father of the grandson; that the argument that such construction was to allow in effect no operation to the gift to the next of kin, as the testator was when he made his will, and remained, a widower, while of weight in some cases, was of no force as applied to the will under consideration; and that the reference in the will to a plurality or possible plurality of persons as the testator's next of kin made no difference, as the testator might have contemplated the possibility of the grandson's death in his own lifetime.

In Re Barber (1852) 1 Smale & G. 118, 65 Eng. Reprint, 52, where testator, after bequeathing his personal estate upon trust to pay the income therefrom to three several persons, one of whom was his sole next of kin at the time of his death, during their lives and the life of the survivor, and after the decease of the survivor to pay the principal to the children of one of them upon their attaining the age of twenty-one, further provided that, in default of such children, "then the said trust moneys shall go to and be divided among all and every of my next of kindred who shall be in equal degree, and those who shall legally represent them, according to the statute of distribution of intestates' effects in case I had died possessed thereof and intestate," it was held that there was nothing on the face of the will to induce the court to give the words "next of kindred" any other than their natural construction, as meaning those who were such at the death of testator, notwithstanding the fact that his sole next of kin at such time was the object of a distinct provision, or the fact that testator used the plural number, as it is possible. that, though he knew that at the date of his will he had but one next of kin, he might have supposed that, at the time of his decease, he might have several.

In Cable v. Cable (1853) 16 Beav. 507, 51 Eng. Reprint, 874, testator gave his residuary estate in trust for his wife for life, remainder to his children living at his decease, but in case he should have no child at his death, then and in such case he directed that

the trust fund should, from and immediately after his wife's decease, become the property of the person or persons who should then become entitled to take out administration on his effects as his personal representative or representatives, according to the provision of the statúte of distribution of intestates' effects, and in the proportion pointed out by the said statute, in case he had died intestate and unmarried. It was held that the word "then" must be construed as relating to the event, and not the time of distribution; and that the ultimate limitation was to those who were next of kin at the death of testator, and not at the death of the life tenant, since there is always the difficulty, in fixing the death of the tenant for life as the period at which the next of kin of a testator are to be determined, that the words "if the testator had died then" must be introduced, and since the latter construction would produce a contradiction between the members of the sentence, as in that case the fund could not be divided in the same proportions as directed by the statute; that the word "unmarried" strengthens the construction, as it seems introduced to exclude the widow, who was otherwise provided for, and would, but for this, be entitled under the statute at the death of the testator, but not at her own death.

In Markham v. Ivatt (1855) 20 Beav. 579, 52 Eng. Reprint, 727, a testamentary provision by which a leasehold was bequeathed upon trust for testatrix's daughter, who was her sole next of kin, and to convey it as she should by deed or will appoint, and, in default of such appointment, then upon further trust to dispose thereof to and amongst the nearest kindred of testatrix precisely in the manner directed by statute made for distribution of intestate's effects, was construed as a gift to those who were next of kin at the time of the testatrix's death.

In Starr v. Newberry (1857) 23 Beav. 436, 53 Eng. Reprint, 172, where testator gave the residue of his personal estate in trust for his wife, and on her death or marriage in trust for his children during minority, and to

them absolutely upon attaining the age of twenty-one, and, upon failure of such limitations, to pay such trust moneys "to such person and persons as might be legally entitled to the same under the Statute of Distributions," it was held that there was a clear and distinct expression that, in the event stated, testator intended the property to go as if he had died intestate; and therefore that the class was to be ascertained at the time of his death, and not the death of his only child.

In Bullock v. Downes (1860) 9 H. L. Cas. 1, 11 Eng. Reprint, 627, testator left his residuary estate in trust to pay the dividends to his son for life, and after the son's decease to pay any widow of the son an annuity, and the residue to his son's children, and in case there should not be any child of the son, "then to stand possessed of the same in trust for such person or persons of the blood of me as would, by virtue of the statutes of distributions of intestates' effects, have become and been then entitled thereto in case I had died intestate." It was held that neither the consideration that the son was himself one of the next of kin, nor the use of the words "then entitled," as describing the person to take in the event of the son dying without issue, was sufficient to affect the general rule of construction that the next of kin referred to are prima facie those at testator's death, and not those who may happen to answer that description at the termination of the preceding particular interests.

In Re Lang (1861) 9 Week. Rep. 589, a testator gave property to his daughter for life, with remainder to her issue, and if there should be no child of the daughter who should attain twenty-one or leave issue, then "unto my own personal representatives and next of kin forever, to be assigned, distributed, and paid according to the Statute of Distributions." At the date of the will and of the testator's death the daughter was his sole next of kin. It was held that there was no indication of a gift to a class living at the death of the daughter, rather than an intention that the property was to go

as in case of intestacy, and that, although it was not to be supposed that the testator intended to designate his daughter by such a periphrasis, such fact was not inconsistent with an intent to leave the law to take its effect.

In Royds v. Royds (1859) 1 New Reports, 516, where the bequest was to testator's daughter for life, remainder to her children, and, in default of such children or their issue, "then to pay the same according to the statutes of distribution of intestates' effects," it was held that the next of kin at the time of testator's death were clearly entitled; and that it was not an inconsistency that the testator might have meant that his next of kin should participate in a particular portion of his estate, although he had left a residuary legatee who might probably have taken a large share of that estate.

In Michell v. Bridges (1865) 13 Week. Rep. 200, testator gave his real and personal estate upon trust for his wife for life and after her decease for his daughter for life, and for her husband and children, and, in case the daughter should die without lawful issue attaining the age of twenty-one, directed that the personal estate should be in trust "for the person or persons who, under the statutes made for the distribution of the estates of intestates, would then be entitled thereto if I were to die possessed thereof and intestate, and to be divided between or among them, if more than one, in the shares in which the same would be divisible under the same statute." It was held that, with respect to the words "if I were to die," they were an hypothesis, not as to death only, but as to death under particular circumstances; that the case was governed by Bullock v. Downes, supra, and the persons entitled to take were the next of kin at the death of testator.

In Mortimore v. Mortimore (1879) L. R. 4 App. Cas. 448 (which affirms (1877) L. R. 7 Ch. Div. 322), testator created trusts for each of his daughters for life, remainder to the children of each after her decease, and in case any should die without leaving issue her surviving, then to the survivor

or survivors for life, and from and immediately after the decease of the last surviving daughter, to pay and divide the principal among her chilren, "and if there shall be no such children, that the sum be paid to such person or persons as will then be entitled to receive the same as my next of kin under the statute for the distribution of intestates' estates." The testator's daughters were his sole next of kin at the time of his death. It was held that the case was governed by the decision in Bullock v. Downes, supra; that even though the word "then" be regarded as meaning at the expiration of the preceding limitation, it simply has reference to the time of ascertaining the members of the class, and not the time as of which such membership is to be determined; and that the phrase "my next of kin under the statute for the distribution of intestates' estates" describes the class which, according to the statute, must be ascertained at the death of the testator.

In Re Ford (1894) 72 L. T. N. S. 5,— C. A., testator devised various parcels of his real estate upon trust for divers of his children for life, remainder to the children or child of each who, being a son or sons, should attain twenty-one, or, being a daughter or daughters, should attain that age or marry, and in default of issue, to the others of testator's children successively for their lives, and for their respective children, and if all the testator's children should die without leaving issue who should acquire a vested interest, then in trust for testator's own right heirs according to the nature of the said property. The will contained a declaration that it should not be lawful for any son or daughter to sell or encumber his or her life interest, and that if any of them should so sell or encumber, the interest should thereupon cease and be held in trust for his or her brother and sisters and his or her issue as if he or she had died. It was held that neither the absence of a reference to the Statute of Distributions, nor the provision against alienation or encumbrance of the respective life estates, was a sufficient reason for departing from the general rule that

membership in a class is to be ascertained at the time of testator's death, and not at the period of distribution, even though the persons who thus become entitled under the ultimate limitation take particular interests under the will.

In Re Frith (1901) 85 L. T. N. S. 455, it was held that there was nothing to make the case an exception to the general rule that the "heir" means the heir of testator at the time of his death, in a will by which a testator, after giving his eldest son (who was his heir at law) a life estate in certain property, directed that, when his son's children should have all departed this life, then that such property should be sold and the proceeds equally divided "among my then surviving grandchildren, share and share alike, and, in case no grandchildren of mine be then living, it shall become the property of the heir at law."

The time for ascertaining the persons to whom a trust fund is ultimately limited by a will which gives a life interest to testator's nephew and certain contingent interests to the children or issue of the nephew on their attaining twenty-one, or, in the case of daughters, marrying, and declares that if no child or other issue of the nephew shall ever attain a vested interest, the fund is to be held "in trust for such person or persons as, on the death of my said nephew Samuel Eyres Wilson, will be entitled to [sic] as my next of kin under the statute for the distribution of intestates' estates," is at the death of testator, and not that of the nephew, though the effect of such construction is to vest the absolute title in the nephew, subject to be devested in the event of any child attaining a vested interest; since the only persons who can be entitled as "next of kin under the statute" must, according to the express language of that statute, be ascertained at testator's death; and the clear words of the gift to such persons cannot be cut down by the phrase, "on the death of my said nephew," which, 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. Re Wilson [1907] 2 Ch. 572-C. A.

Canada,

In Re Ferguson (1897) 28 Can. S. C. 38, a testator devised the bulk of his estate to executors, to be held for the use of his wife and daughter jointly so long as both survived and his widow remained unmarried, and in the event of the widow remaining unmarried and surviving the daughter, for her use for life, and in case the daughter survived her mother, then for the use of the daughter as her separate estate, with power to dispose of the same by will in case she should marry, and further directed: "In case my daughter shall have died without leaving issue her surviving, and without having made a will as aforesaid, my trustees shall, after the death of my wife, if she survive my said daughter, sell all my estate, real and personal, and divide the same equally amongst my own right heirs who may prove to the satisfaction of my said trustees their relationship within six months from the death of my wife or daughter, whichever may last take place." It was held that, although the clause in question was not free from doubt, upon the whole there did not appear, either in the will or from the fact the daughter was testator's right heir, any sufficient indication that the expression was used in other than its natural sense, as referring to those entitled to take at testator's death.

In Mays v. Carroll (1887) 14 Ont. Rep. 699, testator, after devising his property in trust for his daughter for life, with remainder to her children, provided: "And if she have no children, then the said property to fall to my next of kin who may be living on this continent." In another clause of the will he provided that should his daughter become the mother of an illegitimate child, "then, notwithstanding anything heretofore provided, I will and direct that neither she

nor any of her children shall receive any portion of my property; and in such case my whole property shall be given to my said wife absolutely, or

if my said wife at that time be dead, then the property to go to my nearest of kin, as above provided." The daughter was testator's sole next of kin at the time of his death. The word "then" being plainly not used in either of the clauses above quoted as an adverb of time, and the clause last quoted being regarded simply as excluding the daughter in the contingency specified, it was held that there was nothing in the will sufficient to take the case out of the general rule that next of kin are to be ascertained as of the time of testator's death.

In Jost v. McNutt (1893) 40 N. S. 41, testator created a trust to pay the income to his wife during her life, and after her death to his son, and after his death to divide the principal equally among the son's children as they should respectively attain the age of twenty-one. The trustees were further authorized to advance not to exceed a certain sum from the principal to set up the son in business. Testator further provided: “But if he shall die childless, then it is my will that said principal sum . . be divided as follows: one third thereof to my heirs at law and the remaining two thirds thereof" for certain charitable purposes. It was held that, notwithstanding the use of the word "then," which was construed as referring to the event, and not the time, and the facts that the son was testator's sole heir at law at the time of his death, and that testator manifested an intention to prevent the capital from coming into the hands of the son, the limitation over must be construed as to those who were testator's heirs at the time of his death.

Georgia.

2. Executory limitations.

In Clifton v. Holton (1859) 27 Ga. 321, where a testator provided that in case his son should die before arriving at twenty-one years of age, without issue, the property given him should go to testator's "blood relations of nearest kin, to be equally divided among them," it was held that such relations are to be ascertained and fixed at the time of testator's

death, and not the death of his son; although it was stated to be a rather disputable point.

England.

In Wilkinson v. Garrett (1846) 2 Colly. Ch. Cas. 643, 63 Eng. Reprint, 898, testator devised property upon trust to pay an annuity to his widow, and subject to such annuity, upon trust for his only son when he should attain the age of twenty-five years, and in case he should die after the age of twenty-one, but before the age of twenty-five, then, upon trust for such persons as the son should appoint, and in default of such appointment, or in the event of the son's death before attaining the age of twenty-five without lawful issue, "then upon trust as to my said real and personal estate for my own heirs, executors, administrators, and assigns according to the notice thereof respectively." The testator's son and widow were at his death his next of kin according to the Statute of Distribution. It was held that there was no sufficient indication in favor of any other persons than those who would be entitled to the property under the ultimate limitation at the time of testator's death to justify the court in supposing that he intended to benefit any other class of persons; but that, on the other hand, it might conjecture that the testator contemplated the possibility of the son dying in his lifetime, leaving children, or of testator having other children living at his death, or that he might have had an intention in favor of his widow which would be disappointed by construing the words to refer to the death of the son.

In Seifferth v. Badham (1846) 9 Beav. 370, 50 Eng. Reprint, 386, where a testator gave his residuary estate in trust, first for his wife during widowhood, and after her decease or marriage to apply the income for the maintenance and education of his children until they should attain the age of twenty-one, when the share of each should be transferred to him or his issue, and if all testator's children should die without issue, then upon trust to release testator's real estate unto and to the use of his heir at law, 49 A.L.R.-15.

and to assign his personal estate unto and equally between his next of kin according to the Statute of Distributions, it was held that there was nothing on the face of the will, or in the fact that testator's children were his heirs at law and next of kin at the time of his death, to alter the plain construction of the language under which the words mean the next of kin at the time of testator's death.

In Murphy v. Donegan (1846) 3 Jones & L. (Ir.) 354, where a testatrix bequeathed all her personal estate upon trust for her granddaughter (not, however, naming her as such) until she should become of age or be married, when the trust fund was to be handed over to her, further providing: "In case said Elizabeth shall die under age, unmarried, I leave, devise, and bequeath the said principal money and interest to my next of kin, share and share alike, as tenants in common, and not as joint tenants and if but one, the whole to such one,"—it was held that, as testatrix had made no mention of the relationship which subsisted between herself and the beneficiary, but described her as the child of certain parents and as the niece of other persons, it could not be assumed that she had a knowledge that the granddaughter was her next of kin; and that, as the gift itself provides for the two events of the next of kin consisting of several persons or of one person only, there is nothing to show an intention to use the words "next of kin" in any other than their natural import as designating those living at the death of the testatrix.

In Holloway v. Radcliffe (1857) 23 Beav. 163, 53 Eng. Reprint, 64, testator gave his estate to his wife for life, and from and after her decease to his son, if then living, upon his attaining the age of twenty-one, but in case of the son's death in the lifetime of the wife, or before attaining the age of twenty-one, the estate was directed to be sold, "and as to the money to arise from such sale or sales, after payment of all expenses attending the same, I give and bequeath one moiety or equal half part thereof unto and equally amongst my legal personal represent