New York.

In Beers v. Grant (1905) 110 App. Div. 152, 97 N. Y. Supp. 117, affirmed without opinion in (1906) 185 N. Y. 533, 77 N. E. 1181, it was held that, under the provisions of a will by which testator gave to trustees a portion of his residuary estate in trust for a daughter during her natural life, and after her death to her children, and, in case of failure of children, to testator's heirs at law in such shares and proportions as, by the laws of the state of New York, they would take and inherit real estate of which he should die possessed and intestate, the daughter took no interest in the property as an heir at law of the testator, but that, upon her death without children, it became the duty of the trustee to pay over the trust fund, in the shares which they would have taken, to and among those who would have been testator's heirs at law had he died a moment after his daughter's death.

In Salter v. Drowne (1910) 141 App. Div. 352, 126 N. Y. Supp. 686, affirmed in (1912) 205 N. Y. 204, 98 N. E. 401, testatrix devised a sum of money upon trust for her sister for life, and, on the death of the sister, for her daughter for life, "and, if my daughter be not living, or on her death, then to pay and divide such principal sum or the investment thereof to the issue of my daughter absolutely, and, if none, then to my next of kin." She then devised certain real

estate in trust for her daughter for life, and, if her daughter should not be then living, or on her death, to convey such realty in fee to the daughter's daughter upon her attaining the age of twenty-one, and, if she should not be then living, then to convey to her issue, and, if none, "then to my heirs at law." Testatrix further created a trust in her residuary estate for her daughter for life, adding: “And if my daughter should not then be living, or, on her death, to pay such principal sum, or the investments thereof, to the issue of my daughter, and if my daughter shall leave no issue, then to my next of kin." The granddaughter died without issue in the lifetime of testatrix. The daughter was the sole heir and next of kin of testatrix at the time of her death. It was held that, as there was no immediate gift of the remainder interests, but only a direction to the trustees to pay and divide in the future with respect to the trusts of the personal property, and to convey in the future with respect to the trust of the real estate, and as testatrix could not have intended to give her daughter a remainder limited upon her own life, but in all probability, the daughter having issue living at the time the will was made, the ulterior bequest to the next of kin of testatrix was considered by her, if at all, only as a remote possibility, as to which she did not have the particular individuals in mind,it was plain that testatrix did not intend that the remainder should vest upon her death, but that the persons entitled under the ultimate limitation should be those who would answer to that description after the death of the daughter.

In United States Trust Co. v. Littman (1918) 103 Misc. 432, 171 N. Y. Supp. 356, where a testator gave a share of his residuary estate in trust to pay the income to a nephew during his life, and, upon his death, then to distribute the same to and among his lawful issue; and further provided that, in event of the nephew's death without leaving lawful issue then surviving, the trust fund should be "distributed by the trustees to and among

my next of kin in such proportions as the laws of the state of New York shall, at the time of the death of said [nephew], provide for the distribution. thereof in the case of intestacy,”—it was held that, as there were no words of present gift over to the testator's next of kin, who take only through the direction to the trustees to distribute after the death of the life tenant, and as a change in the laws of the state between the time of the testator's decease and that of his nephew might result in giving the property to different persons and in different proportions than those fixed at the time of the testator's death, the trust fund was to be distributed among persons answering the description of next of kin on the date of the death of the life tenant, rather than among those who were next of kin at the date of the testator's death.

In United States Trust Co. V. Nathan (1920) 112 Misc. 502, 183 N. Y. Supp. 66, where a testator who had given sums of money in trust for each of his children, to accumulate the interest or income thereon during their respective minorities, and, upon the arrival of each of his daughters at the age of twenty-one, to pay over to her the accumulations of her trust fund, and thereafter subsequently during her lifetime to pay over to her the income thereof, directed that, upon the death of a daughter leaving issue her surviving, the principal of his or her share of such trust fund, with any unapplied income thereof, should be paid over to such issue according to the law of distribution of personal property of intestates "now in force," and in case of the death of a daughter leaving no issue her surviving "then the principal of said trust fund to such child or children so dying, with any unapplied income thereof, shall be paid over to my executrix and form part of my residuary estate hereinafter mentioned; but, in case my wife shall not be then living, then I give and bequeath the same to my descendants according to the law of the state

of New York now in force regulating

the distribution of personal property in case of intestacy," it was held

that, notwithstanding the use of the words "give and bequeath" in the gift over to descendants, the testator's use of the word "then" in the first instance as referring to the date of the daughter's death, giving rise to the natural inference that the words "give and bequeath" were used with respect to that date, and not with respect to the date of the death of the testator, and the general scheme of the will, which evinced an exceptional solicitude on the part of the testator that his property should not pass into the hands of strangers to his blood, indicated that the persons entitled to take upon the death of a daughter without issue were to be determined as of that date, and not as of the time of the testator's own death. This construction was approved by the appellate court in (1921) 196 App. Div. 126, 187 N. Y. Supp. 649, affirmed without opinion in (1922) 233 N. Y. 505, 135 N. E. 894, in which it was said to be supported by the further consideration that the gift to the descendants was inclusive of unapplied income, which was said to be indicative of an intention to give only at a time subsequent to the death of the testator, when there would be, as the testator must have thought, unapplied income to pass as part of the gift, and by the further consideration that the gift was to take effect only upon the double contingency of a child dying without issue, and also of the death of his widow at the time of the death of the child, showing that the testator had a remote period in contemplation.

In Re Bishop (1926) 126 Misc. 722, 215 N. Y. Supp. 237, testatrix gave her residuary estate in trust to pay over the income to her "only child and daughter" during her natural life, and further provided: "Upon her death. leaving no children or their descendants her surviving, then said residuary estate shall go to my lawful heirs at law. Should my daughter, however, die leaving lawful issue, then the income from said residuary estate shall be paid to such issue until the ma

jority of the youngest child, at which last-named period said residuary estate shall be equally divided among

devise the two thirds of the remainder of his real estate to those who should be his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of his death. In Hildebrant's Estate (1920) 268 Pa. 132, 110 Atl. 760, reversing (1919) 73 Pa. Super. Ct. 255, a will by which testator gave the income of his residuary estate to his wife for life, then to his son for life, "and upon and after the death of" such son to the child or children of such son, "and, in the event that he shall die without leaving issue, I direct my estate to be divided among my relatives under the intestate laws of Pennsylvania," it was held that the evident intention of the testator was that the relatives were to be ascertained as of the time of the son's decease.

In Merrefield's Estate (1896) 5 Pa. Dist. R. 463, where a testatrix, after giving a life estate in the income to her son, who was her sole heir at law at the date of her death, with remainder to his child or children upon reaching majority, provided that should her son die without issue surviving, then after his decease "all of my said residue to be equally divided amongst my heirs then living, absolutely, agreeable with the intestate laws of Pennsylvania," the fact that the son was given only the income for life was held to show that those who were to take the residue were to be ascertained at the time of his death, and not that of the testatrix. No allusion is made to the circumstance that the limitation was expressly to "heirs then living," although this would appear to furnish a better basis for the conclusion reached than the reason assigned by the court.

Rhode Island.

minor gifts, directed the residue of his estate to be held in trust to make certain payments, the most of which were for the benefit of or to his daughter. He further provided that, from and after the decease of such daughter, should she leave a child or children, the trustee should maintain such children until the youngest should attain the age of twenty-one, when the property was to be conveyed to them in equal shares; but that, if his daughter should die without leaving any child or children living at the time of her decease, the trustee should thereafter pay to his wife for her own use, if she should remain unmarried, a stated annual sum, and various sums of money to his mother, brothers and sisters, nephews and nieces, "and all the rest and residue of the said trust fund remaining after the payment of the said sums, and reserving a sufficiency for the payment of the annuities provided for in this my will, they shall distribute to and among my heirs at law in the proportions to which they would severally be entitled under the statute for the distribution of intestate estates. And, whenever the payment of the said annuities shall cease, so much of my said estate as may have been reserved for their payment shall then be distributed in like manner." It was held that, as the testator evidently did not contemplate that his wife should participate in the distribution of the trust estate upon the death of his daughter without issue, it was inferable that he did not intend the persons who should take to be ascertained at the time of his decease. The court said: "In the present case the provision for the annual payment to his wife of $500 from the rest and residue of the trust estate, which was to come into effect after the daughter's death only if the wife had remained unmarried, and was to at once cease on her remarriage, when considered in connection with the original bequest to her as being 'in lieu of her dower or other interest in my real or personal estate,' evinces, we think, a clear intention that she is not to share in the distribution of 'the rest and residue of the trust funds remaining after

In Dorrance v. Greene (1918) 41 R. I. 444, 104 Atl. 12, a testator who left him surviving a widow much younger than himself, and an infant daughter, an aged mother, and brothers and sisters and nephews and nieces, by a will executed within a month of his death, gave his wife a sum of money outright, "in lieu of her dower or other interest in my real or personal estate," and, after various 49 A.L.R.-16.