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A.78 The same rule is applicable to like bequests of personalty.79

§ 889. The Same Subject: As to After-Born Members of Class.

The fact that the payment of legacies is postponed by statute until a year after the decease of the testator, does not admit members of a class begotten and born after the testator's death to share in the gift; so although if the testator in his will direct a postponement for such period, the class may be enlarged by the birth of a member during such time.81

The rule admitting after-born children to the class does not apply in the case where separate legacies of a specified sum are given to each of the class, for then the aggregate amount of the gift to the class would be increased by the admission of new members so that it could not be ascertained at the time of distribution of the testator's estate how many legacies of the given amount would be. payable.82 However, in this, as in all other cases, a clear expression of an intention to admit after-born members of the class will prevail; so, also, where the possession is postponed, if it be manifest that such was the testator's

78 Randoll v. Doe d. Roake, 5 Dow 202; Doe v. Perryn, 3 T. R. 484; Doe (Poor's Lessee) v. Considine, 6 Wall. (U. S.) 458, 476, 18 L. Ed. 869, 875; Cropley v. Cooper, 19 Wall. (U. S.) 167, 22 L. Ed. 109; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210; Rudolph v. Rudolph, 207 Ill. 266, 99 Am. St. Rep. 211, 69 N. E. 834; Dingley v. Dingley, 5 Mass. 535; Doe v. Provoost, 4 Johns. (N. Y.) 61, 4 Am. Dec. 249;

Linton v. Laycock, 33 Ohio St. 128.

79 Halifax v. Wilson, 16 Ves. Jun.168; In re Bennett's Trust, 3 Kay & J. 280; Strother v. Dutton, 1 De Gex & J. 675; Shattuck v. Stedman, 2 Pick. (Mass.) 468.

so Hagger v. Payne, 23 Beav. 474.

81 Bailey v. Wagner, 2 Strob. Eq. (S. C.) 1.

82 Ringrose v. Bramham, 2 Cox 384; Mann v. Thompson, Kay 638.

intent.88 If none of the objects of the gift be in existence at the death of the testator, or at the time of distribution, all children, whenever born, may be included, unless a contrary intention appear in the will as from a gift over in that event.84

§ 890. Remainder Over to a Class Upon Termination of Life Estate: Vested and Contingent Remainders.

A bequest or devise to a class of the remainder over after a life estate vests the title to the estate in remainder in those of the class in esse at the death of the testator; the right of enjoyment of possession, however, is deferred until the expiration of the preceding estate. The estate in remainder, when once vested as upon the death of the testator, does not lapse by reason of the death of a beneficiary prior to the expiration of the life estate unless the will so provides, as by a limitation over in the event of the death of a remainderman before that of the life tenant.85 But the class will open up and let in those born during the continuance of the life estate, who belong to the class designated in the will.se This general rule is held to

83 Scott v. Scarborough, 1 Beav. 154; Brown v. Williams, 5 R. I. 309, 318.

84 Godfrey v. Davis, 6 Ves. Jun. 43.

85 Bullock v. Downes, 9 H. L. Cas. 1; Doe (Poor's Lessee) v. Considine, 6 Wall. (U. S.) 458, 476, 18 L. Ed. 869, 875; McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Thaw v. Falls, 136 U. S. 519, 34 L. Ed. 531, 10 Sup. Ct. 1037; Gates v. Seibert, 157 Mo. 254, 80 Am. St. Rep. 625, 57 S. W. 1065; In re Tucker's Will, 63 Vt.

104, 25 Am. St. Rep. 743, 21 Atl. 272.

86 Harding v. Glynn, 1 Atk. 470; Haughton v. Harrison, 2 Atk. 329; Ellison v. Airey, 1 Ves. Sen. 111; Mitchell v. Mitchell, 73 Conn. 303, 47 Atl. 325; Sumpter v. Carter, 115 Ga. 893, 60 L. R. A. 274, 42 S. E. 324; Thomas v. Thomas, 247 Ill. 543, 139 Am. St. Rep. 347, 93 N. E. 344; Lynn v. Worthington, 266 Ill. 414, 107 N. E. 729; Bruce v. Bissell, 119 Ind. 525, 12 Am. St. Rep. 436, 22 N. E. 4; Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195; May

apply particularly to gifts to children as a class, and in all such cases the estate in remainder vests in such of them as are living at the time of the death of the testator and in those born during the continuance of the life estate, from the moment of their birth.87

Where there is a testamentary gift of a particular estate, with remainder over to a class, the estate in remainder is contingent if there be no one answering the

v. Walter's Ex'rs, 30 Ky. Law Rep. 59, 97 S. W. 423; Minot v. Doggett, 190 Mass. 435, 77 N. E. 629; Doerner v. Doerner, 161 Mo. 399, 61 S. W. 801; Buckner v. Buckner, 255 Mo. 371, 164 S. W. 513; Holme v. Shinn, 62 N. J. Eq. 1, 49 Atl. 151; Johnson v. Valentine, 4 Sandf. (N. Y.) 36; Mason v. White, 53 N. C. 421; Tindal v. Neal, 59 S. C. 4, 36 S. E. 1004; Smith v. Smith, 108 Tenn. 21, 64 S. W. 483.

The testator devised his entire estate, including slaves and their increase, to his wife during her life, and at her death the entire estate was to be sold and the proceeds distributed among his slaves and their increase, each to receive $200, and the residue to be distributed equally among them. In 1900 the widow died and the slaves and their descendants instituted suit for a construction of the will. It was held that the clause in the will was valid and the distribution should be made per capita among the slaves who were living at the time of the testator's death,

and the descendants of the female slaves.-Miller v. Wilson's Adm'r, 23 Ky. Law Rep. 2130, 66 S. W. 755.

87 Williamson v. Berry, 8 How. (U. S.) 495, 12 L. Ed. 1170; Beckley v. Leffingwell, 57 Conn. 163, 17 Atl. 766; Cooper v. Mitchell Inv. Co., 133 Ga. 769, 29 L. R. A. (N. S.) 291, 66 S. E. 1090; Flanner v. Fellows, 206 Ill. 136, 68 N. E. 1057; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56; Walters v. Crutcher, 15 B. Mon. (54 Ky.) 2; Stonebraker v. Zollickoffer, 52 Md. 154, 36 Am. Rep. 364; Minot v. Purrington, 190 Mass. 336, 77 N. E. 630; Nichols v. Denny, 37 Miss. 59; Doerner v. Doerner, 161 Mo. 399, 61 S. W. 801; Parker v. Leach, 66 N. H. 416, 31 Atl. 19; Holme v. Shinn, 62 N. J. Eq. 1, 49 Atl. 151; Losey v. Stanley, 147 N. Y. 560, 42 N. E. 8; Walker v. Johnston, 70 N. C. 576; In re Wetherill's Estate, 214 Pa. St. 150, 63 Atl. 406; McGregor v. Toomer, 2 Strobh. Eq. (S. C.) 51; Kansas City Land Co. v. Hill, 87 Tenn. 589, 5 L. R. A. 45, 11 S. W. 797; Woodruff v. Pleasants, 81 Va. 37.

description at the date of the death of the testator.88 But upon the birth of any one coming under the description of the class, there is no longer any contingency because the condition of the gift has been met and the estate in remainder becomes vested. The fact that the class may open up and let in after-born members does not make the remainder contingent. 89 The vesting of the estate in remainder will defeat a contingent limitation over to take effect in the event there should be no members of the class to take. Thus if the testator devises his lands to his daughter during her lifetime and at her death to her lawful issue or in default of such issue then to B, although such daughter might have no issue at the death of the testator, yet the birth to her of issue during her lifetime will defeat the limitation over to B even though such issue die during the life of the daughter."

§ 891. When Word "Survivor" Is Construed to Mean "Other."

Words of survivorship used in connection with the designation of beneficiaries in wills have created no little conflict in decisions. The early English decisions construed the term "survivor" or "survivors" as meaning "other" or "others."'91 Thus, in the case of a testamentary gift to several beneficiaries and their issue, but in the event of any of them dying without issue then his share to go to the survivors, should "survivors" be con

88 Keller v. Lees, 176 Pa. St. 402, 35 Atl. 197.

89 Phillips v. Johnson, 14 B. Mon. (Ky.) 172; Wootten v. Shelton, 6 N. C. 188; Keller v. Lees, 176 Pa. St. 402, 35 Atl. 197.

Where any of the children die before the determination of the

life estate their interest vests in their heirs.-Phillips v. Johnson, 14 B. Mon. (Ky.) 172.

90 Wootten v. Shelton, 6 N. C. 188; Cooper v. Hepburn, 15 Grat. (Va.) 551.

91 Barlow v. Salter, 17 Ves. Jun. 479.

strued to mean "others," the issue of one of the deceased beneficiaries would be entitled to partake with the other actual survivors in the share of any beneficiary dying without issue. This, however, was a forced and unnatural construction in many cases, and the word should be interpreted according to the intention of the testator as derived from the will.93 But unless construed to mean "others," in many cases the intention of the testator would be defeated, as where his evident purpose was to provide for the children of any of the beneficiaries should they have issue, the gift over to the survivors being only in the event of no issue. Such construction would save to the children the benefit of the provision intended for" them upon the death of their parent." Likewise where the gift to the survivors is in the event of the beneficiary dying without issue, the facts may show that the testator could not have contemplated that the original members of the class would still be in existence at an indefinite time in the future when failure of issue could be finally determined.95 The context of the will may show that the testator intended to substitute the issue of any beneficiary in his stead so as to take the share which would have passed to such beneficiary had he lived. But where the

92 Wheeler v. Allan, 54 Me. 232; In re Naglee's Appeal, 33 Pa. St. 89, 91.

93 Davidson v. Dallas, 14 Ves. Jun. 576, 578.

94 Wilmot v. Wilmot, 8 Ves. Jun. 10; Williams v. James, 20 Week. R. 1010; Winterton v. Crawfurd, 1 Russ. & M. 407; Aiton v. Brooks, 7 Sim. 204; Badger v. Gregory, L. R. 8 Eq. 84; In re Palmer's Settlement Trusts, L. R. 19 Eq. 320; Tuf

96

nell v. Barrell, L. R. 20 Eq. 194; Louisville Driving etc. Assoc. v. Louisville Trust Co., 16 Ky. Law Rep. 689, 29 S. W. 866; Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537; Lapsley v. Lapsley, 9 Pa. St. 131; In re Bacon's Estate, 202 Pa. St. 535, 52 Atl. 135.

95 In re Corbett's Trusts, Johns. 591, 597.

96 Eyre v. Marsden, 4 Myl. & C. 231.

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