for remoteness. Simonds v. Simonds, 112 Mass. 157. It is clear that the limitation over to the children or legal representatives of each nephew or niece living at the death of the testator, at his or her decease, is not void for remoteness. The latest period, at which the estate devised must revest, is the end of the lives of their respective ancestors, the tenants for life, which period, is the end of a life in being at the death of the testator. But it is equally clear that the limitation over to the children or legal representatives of after-born nephews or nieces would be void for remoteness. The share of each of such children or legal representatives would not vest until the death of his parent who was not in being at the death of the testator, and this would not necessarily be within a life or lives in being and twenty-one years after the death of the testator. Construing this devise as at the death of the testator, and having regard to possible events, it is true that the devise would be void for remoteness so far as the limitation over to the children or legal representatives of an after-born nephew or niece is concerned. The question is, What is the effect of this possible partial invalidity upon the limitation to the nephews and nieces living at the death of the testator and to their children or legal representatives?

This case does not fall within the rule that, where a devise is given to a class of persons answering a given description, and any member of that class may possibly have to be ascertained at a period exceeding the limits allowed by law, and is therefore incapable of taking, the whole devise is void. Leake v. Robinson, 2 Meriv. 363. Hall v. Hall, ubi supra. In such cases, the person incapable of taking may be the sole representative of the class at the time the estate is to vest, and thus it is possible, at the death of the testator, that the whole estate may vest at a period toc remote. But, in the case at bar, the limitation over upon the death of the several nephews and nieces, is not a devise to a single class, of which a child of an after-born nephew or niece may be a member. It is, in legal effect, equivalent to several and distinct devises to different classes. The children or legal representatives of each nephew or niece form a distinct class who respectively take the separate share of the estate in which their ancestor had a life interest. It is the same, in effect, as if the testator had made separate devises to each nephew

and niece living at his death, with a limitation over to their respective children or legal representatives, and also a devise to any nephew or niece who might be born after his death and before the death of George, with a like limitation over. The latter limitation over would be void for remoteness, but this would not defeat the devises to the nephews and nieces living at the death of the testator and to their children or legal representatives.

Suppose a nephew had been born after the death of the tes tator and before the death of George, thus making the class who were to take life estates after the death of George to consist of twenty-four instead of twenty-three members. Such after-born nephew would take a life estate in one twenty-fourth part, because that must vest in him, at the latest, at the death of George. But the limitation over to his children or legal representatives would be void. Such invalidity, however, would not divest or defeat the devises to the children or legal representatives of the other twenty-three nephews and nieces, who take separately and independently shares which must be ascertained within the legal limits. In the case supposed, the only part of the testator's estate undisposed of by his will, which would go to his heirs at law, would be the remainder in one twenty-fourth part after the death of the after-born nephew.

In the case at bar, there were in fact no after-born nephews or nieces. There were twenty-three nephews and nieces, answering the description of the devise, living at the death of the testator. Each of these, on the death of the testator, took an immediate vested estate for life in one twenty-third part expectant on the death of George, with remainder in fee to their respective children or legal representatives, subject to have their respective estates divested in part, in case there were any afterborn nephews or nieces belonging to the class described. The exact share or estate, which each was to have, was necessarily to be ascertained, and fixed at the death of George. In any contingency, the share which the testator intended to give to the children or legal representatives of his living nephews and nieces must be ascertained, and vest within the legal limits. We are of opinion that the possible partial invalidity of the devise, in case of any after-born nephews or nieces, does not defeat the devises to the children or legal representatives of the living

nephews and nieces, but that they take according to the terms of the will. Cattlin v. Brown, 11 Hare, 372. In re Moseley's trusts, L. R. 11 Eq. 499, 504.

It follows that there was no estate of the testator undisposed of by the will, and therefore that the plaintiff has no interest to set aside the deed to the defendant alleged to be fraudulent.

Demurrer sustained, and bill dismissed.

C. R. Train & J. O. Teele, for the defendant.

R. M. Morse, Jr. & R. Stone, Jr., (C. P. Greenough with them,) for the plaintiff.

THOMAS J. GIBBINS vs. LUTHER E. SHEPARD & others.

A will contained the following clause: "After payment of my just debts and funeral expenses, I give and devise to my wife one third of all my real estate to her sole use and behoof forever, together with all the furniture or personal property now in the house, and the other two thirds I leave in her power, and bequeath to her for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve." The personal estate was insufficient to pay the debts and funeral expenses, and the administrator with the will annexed sold the real estate, and had a sum remaining in his hands after paying such debts and expenses. Held, that the wife took an estate in fee in one third of the residue; that, as to the other two thirds, she took at least an estate for life, with a power to convey the fee and to receive the proceeds; that she was entitled to the residue of the proceeds in the administrator's hands, and to use them at her discretion for her support; and that no trust was created by the will in favor of the children.

An executor, desiring to obtain the instructions of the court, should bring a bill in equity, and not a petition.

PETITION IN EQUITY, by Thomas J. Gibbins, administrator with the will annexed of Thomas Gibbins, to obtain the instructions of the court.

The petition alleged that the testator, who died on June 7, 1876, left a will, which was duly admitted to probate on December 4, 1876, and contained the following clauses :

"First. I hereby constitute and appoint my wife Elizabeth Gibbins to be sole executrix of this my last will, directing my aid executrix to pay all my just debts a funeral expenses,

and to settle my estate, whether real or personal, as hereinafter mentioned.

"Second. After payment of my just debts and funeral expenses, I give and devise to my said executrix one third of all my real estate, to her sole use and behoof forever, together with all the furniture or personal property now in the house, and the other two thirds I leave in her power, and bequeath to her for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve."

The petition further alleged that the testator did not leave sufficient personal property to pay debts and funeral expenses; that his real estate had been sold under a license from the Probate Court for that purpose; that after the payment of the debts and funeral expenses, there remained in the hands of the administrator the sum of $1521.42, as the balance of the proceeds of such sale; that the testator left four children, of whom the petitioner was one, and a widow, the executrix named in the will, who had since been adjudged an insane person, and the defendant Shepard had been appointed her guardian; and that the true construction of the will was so doubtful as to need the aid and direction of this court to determine the same, and the petitioner's duties concerning the estate, and the rights of the several parties interested therein. The instruction of the court was requested, after such notice to the parties as to the court should seem best, as to whether the balance in the hands of the administrator should be paid to the wife of the testator, or only one third thereof and the income of the other two thirds, retaining said two thirds in his hands during her lifetime.

Notice was ordered to be served on all the parties interested. The petition was afterwards ordered to be taken pro confesso as to all except the guardian of the widow, who appeared and filed an answer, admitting the allegations of the petition; and the case was reserved by Soule, J., on the petition and answer, for he consideration of the full court.

G. Stevens, for the guardian of the widow.

J. F. McEvoy, contra.

SOULE, J. The moneys in the hands of the administrator are the proceeds of real estate of his testator, sold for the payment

of debts, remaining after such payment. He is responsible for the proper disposition of them, and therefore entitled to ask the instruction of this court as to the true construction of the will under which he is acting. His application contains no prayer for process, and is in the form of a petition rather than of a bill in equity; but as no objection was made by the defendants to the maintenance of the proceedings on this ground, and as any deficiency in this regard is open to amendment; Belknap v. Stone, 1 Allen, 572 we refer to the matter only for the purpose of saying that the proper practice is to proceed by bill, in the regular form.

The case presents a single question of construction. In determining it, we must ascertain, if possible, the intention of the testator, and give effect to that intention, unless prevented by some established rule of law.

As to one third part of the residue of the estate after payment of the debts and expenses of administration, it is clear that the widow takes the fee. The language of the will is apt and full thus far.

As to the remaining two thirds, the language is peculiar. "The other two thirds I leave in her power, and bequeath to her for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve." It is contended on the part of the children of the testator, that, under this provision, the widow takes a life estate only, with a power of appointment by will among the children, at her discretion. We are of opinion, however, that this is not the true construction. The words "I leave in her power," coupled with the other language of the devise, are equivalent to the words, "with power to dispose of the same as she shall think proper." This being so, the widow took at least an estate for life, with a power to convey the fee and to receive the proceeds. Cummings v. Shaw, 108 Mass. 159. The real estate having been sold by the administrator for payment of debts, the balance of the proceeds in his hands, after such payment, must go to the person whom the will authorizes to convey the estate. If the subsequent words, enjoining the widow to divide the estate on her death on the children, make a good devise over, such devise would take effect in case of a failure by