Page:Harvard Law Review Volume 2.djvu/203

 NOTES. 185

proceeds are to be conveyed and distributed to and among the respective heirs-at-law of each child so deceasing, said Nancy's grandchildiren to take in right of representation of their deceased parents.'

" This clause of the will has been twice before the court. In Lovering V. Worthington, 106 Mass. 86, it was held that the limitation of life estates to the children of Nancy Gay were not void for remoteness.

"In Lovering V. Lovering J 129 Mass. 97, the precise question now raised was decided. It was held that the limitations over to the heirs of George H. Gay, a son of Nancy, was void for remoteness. But the only question argued in that case was whether the devise of life estate to the children of Nancy Gay opened to let in children born after the death of the testator. The counsel for the grandchildren conceded that if after-bom children were included in the devise, the limitations over to the heirs of the children of Nancy Gay was void for remoteness. The court, therefore, did not discuss the question, but, accepting the concession of the counsel, considered only the question argued by him.

"Under these circumstances we feel bound to consider the question now raised as if it were a new question.

" The general rule is well settled that in judging of the question of re- moteness of an executory devise we must take our stand at the death of the testator, and that such devise is void unless it takes effect ex neces- sitate and in every possible contingency within the period of a life in being and twenty-one years afterwards. Hall v. Hall^ 123 Mass. 120, and cases cited

"The case (at bar) falls within the decision in Hills v. Simonds, 125 Mass. 536, . . . (in which) the case was presented of a devise of a life estate to the testator's son, with a limitation over of life estates to certain described nephews and nieces {i.e., the children of certain brothers and sisters), and with further limitations over ... of the particular and separate share of each nephew and niece to his or her children or legal representatives. . . . Assuming that the devise to nephews and nieces would open to let in after-bom nephews and nieces, yet the share which each is to take must be ascertained at the end of lives in being at the death of the testator. ... We think it was correctly held that the ultimate limitations over which applied to the respective shares of the nephews and nieces who were living at the death of the testator were not void for remoteness, as the remotest period at which such devises over must take effect is the end of the re- spective lives of such nephews and nieces.

" We have carefully reconsidered this case, because, as we have before stated, the case at bar cannot be distinguished from it. Mrs. Nancy Gay had eight children living at the death of the testator. We will suppose, for the purpose of the discussion, that she had a son born after the testator's death. . ..

" It has already been decided that, whether there are after-bom children or not, the devise of life estates to the children of Nancy Gay is clearly valid. But upon the death of Nancy Gay the precise share of each child is ascertained and determined. . . . The will provides that, . . . * as said Nancy's children shall successively decease, a propor- tion of the said estate, or the proceeds, are to be conveyed or distributed to and among the respective heirs-at-law of such child so deceasing, said Nancy's grandchildren to take in right of representation of their deceased parents.' This provision . • . clearly means that, upon the death