however, wholly from other and quite significant language used in a different part of the will then under consideration, that the devisees took as a class, the intention of the testator to that effect plainly appearing. In re Wells (113 N. Y. 396; 21 N. E. 137), the devise was of "one-eighth part to each of five persons named, and one-eighth part to the children of three other persons,

* * *

to have and to hold the same to them, their heirs and assigns forever.'" Four of the devisees having died before the testator, it was held that the devise to them lapsed. In re Kimberly's Estate (150 N. Y. 90; 44 N. E. 945), where the gift was "unto my three sisters, Mary, Annie and Louisa," the court held that it was not to them as joint tenants, nor as a class, but as tenants in common, and, as one of the three died before the testator, that her devise lapsed, although the result was partial intestacy. The court based its conclusion upon the ground that the number of the donees was certain, and the share each was to receive was also certain, and in no way dependent for its amount upon the number who might survive.

(d) Testator's intention must govern.-"All questions of construction, must depend upon the intention. A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to individuals described by their several names and descriptions, though they together constitute a class, implies an intention to benefit the individuals named. In a gift to a class you look to the description, and inquire what individuals answer to it; and those who do answer to it are the legatees described. But if the parties to whom the legacy is given be not described as a class, but by their individual names and additions, though together constituting a class, those who may constitute the class at any particular time may not in any respect correspond with the description of the individuals named as legatees. If a testator give a legacy to be divided amongst the children of A at a particular time, those who constitute the class at the time will take; but if the legacy be given to B, C and D, children of A, as tenants in common, and one die before the testator, the survivors will not take the share of the deceased child. The question must be, was the intention to bequeath to those who might at the time constitute the class, or to certain individuals, who it was supposed would constitute it." (Lord COTTENHAM in Barber v. Barber, 3 Myl. & Cr. [Eng.] 688.) (e) Rule, when the gift is to take effect immediately on the testator's death. It is a famlliar rule that a gift to a class, to take effect immediately on the testator's death, includes only those who are living at that time. (2 Bigelow, Jarm. Wills, 6th ed., top pp. 167, 1010; 2 Redf. Wills, 9, 10, and authorities there cited.) In the case of Walker v. Williamson (25 Ga. 549), the testator ordered an equal division of his property among his children, share and share alike. Philip Walker, one of the children included in the will, died before the death of the testator; and some of his heirs at law filed a bill claiming that he was a legatee, and that they were entitled to a portion of his legacy. MCDONALD, J., in discussing this point, says: "Nothing could pass to Philip Walker, for he is not named, and at the death of the testator he was dead. He was not a child. Under that item of the will, then, there was no lapse into the estate of the testator of any interest in the negroes by reason of the death of Philip Walker in the lifetime of testator." It was further held in

that case that grandchildren cannot take under a bequest to children, unless there be something in the will to indicate and effectuate such intention. It was also held that, under a bequest to the testator's children, nothing would pass to a son who died in the testator's lifetime. In the case of Springer v. Congleton (30 Ga. 976), it was held that a legacy to "be divided between my two sisters' children, Elizabeth Jones and Martha Lilly, to wit." (naming the children), goes only to those who were children of the two sisters at the death of the testator; and one of the named children dying before the testator is to be considered as stricken from the enumeration. Judge STEPHENS, who delivered the opinion of the court, said: "This is a gift to a class, sisters' children,' and to individuals also, 'Naomi,' etc., the two ideas being supposed by the tes tator to be so perfectly coincident and harmonious that the one is really used as a description of the other. But we think the class was the leading idea. The blood seems to have been the motive, and we think the intention was that the gift should go to all who were children of those two sisters, and to none who were not children; that is to say, to all who answer the description, and to none who did not answer it, at the death of the testator,-that being the time at which the will speaks." In the case of Davie v. Wynn (80 Ga. 673; 6 S. E. 183), the bequest is to the son for life, and at his death to his children, share and share alike, but, if he died leaving no children, then the same, at his death, to go share and share alike, to his nephews and nieces, the children of his deceased brother, John L., and of his deceased brother-in-law, John Wilkinson. Two of the testator's nieces, children of John Wilkinson, died in the testator's lifetime, leaving issue; and it was held that the devise was to a class, and the nieces who died before the testator were not included therein. This class was referred to and approved in the case of Tolbert v. Burns (82 Ga. 213; 8 S. E. 79), where it was again held that, one of a class having died before the making of the will, her daughter took no share in the devise.

(f) When the distribution should be per capita.— The general rule is, that where there is a gift to a class of persons, without any direction as to the proportions in which the individuals of the class are to take, all who can bring themselves within the class are entitled to participate in the distribution, which must be per capita. But where the gift is to a class, the individuals of which can only be ascertained by a resort to the statute of distributions, then the provisions of the statute must also be resorted to for the purpose of ascertaining the proportions in which the donees are to take, unless, in the instrument by which the gift is made, a different rule of distribution shall be prescribed. (Templeton v. Walker, 3 Rich. Eq. 543). If, therefore, the gift is to a class of person's designated as heirs of a particular person, then, it is necessary to resort to the statute to ascertain who are the individuals composing the class; resort must also be had to the statute to determine how or in what proportions such individuals shall take. This is upon the presumption that the donor having, by implication at least, referred to the statute as to the persons who are to take, also intended that reference should be had to the statute to determine the proportions in which they should take, unless he expresses a different intention. But when he prescribes a different mode of distribution, then no such presumption can arise, and the distribution must be made in the manner preVOL. III-15

scribed. Thus when, as in Freeman v. Knight (2 Ired. Eq. 72), the testator directed that certain personal property "should be sold and the proceeds equally divided between my legal heirs," it was held that, though a resort to the statute was necessary, in order to ascertain who were the persons embraced in the class to whom the bequest was made, there was no such necessity to refer to the statute to ascertain the mode of distribution, because the testator had himself determined that, by directing an equal division; and hence the proceeds of sale should be distributed amongst the widow and children, and the children of predeceased children, per capita and not per stirpes.

SECURITY COMPANY VS. SNOW et al.

[Supreme Court of Errors of Connecticut, January 21, 1898; 70 Ct. 288; 39 Atl. Rep. 153.]

TESTAMENTARY TRUSTS-SUCCESSION-PERPETUITY.

1. A devise which seeks to limit the remainder of a trust estate to the lawful heirs of the beneficiary will be declared void, as contravening the rule against perpetuities.

2. The doctrine of approximation, otherwise known as the doctrine of cy pres, can never be invoked where its application would sacrifice the main object of a testator to one of his incidental purposes.

3. A testamentary trust, that terminates upon the death of the original trustee, cannot be continued or revived by the personal representatives of the deceased trustee, for the reason that such a trust is strictly personal, whenever it invests in a trustee the exercise of discretionary powers.

CASE reserved for the determination of the full bench by an order of the Superior Court entered at a term held in and for the county of Hartford.

Hon. SAMUEL O. PRENTICE, Presiding Judge.

Charles E. Gross, for Security Co. and others.

John T. Hubbard and Charles D. Burrill, for defendants, Alice D. and Charles D. Burrill.

Alpheus II. Snow, in pro. per., and for defendant, Ellen Snow.

Bill by the Security Company against Alpheus H. Snow and others for the construction of a will.

Suit by a testamentary trustee for the construction of a will, brought to the Superior Court for Hartford County, and reserved for the advice of this court on the complaint and answers. From these the following facts appeared: The testator, Alpheus F. Snow, of Hartford, died in 1886, leaving a widow, a son, and two daughters. His will, dated in 1884, made provision for his widow, and then disposed of his residuary estate as follows: "All the rest and residue of my property and estate, wheresoever being, I give, bequeath, and devise in equal proportions to my son, Alpheus H. Snow, to my daughter, Ellen Snow, to my daughter, Alice D. Snow, to them and their heirs, forever; the railroad stocks to be divided without sale, but the share of my daughter Alice in such stocks not to be transferred to her until she shall be twenty-seven years old; the dividends thereon in the mean time to be paid to her by my executor, and the legacies to my daughters, in case of marriage, to be to their sole and separate use, free from the control or interference of their husbands." In 1885 he made a codicil to this will, in two articles, as follows: "(1) I revoke and annul any and all gifts, bequests, legacies, and devises to my daughter Alice D. Snow in or by virtue of said last will and testament. (2) I give, bequeath, and devise to my wife, Sarah M. Snow, any and all property and estate which was given, bequeathed, and devised to my said daughter in and by virtue of said last will and testament, in trust, however, to be invested and managed by my said wife, and to be paid and delivered and conveyed by my said wife to my said daughter from time to time during her natural life, as my said wife may deem for the interest and welfare of my said daughter; and any portion of said property and estate or the net income thereof which shall not be paid, delivered, and conveyed as aforesaid to my said daughter during her natural life shall at her decease be paid, delivered, and conveyed to her lawful heirs." His estate was duly settled, and certain personal estate was distributed and transferred to the widow in trust for Alice, and certain real estate in Hartford surrendered to her as such trustee. There was also residuary real estate of the testator in other states. The widow never paid over any of the principal of the estate distributed to her in trust, but she received from time to time, as trustee, proceeds of land in another state, sold by the executor under a power

in the will, and of timber sold therefrom, and paid them over to Alice from time to time, including them with the annual incomeof the trust in her accounts as trustee rendered to the Court of Probate. The widow died in 1895, and in January, 1896, the plaintiff was appointed trustee in her stead by the Court of Probate. It claims, as such, title to certain lands both in and without the state. Alice intermarried with Charles D. Burrill two months before her father's decease, and they have two minor children, and have had one who is not now living. She claims to have demanded from the plaintiff in June, 1896, a delivery of the trust estate to the owner in fee thereof, which the plaintiff refused. Shortly afterwards Alice D. Burrill et al. brought an action in the Superior Court for Hartford county to enforce said demand, which is still pending. The trustee asked the direction of the court as to the following questions: "(a) Is the gift over to the lawful heirs of Alice D. Burrill at her decease a gift of the estate to her lawful issue, or is the gift void? (b) Even if said gift over is void, does not the trust continue as applicable to the whole of the trust estate during the life of said Alice D. Burrill? (c) Was the discretionary power given by the testator to his wife 'to pay, deliver, and convey said trust estate from time to time to his said daughter Alice D. Burrill, during her natural life, as she might deem for the interest and welfare of said daughter,' a personal discretion, to be exercised only by his said wife, or can said discretionary power be exercised by the plaintiff as trustee under said will by succession? (d) Is the said Alice D. Burrill entitled to demand and receive from the plaintiff at this time any portion of the principal of said trust estate?" Alpheus H. Snow, Ellen Snow, Mr. and Mrs. Burrill, and their children were made defendants, and answers were filed by all, admitting the truth of the allegations in the complaint.

BALDWIN, J.-The main scheme of the will in question was to make suitable provision for the testator's widow, and then divide his residuary estate equally between his three children; the shares of his daughters, in the event of their marriage, to be held to their sole and separate use. The codicil was made for the single object of placing the share of Alice under the control of his wife, as