without lawful issue, or leaving such, all of them shall die under the age of twenty-one years without leaving any lawful issue, then I direct my said trustees, their executors, etc., to pay one equal half part of all the said trust moneys unto the person or persons that shall then be considered as my next of kin and personal representative or representatives, agreeable to the order of the Statute of Distributions, and the whole of the other equal part or share unto the person or persons that shall then be considered the next of kin and personal representative or representatives of my late wife agreeable to the order of the statute of distributions." It was held, after an extensive review of the decisions bearing upon the question, that while it is the general rule, based upon the broad principle of construction by which all gifts to a class following after a bequest for life in the same property vest immediately upon the death of the testator, that where there is a limitation by will to one for life, and after his decease, then to the next of kin of testator, those who are to take under the designation "next of kin" are the persons who answer that description at the death of testator, and not those who answer that description at the death of the tenant for life, and while the operation of such rule of construction is not excluded by the mere circumstance that words of futurity are used, or by the circumstance that the first taker would be one of the class to take if the persons it comprised were to be ascertained at the death of the testator, yet that there was in the case before the court sufficient to show that testator intended the persons entitled under the ultimate limitation to be ascertained at the time of distribution. This conclusion is based upon the ground that it was extremely unlikely that the testator would take so circuitous a method of giving his daughter a residue in event of her dying without children, instead of directly saying so (although that reason, taken alone, would not be of sufficient weight to prevent the application of the general rule); upon the fact that

the word "then," being twice used, and first as marking the conjunction of circumstances, must in the second instance be read as an adverb of time, the force of which cannot be exhausted by construing it as denoting the time when the inquiry was to be made; and upon the further ground that if the persons entitled to take under the bequest to the next of kin of his deceased wife were to be deter. mined at the time of his death, it would have been more natural for the testator to limit the estate directly to his daughters, who, of course, were the sole next of kin of the deceased wife, instead of adopting circuitous mode of expression.

In Lees v. Massey (1861) 3 De G. F. & J. 113, 45 Eng. Reprint, 821, a testator, by a will executed very shortly before his death, devised his real estate upon trust to pay a moiety of the rents to his wife for life, and to apply the other moiety toward the maintenance of his daughter, who was his only child; and, after the decease of his wife, gave all the real estate to his daughter, her heirs and assigns forever; adding: "Provided, nevertheless, that in case of the decease of my said daughter . . . without lawful issue, and my said wife . . . her surviving, then and in such case I bequeath such last-mentioned estates to her, my said wife, for life, and, after her decease to my relations, share and share alike." It was held that the limitations in the will were inconsistent with an intention that the class designated as "my relations," who were to take "share and share alike," should be ascertained at his

own

death; as he must have known that his daughter would be his sole heir and sole next of kin at that time.

In Re Greenwood (1861) 31 L. J. Ch. N. S. 119, where testator gave a sum of money in trust for his daughter for life, and after her decease for the use of her husband and children, and in case she should not have any child or children, or that none of them should attain a vested interest in the trust fund, "then to assign and transfer the said stocks, funds, and securities, and all accumulations, if any, of the inter

est and dividends thereof, unto such person or persons as shall happen to be my next of kin according to the statute for the distribution of intestates' estates." Testator's next of kin at the time of his death were his four children. It was was held, following Briden v. Hewlett (1831) 2 Myl. & K. 90, 39 Eng. Reprint, 878, and Butler v. Bushnell (1834) 3 Myl. & K. 232, 40 Eng. Reprint, 88, that it was not probable that testator should mean to include as one of his next of kin the person upon whose death without issue he had expressly directed that the property should go over; and therefore that the class entitled under the ultimate limitation was to be ascertained as of the date of the daughter's death.

A clear expression of intention of testatrix that the next of kin should be ascertained at the death of the tenant for life, and not at her own death, was held, in Travis v. Taylor (1866) 14 Week. Rep. 909, to be manifested by a will by which testatrix, after giving a life estate to a niece, with remainder to her children, provided: "If my said niece shall happen to die without leaving lawful issue as aforesaid, that then the whole of my said estate and effects ... shall go and belong to such person or persons as shall then be my next of kin in a course of administration according to the statute of distribution of intestates' personal effects."

In Clowes v. Hilliard (1876) L. R. 4 Ch. Div. 413, testator created a trust for each of his daughters for life, remainder to their respective issue, with cross remainders between them, the issue to take vested interests at twenty-one or marriage, and further declared that if all his daughters should die without having any child or issue who should acquire a vested interest in the premises, then that the trustees should stand possessed in trust "for such person or persons as would have been entitled to the residue of my trust estate under and according to the Statute of Distributions in case I had then died intestate." The court, in holding that those who, as some of testator's next of kin, would be en

titled under the limitation over if his four daughters, who were all living and unmarried, were dead without issue, had no such interest as entitled them to institute an action for administration, said that the gift was to those persons who might answer the description of the testator's next of kin at the period when all his four daughters should have died, and, as to three of them, without issue who should have acquired vested interests.

An artificial class was held, in Sturge v. Great Western R. Co. (1881) L. R. 19 Ch. Div. 444, to have been created by the provisions of a will by which testator directed property to be held in trust for the benefit of each of his children for life, with remainder to their issue, etc., and in default of the previous limitations "upon trust for the person or persons who, at the time of such respective decease of my children, shall, by virtue of the statutes for the distribution of the estates of persons dying intestate, be my next of kin; and if more than one, then in the shares, proportions, and manner prescribed by the said statutes," the court saying: "It appears to me that the corresponding words here, 'who, at the time of such respective decease of my children, shall,' etc., import that the class was to be ascertained at that time. It seems to me to follow as a matter of course that we have got an artificial class, artificial in the sense that you must suppose that the testator was looking to a class who would be ascertained at the time he designated and at no other time; and that, although we find in this case a reference to the 'shares, proportions, and manner prescribed by the statutes,' yet those words must give way for the purpose of ascertaining the class at another point of time than that of the death of the testator, at which the statute would ascertain them."

In Re Helsby (1914) 112 L. T. N. S. 539, where testatrix gave her residuary estate upon trust to pay the income to her daughter during her life, and after her decease upon trust for her issue, and, in default of issue, upon trust "to pay or divide the same to or among such one or more of the

persons who at the time of my daughter's decease shall be my next of kin according to the statutes for the distribution of intestates' effects," it was held that testatrix contemplated division among an artificial class of next of kin to be ascertained at the death of the daughter, the reference to the statutes of distribution merely indicating the mode in which the class was to be determined.

In Hutchinson v. National Refuges for Homeless & Destitute Children [1920] A. C. 794 H. L. reversing [1919] 2 Ch. 17 C. A., where testator, who had given his residuary personal estate upon trust for his wife during widowhood, and then upon trust in equal thirds for his three daughters for life, with remainder to their children, and with cross gifts between them, further directed "that, on failure of all the trusts hereinbefore declared of the residue of my personal estate, such residue shall be in trust for such person or persons as on the failure of such trusts shall be my next of kin and entitled to my personal estate under the statutes for the distribution of personal estate of intestates, such persons, if more than one, to take distributively according to the said statutes," it was held that the persons entitled to take under the ultimate gift were an artificial class, comprising those who would have been the next of kin of the testator under the Statute of Distributions if he had died at the date of the failure of the antecedent trust. Ireland.

In Valentine v. Fitzsimons [1894] 1 Ir. R. 93, where a testator directed that the residue of his property should, at the death of his wife, or at the expiration of ten years from his death, whichever should last happen, be held by his trustees on trust as to a moiety thereof for each of his sons absolutely, and, in the event of either of the sons being dead or having encumbered the provision theretofore made for him by the will, then in trust for all or any of his relations by blood, then living, excluding such son, as the then trustees of his will should appoint, and in default of appointment,

"in trust for the persons who would then be my next of kin according to the statutes of distribution of the personal estates of intestates if my son were then dead, such persons, if more than one, to take as tenants in common in the share prescribed by the said statutes." It was held that as the word "then" was used, if not in the first instance, at least in the second, as an adverb of time, the next of kin were to be ascertained as of the date of ten years after the death of testator; and that the reference to the Statute of Distributions, not being to such statute as conferring title, was insufficient to limit the meaning of such word.

Canada.

In Re Karn (1903) 2 Ont. Week. Rep. 841, where testator devised certain real estate to his daughter for life, with remainder to his granddaughters, "but, if my said granddaughter Louisa be not then alive, the same I give and bequeath to her children lawfully begotten, in fee, but failing such children then alive, to my own right heirs absolutely forever," it was held that the word "then," twice used, referred to the death of the daughter, and therefore that the right heirs intended were those existing at the date of her death.

2. Executory limitations.

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

Massachusetts.

In Welch v. Brimmer (1897) 169 Mass. 204, 47 N. E. 699, testator gave his son, who was his only heir, a moiety of his estate, to be held in trust for him until he should attain the age of twenty-three, and added: "Provided, however, that in case my said son shall die having no issue him surviving, or such issue shall decease during minority, then and in either of such cases my will is that my sister, Eliza Oliver, shall have and take the said moiety of my estate and its accumulations hereinbefore given to my said son, and, if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the

person or persons who shall be my heir or heirs at law." The other moiety of the estate was given to the sister for life, with remainder to the son or his issue, with a similar limitation over to testator's heir or heirs at law. It was held that the fact that the son, who was the sole heir presumptive of the testator when the will was made, was given a fee, furnished a somewhat stronger reason for holding that the heirs were 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 a remainder; and that the repeated use by the testator of the word "shall" in the clause quoted, and the concluding portion of such clause, in which the word "then" relates to the time of the death of the son, tended to confirm the conclusion that the testator must have intended his heir or heirs living at the time of the death of his son.

New Hampshire.

In Pinkham v. Blair (1876) 57 N. H. 226, it was held that where the only next of kin of testator at the time of his own decease were three children, to whom he devised his estate in fee, a provision that, in the event of the death of all his children, without issue, "then my will is that said estate shall go to my next of kin, and their heirs and assigns forever," had reference to those who should be his next of kin at the time of the death of the last survivor of his children without issue. New York.

In Delaney v. McCormack (1882) 88 N. Y. 174, a testator gave his son the whole of his real estate for life, and absolutely and in fee in case the son married and had issue, but if he should die without having had lawful issue, the testator directed his executors who should then be surviving, or the last survivor of them, to sell his real estate and distribute the proceeds among the testator's "next of kin as personal estate according to the laws. of the state of New York for distribution of intestate personal estate." It was held that the gift not being immediate, but conditioned upon the death

of the son without having had lawful issue, and the fact that as, at the death of the son, the land was to be converted into personalty, and distributed as such, the subject of the gift did not come into existence until after the son's death, as well as the incongruity of a construction which would give the property to the son, who was testator's sole next of kin at the time of his death, upon the death of such son without issue, all went to show that the next of kin to whom the proceeds were to be distributed were those who were such at the date of the son's death.

Rhode Island.

In De Wolf v. Middleton (1895) 18 R. I. 810, 31 L.R.A. 146, 26 Atl. 44, 31 Atl. 271, a will by which testator gave his daughters a defeasible fee, providing that if they should leave no surviving heir, his estate "on their decease" should "be divided among my heirs at law according to the statute of descents," was held to manifest an intent that testator's heirs should be ascertained as of the time of the death of the daughters, notwithstanding the use of the words "according to the statute of descents."

In Green v. Edwards (1910) 31 R. I. 1, 77 Atl. 188, Ann. Cas. 1912B, 41, where testator, after giving equitable estates in fee tail to his three children, with contingent cross remainders to the survivors or their descendants if either child died without issue, provided that "in case of the death of all my said children without issue, they [the trustees] shall transfer and convey the estate held by them in trust to my heirs at law according to the statutes of descent and distribution then in force in the state of Rhode Island," it was held that a vested remainder was given to heirs at law to be then designated.

Vermont.

In the reported case (RE HENRY, ante, 169) testatrix gave a sum of money in trust for a certain charitable purpose, directing the trust fund and the income thereof to be held by the trustees for the period of five years after the decease of the last survivor of

her brothers and sisters, and further directed that "if at the end of said term of five years above named the funds and accrued income and funds otherwise received shall not have been sufficient, in the judgment of said trustees, to warrant the establishment and maintenance of such a home, then all the property bequeathed by me for that purpose I bequeath to my heirs." It was held that, as it would not be certain until the expiration of the five years whether the heirs would take or not, futurity was annexed to the substance of the gift over; and that the fact that the fund was not to be distributed until five years after the death of the brother and sisters of the testatrix, when her only living heirs would be her nephews and nieces, tended to show that, by the words "my heirs" used in the gifts over, testatrix intended those persons who should be living at the time the trust was terminated, rather than those who were living at the time of her death.

England.

In Doe ex dem. King v. Frost (1820) 3 Barn. & Ald. 546, 106 Eng. Reprint, 761, where a testator, having a son and married daughter who had five children, devised to his son in fee, adding: "And if the said W. Frost [his son] should have no children, child, or issue, the said estate is, on the decease of the said W. Frost, to become the property of the heir at law, subject to such legacies as the said W. Frost may leave by will to any of the younger branches of the family,"-the will, in the light of surrounding circumstances, was held sufficiently to manifest an intention that the expression, "the heir at law," should mean the person who, at the time of the son's decease without issue, should then be the heir at law of the testator, it being clear that the son himself could not be meant as the heir at law, as then the devise over would be nugatory, and the power of leaving legacies unnecessary.

In White v. Springett (1869) L. R. 4 Ch. 300C. A., where testator gave his estate to such of his three grandchildren as should survive their father and attain twenty-five, but di

rected that in case two only of them should die in the lifetime of their father, or under twenty-five, and the amount to which the surviving grandchild would then become entitled should exceed a certain sum, then the excess should go to the person or persons exclusive of the surviving grandchild "who, under the said statute for the distribution of personal estates of intestates, would, immediately after the decease of the survivor of my other two grandchildren, be entitled to my personal estate in case I had at such time died intestate," it was contended that it having turned out that the surviving grandchild was testator's sole next of kin at the time of the decease of the survivor of the other two grandchildren, and as such grandchildren were excepted from the class, the gift failed for want of a member of the class; but it was held that the testator, in the clause under discussion, did not say that the surviving grandchild was to be excluded from the class entitled, but that he had created for himself an arbitrary class, to be ascertained by applying the statute to a particular time in order to arrive at the particular class of persons, without any reference to any division of the estate, or any exclusion of the particular person from taking a share; and therefore that the persons entitled under the limitation were those who would have been next of kin had the surviving grandchild also been dead at the time when the class was to be ascertained. V. Instances in which members of class are ascertained at testator's death, but take only in event of surviving distribution.

This subdivision may be prefaced with much the same statement as the one preceding, that the decisions which follow should be regarded only as instancing the application to cases of the type falling within the scope of this annotation, of general principles common to all testamentary gifts to a class.

Connecticut.

In Beardsley v. Fairchild (1913) 87 Conn. 359, 87 Atl. 737, where one entitled to a remainder interest in cer