Jones Appeal from Probate

Carpenter, J. James M. Goodwin died March 30th, 1870. In his will he divided his estate into fifty equal parts. The sixth clause of the will reads as follows:—“I give and bequeath the use, income, interest and improvement of twenty of the above-named equal parts to my beloved son, James M. Goodwin, Jr., for and during the term of his natural life, and at his decease I direct the same to be divided equally among his children.” At that time James M. Goodwin, Jr., had three adult children, and his wife was still living. Subsequently she died; he married again, and had two children by his second wife. He is now dead, and the question reserved for this court is, whether the children by the second wife share in the legacy to his children. The general rule in regard to a legacy to a class is, that those and those only who are embraced in the class at the time the legacy takes effect will be allowed to take. This is conceded. But it sometimes happens, as in the present case, that a legacy takes effect in point of right at one time and in point of enjoyment at a subsequent time. In such cases another rule, of nearly universal application, with hardly a dissenting authority, prevails; and that is, that all who are embraced in the class at the time of the distribution, or when the legacy takes effect in point of enjoyment, will take. That rule applies to and determines this case. The fact that the legacy vested in the children of the first wife at the death of the testator is no obstacle to the application of the rule. It vested subject to diminution by the birth of children afterwards. The Superior Court is advised that all the children of James M. Goodwin, Jr., including those by his second' wife, are entitled to share in the legacy. In this opinion the other judges concurred.