they are sureties as to the formal and original maker, in the absence of countervailing proof, they are not absolved, inter sese, from the obligations of suretyship, and the doctrine of contribution ught to obtain.27 This position has the weight of authorities in its favor, 28 although early cases29 were criticised in Gillespie v. Campbell 30 In this case the doctrine of contribution was denied. In McDonald v. McGruder, where the first indorser sought to recover contribution of the second indorser, Chief Justice Marshall denied that the doctrine obtained on the ground that there had been no communication between them, and, declared that the rule of mercantile law making the liability several and successive prevailed. But in the late case in Tennessee, Logan v. Ogden,3 32 where the sec

31

court

ond indorser sued the first indorser for the full amount of the note, the supreme declared that "as between themselves alone they were joint sureties" for the original promisor. The court held that the position of their names on the back of the note was immaterial, and likewise the time of writing them there with respect to each other, and that each must contribute alike to the discharge of the obligation. And this position on the question is in conformity with the best judicial conception of to-day.

II. In some States the irregular indorser is treated and made liable as a guarantor.33 By some authorities it is thought this is the soundest rule; that the purpose was to furnish additional security and to guarantee the payment of the note upon the failure of the maker

33 Eberhart v. Page, 89 Ill. 550; Kingsland v. Koeppl, 136 Ill. 344; Boynton v. Pierce, 79 Ill. 145; Dietrich v. Mitchell, 43 Ill. 40, 92 Am. Dec. 99; Parkhurst v. Vail, 73 Ill. 343; Fullerton v. Hill, 48 Kan. 558; Firman v. Blood, 2 Kan. 496; Arnold v. Bryant, 8 Bush, 668; Van Doren v. Tjader, 1 Nev.1380. See Randolph, Com. Pap., sec. 838; 4 Am. & Eng. Ency. Law (2d Ed.), 491. In several of the States he is made liable as a guarantor by statute. Illinois (1883) R. S., ch. 98, sec. 8. In Iowa, it would seem he is made liable as a guarantor by statute. 1 McClain's Ann. Stat. (1880) 586, sec. 2089; Act of Kentucky Legislature, January 24, 1866.

to pay it.34 Some courts hold that the statute of frauds does not apply to such cases, and others, to avoid the force and effect of it, hold that power is implied to the holder to fill out the guaranty over the indorsement. As to what constitutes a consideration to support the contract of guaranty there is a difference of opinion among the authorities, but it seems a distinction is made between a person becoming a guarantor at the inception of the transaction, and one indorsing the note subsequent to its delivery, and ipso facto becoming liable as a guarantor. In the former case the original consideration is sufficient to support the indorsement; whereas in the latter case a consideration other than the original must be shown.37 But parol evidence is admissible to vary the liability at the suit of the payee.38

III. In other jurisdictions, neither of these doctrines obtain, but great significance is given to the position of the signature on the note.59

The irregular indorser is held to be bound as a regular indorser, his rights and liabilities being determined by the rules governing legal indorsements.40 In strict theory,

34 Tiedeman, Com. Pap., sec. 271; Randolph, Com. Pap., sec. 638; Story, Prom. N., sec. 460.

35 Fuller v. Scott, 8 Kan. 254; Parkhurst v. Vail, 73 Ill. 343; Gungz v. Giegling (Mich.), 66 N. W. Rep. 48; Harding v. Waters, 6 Lea (Tenn.), 331; Story, Prom. N., sec. 457; Randolph, Com. Pap., secs. 838, 843. Original consideration held insufficient to bind him as a guarantor in Jones v. Ketler, 32 Tex. 717.

36 Heinz v. Cahn, 29 Ill. 308; Carroll v. Weld, 13 Ill. 682; Kracht v. Obst, 14 Bush (Ky.), 34; Veech v. Thompson, 15 Iowa, 380; Story, Prom. N., secs. 457, 459; Randolph, Com. Pap., secs. 838, 843. Contra: Jones v. Ketler, supra.

37 Killian v. Ashley, 24 Ark. 511; Tenney v. Prince (Mass.), 16 Am. Dec. 347; Good v. Martin, supra; Story, Prom. N., sec. 470; Randolph, Com. Pap., sec. 843. In some States the consideration of the guaranty must be expressed in writing. Van Doren v. Tjader, supra; Randolph, Com. Pap., sec. 843.

38 Eberhart v. Page, 89 Ill. 550; Burton v. Hansford, 10 W. Va. 470; Randolph, Com. Pap., sec. 838; Story, Prom. N., sec. 459.

39 Schafer v. Bank, 59 Penn. 144, 98 Am. Dec. 326; Haviland v. Haviland, 14 Hun, 627; Jones v. Godwin, 39 Cal. 493; Randolph, Com. Pap., sec. 834.

40 Legislative enactments have given this character of liability to such indorsers. In England and Canada this result is reached by statutes, and he "incurs the liabilities of an indorser to a holder for value." Chalmers on Bills of Exchange, 108; Ayr American Plough Co. v. Wallace, 21 Can. Sup. Ct. Rep. 256. By the California Civil Code he is regarded as an indorser. Fessenden v. Sumner, 62 Cal. 484; Randolph, Com. Pap., sec. 836. In Connecticut (Gen. St., sec. 1860), he is made an indorser. Nor, it seems, can this character of indorsement be varied by parol evidence of a

applying the rules applicable to indorsements, if an indorser at all he is a second indorser, and he is held to be such in a number of States in the absence of evidence to the contrary. Presumptively such an indorsement creates no liability in favor of the payee. The payee must assume the responsibility of first indorser when the irregular indorser becomes liable to subsequent holders. 43 Indeed, the character and obligation of a second indorser seem to deny and negative the idea of liability to the payee, who is, in contemplation of mercantile law, the first indorser.44 It is now generally admitted that in the absence of statutes having a contrary effect the true relation and intention of the parties at the time the transaction took place may be shown; and thus the liability of the indorser to the payee may be fixed and enforced.45 But the second indorser will not be liable to the payee by reason of any agreement between the maker and the payee unknown to the indorser; the intention of the indorser must be considered also. And it is maintained, in the absence of statutes, that to make the second indorser liable to the payee the indorsement must have been made for the specific purpose of the maker obtaining credit with the payee, and in pursuance of an agreement to that effect. In Pennsylvania, by reason of the different agreement. Spencer v. Allerton, 60 Conn. 410. In Massachusetts he is entitled to notice of nonpayment. Nat. Bank v. Law, 127 Mass. 148.

41 Keeling v. Vansickle, 74 Ind. 529, 39 Am. Rep. 101; Early v. Foster, 7 Black, p. 35; Browning v. Merritt, 61 Ind. 425; Holmes v. Preston, 70 Miss. 152; Phelps v. Vischer, 50 N. Y. 691, 10 Am. Rep. 433; Hindrie v. Kumer, 84 Hun, 141; Edison Gen. Elec. Co. v. Lebley, 72 Hun, 166; Casey v. Stewart, 30 N. Y. Supp. 808; Hall v. Newcomb, 42 Am. Dec. 82; Wade v. Creighton, 25 Oreg. 455; Dierng v. Creighton, 19 Oreg. 118, 20 Am. St. Rep. 800; Schafer v. Bank, 59 Pa. St. 144, 98 Am. Dec. 323; Slack v. Kirk, 67 Penn. 380; Hauer v. Patterson, 84 Penn. 274; Temple v. Baker, 3 L. R. A. 707; Newbald v. Boraef, 155 Penn. 227, 26 Atl. Rep. 305; Cody v. Shepard, 12 Wis. 639.

42 Keeling v. Vansickle, 74 Ind. 629; Bogue v. Neleck, 25 Ill. 91; Randolph, Com. Pap., secs. 836, 837; Norton, B. & N., sec. 68.

43 McPhillips v. Jones, 73 Hun (N. Y.), 516; Phelps v. Vischer, 50 N. Y. 69, 10 Am. Rep. 433. An indorsement of this kind per se creates no implied commercial contract whatever; so held in Chaddock v. Vanness, 35 N. J. L. 517.

44 Randolph, Com. Pap., sec. 845.

45 Blakeslee v. Hewitt, 76 Wis. 341; Moore v. Cross, 19 N. Y. 227, 75 Am. Dec. 326; Jaffray v. Brown, 74 N. Y. 393; Wade v. Creighton, 25 Oreg. 455; Randolph, Com. Pap., secs. 841, 845.

46 Tillman v. Wheeler, 17 Johns. 326; Montgomery v. Schenck, 82 Hun (N. Y.), 24; Randolph, Com. Pap., sec. 837.

statute of frauds, parol evidence is not admissible to change the liability of such an indorsement, which is fixed by the law merchant as that of a second indorser;47 but such an indorser may be converted into a guarantor by an agreement in writing signed by him.48 And in the absence of such a writing, the payee cannot sue the irregular indorser, and should an innocert holder recover from him he can sue the payee as first indorser. 49 Other authorities, while holding to the idea that such a person was an indorser, declared that he was nevertheless liable to the payee. In maintaining this character of liability, two theories were evolved to support it: based upon a presumption of law and the interpretation of the contract upon its face, the other through extraneous evidence of intention or understanding of the parties as before shown. Judge Daniel50 insists that the irregular indorser stands in the position of an accommodation drawer, and is, therefore, liable to the payee. Some courts have main

One

tained that such an indorsement itself creates a liability of first indorser,51 and that this presumption cannot be overcome by parol evidence.5 52 In some States, where he is held liable as first indorser, it is necessary, under the statutes, before he can be charged as such, that notice of non-payment must be given him. Then, in other States, the same result is reached by affirmatively showing through extrinsic evidence an intention of responsibility on the part of the indorser to the payee. This course arose from the attempt of the courts to try to avoid the harsh results of the application and enforcement of mer

54

47 Schaefer v. Bank, 59 Penn. 144, 98 Am. Dec. 323; Slack v. Kirk, 67 Penn. 380; Hauer v. Patterson, 84 Penn. 274; Newbald v. Boraef, 155 Penn. 227, 26 Atl. Rep. 305; Temple v. Baker, 3 L. R. A. 709.

48 A memorandum in writing, signed by the irregu lar indorser, showing his responsibility to the payee, saves the statute. Eilbert v. Finkbeiner, 68 Penn. 243, 8 Am. Rep. 176.

49 Temple v. Baker, 3 L. R. A. 709; Phelps v. Vischer, 50 N. Y. 69, 10 Am. Rep. 433.

50 Neg. Insts., sec. 714.

51 Price v. Lavender, 38 Ala. 389; Hooks v. Anderson, 58 Ala. 238, 29 Am. Rep. 745.

52 Melton v. De Yamport, 3 Ala. 648; Price v. Lavender, supra; Reggs v. California, 2 Cal. 485, 56 Am. Dec. 356.

53 California Civil Code, 3117; Fisk v. Miller, 63 Cal. 367; Randolph, Com. Pap., sec. 836; Lanahan v. Porter, 148 Mass. 596.

54 Moore v. Cross, 19 N. Y. 227, 75 Am. Dec. 326; Moorman v. Wood, 117 Ind. 114; Norton, B. & N., sec. 68.

cantile law without evading it through any scheme of interpretation of the contract on its face; for it became obvious that to apply the strict rules governing indorsements would often mean the "enforcement of theory at the expense of justice."55

59

IV. In the foregoing discussion only negotiable paper has been considered. The same rule in several States which governs the liability of irregular indorsers on negotiable paper determines the liability of irregular indorsers on non-negotiable instruments;56 but in New York, where an irregular indorser on a negotiable instrument is regarded prima facie as a strict indorser, such an indorser on non-negotiable paper is considered an original promisor.5 In some other States he is presumptively liable as an original promisor.58 And in still others it has been held that no presumptive liability is raised, but his liability is determined by the agreement or understanding of the parties when the indorsement was made." Thus different doctrines obtain in different States. And, while it may be a bootless chase to search authorities for the purpose of endeavoring to evolve a settled principle touching the liability of an irregular indorser in this country, from the warring contention now encompassed by the sanctity of stare decisis in the respective States, yet, as between the parties, there seems to be a unanimity of opinion in holding admissible extraneous evidence of the intention of the parties at the time of the transaction, and in giving judicial force to that intent. The once dubious inference that commercial law alone did not furnish a solution of the problem, has become finally an obvious fact. As de, however, from the admission of ex raneous evidence on the contract, there seems to be no universal rule. But the understanding of the parties is frequently indefinite and unsatisfactory-the

55 Norton, B. & N., sec. 68; Randolph, Com. Pap., sec. 841.

56 Castle v. Candle, 16 Conn. 223; Cooley v. Law. rence, 4 Martin (La.), 274; Rothschild v. Grix, 31 Mich. 150, 18 Am. Rep. 171; Lewis v. Harvey, 18 Mo. 74, 59 Am. Dec. 286; Carr v. Rowland, 14 Tex. 275.

57 Cromwell v. Hewitt, 40 N. Y. 492, 100 Am. Dec. 527; Richards v. Warring, 39 Barb. 42.

58 Pool v. Anderson, 116 Ind. 88; Gorman v. Ketchum, 33 Wis. 427; Houghton v. Ely, 26 Wis. 181, 7 Am. Rep. 52.

extraneous evidence being often of little aid to the court, which is thrown back upon the presumptive effect of the instrument. To meet the exigencies of all cases, the rule obtaining in the Supreme Court of the United States seems to furnish the remedy which more nearly than any other grants complete justice and conforms to the general belief, that as to the payee and bona fide holders the irregular indorser is a prima facie maker, and as to the original and formal maker, a surety. Certainly this doctrine is more in conformity with the general understanding and current beliefs in the centers of commerce, from which the rules of the law merchant largely grew, and it contains a more engaging and persuasive equity than the other doctrines. Knoxville, Tenn. D. W. KUHN.

WILLS-PERPETUITIES.

TINGIER v. CHAMBERLIN.

Supreme Court of Errors of Connecticut, March 9, 1899.

Under the statute against perpetuities (Gen. St. 1888, § 2952), making void a devise to the descendants of persons unborn at the testator's death, a devise "to those persons who are the natural heirs at law" of a third person at his death is void.

Hammersley, J., dissenting.

TORRANCE, J.: The facts found in the presen case are substantially the same as those stated in 70 Conn. 363, 39 Atl. Rep. 734, when, in another phase of it, this case was before this court; and for the purposes of this case it is unnecessary to recite them here at length. The plaintiff is administrator de bonis non, with the will annexed, both upon the estate of Eunice Chapman and upon the estate of Elijah S. Chapman, her husband. Elijah S. Chapman died in March, 1879, leaving a will, the material portions of which were as follows: "Second. I give, devise, and bequeath unto my beloved wife, Eunice Chapman, the use and improvement, rents, profits, and income, of all my estate, real and personal, and wheresoever the same may be situated; to her during her natural life. Third. I give, devise, and bequeath all my said estate, at the decease of my said wife, unto such person or persons, and in such shares or portions, as my said wife, Eunice Chapman, by her last will and testament, duly executed, shall name, designate, and appoint (provided she shall not give the same to Otis and Ambrose D. Snow, or either of them); to them and their heirs forever." He left surviving him Eunice, his widow, and three children,-Adeline, wife of Ambrose Snow, Mary, wife of Otis Snow, and DoreEunice, the widow, died in April, 1884. leaving a will, in which she gave all the estate of her husband of which she had the power to dis

mus.

pose under his will, and all her own estate, to a trustee, in trust to pay over the net income to her son, Doremus, during his life, with power in the trustee to appropriate and apply, in his discretion, so much of the principal of the trust estate, for the purposes of the trust, as he should deem necessary. The trust estate that might remain at the death of Doremus she disposed of as follows: "Fourth. If, upon the decease of my said son, Doremus D. Chapman, any portion of said trust estate shall be remaining in the hands of said trustee, undisposed of, I authorize and direct said trustee to distribute, transfer, and convey all said remaining estate, absolutely to such persons as would then be entitled to the same as heirs at law of the said Doremus D. Chapman, if said estate belonged to him, under the statute laws of the State of Connecticut then in force, if the same were intestate estate; that is to say, said trustee shall distribute said estate as aforesaid to those persons who are the natural heirs at law of my said son at the time of his decease." She left surviving her the three children aforesaid, and three grandchildren, children of her daughter Mary, all of whom, with the exception of her son, Doremus, are now living. Doremus, after the death of his mother, married, and subsequently, in December, 1896, died, without ever having had any child born to him. He left a widow, who is still living, and a will by which he gave all of his estate to his widow. The duly qualified executor of his will and his widow are made parties to this suit. The trust estate, the life use of which was given to Doremus consisted of the estate of his father, Elijah S. Chapman, and the estate of his mother, Eunice Chapman, including both real and personal estate; and what remained of both of said estates is now in the possession and control of the plaintiff, to be disposed of according to law. The complaint sets forth several questions, concerning which it is alleged that the plaintiff is in doubt; but they may all be resolved into this single question, namely, whether the disposition of what remains of these estates after the death of Doremus, contained in the will of Eunice Chapman, does or does not contravene the provisions of the statute of perpetuities in force when her will took effect, in April, 1884.

Under the will of her husband, Mrs. Eunice Chapman had the power to dispose by will of the remainder of her husband's estate, after her life use thereof, to such persons, except Otis and Ambrose D. Snow, and in such portions, as she pleased; and under the law, of course, she had the power to dispose of her own estate by will as she chose. By her will she gave her son, Doremus, through her trustee, the life use of the property belonging to both estates, and concerning this disposition of such property no question is made in the present case. She further provided in her will that what remained of this property after the death of Doremus should go as follows: "To those persons who are the natural heirs at law of my said son at the time of his decease." Whether

this is a valid or a void disposition is substantially the only question in the case, and its validity must be determined by the law as it was when her will took effect, in 1884. Security Co. v. Snow, 70 Conn. 288, 292, 39 Atl. Rep. 153. At that time the statute against perpetuities (section 2952, Gen. St. 1888) was in full force, though it has since been repealed. Pub. Acts 1895, ch. 249. Under this statute, as construed by this court, the issue or descendants of persons unborn at the death of a testator cannot take under his will; and a gift, devise, or bequest which may by possibility offend against the statute in this respect is void and of no effect. This has been the construction put upon the statute, whenever its construction has been before this court, for a period of nearly 70 years,from the decision in Allyn v. Mather, 9 Conn. 114, in 1832, down to that in Security Co. v. Snow, supra, in 1898. This uniform construction for so long a period has acquired the force of a fixed rule of property, and is no longer open to doubt or question. If a gift, devise, or bequest offends against the statute as thus construed, it is void and of no effect. That the disposition here in question does thus offend against the statute is clear, beyond all question. The testatrix used the words "heirs at law" of Doremus, not as meaning his children, but in their natural and proper sense, as including all those persons who shall be capable of inheriting from him, or taking his property under the statute of distributions, if he died intestate. In the clause under consideration, those who are to take are expressly, and with great precision, described as his heirs at law, in the strictly technical sense of those words; and there is nothing in any other part of the will which in any way qualifies or modifies this descriptive language. Under such a description, all of the property remaining of both estates may go to the issue or descendants of persons not in being when the testatrix died, and the gift over is therefore void.

The superior court is advised that the disposition made in the fourth clause of the will of Eunice Chapman to the heirs at law of Doremus is void, and that the property in the hands of the plaintiff belonging to the estate of Eunice Chapman and to the estate of Elijah S. Chapman is intestate estate, and is to be dealt with and disposed of as such. The other judges concurred.

NOTE. One of the judges of the court dissents from the conclusion of the majority in the principal case. "The testatrix," he says "seeks to give her son the full benefit of her property, only restraining his power of alienation, so that at his death it shall go to his heirs. Such a devise is, and always has been, valid under the common law of this State. Larabee v. Larabee, 1 Root, 555; Hamilton v. Hemsted, 3 Day, 332, 338; Healy v. Healy, 70 Conn. 467, 471, 39 Atl. Rep. 793. A devise to a son for life, and upon his death to his heirs, is one of the most natural and most common provisions made by will. To forbid such a devise is an unnatural and unjustifiable alteration of the law of property. It is said that such an alteration was made by a statute first enacted in 1784. No intimation of

this result can be found in the language of the statute. It was passed in affirmation of the common law, to avoid pepetuities. Revision 1875, p. 352, § 3; Welles v. Olcott, Kirby, 118; Chappell v. Brewster, Id. 175; Allyn v. Mather, 9 Conn. 114, 130; 1 Swift, Syst. Laws Conn. pp. 247, 249, 267. The meaning now attributed to it is in violation of the common law, and subversive of the foundation on which the rule against perpetuities rests."

Recent Decisions on the Creation of Future Contingent Interests in General.-Code, sec. 1920, declaring void every disposition of property which suspends the absolute power of controlling it for more than a certain period, applies merely to the vesting of an estate, and does not affect its continuance after it has vested. Phillips v. Harrow (Iowa), 61 N. W. Rep. 434. A legacy conditioned that the legatee shall pay all premiums on a policy of life insurance procured by testatrix for the benefit of her adopted son, and that such insurance, or some part thereof, shall be actually paid to the adopted son within one year from her decease, though future and contingent, vested as a right, and could be sold by the legatee at any moment after the death of the testatrix, and did not suspend the power of alienation. Sawyer v. Cubby, 146 N. Y. 192, 40 N. E. Rep. 869. Testator devised the residue of his estate to trustees, the trust to continue until the death of the last of his five children. One-half of the income was to be paid to his children, and on the death of his last child the estate was to be divided equally among his "grandchildren and their heirs." Held, that the provision for the grandchildren violated the statute of perpetuities, as the title to the remainder did not vest in the grandchildren as a class at testator's death, but vested on the termination of the trust in the grandchildren then living and the heirs of any deceased grandchild. Morris v. Bolles, 65 Conn. 45, 31 Atl. Rep. 538. Testator, after devising to his wife the whole, or so much as she might need, of the income of his estate devised in trust, directed the residue of the income to be paid during the continuance of the trust in equal shares to his seven chil dren, and in case of the death of any child, his dis tributive share of such income to be paid to his "heirs and legal representatives," who were to take "by way of representation." He then provided that upon the death of the last survivor of his wife and children the residuary estate should be conveyed in equal shares to the "heirs and legal representatives" of the chil dren, who were to take "by way of representation." Held, that the provision for the benefit of the "heirs or legal representatives" of the children was void as violating the statute of perpetuities. Ketchum v. Corse, 65 Conn. 85, 31 Atl. Rep. 486. A clause directing that the estate devised to testator's children, should be held in trust, the income to be paid to the children during their lives, but that on the death of any child the portion willed to him should descend to his child or children, and if any one of testator's children died without issue his portion should be divided among testator's surviving children, does not conflict with the rule against perpetuities. Davenport v. Kirkland (Ill. Sup.), 40 N. E. Rep. 304. Stocks were devised to testator's son, to be held in trust 10 years, then to be delivered to him; if deceased, then to his son; if both were deceased before the 10 years have expired, then to be transferred to his daughters L and M; if either daughter was deceased, her portion was to be transferred to the remaining daughter; if both were deceased, then to certain others. Held, not to create a trust which suspends alienation for a longer period than two lives in being. Montignani v. Blade

(N. Y. App.), 145 N. Y. 111, 39 N. E. Rep. 719. A devise to an executor in trust, which directs that land be sold at a certain time, less than a year after the execution of the will, does not violate the statute against perpetuities, by suspending the power of alienation for a period not measured by lives, as the direction is advisory, and does not limit the power of absolute disposition. Deegan v. Wade, 144 N. Y. 573, 39 N. E. Rep. 692. A bequest to testator's wife and son, and, in case they die before the son's majority, then to tes tator's heirs, is not in violation of Code, sec. 1920, declaring void every disposition of property which suspends the absolute power of controlling it for more than the lives of persons in being, and 21 years there. after. Jordan v. Woodin (Iowa), 61 N. W. Rep. 948. Testator bequeathed one-half of his residuary estate to his daughter M for life, to go at her decease to her children, "and the legal representatives of any of them who may then have deceased," and their heirs. The other half he bequeathed to his daughter J for life, to go, at her death, to her children and the "descendants" of any deceased child, but, in case J left no descendants, then such portion to go to the children of M, and the "legal representative" of any one of them then deceased, and their heirs, subject only to a life estate in one-third thereof to J's husband, if he survived her. At testator's death he had but two grandchildren, daughters of M. Held, that the be quests over, after the life estates to testator's daugh ters, were not void as against the statute of perpetui. ties; and hence the whole residuary estate, on testator's death, vested (so far as to constitute a transmissible estate) in M's daughters, subject only to the life estates, and to the contingency of J's leaving descend. ants surviving. Johnson v. Edmond, 65 Conn. 492, 33 Atl. Rep. 503. A provision in a will that, on the termination of certain trusts created thereby, the trust fund should go to the "then" lineal descendants, is void, under Gen. St. sec. 2952, which declares that no estate shall be given by will to any persons but such as are, at testator's death, in being, or to their immedi. ate descendants. Johnson v. Webber, 65 Conn. 501, 33 Atl. Rep. 506. A devise in trust, for the use and benefit of G "and his family," until G shall discharge his present liabilities, whereupon the trustees are to con. vey to him whatever may then remain in their hands, does not violate the common-law rule against perpetuities, since the trust must be understood as limited to the family of which G is and remains the head, and cannot endure beyond his life. St. John v. Dann, 66 Conn. 401, 34 Atl. Rep. 110. In a devise in trust, for the use and benefit of G "and his family," until G shall discharge his liabilities, whereupon he is to have the property absolutely, the word "family" will be construed as meaning those persons in being at testator's decease, or the children of such persons, so as not to violate Gen. St. sec. 2952, against perpetuities. St. John v. Dann, 66 Conn. 401, 34 Atl. Rep. 110. A testator, in a will executed and probated in South Carolina, provided that "the rest and residue of my estate, both real and personal, be equally divided among all my children, and, if either of my children should die without issue, his or her part to return to my estate, and be divided as the rest and residue of my estate." Held that, construing the will according to the decisions of that State, the limitation over was void for remoteness. Adams v. Farley (Miss.), 18 South. Rep. 390. A will, giving the income of testa trix's estate to her husband and daughter for life, and the estate to the daughter's children, to be divided among them on their becoming 21 years old, and, in the event of the daughter's leaving no issue, giving