atives, in such and the like manner as if the same had been to be paid under the Statute of Distribution; and as to the other moiety or equal half part thereof, I give and bequeath the same unto and equally amongst the legal personal representatives of my said wife, to be paid in manner aforesaid." The son was testator's sole next of kin at the time of his death. It was held that the persons entitled to take were to be ascertained at the death of testator, the master of the rolls saying: "By referring to the statute to point out the persons who are to take, the testator has expressed that those are to take whom the Statute of Distribution designates, that is, certain persons who are living at the death of the person whose estate is to be distributed. Prima facie, therefore, this is the meaning of the testator. There certainly might be words introduced which would specify some other time as the period at which the class was to be ascertained, but there are none here. The case would have been much varied if the words had run 'in such and the like manner as if the same had been then, or at that time, to be paid under the Statute of Distribution,' or even if the words 'were then' had been substituted for the words 'had been;' but it is simply 'in such and the like manner as if the same had been to be paid under the Statute of Distribution,' importing, as far as any time is thereby expressed, a past, rather than a present, ascertainment of the class. The words, therefore, designate the next of kin of the testator who survive him, according as the class is ascertained by the Statute of Distribution."

In Southgate v. Clinch (1858) 27 L. J. Ch. N. S. 651, where a testator left a sum of money to be divided among his three children or the survivors of them upon attaining twenty-one, "but should neither of them attain the age of twenty-one years, I then request the said £2,000 3£ per cent consols to go to my wife for her natural life, and afterwards to my next heir at law," it was held that the person ultimately entitled was one who, at the death of

the testator, was his heir at law, notwithstanding that person was one of the children provided for originally out of the fund, since such provision is not inconsistent with his also taking a benefit out of that fund larger or other than the previous one in different circumstances.

In Harrison v. Harrison (1860) 28 Beav. 21, 54 Eng. Reprint, 273, where a testator, after giving his residuary estate to his widow during widowhood, with remainder to testator's child or children attaining the age of twenty-one, or their issue, provided that, in default thereof, "then and in such case my said trustees and trustee shall stand seised and possessed of my said real and personal estate and effects, from and immediately after the decease or marriage again of my said wife, in trust for such person or persons as shall be my next of kin, according to the statute for the distribution of intestates' effects, his, her, or their heirs, executors, administrators, or assigns, absolutely and forever," it was held that there was nothing to take the words "next of kin" out of their ordinary significance as applying to persons who were such at the time of testator's death, there being no absurdity in the bequest of the remainder to children who were testator's next of kin and the ultimate gift to them in event of death under twenty-one, as practically the estate would go through any child so dying to the same person who would have taken if testator had not inserted the provision.

OW

In Fletcher v. Fletcher (1861) 3 De G. F. & J. 775, 45 Eng. Reprint, 1078, testator gave his residuary estate upon trust to pay an annuity to his widduring her life, and after her death to divide the trust fund among such of his children as should attain the age of twenty-one years, or their issue, "and, in case there shall be no child or the issue of any child of my body living at the time of my decease, then upon trust for such person or persons who, at the determination or failure of the preceding trusts of this my will, would be entitled under the

Statute of Distributions to the said trust estate and premises as my next of kin in case I had then died possessed thereof intestate and without leaving any wife me surviving, in the same shares and proportions as such persons, if more than one, would be entitled thereto by virtue of the same statute." It was held that, there being a provision for the maintenance of the children, which, as there was no trust for accumulation, must have been intended to take effect during her life, the words "after the decease of my wife" could not receive a strict construction; that as the testator must be taken to have contemplated his wife surviving him in accordance with the rule that the death of a legatee in testator's lifetime is not considered to be contemplated unless no other construction will satisfy the words, the words carefully excluding the wife from the ultimate gift point to a distribution in her lifetime, and show that testator meant the whole fund to go to those who were his next of kin at the time of his own death.

Canada.

In Brabant v. Lalonde (1895) 26 Ont. Rep. 379, testator, after giving his only child, a daughter, all his estate, subject to the use thereof by his wife until the daughter should become of age, or should marry, further provided: "In the event of my said daughter Rebecca Lalonde dying without leaving issue, then in that case all of my said property shall be equally divided between my nearest of kin, but with the condition that my said wife shall have and hold the same during her lifetime." It was held that the word "then," introducing the ultimate devise to the nearest of kin, was clearly not intended to be used as an adverb of time, and that the fact that the daughter to whom the fee was given in the first instance would take one third as one of the next of kin did not show that testator intended that the persons to take under the limitation should be other than those answering the description of nearest of kin at the time of his death.

IV. Instances where application precluded by context of will or accompanying circumstances.

a. Preliminary statement.

The introductory observation which heads division III. supra, may here be repeated, that, although the construction of testamentary provisions of the sort under consideration is not dependent upon the character of the estate limited, they are herein arranged with regard thereto for the sake of convenience in reference.

It has been held, however, that the fact that a defeasible fee is given to one who is the sole heir presumptive of the testator furnishes a somewhat stronger reason for holding that the heirs to whom the property is limited over upon certain conditions are 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 the remainder. Welch v. Brimmer (1897) 169 Mass. 204, 47 N. E. 699.

b. Where gift is not contingent.

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

Kentucky.

In Howell v. Ackerman (1889) 89 Ky. 22, 11 S. W. 819, construing a gift to testator's wife for life, and after her death, "then one half of said property to go to my lawful heirs, and the other half of said property to the lawful heirs of my said wife," it was held that one who was the lawful heir of the testator at the time when the widow elected to take present cash value for her life estate in the proceeds of the property devised was properly entitled to one half of the residue of said proceeds.

Maine.

In Cushman v. Goodwin (1901) 95 Me. 353, 50 Atl. 50, a devise upon the decease of the survivor of testator's sisters, to whom he had given estates for life, of all his estate to his heirs then living, to descend and be distributed according to the statutes of the state, was construed apparently

without controversy as a devise to testator's heirs living at the time of the death of the survivor.

Massachusetts.

In Leonard v. Haworth (1898) 171 Mass. 496, 51 N. E. 7, an aged testator whose wife was seventy-two years of age and whose only next of kin was a sister of seventy-four, without living issue, and a brother having two unmarried daughters, after making certain specific bequests which practically exhausted his small personal estate, gave his widow the use of part of his real estate for life, and to his sister the use of the remaining portion thereof for life, and finally directed that "when my wife has deceased and her funeral expenses have been paid, and all the provisions named in this will have been carried out, I will what is left of my estate be divided among my nearest of kin." It was held that, in view of the circumstances that his wife and sister were both old and childless, and that he would naturally expect that they would live about the same length of time, and that when both should be dead there would be no living kin of his blood except his brother and his children the fact, that his sister's husband was alive, and had she taken a vested interest, the effect might be that a portion of testator's estate would not go to his kin, but to a stranger in blood, and the fact that there were no words specifically giving a remainder to next of kin, or explicitly giving the legal title to trustee during the life estates,-—the intention of the testator was that those who should be his nearest blood relations at the death of the survivor of his wife and sister should then take what should be left of his property.

In Fargo v. Miller (1889) 150 Mass. 225, 5 L.R.A. 690, 22 N. E. 1003, it was held that the time of ascertaining the next of kin of a testatrix who were to take under a clause by which the residuary estate was given, subject to legacies and trusts specified in the will, to the next of kin of testatrix's husband and to those of herself, in the proportion of one third to the for

mer and two thirds to the latter, was at the death of her father, who was her sole next of kin while he lived, and not at her own death, where she, in preference to all other legacies, provided in the will for his comfortable support for life, even to the extent of using the whole estate, if necessary, but, in case of his marriage or death, directed distribution at once, whether or not the time would be thus fixed by the mere fact that he was sole next of kin.

In Wood v. Bullard (1890) 151 Mass. 324, 7 L.R.A. 304, 25 N. E. 67, the language of a testamentary provision by which testator's widow, for whose benefit a trust had been created for life, was given power to dispose of the trust fund by will, and in case of her failure to make a will, one half of said trust fund was to be paid at her decease to his heirs at law then surviving, they taking by right of representation, and the other half to the heirs at law of the widow then surviving, they taking by right of representation, was deemed to manifest an intention that the heirs referred to should be determined as of the time of the death of the widow, and not that of the testator, it being impossible to consider the remainder as vested, and it being apparent that testator was not willing that, in default of his wife's leaving a will, the fund should go as intestate property.

In Peck v. Carlton (1891) 154 Mass. 231, 28 N. E. 166, it was held that the natural interpretation of a provision by which a testator, by the residuary clause of his will, left property upon trust to pay the income to his wife and other persons during her life, and, as soon after the decease of his wife as should be expedient, to convert the estate into money, "and to pay over the proceeds of such sale and disposition to my legal heirs in the same proportion as they would have inherited the same in case I had died the survivor of my said wife, and intestate," was that the same persons are to receive the property, and to receive it in the same proportions, as if testator had died immediately after the decease of his wife; and that it was not

to be construed simply as meaning that the widow should be excluded.

In Welch v. Howard (1917) 227 Mass. 242, 116 N. E. 492, testator, after making certain provisions for the payment of the income of the trust estate to his wife, to his children, or to their issue, and to a brother and nephew, provided as follows: "Upon the decease or marriage of my said wife and the decease of the last survivor of my said four children, my trustees shall divide and distribute all said trust property and estate among my heirs at law according to the statutes which shall then be in force in said commonwealth regulatting the distribution of intestate estates," subject to the provision for the brother and nephew if then living. It was held that an intention that the remainder should go to those persons who would have been heirs at law of the testator if he had died immediately after the death of the last survivor of his four children manifestly appeared from the express direction for distribution "according to the statutes which shall then be in force;" such construction being further supported by the consideration that otherwise the expressed intent that the interest of the widow in the estate should determine absolutely on remarriage would be defeated, and by the fact that the testator's heirs apparent at the time of his death were his widow and children, to whom the life interests were given.

In Carr v. New England Anti-Vivisection Soc. (1919) 234 Mass. 217, 125 N. E. 159, a will by which testator gave his entire estate in trust to his wife for life, and upon her death gave it "to my heirs at law then living, said heirs to take the same as by the statutes of descent and distribution of this commonwealth made and provided," was held to evince an intention that the persons to take should be determined as of the date of the termination of the life estate. Mississippi.

In Beck v. Booth (1926) Miss. 110 So. 204, where testator devised certain property to his wife for life, adding, "And at her death this prop

erty to return to my estate and be a part of same, to be equally divided among my heirs who may be living at that time," it was held that the language in the will made it plain that the estate was to vest in his heirs at the death of the widow.

New Jersey.

In 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, testatrix, an aged woman, having a son who was at the date of the will and at her death her sole heir and next of kin, gave the residue of her estate, after the payment of debts and general expenses, in trust from out of the income to pay the expense of the education of a grandniece, and to pay the remainder of the income to her son as long as he lived, and, if he at any time through illness or personal injury should be in such circumstances that the income would be insufficient for his needs, the trustees were empowered to use for his benefit such part of the corpus as they might deem necessary. She further provided that "at and after the death of my said son I direct my said executors to distribute my estate among my legal heirs and next of kin who shall be at law entitled to the same, as though I died intestate." It was held that the power given the trustees to use the corpus for the son's benefit, thereby showing that she did not expect that he would take as an heir, the use of the word "shall," and the use of expressions indicating an expectation that the property would be divided among several persons,-showed that she intended the heirs and next of kin to be ascertained as of the time of the son's decease.

tives, and to whom I give, devise and bequeath the same accordingly," it was held that the "legal personal heirs and representatives" of the testatrix were not to be determined as of the time of her death, where the effect of such construction would be to give the husband the whole of the personalty. In reaching this conclusion the court relied on the fact that the distribution was to be made "upon his death," "among" (a word indicative of a plurality of beneficiaries) heirs and representatives described as "personal," thereby indicating blood relatives, as distinguished from relatives by marriage.

New York.

In Bisson v. West Shore R. Co. (1894) 143 N. Y. 125, 38 N. E. 104, it was held, construing a provision by which testator gave his wife an estate during widowhood, "and from and after her decease or marriage (which shall first happen) I give, devise, and bequeath all my said real estate unto my heirs and my said wife Maria Bernhardina's heirs, their heirs and assigns forever, share and share alike," that, the termination of the life estate given to the widow being the time fixed for the gift to take effect, then was the time when the persons would be ascertained who, coming under the description of heirs of testator, would be entitled to share with the heirs of his widow in distribution of the estate.

In Hoey v. Kenny (1857) 25 Barb. 396, where a testator devised property to his widow for life, and by her to be divided and distributed by will among testator's relatives in such shares as she might see fit, it was held that since the wife's selection of the relatives might be among those who might be living at her decease, and would not be limited to those living at the testator's death, the law would, upon her failure to exercise such power, distribute the property among the relatives living at her decease.

In Re Southworth (1906) 52 Misc. 86, 102 N. Y. Supp. 447, a direction that, upon the termination of a trust, the principal and any accrued interest remaining unexpended should be paid.

over to the testator's heirs, was held to manifest an intention that it should be paid to those who should be heirs at the time of distribution, since he could not have intended unexpended interest remaining at the death of the life tenant should vest before it was in existence.

In Re Bowers (1905) 109 App. Div. 566, 96 N. Y. Supp. 562, affirmed on opinion below in (1906) 184 N. Y. 574, 77 N. E. 1182, where a testator created a trust in his residuary estate for the benefit of a certain person for and during her natural life, and further provided that, after the death of such person, the trustees should "transfer, set over, and convey my entire residuary estate, with all accumulations of income then on hand, to my heirs at law and next of kin, whomsoever they may be," it was held that, the gift over being after the death of the life tenant, and being found only in the direction to convey, and in view of the employment of the phrase "whomsoever they may be," it was plainly testator's intention that the persons entitled under the limitation over should not be ascertained until after the death of the life beneficiary. In Re Newman (1924) 68 Cal. App. 420, 229 Pac. 898, the case of Re Bowers, supra, was said to be contrary to the rule announced by the New York court of appeals in Re Bump (1922) 234 N. Y. 60, 136 N. E. 295.

In Re Senn (1917) 164 N. Y Supp. 399, affirmed in (1918) 184 App. Div. 936, 170 N. Y. Supp. 1111, where testatrix gave her residuary estate "to be paid after all the foregoing bequests, legacies, trusts, and income for life have been fully paid and ended, to those persons who at that time under the laws of the state of New York shall constitute the heirs at law of myself and my late husband," it was held that the bequest was one to persons answering the description at the time of distribution.

In Lewis v. Palmer (1917) 167 N. Y. Supp. 1053, where testatrix bequeathed certain securities in trust to pay over the interest thereon to her adopted daughter during her life, adding: "And at her death I direct the