Emorie D. Edwards took a vested remainder in the property in question at the time of the death of testator. Plaintiffs relied upon the case of Bowen v. Hackney, 136 N.C. 187, 48 S.E. 633, in which the devise was, "(A)t the expiration of the life estate of my wife, that which is given to her for life shall be equally divided between all my children, share and share alike, the representatives of such as may have died to stand in the place of their ancestors." Id. at 188, 48 S.E. at 633.

We think the following quotation from the opinion in Fulton v. Waddell, 191 N.C. 688, 689, 132 S.E. 669, per Justice Brogden, is applicable to this situation and expresses the conclusion we have reached in the case at bar: "The remainder is limited to a class, and the class is to be ascertained at the termination of the life estate. Bowen v. Hackney, 136 N.C. 187; Witty v. Witty, 184 N.C. 375. "The person or persons answering the description when the life estate terminates, takes the whole property.

The question is this: Under a devise of land for life and at the death of the life tenant, to be "equally divided between all my children then living or their heirs," does the sole survivor of the children of testator take the entire property, or do the children and descendants of deceased brothers and sisters of such survivor share in the property? The true answer to the question, gathered from decisions in point, may be stated in three propositions, to wit: (1) The remainder is contingent. Starnes v. Hill, 112 N.C. 1; Whitesides v. Cooper, 115 N.C. 570; Bowen v. Hackney, 136 N.C. 187; James v. Hooker, 172 N.C. 780; Mercer v. Downs, ante, 203. (2) The remainder is limited to a class, and the class is to be ascertained at the termination of the life estate.

Lewin on Trusts (1st Am. Ed.) § 588; 8 Misc. Rep. 660, 30 N.Y. Supp. 178; 11 Pick. (Mass.) 120; 125 Mass. 138; 174 Cal. 366, 163 P. 206; 189 Ky. 370, 225 S.W. 48; 2 Grat. (Va.) 471, 44 Am. Dec. 395; 179 N.Y. 352, 72 N.E. 242. A former decree authorizing a conversion of the land into choses in action perverted the trust power. 67 Miss. 234, 7 So. 225; 189 Ky. 370, 225 S.W. 48; 2 Perry on Trusts, § 777; 104 Wis. 500, 79 N.W. 766, 81 N.W. 367, 48 L.R.A. 812; 89 Ala. 381, 8 So. 72; 65 Ala. 111; 13 C. J. 853. Until the father died, these complainants took no estate at all, but only the prospects of one. 23 Ala. 814; 39 Ala. 528; 178 Ala. 117, 59 So. 58; 139 Ala. 614, 36 So. 775; 90 Ala. 262, 7 So. 836; 130 Mass. 441; 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 443; 89 Ala. 381, 8 So. 72. Until the death of the father and the ascertainment as to whether these complainants were to one of the class to whom distribution was to be made, and then only, could it be said that they had any other estate except that in expectancy. 28 Ala. 497; 25 Ala. 292; 24 Ala. 669; 139 Ala. 614, 36 So. 775; 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 443; and authorities supra.

Messrs. Smythe, Lee Frost, for appellants, cite: Originaland substantial gifts: 34 L.J. Ch. 65; L.R. 2 Eq. 479; 54 Me. 232; Gardner on Wills 462; Gray's Rule vs. Perpetuities, par. 108. Contingent gifts; 2 Black. Com. 169; 20 Ency. 840; 2 Wn. R.P. 560; Tied. on R.P., sec. 506; 20 S.C. 71; 7 Rich. Eq. 125; 9 Rich. Eq. 459; 10 S.C. 385; 43 N.Y.S. 575; 94 Me. 429; 30 Ency. 721, 778; 106 F.R. 670; 26 S.C. 470; 75 W. 26; 65 S.E. 851; 20 S.E. 296; Dud. Eq. 201; 30 S.C. 188; 69 S.C. 503; 76 N.E. 1043; 48 S.E. 633; 37 Me. 363; 51 S.E. 780; 56 S.C. 7; 62 S.W. 1033; 86 S.C. 1; 21 S.C. 513. Vestedremainders: 87 S.C. 55. Vested remainders subject to bedivested: 48 S.E. 633; 62 S.W. 1033; 2 Rich. Eq. 78; 4 Rich. Eq. 297; 87 S.C. 55; 128 N.Y. Supp. 230. Contingentremainders are not transmissible: 2 Strob. Eq. 59, Upon default of remaindermen devise reverts: 50 S.C. 258. Original and substitutionary gifts distinguished: 2 D. S. 484; L.R. 2 Eq. 479, 442; Gray's Rule vs. Per. Par. 108; 21 S.C. 529. Messrs. Ficken, Hughes Ficken, contra, cite: Theremainder here is vested: 35 S.C. 59; Code 1902, sec. 2483; 3 Strob. Eq. 223; 4 Rich. Eq. 297. Law favors vestedremainders: 5 Wall. 268; 2 S.C. 78; 50 S.C. 208; 20 S.C. 75; 30 S.C. 184. Vested remainders defined: 3 Rep. 19; 2 Black. Com. 168; 4 Kent 203; 2 Sand. Ch. 533; 5 Paige 466; 2 Wn. R.P. 587, 1541; 4 Rich. Eq. 297; 1 Strob. Eq. 44; 2 Hill Ch. 431; 10 S.C. 387; 26 S.C. 451; 50 S.C. 208; 87 S.C. 64. A vested interest is transmissible: 12 Rich. 122; Rice E

Such interest as the bankrupt may be said to have therein is clearly a contingent remainder, contingent not upon an uncertain event, but as to the persons who are to take under the will, and falling clearly within Fearne's fourth class. The rule in Maryland, as well as the general rule elsewhere, is that when an estate is limited to one for life and at his death to his issue or descendants then living, the remainders are contingent; for, until the death of the life tenant, those who are to take in remainder cannot be ascertained. 1 Fearne, Contingent Remainders, 3-9; 2 Bl. Com. 169; Gray on Perpetuities, 108; Godwin v. Banks, 87 Md. 425, 40 A. 268, 273; Reilly v. Bristow, 105 Md. 326, 66 A. 262; Safe Deposit Trust Co. of Baltimore v. Independent Brewing Ass'n, 127 Md. 463, 96 A. 617. See, also, 23 R.C.L. 515, 516, 545; Bowen v. Hackney, 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 440; Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295; Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 38 L.R.A. 679; Allison v. Allison, 101 Va. 537, 44 S.E. 904, 63 L.R.A. 920. And under the law of Maryland, such a remainder cannot be levied upon and sold for the debts of the contingent remainderman. Safe Deposit Trust Co. of Baltimore v. Independent Brewing Ass'n, supra; Godwin v. Banks, supra.

". . . Thus it has been held that contingent and not vested remainders were created where the testator, in making an ulterior disposition of property after a particular life estate, uses such expressions as `to such of my sons as may be living at their mother's death,' or `surviving at her death,' or `to the representatives of such as may have died before her death,' showing clearly that not only the enjoyment of the remainder, but also the right to take it was intended to be postponed until after the expiration of the preceding life estate. Whitesides v. Cooper, 115 N.C. 570; Bowen v. Hackney, 136 N.C. 187; Freeman v. Freeman, 141 N.C. 97; James v. Hooker, 172 N.C. 780; Jenkins v. Lambeth, 172 N.C. 466; Thompson v. Humphrey, 179 N.C. 44; In re Kenyan, 17 R.I. 149."

McQueen v. Trust Co., 234 N.C. 737, 741, 68 S.E.2d 831. ". . . (I)f there is in terms a devise, and the time of enjoyment merely is postponed, the interest is a vested one, but if the time be annexed to the substance of the gift or devise, as a condition precedent, it is contingent . . . ." Bowen v. Hackney, 136 N.C. 187, 190, 48 S.E. 633. ". . . (A) remainder is vested if, so long as it lasts, the only obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate." Trust Co. v. McEwen, 241 N.C. 166, 169, 84 S.E.2d 642. "An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment.

McPherson v. Bank, supra at page 19. The facts in the instant case are closely analagous to those in Trust Co. v. McEwen, 241 N.C. 166, 84 S.E.2d 642. The remainders in fee are defeasible and, if a remainderman dies before the falling in of the life estate, his or her issue will take as purchasers. Bowen v. Hackney, 136 N.C. 187, 48 S.E. 633. In any event, the estate or estates of the executory devisees would vest during the life of Cheshire J. Parker, at his death, or within the period of gestation thereafter.

Conversely, if there is no gift of the estate, or the income therefrom, or other interest therein, distinct from the provision for its division, which is to be made equally between all the children and, for the first time, upon the termination of the trust, the "when" of the division is of the essence of the donation and is a condition precedent. It marks the time of vesting as well as the time of the full enjoyment of the gift. Anderson v. Felton, 36 N.C. 55; Guyther v. Taylor, 38 N.C. 323; Bowen v. Hackney, 136 N.C. 187; Fuller v. Fuller, 58 N.C. 223; McDonald v. Howe, 178 N.C. 257, 100 S.E. 427; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Knox v. Knox, 208 N.C. 141, 179 S.E. 610. See also notes L.R.A. 1915 a 1014.