of the gift, therefore, will depend the benefits which a designated beneficiary may receive, see § 990. See, ante, form No. 26 for vested and contingent remainders.

M

(a) Interest contingent upon surviving life tenant. I devise that certain tract of land (insert description) to my wife M—————for the term of her natural life, and at her death in fee simple to the children of myself and said wife who are living at the time of my wife's death, no interest in said property to pass to or vest in any of our said children except such as survive my wife.

Note. See § 992. Where the gift to a class is direct and immediate, the general rule is that those take who come within the description at the date of the testator's death, see §§ 876, 881-883, 889; but where it is a remainder over to take effect upon the termination of a precedent estate, such as a life estate, the class, in such a case, generally comprises those coming within the description at the death of the life tenant, see §§ 887-890.

(b) Interest contingent upon life tenant dying without issue. I devise that certain tract of land (insert description), to my son R for the term of his natural life and upon his death said property to pass in fee simple to the children of my said son R who may be living at the time of R's death; in the event my said son R shall die and leave no issue surviving him, then upon R's death said property shall pass in fee simple and vest absolutely in my son T―.

Note. See § 992. Should R— survive the testator and have children then living, such children would take a vested interest subject to be divested by the death of all prior to the death of R, see § 997.

For form of determinable life estates, until marriage and during widowhood, see, ante, form No. 25 (d) and (e).

(c) Interest contingent upon attaining a certain age. I bequeath the fifty shares of the stock of the company, now standing in my name, to C D in trust,

as follows: said C D as trustee shall hold said stock and all dividends and profits accruing therefrom

III Com. on Wills-56

until either my son R attains the age of twenty-one years or until the death of my said son should he die prior to attaining said age, and upon the happening of either event to dispose of the same as follows: in the event my said son R shall reach the age of twentyone years, the attainment of said age being a condition precedent to his acquiring any title or right of enjoyment in, to, or of said stock, dividends and profits, I direct that said CD, as trustee aforesaid, deliver and pay over to my said son R as his absolute property the aforesaid stock and the accumulated dividends and profits; in the event my said son R shall die before attaining the age of twenty-one years, I direct that upon his death said CD, as trustee aforesaid, shall deliver and pay over to my son T absolutely the aforesaid stock and the accumulated dividends and profits.

Note. See §§ 993, 994. As to the distinction between a direct gift to individuals or members of a class, possession or enjoyment only being postponed until they attain a certain age, and a gift to become effective only in favor of those who attain such age, see §§ 882-885. See also, ante, form No. 19 (c).

(d) Interest vesting at testator's death. I bequeath the sum of dollars to my son R, and direct that the same be distributed to my said son upon his attaining the age of twenty-one years.

Note.-See § 993.

Company, each of

(e) Contingency coupled with gift of income. I bequeath my twenty bonds of the said bonds being of the par value of one thousand dollars and numbered 521 to 540 inclusive, to C————— D———— in trust, as follows: said CD as trustee shall hold said bonds and collect the interest thereon, amounting to two hundred and fifty dollars quarterly, and may, at his discretion, apply quarterly a portion of said interest, not exceeding one-half thereof, for the maintenance of the

children of myself and my wife M― according to their respective needs, and shall pay all the interest from said bonds not expended for the purposes just mentioned, to my wife M— unconditionally and absolutely during the term of her natural life. Upon the death of my said wife M- said property shall at said time vest in and the said trustee shall then deliver the same to the children of myself and my said wife who are living at that date and the issue then living of any of our said children who may have died prior to the time of my wife's death, such issue to take only the share which would have gone to their deceased parent had he or she survived my wife, the division to be per stirpes and not per capita, it being my intention that the beneficiaries who are to take the property upon the death of my wife shall be determined as of that date and shall include only our then living children and the then living issue of deceased children, such issue taking by right of representation.

Note. Where the gift of the principal is apparently contingent upon some future event, but the income of the principal is to be applied in the interim for the benefit of the legatee, the general rule is that the title to the principal is deemed to vest in the beneficiary at the death of the testator. This rule does not apply where only a part of the income is to go to the beneficiary, or the income is to be used for the beneficiary's benefit only at the discretion of a trustee. If the income is to go to another until the happening of the contingency, the interest of the beneficiary may be deemed to be in the nature of a remainder over and therefore to vest upon the testator's demise. See § 995.

No. 27.

ESTATES IN REMAINDER, VESTED AND CONTINGENT.

(a) Vested remainder.

(b) Contingent remainder: Uncertainty as to the event. (c) Contingent remainder: Uncertainty as to who shall take. (d) Alternative contingent remainders.

General Note.-As to estates in remainder generally, see §§ 999-1030. The rule now allows remainders in personalty as well as in realty, see

§ 1001.

Vested and contingent remainders defined and distinguished, see §§ 1003, 1004. In the construction of wills, vested remainders are favored rather than those which are contingent, see §§ 1007, 1008.

(a) Vested remainder. I devise that certain tract of land (insert description) to my wife M- for the term of her natural life and the remainder over in fee simple to my son R

Note. The interest in R- will vest at the testator's death, enjoy. ment or possession only being postponed.

(b) Contingent remainder: Uncertainty as to the event. I devise that certain tract of land (insert description) to my wife M- for the term of her natural life, and all my remaining right, title and estate therein to B― upon the death of C

Note. After the testator's death, the parties above named being alive, the remainder to B- would be contingent upon C- dying before the testator's wife M. Should C― survive M—, B— could not take at M's death since the contingency upon which his right depends would not have occurred, see § 1004. Since a contingent remainder must vest at once upon the termination of the preceding estate or not at all, in England and in some of these United States statutes have been enacted to prevent such contingent remainders from being thus defeated, see §§ 1006, 1024.

(c) Contingent remainder: Uncertainty as to who shall take. I devise that certain tract of land (insert description) unto A- for the term of his natural life, and upon the death of A- all my remaining right, title and estate therein to the oldest child of B——— living at the date of A's death.

Note. If B- has no child at the date of the testator's death, the one who is to take the remainder is uncertain until a child is born to B. The remainder would be made further uncertain if it were to go to the oldest son of B- living at the time of B's death. See also, note to preceding form, No. 27 (b).

(d) Alternative contingent remainders. I devise that certain tract of land (insert description) unto A— for the term of his natural life and upon A -'s death to

A—'s children living at that time, but if A- should die without leaving children surviving him, then said property is to pass absolutely to and vest in my heirs at law.

Note. See § 1015.

No. 28.

EXECUTORY DEVISES.

(a) Limited after a fee.

(b) Devise in fee with limitation over upon failure of issue. (c) Devise in fee with limitation over if first taker dies under a certain age, or unmarried.

(d) No precedent estate to support the devise.

General Note.—-Executory devises defined and explained, see §§ 10171020. Remainders and executory devises distinguished, see § 1023. As to executory interests in personalty, see § 1029.

(a) Limited after a fee. I devise that certain tract of land (insert description) and all my right, title and estate therein to A, but should A- die before attaining the age of twenty-one years, then said property and all interest and estate therein shall pass to and vest in B absolutely.

Note.-An executory devise may be limited after a devise in fee simple, see § 1023.

(b) Devise in fee with limitation over upon failure of issue. I devise that certain tract of land (insert description) to A, but should A die without leaving issue surviving him, then upon the death of A- without issue surviving him, then said property and all estate therein shall pass to and vest absolutely in B

Note. See §§ 1026, 1027.

(c) Devise in fee with limitation over if first taker dies under a certain age, or unmarried. I devise that certain tract of land (insert description) to A-, but should