and between the same parties are conclusive, when the case comes a second time before the court. Ross v. Bank of Burlington, 1 Aik. 43; Dana v. Nelson, 1 Aik. 252; Herrick v. Belknap, 27 Vt. 673; Stacy v. Vermont Cent. R. R. Co., 32 Vt. 551; Barker v. Belknap's Est., 39 Vt. 168; Childs v. Ins. Company, 56 Vt. 609; St. Johnsbury, etc., R. R. Co. v. Hunt, 59 Vt. 94. This doctrine is applicable to the decrees of the probate court made within its jurisdiction. Nor is the result changed by the finding of the county court that no final decree, in regard to the fee of the property had been made by the probate court. By the terms of the will the time had not arrived when the probate court could determine in whom the fee of the property vested absolutely. That time will not arrive until the death of the petitioner. If then there exist heirs of her body the fee will be ascertained to be vested in such heirs. Although no persons now exist who would constitute heirs of the petitioner's body, the possibility of such heirs coming into existence is not precluded until the death of the petitioner. If no such heirs then exist, it will be for the probate court to determine whether the conditional executory devise to the Congregational church is void under the rule against perpetuities, and if so, to decree the property in fee to the heirs of the testator; and if not void, to decree it to the Congregational church under the provisions of the will. This is the scope of the decree of the probate court of December 19, 1890, and it is correct.

The terms of the devise to the petitioner create what, at common law, would be an estate in fee tail, (Giddings and wife v. Smith, 15 Vt. 344) which under V. S. 2201, and which before the statute, gave the petitioner a life estate only in the premises. Giddings and wife v. Smith was three times argued, carefully, and fully considered, and has ever since been followed. Village of Brattleboro v. Mead, 43 Vt. 556; Thompson v. Carl, 51 Vt. 408; Doty and wife v. Chaplin, 54 Vt. 361; In re Kelso's Est., 69 Vt. 272. Hence the decree of December 19, 1890, was correct so far as

concerns the petitioner. She has no interest in the question whether the contingent executory devise to the Congregational church is void or not. That question will never arise if she dies leaving heirs of her body. If she leaves no such heirs, at her decease, it will be a question between the then heirs of the testator and the Congregational church.

(2) But if there is any doubt.in regard to the finality and correctness of that decree, the construction placed upon the will by the decree of December 19, 1890, gives effect to the intention of the testator. His intention is to be ascertained from a careful consideration of all the provisions of his will, read in the light of existing circumstances. By the will, the testator has provided, in very explicit terms, that, after the termination of the life estate therein given to his widow, a life estate shall be created in the property "to my only and beloved daughter" with remainder "to the heirs of her body." He then proceeds to say, "and should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or should I, at any future time fail to have heirs of my body, then it is a part of my will and testament" that the property in contention shall be the propety of the Congregational church, to be used for the purposes specified. If the words, "or should I, at any future time fail to have heirs of my body," had been omitted, it is not seriously contended that the devise over to the Congregational church would have been void for remoteness. The language used in the first clause, "die leaving no heirs of her body," import that the time when, if ever, the estate is to pass to the church is at the decease of the petitioner. If then she had an heir or heirs in the descending line, child or grandchild, living, such heir or heirs take the property and the church takes nothing. If, at that time, she left no such heir, the Congregational church takes the property. In such case, it is conceded that the devise over would not be defeated by reason of remoteness. But it is contended that the addition of the words, "or should I at any future time fail to have heirs of my

body," creates such remoteness under the decision of Village of Brattleboro v. Mead, 43 Vt. 556, as to defeat the devise to the Congregational church.

In that case, and generally, it is held, that the intention of the testator in regard to the remotest time when the devise over shall take effect, determines whether such remotest time is within the rule against perpetuities; and that his intention in this respect is to be ascertained from all language of his will on the subject, read and construed in the light of existing, surrounding circumstances, independently of whether it will bring that time within, or without, the time limited by the rule against perpetuities. These circumstances existed when the testator made his will. The testator and his wife were well advanced in years. He had one only child, grown to womanhood and married. He expected his wife might outlive him, for he made provision for such a condition. Under these circumstances it is hardly reasonable to construe the language, "or should I, at any future time fail to have heirs of my body," as relating to any other such heirs than those who might thereafter exist in the line of his only married daughter. In creating the life estate to that daughter the remainder is "to the heirs of her body." He makes no devise to the heirs of his body in any other descending line. By his will he evidently intended to die testate in respect to all his property. But he devises a life estate to the daughter, and makes it take effect 'subsequently to the life estate which he has therein devised to his wife. It may have occurred to him, that his daughter might die leaving no heir of her body in his lifetime, or in the lifetime of her mother; or if she died leaving a child, the child might die during his life, or during the life of the grandmother; and he added these words to provide for such a contingency, but not thereby intending to defeat the conditional devise to the Congregational church, on the, to him, impossible supposition, that another line of heirs of his body than through his only married daughter might

come into existence and need to be provided for. He did not attempt to provide for any such heirs. However, the two clauses of the will, already quoted, might be construed, if they were all the will contained on this subject, we think, the other provision of the will, on this subject, confines the testator's intention and meaning, in using the words in regard to the heirs of his body, to that we have given them. He evidently feared that if the petitioner should die childless during the continuance of the life estate of his wife, the devise over might cut short her life estate. For in a subsequent sentence he is careful to say, "The said church is not to have any interest in the aforesaid real estate and personal property until after the decease of my beloved wife, Rebecca Wells, and my beloved daughter, Lucia R. Ward, and is not then to have any interest in it unless my said daughter dies, leaving no heirs of her body." Here again he fixes the time when the devise to the church shall take effect as of the time when his daughter shall die, leaving no heirs of her body, if that shall ever happen, but in no event until the two life estates are terminated. Here he says nothing in regard to the failure of the heirs of his body, although he is endeavoring definitely to fix the time when the contingent remainder shall vest in the church, if ever. Neither does he speak of any other line of heirs coming to an end except that which shall descend through the petitioner.

This must be the construction to be placed upon this will. The will became operative and spoke as of the time of the testator's death. At that time the heirs of his body were determined. His only daughter, the petitioner, was such sole heir. No other such heirs could come into existence, certainly except through her. When, therefore, the testator, in his will, speaks of the heirs of his body, he designates the petitioner, and, if any others, such heirs as descend through her. When, in his will, he says "Or shall I, at any future time fail to have heirs of my body," he means his only daughter, or, at most, such, and only such, as may descend

from her. Hence, when, in his will, he says, "And should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or shall I, at any future time fail to have heirs of my body," he speaks of only one line of heirs descending from his body; and, when he says that if this line of heirs does not exist at the death of this daughter, then the Congregational church shall take the property in fee, he fixes a time for the church to take, that is within the time limited by the rule against perpetuities. On the happening of the condition named, the devise over to the Congregational church will be ascertained to be operative and to have taken effect. Hence, considering all the provisions of the will, read in the light of existing circumstances, the remotest time at which the testator intended the contingent remainder devised to the church should vest and be determined to have vested, if it ever did, was at the termination of the life estate devised to the petitioner, if she outlived her mother, and came into it; but if the mother survived her, then upon the termination of the mother's life estate; dependent upon whether at such time there was then living one or more heirs of the body of the petitioner, and therefore heirs of the body of the testator. If such heir, or heirs, were then living, that fact would determine that the remainder or fee of the property had vested in them; otherwise in the Congregational church.

Judgment affirmed and ordered certified to the probate

court.