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In Wilkins v. South, 7 Term R. 555, involving a will in which a leasehold was bequeathed to P. and the heirs of his body lawfully begotten, and their heirs and assigns, forever, but, in default of such issue, then, after his decease, to go over, etc., Lord Kenyon considered the words "then after his decease" as clearly pointing to the death of P. as the time when the estate would vest. Chism's Adm'r v. Williams, 29 Mo. 288, 296.

Where a will directed that the residuary estate of the testator at the death of his daughter should be divided “equally amongst all my nephews and nieces, and also all the children of my said nieces and nephews, who may then be living, so that each of my said nieces and nephews and grand nieces and nephews shall receive and be paid an equal share thereof," the words "who may then be living" refer to the time of the daughter's death, and apply equally to nieces and nephews and grand nieces and nephews, each one of whom, living at the time of the daughter's death, should receive an equal share: Bigelow v. Clap, 43 N. E. 1037, 1038, 166 Mass. 88.

"Then," as used in a will giving property to the widow as long as she lives, and after her decease to be equally divided be tween children then living, referred to the time of his wife's death; and the children who are living at that time were the only children entitled to take, unless it should appear that on the true construction of the whole will, and to effectuate a clear intention appearing in other parts of it, the words "then living" ought to be rejected as repugnant. Tawney v. Ward, 1 Beav. 563, 565.

Where a testator directed that the residue of his estate should remain in the control of his executors and their successors until the decease of the last survivor of the life annuitants, and that then the said residue, with all accumulated interest, should be equally divided among his grandchildren, so distributed, and to their heirs, etc., forever, the word "then" in the residuary clause has reference, not only to the period of distribution, but also to the persons who shall take, though in some instances it is construed in the former sense only, and hence the grandchildren will take a contingent remainder in such residue. Hale v. Hobson, 45 N. E. 913, 915, 167 Mass. 397.

"Then," as used in a deed conveying property to a certain person and to the heirs of his body, and in default of such issue then to the surviving sons and daughters of a certain other person, etc., denotes the time

when the interest vests in them as at such grantee's death, as well as the persons to take; that is, those who shall then be the survivors of such grantee. Westbrooke v. Romeyn (U. S.) 29 Fed. Cas. 732, 734.

THEN

"Then be living," as used in a will providing for the distribution of the surplus at the death or marriage of the testator's widow among the nearest relatives, or the heirs of their bodies, as then be living, refers to the time when the distribution is to be made, and limits it to the surviving issue, or deceased's nearest relatives. Hall v. Wiggin, 29 Atl. 671, 673, 67 N. H. 89.

Where testator's will directed that on the happening of a certain contingency a trust fund should be conveyed to H., or, if he be dead, to his then heirs at law, "then heirs" meant his heirs who would have been entitled as of the time when the conveyance would have been made to him, had he then been living. Proctor v. Clark, 27 N. E. 673, 674, 154 Mass. 45, 12 L. R. A. 721, 724.

Death of testator referred to.

The word "then" is an adverb of time,

and usually relates to some antecedent period or event. As used in a will devising the testator's residuary estate to all his children who might then be living, it relates to the death of the testator. In re Cresson's Estate (Pa.) 8 Phila. 207, 208.

"The cases are common which hold that

adverbs of time, such as 'when,' 'then after,' from and after,' etc., in the devise of a remainder limited upon a life estate, are to be construed merely as relating to the time of the enjoyment of the estate, and not to the time of its vesting in interest, and that the law favors such a construction of a will as will avoid the disinheritance of remain

dermen, who may happen to die before the determination of the precedent estates. In Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20, the Court of Appeals carried this doctrine so far as to hold that, where testator gave his property to his widow during her life and to such of his children that should then be alive, the adverb was intended by him to refer to the time of his own death, and not to that of his widow, and that consequently a daughter, who survived him, but died before the widow, took a vested share." Ackerman v. Ackerman, 71 N. Y. Supp. 780, 781, 63 App. Div. 370.

As in that case or event.

"Then," as used by a testator in bequeathing a fund in trust for the benefit of his four children, each to receive one-fourth of the income for life, "and upon the decease of each then" one-fourth of the corpus or residue to go to the use of his child or children who should attain the age of 25 years, is not an adverb of time, but merely means "in that case." Appeal of Coggins, 16 Atl. 579, 581, 124 Pa. 10, 10 Am. St. Rep. 565.

"Then," as used in a will providing that, on the death of any child, then its share

should go to the issue of the child so dying, is not an adverb of time, but should be construed to mean "in that event," and the child to take a vested estate. Colonial City Traction Co. v. Kingston City R. Co., 47 N. E. 812, 813, 153 N. Y. 540.

"Then," as used in a will by which testatrix gave property to two devisees, providing that, in case of the death of one of them, then the property should go to the survivor, refers to the event itself, and not to the time of its occurrence. One of the interpretations of "then" by lexicographers is "in that case." Ash v. Coleman (N. Y.) 24 Barb.

645, 647.

"Then," as used in a will devising real estate to testator's wife to hold during her lifetime, and then to descend to testator's heirs, is to be construed as meaning "in that event," referring to the death of the wife. Bunting v. Speek, 21 Pac. 288, 298, 41 Kan. 424, 3 L. R. A. 690.

then to provide and distribute said share to and among said issue in the same way the laws of the commonwealth for the time being would divide and distribute the same," the court said: "The word 'then,' although in a strictly grammatical sense an adverb of time, is nevertheless often used for the purpose of denoting an event or contingency, and is equivalent to the words 'in that event,' or 'in that case.' Such is often its popular signification, and in this sense it is frequently used in legal instruments to designate limitations of estates or future contingencies on which

they are made to depend. In this sense, to

point out a contingency or event, and not to mark a precise time, we think it was used by the testator in the sixth clause of his will.” Hall v. Priest, 72 Mass. (6 Gray) 18, 24.

The word "then," as used in a will whereby a testator devised the residue of his estate to his executors, in trust to be invested and the income applied to the use of his children until the youngest child became 21 “Then," as used in a will providing that years of age, when the estate was to be di"if my wife, the said Mary Anne, shall re vided equally among the children, and promain single during the minority of her chil-viding that, should either of the children die, dren, then she shall at their maturity give to said children," etc., is to be understood, not as indicating the point of time when the payment to the children is to be made, for that is fixed at their maturity, but is simply equivalent to the phrase "in that event." Rose v. McHose's Ex'rs, 26 Mo. 590, 596.

The word "then," as used by a testator, who, after having used expressions which, though containing no word of inheritance, would, standing by themselves, have given a fee simple absolutely to his grandchildren, added a provision "that the property willed by me to the said grandchildren should be held in common, and, if either of them should depart this life without leaving living issue, then and in that case the survivor, or the heirs of his body, shall inherit all the property and estate devised to both of them," is used as an adverb of time, so that the latter words referred to a death either before or after testator's death, and each grandson took a determinable fee, defeasible by his death without leaving issue, leaving the other grandson surviving. First Nat. Bank v. De Pauw (U. S.) 75 Fed. 775, 780.

The word "then," in a bequest of personal property in trust to A. and his heirs and assigns, forever, but directing, in case he should die before arriving at the age of 21 years, then the property shall go to other beneficiaries, only emphasizes the event upon which the gift becomes absolute, and refers back to the words relating to A., which precede. It is as though the testator had said, "In case of the death of my son A., in that event, or in such case, I give." Baker v. Southerland (N. Y.) 6 Dem. Sur. 220, 223.

In construing a clause in a will that, "in case my said son C. decease leaving issue,

leaving issue, before the testator's death and before the time fixed for distribution, then such issue should take the share to which the parent of such child would be entitled, if living, means merely "in that event." In re Moloughney, 73 N. Y. Supp. 598, 599, 67 App.

Div. 148.

"Then," as used in a lease of a farm, including a peach orchard, for a term of three years, which lease provided that the tenant might use the peach orchard for a

longer period, unless a sale of the farm was made, and, if so, then the orchard was to be appraised, was not employed as an adverb of time, fixing the period when the appraisement was to be made, but of contingency, to wit, the sale of the farm. Pintard v. Irwin, 20 N. J. Law (Spencer) 497, 505.

Time of enjoyment referred to.

The word "then," when used in a devise of a remainder limited upon a particular estate, determinable on an event which must necessarily happen, and used to designate the time of the happening of such event, is to be construed as relating merely to the time of the enjoyment of the estate, and not to the time of its vesting. Haug v. Schumacher, 64 N. Y. Supp. 310, 313, 50 App. Div. 562; Ackerman v. Ackerman, 71 N. Y. Supp. 780, 781, 63 App. Div. 370; Moore v. Lyons (N. Y.) 25 Wend. 119, 144; Sheridan v. House, *43 N. Y. (4 Keyes) 569, 589, 4 Abb. Dec. 218, 219; Livingston v. Greene, 52 N. Y. 118, 123; Ackerman v. Gorton, 67 N. Y. 63, 66; Nelson v. Russell, 31 N. E. 1008, 1009, 135 N. Y. 137; Canfield v. Fallon, 57 N. Y. Supp. 149, 154, 43 App. Div. 561, 26 Misc. Rep. 345; Hersee v. Simpson, 48 N. E. 890, 891, 154 N. Y. 496.

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"Then," as used in the grant of a re-estate to his daughter absolutely on her atmainder, did not import a contingency, or make anything necessary to precede the vesting of a remainder, but only expressed the time when the remainder shall take effect in possession, and not when it should become vested. Middleton's Heirs v. Middleton's Devisees (Ky.) 43 S. W. 677 (citing Williams v. Williams, 91 Ky. 547, 554, 555, 16 S. W. 361; Williamson v. Williamson, 57 Ky. [18 B. Mon.] 329, 375).

In a bequest wherein the testator gave a certain sum in trust for his son, the interest to be used for such son's benefit until he was of lawful age, then the principal to be his, or his heirs and assigns forever, "then" has reference to the time when the property shall come into such son's possession, so that the property vested in such son upon the death of the testator; such son having survived the testator, but dying during his minority. Newberry v. Hinman, 49 Conn. 130, 132.

Testator's will, after devising the residue of his real estate to his daughters, and the survivors of them, until death or marriage, provided as follows: "After the marriage or death of my surviving daughters, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs." Held, that the word "then" designated the time when they should come into the enjoyment of that which was devised to them, and was not inserted by way of description of the persons who were to take. Dove v. Torr, 128 Mass. 38, 40.

A conveyance to one for life, and on his death "then to go" to C., creates a present estate in remainder in C.; the words "then to go" meaning that the possession and enjoyment of the property shall go to him on the death of the life tenant. Chambers v. Chambers, 38 N. E. 334, 337, 139 Ind. 111.

"Then," as used in a will directing that, if any of the testator's children should die without heirs, then the property bequeathed to them should be equally divided among the balance of his heirs, shows that the limitation over is to take effect at the time of the death of the first taker, the immediate offspring of the testator, without issue then living. Gray v. Bridgeforth, 33 Miss. 312, 335 (citing Evans v. Wells, 26 Tenn. [7 Humph.] 559, 568; Loving v. Hunter, 16 Tenn. [8 Yerg.] 4, 29; Hickman v. Quinn, 14 Tenn. [6 Yerg.] 96).

“Then,” as used in a will giving a legacy to the testator's wife of the dividends of certain stock for her life, which he directed

should be continued in the same stock, then to be shared equally by his children that should be then living, refers to the death of the wife. Reeves v. Brymer, 4 Ves. 693, 698.

As used in a will by which testator bequeathed the residue of his real and personal

taining 21, or, in case of her decease before that time, to the testator's wife, if living, then in further trust to pay the produce of the residuary estate to and among the children of my sister Ann, to be divided among them share and share alike, the word "then" meant the period at which the gift was to take effect in possession, and not the period of the daughter's death. Hetherington v. Oakman, 2 Younge & C. Ch. 299, 301.

Where testator devised land to his executors, to hold the same in trust for the lives of testator's two grandsons, but not to exceed 16 years, and at the end of the 16 years to sell the land and divide it between such grandsons and the issue of such of them as may be then dead, leaving such issue or servants then surviving, the words "then dead" and "then surviving" should be construed as referring to the end of the 16-year period, unless shortened by death of both grandsons before that time. In re Valentine, 13 N. Y. Supp. 444, 445, 59 Hun, 619.

"Then," as used in a will wherein a husband devised his personal estate, to be laid out in securities and the interest of the

whole to be paid to his wife for her life, and after her decease the principal to be paid to his sister and her children, or such of them as should be then living, means the same as the precedent words, "after her decease," and those words are not to be construed to mean after her natural death, but after the determination of her interest by natural death, civil death, forfeiture, or otherwise. Dansen v. Hawes, 1 Amb. 276.

the income to be paid to his wife and chilA testator left his property to trustees, dren during their lives; the will providing: "At the decease of the last survivor of my said children, if my said wife shall not then be living, but, if living, then upon her death this trust shall cease; and I give, devise, and bequeath all the estate which shall then be held in trust under this will to my grandchildren, who shall then be living," etc. In con. struing this will the court said: "The grammatical, as well as the legal, import of the words 'I give, devise, and bequeath,' etc., gives a vested interest. The death of the last survivor of the trustees refers, not to the time of the vesting, but to the time for the trust to cease. The words are not to be carried over, so as to qualify the words of the gift therein represented in connection with tion with the gift, nor even referred to by the gift. They are not repeated in connecuse of the adverb 'then,' as 'I then give, devise,' etc.; but all refernce to them is omitted. The sentence is complete, and conveys to the professional mind a distinct and unequivocal legal meaning, a present gift.

Time is in no stance. Later 'then' is used:

sense attached to its subin the sentence the word 'All the estate which shall

then be held in trust.' But it is there used for the purpose, not of indicating the time when the estate is to vest, but for the purpose of pointing out the subject of the gift. The word 'then' is again used in this connection: "To my grandchildren who shall then be living.' It is here used to point out the persons who are to take, and not to indicate the time when the estate is to vest." Farnam v. Farnam, 2 Atl. 325, 332, 53 Conn.

261.

Where a testator devised a portion of his estate in trust to his executors to pay the income to his grandson during his life, and the principal at their discretion, and, in case he should die without issue, then on his death to pay said principal to W. and S., by the words "then to pay" he merely indicated the time when the right of possession is to begin, and did not postpone the vesting. Roosa v. Harrington, 64 N. E. 1, 4, 171 N. Y. 341.

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Subsequent time imported.

In an action on account for goods sold, defendant pleaded as to a certain parcel that "on a certain day, at the plaintiff's request, he delivered certain goods to a third person; that it was then, to wit, on the day and year aforesaid, in consideration thereof, agreed between them that plaintiff should accept such delivery to a third person in discharge of the debt as to the certain parcel; and that plaintiff did then accept such delivery in full satisfaction and discharge." The word "then" was capable of being construed as meaning "at the same time," but was also susceptible of meaning that the alleged agreement took place subsequent to

the delivery of the goods, and its use, therefore, rendered the plea ambiguous. Stead v. Boyer, 1 C. B. 782, 786.

THEN AND THERE.

"Then and there," when used in an indictment, must be referred to that antece

dent to which the tenor of the indictment or the principle of law require it should refer, whether exactly according to the rules of syntax or not. Jeffries v. Commonwealth, 94 Mass. (12 Allen) 145, 152.

"Then and there," as used in indict

ments, specifying the time and place of the commission of the crime, is sufficient as an indictment occurred at such time. "It is allegation that all the acts alleged in the undoubtedly a rule in criminal pleading that every material fact must be alleged with the venue and be charged as done at some time and place. This is usually done, after the time and place have been definitely stated, by the words 'then and there.' In this indictment the assault is averred technically at a time and place, thereby giving, etc., the mortal blow. The present participle is often thus used as an express averment. We think that, without violation to the grammatical construction, the whole may be read as one sentence, averring acts done simultaneously, so that the term 'then and there' applies to all the facts thus averred." Turns v. Commonwealth, 47 Mass. (6 Metc.) 224, 234.

At the trial of a crime the averment of the

date means at any time within the statute "then and there," means at any such time of limitations, and the subsequent reference, and at any place within the county. Dreyer V. People, 176 Ill. 590, 598, 52 N. E. 372.

Where one fact is alleged in an indictment with time and place, the words "then and there," subsequently used as to the occurrence of another fact, necessarily import that the two were co-existent, and are a sufficient statement of the time and place Palmer v. People, of the second occurrence.

28 N. E. 130, 131, 138 Ill. 356, 32 Am. St. Rep. 146.

The allegation that, in consideration that the plaintiff had "then and there" delivered to the defendant a certain horse in exchange for a certain horse of the defendant, and that the defendant "then and there" promised that the latter horse was sound, meant that the acts or undertakings of the parties were concurrent and simultaneous. Wightman v. Carlisle, 14 Vt. 296, 299.

"Then and there," as used in an indictment charging that the defendant did then and there with force and arms beat the

plaintiff, refers to the time and place where the assault was made, and not to the county in the margin of the indictment. Kennedy

v. Commonwealth, 6 Ky. (3 Bibb) 490, 491.

"Then and there," as used in the concluding part of an indictment against one for being present and abetting a murder, refers to the act which caused the death, and not to the time and place of the death. State v. Fley (S. C.) 2 Brev. 338, 347, 4 Am Dec. 583.

THEN AND THERE

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THEN AND THERE

An indictment charging that B. unlaw-| word "then" might be taken as meaning that fully and willfully did in a certain room keep he had 10 single bills, one at a time, at 10 a certain slot machine is not defective be different times on that day. Edwards v. cause the words "then and there" do not Commonwealth, 36 Mass. (19 Pick.) 124, 126. precede the words "keep a certain slot machine"; the time and place being distinctly alleged. Bobel v. People, 50 N. E. 322, 323, 173 III. 19, 64 Am. St. Rep. 64.

A caption stating that "at a court of oyer and terminer and general gaol delivery held on the fourth Tuesday in May, 1827, by the oath and affirmation of good and lawful men sworn, affirmed, and charged to inquire, it is presented," is sufficient, though the caption omits the phrase "then and there," commonly inserted in such captions after the words "sworn, affirmed, and charged." State v. Price, 11 N. J. Law (6 Halst.) 203,

210.

Indefinite time indicated.

The words "then and there," in an indictment alleging that a charter election was duly held in a certain ward on the 7th of March, and duly continued until and including the 10th of March, and charging that A. did then and there illegally vote at such election, without otherwise designating the day on which the offense was committed, is insufficient to describe such day, as the words may refer to any day between the 7th and 10th of March, inclusive. State v. Day, 74 Me. 220, 221.

The use of the words "then and there," in an indictment, after several distinct times have been stated in the indictment, is bad for uncertainty. State v. Hayes, 24 Mo. 358, 360.

Unless an indictment states a time when as well as a place where the offense was committed, the adverbs "then" and "there" have no antecedent time, and the objection is good on motion in arrest. State v. Slack, 30 Tex. 354, 355.

Where a complaint in a prosecution for exposing for sale and selling intoxicants without a license charges that defendant, on the 1st day of June, 1894, and divers other days and times between that day and the filing of the complaint, exposed and kept for sale, without license or authority to then and there expose or keep for sale, the words "then and there" apply to the whole period from the stated time to the filing of the complaint, and cannot be construed as charging the commission of an offense Manning, 42 N. E. 95, 164 Mass. 547. only on the day named. Commonwealth v.

As instantly.

"Then and there," as used in an indictment for murder, alleging an assault on R. on a certain day and that it resulted in a mortal wound, "of which said mortal wound the said R. then and there died," will be. construed to mean "instantly," and, hence, to state with sufficient accuracy the time of death. Commonwealth v. Robertson, 38 N. E. 25, 26, 162 Mass. 90.

As time and place previously mentioned.

date in the caption and another date in the Where an indictment specifies a certain

there" is afterwards used in the indictment,

last mentioned. Commonwealth v. McKenney, 80 Mass. (14 Gray) 1, 2.

"Then and there," as used in an indictment, means the time and place last previously mentioned therein. State v. Hurley, 71 Me. 354, 355.

The words "then and there" are relative, and refer to some foregone averment, and their meaning is to be determined by the alle-body thereof, and the phrase "then and gation to which they refer. If that is a single it will be construed as referring to the date act done, and it then avers that "then and there" another fact occurred, it necessarily imports that the two acts were precisely coexistent, and the word then refers to the precise time. In the case of Rex v. Williams, 2 Leach, Cr. Cas. 529, the averment was that the accused on a certain day made an assault, and on the same day inflicted a The words "then and there," as used in wound. Non constat, said the court, that it was at the same time. But if the indict- an indictment, are words of reference, and, ment had observed the usual form, that he when time and place have once been named made an assault and then and there inflicted with certainty, it is sufficient to refer to the wound, it would be averred to be simul- them afterwards by these words, and they taneous, because the assault was a single will have the same effect as if the time and act. But where the antecedent averment fixes place were actually repeated. These words no precise time and alleges no precise, single, also refer to the time and place last specidefinite act, the word "then," used after-fied, unless there be some phrase connected wards, fixed no one definite time; and so, where an indictment averred that defendant on a certain day had in his possession 10 counterfeit bank bills, and that he had then and there aided and assisted in rendering current each of the said bills, the use of the

therewith which shows that a different ref

erence is intended. State v. Cotton, 24 N. H. 143, 146.

When time is once mentioned in any part of the information or indictment, it may subsequently be laid as the time of the

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