my wife shall not be then living, then I give and bequeath," etc., it may be taken in the second instance likewise as an adverb of time. 52

And where the word "then" is used twice in the limiting clause, so closely together that it is clearly not employed in both places for the same purpose nor with the same meaning, it may be sufficient to indicate an intention that the class should be determined as of the time of distribution. 53

52 See United States Trust Co. v. Nathan (1920) 112 Misc. 502, 183 N. Y. Supp. 66, affirmed in (1921) 196 App. Div. 126, 187 N. Y. Supp. 649, affirmed without opinion in (1922) 233 N. Y. 505, 135 N. E. 894.

53 See Wharton v. Barker (Eng.) supra; Travis v. Taylor (1866) 14 Week. Rep. (Eng.) 909; Valentine v. Fitzsimons [1894] 1 Ir. R. 93; Re Karn (1903) 2 Ont. Week. Rep. 841; Wood v. Schoen (1907) 216 Pa. 425, 66 Atl. 79.

54 The general rule is, that the word "then" does not point to the time when the right of the beneficiary to take begins, but refers to the event upon the happening of which the legal heirs take the property. People v. Camp (1919) 286 III. 511, 122 N. E. 43; Stewart's Estate (1892) 147 Pa. 383, 23 Atl. 599; Fitzpatrick's Estate (1913) 233 Pa. 33, 81 Atl. 815, Ann. Cas. 1913B, 320.

The use of the word "then," as introductory to a limitation to testator's right heirs, is not sufficient to show that the testator intended to limit the estate to those who should be such at the time of the happening of the contingency. Buzby's Appeal (1869) 61 Pa. 111.

The word "then," in a provision that upon the decease of a life tenant leaving no issue "then such trustee shall pay over and convey the whole of the trust, share, and estate

to my right heirs at law," refers to the time of the distribution, and not to the time for ascertaining who might be the hypothetical heirs of the testator. State Street Trust Co. v. Sampson (1917) 228 Mass. 411, 117 N. E. 832.

The word "then" as used in a provision that if a certain person shall die without descendants "then" to pay and distribute the among testator's heirs at law relates property

over

But the tendency of the courts seems to be to construe the word "then" ordinarily as having reference to the event, rather than to the time;54 and such effect as it might have had as a temporal word if used alone is generally held to be controlled or overcome by a reference to the Statute of Distributions. 55 And it has been held that the effect which the word "then" might have had as a temporal word if used alone is overcome where the gift

to the time of performance, and does not limit the persons who are to take as heirs. Brown v. Spring (1922) 241 Mass. 565, 135 N. E. 701.

For other instances in which it has been held that the class was to be determined as of the time of testator's death, and not as of the time of distribution, notwithstanding testator's use of the word "then," see Harrington v. Harte (1784) 1 Cox, Ch. Cas. 131, 29 Eng. Reprint, 1094; Nicholson v. Wilson (1845) 14 Sim. 549, 60 Eng. Reprint, 471; Ware v. Rowland (1848) 2 Phill. Ch. 635, 41 Eng. Reprint, 1088; Cable v. Cable (1853) 16 Beav. 507, 51 Eng. Reprint, 874; Mays v. Carroll (1887) 14 Ont. Rep. 699; Brabant v. Lalonde (1895) 26 Ont. Rep. 379; Jost v. McNutt (1893) 40 N. S. 41; Bunting v. Speek (1889) 41 Kan. 424, 3 L.R.A. 690, 21 Pac. 288; Dove v. Torr (1879) 128 Mass. 38; Boston Safe Deposit & T. Co. v. Parker (1907) 197 Mass. 70, 83 N. E. 307; Stokes v. Van Wyck (1887) 83 Va. 724, 3 S. E. 387; Allison v. Allison (1903) 101 Va. 537, 63 L.R.A. 920, 44 S. E. 904,-set forth in full in subd. III., infra.

55 Thus, in Doe ex dem. Garner v. Lawson (1803) 3 East, 278, 102 Eng. Reprint, 604, it was said by Le Blanc, J., that even though a distribution upon a contingency is directed to be made amongst such persons as should "then" appear to be testator's next of kin, the word "then" would be satisfied by reference to the time when the inquiry was to be made, and that the time for ascertaining the class would be controlled by the further provision that the next of kin should take in such parts and proportions as they would, by virtue of the Statute of Distributions, have been entitled to his personal estate if he had died intestate, which must refer to the time of his death.

In Wharton v. Barker (1858) 4 Kay

10. Reference to Statute of Distributions.

Since the persons who take under statutes of descent and distribution are ascertained as of the time of the death of the person whose property

& J. 483, 70 Eng. Reprint, 202, it is said that the application of the rule is excluded where, after a previous bequest for life or other limited interest, there is a bequest "to those who then shall be" the next of kin of the testator, although it would seem that in such case, if the ulterior bequest were "to those who then shall appear to be his next of kin, in such parts and proportions as they would, by virtue of the Statutes of Distribution, have been entitled to his personal estate, if he had died intestate," the rule would again become applicable, and the death of the testator would be the period for determining the persons to take under that designation.

In Bullock v. Downes (1860) 9 H. L. Cas. 1, 11 Eng. Reprint, 627, where property was limited over upon certain contingencies to such person or persons of testator's blood "as would, by virtue of the Statute of Distributions of intestate's effects, have become and been then entitled thereto in case I had died intestate," it was held that, even assuming that the word "then" is to be read as an adverb of time, the time indicated is not the time of the death of testator, but the time when the persons would come into the enjoyment of that which is bequeathed to them.

So also in Mortimore v. Mortimore (1879) L. R. 4 App. Cas. 448-H. L., it is said that, even though the word "then" be used as an adverb of time, it may be satisfied by taking it as referring to the time at which the persong entitled under a limitation are to be found out, and not the time as of which the membership of the class is to be determined, where there is in the limitation a reference to the Statute of Distributions, such reference being taken as descriptive of a class which must be ascertained at the death of the testator.

In Re Winn [1910] 1 Ch. (Eng.) 278, it was said that, although where

they take, a reference to the Statute of Distributions in connection with a gift to heirs, next of kin, etc., of the testator, of a remainder upon the termination of a precedent estate, is strongly indicative of an intention that the members of the class so described are to be ascertained as of the time of the testator's death. 57

there is a gift to the next of kin or nearest of blood, or any similar gift, the time at which a class is to be ascertained is the death of the testator, it is always possible for a testator to say that the class is to be ascertained at a later time; and if the testator makes a gift to a tenant for life, and after the death of the tenant for life "to the persons who shall then be my relatives or my next of kin," then, apart from any reference to the Statute of Distributions, the class is clearly to be ascertained at the death of the tenant for life, in accordance with the express language of the testator; but that where a testator, referring to his statutory next of kin, uses expressions such as "the persons who shall then be entitled by virtue of the Statute of Distributions," the ordinary rule which would have ascertained the class at the time to which the word "then" points is or may be rebutted because of the necessity for every person who claims under the gift to prove his title by virtue of the Statute of Distributions.

56 Tate v. Tate (1925) 160 Ga. 449, 128 S. E. 393.

57 Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898; Tate v. Tate (1925) 160 Ga. 449, 128 S. E. 393; Fargo v. Miller (1889) 150 Mass. 225, 5 L.R.A. 690, 22 N. E. 1003; Doe ex dem. Garner v. Lawson (1803) 3 East, 278, 102 Eng. Reprint, 604; Holloway v. Radcliffe (1856) 23 Beav. 163, 53 Eng. Wharton Reprint, 64; V. Barker (1858) 4 Kay & J. 483, 70 Eng. Reprint, 202, and Re Winn [1910] 1 Ch. (Eng.) 278.

A clear intention that the heirs shall be determined as of the time of testator's death is manifested by a provision that, upon certain contingencies, the trust estate and its accumulations shall descend to and vest in testator's heirs at law in the same manner that it would have descended to and vested in them if the will had not been made. Wadsworth v. Mur

So, a limitation over to persons entitled under the provision of the Statute of Distributions, and in the proportion pointed out by such statute, has been regarded as militating against a construction by which the next of kin would be determined at the time of the first taker's death, as in such case the fund could not be divided in the same proportions as directed by statute. 58

A reference to the "shares, proportions, and manner prescribed by the statute" must, however, give way to other indications of an intent to postpone the ascertainment of the class. 59

The effect of a gift to those entitled as next of kin under the Statute of Distributions as a gift to those who, according to the express language of that statute, must be ascertained at the testator's death, has been held not to be varied by the introduction of the phrase, "on the death of my said nephew" (the tenant for life), in a limitation to "such person or persons as, on the death of my said nephew, will be entitled as my next of kin under the statute for the distribution of

ray (1900) 161 N. Y. 274, 76 Am. St. Rep. 265, 55 N. E. 910.

An intention that the class shall be ascertained at testator's death is disclosed by a limitation to such person or persons as would be legally entitled to succeed to and inherit the same in case of intestacy, as the persons who take under such circumstances are those in being at the time of their decedent's demise. Smith v. Allen (1900) 161 N. Y. 478, 55 N. E. 1056.

The fact that the gift is to such persons as may be legally entitled to the same under the Statute of Distributions clearly shows testator's intention that the property is to go as if he had died intestate, and therefore that the class is to be ascertained at the time of his death. Starr v. Newberry (1857) 23 Beav. 436, 53 Eng. Reprint, 172.

Where the limitation is "according to the Statute of Distributions" of intestates' effects, it has been held that the next of kin at the time of testator's death are clearly entitled. See

intestates' estates," as, even if the latter phrase refers to the time, and not the event, it may be satisfied by taking it as referring to the time of coming into possession, and not the time of vesting, 60

Although the presumption arising from the prima facie meaning of the words is strengthened by a direct reference to the Statute of Distribution, 61 the absence of a reference to the statute is not a sufficient reason for departing from the general rule. 62

It has been held that the words, "according to the statute of descents," in an executory devise to testator's heirs at law according to such statute, do not necessarily import a class to be ascertained and traced from testator's death. 63

A distinction between cases in which the reference is to a title conferred by the Statute of Distribution, e. g., "to those who would be entitled thereto as my next of kin under the Statute of Distribution," and cases in which the reference is not to the title conferred, e. g., "to those who would be my next of kin according to the Royds v. Royds (1863) 8 L. T. N. S. (Eng.) 199.

The phrase, "my next of kin under the statute for the distribution of intestates' estates," describes a class which, according to the statute, must be ascertained at the death of the testator. Mortimore V. Mortimore (1879) L. R. 4 App. Cas. (Eng.) 448H. L.

58 Cable v. Cable (1853) 16 Beav. 507, 51 Eng. Reprint, 874.

59 Sturge v. Great Western R. Co. (1881) L. R. 19 Ch. Div. (Eng.) 444; Hutchinson v. National Refuges for Homeless & Destitute Children [1920] A. C. (Eng.) 794-H. L.; Re Helsby (1914) 112 L. T. N. S. (Eng.) 539. 60 Re Wilson [1907] 2 Ch. (Eng.)

572.

61 Valentine

V. Fitzsimons [1894] 1 Ir. R. 93; Tuttle v. Woolworth (1901) 62 N. J. Eq. 532, 50 Atl. 445. 62 Re Ford (1895) 72 L. T. N. S. (Eng.) 5-C. A.

63 De Wolf v. Middleton (1895) 18 R. I. 810, 31 L.R.A. 146, 26 Atl. 44, 31 At! 271.

Valentine v. Fitzsimons [1894] 1 Ir. R. 93.

65 Rand v. Butler (1880) 48 Conn. 293; Re Bump (1922) 234 N. Y. 60, 136 N. E. 295; Grantham v. Jinnette

(1919) 177 N. C. 229, 98 S. E. 724; Stokes v. Van Wyck (1887) 83 Va. 724, 3 S. E. 387; Say v. Creed (1847) 5 Hare, 580, 67 Eng. Reprint, 1041; Urquhart v. Urquhart (1843) 13 Sim. 613, 60 Eng. Reprint, 239; Ware v. Rowland (1847) 2 Phill. Ch. 635, 41 Eng. Reprint, 1088; Bird v. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Re Barber (1852) 1 Smale & G. 118, 65 Eng. Reprint, 52; Re Lang (1861) 9 Week. Rep. (Eng.) 589.

66 Ware v. Rowland (1847) 2 Phill. Ch. 635, 41 Eng. Reprint, 1088; Bird V. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Re Barber (1852) 1 Smale & G. 118, 65 Eng. Reprint, 52. Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310.

14. Exclusion of certain persons. The express exclusion of persons who would be members of a class if such class is determined at a certain time is an indication of intention that the class should then be ascertained, where it may be assumed that testator, in making his will, regarded it as certain that the state of his family

71 Tiffin v. Longman (1852) 15 Beav. 275, 51 Eng. Reprint, 543.

72 Jones v. Oliver (1844) 38 N. C. (3 Ired. Eq.) 369.

And see also Holloway v. Radcliffe (1856) 23 Beav. 163, 53 Eng. Reprint, 64; Walker v. Dunshee (1861) 38 Pa. 430; and Jones v. Knappen (1891) 63 Vt. 391, 14 L.R.A. 293, 22 Atl. 630, in which the general rule was applied in the case of a similar limitation.

73 Howell v. Ackerman (1889) 89 Ky. 22, 11 S. W. 819; Bisson v. West Shore R. Co. (1894) 143 N. Y. 125, 38 N. E. 104; Craig v. McFadden (1916) Tex. Civ. App. —, 191 S. W. 203; Wharton v. Barker (1858) 4 Kay & J. 483, 70 Eng. Reprint, 202.

74 Allen v. Almy (1913) 87 Conn. 517, 89 Atl. 205, Ann. Cas. 1917B, 112; Clark v. Shawen (1901) 190 II. 47, 60 N. E. 116; Schlater v. Lee (1918) 117 Miss. 701, 78 So. 700; Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310.

75 Cable v. Cable (1853) 16 Beav. 507, 51 Eng. Reprint, 874; Fletcher v. Fletcher (1861) 3 De G. F. & J. 775, 45 Eng. Reprint, 1078; Minot v. Harris (1882) 132 Mass. 528.

76 Say v. Creed (1847) 5 Hare, 580, 67 Eng. Reprint, 1041.

would remain precisely the same at his death as at the date of his will. 74

Thus, the rule of construction under which the class is ascertained at testator's death is fortified by the circumstance of the exclusion of the tenant for life, which would be superfluous if the vesting was postponed until the termination of the life estate. 75

But the exclusion of a person who would be the sole member of a class at the time of testator's death is indicative of an intention to postpone the ascertainment of the membership of the class. 76

The exclusion of persons who, should circumstances be the same at testator's death as they are at the time of the making of the will, would not, at the time of testator's death, be members of the class, is insufficient to show an intention that the ascertainment of the members of the class should be postponed, as the testator may have had in mind the possibility of changes by death during his own lifetime. 77

77 An instance in which the exception of persons who presumptively would not, at the time of testator's death, be members of the class, was held insufficient to show an intention that the ascertainment of the members of a class should be postponed, may be found in Re Winn [1910] 1 Ch. (Eng.) 278, where testator made the same exception in another provision of his will, where it was clear that the class must be ascertained at his death, as in such case the probability is that he may have contemplated the possibility of changes during his own lifetime in the membership of the class who were presumptively his next of kin.

So, in Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310 it was held that the exclusion of certain nephews and nieces did not afford any sufficient indication of testator's intention that the class of which they were members should take under the limitation, where it appeared that the nephews and nieces whom testator wished to exclude were the children of a brother who was living when the will was made, showing that he had in his mind the possibility of changes taking place in the state of his family by death.