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THE GREEN BAG
the share of the deceased child. Our prob lem, then, is to effect these desires. Here perhaps the nicest point of all in technique arises. Scientific modern conveyancing recog nizes that the testator's objects may be accomplished in just two ways. These must be kept absolutely distinct and separate. You must keep to the one and let the other absolutely alone. Alas for the will where this is not done, or where it is difficult to tell which mode has been adopted! The first possible method is to make a direct gift to all the children to take effect immediately upon the death or re-marriage of the widow. That will give each child what is known as a vested interest. Each will have a share at once upon the testator's death, subject to the provision for the widow. Then there will be a clause simply post poning the termination of the trust and the payment over of the principal of each share till the beneficiary of that share reaches twenty-five. If the will stopped here each child would have full power to alienate after it came of age by deed or will, and upon his or her death intestate at any time the share would descend to his or her next of kin. If, then, any child of the testator dies under twenty-five leaving children there is no rea son why the child's rights of property and alienation should be interfered with, for he will in the natural course alienate to his children by will, or the share will descend to them. The deceased child's portion may, therefore, be left to descend or to pass by will. No further provision is necessary to take care of the contingency of the testa tor's child dying under twenty-five leaving issue. On the other hand, if a child of the testator dies without leaving issue, it is pro per, consistently with the general scheme, that the share of the child so dying be not subject to his will or to descent from him, but that it surely go over to the other brothers and sisters. This required a special provision known as a clause of "accruer." Originally this was very simply worded. It
declared that "in case any of my said chil dren shall die without leaving issue sur viving, then the share hereinbefore given to the child so dying shall go to and accrue to my other children in equal shares as tenants in common." In 1735 this case, however, arose.1 One of the testator's three chil dren died without leaving issue. The share of that child then accrued to the other two. Then one of the remaining two died with out leaving issue. His original share ac crued to the survivor. But the question arose what should become of the one-sixth which had already accrued to the second deceased child from the first. That, it ap peared, was not covered by the clause of accruer in the form just indicated. This one-sixth, therefore, passed to the deceased child's next of kin which included his father. Ever since that time the clause of accruer, drawn by a competent draughtsman, con tains the additional clause: "Including any further share or shares accruing to him under this present clause;" so that the whole reads: "In case any of my said children shall die without leaving issue surviving them the share hereinbefore given to the child so dying, including any further share or shares accruing under this present clause shall go and accrue to my other children." The second plan for the gift to the tes tator's children is to describe the class who are to take and to make it, as far as pos sible, contingent upon each member of the class reaching the age of twenty-five — the time of distribution. According to this plan the devise will read: "To such child or children of mine as shall survive me and attain the age of twenty-five, and the child or children of any any child or children of mine who shall be dead at my death or shall die under the age of twenty-five." If the clause stopped here it would allow each of the ten children of a deceased child 1 Rudge v. Barker, Cas. Temp. Talb. 124, 5 Gray's Cases on Property, 249.
