statutes," is taken in one case,64 where the latter expression was held insufficient to limit the meaning of the word "then," used in an adverbial sense, on the ground that in such case it was susceptible of meaning "in the way in which kinship is reckoned under these statutes."

11. Terms importing plurality in membership of class.

The description of the class in terms which import that testator contemplated a plurality of persons under that description, although, at the time of the making of the will, such class presumptively consisted of but one person, is not conclusive of an intent to postpone the ascertainment of the membership of the class although it may be indicative of such an intention. 65

The reason why the reference to a plurality of persons is of little force is found in the fact that the testator is speaking with reference to the future, when some change in circumstances might render the plural properly descriptive. 66

The use of the words "between and amongst," which seem to import a plurality of members of the class, will not preclude a construction which has the effect to vest the gift in a single person.

67

64 Valentine v. Fitzsimons [1894] 1 Ir. R. 93.

65 Rand v. Butler (1880) 48 Conn. 293; Re Bump (1922) 234 N. Y. 60, 136 N. E. 295; Grantham v. Jinnette (1919) 177 N. C. 229, 98 S. E. 724; Stokes v. Van Wyck (1887) 83 Va. 724, 3 S. E. 387; Say v. Creed (1847) 5 Hare, 580, 67 Eng. Reprint, 1041; Urquhart v. Urquhart (1843) 13 Sim. 613, 60 Eng. Reprint, 239; Ware v. Rowland (1847) 2 Phill. Ch. 635, 41 Eng. Reprint, 1088; Bird v. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Re Barber (1852) 1 Smale & G. 118, 65 Eng. Reprint, 52; Re Lang (1861) 9 Week. Rep. (Eng.) 589.

66 Ware v. Rowland (1847) 2 Phill. Ch. 635, 41 Eng. Reprint, 1088; Bird v. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Re Barber (1852) 1 Smale & G. 118, 65 Eng. Reprint, 52. 67 Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310.

But the fact that the testator contemplated a division among several, where the only heir apparent was a single individual, is some indication of an intention that the "heirs" of the testator among whom distribution was directed to be made at the death of such individual are not to be ascertained as of the time of the testator's death. 68

12. Limitation to those of class making claim or proving relationship.

A limitation over in case no claimant shall appear after a certain time will not preclude the application of the rule, notwithstanding the fact that the life tenants were members of the class at the time of testator's death, the claim being no part of the qualification necessary to constitute the members of the class legatees. 69

And it has been held that no contary intention could be found in the fact that the limitation was to the testator's heirs who might prove their relationship within six months from the termination of the particular estate. 70

But in another case, where the limitation was to such of testator's relations as should make their claim within a certain period after advertisement upon the termination of the life estate, it was held indicative of an intention that the class should be ascer

68 Re Wilson (1920) 184 Cal. 63, 193 Pac. 581; Johnson v. Askey (1901) 190 Ill. 58, 60 N. E. 76; Oleson v. Somogyi (1919) 90 N. J. Eq. 342, 107 Atl. 798, affirmed on opinion below in (1921) 93 N. J. Eq. 506, 115 Atl. 526; Genung v. Best (1927) N. J. Eq. -, 135 Atl. 514; Re Bishop (1926) 126 Misc. 722, 215 N. Y. Supp. 237; Grantham v. Jinnette (1919) 177 N. C. 229, 98 S. E. 724.

See also Nicoll v. Irby (1910) 83 Conn. 530, 77 Atl. 957, in which the use of the plural “heirs," and the provision that they should share alike, were held to indicate an intention on the part of the testator to exclude the life tenant, who was the sole member of the class at the time of testator's death.

69 Gorbell V. Davison (1854) 18 Beav. 556, 52 Eng. Reprint, 218.

70 Re Ferguson (1897) 28 Can. S. C. 38.

But the fact that the remainder is limited to the heirs of the testator and of the life tenant has been treated as indicative of an intention to postpone ascertainment of the class until the termination of the life estate. 78

14. Exclusion of certain persons. The express exclusion of persons who would be members of a class if such class is determined at a certain time is an indication of intention that the class should then be ascertained, where it may be assumed that testator, in making his will, regarded it as certain that the state of his family

71 Tiffin v. Longman (1852) 15 Beav. 275, 51 Eng. Reprint, 543.

72 Jones v. Oliver (1844) 38 N. C. (3 Ired. Eq.) 369.

And see also Holloway v. Radcliffe (1856) 23 Beav. 163, 53 Eng. Reprint, 64; Walker v. Dunshee (1861) 38 Pa. 430; and Jones v. Knappen (1891) 63 Vt. 391, 14 L.R.A. 293, 22 Atl. 630, in which the general rule was applied in the case of a similar limitation.

73 Howell v. Ackerman (1889) 89 Ky. 22, 11 S. W. 819; Bisson v. West Shore R. Co. (1894) 143 N. Y. 125, 38 N. E. 104; Craig v. McFadden (1916) Tex. Civ. App. —, 191 S. W. 203; Wharton v. Barker (1858) 4 Kay & J. 483, 70 Eng. Reprint, 202.

74 Allen v. Almy (1913) 87 Conn. 517, 89 Atl. 205, Ann. Cas. 1917B, 112; Clark v. Shawen (1901) 190 Ill. 47, 60 N. E. 116; Schlater v. Lee (1918) 117 Miss. 701, 78 So. 700; Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310.

75 Cable v. Cable (1853) 16 Beav. 507, 51 Eng. Reprint, 874; Fletcher. v. Fletcher (1861) 3 De G. F. & J. 775, 45 Eng. Reprint, 1078; Minot v. Harris (1882) 132 Mass. 528.

76 Say v. Creed (1847) 5 Hare, 580, 67 Eng. Reprint, 1041.

would remain precisely the same at his death as at the date of his will. 74

Thus, the rule of construction under which the class is ascertained at testator's death is fortified by the circumstance of the exclusion of the tenant for life, which would be superfluous if the vesting was postponed until the termination of the life estate. 75

But the exclusion of a person who would be the sole member of a class at the time of testator's death is indicative of an intention to postpone the ascertainment of the membership of the class. 76

The exclusion of persons who, should circumstances be the same at testator's death as they are at the time of the making of the will, would not, at the time of testator's death, be members of the class, is insufficient to show an intention that the ascertainment of the members of the class should be postponed, as the testator may have had in mind the possibility of changes by death during his own lifetime. 77

77 "An instance in which the exception of persons who presumptively would not, at the time of testator's death, be members of the class, was held insufficient to show an intention that the ascertainment of the members of a class should be postponed, may be found in Re Winn [1910] 1 Ch. (Eng.) 278, where testator made the same exception in another provision of his will, where it was clear that the class must be ascertained at his death, as in such case the probability is that he may have contemplated the possibility of changes during his own lifetime in the membership of the class who were presumptively his next of kin.

So, in Lee v. Lee (1860) 1 Drew. & S. 85, 62 Eng. Reprint, 310 it was held that the exclusion of certain nephews and nieces did not afford any sufficient indication of testator's intention that the class of which they were members should take under the limitation, where it appeared that the nephews and nieces whom testator wished to exclude were the children of a brother who was living when the will was made, showing that he had in his mind the possibility of changes taking place in the state of his family by death.

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 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.

81 Ibid.

82 Moss v. Dunlop (1859) Johns. V. C. 490, 70 Eng. Reprint, 515.

83 Re Winn [1910] 1 Ch. (Eng.) 278. The words "wherever and whomever they may be," used by a testator who was in the prime of a vigorous manhood when he made his will, are not indicative of an intention that the heirs to whom the remainder was giv49 A.L.R.-13.

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.

89

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; 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; 94 by a limitation to such persons "as shall, upon the death of [the life tenant], be my then next of kin ;": or to such persons "as shall, at the time of the decease of" the life tenant, be entitled thereto, etc.; by a direction that the

96

." 95

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.

16. Provision against alienation of particular 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.

1 Re Ford (1895) 72 L. T. N. S. (Eng.) 5-C. A.

2 Jost v. MeNutt (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

3 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.

5 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 contingen. cy 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

19. Miscellaneous.

The fact that the application of the rule will give the fee to one to whom it was expressly given in another alternative is not controlling. 13

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

3 Re Bump (1922) 234 N. Y. 60, 136 N. E. 295.