tain property upon the death of another directed that such interest, when paid over to his executor or other person authorized to receive it, should "be paid over to and divided equally among my then living lawful heirs, to them and their heirs forever," it was held that the persons entitled were the lawful heirs of the testator ascertained as of the time of his death, who should be living at the time of the life tenant's decease, the court saying that such interpretation is more in accordance with the natural meaning of the language used than would be the alternative one, which would make the testator's lawful heirs ascertained as of the date of the life tenant's death the persons designated as the beneficiaries of the gift. construction was also assisted by the consideration that, as thus interpreted, the provision in question is not void. as contravening the statute against perpetuities.

Illinois.

This

In Lee v. Roberson (1921) 297 Ill. 321, 130 N. E. 774, where a testator who had devised property to his son, Nathaniel, provided that if such son should die "without heirs, the estate which I have willed to him as above stated, it is my will shall be equally divided with my living heirs," it was held that by the designation "living heirs" testator meant descendants living at the death of Nathaniel. New York.

In Re Wilson (1907) 53 Misc. 238, 104 N. Y. Supp. 480, where testator, after creating a trust for the use of a certain person for life, directed that, on her decease, the trust fund "be paid to the heirs of my body then surviving, they to share alike," it was held that the heirs of the testator were determinable at his death, but that it was clearly his intention that the title should not vest until the death of the life tenant.

In Hadcox v. Cody (1912) 75 Misc. 569, 135 N. Y. Supp. 861, affirmed in (1913) 155 App. Div. 943, 140 N. Y. Supp. 1122, where a testator gave property to his two daughters during their natural lives "and then to my

legal descendants if any there shall be, but if there should be none, then to" certain other persons, it was held that "descendants" referred to were those who should survive the daughters, and not those who survived the testator.

South Carolina.

In Gourdin v. Shrewsbury (1878) 11 S. C. 1, testator gave his residuary estate to his executors to sell and reinvest the proceeds in stock, which stock was given to testator's two daughters during their natural lives, share and share alike, the share of the one first dying to go to her surviving children, and in default thereof, and subject to a provision for any husband, to her sister. He further provided that, at the death of the survivor of the two daughters, the stock and property immediately bequeathed to her, or which she might take at the death of her sister, should go to her surviving child or children, and in default thereof, and subject to a provision for any husband, to the child or children of her deceased sister, if living at the death of the daughter so surviving, "and if there be no child of her deceased sister, then the said remainder shall go to my legal representatives in fee simple." It was held that, as the will manifested the intention that after the direct line of descent should be exhausted during the lifetime of the two daughters, the estate should go to the collateral line, the words "my legal representatives" had reference to those answering such description who should be living at the death of the daughter last dying.

In Barber v. Crawford (1910) 85 S. C. 54, 67 S. E. 7, the following provision: "If any of my children named in my said will or codicils to whom I have given my property should die without bodily heirs, it is my will that all of said property be equally divided among my surviving heirs, share and share alike," was construed in accordance with the rule that survivorship relates to the time of the testator's death only where there is no other period to which it may be referred, as an executory devise to those answering the description of surviving heirs.

at the time of the death of the first taker, and not that of the testator. England.

In Spink v. Lewis (1791) 3 Bro. Ch. 355, 29 Eng. Reprint, 580, where testator directed his residuary estate to remain invested for the space of ten years, when the fund thus accumulated should be divided into six parts, one sixth thereof to be paid to a nephew or to his legal representatives, and the other five parts thereof to be divided among such next of kin and legal representatives as should then be living, under the usual and due course of representation, it was said to be plain that the testator meant by "next of kin" some class of persons of whom it was doubtful whether they would live ten years, and that the only next of kin of the testator living at his death having died before the end of the ten years, the disposition of the five sixths lapsed.

In Bishop v. Cappel (1847) 1 De G. & S. 411, 63 Eng. Reprint, 1127, where the testator provided that a moiety of his personal estate given to a brother should "not be left to him and his heirs forever, but for the term of his natural life; and after his decease to go to ... his wife; and at her decease to go to such of my relations as shall survive them, share and share alike," it was held that, although the construction of the provision was doubtful, it would be construed as a limitation over to such of the persons entitled at testator's death to his personal estate under the statute of distributions as should be living at the expiration of the life estates.

In Eagles v. Le Breton (1873) L. R. 15 Eq. 148, where testatrix, after devising all of her real estate to her sisters as tenants in common, directed: "At the death of my sisters . . . the residue of my property is to pass to my relatives in America,"-it was held that the class was to be determined at the death of the testatrix, but that they took as joint tenants; which therefore limited the donees to those members of the class who should survive the termination of the life estate.

In Re Nash (1894) 71 L. T. N. S. 5

-C. A., where testator gave his residuary estate to his wife for life, directing that after her decease a certain legacy be paid, "and that the nearest relatives then living (to be hereafter named in a codicil) shall réceive the benefit equally among them after the aforesaid sum has been paid," it was held that, testator having left no codicil to his will, the class was to be ascertained at his death, but that only such of them were to take as survived the tenant for life.

In Re Winn [1910] 1 Ch. 278, a testator seventy-three years old when he made his will, and whose next of kin at the time the will was made and at the time of his death were his nephews and nieces, directed a certain sum to be held in trust for each of his nieces for life, and for the husband of each for life in the event of her leaving no issue, remainder to any child or issue, and in the event of the death of any niece without issue, or of the death of such issue before becoming entitled to the principal, "upon trust for my next of kin, whoever they may be, living at the time of the trusts failing as aforesaid, except the children or other descendants of my late nephew, Thomas Winn, deceased, whose children are hereinbefore, as well as by other means, amply provided for." Sums equal to those thus given in trust were then given upon similar trusts in favor of each of his nephews and their issue, "and with the like gift over in favor of my next of kin, except as aforesaid, for want of issue respectively, as herein before mentioned." He also directed his trustees to hold a further sum upon trust in favor of T. T. and his children and issue, and in case of the death of the said T. T. without issue living to acquire a vested interest, then such sum to go as T. T. should appoint, "and, in default thereof, to my next of kin except as aforesaid." The six nephews and nieces were made residuary legatees. It was held that, looking at the will alone, it was rather to be supposed that the testator contemplated that, in respect of the final limitation of the various trust funds, the same class would take, subject, how

per se.

Cobb v. Oklahoma Pub. Co. 42 Okla. 314, 140 Pac. 1079; McKenney v. Carpenter, 42 Okla. 410, 141 Pac. 779; Hubbard v. Cowling, 36 Okla. 603, 129 Pac. 714; Kelly v. Roetzel, 64 Okla. 36, 165 Pac. 1150; Bratcher v. Gernert, 77 Okla. 12, 185 Pac. 1081; Dimmitt v. McDowell, 60 Okla. 88, 158 Pac. 290; Phoenix Printing Co. v. Robertson, 80 Okla. 191, 195 Pac. 487; Missouri, K. & T. R. Co. v. Watkins, 77 Okla. 270, 188 Pac. 99; Kee v. Armstrong, B. & Co. Okla., 151 Pac. 572; Spencer v. Minnick, 41 Okla. 613, 139 Pac. 130; Wiley v. Oklahoma Press Pub. Co. 106 Okla. 52, 40 A.L.R. 573, 233 Pac. 224; Fitch v. De Young, 66 Cal. 339, 5 Pac. 365; Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Flood v. News & Courier Co. 71 S. C. 116, 50 S. E. 637, 4 Ann. Cas. 685; Black v. State Co. 93 S. C. 467, 77 S. E. 51, Ann. Cas. 1914C, 989; Atwater v. Morning News Co. 67 Conn. 504, 34 Atl. 865; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Skrocki v. Stahl, 14 Cal. App. 1, 110 Pac. 957; Farley v. Evening Chronicle Pub. Co. 113 Mo. App. 216, 87 S. W. 565.

defendants edited and owned the Okeene Leader, both being weekly newspapers published in Okeene, Okl. The article complained of, which was admitted and shows upon its face to have been published of and concerning the plaintiff, is as follows:

"In Answer: The Okeene Record, the 'germ' of literature and logic, last week in attempting to make a reply in defense of the American Legion, of which he boasts he is a member (however, by the act of compulsory army service only), takes a direct slap at the editor of the Leader. He tells the folks through the columns of his paper that he is a member of the American Legion and proud of it, and a little further down states that the editor and owner of the Leader are about the same age as he, intimating that the editor of this paper should have been in Uncle Sam's service during the World War. The first thing we wish to call your attention to, Mr. Martz, is the fact that had Uncle Sam come and demanded our services, such as he did yours, we, too, could have boasted of a few months' service in a training camp, far away from the sound of the enemy's guns.

made no attempt to keep out of the service. Long before the draft bill was passed we conversed with an army recruiting officer at Fairview. He was very frank in his assertions, and in practically these words said: "I have no d- time to take up with men who have families; we are after a bunch of these yellow-backed single guys, who should be here now volunteering."

"Later on, Martz, the draft bill was passed. In that bill was a proviso that married men would be the last called to the colors. It caused the marriage license clerk to work overtime; the ministers were doing a land office business. But you remember it was discovered that the

men who were married after the declaration of war would be called the same as a single man, thus causing many to leave their war brides and enter into the service with their more patriotic companions. The editor of the Leader was not guilty of any of these acts. We were married several years before the opening of the World War. Our boy was quite a lad when the Draft Law came into effect; hence, not like some others, we were not hiding behind the folds of a woman's garments. We made answer to our questionnaire the same as you-all that was required of any American citizen. We made no attempt to evade the draft, and had it been our lot to be called we would have done our bit, expecting nothing in return. When we came back we would have also considered one comrade as good as another, whether he was rich or poor; the same feeling would have existed here as did in the front line trenches, for we are not much on 'society lines,' as we have never yet found a man so low that we would not clasp his hand in friendship, nor a man so high up in this life that we considered him better than we were. "There should be a litle distinction, however, between the boys who fought 'over there' and the ones who just entered a training camp.

To

our opinion the man who served best should be given preference in the selection of your officers for the American Legion post. The Okeene Post, we believe, would have made a better showing had such men as Floyd Fullbright, Ira Towns, John Adams, Bill Marcoux, and others, who faced the enemy over therereally did some fighting and who did not belong to the commissary department or the mule drivers' brigade.

"You speak of being engaged in a more necessary occupation. We were both, practically speaking, in the same line of industry-both printers. The Leader editor managing a newspaper, while you were in the mechanical department of a newspaper. Did you attempt to volunteer? Was there anything at

any time to prevent you from offering your services? Is it not a fact that your constant aim was to some way, somehow, get by, and that you were among those who stayed out of the game as long as possible? We respect the uniform you wore, you are worthy of some consideration for wearing it, but when it comes down to real patriotism, real Americanism, we consider we will stand the acid test along with some of those to whom Uncle Sam said 'Come, I want you,' and would have never served under any other consideration.

"Yes, Mr. Editor of the Okeene Record, you should be proud of your membership in the American Legion post, to the extent of $15 per month during Trades Day season. That ought to swell you up with pride.

"Sure enough Curtis Evans may not be a member of the Okeene Post, American Legion, and if we are rightly informed there are many overseas men here who are not members of the Okeene Post because of the narrow-mindedness of the ruling members of this post. Even if he is not a member of any post he is, by reason of his service, entitled to at least human care and human interest, even if a social line has to be drawn and Evans was never shot in the foot.

"The owner of the Leader called on Curtis Evans, and was there informed that no member of the Okeene Post except Patkowski had been there as such, that the Record man had been there presumably for news, and that Evans was asleep and was not disturbed. The Record man was able to acquire and publish an ugly story of Evans' condition prior to his being found in the well."

The plaintiff pleads this publication, that it was false, malicious, unprivileged, libelous, and exposed the plaintiff to public hatred, contempt, ridicule, and obloquy, and tended to deprive him of public confidence and injure him in his occupation as publisher of his paper and to injure him in his good name and