youngest of such children of my said brother shall have attained full age as aforesaid, then to make distribution of the principal among such children," etc.

Distribution-Devise, after a life estate of the income, to the "children of B., born and to be By the expressions, "born and to be born," born, in equal shares and proportions, until he may have intended to provide for the birth of the youngest of such children shall have at-children after the date of his will, in his own lifetained the age of 21 years," when a division time; or the birth of such children in the lifeof the principal was to be made among the time of his mother, to whom a precedent estate children then living, and the issue of those who was given; or he may have intended a birth at should be deceased-Held, that the date of the any time during the lifetime of his brother Almajority of the youngest child fixed the period bert. In the latter case, no matter how great the of distribution. improbabilites of the birth of other children may be, the estate must remain undivided so long as Albert lives, even though, in point of fact, he should have no other children, and the estate may therefore have become vested by reason of the majority of his youngest child long before his death; it cannot now be determined whether Adeline F. Bonaffon had a vested interest at the time of her death or not, and the final settlement

Sur exceptions to adjudication.

At the audit of the account of the trustees under the will of Sylvester Bonaffon, deceased, the following facts appeared :—

the death of her father, who, if the interest be vested, is entitled to it under the intestate laws. These inconveniences, of course, would be of no consequence if the testator's meaning is clear and unequivocal; but it is to be presumed that he contemplated all the consequences of the provision which he made; and a construction which will satisfy the language used, without leading to absurd or inconvenient results, is to be preferred.

By his will said decedent devised one-fourth of his residuary estate to the Girard Life and Trust Company, in trust, to pay the net income thereof to his mother during her life, and at her decease to pay the same to the children of his brother of her estate also would have to be deferred until Albert, "born and to be born, until the youngest of such children shall have attained the full age of twenty-one years." . . . Then to convert the said trust estate "into money," and divide it equally among the said children, or their representatives. He made a proviso, that if any of these children should die in minority without issue, that such deceased child's or children's share should be divided among the survivors. The will was executed March 8, 1865, the testator died December 5, 1876, and his mother died in March, 1877. When testator died there were five children of his brother Albert living. The youngest, Eugenia Bonaffon, came of age February 22, 1882. Albert L. Bonaffon, the father of these children, is sixty-six years of age, and his wife, whom he married twelve years ago, is about fifty. By her he has had no issue. Adeline F. Bonaffon, one of his children, died in October, 1883, after her youngest sister had come of age, intestate, and without issue, leaving her father as her next of kin.

The Auditing Judge (PENROSE, J.) held as follows: The question now presented is, has the time appointed by the testator for the vesting and distribution of the trust estate yet arrived, or must the estate, in order to provide for the contingency of the birth of other children, and their participation in the income until the youngest shall attain the age of twenty-one, continue to be held by the trustee, or at least during the life of Albert L. Bonaffon?

The language of the testator is: "In trust, to pay the said net income . . . to the children of my brother, Albert L. Bonaffon, born and to be born, in equal shares and proportions, until the youngest of such children shall have attained the full age of twenty-one years. And when the

If the words, "to be born," are to be understood as referring to the birth of children at any time during the life of the brother, it might be very difficult to give effect to the direction that the income shall be paid "in equal shares and proportions, until the youngest of such children shall have attained the full age of twenty-one years." How could it be known what an "equal share" was until the number between whom the division was to be made could be ascertained? Hence the distribution of income, as well as principal, would have to be suspended during the lifetime of Albert L. Bonaffon.

It is impossible, in the absence of express words, to suppose that the testator intended this. On the contrary, he has said that the distribution of income shall begin at the death of his mother, the tenant for life.

Thus he has defined the persons who are to receive the principal, they are to be the same persons who at the death of the mother are to have an equal share of the income, for it is when the youngest of "such" children attains the age of twenty-one that this distribution of the principal is to take place.

In Gilbert v. Boorman (11 Ves. 238), where a residue was bequeathed to A., and all the other children hereafter to be born of B., at their respective ages of twenty-one, it was held that those

It follows as the youngest of the children of Albert L. Bonaffon, now in being, became of age on the 22d of February, 1882, that the interest became vested on that day in such as were living, and as the death of Adeline F. Bonaffon did not occur until after that time, her share must be awarded to her representatives.

born after one attains that age were excluded; | only of the distribution of the principal, but also the Master of the Rolls, Sir WILLIAM GRANT, ob- of the income. serving, "that children born afterwards are excluded of necessity, when a partial distribution is to take place, though, if that circumstance did not prevent it, all would be entitled." In other words, where shares (and this must apply as well as to shares of income as of principal) are to be ascertained at a given time, persons not in being at the time are not to be considered. (See, also, note 3 to Hill v. Chapman, 1 Ves. 405.)

The question as to when the estate vested in right of possession is one of some difficulty, and The Auditing Judge is convinced that the while the views of Mr. Uhle on this subject have words of the will are to be understood as limit-been adopted by the Auditing Judge, the acing the birth of children after the date of its ex-countant is not to be blamed, or made to suffer ecution to the lifetime of Mrs. Bonaffon. Thus because a different opinion was entertained by construed, a meaning is given to all the provisions counsel, under whose advice they acted, and of the instrument, and no uncertainty can arise whose duty it will be to have the question passed as to the time at which the interests become upon by the Court in Banc, and perhaps by the vested. Supreme Court."

In Theobald on Wills (ed. of 1876, p. 148), the result of the authorities as to the meaning to be given to the words "born and to be born,' in cases of this sort, is thus stated: Where the words are "born or to be born" the rules appear to be, (1) When the gift is after a life estate such words will not extend the class (Sprackling v. Ranier, 1 Dick. 344; Whitbread v. St. John, 10 Ves. 152; Parsons v. Justice, 34 B. 598); though of course the case is different if the gift is to children "now born or who shall be born in the lifetime of the tenants for life." (Scott v. Lord Scarborough, 1 B. 154.)

(2) The rule is the same where the gift is to children now born or who shall hereafter be born and attain the age of twenty-one. (Iredell v. Iredell, 25 B. 435; 6 Eq. 215.)

(3) But in the case of a direct gift to children "now born or to be born hereafter" it would seem all children would be included, at any rate, this is the case with realty. (Mogg v. Mogg 1 Mer. 654; Eddowes v. Eddowes, 30 B. 603.) And there seems no reason why the same rule should not apply to personalty.

(4) If, however, the gift is of a lump sum to each of the children begotten or to be begotten the class will not be extended beyond the testator's death, as not merely the distribution of what the children are to take, but of the whole estate of the testator, would be indefinitely postponed. (Butler v. Lowe, 10 Simons, 317. See, also, Williams on Executors, Perkins ed., 1877, 1172, etc., and notes; Hawkins on Wills, 70, 71.)

In Butler v. Lowe (supra), it was held, where a lump sum was given to children begotten and to be begotten, that the class would not be extended beyond the testator's death, as not merely the distribution of what the children are to take, but of the whole estate of the testator would be indefinitely postponed. In the present case the indefinite postponement would be not

To this adjudication exceptions were filed by the trustees.

J. J. Ridgway, Jr., for the exceptants.
J. B. Uhle (with whom was Guillou), contra.

But

March 22, 1884. THE COURT. In a gift to children as a class, the law aims to postpone as far as possible the period of distribution, in order to bring within the scope of the testator's bounty the largest number of beneficiaries. the rule has been broken, upon the ground of convenience, where a literal adherence to it would sacrifice the interests of living children to secure the possible rights of children who may yet be born. Hence Lord MANSFIELD declared in Baldwin v. Karver (Cow. 309) that the point to be determined in gifts of this character, however general in their terms, is, when does the legacy vest. The vesting, whether it be at the death of the testator or of the first taker, or upon the happening of a contingency more or less remote or uncertain, fixes the line between the parties who shall take and those who shall be excluded. In Ellison v. Airey (1 Ves. 111) the remainder, if the legatee died before twenty-one or marriage, was to the younger children of the nephew, the eldest son being excluded. The legatee having died unmarried before twenty-one, it was argued that all the children of the nephew were meant, because who would be the eldest child could not be known until the nephew's death; but Lord HARDWICKE decided that the legacy vested at the death of the first taker, and that it was divisible when it vested. Lord THURLOw, in Andrews v. Partington (3 Br. Ch. C. 404), assented reluctantly to the rule, but admitted its binding effect. In that case the bequest was of a residue to all the children of A. when they should attain twenty-one, and it was held that the distribution was to be limited to the children who were living when the eldest reached that age. To Lord

THURLOW'S objection that the inconvenience of]

delaying a division until the possibility of the birth. S. Circuit Court—

of other children should be extinct, would be no greater under a devise than under a marriage settlement, it was answered that in the latter case, no children were in existence at the marriage, and the benefit must, therefore, be intended for all (Baldwin v. Karver, supra). Mr. Eden, in his note to Andrews v. Partington (supra), arranges the cases in three classes. (1) Where there is simply a general devise to children or other persons as a class, in which case it comprehends all persons answering that description at the time of the testator's death. (2) Where there is a previous life estate, in which case all the persons answering the description at the extinction of that life are included. (3) Where the bequest is to children generally, payable at a certain period, as at twenty-one or marriage, in which case all children are let in who come into esse before the first child attains the period appointed. Under the second head he cites the case of Walker v. Shore (15 Ves. 122), in which, after a bequest to A. for life, the principal was to be divided equally among the children of B. and C., and in which the death of the life tenant was held to fix the period at which the children who were to take must be ascertained. Under the last head may be placed the case of Hubbard v. Lloyd (6 Cush. Mass. 522), where the bequest of the residue was to "all the children of B. equally when they shall severally attain the age of twenty-five years." It was held to include the children who were born before one reached that age, though born after the testator's death, and to exclude all who were born after a child had become twenty-five. These and the authorities which were cited by the Auditing Judge make it clear that in the present bequest only the children who were born before the death of the life tenant are entitled to share in the residue. The testator gave one-fourth of his residuary estate in trust for his mother for life, and at her death the income "to the children of my (his) brother, Albert L. Bonaffon, born and to be born, in equal shares and proportions, until the youngest of such children shall have attained the full age of twenty-one years," at which time he directed the division of the principal among the children then living and the issue of those who should be deceased. The youngest child now living is of full age. The Auditing Judge properly decided that the date of her majority fixed the period of distribution.

The exceptions are dismissed and the adjudi

cation is confirmed.

Opinion by ASHMAN, J.

W. D. N.

Law.

Peoria Sugar Refinery v. The Susquehanna Mutual Fire Ins. Co.

Law of insurance-Payment of premiumsClause of limitation-Agency-General custom-Parol evidence-Written agreement.

Waiver of an express provision in a policy of fire insurance cannot be proved by parol testimony, showing that the general custom among insurance companies and brokers is otherwise than as stated in the provision, when there is another clause in the policy providing that there shall be no waiver except by the authority of the company expressed in writing.

But such a waiver can be proved by parol testimony, showing the course of business of the company which issued the policy in its dealings with the broker who procured the policy.

A policy of insurance on the plaintiff's factory provided that the company should not be liable, "until the cash premiums be actually paid to the company, or an agent of the company;" that any broker, or other person than the the agent of the assured and not of the company;" that assured, who had procured the policy should be “deemed no person should be considered the agent of the company unless he held the commission of the company; that there should be no waiver by the company of any term in the policy, except by express authority in writing. The inthe hands of H. & Co., insurance brokers in New York; sured owning a large factory, placed their insurance in H. & Co. applied to B. & Co., insurance brokers in Jersey City, who obtained the policy and delivered it to H. & Co. B. & Co. had previously placed a few risks with the defendant, but was not in fact their agent. H. several days and until the property insured was burnt, & Co. sent the premium to B. & Co., who kept it for when they sent it to the defendant, who refused to accept it:

Held, that B & Co. were not the agents of the company to receive payment of this premium for the company, and that the plaintiff could not recover.

Sur motion to take off compulsory nonsuit.

Assumpsit, on a policy of insurance for $1500, dated August 25, 1881. At the trial before BUTLER, D. J., Nov. 13, 1883, the plaintiffs offered in evidence the policy, proved the total destruction of the property insured on October 27, 1881, and their compliance with all the requirements of the policy as to furnishing proofs of loss, etc. The policy contained the following clauses:—

policy, or any renewal thereof, until the cash premium be

1. This company shall not be liable by virtue of this

actually paid to the company, or to an agent of the company.

2. If any broker, or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance.

3. Only such person as shall hold the commission of broker to remit in payment at stated or conthis company, shall be considered as its agents in any venient intervals. transaction relating to the insurance, or any renewal thereof, or the payment of premium to the company. Any other person shall be deemed to be the agent of the assured and payment of the premium to such person shall

be at the sole risk of the assured.

6. The use of general terms, nor anything less than a distinct agreement, clearly expressed and indorsed by this company on this policy, shall be construed to be a waiver of any printed or written term, condition or restriction thereof, nor can any such printed or written term, condition, or restriction, be waived by any agent of this company, either before or after a loss, without special authority in writing from the company.

Upon objection the Court refused the offer. The plaintiff then closed and the defendant moved for a nonsuit, which was granted with leave to move to take it off.

Walter George Smith and Francis Rawle, for the motion.

Where the policy is delivered without requiring payment of the premium, the presumption is that a credit is intended; and the rule is well settled where a credit is intended that a policy is valid, though the premium was not paid at the time the policy was delivered.

Miller v. The Insurance Co., 12 Wall. 303.
Behler v. The Ins. Co., 68 Ins. 347.
Boehen v. The Ins. Co., 35 N. Y. 134
Eagan v. The Ins. Co., 10 W. Va. 583.

It appeared from the testimony that the insurance was negotiated by Hamlin & Co., of New York, through W. W. Buckley & Co., insurance brokers of Jersey City. The policy was received by Buckley & Co., from the home office of the A waiver of the payment of premium may be defendant company, in the early part of Sep-inferred from any circumstances fairly showing tember, 1881, and immediately sent to Hamlin that the insurers did not intend to insist upon & Co., who forwarded it at once to the plaintiff. the pre-payment of the premium as a condition The premium was received by Hamlin & Co., precedent. on October 1st or 2d, 1881, from the plaintiff, and sent to Buckley & Co. on October 21, 1881, who sent a check for it to the defendant on October 29, 1881. Meantime, on October 27, 1881, the property insured had been totally destroyed by fire. The defendant thereupon refused to accept the premium, and returned the check to Buckley & Co.

At the trial, after proving the facts as stated, the plaintiff offered to show by a member of the firm of Buckley & Co., the course of business between the witness's firm and the defendant, with a view of proving authority on the part of the witness's firm to accept payment of the pre

mium of the defendant. This offer was admitted and the witness testified in substance, that before this transaction took place his firm had obtained many policies from the Susquehanna Fire Insurance Company. They sent the applications and the company returned the policies to them; and they had a common form of policy. He collected the premiums and forwarded them to the company, sometimes a day, and sometimes a week or more after receiving them. The company never objected to their delivering policies without receiving premiums, and they never wrote to dun him for not sending delayed premiums.

Equitable Ins. Co. v. McCrea, 8 Lea, 541.
Heaton v. Manhattan Ins. Co., 7 R. I. 502.
Hanley v. Life Ass., 4 Mo. App. 253.
Goit v. N. P. Ins. Co., 25 Barb. 189.
Bodine v. Ins. Co., 51 N. Y. 117.
May on Ins., Sec. 340.

A condition may be waived by parol although there is a clause in the policy saying that no condition can be waived except in writing.

Coursin v. Ins. Co., 43 N. J. L. 300.
S. C., 39 Am. Rep. 584.

Insurance Co. v. Norton, 6 Otto, 234.
Thompson v. Ins. Co., 14 Otto, 252.
Phoenix Ins. Co. v. Doster, 16 Otto, 35.
the case to the jury.
There was sufficient evidence of waiver to give

Coursin v. Penna. Ins. Co., 46 Pa. St. 323.
Patterson v. Ins. Co., 22 Pgh. Leg. Jour. 201.
The learned Judge should have admitted plain-
tiff's offer to show that it was a general custom
among insurance companies and brokers to issue
policies without requiring payment of premium
even when there is a clause of limitation similar
to the one in this case.

Helme v. The Phila. Life Ins. Co., 61 Pa. St. 107.
Girard v. Mut. Life Ins. Co., 86 Pa. St. 236.
Baxter v. Massassoit Ins. Co., 13 Allen, 320.
Pino v. Merchant Ins Co., 19 La. Ann. 214.
Union Cent. Insurance Co. v. Pottker, 33 Ohio, 459.
Fleming and Mc Carrell, contra.
This case is settled by-

Pottsville M. I. Co. v. Min. Sp. Ins. Co., 100 Pa.
St. 137.

Plaintiffs then offered to show by the witness as an expert in the insurance business, that it is the custom in that business, when carried on through brokers, to issue policies without requiring prepayment of the premium and allowing the sitting). The motion is refused. S. G. F.

THE COURT (MCKENNAN and BUTLER, JJ.,

VOL. XIV.] THURSDAY, JULY 17, 1884. [No. 32. for other causes, different from those fixed by