224 U.S. Argument for Appellants. star page 757, note 2; Hoghton v. Whitgreave, 1 Jac. & Walk. 146; Brograve v. Winder, 2 Vesey, Jr., 638; Jones v. Colback, 8 Vesey, Jr., 38; Nichols v. Guthrie, 109 Tennessee, 536; Richey v. Johnson, 30 Oh. St. 288, 296; 2 Williams on Executors, 514; Hawkins on Wills, 232; Jarman on Wills (as quoted in 118 Illinois, 403), and Beach on Wills, § 120; McClain v. Capper, 98 Iowa, 145; Benner v. Mawer, 113 N. W. Rep. 663; McCartney v. Osburn, 118 Illinois, 403– 423; Bates v. Gillett, 132 Illinois, 287, 299; Matter of Baer, 147 N. Y. 348; Stoors v. Burgess, 101 Maine, 26, 34; Dougherty v. Thompson, 167 N. Y. 472; Matter of Crane, 164 N. Y. 71, 76; Lewisohn v. Henry, 179 N. Y. 352; In re Hogarty, 62 App. Div. 79; Hale v. Hobson, 167 Massachusetts, 397; Hobson v. Hale, 95 N. Y. 588; Dary v. Grau, 190 Massachusetts, 482; Boston Safe Deposit Co. v. Blanchard, 196 Massachusetts, 35; Reilly v. Bristow, 105 Maryland, 326; Rosengarten v. Ashton, 228 Pa. St. 389. That a remainder is vested on the death of the testator does not necessarily determine that the devisee, his heirs or assigns shall be entitled to the property which is the subject of the gift, since the estate so vested may be divested by the death of the devisee before the determination of the preceding particular estate. 2 Wash. on Real Property, star pages 263, 530; 24 Am. & Eng. Ency. 405; 23 L. R. A. 642, note; 27 L. R. A. (N. S.), 454, note. Assuming that the intention of this testator was that the distribution involved was to be made among his daughters and their children and their remote descendants as those classes should exist, not when he died but when the distribution was to take place, it becomes wholly immaterial whether the chance which each daughter had of being in existence when that time came gave her a purely contingent interest, or a vested interest subject to be defeated by her prior death leaving children or other descendants to take her distributive share in her place. Myers v. Adler, 6 Mackey, 515; Richardson v. Penicks, Argument for Appellants. 224 U. S. 1 App. D. C. 261; Carver v. Jackson, 4 Pet. 1; Croxall v. Shererd, 5 Wall. 268; Blanchard v. Blanchard, 10 Allen, 227; McArthur v. Scott, 113 U. S. 340; Thaw v. Ritchie, 136 U. S. 519; Hine v. Morse, 218 U. S. 493. Poor v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167, can be distinguished, and the reasons given for the conclusion reached in those cases lead to a directly opposite conclusion from that which is maintained for the appellee here. See Mitchell v. Mitchell, 126 Wisconsin, 47, 49; Cripps v. Wolcott, 4 Maddock Ch. 12; Hearn v. Baker, 2 K., K. & J. 386; 69 English Rep. 831. The same principle was applied in Stephenson v. Gullan, 18 Beav. 590; Knight v. Poole, 32 Beav. 548, and Hoghton v. Whitgreave, 1 Jac. & W. 146. See also 1 Jarman on Wills, 6 Am. ed., star page 547; Peter v. Beverley, 10 Pet. 532, 563; Cropley v. Cooper, 19 Wall. 167, 174; Robertson v. Guenther, 241 Illinois, 511; and see note in 25 L. R. A. (N. S.) 887, 904, containing complete review of the numerous cases in which the question has been whether language similar to that used in that case and in O'Brien v. Dougherty, supra, makes the interest taken by the "surviving" beneficiaries vested or contingent. About one hundred cases are cited in the note. It was held in all that the remainder was contingent, and except in seven cases where it was held that it was vested subject to be divested by the death of the beneficiary before the termination of the preceding estate. Hudgens v. Wilkins, 77 Georgia, 555; Blanchard v. Blanchard, 1 Allen, 223; In re Seamen, 147 N. Y. 69; Nodine v. Greenfield, 7 Paige, 655; Parker v. Ross, 69 N. H. 213; Smaw v. Young, 109 Alabama, 528; Acree v. Dabney, 133 Alabama, 437. The rule of construction, that a construction which may result in partial intestacy is to be avoided, does not apply in this case. The language of a will which gives property to certain persons and to their children upon the happening of a 224 U. S. Argument for Appellants. future event should not be distorted into a gift to those persons to the exclusion of their children because of the possibility that they may not have any children. Augustus v. Seabolt, 3 Metc. (Ky.) 155; Matter of Disney, 190 N. Y. 128. When there is a devise to parent and children-as to parent and descendants-without more, the parent takes a life estate with remainder to such children or descendants. Ward v. Grey, 26 Beaven, 485; Jeffery v. De Vitre, 24 Beav. 296; Jeffrey v. Honeywood, 4 Madd. Ch. 397; Hall v. Hall, 78 Atl. Rep. 971; Hood v. Dawson, 98 Kentucky, 285; 33 S. W. Rep. 75; Noe's Admr. v. Miller, Excr., 31 N. J. Eq. 234; Stiles v. Cummings, 50 S. E. Rep. 484; Logan v. Hall, 43 S. W. Rep. 402; Ballantine v. Ballantine, 152 Fed. Rep. 775; Forest Oil Co. v. Crawford, 23 C. C. A. 55; Barclay v. Platt, 170 Illinois, 384; Kuhn v. Kuhn, 78 S. W. Rep. 16. The interests of the children of Washington Berry's daughters were not in any wise affected by the proceedings in Equity Case No. 500 or by the conveyances made by the trustees appointed in that case. McArthur v. Scott, 113 U. S. 340; Bennett v. Hamill, 2 Sch. & Lef. 566, 577; Masie v. Donaldson, 8 Ohio, 377, 381; Long v. Long, 62 Maryland, 33; Marshall v. Augusta, 5 App. D. C. 183, 194; Gedges v. Western Baptist Theological Institution, 13 B. Mon. 530; Harris v. Strodl, 132 N. Y. 392, 397; Firth v. Denny, 2 Allen, 468; Hinkley v. House of Refuge, 40 Maryland, 461; Lowell v. Charlestown, 66 N. H. 584; Sawyer v. Freeman, 161 Massachusetts, 543; Estate of Delaney, 49 California, 76; Matter of Lorenz's Estate, 76 N. Y. Supp. 653. The authorities cited by counsel for the appellee on the subject of acceleration do not support his claim that the failure of a preceding estate by renunciation of the devisee thereof has the same effect as the death of the devisee where that would be inconsistent with the scheme of the Argument for Appellee. 224 U. S. will. Blatchford v. Newberry, 99 Illinois, 11, 57; Coltman v. Moore, 1 MCA. 197, do not support appellee's contention in this case. Mr. B. F. Leighton for appellee: The remainders were vested. Testator's direction for a sale of the property and a division of the proceeds among his daughters living at his death was equivalent to a limitation of the title in fee to them, and they could have elected, on testator's death, to take the property instead of the proceeds to be derived from its sale. Poor v. Considine, 6 Wall. 472; Cropley v. Cooper, 19 Wall. 167; Hauptman v. Carpenter, 16 App. D. C. 524; Fearne on Contingent Remainders, 351; Goodlittle on Whitby, 1st Burrows, 232. The legal presumption arising from the making of the will itself is that the testator intended to dispose of all of his property, and not die intestate as to any of it. This presumption must prevail unless overborne by the terms of the will itself. Given v. Hilton, 95 U. S. 591; Snyder v. Baker, 5 Mackey, 455. The first taker is always the favorite object of testator's bounty, and, as such, entitled to every implication. Barber v. Pittsburgh &c. Ry., 166 U. S. 100; and see Inglis v. Sailor's Snug Harbor, 3 Pet. 118; Sheriff v. Brown, 5 Mack. 172. Taking per stirpes is taking by descent, and is the only mode of succession known to the common law. 2 Blackstone's Comm., c. 32, p. 517. Where the distribution is to be per stirpes, the principle of representation will be applied to all degrees; children never take concurrently with their parents. 2 Jarman on Wills, 5th ed., marginal page 100, and 3 Id. 174; Dengel v. Brown, 1 App. D. C. 423. A bequest to A and his children when A has no children, either at the time the will is made or when it takes effect 224 U.S. Argument for Appellee. at the testator's death, vests the absolute property in A. Van Zant v. Morris, 25 Alabama, 292. The binding force of the rule is recognized in Akers v. Akers, 23 N. J. Eq. (8 Green) 26; Nightingale v. Burrell, 15 Pick. 104; Moore v. Leach, 5 Jones' Law (N. C.), 88; Jones' Ex. v. Jones, 13 N. J. Eq. 236; Johnson v. Johnson, McMullan's Equity (S. C.), 345; Reader v. Spearman, 5 Richardson (S. C.), 88; Chrystie v. Phyfe, 19 N. Y. 345, 354; Hamlin v. Osgood, 1 Redf. 411; Torrance v. Torrance, 4 Maryland, 11. A descendant is one who proceeds from the body of another, however remotely. The word is coextensive with issue, but does not embrace others not of issue. Estes v. Gillett, 132 Illinois, 287, 297; Tichnor v. Brewer's Exrs., 98 Kentucky, 349; and see also Baker v. Baker, 8 Gray, 101, 120; Barstow v. Goodwin, 2 Bradf. 413, 416; Hauptman v. Carpenter, 16 App. D. C. 524; Myers v. Adler, 6 Mackey, 515; O'Brien v. Dougherty, 1 App. D. C. 148; Richardson v. Penicks, 1 App. D. C. 261; Thaw v. Ritchie, 136 U. S. 519; McArthur v. Scott, 113 U. S. 340; Williamson v. Field, 2 Sanford's Chancery, 608; Croxall v. Shererd, 5 Wall. 288; Linton v. Laycock, 33 Oh. St. 128; Tayloe v. Mosher, 29 Maryland, 454, cited and followed in Fairfax v. Brown, 60 Maryland, 50. In cases of doubt as to whether a remainder be vested or contingent, it is a circumstance of weight in favor of its being the former, where the beneficiaries are the children of the testator. Boston Safe Deposit Co. v. Blanchard, 196 Massachusetts, 35; Smith v. Bell, 6 Pet. 68. The intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. 15 S. & R. 195; Hawkins on Wills, 2d ed., 222; Allender v. Keplinger, 62 Maryland, 12; Sheriff v. Brown, 5 Mackey, 176; Vaughan v. Headfort, 10 Sim. 641. The intention of the testator is the first rule of construction to which all other rules are subsidiary. Earnshaw v. |