8. Words of futurity.

The use of words of futurity is not conclusive of an intention that the class described as testator's heirs, next of kin, etc., is to be ascertained as of a time subsequent to his own decease, since the testator, in making his

(1925) 124 Misc. 466, 209 N. Y. Supp. 137; McKee's Estate (1923) 82 Pa. Super. Ct. 407.

And see also Forrest v. Porch (1898) 100 Tenn. 391, 45 S. W. 676, where a direction that at the death of the life tenant the property should be divided was held not to vest the remainder until the time for distribution.

38

38 Welch v. Blanchard (1911) 208 Mass. 523, 33 L.R.A. (N.S.) 1, 94 N. E. 811.

The fact that the gift over is by way of a direction to pay and distribute, although proper for consideration, does not prevent the application of the usual rule. Brown v. Spring (1922) 241 Mass. 565, 135 N. E. 701.

The fact that the testator directs a sale of the property and the division of the proceeds does not indicate an intention that the heirs among whom such proceeds are directed to be divided are to be ascertained as of the time of the death of the life tenant, rather than as of the time of the testator's decease. Schlater V. Lee (1918) 117 Miss. 701, 78 So. 700.

The rule that heirs are to be ascertained as of the time of the testator's death is not varied by the use of the words "the same to be distributed." Re Leckie (1921) 20 Ont. Week. N. 178.

And see also the following cases, in which a direction to divide at the termination of a life estate, as in Masters v. Hooper (1793) 4 Bro. Ch. 207, 29 Eng. Reprint, 854; Gorbell v. Davison (1854) 18 Beav. 556, 52 Eng. Reprint, 218; Weil v. King (1907) 31 Ky. L. Rep. 1010, 104 S. W. 380; Brian v. Tylor (1916) 129 Md. 145, 98 Atl. 532; Childs v. Russell (1846) 11 Met. (Mass.) 16; Cummings v. Cummings (1888) 146 Mass. 501, 16 N. E. 401; and McDaniel v. Allen (1886) 64 Miss. 417, 1 So. 356; or at the termination of a trust, as in Rayner v. Mowbray (1791) 3 Bro. Ch. 234, 29 Eng. Reprint, 508; Collisam v. Sams (1830)

The use of words of description in the future has also been held immaterial, on the ground that words to postpone the vesting in possession of an interest are naturally prospective. 40

Tamlyn, 346, 48 Eng. Reprint, 138; Urquhart v. Urquhart (1844) 13 Sim. 613, 60 Eng. Reprint, 239; Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310; Merrill v. Wooster (1905) 99 Me. 460, 59 Atl. 596; Boston Safe Deposit & T. Co. v. Parker (1907) 197 Mass. 70, 83 N. E. 307; Jewett v. Jewett (1908) 200 Mass. 310, 86 N. E. 308; Mc Fillin's Estate (1912) 235 Pa. 175, 83 Atl. 620; and Allison v. Allison (1903) 101 Va. 537, 63 L.R.A. 920, 44 S. E. 904,-seems not to have been regarded as precluding the application of the general rule.

39 See Re Bump (1922) 234 N. Y. 60, 136 N. E. 295, in which it is said: "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."

So, also, in Re Farmers' Loan & T. Co. (1925) 213 App. Div. 82, 209 N. Y. Supp. 433, the reference to beneficiaries as those who "would have been so entitled thereto had I died intestate" was held to relate to the time of his death and the speaking of the will. But compare Genung v. Best (1927) - N. J. Eq. —, 135 Atl. 514, where the use of the word "shall" was one of the indications of intention relied on.

40 Doe ex dem. Garner v. Lawson (1803) 3 East, 278, 102 Eng. Reprint, 604; Wharton v. Barker (1858) 4 Kay & J. 483, 70 Eng. Reprint, 202; Valentine v. Fitzsimons [1894] 1 Ir. R. 93.

In Henkins v. Henkins (1919) 287 Ill. 62, 122 N. E. 88, it is said that the rule is that when the will speaks of a devise as taking effect after or upon the death of the tenant of the particular estate, such words will ordinarily, if standing alone in the will, be construed as referring to the time when the estate will vest in possession only.

Mere words of futurity without the adverb of time are insufficient to preclude the application of the general rule. 41

Words expressive of future time are to be referred to the vesting in possession if they reasonably can be, rather than to the vesting in right. 42

The word "would" in a gift of a remainder interest "to such person or persons as would by law inherit the same" has been held not to import the death of the life tenant as the time referred to by the testator for the vesting of the estate in remainder. 43

In one case, the use of the word "shall" in the phrase, "my legal heirs and next of kin who shall be by law entitled to the same," has been relied on as indicative of an intention to give the property to those who should be next of kin at the death of the life tenant 44; and in another case it was said that the words, "such persons as shall happen to be my next of kin," or "such persons as shall or should be my next of kin," which import a future period, indicate an intention to confine the gift to such persons as shall answer the description at the death of the life tenant. 45

41 Per Baggallay and Thesiger, Lds. JJ., in Mortimer v. Slater (1877) L. R. 7 Ch. Div. (Eng.) 322; Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898. 42 Kenyon's Petition (1890) 17 R. I. 149, 20 Atl. 294.

43 Re Buzby (1922) 94 N. J. Eq. 151, 118 Atl. 835, reversing (1922) 93 N. J. Eq. 411, 115 Atl. 909; Re Bump (1922) 234 N. Y. 60, 136 N. E. 295.

Oleson v. Somogyi (1919) 90 N. J. Eq. 342, 107 Atl. 748, affirmed on opinion below in (1921) 93 N. J. Eq. 506, 115 Atl. 526.

45 Butler v. Bushnell (1834) 3 Myl. & K. 232, 40 Eng. Reprint, 88.

This case is criticized in 2 Jarman on Wills, *987, in which it is said: "Words which are expressive of futurity without pointing to any definite period are satisfied when referred to the time of testator's death; and, being themselves ambiguous, ought not to be allowed to control the known legal meaning of such words as 'next of kin.' At the present day it is not probable that such decisions would

9. Use of word "then."

The word "then" is not decisive of testator's intention that a gift in remainder, after a life estate, to heirs or next of kin, is to those answering such description at the time of distribution, as it may be satisfied by the consideration that it refers to those who shall be entitled to share in that capacity at the time of the testator's decease. 46

But where the word "then" is clearly used as an adverb of time, and not as referring to the event, it will have the effect to postpone the ascertainment of the class until the period to which it has reference. 47

It has been held to have been used as an adverb of time in the case of a limitation to such persons "as should then be" the legal representatives of the testator;48 or "to those who shall then be "the next of kin of the testator; 49 in the case of a gift upon the decease of the life tenant to the testator's heirs at law "then living," 50 and in the case of a direction for the division of property "then remaining." 51 So, where it is used twice in the limiting clause, and in one instance clearly refers to the time of the life tenant's decease, as in the phrase, "but in case

be made as those in Briden v. Hewlett (1831) 2 Myl. & K. 90, 39 Eng. Reprint, 878, and Butler v. Bushnell."

46 Childs v. Russell (1791) 11 Met. (Mass.) 16; Himmel v. Himmel (1920) 294 Ill. 557, 13 A.L.R. 608, 128 N. E. 641.

47See Carr v. New England Anti-Vivisection Soc. (1919) 234 Mass. 217, 125 N. E. 159; 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; Re Bishop (1926) 126 Misc. 722, 215 N. Y. Supp. 237; Dailey's Estate (1920) 268 Pa. 379, 111 Atl. 922; Long v. Blackall (1797) 3 Ves. Jr. 486, 30 Eng. Reprint, 1119.

48 Long v. Blackall (Eng.) supra. 49 Wharton v. Barker (1858) 4 Kay & J. 483, 70 Eng. Reprint, 202.

50 See Carr v. New England AntiVivisection Soc. (Mass.) supra.

51 Dailey's Estate (1920) 268 Pa. 379, 111 Atl. 922.

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 Ill. 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 over and distribute the property among testator's heirs at law relates

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 persons 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. 6 Tate v. Tate (1925) 160 Ga. 449, 128 S. E. 393.

56

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. Reprint, 64; Wharton 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

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.

v. Fitzsimons [1894] Tuttle v. Woolworth Eq. 532, 50 Atl. 445. (1895) 72 L. T. N. S.

61 Valentine 1 Ir. R. 93; (1901) 62 N. J. 62 Re Ford (Eng.) 5-C. A.

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