Sm. & G. 83; Goodier v. Johnson, 18 Ch. D. 441. Undoubtedly this is true. And, as was said In the leading case of Brattle Square Church v. Grant, 3 Gray, 142, 152, 153, 63 Am. Dec. 723, quoted and followed in Sears v. Putnam, 102 Mass. 5, 7: “In order to test the legality of a limitation it is not sufficient that it be capable of taking effect within the prescribed period; it must be so framed as ex necessitate to take effect, if at all, within that time." As has been stated, a remainder that could not become vested until the death or remarriage of the surviving husbands or wives of the testator's children might by possibility not take effect until after the expiration of the prescribed period, and so could not be sustained. Gray on Perpetuities (2d Ed.) § 214, and cases there cited. Remainders, however, that should appear to be so limited as necessarily to vest in interest within the period limited by the rule would be valid, even though the actual payment and transfer to the beneficiary, the right to actual possession and enjoyment, might be postponed to a later period. Stone v. Forbes, 189 Mass. 163, 172, 75 N. E. 141; Loring v. Blake, 98 Mass. 253, 259; In re Appleby [1903] 1 Ch. 565; Chistie v. Gosling, L. R. 1 H. L. 779; Wainwright v. Miller [1997] 2 Ch. 255; Roberts, In re, 19 Ch. D. 520. Accordingly it becomes material to determine whether the interests here given in remainder were vested or contingent.

This question must be settled upon the fair construction of the language used by the testator, so as to ascertain and carry out the intent shown by the words he has used. Crapo v. Price, 190 Mass. 317, 76 N. E. 1012; Pearks V. Moseley, 5 App. Cas. 714, 719. That language has already been quoted and need not be repeated. It is in substance a direction to his trustees upon the death of any of his sons to pay his (son's) share of income to his widow, if any, during her widowhood; and upon the death of any of his daughters, to pay her share of income to her surviving husband, if any, for life, and upon the death of any of his children leaving no surviving widow or husband, or the death of any surviving husband or the death or marriage of any such widow, to pay or transfer a proportional share of the principal sum to the issue, if any, of his deceased son or daughter, and in default of such issue at the time of such decease or marriage, to pay or transfer such share to the heirs at law of such deceased son or daughter.

It has been argued that the words "in default of such issue at the time of such decease or marriage" can refer only to the death of a child unmarried or of a surviving husband or the death or remarriage of a surviving wife; but we are of opinion that these words have a somewhat broader signification and must be taken to refer also to the death of a child of the testator, whether or not leaving a surviving husband or wife. It follows accordingly that the final limitation to the heirs at law of the respective children of the testator is also made to depend

upon either one of two separate and distinct events, first, the failure of issue at the death of the child, and, second, such failure at the death or marriage of the child's surviving husband or wife. That is, this part of the will must read as if the words had been, "and in default of such issue at the time of the decease of my sons or daughters, respectively, or of the decease of the surviving husband of any of my daughters, or of the decease or marriage of the widow of any of my sons, the same [share of the trust fund] shall be paid or transferred to the respective heirs at la of such my deceased son or daughter." Manifestly this is a limitation upon the happening of either one of the alternative events, which have been separated and distinguished by the testator himself. See the cases cited supra. The first of these events must happen, if at all, within the necessary limit of time; and it actually has so happened in the cases of John M. Whittemore, a son, and Mrs. Lucas and Mrs. Cowles, daughters of the testator, each one of whom has died, leaving respectively a wife or a husband, but no issue. In each of these cases, we are of opinion that the limitation to the heirs at law of the deceased child took effect and became vested upon the decease of that child, though subject in each case to be postponed as to actual possession and enjoyment until the termination by death or marriage of the life estate given to the surviving husband or wife. The doctrine was declared in this commonwealth by the case of Loring v. Blake, 98 Mass. 253. In the case of John M. Whittemore, the life estate of his widow came to an end in 1863 by her remarriage; in the cases of Mrs. Lucas and Mrs. Cowles, they came to an end respectively in 1904 and 1905, by the deaths of Edmund G. Lucas and John E. Cowles. Accordingly, the share of which John M. Whittemore, and after his death until her remarriage, Josephine P. Thwing received the income was properly distributed by the then trustees to his heirs at law in accordance with the directions of the will; and the shares of which Mrs. Cowles, and after her death John E. Cowles, and of Mrs. Lucas and after her death Edmund G. Lucas, received the income should now be distributed among the heirs at law of Mrs. Lucas and Mrs. Cowles respectively.

Three of the testator's children, Benjamin B. Whittemore, Joseph Whittemore, and Mrs. Ruggles, diéd, each leaving issue and also a surviving wife or husband. In each of these cases it remains to be determined whether the issue took at or before the death of their parent vested interests in proportionate shares of the fund, or whether their remainders were contingent only, and could not become vested until the subsequent death of the surviving husband or wife of their respective parents. If the remainders to the issue of these three children were vested prior to the death of their parent, or even if prior to that time they were contingent merely, but became vested upon the deaths of their respective parents, then it is evident, both as a matter of sound

reason and upon the authorities heretofore cited, that their interests not only did in fact vest, but of necessity must vest, before the period fixed by the rule against perpetuities, i. e., a life or lives in being and 21 years thereafter, could expire. In that event, it would not be necessary to determine whether the further limitation to the heirs at law of these children upon a failure of issue at the subsequent death or marriage of their surviving husbands or wives could take effect otherwise than by way of executory devise divesting the absolute interests that would already have become vested in such issue in favor of the heirs at law of their ancestor, and whether it would not thus be obnoxious to the rule against perpetuities and would have to be treated as void, or whether it could be maintained as a remainder vesting either at the death of the testator or at the respective deaths of these children. See as to this, besides other cases cited herein: Loring v. Blake, ubi supra; Dove v. Torr, 128 Mass. 38; Hancock, In re (1901] 1 Ch. 482. If the final limitation is valid, then a fortiori that which we are now considering must be sustained. If it is invalid, yet the rule is settled that an absolute bequest which once has vested in interest in the beneficiary will not be divested for the benefit of the testator's heirs at law merely because a subsequent limitation, which is intended to take effect either as an executory devise or by reducing in the contingency named the absolute interest previously given to a base fee, must fail of effect. Goodier v. Johnson, 18 Ch. D. 441. As was said in Lovering v. Worthington, 106 Mass. 86, 83, “the general rule is that if a limitation over is void for remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted. If the prior gift was in fee, the estate vests in the first taker discharged of the limitation over; if for life, it takes effect as a life estate." Sears v. Putnam, 102 Mass. 5. In the case at bar, the gift to the issue of these children, if a vested interest, is absolute, or in fee; if the final limitation over to the children's heirs at law was valid, yet it has not taken effect, for there was no failure of issue on the death of the surviving husband or wife; if the final limitation is invalid, it is simply to be disregarded, and the issue retain the absolute estate which has once vested in them. Brattle Square Church v. Grant, 3 Gray, 142, 156, 63 Am. Dec. 725. Accordingly, if by the proper construction of the will the remainders to the issue of the three last-mentioned children of the testator became vested interests either prior to or at the respective deaths of those children, then the further limitation to the heirs at law is simply to be disregarded, and the estates given to the issue remain absolute. Nor need we consider whether the issue of these children, each one of whom left a surviving husband or wife, took vested remainders before the deaths of their parents ; for it is enough here if such remainders became vested at the time of such deaths. If Joseph Whittemore's son,

John St. Clair Whittemore, who died before his father, had such a vested interest, then upon his death leaving a daughter, his interest passed to and became vested in her. Lee v. Welch, 163 Mass. 312, 39 N. E. 1112; Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 303, 25 Am. St. Rep. 643; Hills v. Barnard, 152 Mass. 67, 25 N. E. 96, 9 L. R. A. 211; Hall v. Hall, 140 Mass. 267, 2 N. E. 700; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811. The issue takes per stirpes. Coates v. Burton (Mass.) 77 N. E. 311; Daggett v. Slack, 8 Metc. 450.

Did then the issue of these children take vested remainders at any rate upon the decease of their respective parents? It is a general rule of construction that when the language used by a testator is of doubtful import remainders will preferably be regarded as vested, unless a contrary intention is to be gathered from the provisions of the will. Minot v. Purrington (Mass.; Feb. 28, 1906) 77 N. E. 630; Bosworth v. Stockbridge, 189 Mass. 266, 75 N. E. 712, and cases there cited; Knowlton v. Sanderson, 141 Mass. 323, 6 N. E. 228; Minot v. Harris, 132 Mass. 528, 529; Dingley v. Dingley, 5 Mass. 535, 537. As was said by Knowlton, C. J., in Bosworth v. Stockbridge, ubi supra, “Hale v. Hobson, 167 Mass. 397, 45 N. E. 913; Harding v. Harding, 174 Mass. 268, 54 N. E. 549, and others cases relied upon by some of the respondents, are not departures from this rule: but they are cases in which the court found in the will evidence of a clear intention that the estate should not vest until the death of the life tenant.” And it is to be observed that all the limitations here in question are to the direct descendants of the testator; a circumstance which has been deemed to warrant the inference that vested rather than contingent remainders were intended to be created. Gibbens v. Gibbens, 140 Mass. 102, 104, 3 N. E. 1, 54 Am. Rep. 453; Stanwood V. Stanwood, 179 Mass. 223, 60 N. E. 584; Bancroft v. Fitch, 164 Mass. 401, 41 N. E. 661. The rule is the stronger when the remainders limited would be void for remoteness if held to be contingent. Loring v. Blake, 98 Mass. 253, 260; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Twiney, In re [1899] 2 Ch. 739, 747; St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Post V. Hover, 33 N. Y. 593; McBride's Estate, 152 Pa. 192, 25 Atl. 513. A somewhat strained construction has sometimes been adopted. Taylor v. Frobisher, 5 De G. & Sm. 191; Bakeley V. Swinburne, 16 Sim. 275. But apart from any such general rule of construction we think it manifest that the intention of the testator was that the issue of his children should take a fixed and vested interest, at least at the time of the decease of their respective parents. Otis v. McLellan, 13 Allen, 339. It was expressly held in that case upon a limitation to issue postponed in actual payment in substantially the same manner as in the case before us until the death of any surviving husband or wife, that the right of the issue vested in interest upon the death of the children of the testator, subject only to the life estate of any surviving husband or wife in the income. The mere fact that the actual payment and transfer to the issue is not to be made until the expiration of the previous life estate is not enough to control this intent. Otis v. McLellan, ubi supra. Evans v. Walker, 3 Ch. D. 211; Wainwright v. Miller [1897] 2 Ch. 255; Siddall's Estate, 180 Pa. 127, 36 Atl. 570.

Accordingly we are of opinion that the remainders severally limited to the issue of Benjamin B. Whittemore, Joseph Whittemore and Abbie E. Ruggles vested in such issue at the decease of their parents, though the right of present possession was postponed in each case until the expiration of an intervening life estate. Lombard v. Willis, 147 Mass. 13, 16 N. E. 737; Pike v. Stephenson, 99 Mass. 188; Bowditch v. Andrew, 8 Allen, 339. Not only is this construction in accord with the manifest intent of the testator and effectual to accomplish the object which he had in view, but the opposite construction “would defeat that purpose by creating a perpetuity which the law would not sustain. In such a case the court is

. bound to adopt that construction which will sustain the will and effectuate the objects of the testator.” Loring v. Blake, 98 Mass. 253, 260; Galland

Galland v. Leonard, 1 Swanst. 161; O'Mahoney V. Burditt, L. R. 7, H. L. 388. In the cases in which the life estate has now terminated, the plaintiffs are therefore to be instructed that distribution is to be made to the issue of the testator's children, if any.

It has been argued in behalf of Mrs. Thwing that the distributions which were made by the then trustees upon her remarriage and the deaths of Thomas Whitteinore, Otis T. Ruggles and Eliza Gifford of the four shares to the income of which they had respectively been entitled were erroneously made; but it has been found by the single justice before whom this case was heard that these distributions were all made in accordance with the directions of the will. It results from what has already been said that these distributions were properly made. Mrs. Thwing could have had no dower or in. terest in the nature of dower in real estate of which her husband had in his lifetime no present estate of inheritance. "A widow is not entitled to dower in a vested remainder. dredge v. Forrestal, 7 Mass. 253; Brooks v. Everett, 13 Allen, 457." C. Allen, J., in Watson v. Watson, 150 Mass. 84, 85, 22 N. E. 438. She cannot as doweress be regarded as an heir of her husband. Proctor v. Clark, 154 Mass. 45, 50, 27 N. E. 673, 12 L. R. A. 721. Nor has she the rights of a distributee, under the limitations of this will. Fabens v. Fabens. 141 Mass. 395, 399, 5 N. E. 650; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766. Her deceased husband of course could not have been an heir at law of his brothers

and sisters who xirvived him. Even if Mrs. Thwing's rights had been disregarded in these distributions, it would be at least difficult to say that any errors in them could now be corrected, after they have been allowed by decrees of the probate court, which are found to have been made after proper notice. See Minot v. Purrington, 190 Mass. 336, 77 N. E. 630, and cases there cited. Nor is it necessary to consider how far any of the parties objecting to these distributions, which appear to have been made respectively in 1863, 1872, 1877, and 1898, are barred by laches from now sustaining objections to them, after having acquiesced in them since the times stated. Lindsey V. Fabens, 189 Mass. 329, 75 N. E. 623; In re Whittemore, 157 Mass. 46, 35 N. E. 93;

, Wagner v. Baird, 7 How. 234, 12 L. Ed. 681.

It is necessary also to determine who are the persons entitled to take under the designation "heirs at law” of deceased children. In each of the cases in which such heirs take under the limitations of this will, they are necessarily to be determined at the death of the particular child in question. Dove v. Torr, 128 Mass. 38; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; International Trust Co. v. Williams, 183 Mass. 173, 66 N. E. 798. It is because the limita

. tion in their favor must take effect at that time that its validity has been sustained in what has been said heretofore. And we think it manifest that by these words, in the connection in which they are used, the testator intended to designate those who under the law of this commonwealth would inherit the real estate of the persons whom they represent. This case comes under the rule of Clarke v. Cordis, 4 Allen, 466, and Lombard v. Boyden, 5 Allen, 249, in which it was held that where real and personal estate are included in a single provision, by which the income is to be paid to life tenants, and at the expiration of the life estates the trustees are to pay and transfer the whole property to the legal heirs either of the testator or one of the life tenants, there being no indication that more than one class is intended or that the two kinds of property are to go in different directions, the whole property will go to those who are technically described as heirs. Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699; Olney v. Lovering, 167 Mass. 446, 448, 45 N. E. 766; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215; Fabens v. Fabens, 141 Mass. 395, 5 N. E. 650; Merrill v. Preston, 135 Mass. 451; Rand v. Sanger, 115 Mass. 124, 128; Holbrook v. Harrington, 16 Gray, 102, 101; Daggett v. Slack, 8 Metc. 450, 453. An apparently stronger statement of this doctrine in Loring v. Thorndike, 5 Allen, 257, turns upon the evident intention of the testator. In the cases in which, under somewhat similar circumstances the word "heirs" has been construed to have other than its common-law meaning, so as to include