¶1dissenting in part: The assumption that a question of intestacy may arise in this case seems to me without warrant. The testator Maurice E. Cotter plainly indicated by the first clause of his will his intention that at the death of his son Roger the property known as 118 Pearl Street should go to his daughter Agnes if she survived Roger, otherwise to his son Edward, to whom the *555premises at 120 Pearl Street were left by the second clause of the will. If it was probable that Agnes, as the youngest of the three, would outlive both Roger and Edward, yet the possibility that she might predecease Roger was expressly recognized by the will. So also the possibility that Edward might predecease Roger must have been apparent to the testator. Yet his devise to Edward, unlike that to Agnes, was not conditioned upon his survival of Roger, but was “in fee simple” with no requirement that he survive either Roger or Agnes.
¶2In my judgment, Agnes, who is now living, has a vested remainder in 118 Pearl Street, subject however to defeasance if she should predecease the life tenant Roger. Kennard v. Kennard, 81 N. H. 509, 511; Simes & Smith, The Law of Future Interests (2d ed.) s. 149 at p. 160. Since Edward survived the testator, his interest likewise was vested, although subject to defeasance. Osgood v. Vivada, 94 N. H. 222, 225. At his decease, his executory interest descended to his heirs, and remains subject to defeasance should Agnes survive Roger. Upton v. White, 92 N. H. 221, 226; Colony v. Colony, 97 N. H. 386, 390-391; Chisholm v. Bradley, 99 N. H. 12, 14. Under this construction of the will no intestacy can occur, and no occasion is presented to consider the effect of the residuary clause of the will.