'con

ters, but in certain events in part to her sons and in part to descendants of any of her daughters until the decease of the last survivor of her daughters, further provided that the trustees should, "'on the decease of the last survivor of my said daughters' vey, assign, deliver, and distribute the whole remaining trust property to the then surviving descendants of my said children respectively . . and, in case of there then being no surviving descendants of any of my said children, then the trust property is to go to my heirs, and in either case the trust is to cease;'" notwithstanding a provision that the share of the income which was to be paid to her daughters or to their female descendants should be paid to them or for their benefit, independently of their husbands; and notwithstanding that her heirs at her death were her children, that an absolute bequest was made to her son, and that life estates were given to her daughters.

In State Street Trust Co. v. Sampson (1917) 228 Mass. 411, 117 N. E. 832, where testator gave shares in his residuary estate to each of his children for life, with remainder to the child or children of each, and further directed that, "upon the decease of either of said sons or daughters leaving no issue, then said trustees shall pay over and convey the whole of the trust share, and estate of such deceased son or daughter to my right heirs at law," it was held that there was nothing to take the case out of the rule that a devise to the heirs at law of the testator is to be construed as referring to those who are such at the time of the testator's death, unless a different intent is plainly manifested by the will. In Brown v. Spring (1922) 241 Mass. 565, 135 N. E. 701, it was held that there was nothing in a will by which testator gave a share of the residue of his estate in trust for his daughter for life, the corpus to be distributed at her death among her children or to descendants of any deceased child living at her death, and, if the daughter should die leaving no children or descendants living at her death, "then to pay over and distribute the same

among my heirs at law,"-to take the case out of the rule that a reference by a testator to his heirs indicates those who were such at the time of his death.

Mississippi.

In Harris v. McLaran (1855) 30 Miss. 533, where a father executed a deed of trust of certain slaves for the benefit of his daughter during her lifetime, and after her death to belong to her child or children, adding, “But, should she die without living issue, then and in that case the slaves before named and their increase shall return to my lawful heirs," it was held that the fact that the daughter would take under the limitation over to grantor's heirs was not of itself sufficient to warrant the supposition that the grantor meant such limitation over to be to an artificial class.

New Hampshire.

In Simes v. Ward (1918) 78 N. H. 533, 103 Atl. 310, where testator gave the use of all his estate to his wife for life, with remainder to his children should they survive his wife, and further provided that in case no lineal descendants of his should survive his wife, then, at her decease, he gave all his property to his sisters for and during their lives and the life of the survivor, with the right to use such part of the principal as their comfort might require, "and, on the decease of the survivor of them, to my heirs," it was held that there was not sufficient in the will to take it out of the rule that the heirs are to be ascertained as of the time of the testator's decease; the fact that he named certain persons who were to take part of his property, and gave the remainder to his heirs generally, tending rather to the conclusion that he was indifferent as to the individuals who were to take it, than to the conclusion that he had definite individuals or a definite class of individuals in mind.

New Jersey.

In Tuttle v. Woolworth (1901) 62 N. J. Eq. 532, 50 Atl. 445, a testator, after creating a trust first for the use of his wife during widowhood, and thereafter to his daughter for life, and

at her death to convey to her children, further provided that if the daughter should die "without issue her surviving, then I direct my executors to sell the said house and lot, and distribute the proceeds thereof among my heirs according to the laws of the state of New Jersey." He further bequeathed to his executors certain bonds and stocks in trust for his wife during her natural life, and after her death to set off the said bonds and stocks to his daughter or her heirs, and, if the said daughter should die without issue, "then said bonds and stocks shall revert to my estate, and be distributed among my heirs in the manner provided by the laws of New Jersey respecting intestate estates." It was held that the fact that the daughter was one of testator's heirs and next of kin was not sufficient to restrict the class of heirs who are to take under such limitation over, to those living at the time of distribution, the court saying: "The objection from incongruity supposed to arise against holding that the previous tenant is entitled to any interest in an estate as next of kin, after the estate specially given to him by the will has terminated, is, as it seems to me, met and answered by the consideration that when the testator limits an estate to one of his next of kin and his children or issue, and then directs that, on failure of this limitation, his heirs or next of kin shall take according to law, he discloses clearly that, if the special and immediate limitation fail, as it may, then he had no intentions or wishes to change the disposition which the law itself would have made for him in regard to this part of his estate, and that, on the failure of his special purpose, he desires that he should be considered as making no provisions of his own about the disposition of his estate, but as expressly leaving that disposition to be made by the laws as if he had died intestate. When there is the further express direction in the will, as there is in this case, that the estate shall be distributed among testator's heirs (or next of kin), in the manner provided by law respecting intestates' estates, the conclusion seems unavoidable that

the testator, as to the estate limited over, intended the same persons to receive the estate as would have received it at his death, by law, had he died. intestate as to its future disposition after the failure of the particular estate. If this be the correct view, the previous gift to one of the next of kin cannot, of itself, be sufficient to exclude him from the portion which, as next of kin, would have come to him by law, or show that the testator intended to restrict the operation of the laws relating to distribution of intestates' estates, by referring them to a time subsequent to his death." New York.

In Wadsworth v. Murray (1900) 161 N. Y. 274, 76 Am. St. Rep. 265, 55 N. E. 910, where a testator, after creating a trust for the benefit of his grandson during his natural life, disposed of the real estate and its proceeds in the trust after the death of the grandson as follows: "And in case the said [grandson] . . . shall die leaving lawful issue him surviving, such issue shall take an estate in fee in the real estate hereby devised in trust for him, and the entire and absolute estate and interest in such accumulations as are herein before provided for. And in case the said [grandson] . . . shall die leaving no lawful issue him surviving, then, and in that case, the estate in said lands, and the entire and absolute estate and interest in such accumulations, shall descend to and vest in my heirs at law in the same manner that it would have descended to and vested in them if this will had not been made,"-it was held that, without resorting to the rule of construction that where, on the termination of a life estate, a remainder is limited to the heirs of testator, the will is deemed to speak as of the time of his death, and his heirs at that time take a vested remainder, the language of the will manifested an intention that the heirs should be determined as of the time of testator's death.

In Re Bump (1922) 234 N. Y. 60, 136 N. E. 295, a testator, having at the time of the execution of his will a wife and daughter, two living sisters, two aunts, and a number of cousins,

gave all his property to his wife for life, with the right to use as much of the principal as she might think necessary for her support and that of his daughter, and with remainder to his daughter in fee, if living, or to her issue, if dead. But, if the daughter died before the wife without issue, then he gave the income of his estate, or of the residue thereof, to his sisters or to the survivor of them, for life, and further added: "Subject to the foregoing provisions, I give, devise, and bequeath the corpus of my estate, or what is left of it after the death of my wife, to such persons as would be entitled to the same as my heirs under the intestate laws of the state of New York absolutely." It was held that neither the use of the word "would," nor the fact that the testator used the word "heirs" in the plural, precluded the application of the rule that the heirs are to be ascertained as of the time of the testator's decease, so that the remainder vested in the daughter. In discussing the question, the court said: "Who were designated by the word 'heirs'? Miss Bump died before her mother, unmarried. Mrs. Bump is also dead. If he was speaking as of the time of his own death, the remainder, dependent on the life of the surviving sister, vested in the daughter. If he referred to the death of his wife, it vested in the surviving sister. If to the death of this sister, it would then vest in such aunts and cousins as may be living at that time. The surrogate chose the second alternative; the appellate division the third. We select the first. The contingency that actually occurred was not one of which the testator had been unmindful. Even now he makes provision for such a case. If his daughter or her issue survived the wife the entire estate is disposed of. What if she does not? He wishes his sisters to have a life estate. He knows that, in the event supposed, his sisters will then be his heirs. Is it possible that he intended to designate them by the use of that word; that in two succeeding clauses he first carefully provides for a life estate in their favor and then in addition gives them the fee? We think not. To some ex

tent the same reasoning applies to his daughter and her issue. To them goes the fee if they survive his wife. Does he intend, also, to give it to them if they do not? It is less unlikely than in the former case, where it does not go to them directly. There is first carved from it the life estate of the sisters, and only when that is exhausted does the remainder take effect. We have, therefore, a devise and bequest to heirs. Primarily, this word is to be interpreted in its natural sense-those who are heirs at the death of the testator. . . It is only when a contrary intention appears that this presumption fails. We do not find such an intent expressed here. The use of the word 'heirs' in the plural we regard as immaterial. We cannot believe that the testator, in using such a typical expression, chose deliberately between the singular and the plural form, and by the latter indicated the collaterals, who were many, rather than the daughter, who was one. Nor do we attach importance to the phrase 'such persons as would be entitled as my heirs.' While speaking as of the death of the testator, the will was prepared some years before. When writing it he refers to the future. As would be my heirs at the time of my death,' or as would be my heirs at the termination of the life estate.' One intent is as likely as the other. We have a description of what is devised or bequeathed. The corpus. of my estate or what is left of it after the death of my wife.' As she was specifically authorized to use the principal, here again we are given no light. as to the meaning of Mr. Bump. On the contrary, as supporting the conclusion we have reached, there is the general rule that the law favors the vesting of estates. We have the fact, also, that the gift is a present one. Futurity is not annexed to it, as where the only gift is contained in the direction to divide and pay over at some future date. . . . It is said, if our interpretation is correct, the whole clause is useless; that his estate follows the course it would have taken if it had been omitted. This is true. But it is not unusual to give by will

intestate laws of Pennsylvania," was construed to give each of the daughters an estate for life, with remainder to her children and issue, if any, in fee, with an executory devise on her death without issue to testator's right heirs under the intestate laws at the time of his death. The gift thus incidentally characterized by the court as an executory devise would seem, however, more properly to be regarded as creating a contingent remainder.

There is nothing in the language of a testamentary provision by which certain property was devised in trust for the benefit of a son for life, and from and immediately after his decease, then in trust for the use and behoof of all and every child and children of the said son that should then be living, and the lawful issue of them as should then be deceased, their respective heirs and assigns forever, "and for want of such a child or children or lawful issue, then in trust for the use and behoof of my right heirs forever," which qualifies the natural meaning of the word "heirs" as referring to those who were such at the time of testator's death, the word "then" obviously being used not as an adverb of time, but as a conjunction signifying "in that event or contingency." Buzby's Appeal (1869) 61 Pa. 111.

In Stewart's Estate (1892) 147 Pa. 383, 23 Atl. 599, where testatrix, after giving successive life estates in a moiety of her property to a sister and niece, with remainder to the issue of the niece, or, in the event of the niece dying without issue in the lifetime of another sister, to such persons as such other sister should by will appoint, further provided that if, at the death of the niece having no issue, such other sister should be herself then dead, "I then give, devise, and bequeath the said moiety of the residuary estate to my right heirs according to the intestate laws of the state of Pennsylvania," it was held that there was nothing to take the case out of the general rule.

In Fitzpatrick's Estate (1913) 233 Pa. 33, 81 Atl. 815, Ann. Cas. 1913B, 320, where testator gave a sum of money in trust to pay the income

thereof to a sister during her lifetime and the principal after her death to her children, and further provided that, "in the event that no children survive her, then I give and bequeath the same to my legal heirs," it was held that the word "then" referred to the event upon the happening of which the legal heirs were to take, and not to the time when the right to take begins, and therefore that there was nothing to take the case out of the operation of the rule that the heirs are presumed to be those living at the death of the testator.

In McFillin's Estate (1912) 235 Pa. 175, 83 Atl. 620, testator gave a share of his estate in trust for his son during his life, and, upon his decease, upon a further trust to divide, distribute, and pay such share to and among the son's children, and, in event of the son's dying without leaving any children or issue of a deceased child, directed that the trustees "should divide, distribute, and pay the said part or share to such person or persons who shall be entitled thereto as my next of kin under the intestate laws of the state of Pennsylvania." It'was held that there was nothing to take the case out of the rule that the testator's next of kin are deemed to be those who were such at the time of his death.

In Tatham's Estate (1915) 250 Pa. 269, 95 Atl. 520, Ann. Cas. 1917A, 855, testator gave his residuary estate in trust for the benefit of his widow and children during the lifetime of the widow, and also gave his wife a power of appointment, and further provided. that, in the absence of the exercise of such power, "then I devise and bequeath the entire reversion to my lawful heirs and distributees as provided by the intestate laws of the commonwealth of Pennsylvania," and by codicil revoked the power of appointment to his wife except as to a certain amount, and provided: "As to the rest, residue, and remainder of my estate and as to the whole of it in case my wife makes no no such appointment, I give, devise, and bequeath the same to my executors and trustees and the survivor and heirs of the survivor of them as named