bank charter. As we have already shown, motives which prompt wills should never be confused with conditions vital to their validity. (1 Redf. Wills [4th ed.], *177; Schouler, Wills [3d ed.], § 286; Cody v. Conly, 27 Gratt. 313, 320, 321; French v. French, 14 W. Va. 458, 499.) No reason has been suggested why the testator should have desired that the question whether the greater part of his large estate should go to his wife or his collateral kindred should depend on whether he was alive on September 11, 1894. His purpose, no doubt, was to increase his estate from an investment he regarded as likely to be profitable, and, to more securely guard it, he put limitations on the power of the executor to sell the bank stock; but this was a purely administrative matter, and could have had nothing to do with his desire concerning the ultimate disposition of his estate. It is urged that the will should be held conditional for the reason that any other construction would cut off a child of the testator, had one been born after September 11, 1894. Provision was made for the possibility of children, and it must be presumed that the testator made all the provision that seemed necessary to him. The presumptions of the law are against conditions that will result in intestacy, and it is fair to presume, the contrary not appearing, that the testator had lived long enough with appellant when he made the will to know something about the probability of children, and that he knew or had reasonable grounds to believe that, according to the course of nature, if no children were born before the 11th day of September, 1894, over nine years after the date of the will, there never could be any. It is next insisted that the legacies to the collateral kindred, given by item 4, were to vest absolutely on September 11, 1894, and that the class of beneficiaries should then be ascertained, and, as the testator was alive on that day, the legacies did not and could not then vest, and the class of beneficiaries could not at that time be ascertained. A will speaks from the death of the testator, and governs his estate as it then exists. It is true that estates cannot vest under a will until the death of the testator, and if impossible conditions have been attached to them they may never vest. Item 4 provides that if there was no child alive at that time, "then in that case I give, devise, and bequeath, upon the expiration of the bank charter and the final settlement of my estate," all the rest and remainder of the property to those who may be then living of the persons named as residuary legatees. This required that the bank charter must have expired, and the estate must have been finally settled, before the beneficiaries would be entitled to the possession of the property. The right to the legacies, however, vested in the residuary legatees on the death of the testator, whether that occurred before or after September 11, 1894. (Bruce v. Bissell, 119 Ind. 525, 22 N. E. 4, 12 Am. St. Rep. 436; Amos v. Amos, 117 Ind. 37, 19 N. E. 543; Aspy v. Lewis, 152 Ind. 493, 496, 52 N. E. 756; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310). Nor were the beneficiaries to be ascertained on said date, as claimed by appellant. A subsequent part of said item says, "But, should any of said persons at the time of the final settlement of my estate be dead, with lawful issue surviving them at the time of the final settlement of my estate, then such surviving issue shall take the portion which such deceased, if then living, would have taken." Thus it appears from the express language of the will that the testator intended the estate to go to the beneficiaries living, not at the expiration of the bank charter, but at the final settlement of the estate; and if any should be dead leaving issue, such issue should succeed to the right of the ancestor. Appellant next insists that the will is void on the ground that it violates the statute against perpetuities. The law only looks to the situation at the time of the testator's death, to determine the effect of a will. A will may, therefore, be in violation of the statute against perpetuities when executed, and be void for that reason when applied to the conditions then existing, but events may happen before the death of the testator that will remove all such objectionable features, and the estate created by the will at the death of the testator be valid. (McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015; Gray, Perp., § 231; I Jarm. Wills [Randolph & Talcott ed.], p. 519.) The testator having died without issue after September 11, 1894, and the specific legacies having lapsed by reason of the death of such legatees, items I and 4 were the only effective provisions of said will at the death of the testator. It is clear that the provisions of item I are not in violation of the statute against per petuities. Under item 4, as we have shown, the rights of the residuary legatees vested on the death of the testator, and the possession thereof was postponed until the debts and funeral expenses were paid. It is evident that this item does not violate said statute. The next position of appellant is that, the testator having died leaving neither descendants nor father nor mother, appellant, having renounced the will, takes all of his property by virtue of the Act of 1891, being section 2648, Burns' Revised. Statutes, 1901 (§ 2488a, Horner's Rev. Stat. 1897), which reads as follows: "If a man die testate leaving a widow, one-third of his personal estate shall descend to said widow, subject, however, to its proportion of the debts of said deceased: provided, however, that nothing in this act shall be construed to reduce the interest which the law now gives a widow in the estate of a deceased husband: and provided further that such widow may elect to take under the will of said decedent instead of this or any other law of descent of this state, which election shall be made within ninety days after said will has been admitted to probate in this state, and in the same manner as widows are now required by law to elect." Prior to this act the husband could dispose of his entire personal estate by will, except the sum of $500 given his widow by section 2424, Burns' Revised Statutes, 1901 (§ 2269, Rev. Stat. 1881, and § 2269, Horner's Rev. Stat. 1897). In the absence of a will, however, here interest in the personal property in no case was less than one-third after the payment of the debts, and if there were no children or their descendants, and no father nor mother, the widow, in case of intestacy, took the whole estate, under section 2651, Burns' Revised Statutes, 1901 (§ 2490, Rev. Stat. 1881, and § 2490, Horner's Rev. Stat. 1897). It is insisted by appellant that the provision in the act "that nothing in this act shall be construed to reduce the interest the law now gives the widow in the estate of her deceased husband" gives the entire estate to the widow, as against her husband's will, when she would have received it under the last-named section without a will. We cannot agree with appellant in this contention. The proviso grants nothing; it merely limits the operation of the new act upon laws in force when it was enacted. 1 1 I It follows from what we have said that the court did not err in sustaining the demurrer to the first, second, third, and fifth paragraphs of the complaint. The court, however, erred in sustaining the demurrer to the fourth paragraph of complaint. That paragraph alleges that the testator was of unsound mind when he executed the codicils of November 10, 1891, and September 28, 1897, and that each of said codicils was unduly executed. These grounds of contest were sufficient and properly stated. The judgment is affirmed as to the first, second, third, and fifth paragraphs of complaint, and reversed as to the fourth paragraph, with instructions to overrule the demurrer thereto, and for further proceedings not inconsistent with this opinion. GANNON VS. PETERSON et al. [Supreme Court of Illinois, Dec. 18, 1901; 193 Ill. 372, 62 N. E. 210.] WILLS EXECUTORY DEVISE-DETERMINABLE FEE-EQUITA- 1. Where a will devises real property to testator's son, his heirs and assigns, forever, but directs that the property shall pass to A. if the son dies without issue, and it appears from the entire will that the testator used the word "issue" in its popular sense as meaning 'children," the son takes a determinable fee, subject to become absolute at his death if he leaves a surviving child, but otherwise to pass to A. as an executory devise, 66 2. A determinable fee in land was devised to defendant and to his heirs and assigns, subject to become absolute at his death in case he left a surviving child, but to pass to plaintiff as an executory devise in case the son died without surviving children. Thereafter defendant opened a coal mine, and commenced to have the coal removed, though such coal gave the land its chief value. After the son had been married nine years, and was forty years old, and childless, the plaintiff commenced suit to enjoin the removal of the coal. Held not to constitute such equitable waste as would authorize the granting of the relief prayed for at the suit of plaintiff, as it did not appear that the fee would not become absolute in defendant's heirs, or that defendant was guilty of a wanton and unconscientious abuse of his rights. APPEAL from Circuit Court, St. Clair county; M. W. SCHAEFER, Judge. Suit by Eugenia Peterson and others against Matthew G. Gannon for an injunction and other relief. From a decree in favor of the plaintiffs, the defendant appeals. Reversed. On the 23d day of December, A. D. 1869, Michael J. Gannon made his last will and testament. He died on March 15, 1870. On the 30th day of March, 1870, his will was duly proven and admitted of record in the County Court of St. Clair county, Ill. The testator left a widow and nine children. He died possessed of a large amount of property, personal and real, and this, by his will, he distributed among his widow and children. The clauses of the will applicable to this case are the second, fourth, fifth, sixth, seventh, and eighth, and are as follows: "Second. After the payment of such funeral expenses and debts, I give, devise, and bequeath unto my beloved wife, Mary Gannon, the following real estate, to wit [describing real estate]; to have and to hold the same during her natural life, provided she shall remain my widow, together with all my personal property, consisting of moneys, rights, and credits and stock, which latter consists of ten (10) shares in the St. Clair County Agricultural and Mechanical Society, one share in the Urbana Plank Road Company, two shares in the Belleville and St. Louis Rock Road Company, and one share in the Westfield Plank Road Company; all my live stock, consisting of mules, cattle, etc.; also all the household furniture and other articles of personal property not herein enumerated or otherwise disposed of in this will, after having disposed of a sufficient amount of my personal property, should it become necessary to dispose of any of the same to pay and discharge the expenses and debts aforesaid; and at her death, or in the event she should again marry, it is my will that the property aforesaid to her bequeathed |