(d) Gift to named beneficiaries, their issue and survivors. (e) Gift to children and issue of deceased children.

General Note.-Words of survivorship may have reference to those living at a certain time, as to the children of A- who survive him, or they may be used in connection with gifts to designated individuals, the share of any one dying before a specified time to go to the "survivors." The general rule, no contrary intention appearing in the will, is that a gift to the surviving children of A refers to those living at the time of the death of the testator, this being a direct gift to such children, see § 893. If the gift is preceded by a life estate the authorities are conflicting, see §§ 894-896. The word "survivors" may mean "others," that is, the other beneficiaries directly named who survive; but where issue of a deceased beneficiary is to take the share of their deceased parent, the question arises as to whether the issue of a deceased beneficiary is entitled to partake with the other survivors in the share of a beneficiary dying without issue, see §§ 891, 892. And as to the accrued interest of one survivor passing at his death to the remaining survivors, see § 897.

(a) Direct gift. I bequeath the sum of the surviving children of A.

dollars to

Note. Generally this is construed to mean the children of A— living at the testator's death, see § 893. It could well be so expressed.

(b) Gift preceded by life estate. I devise 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 shall pass to and vest, in fee simple, in those children of A- who survive him (or, who are living at the time of A's death).

Note. The authorities are conflicting as to who are intended as survivors when the gift to them is one over after a precedent estate, therefore it is advisable to state specifically the date at which the survivors are to be determined, see §§ 894-896. Should the testator desire the interest to vest in A's children at his (testator's) death, the remainder over would be to A's children living at the date of the testator's death. Such living children would then take a vested interest at the death of the testator, enjoyment and possession only being postponed until the death of A—, see § 895.

(c) Gift to named

queath the sum of

beneficiaries or survivors. I bedollars to A, B, C

and D in equal proportions, but should any of the beneficiaries just designated die prior to the time of my death, then the interest hereby given to the one so dying shall pass to those beneficiaries who survive him, and should more than one of said beneficiaries die prior to the time of my death, the interest herein given to said beneficiaries, as well as such interest as may have accrued to any of them by reason of the prior death of some other beneficiary, shall likewise pass to those then surviving, so that should but one of said beneficiaries survive me, said beneficiary shall take the entire sum herein given.

Note. See §§ 891, 897.

(d) Gift to named beneficiaries, their issue and survi vors. I bequeath the sum of B

dollars to A

to

C and D, in equal proportions, or to the survivor or survivors of them and the issue of any of them who may have died prior to the time of my death, such issue surviving me to take the share which would have gone their deceased parent had he survived me, such issue taking by right of representation; should A-, B- ? C▬▬▬▬▬ or D—— die before the time of my death and leave no issue who survive me, then the share of the one so dying, including any interest which theretofore may have accrued to him by reason of survivorship, as well as any original interest herein given, shall pass and inure to the benefit of the survivors of them and the issue surviving me of any of them who may have died previous to the time of my death, such issue to take by right of representation such share as their deceased parent would have taken had he survived me. Should A

B

C and D all die prior to the time of my death, leaving no issue of any of them surviving me, then I

bequeath the aforesaid sum of

R.

dollars to M

Note. The survivors of specified beneficiaries would not, strictly, include substituted beneficiaries such as the issue of one deceased. "Survivors," therefore, has been construed to mean "others," see §§ 891, 892. But since the rule is unsettled, it is advisable that the testator expressly declare how and to what extent the issue of a deceased beneficiary are to take. And interests accruing by reason of survivorship do not generally pass to the remaining survivors upon the death of one to whom such interest has theretofore accrued, so this point should be specifically covered, see § 897.

(e) Gift to children and issue of deceased children. I devise that certain tract of land (insert description) to those children, of my brother R, who may be living at the time of my death, and the issue surviving me of any child, of my said brother, who may have died before the time of my death and have left issue surviving me, the issue of any deceased child to take only such share of the property herein devised as the parent of such issue would have taken had he or she been living at the time of my death, division to be made per stirpes and not per capita.

No. 22.

PROPORTIONS IN WHICH BENEFICIARIES ARE TO TAKE.

(a) Per capita.

(b) Per stirpes.

General Note.-There is a conflict of opinion as to the proportions of a testamentary gift which shall be taken by various beneficiaries who have been designated collectively, especially where the beneficiaries include a parent and several of his children, or where the issue are substituted in the place of a deceased parent, or where the gift is to a person described as standing in a certain relation to the testator and to the children of another person standing in the same relation, and the like. If the beneficiaries take per capita, each beneficiary takes an equal share irrespective of relationship; if the beneficiaries take per stirpes, they take by right of representation, as the children of one son of the testator collectively taking only an equal share with another son. See §§ 868, 872. This matter is sometimes construed

according to the statute of distribution, as where the beneficiaries are named collectively as heirs, next of kin, or the like, the statute being resorted to not only to ascertain who shall take, but the proportions in which they shall take, see § 869. The testator, however, may direct who shall take and the share which shall go to each, and it is advisable that the testator clearly express his intentions, see §§ 870-872.

(a) Per capita. I bequeath the sum of dollars to be divided equally, share and share alike, among the children, living at the time of my death, of my brother R― and my sister M.

dollars to my brother R

I bequeath the sum of and the children who are living at the time of my death, of my sister M, the division between all of said beneficiaries to be per capita, share and share alike, my brother R to take only an equal share with each of said children.

Note. Where the beneficiaries stand in different relationships to the testator, it is advisable to state with great particularity the share which each is to take, see § 871.

(b) Per stirpes. I devise that certain tract of land (insert description) to my son R and my daughter B and the children of my deceased son M, division to be made per stirpes and not per capita, a one-third interest therein to vest in each of my children named and the remaining third interest to vest in the children of my deceased son.

I bequeath the sum of of my deceased uncle R

dollars to the heirs at law B—, the individuals con

stituting said class to be those who under the statutes of this state would succeed to the personal estate of my uncle as if he had died intestate at the moment of my death and distribution among said heirs at law shall be according to and in the proportions fixed by the statute of distribution of this state for the distribution of personalty in the event of intestacy.

Note. See also, form No. 20 (a), (b) and (c).

No. 23.

ESTATES IN FEE SIMPLE.

I devise unto C— D—, his heirs and assigns forever, all my right, title and estate in and to the following described real property, to-wit (insert description).

I devise unto CD forever all the real property or estate of which I may be possessed at the time of my death.

Note. The word "heirs," or other words of inheritance, are not now held necessary to convey a title in fee simple, but because of the rule of the common law that a devise of real estate in general terms, unaccompanied by words of inheritance or other language limiting or defining the quantity of the estate devised, gave only a life estate to the devisee, it is advisable, for universal use, for the testator to specially state the quantity of the estate given. See §§ 918, 919. As to statutory changes regarding words of limitation, see §§ 935, 936. The use of such words as "estate," "property," "real effects," "forever," "absolutely," "exclusively," etc., indicates an intention to pass title in fee simple, see §§ 921, 923. Where a fee is devised, rights of devisee can As to cutting down a devise in fee by subse

not be limited, see § 931.
quent provisions in the will, see §§ 932-934.

No. 24.

ESTATES IN FEE TAILA

(a) Estate tail general.

(b) Estate tail special.

(c) Estate tail male or female.

General Note.-As to estates tail by devise generally, see §§ 937-956. As to words sufficient to create an estate tail, see §§ 942-944. Estates tail may also be created by implication, see §§ 946-956. See also, rule in Wild's Case, §§ 954-956. An estate tail is an estate in real property granted to one and the heirs of his body, the heirs taking by descent and not by purchase. It may be limited to special heirs of the body, or to the heirs male or female of the body, but it must not be limited to the heirs of the devisee generally, otherwise an estate in fee simple is created. Estates tail have been practically abolished in the United States, being converted by statute into estates in fee simple, life estates with remainder over, or the like, see §§ 941, 944.