tached to the same, also all the furniture, bedding, library, etc., now in the house I now occupy, or may occupy at the time of my decease.

"Secondly. I give, devise, and bequeath to Harry G. McCartney, minor, and only heir of my late daughter, Jennie W. McCartney, wife of the late John G. McCartney, deceased, in addition to such other bequests hereinafter made, $30,000, which my executors are requested to pay over to him, the said Harry, when he arrives at the age of twenty-one years, together with the interest on the same, to be paid said Harry after my decease, yearly, and every year, or so much of said interest as he may require for his support and education, and the balance, if any, to be loaned on interest for his benefit.

"Thirdly. The remainder of my estate, both real and personal, that I may possess at the time of decease, my executors, if they should think it advisable to sell any or all of my real estate, they are authorized to do so; and all moneys received from such sales, and all other money that may, from time to time, come into the hands of my executors, I wish put at interest until there is a final division made of my estate, which I wish to be equally divided between the heirs of the said Henrietta that may be living at the time of said division, and the said Harry G. McCartney, each to share and share alike.

"Fourth. I would rather prefer not to have a division made of my estate until the youngest child of Henrietta arrives at the age of twenty-one years. But should any of the heirs, after arriving to that age, wish to engage in business, and wish to realize any portion of their interest in said estate, my executors can give them such an amount as they may think proper, and take their individual note or notes, bearing interest to be added thereto, and deducted from their respective portions of said estate, on the final division of the same; and should any of said heirs aforesaid, at the time of the final division of said estate, be considered by my executors to be incompetent or incapacitated, either in mind or body, or from intemperance, to take charge or manage their respective interests in said estate, my executors are hereby requested to pay such nothing more than the interest annually on their respective portions of said estate, until said incapacity does no longer exist. For the purpose of carrying out the foregoing will and testament, I hereby designate and appoint Franklin Osburn and David N. White my lawful executors."

The first question to be considered is, what is meant by the word "heirs," as it occurs in the third clause of the will? The lower court, in an able and elaborate opinion, reaches the conclusion that it means "children," and that the will should receive the same construction as if the word "children" was substituted for the word "heirs." On the other hand, the supreme court of Pennsylvania held that the word "heirs," in the connection stated, is used, in its most general and technical sense, to signify all such relations of Mrs. Osburn, whether lineal or collateral, as would, under the law, be entitled to succeed to Mrs. Osburn's estate upon her dying intestate before the dispositions of Warner's will take effect in interest. We can readily conceive of a state of facts that might well have happened under the will in which this difference of construction would have become important; yet, under the circumstances as they have actually transpired, it can be of little importance, if we assume, as both parties seem to do, that the time has already arrived when the objects of the testator's bounty are to be determined; for, whether the one or the other construction prevails, the same parties in either case will take. The utmost that can be claimed is that the use of the word "heirs," in the extended sense indicated, favors the theory that a division per stirpes was intended, and this we do not regard of sufficient importance to require special notice here. The general discussion further on must suffice for an answer to whatever there is in the claim suggested.

All of the provisions of the will considered, we have no doubt of the correctness of the conclusion of the court below in holding that the expression

"heirs of Henrietta" means simply the children of Mrs. Osburn. In the very next sentence following the one in which those words occur, the testator expresses a wish that the division of the estate which is referred to in connection with the expression "heirs of Henrietta" be deferred until the youngest child of Henrietta arrives at the age of 21 years. That the words "child of Henrietta" are here used in the same sense as "heirs of Henrietta" in the preceding sentence cannot seriously be doubted. Indeed, the supreme court of Pennsylvania admit this. It is true, the force of the admission is sought to be qualified by limiting it to what is said in reference to the time of division; yet it is not apparent, at least to the writer, how the word "heirs," when used in the same place in the same instrument, can mean a given class of persons for one purpose, and yet a different class of persons for another purpose. The testator, having, in the second clause of the will, spoken of Harry G. McCartney as the only heir of his deceased daughter, Jennie W. McCartney, and of the children of Mrs. Osburn as "heirs of Henrietta" in the third clause, then proceeds: "But should any of the heirs, after arriving at that age, [21,] wish to go into business," etc. Here the testator, by the expression "the heirs," evidently means to include the children of both of his daughters; thus bringing all his grandchildren, the remaining objects of his bounty, into a common class, and clearly placing them on a common footing, at least so far as that particular provision of the will is concerned. It is a matter worthy of note that the testator, at the time of making his will, was fully cognizant of the circumstances and surroundings of his family, none of whom were forgotten in the distribution of his property. One of his daughters was dead. She had left surviving her a son and only child. The other daughter was alive, having a living husband and seven living children around her. All this, with the exception of the number of Mrs. Osburn's children, appears upon the face of the will itself. His children, both living and dead, were clearly in his mind when drawing his will. Their issue equally occupied his attention. To Harry McCartney he refers by name, and also characterizes him as the heir of his deceased mother. The others he refers to by the title and description of "heirs of Henrietta," though their mother was then living, and consequently could have no "heir," in the technical sense of that term. Again, as we have just seen, he groups both sets of children together under the common designation, "the heirs."

Keeping all this in view, the conclusion would seem irresistible that the testator, in using the expression "heirs of Henrietta," must have meant simply the heirs of Mrs. Osburn. This view seems to be strongly confirmed by the use of the qualifying expression, "living at the time of said division," in connection with the words "heirs of Henrietta." Had the testator, by the latter expression, meant merely that indefinite class of relations entitled to take under the statute of descents, there would have been no occasion of using the qualifying words in question. Children are always liable to die, but the law never determined in any case who the heirs are till the ancestor dies. Consequently they are always at that time a living class. Dead persons never take. If, therefore, the testator, in using the words "heirs of Henrietta," meant nothing more than that indefinite, and then unknown, class of persons whom the law at the designated period would point out as her heirs, it is manifest the use of the words "living at the time of division" was wholly superfluous.

Following the line of argument pursued by counsel, we come now to the main question discussed in the briefs, namely, whether the rule per capita or per stirpes is to be applied in the division of the land in controversy. There is a question, however, underlying this, barely referred to in the argument, that first demands attention. If it should be conceded, for the purposes of the argument, that appellant, under the limitations of the will, is entitled to one-half the land in controversy, the important question would

still remain whether the children of Mrs. Osburn now suing have, under the limitations of the will, a present vested interest in the other half; for, if they have not, it is very clear they cannot maintain a bill for its partition.

Both parties agree that the devise in question is to a class, so far as the heirs or children of Mrs. Osburn are concerned, and of this there can be no question. The only thing about which they differ is whether, by the terms of the will, Harry McCartney is made a member of that class. Waiving this matter, and leaving him, for the present, altogether out of view, the question recurs, does the record before us show a present vested interest in the Osburn children?

It is believed to be universally true that where there is a simple devise to a class, and the will does not expressly, or by necessary implication, fix the time when the objects of the gift are to be ascertained, or when distribution is to be made, the law itself will fix it at the testator's death, that being the time when the will first speaks. In such cases, the gift to the devisees vests both in interest and possession at the same time, and after-born children will be excluded. This will fully appear from authorities hereafter cited. Every testamentary disposition is either to a specially designated person or persons, or to an indefinite class, which is liable to fluctuate from the births or deaths of such as come within the description of the class. When the devise is to the children of a living parent, the class is liable to fluctuate, from both causes, up to the time the gift takes effect in interest, which is most frequently at the death of the testator, but not always so. In the former case,-that is, where the devisees are specifically pointed out, whether by name or otherwise, if one or more of them die before the testator, the shares of those so dying will lapse; yet in the latter case the shares of those dying before the testator, or, indeed, at any time before they vest in interest, will not lapse, but will inure to the benefit of the survivors.

Strictly speaking, in contemplation of law, the class to whom a gift or devise is limited consists, in all cases, exclusively of such persons, coming within the description of the class, as are in esse at the time the gift or devise, by its own limitation, takes effect in interest, and such as are born before distribution, where distribution is deferred to a subsequent period. Those that die before the gift takes effect in interest are not regarded as having ever belonged to the class. It is morally necessary to remark that a gift or devise is said to vest in interest when the right of property first attaches, without regard to whether there is a present right of possession or not. When the right of possession accrues, the gift or devise is then said to vest in possession. In other words, the time of payment or distribution has then arrived.

Most of the cases to be met with in the books relating to the vesting of testamentary dispositions will be found to fall within one or the other of the following classes: (1) Where the gift takes effect, both in interest and possession, at the death of the testator; and this is always the case when limited per verba de præsenti, unless such vesting is expressly, or by necessary implication, deferred to a future period. (2) When the gift is so limited as to take effect, both in interest and possession, at a specified time subsequent to the testator's death. (3) Where it is limited to take effect in interest at the testator's death, but the vesting in possession is deferred to a future period. (4) Where the gift is limited in such a manner as to take effect, both in interest and possession, upon some contingency or event which may or may not happen till after the testator's death. If the event or contingency happens after his death, the gift will, of course, then vest absolutely; if before, it will then so vest at the testator's death. These several kinds of limitations are applicable alike to classes and individuals.

With respect to cases falling within the first and second classes above mentioned, nothing special need be said, except, perhaps, to remark that, where

the gift or devise is to a class, none will be permitted to take except such as are in esse at the time of distribution. This principle, however, applies to all gifts to classes, with the qualification that where the gift or devise is to a class as tenants in common, with no provision for survivorship, and one or more of the class die after the gift or devise has taken effect in interest, and before the time of distribution, the shares or portions of those so dying will go to their devisees, or, in case of intestacy, to their heirs or next of kin, as the case may be. Even where a gift or devise is limited to such of the children of a particular person as shall attain a given age,-21 years, for instance,—it is held the first child attaining the required age is entitled to have allotted to him his portion of the estate, and, since his share must necessarily be determined upon the basis of the number of children composing the class at that time, it is well established in such cases that after-born children, who would otherwise be entitled to take, are excluded. Gimblett v. Purton, L. R. 12 Eq. 427, (1871.)

While a gift to a class falling within the third or fourth division above mentioned will open to let in after-born children, subject to the limitation, they must be in esse at the time of distribution. Yet after the estate has once vested in interest, except in cases of joint tenancy, or where the right of survivorship is expressly or by necessary implication given, the shares of such as die before distribution will not inure to the benefit of the survivors, as they would do if the estate had not vested in interest before their decease, but will devolve upon the legal representatives of those so dying. Middleton v. Messenger, 5 Ves. 136; Evans v. Jones, 2 Colly. 516; Watson v. Watson, 11 Sim. 73; Walker v. Shore, 15 Ves. 121.

Cases falling within the third and fourth classes mentioned most frequently occur where a limited estate or interest in the property bequeathed has been just carried out, with a gift over, to take effect at a specified time, or upon the happening of some contingency, or the occurrence of some event, such as the death of the tenant of the particular estate, or of some other designated person. In ascertaining the period at which a gift vests in interest, the cases last mentioned are to be carefully distinguished from those in which no preceding estate or subordinate interest has been first carried out of the property devised; otherwise there will sometimes be an apparent conflict between cases, when, in fact, there is none at all.

The property involved in this case, however, is unaffected by the specific legacies to Harry McCartney, Mrs. Osburn, or to others. No preceding estate or subordinate interest is carved out of it. The devise is an original, absolute gift, to those entitled, at the time the will takes effect, in interest. This being so, the inquiry arises, is the limitation in the present case a simple devise to the children, to take effect in interest and possession at the death of the testator? Or does the gift vest in interest at his death, but not in possession till some future period? Or, again, does the gift take effect, both in interest and possession, at a period subsequent to his death? The rule is well settled that a gift of personal estate at a specified future time, or upon the happening of a certain contingency, will not vest till the time specified has arrived, or until the contingency has happened, as the case may be. But if the gift is general, and there is merely a simple direction that it be paid, or that the fund be distributed or divided at a specified time, or upon the happening of a like contingency, it will vest at the testator's death, and the payment or distribution only will be postponed. Chaffers v. Abell, 3 Jur. 577; Wadley v. North, 3 Ves. 364; Hixon v. Oliver, 13 Ves. 113; Mackell v. Winter, 3 Ves. 236, 536.

This distinction, however, by the current of authority, has no application to a devise of real estate. The rule was borrowed from the civil law by the ecclesiastical courts, and was followed by the other courts of England in respect to gifts of personal property only. As to real property, the courts went

in the opposite direction rather, even so far as to hold that a legacy charged upon real estate, and payable at a future day, sinks, as to the real estate, by the death of the legatee before the time of payment; and in such case the assets would not be marshaled. Pearce v. Loman, 3 Ves. 135. But since with us all debts are by statute made a charge upon real as well as personal estate, the rule or distinction in question has become practically of but little importance.

Recurring, now, to the more vital points in the case, we will say, in general terms, that, all the provisions of the will considered, we do not think it was the intention of the testator that the residue of his estate in question, including the property now in dispute, should be divided at his death. The language of the fourth clause is: "I would rather prefer not to have a division made of my estate until the youngest child of Henrietta arrives at the age of twenty-one years." These words leave no doubt as to what the testator's intentions and wishes were with respect to the time of distribution. Nor does the fact that his intentions are expressed in the form of a wish make them any the less imperative. It is a familiar doctrine in the law of wills that a clearly-expressed wish by the testator is equivalent to a positive direction or command. But the testator does not stop at this. In the following sentence he proceeds to authorize his executors to make advances to such of the children as should attain the age of 21, and should be desirous of going into business. These provisions of the will are wholly inconsistent with the theory that the persons entitled to take are to be ascertained, and the property distributed, at the death of the testator. Indeed, the whole scheme of the will forbids the adoption of such a theory. In this connection it is proper to remark that where a will, as in this case, contemplates distribution at a period subsequent to the death of the testator, the time must be fixed by the will itself. It cannot be left open, to be determined by the executors as whim or caprice may suggest. A will, therefore, should not be so construed as to confer such a power on the executors. Note B to Hill v. Chapman, 1 Ves. (Sumner's Ed.) 405; Jenkins v. Freyer, 4 Paige, 47; Butter v. Ommaney, 4 Russ. 70. By the English chancery rule, executors are given 12 months from the death of the testator in which to pay vested legacies, where a different period is not fixed by the will itself.

As we construe the will, the time of distribution is fixed when the youngest child of Mrs. Osburn attains the age of 21 years, a period which has not yet arrived. While, as we have just seen, a gift to a class may be so limited as to take effect in interest at the testator's death, and yet not vest in possession till a future period, still we do not think this is a case of that kind. As already seen, the general rule is that when there is a simple gift to a class, to be paid at a fixed time, or upon an event or contingency which may happen after the death of the testator, and nothing appears to show a contrary intention, the gift will vest in interest at the testator's death, and the time of distribution only will be deferred. If, however, the element of futurity is annexed to the gift itself, and is not merely indicative of the terms of judg ment, or of the time of payment,-is made descriptive of the class that is to take, the gift will not vest in interest till the time so fixed for payment or distribution has arrived. Williams v. Williams, L. R. 6 Ch. 782, (1870-71;) Festing v. Allen, 5 Hare, 573; Bull v. Pritchard, Id. 572; Vawdry v. Geddes, 1 Russ. & M. 203; Tayloe v. Gould, 10 Barb. 388; Burrows v. Stumm, 22 How. Pr. 169; Snow v. Snow, 49 Me. 159; Moore v. Smith, 9 Watts, 403; Illinois Land & Loan Co. v. Bonner, 75 Ill. 315; Collier v. Slaughter, 20 Ala. 263; Butler v. Butler, 3 Barb. Ch. 304; Radclyffe v. Bagshaw, 6 Term R. 512.

Waiving the consideration that the distinction between a gift at a specified time and a gift generally, to be paid at a like specified time, has no application to a devise of real property; and applying to the limitation under considera