubted, that in this statute the words "the time of making such deed or will," which, as applied to a deed, designate the time both of its execution and of its taking effect, denote, as applied to a will, the time when it takes effect by the death of the testator, and not the date of its formal execution. By the law of England, the question of remoteness depends upon the state of facts at the time of the testator's death, though differing from that existing at the date of the will. Williams v. Teale, 6 Hare, 239, 251; Cattlin v. Brown, 11 Hare, 372, 382; Lewis on Perpetuities, Supplt. 53-60, 64; 1 Jarman on Wills, 254. Under the common-law rule against perpetuities, a devise to a class, some members of which may possibly not take within the Opinion of the Court. prescribed period, is wholly void. Leake v. Robinson, 2 Meriv. 363; Pearks v. Moseley, 5 App. Cas. 714. But that is because, as observed by Sir William Grant, "it is the period of vesting, and not the description of the legatees, that produces the incapacity," and the devise is not "to some individuals who are, and to some who are not, capable of taking." 2 Meriv. 388, 390. The rule of the common law, by which an estate devised must at all events vest within a life or lives in being and twenty-one years afterwards, has reference to time and not to persons. Even the "life or lives in being" have no reference to the persons who are to take, for the testator is allowed to select, as the measure of time, the lives of any persons now in existence; and the "twenty-one years afterwards" are not regulated by the birth or the coming of age of any person, for they begin, not with a birth, but with a death, and are twentyone years in gross, without regard to the life, or to the coming of any person soever. Cadell v. Palmer, 1 Cl. & Fin. of age, It is doubtful, to say the least, whether the like effect can be attributed to the statute of Ohio, which has no reference to time, and only avoids devises to persons who are not either in being themselves, or the immediate issue or immediate descendants of persons in being, at the time of the making of the will. The devise of their parent's share to the children of any grandchild deceased before the time of division would seem to be valid as to those great-grandchildren whose parent, a grandchild of the testator, was living at the time of his death, because they would be "immediate issue" of a person in being at that time; and valid also to any great-grandchildren, whose parent, though born after the testator's death, had died before their grandparent, a child of the testator, because they would be, if not "immediate issue," certainly "immediate descendants," of that child, who was in being at that time; and invalid as to those great grandchildren only, whose parent (as in the case of Mrs. Madeira, daughter of the testator's child Mary Trimble), born since the testator's death, died after their grandparent, and who, therefore, by reason of the interposition of the life of their parent, were neither "immediate issue" nor "immediate Opinion of the Court. descendants" of a person in being when the testator died. See Stevenson v. Evans, 10 Ohio St. 307; Turley v. Turley, 11 Ohio St. 173. But, however that may be, the conclusion, already announced, that the estate in remainder devised by Duncan McArthur was vested in all his grandchildren per capita, with an executory devise over of the shares of those only who should die, leaving issue, before the final division, removes all difficulty in the application of the statute to the shares devised to the plaintiffs, grandchildren of the testator; for the devise to grandchildren, immediate issue of persons in being at the making of the will, was clearly not prohibited by the statute; and, even under the English rule, the executory devise over of the shares of deceased grandchildren to their children, if void for remoteness, would not defeat the previous valid devise of a vested remainder to the grandchildren, nor alter the share which each living grandchild would take. Cattlin v. Brown, 11 Hare, 372; Lord Selborne, in Pearks v. Moseley, 719, 724, 725; Goodier v. Johnson, 18 Ch. D. 441. The necessary conclusion is that these plaintiffs, being grandchildren of the testator, took equitable vested remainders under his will. But until the determination of the particular estate by the death of all the testator's children and the arrival at the age of twenty-one years of the youngest grandchild who reached that age, the legal estate in fee being in the executors, the grandchildren owning the equitable estate in remainder had no right to a conveyance of the legal title. The present bill, filed little more than a year after one of the plaintiffs, who was the youngest grandchild of the testator who lived to the age of twenty-one years, arrived at that age, must therefore be maintained, unless the title of the plaintiffs under the will of their grandfather has been defeated by the decree rendered in 1839, setting aside the will. III. The proceedings relating to the will of Duncan McArthur were had under the statute of Ohio of February 18, 1831, the material provisions of which are as follows: By section 7, a will bequeathing or devising any personal property or real estate may be brought by the executors, or by |