Page:Harvard Law Review Volume 9.djvu/272

244 HARVARD LAJV REVIEW. Second. The Court assumes that the gift to the grandchildren is contingent. By including the issue of deceased grandchildren in the class of residuary legatees the Court does away with one of the chief arguments for calHng the gift vested. Yet there is an- other circumstance that points strongly towards vesting, and that is the power given the trustees to make payments to the testator's grandchildren before the final distribution. This power might be, and probably would be, exercised to a very different extent with different grandchildren, and yet, if the final gift be contingent, no account can be taken of this. I have no desire to criticise the conclusion, or rather the as- sumption of the Court, that the gift is contingent. On the contrary, if I may take the liberty of saying so, it seems to me correct. The only gift |:o the grandchildren is the gift to pay when the youngest reaches forty; this makes the gift /;7W(^/^<:^> contingent ; and the circumstances fortifying this conclusion seem to be greater than those against it. Yet it should be borne in mind that the testator (as is not unfrequently the case) had wishes which are really in- consistent, and that his wishes that the interests should vest fail of effect only because more and weightier indications of intention are inconsistent with their vesting. I want to insist upon this, because, as I think will be apparent to the learned reader, the cir- cumstances making in favor of the vesting of this gift rendered it easier for the Court to introduce its new theory into the law than it would have been in the case of an unquestionably contingent gift. Third. The gift to the grandchildren then being contingent, is it too remote 1 Of this there can be no doubt. The gift is to them at forty, which is obviously beyond the period allowed by law. Foiu^th. What then is the result t The answer which has always hitherto been made in like cases is, that the gift is void, and there is an intestacy. The Supreme Court of New Hampshire now says that the fund is to be distributed to the grandchildren when they reach twenty-one. Until this case of Edgerly v. Barker the law, as held in every other jurisdiction where the common law prevails and the question has come up, is this. If a gift is made to a person or class as filling a particular character at a time which may be too remote, the court will not substitute therefor a gift to the person or class filling the character at a time within the liniits. Thus, for a gift to such of the testator's grandchildren as reach twenty-five the court