cases the addition of words of futurity, such as "to be born,” or born "after my death," does not let in those of the class born after the first share becomes payable.

§ 884. The Same Subject: Where Contingency Which Determines Membership of Class Occurs During Testator's Lifetime.

There is no distinction drawn where the contingency upon which the membership of a class depends occurs in the testator's lifetime. Thus where there is a gift to A for life and after his death to his children living at his decease, should A die before the testator leaving children, such children living at that time and who survive the testator take as a class. The death of A would not cause the gift to lapse.

67

§ 885. The Same Subject: Where the Contingency Is "Youngest" of Class Attaining Specified Age.

When the payment of the shares is postponed until the happening of some event personal to the "youngest" of the class, as until he attain a certain age, unless the con

v. Markland, 2 Rawle (Pa:) 274, 275, 21 Am. Dec. 445; De Veaux v. De Veaux, 1 Strob. Eq. (S. C.) 283. In Iredell v. Iredell, 25 Beav. 485, the same rule held applicable to grandchildren.

66 Whitbread v. St. John, 10 Ves. Jun. 152; Iredell v. Iredell, 25 Beav. 485; Heisse v. Markland, 2 Rawle (Pa.) 274, 275, 21 Am. Dec. 445.

It has been said, however, that the rule might be excluded by the context; as where a bequest to

all who should attain majority was followed by a power of advancement and maintenance, to take effect whether the legatees "shall or shall not have attained the age of twenty-one," and notwithstanding the liability of a "subsequent addition to the class entitled."-Iredell v. Iredell, 25 Beav. 485; Bateman v. Gray, L. R. 6 Eq. 215.

Contra: Gimblett V. Purton, L. R. 12 Eq. 427, 430.

67 Lee v. Pain, 4 Hare 201, 250; Leigh v. Leigh, 17 Beav. 605; Cruse v. Howell, 4 Drew. 215.

text shows that the testator referred to the youngest in being at the time,es he will be deemed to have reference to the youngest, whenever born; and so long as members of the class continue to be born, the estate must open and let them in.69 "On their attaining twenty-one" is construed as equivalent to "on their all attaining" that age, and admits after-born members of the class.70

§ 886. Where Right to Share in Benefits Depends Upon an Indefinite Future Event.

One uncertainty regarding testamentary gifts to a class is as to the number who shall take, that depending upon future events. The testator may add another uncertainty as to the time when the interests of the members of the class shall take effect. Where the testator postpones the right of the members of a class to take an interest until the happening of some indefinite event, those who take will be determined, not at the date of the testator's death, but at the time of distribution.71 Where a contingent

68 Gooch v. Gooch, 3 De Gex, M. & G. 366.

69 Mainwaring v. Beevor, 8 Hare 44; Handberry v. Doolittle, 38 Ill. 202, 206.

70 Armitage V. Williams, 27 Beav. 346.

Where the will of a decedent bequeathed a sum to one of his sons to be paid when he should have attained the age of thirty-five years, and a like sum to another son to be paid when he should have attained the age of thirty years, and provided that in case either son named should die without wife or issue, the portion allotted to him

should be paid to the other son, if living, and that if both sons should die without wife or issue surviving them, the portions allotted to them should be paid to his daughters, share and share alike, a surviving son is not entitled to payment of the legacy given to a deceased son, immediately upon his death, and such legacy is not payable until by the terms of the will it would have been payable to the deceased son if he had lived.-In re Fair's Estate, 103 Cal. 342, 37 Pac. 406.

71 Brograve v. Winder, 2 Ves. Jun. 634, 638; Browne v. Ham

gift is made to a class or to persons designated by description and the contingency consists not merely in uncertainty as to the persons who are to take, but in events disconnected with them, when the contingency happens the estate vests in the person or persons then comprehended in the class or answering particular description.72 Thus where the gift is to a class such as grandchildren, but the right thereto is postponed until the hap

mond, Johns. 212, n; Baldwin v. Rogers, 3 De Gex, M. & G. 649; Devisme v. Mello, 1 Bro. C. C. 537; In re Winter's Estate, 114 Cal. 186, 189, 45 Pac. 1063; In re Jones' Appeal, 48 Conn. 60; Handberry v. Doolittle, 38 Ill. 202, 206; Walters v. Crutcher, 15 B. Mon. (54 Ky.) 2, 10; Barnum v. Barnum, 42 Md. 251; Hatfield v. Sohier, 114 Mass. 48; Hall v. Hall, 123 Mass. 120; Smith v. Rice, 130 Mass. 441; Nichols v. Denny, 37 Miss. 59, 65; Yeaton v. Roberts, 28 N. H. 459; Feit's Exrs. v. Vanatta, 21 N. J. Eq. 84, 86; Ward v. Tompkins, 30 N. J. Eq. 3; Teed v. Morton, 60 N. Y. 502; Delaney v. McCormack, 88 N. Y. 174; Walker v. Johnston, 70 N. C. 576; Richey v. Johnson, 30 Ohio St. 288; Ross v. Drake, 37 Pa. St. 373, 375; Rudebaugh v. Rudebaugh, 72 Pa. St. 271; Wessenger v. Hunt, 9 Rich. Eq. (S. C.) 459, 464; Hamlett v. Hamlett's Ex'r, 12 Leigh (Va.) 350; Cooper v. Hepburn, 15 Grat. (Va.) 551, 558.

Compare: Gourdin v. Shrewsbury, 11 S. C. 1, 2.

Gift of property to a class of persons, distributable at a time subsequent to the death of the testator, ordinarily includes all persons in being at the time appointed for the distribution who belong to the class, whether born before or after the death of the testator; but this rule does not prevail when a different intention appears from the will.-Matter of Smith, 131 N. Y. 239, 27 Am. St. Rep. 586, 30 N. E. 130.

In Pemberton v. Parke, 5 Bin. (Pa.) 601, 611, 6 Am. Dec. 432, the testator gave the bulk of his estate "to his widow, during her life or widowhood, and to the children and grandchildren of his brother Israel Pemberton, to be equally divided among those of them who may be then living, two thousand pounds," and the word, "then," was agreed to refer to the death of the widow. It was held that until the death of the widow the legacy did not vest, but was suspended, and was clearly contingent, as to such of the descendants as should survive the widow.

72 Den v. Crawford, 8 N. J. L. 90.

pening of a contingent event subsequent to the testator's death, every one answering the description of grandchildren at the time fixed for distribution is entitled to share in the gift, and no others.73 Under this rule the heirs of a grandchild who was living at the date of the testator's death but who died before the happening of the contingency, take nothing, while a grandchild born after the testator's death and living at the time of distribution, shares in the benefits.74

§ 887. Where Right to Share in Benefits Depends Upon Termination of a Preceding Estate.

Where a particular estate or interest is carved out of property, with a gift over to a class, such as the children of the person taking the interest or the children of any other person, the beneficiaries under the gift to the class will include not only the members thereof at the date of the death of the testator, but all others who may subsequently come into existence before the period of distribution.75 But in order that those born after the death of the

73 Storrs v. Burgess, 101 Me. 26, 62 Atl. 730.

74 Webber v. Jones, 94 Me. 429, 47 Atl. 903.

As soon as any member of a class becomes entitled to a vested interest in possession, all afterborn members are excluded.-Gilbert v. Boorman, 11 Ves. Jun. 238.

75 Ayton v. Ayton, 1 Cox 327; In re Jones' Appeal, 48 Conn. 60; Webster v. Welton, 53 Conn. 183, 1 Atl. 633; Handberry v. Doolittle, 38 II. 202; Ridgeway v. Underwood, 67 Ill. 419; Teed v. Morton, 60 N. Y. 502; Thompson v. Gar

wood, 3 Whart. (Pa.) 287, 31 Am. Dec. 502.

Compare: In Olney v. Hull, 21 Pick. (Mass.) 311, 313, the court says: "In this will it is perfectly clear that the testator intended to give to his wife the improvement of his farm during her life or widowhood. And, having carved out this estate for her, he gave the remainder to his surviving sons, to be equally divided between them. Had he given generally to his sons, all who happened to be alive at his decease, viz., all who survived him, would have taken.

testator may be admitted to participate as members of the class, a subsequent time for distribution must be fixed, and not be left indefinite.76 This rule applies to gifts of powers, and to gifts in execution of powers."

§ 888. The Doctrine Generally Where Enjoyment of Benefits Depends Upon a Contingency.

The doctrine may be announced that where there is a simple devise to a class and the will does not, either expressly or by necessary implication, fix the time when the objects of the gift are to be ascertained or distribution made, the law will fix the time as of the date of the tes-f tator's death, that being the time from which the will speaks. Where the testamentary gift to a class by its own limitation takes effect in interest at a particular time, the members of the class who take are those who are in esse at such time; and where distribution is deferred to a subsequent period, the class will open up and take in those born before distribution. For instance, under a devise of an estate to A for life, to be divided after A's death among A's children in fee, the children of A living at the death of the testator take a vested remainder subject to open up and let in children thereafter born to A. The proportions which the members of the class are to take can not therefore be ascertained until the death of

The time when the estate was to be divided among the sons is certain and definite. It was when the intermediate estate terminated by the death or marriage of the tenant. Among whom was it to be divided? Not those who survived any prior event, not those who survived the father, but those who survived that particular event,

those surviving the death or marriage of the widow."

76 Butter v. Ommaney, 4 Russ. 70; Jenkins v. Freyer, 4 Paige (N. Y.) 47; Swinton v. Legare, 2 McCord Eq. (S. C.) 440.

Compare: Turner v. Patterson, 5 Dana (35 Ky.) 292.

77 Paul v. Compton, 8 Ves. Jun. 375; Harvey v. Stracey, 1 Drew. 73.