15. Other phraseology. The construction reached by the application of the general rule is fortified by the use of the word "descend," which ordinarily denotes the vesting of the estate by operation of law in the heirs immediately upon the death of the ancestor. 78 Such construction is likewise strengthened by the use of the words "go and descend." 79 It is strengthened by the absence of words of contingency, such as "if they shall be living at his death," or "to such of my heirs as shall then be living." " 80 No contrary intention may be derived from the employment of the phrase "convey and transfer." 81 The fact that the limitation is to next of kin "for the time being" will not preclude such construction, although its effect is to reduce the words quoted to a nullity, since it is a matter of constant occurrence to find in an instrument more words than are necessary. 82 No contrary inference may be drawn from the expression "whoever they may be," following a gift to the next of kin living at the time of the termination of the precedent estates, since such expression may be explained either as indicating a doubt in testator's mind as to who will be his next of kin, or as meaning that he is in doubt as to which of the next of kin may survive the period. 83 No contrary intention is manifested by the circumstance that a bequest was given to a member of the class "in full of any share of the estate" to which such person might be entitled.84 78 Dove v. Torr (1879) 128 Mass. 38. 79 Abbott v. Bradstreet (1862) 3 Allen (Mass.) 587. 80 Minot v. Tappan (1877) 122 Mass. 535. The clear words of a gift to a class which must be ascertained at testator's death cannot be cut down by the phrase "on the death of" the life tenant, which, even if it refers to the time, and not to the event, must be taken as referring only to the time when the persons entitled will come into possession. 86 The words "upon and after" in a will directing a division of the property "upon and after the death of" the life tenant have been held not to prevent the vesting of the estate at the time of the testator's decease; 87 and a like conclusion was reached in a case where a testator gave his residuary estate to his wife for life, adding: "And from and after her decease my will is that all of my said property be disposed of according to the statutes of the state of New York governing the descent of real property and the distribution of personal estates;" such. words being construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting. 88 The words "then living" have been held in one case to be indicative of an intention that the class is to be determined as of the time of the testator's death, on the ground that it is more en are to be ascertained at the expiration of the precedent estate. Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898. 84 Abbott v. Bradstreet (1862) 3 Allen (Mass.) 587. 85 Michell v. Bridges (1865) 13 Week. Rep. (Eng.) 200. 86 Re Wilson [1907] 2 Ch. (Eng.) 572. 87 Hildebrant's Estate (1920) 268 Pa. 132, 110 Atl. 760. 88 Hersee v. Simpson (1897) 154 N. Y. 496, 48 N. E. 890. reasonable to believe that the testator used such words as limiting and defining the members of a class liable to be diminished in its numbers by death as time passed, rather than as descriptive of a class all of whose members must, by the necessity of the situation, be living when the class is formed; 89 but in another case a limitation to the testator's heirs "then living" has been held to evince an intention that the heirs should be ascertained at the time of the termination of the precedent estate. 90 A contrary intention which will preclude the application of the rule that the members of a class described as "heirs," "next of kin," etc., are to be ascertained at the time of the testator's death, has likewise been held to be evidenced by a limitation to such persons "as shall then be my next of kin;" 91 by a gift to persons, upon the termination of the precedent estate," who at that time shall" be the heirs at law of the testator; 92 by a limitation to such persons as would have been entitled under the Statute of Distributions in case I had then died intestate;" "93 by a limitation to persons "who, at the time of such respective decease of my children," should be testator's next of kin; by a limitation to such persons “as shall, upon the death of [the life tenant], be my then next of kin;" 95 or to such persons "as shall, at the time of the decease of" the life tenant, be entitled thereto, etc.; 96 by a direction that the 94 89 Beardsley v. Fairchild (1913) 87 Conn. 359, 87 Atl. 737. 90 Cushman v. Goodwin (1901) 95 Me. 353, 50 Atl. 50. 91 Travis v. Taylor (1866) 14 Week. Rep. (Eng.) 909. 92 See Re Senn (1917) 164 N. Y. Supp. 399, affirmed in (1918) 184 App. Div. 936, 170 N. Y. Supp. 1111. 93 Clowes v. Hilliard (1876) L. R. 4 Ch. Div. (Eng.) 413. 94 Sturge v. Great Western R. Co. (1881) L. R. 19 Ch. Div. (Eng.) 444. 95 Re McFee [1910] W. N. (Eng.) 186. 96 Horn v. Coleman (1853) 1 Smale & G. 169, 65 Eng. Reprint, 73; Re Morley (1877) 25 Week. Rep. (Eng.) 825. property, after the decease of the life tenant, be equally divided among testator's surviving heirs;97 and by a limitation to testator's "heirs at law then surviving, they taking by right of representation." 98 An intention that the heirs are not to be determined as of the time of testator's death is indicated by the fact that, wherever testatrix referred to her heir apparent, she designated him as “my son.” 99 16. Provision against alienation of par ticular estate. A provision against alienation or encumbrance of the respective life estates taken by persons who would be members of the class if ascertained at testator's death is not a sufficient reason for departing from the general rule; nor is the fact that testator manifests an intention to prevent the capital from coming into the hands of the life tenant. 2 A contrary intention which will preclude the application of the rule cannot be found in a provision that the beneficiaries of a trust created by a testator are not to have or exercise any right or power of disposing of their respective interests, title, or property in their respective trust estates by will or testamentary appointment, nor to sell, pledge, assign, or transfer the same, since, if testator had desired to make it impossible for any of them to have the disposition of any part of what he himself should leave in trust, 97 Evans v. Godbold (1852) 27 S. C. Eq. (6 Rich.) 26. 98 Wood v. Bullard (1890) 151 Mass. 324, 7 L.R.A. 304, 25 N. E. 67. 99 Re Wilson (1920) 184 Cal. 63, 193 Pac. 581. Re Ford (1895) 72 L. T. N. S. (Eng.) 5-C. A. 2 Jost v. McNutt (1893) 40 N. S. 41. But a provision that in case the life tenant, who is the sole heir at the time of testator's death, shall contest the will, she shall take nothing thereunder, was held, in connection with other provisions of the will and the accompanying circumstances, to be indicative of an intention to postpone the ascertainment of the members of the class, in Re Bishop (1926) 126 Misc. 722, 215 N. Y. Supp. 237. a construction that he meant by the words "to my heirs at law," heirs to be determined as of some other time than as of that of his death, would not have made that intent effectual. 3 17. Power of appointment. An intention which will preclude the application of the rule may be inferred from a limited power to appoint by will, given to the donee of a defeasible fee. 4 Such an intention has been held to be manifested by the fact that the life tenant, who was testator's sole next of kin at the time of his death, is given a power of appointment, in default of which the property is limited over to such person or persons as would be entitled to the same by virtue of the Statute of Distributions. 5 But in another case it was held that the gift of a power of appointment to a life tenant who was testator's sole next of kin at his death was not inconsistent with an intention that the class to whom the limitation over was made in default of appointment should be ascertained at testator's death, the court saying that the argument derived from intention did not apply in such case, because testator could not have had it in his view and knowledge that the ultimate gift should go to any particular individual. 18. Other similar limitations. The construction under which the class is ascertained at testator's decease is strengthened by the circumstance that other provisions are similarly limited, as it is hardly conceivable that the testator contemplated several sets of different hypothetical heirs; especially where the language 7 Rotch v. Rotch (1899) 173 Mass. 125, 53 N. E. 268. Doe ex dem. King v. Frost (1820) 3 Barn. & Ald. 546, 106 Eng. Reprint, 761. Briden v. Hewlett (1831) 2 Myl. & K. 90, 39 Eng. Reprint, 878. Pearce v. Vincent (1836) 2 Keen, 230, 48 Eng. Reprint, 616. Kellett v. Shepard (1891) 139 III. 442, 28 N. E. 571, 34 N. E. 254; Welch V. Blanchard (1911) 208 Mass. 523, 33 L.R.A. (N.S.) 1, 94 N. E. 811. used gives rise to the inference that the whole is to be treated as a single fund, to go all together in one direction. 8 The fact that the testator has directed that upon a certain contingency the income of the property prior to the time for distribution shall be divided among his heirs at law is indicative of an intention that the "heirs at law" to whom the property is ultimately to be distributed are to be ascertained at the time of his death, rather than at a later time, as otherwise the income might be distributable among one set of persons and the principal among another. 9 Such construction is similarly assisted by the circumstance of there being an immediate gift to the same class. 10 But an indication of an intention to postpone the ascertainment of the members of a class to whom a moiety in a trust estate is given upon the termination of the trust has been found in the fact that the gift of the other moiety to a named person or his issue is made contingent upon one or the other being alive at the time of distribution. 11 A limitation over upon the termination of another precedent estate to testator's "legal heirs then living" is indicative of an intention that a limitation over to his "legal heirs," simply, should not have the same effect. 12 An additional reason for giving the words of the limitation their prima 8 Moss v. Dunlop (1859) Johns. V. C. 490, 70 Eng. Reprint, 515. 9 Pereboom v. Cloyd (1925) 317 Ill. 85, 147 N. E. 382. 10 See Crisp v. Crisp (1884) 61 Md. 149. 11 See Boston Safe Deposit & T. Co. v. Blanchard (1907) 196 Mass. 35, 81 N. E. 654. 12 See Brian v. Tylor (1916) 129 Md. 145, 98 Atl. 532. 13 Re Bump (1922) 234 N. Y. 60, 136 N. E. 295. facie meaning may be found in the fact that a construction which would postpone the time for ascertaining the membership of the class would render the provision obnoxious to the Statute of Perpetuities. 14 The fact that the limitation over is only of such property as shall then remain has been held not sufficient to show an intention that the heirs shall be ascertained as of the time of distribution. 15 But in one case it has been held that, where the gift over is only of so much as may remain after providing for the necessities of the life tenant, futurity is annexed to the subject of the gift, and the persons entitled to take are to be determined as of that time. 16 The fact that the first taker is given power to use so much of the principal as he or she may see fit is a circumstance tending to negative a construction under which such first taker would receive the remainder. 17 So, a direction to devote the income and such of the principal of a testamentary trust as may be necessary for the comfort of a daughter, who was the sole next of kin and heir at law at the time of the death of the testatrix, makes it unreasonable to suppose that such daughter was intended to take under limitation over in the event of the death of any of such daughter's children before becoming twenty-three years old. 18 14 See Nicoll v. Irby (1910) 83 Conn. 530, 77 Atl. 957; Wilde v. Bell (1913) 86 Conn. 610, 87 Atl. 8. 15 Childs v. Russell (1846) 11 Met. (Mass.) 16; Kenyon's Petition (1890) 17 R. I. 149, 20 Atl. 294. See also Clark v. Shawen (1901) 190 III. 47, 60 N. E. 116; Smith v. Winsor (1909) 239 III. 567, 88 N. E. 482; Keniston v. Mayhew (1897) 169 Mass. 166, 47 N. E. 612; Clark v. Mack (1910) 161 Mich. 545, 28 L.R.A. (N.S.) 479, 126 N. W. 632. 16 Re Irish (1915) 89 Vt. 56, 94 Atl. 173, Ann. Cas. 1917C, 1154. 17 Grantham v. Jinnette (1919) 177 N. C. 229, 98 S. E. 724. 18 Hardy v. Gage (1891) 66 N. H. 552, 22 Atl. 557. 19 Craig V. McFadden (1916) Tex. Civ. App., 191 S. W. 203. A power given to the life tenant to dispose of the property in her lifetime, so that there may be nothing left to distribute, tends to disclose a purpose that no title in remainder shall vest until it has been ascertained that there is property remaining, 19 The fact that the testator's sole next of kin at the time of his decease are persons whose advanced age renders it unlikely that they will survive the life tenant is a circumstance indicative of an intention that the next of kin are to be ascertained as of the termination of the life estate. 20 An indication of an intention that the persons entitled to take are to be ascertained as of the time of the termination of the precedent estate is found in the fact that the expressed intent that the interest of the widow in the estate should determine absolutely on remarriage would be defeated if the remainder should be construed to be vested in the heirs at law of the testator at the time of his death. 21 The fact that a construction which requires the persons who are to take to be ascertained as of the time of the termination of the precedent estate accords with the general intention evinced by the scheme of the will, to give testator's property to those who are of his blood, is a circumstance which has been given consideration. 22 Where the termination of the life estate is the time fixed for the gift to In Smith v. Winsor (1909) 239 Ill. 567, 88 N. E. 482, the fact that a power of disposition given to a life tenant was limited to the right to use the property for her own support, comfort, and enjoyment, or for such charitable purposes as she should deem worthy, was taken into consideration, together with other indications of intention, as showing an intention to exclude the life tenant from the class to whom the remainder was limited. 20 Lewis v. Palmer (1918) 167 N. Y. Supp. 1053. 21 Welch V. Howard (1917) 227 Mass. 242, 116 N. E. 492. 22 See United States Trust Co. v. Nathan (1920) 112 Misc. 502, 183 N. Y. Supp. 66, affirmed in (1921) 196 take effect, then is the time when the members of the class are to be ascertained. 23 Where a power of appointment is given in trust to a life tenant for the benefit of a class, it seems that, in default of such appointment, the persons entitled to an execution of the power are those answering the description at the time of the death of the donee of the power, rather than at testator's death. 24 But where such a power was given in the event of failure of a prior limitation of the remainder, it has been held that the property vested in those who were members of the class at testator's decease. 25 III. Instances of application of rule. a. Preliminary statement. Although the construction of a limitation to heirs, next of kin, etc., is not affected by the circumstance that the gift is contingent (Bird v. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Tuttle v. Woolworth (1901) 62 N. J. Eq. 532, 50 Atl. 445), and although it is immaterial whether such a limitation be regarded as an executory devise or a contingent remainder (Buzby's Appeal (1869) 61 Pa. 111), the decisions which follow are arranged, for the purpose of facilitating the finding of parallel cases, with regard to the nature of the gift. b. Where gift is not contingent. The arrangement of the cases under this heading is, for the purpose of convenience in reference, in order of jurisdictions. California. In Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898, testator created a trust to pay half of the income from the trust property to his wife during her lifetime and, upon her decease, to a stepdaughter, and the other half to testator's brother and sisters. He directed that the trust should terminate upon the death of the survivor of such App. Div. 126, 187 N. Y. Supp. 649, affirmed without opinion in (1922) 233 N. Y. 505, 135 N. E. 894. 23 Bisson v. West Shore R. Co. (1894) 143 N. Y. 125, 38 N. E. 104. 24 See Harding v. Glyn (1739) 1 Atk persons, "and upon said termination the said trustee shall convey, deliver, pay and transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the state of California, all of said trust estate." The will was made when the testator was in full health and vigor; and his heirs at law were his widow, brother, sisters, and a niece who was not mentioned in the will. It was held that there was nothing to take the case out of the rule that the heirs to whom a remainder is given are to be ascertained at the death of the testator, rather than at the termination of the precedent estate. Connecticut. In Johnson v. Webber (1895) 65 Conn. 501, 33 Atl. 506, where a testatrix, after creating a trust for the benefit of her granddaughters for life, and certain other trusts, provided, "And should there, upon the ending of all the trusts herein, remain anything not by preceding provisions finally and fully disposed of, I give, bequeath, and devise the same to my heirs at law," it was held that persons taking thereunder were the heirs at law of the testatrix upon her decease, since, had she desired such property to go to such persons as might be her heirs at law at the final termination of the trusts, she would naturally have used, in describing them, language somewhat similar in character to that used by her in another provision, in which property was limited at the expiration of a trust estate therein to her "then lineal descendants." Delaware. In Doe ex dem. Wright v. Gooden (1881) 6 Houst. 397, where testator, after devising various parcels of real estate to each of his sons for life, and at their decease to his daughters for life, added, "and at the death of my said daughters, I give my beforementioned lands to my heirs forever," it 469, 26 Eng. Reprint, 299, note; Re Saville (1866) 14 Week. Rep. (Eng.) 603; Hoey v. Kenny (1857) 25 Barb. (N. Y.) 396. 25 See Pope v. Whitcombe (1810) 3 Meriv. 689, 36 Eng. Reprint, 264. |