Lucas

(after stating the facts as above). It is the contention of the defendants in error that the words “surviving daughters” in article third relate to the time of the testator’s death; that' Catherine, who survived tire testator, but died before the expiration of the lease, was a surviving daughter within the meaning of that article; that under the will a vested estate, a one-ninth interest, was devised to her which upon her death descended to her three children; that although, if Catherine had survived tire expiration of the lease and her interest could have been defeated by the payment of $5,000 to her by her brothers, that interest now vested in the children cannot be defeated, because the condition therein expressed has, by her death before the expiration of the lease, become impossible of performance, and that therefore the three children now own an undivided one-ninth interest indefeasible in the lands mentioned in article third.

The plaintiff in error contends that the expiration of the lease and not the death of the testator is the period of survivorship referred to in the phrase “surviving daughters” used in article third, and that Catherine was not a surviving daughter…