description at the time of the testator's death, and the further rule that the mere circumstance that the person to whom the previous life interest is bequeathed is also one of such next of kin, observed that the application of these rules can only be prevented by a clear indication in the will that in the particular limitation in question the testator did not intend them to be applied. "For this purpose," he said, "the intention must be clear and unambiguous. These words of futurity are insufficient." However, upon an elaborate review of the authorities, he held the words of this particular will were sufficient to exclude the rule, and that the next of kin must be ascertained as at the time of the succession opening. This decision was followed by PORTER, M. R., for Ireland, in Valentine v. Fitzsimons, 1894, 1 Ir. 93. The con In Bullock v. Downs (1860), 9 H. L. C. 1, there was a gift of residue in trust for his son for life, and after his death, if there was not any child of the son, "then to stand possessed of the same in trust for such person or persons of the blood of me as would, by virtue of the Statutes of Distribution of Intestates' Effects, have become, and been then entitled to, in case I had died intestate." It was held that, on the death of the son without issue, the bequest took effect as a vested interest in the statutory next of kin of the testator, ascertained as at the time of his death, namely, the son (the life tenant) and the testator's four daughters; and that the residue accordingly became divisible into five shares, of which the personal representatives of the son took one, and his sisters (daughters of the testator) the other four shares. struction was explained by Lord CAMPBELL, L. C., as follows: "The son was one of the class who, as next of kin of the testator, would have been entitled, at the testator's death, to his personalty had he died intestate; and the son having died without having had any children, his personal representatives primâ facie are entitled to an equal share with his four surviving sisters." Then, after referring to Wharton v. Barker (supra), in which the Vice-Chancellor WooD found a clear indication of contrary intention, he said: "But in the will now to be construed nothing appears to indicate an intention in the testator contrary to the general rule; and, on the contrary, the second 'then' in this limitation seems expressly to refer to the time of the testator's death as the period when the class was to be ascertained.” The rule was followed, and the same construction of the word "then" applied, by the Court of Appeal and House of Lords, in Mortimer v. Slater, Mortimore v. Mortimore (1877), 7 Ch. D. 322, 4 App. Cas. 488, 47 L. J. Ch. 134, 48 L. J. Ch. 470. The testator in that case bequeathed £12,000 consols to trustees upon trust as to £3000, part thereof to pay the income to his daughter Sarah during her life, for her separate use and without power of anticipation, and after her death No. 26. Holloway v. Holloway. - Notes. in trust for her children. The will then proceeded: "And in case my said daughter Sarah shall die without leaving issue her surviving, then I will and direct that the interest and dividends of the said sum of £3000 consols be paid and divided to and among such of my said other daughters as shall then be living, and to the survivor and survivors, whether single or married, but to and for their sole and separate use and benefit. And from and immediately after the decease of my last surviving daughter, that the said sum of £3000 consols be paid and divided to and among the child or children of any such last surviving daughter; and if there shall be no such children, that the same be paid to such person or persons as will then be entitled to receive the same as my next of kin under the Statute for the Distribution of Intestates' Estates." There were similar trusts of sums of £2000 each for the other three daughters, Rebecca, Mary, and Frances, and their respective children, if any, with a similar gift over. Only one of the four daughters (Rebecca) married, and she left children; and on the death of the last survivor of the daughters, the question arose what became of the shares given in the first instance to the three daughters who died unmarried. The statement of claim asked for a declaration that the persons entitled to the three legacies of £3000 consols primarily bequeathed for the benefit of Sarah, Mary, and Frances, were the testator's next of kin, according to the Statutes of Distribution, living at his death, or the legal personal representatives of each of them as were dead." The Court of Appeal, reversing the decision of BACON, V.-C., considered that the case was covered by the authority of Bullock v. Downes, and declared the title in accordance with the statement of claim. The House of Lords unanimously agreed with the Court of Appeal. As to the interpretation of the words "heir" or "heir-at-law" used in relation to personalty, the question came before the MASTER OF THE ROLLS in Smith v. Butcher (1878), 10 Ch. D. 113, 48 L. J. Ch. 136. The testator, by a will made in 1820, and not attested so as to pass real estate, made the following bequest: "The rest of my property which may arise from debts due to me, money in the funds, or otherwise, from the sale of my furniture, books, and from any other source, I desire may be placed in the public funds, and the interest arising therefrom to be equally divided among the children of my brother during their lives, and on the decease of either of them, his or her share of the principal to go to his or her lawful heir or heirs." The question was who were the persons entitled under the words "lawful heir or heirs." The MASTER OF THE ROLLS held, on the authorities summed up by Lord ST. LEONARDS in De Beauvoir v. De Beauvoir, 3 H. L. C. 524, that the words "heir or heirs,' although used in relation to a gift of personal estate, must, in the absence of context showing a contrary intention, bear their ordinary and primary meaning as the heirs entitled to succeed to real estate. Smith v. Butcher was distinguished by KAY, J., in Re Stannard, Stannard v. Burt (1883), 52 L. J. Ch. 355, 48 L. T. 660, where the gift was "to the surviving sisters or sister of my wife or their heirs." KAY, J., observed that the use of the word "heirs," as a word of substitution, afforded sufficient context for the construction of "heirs" in the sense of next of kin entitled under the Statute of Distributions. A similar interpretation was adopted by PEARSON, J., in Keay v. Boulton (1883), 25 Ch. D. 212, 54 L. J. Ch. 48, 49 L. T. 631, 32 W. R. 591, where the testator gave real and personal estate to his wife on trust for herself for life, and requesting that after her decease the property should be divided amongst his children, "or such of them as shall be then surviving or their heirs." PEARSON, J., held that the surviving children and the "heirs" of the deceased children took together as forming one class; and that the "heirs," being intended to take by way of substitution, must take accordingly to the quality of the subject, the heir-at-law being substituted in respect of the realty, and the statutory next of kin in respect of the personalty. Smith v. Butcher (supra) was followed by PORTER, M. R., for Ireland, in In re Bishop & Richardson's Contract, 1899, 1 Ir. 71, where the testator divided lands in which he had a chattel interest to his son J. for life, "and at his decease to his eldest son or heir-at-law." These words he considered to be even more clearly in favour of the heir-atlaw than the words in Smith v. Butcher. AMERICAN NOTES. The principal case and the rule deduced therefrom state the law as it is generally declared by the American decisions. The heirs or next of kin of the testator to whom a gift over is made upon the contingency of a failure of other designated beneficiaries, are the persons having that relation to him at the time of his death. Rotch v. Rotch, 173 Massachusetts, 125; Rotch v. Loring, 169 id. 190; Shaw v. Eckley, 169 id. 119; Whall v. Converse, 146 id. 345; Minot v. Harris, 132 id. 528; Dove v. Torr, 128 id. 38; Minot v. Tappan, 122 id. 535; Kellett v. Shepard, 139 Illinois, 433; Lawrence v. McArter, 10 Ohio, 37; Ruggles v. Randall, 70 Connecticut, 44; Morris v. Bolles, 65 id. 45. 6 In Abbott v. Bradstreet, 3 Allen (Mass.), 587, 589, it is said in the opinion, that "the rule is well settled as a general rule of construction, that a bequest or devise to 'heirs' or heirs-at-law' of a testator will be construed as referring to those who are such at the time of the testator's decease, unless a different intent is plainly manifested by the will," that" where such an intent is plainly manifested, it will of course prevail," and that "this rule is a consequence of the preference which the law gives to vested over contingent remainders." In Fargo v. Miller, 150 Massachusetts, 225, 229, the Court say: No. 26. Holloway v. Holloway. — Notes. "The rule is undoubtedly the same when the devise or bequest is to the next of kin of the testator, as when it is to the heirs of the testator. The cases on this subject are collected in the opinion in Abbott v. Bradstreet, and subsequent decisions have emphasized the rule there stated." The rule was followed where the word "then" was inserted in the clause providing for a gift over to heirs, and is regarded as merely defining the time when the gift over is to vest in enjoyment, as where a testator, after devising the residue of his real estate to his daughters and the survivor of them until death or marriage, provided that, "after the marriage or death of my surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs." It was held that the devise over was to those who were the heirs of the testator at the time of his death. Dove v. Torr, 128 Massachusetts, 38. And see Welch v. Brimmer, 169 id. 204. Where a life estate is given to one who is the sole presumptive heir of the testator, and there is a gift over to the testator's heirs-at-law, it has been held in some cases that there is a presumption that the testator did not intend that the remainder should go to such life tenant, and therefore that the testator's heirs-at-law should be determined as of the death of the life tenant. Hardy v. Gage, 66 New Hampshire, 552; Pinkham v. Blair, 57 id. 226; Delaney v. McCormack, 88 New York, 174. In Welch v. Brimmer, 169 Massachusetts, 204, 211, Chief Justice FIELD, for the Court, said: "When a life estate is given to one, and the remainder on his death to the heirs-at-law of the testator, and the life tenant is one of these heirs, this fact alone has been held not sufficient to take the case out of the general rule that the heirs-at-law of the testator are to be determined as of the time of his death, unless it plainly appears from other provisions of the will that the testator's intention was that they should be determined as of some other time. But when the person to whom the property is given for life is sole heir presumptive of the testator at the time when the will is made, and will continue to be such if he lives until the death of the testator, unless there are some changes in the testator's family relations or in the laws, which the will apparently does not contemplate, whether that person will take a remainder given on the death of the life tenant to the heirs-at-law of the testator, if there is nothing else in the will to determine as of what time the heirs of the testator are to be ascertained, has occasioned a good deal of doubt. The present tendency of the law in England seems to be that this fact alone would be held not enough to take the case out of the general rule. In this Commonwealth the intimations are perhaps doubtfully the other way." Citing numerous cases. A testator devised property in trust for the benefit of one of his sons for life, and directed the trustees, in default of any issue of such son, to "convey and transfer the same to my heirs-at-law." This son died without issue, never having been married. Another son of the testator died before the son who was given a life estate, having in his lifetime been declared a bankrupt, and leaving a widow and children. It was held that the last named son took a vested interest in the trust estate which passed to his assignee in bankruptcy. Minot v. Tappan, 122 Massachusetts, 535. Of course the testator may, by proper words, fix upon some time subsequent to the testator's death for determining who are the persons entitled as his heirs or next of kin; and the testator's intention that these classes, or either of them, shall be determined at a time subsequent to his death, may be implied from the general provisions of the will. Thus, where a testator gave a fund in trust for his wife for life, with power to dispose of the same upon her death by her will, but providing that if she made no will, then part of the fund was to be paid to the testator's "heirs-at-law then surviving, they taking by right of representation," it was held that the bequest over was to those who were the testator's heirs-at-law at the time of his wife's death. The Court, by C. ALLEN, J., said: "The gift was only to heirs-at-law then surviving. There was no gift to any heir-at-law except to heirs-at-law surviving at the time fixed. It was necessarily wholly uncertain who would fall within that class. It was indeed possible that all of those persons who were heirs-at-law at the testator's death might die before the time would come for this gift to take effect. The remainder was contingent. It was not like a gift over to several persons named or clearly defined, with a provision that if one or more should die the survivors should take. In such case it has been considered that the remainder is vested, but determinable upon the happening of a contingency." Wood v. Bullard, 151 Massachusetts, 324, 333. And see Heard v. Read, 169 id. 216; Bigelow v. Clap, 166 id. 88; Codman v. Brooks, 167 id. 499; Blagge v. Balch, 162 United States, 439. WHERE, after a gift to tenants in common in tail, there is a gift over on failure of issue of all the tenants, they take cross-remainders in tail. Holmes v. Meynel. Devise. Estates Tail. Raym. 452-456. - Tenants in Common.- Gift over. - Cross On the demise of Francis Meynel of the moiety of the manors of Meynel-Langley and Kirk-Langley 300 messu- [452] ages, 500 acres of land, 200 acres of meadow, and 500 acres |