In Hutchinson v. National Refuges for Homeless & Destitute Children [1920] A. C. 794 H. L. reversing [1919] 2 Ch. 17 C. A., where testator, who had given his residuary personal estate upon trust for his wife during widowhood, and then upon trust in equal thirds for his three daughters for life, with remainder to their children, and with cross gifts between them, further directed "that, on failure of all the trusts hereinbefore declared of the residue of my personal estate, such residue shall be in trust for such person or persons as on the failure of such trusts shall be my next of kin and entitled to my personal estate under the statutes for the distribution of personal estate of intestates, such persons, if more than one, to take distributively according to the said statutes," it was held that the persons entitled to take under the ultimate gift were an artificial class, comprising those who would have been the next of kin of the testator under the Statute of Distributions if he had died at the date of the failure of the antecedent trust.

Ireland.

In Valentine v. Fitzsimons [1894] 1 Ir. R. 93, where a testator directed that the residue of his property

should, at the death of his wife, or at the expiration of ten years from his death, whichever should last happen, be held by his trustees on trust as to a moiety thereof for each of his sons absolutely, and, in the event of either of the sons being dead or having encumbered the provision theretofore made for him by the will, then in trust for all or any of his relations by blood, then living, excluding such son, as the then trustees of his will should appoint, and in default of appointment,

"in trust for the persons who would then be my next of kin according to the statutes of distribution of the personal estates of intestates if my son

. were then dead, such persons, if more than one, to take as tenants in common in the share prescribed by the said statutes." It was held that as the word "then" was used, if not in the first instance, at least in the second, as an adverb of time, the next of kin were to be ascertained as of the date of ten years after the death of testator; and that the reference to the Statute of Distributions, not being to such statute as conferring title, was insufficient to limit the meaning of such word.

Canada.

In Re Karn (1903) 2 Ont. Week. Rep. 841, where testator devised certain real estate to his daughter for life, with remainder to his granddaughters, "but, if my said granddaughter Louisa be not then alive, the same I give and bequeath to her children lawfully begotten, in fee, but failing such children then alive, to my own right heirs absolutely forever," it was held that the word "then," twice used, referred to the death of the daughter, and therefore that the right heirs intended were those existing at the date of her death.

2. Executory limitations. For convenience in reference, the cases under this heading are arranged in order of jurisdictions.

Massachusetts.

In Welch v. Brimmer (1897) 169 Mass. 204, 47 N. E. 699, testator gave his son, who was his only heir, a moiety of his estate, to be held in trust for him until he should attain the age of twenty-three, and added: "Provided, however, that in case my said son shall die having no issue him surviving, or such issue shall decease during minority, then and in either of such cases my will is that my sister, Eliza Oliver, shall have and take the said moiety of my estate and its accumulations herein before given to my said son, and, if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the

person or persons who shall be my heir or heirs at law." The other moiety of the estate was given to the sister for life, with remainder to the son or his issue, with a similar limitation over to testator's heir or heirs at law. It was held that the fact that the son, who was the sole heir presumptive of the testator when the will was made, was given a fee, furnished a somewhat stronger reason for holding that the heirs were to be determined as of the time of the death of the first taker, than when the first taker has only a life estate and the devise is of a remainder; and that the repeated use by the testator of the word "shall" in the clause quoted, and the concluding portion of such clause, in which the word "then" relates to the time of the death of the son, tended to confirm the conclusion that the testator must have intended his heir or heirs living at the time of the death of his son.

New Hampshire.

In Pinkham v. Blair (1876) 57 N. H.. 226, it was held that where the only next of kin of testator at the time of his own decease were three children, to whom he devised his estate in fee, a provision that, in the event of the death of all his children, without issue, "then my will is that said estate shall go to my next of kin, and their heirs and assigns forever," had reference to those who should be his next of kin at the time of the death of the last survivor of his children without issue. New York.

In Delaney v. McCormack (1882) 88 N. Y. 174, a testator gave his son the whole of his real estate for life, and absolutely and in fee in case the son married and had issue, but if he should die without having had lawful issue, the testator directed his executors who should then be surviving, or the last survivor of them, to sell his real estate and distribute the proceeds among the testator's "next of kin as personal estate according to the laws of the state of New York for distribution of intestate personal estate." It was held that the gift not being immediate, but conditioned upon the death

of the son without having had lawful issue, and the fact that as, at the death of the son, the land was to be converted into personalty, and distributed as such, the subject of the gift did not come into existence until after the son's death, as well as the incongruity of a construction which would give the property to the son, who was testator's sole next of kin at the time of his death, upon the death of such son without issue,-all went to show that the next of kin to whom the proceeds were to be distributed were those who were such at the date of the son's death.

Rhode Island.

In De Wolf v. Middleton (1895) 18 R. I. 810, 31 L.R.A. 146, 26 Atl. 44, 31 Atl. 271, a will by which testator gave his daughters a defeasible fee, providing that if they should leave no surviving heir, his estate "on their decease" should "be divided among my heirs at law according to the statute of descents," was held to manifest an intent that testator's heirs should be ascertained as of the time of the death of the daughters, notwithstanding the use of the words "according to the statute of descents."

In Green v. Edwards (1910) 31 R. I. 1, 77 Atl. 188, Ann. Cas. 1912B, 41, where testator, after giving equitable estates in fee tail to his three children, with contingent cross remainders to the survivors or their descendants if either child died without issue, provided that "in case of the death of all my said children without issue, they [the trustees] shall transfer and convey the estate held by them in trust to my heirs at law according to the statutes of descent and distribution then in force in the state of Rhode Island," it was held that a vested remainder was given to heirs at law to be then designated.

Vermont.

In the reported case (RE HENRY, ante, 169) testatrix gave a sum of money in trust for a certain charitable purpose, directing the trust fund and the income thereof to be held by the trustees for the period of five years after the decease of the last survivor of

her brothers and sisters, and further directed that "if at the end of said term of five years above named the funds and accrued income and funds otherwise received shall not have been sufficient, in the judgment of said. trustees, to warrant the establishment and maintenance of such a home, then all the property bequeathed by me for that purpose I bequeath to my heirs." It was held that, as it would not be certain until the expiration of the five years whether the heirs would take or not, futurity was annexed to the substance of the gift over; and that the fact that the fund was not to be distributed until five years after the death of the brother and sisters of the testatrix, when her only living heirs. would be her nephews and nieces, tended to show that, by the words "my heirs" used in the gifts over, testatrix intended those persons who should be living at the time the trust was terminated, rather than those who were living at the time of her death.

England.

In Doe ex dem. King v. Frost (1820) 3 Barn. & Ald. 546, 106 Eng. Reprint, 761, where a testator, having a son and married daughter who had five children, devised to his son in fee, adding: "And if the said W. Frost [his son] should have no children, child, or issue, the said estate is, on the decease of the said W. Frost, to become the property of the heir at law, subject to such legacies as the said W. Frost may leave by will to any of the younger branches of the family," the will, in the light of surrounding circumstances, was held sufficiently to manifest an intention that the expression, "the heir at law," should mean the person who, at the time of the son's decease without issue, should then be the heir at law of the testator, it being clear that the son himself could not be meant as the heir at law, as then the devise over would be nugatory, and the power of leaving legacies unnecessary.

In White v. Springett (1869) L. R. 4 Ch. 300 C. A., where testator gave his estate to such of his three grandchildren as should survive their father and attain twenty-five, but di

rected that in case two only of them should die in the lifetime of their father, or under twenty-five, and the amount to which the surviving grandchild would then become entitled should exceed a certain sum, then the excess should go to the person or persons exclusive of the surviving grandchild "who, under the said statute for the distribution of personal estates of intestates, would, immediately after the decease of the survivor of my other two grandchildren, be entitled to my personal estate in case I had at such time died intestate," it was contended that it having turned out that the surviving grandchild was testator's sole next of kin at the time of the decease of the survivor of the other two grandchildren, and as such grandchildren were excepted from the class, the gift failed for want of a member of the class; but it was held that the testator, in the clause under discussion, did not say that the surviving grandchild was to be excluded from the class entitled, but that he had created for himself an arbitrary class, to be ascertained by applying the statute to a particular time in order to arrive at the particular class of persons, without any reference to any division of the estate, or any exclusion of the particular person from taking a share; and therefore that the persons entitled under the limitation were those who would have been next of kin had the surviving grandchild also been dead at the time when the class was to be ascertained. V. Instances in which members of class are ascertained at testator's death, but take only in event of surviving distribution.

This subdivision may be prefaced with much the same statement as the one preceding, that the decisions which follow should be regarded only as instancing the application to cases of the type falling within the scope of this annotation, of general principles common to all testamentary gifts to a class.

Connecticut.

In Beardsley v. Fairchild (1913) 87 Conn. 359, 87 Atl. 737, where one entitled to a remainder interest in cer

tain property upon the death of another directed that such interest, when paid over to his executor or other person authorized to receive it, should "be paid over to and divided equally among my then living lawful heirs, to them and their heirs forever," it was held that the persons entitled were the lawful heirs of the testator ascertained as of the time of his death, who should be living at the time of the life tenant's decease, the court saying that such interpretation is more in accordance with the natural meaning of the language used than would be the alternative one, which would make the testator's lawful heirs ascertained as of the date of the life tenant's death the persons designated as the beneficiaries of the gift. This construction was also assisted by the consideration that, as thus interpreted, the provision in question is not void as contravening the statute against perpetuities.

Illinois.

In Lee v. Roberson (1921) 297 Ill. 321, 130 N. E. 774, where a testator who had devised property to his son, Nathaniel, provided that if such son should die "without heirs, the estate which I have willed to him as above stated, it is my will shall be equally divided with my living heirs," it was held that by the designation "living heirs" testator meant descendants living at the death of Nathaniel. New York.

In Re Wilson (1907) 53 Misc. 238, 104 N. Y. Supp. 480, where testator, after creating a trust for the use of a certain person for life, directed that, on her decease, the trust fund "be paid to the heirs of my body then surviving, they to share alike," it was held that the heirs of the testator were determinable at his death, but that it was clearly his intention that the title should not vest until the death of the life tenant.

In Hadcox v.

Cody (1912) 75 Misc. 569, 135 N. Y. Supp. 861, affirmed in (1913) 155 App. Div. 943, 140 N. Y. Supp. 1122, where a testator gave property to his two daughters during their natural lives "and then to my

legal descendants if any there shall be, but if there should be none, then to" certain other persons, it was held that "descendants" referred to were those who should survive the daughters, and not those who survived the testator.

South Carolina.

In Gourdin v. Shrewsbury (1878) 11 S. C. 1, testator gave his residuary estate to his executors to sell and reinvest the proceeds in stock, which stock was given to testator's two daughters during their natural lives, share and share alike, the share of the one first dying to go to her surviving children, and in default thereof, and subject to a provision for any husband, to her sister. He further provided that, at the death of the survivor of the two daughters, the stock and property immediately bequeathed to her, or which she might take at the death of her sister, should go to her surviving child or children, and in default thereof, and subject to a provision for any husband, to the child or children of her deceased sister, if living at the death of the daughter so surviving, "and if there be no child of her deceased sister, then the said remainder shall go to my legal representatives in fee simple." It was held that, as the will manifested the intention that after the direct line of descent should be exhausted during the lifetime of the two daughters, the estate should go to the collateral line, the words "my legal representatives" had reference to those answering such description who should be living at the death of the daughter last dying.

In Barber v. Crawford (1910) 85 S. C. 54, 67 S. E. 7, the following provision: "If any of my children named in my said will or codicils to whom I have given my property should die without bodily heirs, it is my will that all of said property be equally divided among my surviving heirs, share and share alike," was construed in accordance with the rule that survivorship relates to the time of the testator's death only where there is no other period to which it may be referred, as an executory devise to those answering the description of surviving heirs

at the time of the death of the first taker, and not that of the testator. England.

In Spink v. Lewis (1791) 3 Bro. Ch. 355, 29 Eng. Reprint, 580, where testator directed his residuary estate to remain invested for the space of ten years, when the fund thus accumulated should be divided into six parts, one sixth thereof to be paid to a nephew or to his legal representatives, and the other five parts thereof to be divided among such next of kin and legal representatives as should then be living, under the usual and due course of representation, it was said to be plain that the testator meant by "next of kin" some class of persons of whom it was doubtful whether they would live ten years, and that the only next of kin of the testator living at his death having died before the end of the ten years, the disposition of the five sixths lapsed.

In Bishop v. Cappel (1847) 1 De G. & S. 411, 63 Eng. Reprint, 1127, where the testator provided that a moiety of his personal estate given to a brother should "not be left to him and his heirs forever, but for the term of his natural life; and after his decease to go to ... his wife; and at her decease to go to such of my relations as shall survive them, share and share alike," it was held that, although the construction of the provision was doubtful, it would be construed as a limitation over to such of the persons entitled at testator's death to his personal estate under the statute of distributions as should be living at the expiration of the life estates.

In Eagles v. Le Breton (1873) L. R. 15 Eq. 148, where testatrix, after devising all of her real estate to her sisters as tenants in common, directed: "At the death of my sisters . . . the residue of my property is to pass to my relatives in America," it was held that the class was to be determined at the death of the testatrix, but that they took as joint tenants; which therefore limited the donees to those members of the class who should survive the termination of the life estate.

In Re Nash (1894) 71 L. T. N. S. 5

-C. A., where testator gave his residuary estate to his wife for life, directing that after her decease a certain legacy be paid, "and that the nearest relatives then living (to be hereafter named in a codicil) shall receive the benefit equally among them after the aforesaid sum has been paid," it was held that, testator having left no codicil to his will, the class was to be ascertained at his death, but that only such of them were to take as survived the tenant for life.

In Re Winn [1910] 1 Ch. 278, a testator seventy-three years old when he made his will, and whose next of kin at the time the will was made and at the time of his death were his nephews and nieces, directed a certain sum to be held in trust for each of his nieces for life, and for the husband of each for life in the event of her leaving no issue, remainder to any child or issue, and in the event of the death of any niece without issue, or of the death of such issue before becoming entitled to the principal, "upon trust for my next of kin, whoever they may be, living at the time of the trusts failing as aforesaid, except the children or other descendants of my late nephew, Thomas Winn, deceased, whose children are herein before, as well as by other means, amply provided for." Sums equal to those thus given in trust were then given upon similar trusts in favor of each of his nephews and their issue, "and with the like gift over in favor of my next of kin, except as aforesaid, for want of issue respectively, as hereinbefore mentioned." He also directed his trustees to hold a further sum upon trust in favor of T. T. and his children and issue, and in casc of the death of the said T. T. without issue living to acquire a vested interest, then such sum to go as T. T. should appoint, “and, in default thereof, to my next of kin except as aforesaid." The six nephews and nieces were made residuary legatees. It was held that, looking at the will alone, it was rather to be supposed that the testator contemplated that, in respect of the final limitation of the various trust funds, the same class would take, subject, how