wife for life, in case she survived him, the homestead estate the property here in question-together with certain money and securities subject to the maintenance and education of his five daughters, while unmarried, and to the provision that each daughter, on marriage and birth of issue, should receive one-sixth part of the personal property bequeathed. When the condition was satisfied by birth of issue, the daughter took her share absolutely. Then followed the fifth clause above quoted, under which this controversy has arisen. And to this was added the residuary clause-item sixth-providing as follows: "I direct that my executors shall divide and distribute all the rest residue and remainder of my personal estate among my children at my death and the descendants of such as may have died during my life to take a parent's part."

In the disposition of the homestead, the testator explicitly states his purpose. He was planning for the protection of his daughters. He desired the property to be the home of his widow so long as she lived and that after her death it should continue to be the home of his daughters while they remained unmarried. When this object had been attained, the property was to be sold and the proceeds divided.

These avails were to be distributed "among my daughters living at my death and their children and descendants (per stirpes)." The words "living at my death" may not be disregarded. They are not to be eliminated in the interest of a construction which would leave the clause as though it read, "among my daughters who shall be living at the time of the death or marriage of my last unmarried daughter and the children and descendants (per stirpes) of such of my daughters as may have previously died." At the time of the death of the testator, his five daughters were living, and none of them had children or descendants. By the definitive language of the

clause, these daughters were then ascertained and identified as those entitled to the immediate enjoyment of the property on the termination of the preceding estates. They, therefore, had a vested remainder in fee. Croxall v. Shererd, 5 Wall. 268, 288; Doe v. Considine, 6 Wall. 458, 474-477; Cropley v. Cooper, 19 Wall. 167, 174; McArthur v. Scott, 113 U. S. 340, 380; Hallifax v. Wilson, 16 Ves. 171: The fact that the property was directed to be sold and that they were described as distributees of the proceeds did not postpone the vesting of the interest. "For many reasons," said this court by Mr. Justice Gray in McArthur v. Scott, supra (pp. 378, 380), "not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience requires that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event. 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.

So a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest." In Cropley v. Cooper, supra, the testator bequeathed the rent of his house to his daughter for her life, and it was provided that at her decease the property should "be sold, and the avails therefrom become the property of her children or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance." When the testator

died, his daughter, who survived him, had one son about three years old. It was held that the son took a vested interest at the death of the testator. The court said (p. 174): "A bequest in the form of a direction to pay at a future period vests in interest immediately if the payment be postponed for the convenience of the estate or to let in some other interest. . . . In all such cases it is presumed that the testator postponed the time of enjoyment by the ultimate legatee for the purpose of the prior devise or bequest. A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the death of the testator."

The question remains, whether the interest vested in the daughters was defeasible on condition subsequent. That is, whether on the death of a daughter-before the determination of the preceding estates-leaving descendants, her interest was to be divested and her descendants were to take by substitution.

What, then, was the intent of the testator in providing for the children and descendants of daughters per stirpes? If the clause be considered to import a condition subsequent, providing for a divesting of the interest of the daughters who survived him and a substitution of their children and descendants, it would necessarily follow that the children and descendants of daughters who died before him would be excluded from participation. It is difficult to suppose that this was his purpose. That his daughters might marry and die, leaving children, before he died, was undoubtedly contemplated. At the time of his death, one of his daughters had already married. If she survived him, she was to have a share in the property. Did the testator intend that if she died after his death, and before the time for distribution, her interest was to be divested in favor of her children and descendants, and if she died before the testator her children and descendants were

to be barred? Or, if it had happened that three of the daughters had married and died during the testator's lifetime, leaving children, and another daughter had married and died after the testator, were the children of the latter daughter to share in the avails of the property, on the death of the last daughter, unmarried, to the exclusion of all the other daughters' children? It is not to be thought that the testator designed such a purely arbitrary selection unless the words forbid a different interpretation.

The language of the clause is not of this imperative character. As well might it be said that it required the conclusion that the daughters and their respective children and descendants were to take concurrently. But this would not be a sensible construction, and it would seem to be equally contrary to the intention of the testator to imply a condition subsequent and thus not only to make defeasible the interest which passed to the daughters, but to shut out the children and descendants of daughters who predeceased him.

The clause is obviously elliptical, and the provision for representation is not fully expressed. Taking the context and the entire plan of the will into consideration, we believe that what the testator had in mind was to establish the right of his daughters, who survived him, as of the time of his death, and to provide for the representation of any of his daughters, who might previously die, by her children and descendants. So construed, the disposition is a natural one and representation of the same sort is accorded as that provided for in the next paragraph when, in giving to his children the residuary personal estate, the testator fully defined the representation intended by stating that "the descendants of such as may have died during my life" were "to take a parent's part."

We are of the opinion that the remainder in fee which vested in the daughters, all of whom survived the testator, was not defeasible as to any of them by her death, leaving

descendants, before the expiration of the preceding estates. As already stated, all the daughters were parties to the suit brought in 1865; and all consented to the decree, save the married daughter who was under age and whose interests were duly protected by the court. It follows that the purchasers under the decree acquired a good title. The complainant was entitled to the relief sought. Decree affirmed.

SHARPE v. BONHAM.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF TENNESSEE.

No. 396. Submitted March 12, 1912.-Decided April 1, 1912.

In a controversy which embraces the rights of an association, the mastery of which is claimed by both complainants and defendants, the trustees of the association are properly made parties defendant and are not to be realigned by the court on the side of the complainant for jurisdictional purposes. Helm v. Zarecor, 222 U. S. 32.

THE facts are stated in the opinion.

Mr. John M. Gaut for appellants.

Mr. W. C. Caldwell, with whom Mr. Frank Slemons, Mr. J. H. Zarecor and Mr. W. B. Lamb were on the brief, for appellees.

Memorandum opinion by direction of the court. MR. JUSTICE HUGHES.

By

Appeal from decree dismissing the bill for want of jurisdiction.

VOL. CCXXIV-16