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plying to objects living at the death of the testator, is confined to those cases in "which there is no other period to which such survivorship can be referred; and "that where such gift is preceded by a life or other prior interest, it takes effect in "favor of those who survive the period of distribution, and those only.'* This rule, "as one of general construction, applies specifically to the present case."

I ask the court to observe whether this is not the same rule and the same reason that were laid down in Hawes v. Hawes, and Wordsworth v. Wood?

The court then states the circumstances of this case, and proceeds:

"Here then applies, with literal exactness, the rule expressed by JARMAN. The "will provides for survivorship. It is indefinite in its terms and the RULE SOLVES THE " DOUBT by applying the language of the testator to those who survive the period of "distribution.

"In the late case of Marriott v. Abell, the Vice Chancellor uses the following language: 'All these are cases of intention, and the rules adopted by the court "have regard to the probable intention. One sees that if there be a gift, either of "real or personal estate, to one for life, or a limited period, and then a gift to a "class, and the survivors or survivor of that class, the word survivor is uniformly referred to the period of distribution. This was settled by Cripps v. Wolcott, with respect to personal estate, and Now by Gregson's Trust Estate, overruling Doe v. "Prigg, as to REAL ESTATE.'

The cases upon which counsel have relied to refer this survivorship to any other period than that of distribution are, therefore, all based upon the case of Doe v.. Prigg, and Doe v. Prigg is overruled, and is overruled in this State. It is this de-vitalized and overruled case, notwithstanding, over which my brother MCCAGG has been carrying on his battle as over the body of Patroclus, but as it is slain, he is free to retire with it to his black-beaked ships, and he may make his funeral obsequies there as imposing as he likes.

Not only in Illinois, but in many other States, the same rule has been followed. In Sinton v. Boyd, the court said:

"The ancient holdings on this subject have been much modified by more recent "decisions. Also the soundness of the distinction, taken between real and personal estate, has been questioned until it has nearly or quite faded away."

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The court then cited the case of Young v. Robertson, supra, in the House of Lords, and the statement of the rule in that

case by the Lord Chancellor that words of survivorship should be referred to the period "for the payment or distribution of the subject matter of the gift,” and then proceeded :

"This undoubtedly is the general rule recognized in this country, subject of course to such modifications as the paramount rule, giving effect to the intention "of the testator may require."

Such is the rule generally recognized in this country.*

I think it important, at this point, to say something upon two or three cases, which have been cited by Mr. McCagg.

I refer first to the case of Beckwith v. Beckwith. It is sufficient to say that in this case, no element of survivorship entered into its decision. The V. Ch. HALL says, at the outset: "The construction of this will is open to "considerable doubt; but on the whole, my view of it is, that in "this particular case, the gift over cannot be properly construed "as a gift to the survivors." There is no reference to the cases upon survivorship, and it is manifest that he had no idea he was dealing with any rule or principle affecting that subject. The case turned upon the effect of the word "other." The other cases referred to are the cases of Cusack v. Reed, Bullock v. Downes, and In re Dawes Trust. These are cases of gift to "next of kin," except the case of Dawes' Trust, which is a gift "to children." I may be allowed to express a little surprise at the citation of these cases upon the question under discussion. If cases of this class were to be cited, surely counsel need not have confined himself to these. There may readily be found in the books a multitude of cases where, in gifts to "next of kin," or "to children," the class is held to be ascertained by entirely different rules from that governing gifts to survivors of a class. The court will observe that in all the many cases that have been cited upon the reference of words of survivorship, in the cases where the gift is to survivors of a class, these cases re

lating to next of kin and children never occur, cited either by court or counsel; and vice versa, in the cases where the gifts are to "next of kin" or "to children," the cases concerning gifts to survivors of a class never appear. The simple reason is, that it is well understood that there is no relationship between these classes of cases. It is a well settled rule that in gifts to "next of kin," the class is ascertained at the death of the testator, and by an analogous rule in gifts to children. It is an equally well settled rule, that where there is a life or other prior estate, and then a gift to survivors of a class, the class of survivors is ascertained at the period of distribution or payment of the subject matter of the gift. These rules are so well settled that the cases relating to one rule are never cited as having any reference whatever to cases under the other. Thus THEOBALD, treating of gifts "to children," and the rules for ascertaining the class, says, page 142:

"If the gift is immediate, the class of children to take is ascertained at the "testator's death, if there are any children then living. * * *

"If the gift is in remainder, all children born at the death of the testator, "and coming into esse before the death of the tenant for life, take a share to the "exclusion of those born afterwards."

For further details of the rule concerning gifts "to children," we refer the court to the chapter on that subject. In the chapter treating of gifts to "next of kin," he says, page 172 :

"The terms, next of kin and heirs, have a direct reference to the death of "the ancestor, and therefore next of kin and heirs are to be ascertained at the death "of the ancestor; and where there is in addition a reference to the statute or to in

testacy, this rule is almost without exception. The same rule applies to realty, personalty, and to a mixed fund. Cusack v. Rood, 24 W. R., 391."

In the chapter treating of gifts to "survivors," he says, page 358:

"The general rule is, that when the survivorship is upon death merely, the "time of distribution is the limit of defeasibility. Survivorship is to be referred to the period of division.' ***The same rule applies to realty as to personalty."

Certainly these rules have no reference to each other, and the cases under one neither conflict with nor confirm cases under another. Nor is this all. A curious illustration of the irrelation of these classes of cases to each other is furnished.

In Cambridge v. Rous, speaking of the rule as to survivorship, in 1858 Sir JOHN ROMILLY said, page 415:

"The question, really, is to what period the survivorship points, and I think "that it is now settled, that the survivorship must be referable to the time of distri "bution. Cripps v. Wolcott has so decided, and I HAVE ALWAYS FOLLOWED IT."

In Starr v. Newberry* in 1857, Sir JOHN ROMILLY said: "I HAVE ALWAYS HELD, that the persons who are next of kin of the testator are "the next of kin when he died, and not when the fund becomes distributable."

Certainly he did not imagine that in thus holding he was from day to day contradicting himself, or that those two classes of cases had any relation, one to another. I submit that counsel ought not to have supposed that the court could overlook or be unmindful of so familiar a distinction.

In the case of Dawes' Trusts, from which Mr. MCCAGG has quoted, the WHOLE opinion is as follows:

"This is a gift to children in remainder after the death of the tenant for life. "The rule of law is that all gifts are to vest as early as possible, and the rule also "is that where there is a gift to A, and after his death to his children, it vests in "the children of A, in existence at the testator's death, subject to be partially di"vested in favor of children coming into existence during the life of A, and "the words in the will should there be none of them surviving' must be referred "to the testator's death. And with regard to the argument that there was no gift "to the children until after the death of the tenant for life, I am of opinion that the "words in the will, from and after my decease I give and bequeath the aforesaid sum "of £2,500 to be equally divided between the children of my late daughter Jane "Maria Boddy' are in effect the same as if the gift had been to John M. Boddy "for life, with remainder to the children of Jane Maria Boddy. This question was "considered in Lainson v. Lainson,† and I myself decided the point in full v. Jacobs. The children of Jane Maria Boddy who survived the testator or "their representatives are the persons entitled to take."

Upon this case two or three points are to be observed. In the first place it is a case of personal property, and even if there remained any question as to realty, the rule is incontestably settled in this State, by Ridgeway v. Underwood as to personalty; and the testator certainly intended the real and personal property should go together under this will. This rule must be applied to the personalty, and the court will not apply one rule to one, and another rule to another sort of property under the same

23 Bevean, 438. † 18 Beavan, 1; 5 D. M. & G. 754

3 Ch D. 703.

will. This is declared by Sir JAMES WIGRAM in Buckle v. Faw

cett.

In the next place the case does not go on any question of survivorship, but is put expressly upon the rule, stated at length by the V. Chancellor, but omitted from the quotation of counsel, that "the rule is that where there is a gift to A, and after "his death to his children, it vests in the children of A, in existence "at the testator's death, subject to be partially divested,” etc. But this has nothing to do with survivorship. The word surviving in this case is used not with reference to survivorship inter se, in a class, but with reference to the extinction of the whole class. There is no gift among survivors of a class, but there is a gift over if none of the class are surviving; if the whole class is extinct.

This rule for ascertaining the class in a gift "to the children of A," etc., is here stated by the same V. Chancellor-MALINS,— who but a little time before, as we have seen in Marriott v. Abell, declared of gifts to the survivor of a class that "the word “‘survivor ' is uniformly referred to the period of distribution. "That was settled by Cripps v. Wolcott with respect to per"sonal estate, and now by Gregson's Trust Estate, overruling "Doe v. Prigg as to real estate." He certainly never imagined that these emphatic statements of these two rules were contradictory of one another. It is surely not necessary to say more upon these cases.

Now, the results of these authorities, which I wish to apply in this case, are :

First. That a devise or bequest under this form of gift is a gift to a contingent class that can not be defined till the happening of the event, upon which the time of distribution depends; and a gift to an uncertain class is contingent. Nothing can vest under such a gift until the class is ascertained beyond contingency.

Second. Surviving at the time of distribution is a part of the description given by the will of the donee; and there is no gift to any one who does not answer the description in this element