Where, under the terms of the will, distribution to the members of a class may be either at the death of the testator or the death of some beneficiary, if there be no plainly expressed intent on the part of the testator to postpone the vesting until the later period, the earlier period will be adopted. But notwithstanding the foregoing principles, the date of the will may, by specific language or by reasonable interpretation, be made the time for ascertaining the objects, for the presumption that the 51 Am. St. Rep. 175, 88 N. W. 1064; Shotts v. Poe, 47 Md. 513, 28 Am. Rep. 485; Gardiner v. Guild, 106 Mass. 25; Upham v. Emerson, 119 Mass. 509; Thomas v. Thomas, 149 Mo. 426, 73 Am. St. Rep. 405, 51 S. W. 111; Whitney v. Whitney, 45 N. H. 311; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702; Chasmar v. Bucken, 37 N. J. Eq. 415; Ward v. Dodd, 41 N. J. Eq. 414, 5 Atl. 650; Collin v. Collin, 1 Barb. Ch. (N. Y.) 630, 636, 45 Am. Dec. 420; Jenkins v. Freyer, 4 Paige (N. Y.) 47; Campbell v. Rawdon, 18 N. Y. 412; Downing v. Marshall, 23 N. Y. 366, 373, 80 Am. Dec. 290; Van Hook v. Rogers' Ex'r, 7 N. C. 178; Britton v. Miller, 63 N. C. 268; In re Gross' Estate, 10 Pa. St. 360. In De Witte v. De Witte, 11 Sim. 41, the rule was applied to a gift to A. and his children jointly. In Harvey v. Stracey, 1 Drew. 73, it was held that the rule applies to gifts by way of appointment. The words "heirs of my late hus band" were held to mean those who were living at the time of the death of the testatrix.-In re Ruggles' Estate, 104 Me. 333, 71 Atl. 933. A limitation to the testator's heirs refers to those who are his heirs at the time of his death, unless a contrary intention be shown. -Jewett v. Jewett, 200 Mass. 310, 86 N. E. 308. In Kentucky, contrary to the general rule, it was held under a gift to a daughter-in-law and her children, that children born to the beneficiary after the testator's death and not previously begotten, were nevertheless allowed to share in the gift. The reasoning of the court was that such after-born children were as much the objects of the testator's bounty and solicitude as the others, and that there was nothing to indicate the testator desired to exclude them.Lynn v. Hall, 101 Ky. 738, 72 Am. St. Rep. 439, 43 S. W. 402. 51 Brian v. Tylor, 129 Md. 145, 98 Atl. 532. will speaks from the death of the testator is prima facie only.52 § 881. Effect of Additional Words of Description of Beneficiaries Designated as a Class. Where the testator not only designates the beneficiaries as a class but adds other words of description such as the "present born" children of A,53 or the children of A "living at the death" of a particular tenant who dies during the testator's lifetime, only those take who come within the additional description and who are also in existence at the time of the testator's death.55 If a con 52 Unsworth v. Speakman, 4 Ch. Div. 620; In re Potter's Trusts, L. R. 8 Eq. 52, 60; Habergham v. Ridehalgh, L. R. 9 Eq. 395; Morse v. Mason, 11 Allen (Mass.) 36; Dingley v. Dingley, 5 Mass. 535; Whitehead v. Lassiter, 57 N. C. 79. 53 Leigh v. Leigh, 17 Beav. 605. 54 Lee v. Pain, 4 Hare 201, 250; Carver v. Oakley, 57 N. C. 85. Where the language of the will was that after the termination of a particular estate the property was to be sold and the proceeds distributed "among my daughters living at my death," the daughters of the testator living at his decease took a vested remainder in fee in the property. The fact that the property was directed to be sold did not postpone the vesting of the interest.-Johnson v. Washington Loan and Tr. Co., 224 U. S. 224, 238, 239, 56 L. Ed. 741, 32 Sup. Ct. 421. A gift to issue "living at the time of my death," does not in 54 Iclude those born thereafter.-Kinnan v. Card, 4 Demarest (N. Y.) 156. 55 Cases cited in notes 53 and 54 supra. A provision in a will for a home for the unmarried children and the use of the premises is construed to refer to those who should remain as they were when the will was made and not contract a fu ture marriage.-Frail v. Carstairs, 187 III. 310, 58 N. E. 401. Under a devise to a testator's son for life, remainder to such children born in lawful wedlock as he should leave at his death, where the son died leaving a child already born, and his wife enceinte of a child which was afterwards born, such posthumous child takes together with the former child.Barker v. Pearce, 30 Pa. St. 173, 72 Am. Dec. 691. Under a devise by the testator to certain children "who may be living at my decease," a child en trary intention appear, as from a devise to those born or hereafter to be born during the lifetime of their respective parents, the foregoing rule would not apply.56 But a contrary intent is not lightly inferred."7 The American rule, however, seems to be that such words of futurity will let in children born after the testator's death.58 Though the English decisions are conflicting it has been held that a gift to "all the children of A, whether now born or hereafter to be born," embraced those born after the decease of the testator." 59 § 882. Where Gift Is to Those of a Class Who Attain, or When They Attain, a Certain Age. A distinction is drawn between a case where a direct benefit is conferred upon individuals or members of a class, the enjoyment of possession only being postponed until they shall have attained a certain age, and a case where the gift is to become effective only in favor of those who shall reach such age. Under the circumstances first ventre sa mere at the time of the testator's death, is entitled to take. -Hall V. Hancock, 15 Pick. (Mass.) 255, 26 Am. Dec. 598. As to children en ventre sa mere, see § 842. 56 Scott v. Scarborough, 1 Beav. 154. Thus the phrase, given above by way of illustration, "born or hereafter to be born," but for the additional words "during the lifetime of their respective parents," might, according to some respectable authorities, have been construed as showing only that the testator contemplated children to be born after the date of his will and before his death.-Mann v. 57 Scott v. Harwood, 5 Madd. 58 Napier v. Howard, 3 Ga. 192, 202; Butterfield v. Haskins, 33 Me. 392; Yeaton v. Roberts, 28 N. H. 459; Bullock v. Bullock, 17 N. C. 307, 316; Shinn v. Motley, 56 N. C. 490, 491. 59 Defflis v. Goldschmidt, 1 Mer. 417. See, also, Mogg v. Mogg, 1 Mer. 654; Gooch v. Gooch, 14 Beav. 565, 576, 577. mentioned there is an absolute gift to certain persons, subject to be divested by their deaths before the specified time; under the latter there is no gift except to those who reach the designated age. In gifts to a class, where the contingency on which the right of possession depends in some event other than the attainment of a certain age or the survival for a given period, the death of a beneficiary after that of the testator but pending the contingency does not cause his interest to pass to the survivors of the class, but substitutes and lets in his representatives instead of himself. Where the interest of a beneficiary is once vested, it does not lapse."1 § 883. The Same Subject. Where the distribution of a testamentary gift to a class is postponed until the members of a class shall have attained a certain age, the right to the gift vests in those in esse at the time the eldest member of the class attains such age. It includes not only those living at the death 60 Festing v. Allen, 12 Mees. & W. 279; Bull v. Pritchard, 1 Dow & C. 268, 314; Newman v. Newman, 10 Sim. 51; Wills v. Wills, 1 Dru. & War. 439; Hatfield v. Pryme, 2 Colles 204; Vawdrey v. Geddes, 1 Russ. & M. 203. See, however, Muskett v. Eaton, 1 Ch. Div. 435. See, also, Bradley v. Barlow, 5 Hare 589. 61 Pinbury v. Elkin, 2 Vern. 758, 766; King v. Withers Cas. temp. Talb. 117; s. c. 3 B. P. C. Toml. 135; Wilson v. Bayly, 3 B. P. C. Toml. 195; Barnes v. Allen, 1 Bro. C. C. 181; Leeming v, Sherratt, 2 Hare 14; Boulton v. Beard, 3 De Gex, M. & G. 608; In re Smith's 62 In Andrews v. Partington, 3 Bro. C. C. 401, Lord Thurlow, the lord chancellor, says: "Where a time of payment is pointed out, as where a legacy is given to all the children of A. when they shall attain twenty-one, it is too late to say that the time so pointed out shall not regulate among what children the distribution shall be made. It must be among the children in esse at the time the eldest attains such age." of the testator but also those who come into existence before the first of the class reaches the age mentioned, this being the time when the fund is first distributable to any member. Those born after the first member of the class has attained the specified age are excluded. Thus a remainder over to such of a class as either before or after the decease of the life tenant shall attain the age of twenty-one years or marry, vests in those of the class who reach the specified age or marry, their interest being liable to open up and let in others who later fulfill the conditions of the will.64 Where the gift is directly to a class, as to the children of A payable when they attain the age of twenty-one years, or as a remainder over after a life estate upon such children attaining the age mentioned, if the eldest of the class has attained the age of twenty-one at the death of the testator in the former case, or has reached that age at the death of the life tenant in the latter case, so that his share is immediately payable at the death of the testator or of the life tenant, as the case may be, no child subsequently born will take. The reason for this is that the beneficiary who has attained the age of twenty-one years can not be kept waiting for his share; and if it is once paid to him it can not be recovered.65 In this class of 63 Andrews v. Partington, 3 Bro. C. C. 401; Gilbert v. Boorman, 11 Ves. Jun. 238; Curtis v. Curtis, 6 Madd. 14; Hubbard v. Lloyd, 6 Cush. (Mass.) 522, 53 Am. Dec. 55; Thomas v. Thomas, 149 Mo. 426, 73 Am. St. Rep. 405, 51 S. W. 111. 64 In re Lechmere and Lloyd, 18 Ch. Div. 524. II Com. on Wills-28 65 Gillman v. Daunt, 3 Kay & J. 48. See, also, Whitbread v. St. John, 10 Ves. Jun. 152; Andrews v. Partington, 3 Bro. C. C. 401, 403; Hubbard v. Lloyd, 6 Cush. (Mass.) 522, 523, 53 Am. Dec. 55; Tucker v. Bishop, 16 N. Y. 402, 404; Hawkins v. Everett, 58 N. C. 42, 44; Simpson v. Spence, 58 N. C. 208; Heisse |