facie meaning may be found in the fact that a construction which would postpone the time for ascertaining the membership of the class would render the provision obnoxious to the Statute of Perpetuities. 14

The fact that the limitation over is only of such property as shall then remain has been held not sufficient to show an intention that the heirs shall be ascertained as of the time of distribution. 15 But in one case it has been held that, where the gift over is only of so much as may remain after providing for the necessities of the life tenant, futurity is annexed to the subject of the gift, and the persons entitled to take are to be determined as of that time. 16

The fact that the first taker is given power to use so much of the principal as he or she may see fit is a circumstance tending to negative a construction under which such first taker would receive the remainder. 17 So, a direction to devote the income and such of the principal of a testamentary trust as may be necessary for the comfort of a daughter, who was the sole next of kin and heir at law at the time of the death of the testatrix, makes it unreasonable to suppose that such daughter was intended to take under limitation over in the event of the death of any of such daughter's children before becoming twenty-three years old. 18

14 See Nicoll v. Irby (1910) 83 Conn. 530, 77 Atl. 957; Wilde v. Bell (1913) 86 Conn. 610, 87 Atl. 8.

15 Childs v. Russell (1846) 11 Met. (Mass.) 16; Kenyon's Petition (1890) 17 R. I. 149, 20 Atl. 294. See also Clark v. Shawen (1901) 190 Ill. 47, 60 N. E. 116; Smith v. Winsor (1909) .239 III. 567, 88 N. E. 482; Keniston v. Mayhew (1897) 169 Mass. 166, 47 N. E. 612; Clark v. Mack (1910) 161 Mich. 545, 28 L.R.A. (N.S.) 479, 126 N. W. 632.

16 Re Irish (1915) 89 Vt. 56, 94 Atl. 173, Ann. Cas. 1917C, 1154.

17 Grantham v. Jinnette (1919) 177 N. C. 229, 98 S. E. 724.

18 Hardy v. Gage (1891) 66 N. H. 552, 22 Atl. 557.

A power given to the life tenant to dispose of the property in her lifetime, so that there may be nothing left to distribute, tends to disclose a purpose that no title in remainder shall vest until it has been ascertained that there is property remaining. 19

The fact that the testator's sole next of kin at the time of his decease are persons whose advanced age renders it unlikely that they will survive the life tenant is a circumstance indicative of an intention that the next of kin are to be ascertained as of the termination of the life estate. 20

An indication of an intention that the persons entitled to take are to be ascertained as of the time of the termination of the precedent estate is found in the fact that the expressed intent that the interest of the widow in the estate should determine absolutely on remarriage would be defeated if the remainder should be construed to be vested in the heirs at law of the testator at the time of his death. 21

The fact that a construction which requires the persons who are to take to be ascertained as of the time of the termination of the precedent estate accords with the general intention evinced by the scheme of the will, to give testator's property to those who are of his blood, is a circumstance which has been given consideration. 22

Where the termination of the life estate is the time fixed for the gift to

In Smith v. Winsor (1909) 239 Ill. 567, 88 N. E. 482, the fact that a power of disposition given to a life tenant was limited to the right to use the property for her own support, comfort, and enjoyment, or for such charitable purposes as she should deem worthy, was taken into consideration, together with other indications of intention, as showing an intention to exclude the life tenant from the class to whom the remainder was limited.

20 Lewis v. Palmer (1918) 167 N. Y. Supp. 1053.

21 Welch V. Howard (1917) 227 Mass. 242, 116 N. E. 492.

22 See United States Trust Co. v. Nathan (1920) 112 Misc. 502, 183 N. Y. Supp. 66, affirmed in (1921) 196

take effect, then is the time when the members of the class are to be ascertained. 23

Where a power of appointment is given in trust to a life tenant for the benefit of a class, it seems that, in default of such appointment, the persons entitled to an execution of the power are those answering the description at the time of the death of the donee of the power, rather than at testator's death. 24 But where such a power was given in the event of failure of a prior limitation of the remainder, it has been held that the property vested in those who were members of the class at testator's decease. 25

III. Instances of application of rule.

a. Preliminary statement. Although the construction of a limitation to heirs, next of kin, etc., is not affected by the circumstance that the gift is contingent (Bird v. Luckie (1850) 8 Hare, 301, 68 Eng. Reprint, 375; Tuttle v. Woolworth (1901) 62 N. J. Eq. 532, 50 Atl. 445), and although it is immaterial whether such a limitation be regarded as an executory devise or a contingent remainder (Buzby's Appeal (1869) 61 Pa. 111), the decisions which follow are arranged, for the purpose of facilitating the finding of parallel cases, with regard to the nature of the gift.

b. Where gift is not contingent. The arrangement of the cases under this heading is, for the purpose of convenience in reference, in order of jurisdictions.

California.

In Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898, testator created a trust to pay half of the income from the trust property to his wife during her lifetime and, upon her decease, to a stepdaughter, and the other half to testator's brother and sisters. He directed that the trust should terminate upon the death of the survivor of such

App. Div. 126, 187 N. Y. Supp. 649, affirmed without opinion in (1922) 233 N. Y. 505, 135 N. E. 894. 23 Bisson West Shore R. Co. (1894) 143 N. Y. 125, 38 N. E. 104. 24 See Harding v. Glyn (1739) 1 Atk

V.

persons, "and upon said termination the said trustee shall convey, deliver, pay and transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the state of California, all of said trust estate." The will was made when the testator was in full health and vigor; and his heirs at law were his widow, brother, sisters, and a niece who was not mentioned in the will. It was held that there was nothing to take the case out of the rule that the heirs to whom a remainder is given are to be ascertained at the death of the testator, rather than at the termination of the precedent estate.

Connecticut.

In Johnson v. Webber (1895) 65 Conn. 501, 33 Atl. 506, where a testatrix, after creating a trust for the benefit of her granddaughters for life, and certain other trusts, provided, “And should there, upon the ending of all the trusts herein, remain anything not by preceding provisions finally and fully disposed of, I give, bequeath, and devise the same to my heirs at law," it was held that persons taking thereunder were the heirs at law of the testatrix upon her decease, since, had she desired such property to go to such persons as might be her heirs at law at the final termination of the trusts, she would naturally have used, in describing them, language somewhat similar in character to that used by her in another provision, in which property was limited at the expiration of a trust estate therein to her "then lineal descendants."

Delaware.

In Doe ex dem. Wright v. Gooden (1881) 6 Houst. 397, where testator, after devising various parcels of real estate to each of his sons for life, and at their decease to his daughters for life, added, "and at the death of my said daughters, I give my beforementioned lands to my heirs forever," it

469, 26 Eng. Reprint, 299, note; Re Saville (1866) 14 Week. Rep. (Eng.) 603; Hoey v. Kenny (1857) 25 Barb. (N. Y.) 396.

25 See Pope v. Whitcombe (1810) 3 Meriv. 689, 36 Eng. Reprint, 264.

Illinois.

In Clark v. Shawen (1901) 190 Ill. 47, 60 N. E. 116, testator, after giving his wife the use of his entire estate for life, directed that after her death it be divided "as hereinafter mentioned;" and, after making certain bequests to his various relatives, directed: "I will that the residue of my estate, if there be any left, be divided according to the statute of the state of Illinois amongst all of my heirs except those above named that I have excluded." It was held that futurity not being annexed to the substance of the gift, and there being nothing in the will to indicate that testator intended to refer to those who should be his heirs at any period subsequent to his death, but, on the other hand (as manifested by the excluding clause), that he evidently had in mind those who should be his heirs at the time of his death, and not those who should be his heirs at some future time, when his wife should die, the property devised by the residuary clause vested in those who were heirs of the testator at the time of his death, except such as were excluded by the express terms of the will.

In Mosier v. Bowser (1907) 226 Ill. 46, 80 N. E. 730, where a testator limited a remainder after a life estate to relations of himself and his wife "according to their heirship," it was held that the heirs of the testator were determined as of the time of his death.

In Smith v. Winsor (1909) 239 III. 567, 88 N. E. 482, testator gave to his wife, in case she should survive him, his entire estate for life, with full power to sell and convey and to use the proceeds or any part thereof in any way she should desire for her comfort or advantage, or for such charit

she should deem

worthy, adding, "At and upon her death, the remainder of the said estate, if any, to descend to my heirs at law in proportion as designated and provided by statutes of the state of Illinois." He further provided that his wife should not be held accountable for the use or disposition of such estate or any part thereof, or the proceeds arising from any sale thereof. In case his wife should not survive him, he directed that his estate should descend to his heirs at law. It was held that the will evinced a clear intention that the persons whom the testator designated by the words "my heirs at law" should take a vested remainder in all his property, subject, however, to be defeated by the exercise of the power of disposition possessed by the widow.

In Pereboom v. Cloyd (1925) 317 Ill. 85, 147 N. E. 382, where testator provided that at the expiration of twenty years from his death, or, should his wife survive him for more than twenty years, at her death, certain real property should be sold and the proceeds "divided among my heirs at law," it was held that the heirs at law were to be determined as of the time of testator's death, such construction being in accordance with the rule that a gift of a future interest to heirs at law means such persons as are heirs at law at the time of testator's death, unless the contrary intention is clearly manifested, and being supported by a further provision of the will that, if his wife should die within twenty years, the residue of the rents should be divided among his heirs at law, which would necessitate the ascertainment of the individuals who are to take as heirs at law prior to the expiration of twenty years.

Iowa.

Under a will by which testator gave a half interest in his estate to his wife for life and at her death to his "legal heirs," the remainder vested in the heirs of the testator immediately upon his death. Mitchell v. Vest (1912) 157 Iowa, 336, 136 N. W. 1054. Kansas.

In Bunting v. Speek (1889) 41 Kan.

424, 3 L.R.A. 690, 21 Pac. 288, where a will provided, "I give to my wife. . . all my estate, real and personal, to have and to hold during her lifetime, and then they are to descend to my legal heirs," it was held that, although the language used was not free from ambiguity, the word "then" did not fix the time when the remainder should vest at the death of the life tenant, but that it vested at the death of the testator.

Kentucky.

In Weil v. King (1907) 31 Ky. L. Rep. 1010, 104 S. W. 380, where testator, after giving his wife certain property for life, provided that at her death it should "be equally divided between my heirs per stirpes," it was held that the remainder vested in those who were testator's heirs at the time of his death.

Maine.

In Merrill v. Wooster (1905) 99 Me. 460, 59 Atl. 596, it is said that, even if the legal title to a fund set apart by executors for the purpose of paying an annuity had been held by trustees expressly appointed, in trust for the life of the annuitant, a gift of the residuary estate to be divided equally between testator's heirs would be construed as a gift to those who were the heirs of the testator at the time of his death.

Maryland.

In Crisp v. Crisp (1884) 61 Md. 149, a devise in trust for the benefit of testator's wife during her natural life, which at her death was to "go to and become the property and estate of such person or persons as would, by the now existing laws of the state of Maryland, be entitled to take an estate in fee simple in lands by descent from me, and the heirs, executors, and administrators of such person or persons, per stirpes, and not per capita," was, in view of the general rule that the law favors the vesting of estates, and the fact that there was nothing in the language of the will or the surrounding circumstances to indicate that the testator intended to fix on any future period for the vesting of the gift, construed as having reference to

those who were testator's heirs at the time of his death,-especially as, by the residuary clause of his will, testator gave the residue "to be divided among my legal heirs, under the laws of the state of Maryland, in the same way that it would without a will."

In Brian v. Tylor (1916) 129 Md. 145, 98 Atl. 532, a testator gave his dwelling house and the lands thereto attached to his wife for life, and provided that at her death "they shall revert to my heirs in direct descent as a common estate, the right of each therein to be according to existing laws. regulating inheritances in this state;" and, after creating trust funds for the benefit of a wife and a cousin during the respective lives of each, went on to provide: "These trusts shall cease at the death of my said wife and my said cousin as they shall respectively occur, and the principal sums of said trust funds, together with any and all interest and income which shall not have been paid to them while living, shall be paid by said trustee to my heirs in direct descent, to be distributed and paid to them in the same shares as though it was the balance of an intestate's personal estate." He also created another trust fund to be used in defending any suits instituted to set aside his will or dispute any of its provisions, and directed that, when his estate should be finally closed, such fund or the remainder thereof "shall be due and payable to my heirs in direct descent, to be distributed to them as though it was the balance of an intestate's personal estate," and gave his residuary estate to his "heirs in direct descent, same to be shared according to laws existing in this state. regulating inheritance and distribution." It was held that the heirs entitled to take upon the termination of the trust in favor of the testator's cousin were those who were such at the time of his death, notwithstanding his use of the added words "to be distributed and paid to them in the same shares as though it was the balance of an intestate's personal estate,❞—especially as, in a codicil, he provided that, in case of a daughter's death without leaving children, the remainder in

property in which he had given her a life estate should go to his "legal heirs then living," showing that he did not intend the limitation to his "heirs" subject to the life estate of the cousin to have the same effect.

Massachusetts.

In Childs v. Russell (1846) 11 Met. 16, a provision by which the testator directed his executor to invest his residuary estate to raise a fund out of which an annuity given to his wife should be paid during her natural life, "and, after her decease, should she survive me, I will and order that all the rest, residue, and remainder of my estate, real, personal, or mixed, and of whatsoever name or nature, shall be divided among my heirs according to law, excepting the share which will by law descend to my daughter," which share was directed to be held in trust for her during her lifetime, and at her decease to be equally divided among her children,-was construed as vesting a right to the distributive shares in those who were testator's heirs at the time of his death; the court emphasizing the fact that while the estate was to remain in the hands of the executor, qua executor, for distribution, charged with the payment of the annuity, it was the subject of the bequest, so that it was to be regarded as an immediate gift, the time for payment only being postponed. The court further rejected the argument that, inasmuch as the annuity was to be paid from the fund, and not from the income, so that it might happen that the whole fund would be exhausted, such provision rendered the gift of the residue contingent, so as to postpone the vesting to the happening of the event.

In Brown v. Lawrence (1849) 3 Cush. 390, where a testator revoked by codicil a devise to a son and his heirs, and gave him in lieu thereof a life interest in the real and personal property theretofore devised to him, "so that no more than the income, interest, or rent of any portion of my real or personal estate, and not the principal of said personal or fee of said real estate, may come to the said Samuel,

my son, which, at his decease, it is my will that the said real and personal estate shall then go to the legal heirs," it was held that the heirs referred to were those of testator himself, and were ascertained at the moment and by the event of the testator's decease.

In Abbott v. Bradstreet (1862) 3 Allen, 587, it was held that no contrary intention can be found in the fact that those to whom a life estate is given are among testator's heirs at law, or that a bequest is given to another heir at law in full of any share to which such person may be entitled out of the estate, which will preclude a bequest of a fund at the decease of testator's last surviving child, "to go and descend to my heirs at law," from being construed as referring to those who are heirs at the time of the testator's decease; but that, on the other hand, the testator's use of the words “go and descend" strengthens such construction.

There is nothing in a testamentary provision by which, after devising the residue of his real estate to his daughters and the survivor of them until death or marriage, testator continued: "After the marriage or death of my surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs," to preclude the application of the rule that a devise to heirs is ordinarily understood to refer to those who are such at the time of testator's death, as the word "then" is not inserted by way of description of the persons who are to take, the word “surviving" not being superadded, but by way of defining the time when they shall come into the enjoyment of that which is devised to them; and the application of such 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. Dove v. Torr (1879) 128 Mass. 38.

The construction of a testamentary provision by which testator, after creating an estate for life in his residuary estate, gave and bequeathed such