(a) Should beneficiary die before testator. In the event my brother R is living at the time of my death, I bequeath him the sum of dollars, but should my said. brother die prior to that time, I bequeath the said sum of the daughter of my said brother. dollars to my son D

dollars to M

9

I bequeath the sum of

but in the event of D

-'s death before mine, said legacy

shall not lapse but shall go to the children of my said son who are living at the time of my death.

(b) Gift upon condition. I bequeath to A- R now in my employ as butler, the sum of dollars upon the condition and in the event only that he remain in my employ until the time of my death, but in the event of his voluntarily quitting my service prior to my demise, then said AR shall receive nothing and said sum of -dollars shall go and be paid to my daughter R.

Note. See § 757.

(c) Gift dependent upon contingency. In the event of my death before my niece RC attains the age of eighteen years, I bequeath to her the sum of dollars, but should my said niece attain the age of eighteen years prior to my death, then and in that event my said niece RC shall take nothing under this will and dollars shall go absolutely and be paid

said sum of

to my niece LR

Note. See § 757.

the sum of

(d) Object of gift failing. I bequeath to my brother Rdollars to be used exclusively for paying the expenses of the last illness and funeral charges of our mother, but should our mother die before me, then my said brother shall take nothing by reason of the above bequest, but said sum of dollars shall go to my son

No. 20.

WORDS DESCRIPTIVE OF CLASSES OF BENEFICIARIES.

(a) "Children" and "issue."

(b) "Heirs."

(c) "Next of kin," "relations" or "legal representatives."

(d) "Nieces" or "nephews."

(e) "Cousins.”

(f) "Family."

(g) "Husband" or "wife."'

(h) To a class: Designating date when members of class are to be determined.

General Note.-As to words descriptive of classes of beneficiaries, see §§ 840-897. In wills we often find dispositions wherein "children," "issue," "heirs," "next of kin," or the like, are mentioned. The common understanding of such terms may differ from their legal meaning, or their effect may be changed by reference to the statute of distribution. Some terms are employed both as words of purchase and as words of limitation according to the manner of their use, the entire will being scanned to ascertain the testator's intention. Many controversies have arisen as to who were intended as beneficiaries and as to the date which determines who shall be included in the class. If such words as "children," "heirs," or the like are inserted with the intent that they shall take under the will, such purpose should be clearly expressed, as likewise should the date for ascertaining who shall be included in the class. These difficulties may be overcome, of course, by describing beneficiaries by name. This, however, makes the gifts individual and should one of the named beneficiaries die before the testator, the gift to him will fail unless the will direct that it shall go to the survivors. With gifts to a class the entire gift goes to those coming within the description of the class at the date of its ascertainment, suffering no diminution because of the prior death of one of the beneficiaries, but also including in the class those coming within the description who are born after the execution of the will. The testator often desires that such be included and therefore gifts to a class are common.

(a) "Children" and "issue." I bequeath the sum of dollars to the children, living at the time of my death, of my brother R, and to the issue, then living, of those children of my brother R who may have died prior to such time, the said sum to be divided between the living children of my brother R

and the issue,

if any, of any deceased child, per stirpes and not per capita, the issue of any deceased child to take only such share as would have gone to the parent of such had he or she survived me.

Note. Those included in the term "children," see §§ 840-847; and in the term "issue," see §§ 848, 849. "Children" as a word of purchase, see §§ 913, 952. "Children" as a word of limitation, see §§ 914, 953. "Issue" as a word of purchase or of limitation, see §§ 915, 946. If the issue of a deceased member of the class are to take in his stead, the testator should designate whether the division among all beneficiaries is to be per stirpes or per capita, since per capita distribution is often favored by the courts, but on the other hand is often controlled by the statutes of distribution, see §§ 868-872. For form as to proportion of distribution, see, post, form No. 22.

(b) "Heirs." I bequeath to the heirs at law of my uncle RC- the sum of dollars, I intending hereby to name as beneficiaries those who, at the time of my death, would succeed to the personal estate of my said uncle as if he had died at the moment of my death, the division among such heirs to be according to the right of representation as set forth in the statute of distribution regarding succession to personal estates.

I devise to AB that certain tract of land (insert description) for the term of his natural life, and at his death said property and all interest and estate therein is to go in fee simple and is hereby devised to those individuals who are my heirs at law at the time of my death, division among such heirs to be per capita.

Note. Those included in the term "heirs," see §§ 850-852. “Heirs" as a word of limitation, see §§ 910-912. The word "heirs" is not pri marily one of purchase, and if intended as such, it must be employed as descriptio personæ, see § 851. It is a term which must be used with caution.

(c) "Next of kin," "relations" or "legal representatives." I devise that certain tract of land (insert description) to A— B— for the term of his natural life, and at his death said property and all interest

therein is to go in fee simple and is hereby devised to those individuals who, at the death of A———— B- are his next of kin (or, his blood relations) (or, his legal representatives), being those who, at the death of A BB―, would succeed to his real estate if he should die intestate, said next of kin (or relations or representatives) to take in such proportion as they would have taken under the statute of distribution in the event of A- Bdying intestate.

Note. For definition of, and those included in, the terms, next of kin, see §§ 854, 855; relatives or relations, see §§ 856, 857, and representatives or legal representatives, see § 858. The use of the above terms is not to be recommended, since their meanings are not definitely established and their employment in a will may lead to needless litigation. And neither a husband nor wife is the heir, next of kin or relation of the other, see § 862.

(d) "Nieces" or "nephews." I devise that certain tract of land (insert description) to my nieces and nephews living at the time of my death; that is, the sons and daughters who may be living at said time, of my brothers and sisters.

Note. Those included in the term "nieces" or "nephews," see § 859. Unless the facts or the expressions in the will make necessary a construction to the contrary, nieces and nephews comprise only those related by consanguinity and not by affinity.

(e) "Cousins." I bequeath the sum of dollars to my first cousins and the sum of dollars to my first

cousins once removed.

Note. Those included in the term "cousins," see § 860.

(f) "Family." I bequeath the sum of

the family of A

dollars to

Note. The word "family" is here equivalent to "children," and does not include "A" or his wife. A gift to "A and his family" would include "A" jointly with his children, see § 861.

M

(g) "Husband" or "wife." I bequeath to my wife

Note. As to the effect of divorce, see §§ 765, 864. Effect of an illegal marriage, see § 863.

I bequeath to my widow the sum of

dollars.

Note. This means the wife surviving the testator, see § 765. Neither a husband nor wife is the heir or next of kin of the other, see § 862.

(h) To a class: Designating date when members of class are to be determined. I bequeath the sum of dollars to the children living at the time of my death, of my brothers R and C————— and of my sister M—. I bequeath the sum of ——— dollars to the present born children of my brother and sister R and C——————. dollars to the children now

I bequeath the sum of living, of my brother R

R.

I devise that certain tract of land (insert description) to AR for his use for the term of his natural life, and at his death to pass in fee simple to his children living at his death.

Note.-Gifts to a class generally, see §§ 873-897. Effect of statutes to prevent lapse, see §§ 874, 875. Designating beneficiaries by name as well as a class may cause the gift to be considered as though to individuals, see § 877.

Unless otherwise specified in the will or made necessary by the nature of the gift and the postponement of its vesting, the class includes those answering the description at the date of the testator's death; when the class is determined, after-born persons, though answering the description, are not admitted, see §§ 876, 881-883, 889. If the gift to a class is the remainder over after a life estate, generally the class comprises those living at the death of the life tenant, see §§ 887-890.

(b) Gift preceded by life estate.

(c) Gift to named beneficiaries or survivors.