(a) If any children of B. are alive at A.'s death, they alone take.

(b) If none are then alive, the limitation cannot be a contingent remainder, but is an executory devisethat is to say, all take whenever born.

(ii.) Legal devise to A. for life, and after his death to the children of B. who attain twenty-one.

(a) If any children of B. have attained twenty-one at A.'s death, they alone take to the exclusion of all others.

It should be noticed that the corresponding rule for personalty above lets in all those born at A.'s death on their attaining twenty-one, but excludes those not then born.

(b) If no children of B. have attained twenty-one at A.'s death, the limitation cannot take effect as a contingent remainder; but it can as an executory devise, and all take whenever born provided that they attain twenty-one. Blackman v. Fysh, [1892] 3 Ch.209.

If the will has not been executed, revived, or republished since August 2, 1877, the above limitations-(i.) (b) and (ii.) (b)-would have failed altogether.

The rules as to contingent remainders create an apparent exception to the perpetuity rule, for if the devise be to A. for life, with remainder to such of his children as attain twenty-two (or any age, say fifty), then

(a) If any children have attained twenty-two (or fifty) at A.'s death, they alone take to the exclusion of all others.

Such a limitation would, of course, be bad as to any other form of interest.

(2) If no children have attained twenty-two (or fifty) at A.'s death, the limitation cannot take effect as a contingent remainder, but may (under the Contingent Remainders Act, 1877) take effect as an executory devise, and, being in such case subject to the ordinary perpetuity rules, it fails.

4.-Class in default of Appointment, when

ascertained.

(1) Where there is an explicit gift in default of appointment the class to take is ascertained in accordance with the general rules above stated, for it is well settled that "the existence of a power of appointment does not prevent the vesting of the property until and in default of the execution of the power." Lambert v. Thwaites (1866), 2 Eq. p. 155.

The effect of the execution of the power is to divest wholly or partially the interests already vested under the gift in default of appointment; so far, however, as the power is not exercised, the class to take is ascertained as if the power were non-existent and the only gift were the gift in default of appointment.

(2) Where the gift in default of appointment is not expressed, but is merely implied (see under "Implication "), the same general principles apply, and the following examples may be given in illustration :

(i.) If there is no prior life interest, the class is closed at the testator's death. Longmore v.

Broom (1802), 7 Ves. 124.

(ii.) If a tenant for life has an implied power of

appointment among his children, the class is closed at his death, and all his children, whenever born and whether alive at his death

or not, are included in the class.
Kirsopp (1838), 2 Keen, 653;
Duguid (1883), 24 C. D. 244.

Grievson v.
Wilson v.

The general rule is that only those can take under an implied gift in default of appointment who could have taken under an appointment if made; and therefore, if the power is to be exercised by will only, the class includes only those children who could have taken personally under an exercise of the power, i.e., only those who survive the tenant for life. Wallinger (1830), 2 R. & M. 78.

Walsh v.

5. Class of Next-of-kin, when ascertained.

(a) If the testator die wholly or partially intestate, so that the next-of-kin or heir-at-law are entitled, the next-of-kin or the heir-at-law are to be ascertained at the death of the testator.

Example.-Gift of personalty to A. for life, and after his death to his children. A. has no children. At A's. death the property is divisible among the persons who were the testator's next-of-kin at the date of the testator's death, and if any of them are dead their legal personal representatives take their share.

(b) The same result is true generally if the testator, after previous limitations, makes a specific gift (which takes effect) to his next-of-kin without pointing out any time for ascertaining them. Mortimore v. Mortimore (1879), 4 A. C. 448 ; In re Wilson, [1907] 1 Ch. 450.

But the testator may by appropriate words point out another time for ascertaining the class, and in such a case the class to take will be an artificial class, to be ascertained on the hypothesis that the testator

lives up to and dies at some other time.

In re Sturge

and the G. W. Railway (1881), 19 C. D. 444.

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Example.-Ultimate gift 'upon trust for the person or persons who at the time of the decease of A. shall by virtue of the Statute of Distributions be my next-of-kin."

The same rules apply to the use of the word "heir " in a gift of realty.

CHAPTER XIX.

CHILD EN VENTRE.

FOR some purposes a child en ventre sa mère at a particular period, and afterwards born alive, is treated as having been born at that period.

The general rule is as follows:-The fiction or indulgence of the law which treats the unborn child as actually born applies only for the purpose of enabling the unborn child to take a benefit which if born it would be entitled to, and it is limited to cases where it is a question of the benefit of the child itself. Blasson v. Blasson (1864), 2 D. J. & S. 665; Villar v. Gilbey, [1907] A. C. 139.

It is obviously for the child's benefit to be included in a class of persons to whom a testator has made a gift, and therefore, even where the class of persons are described as persons to "be born in the testator's lifetime" or "born" or "living" at a particular time, a child en ventre who would if born answer the description will be admitted to the class upon being subsequently born alive.

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In a bequest" to all the children of A. born in my lifetime," or upon trust for B. for life and after his death upon trust for such of A's. children as shall be then living," a child of which A.'s wife is enceinte at the death of the testator in the first, or at the death of B. in the second, instance is admitted to a share (Trower v. Butts (1823), 1 S. & St. 181); and à fortiori where the gift is to A.'s children at a particular time unqualified by any condition as to being "born in the testator's lifetime," &c.

So where there was a bequest to A. for life, and after her