
    JENNIE W. MERCER et al. vs. LEWIS N. HOPKINS, Trustee, et al. ELIZABETH W. HOWARD vs. THE TRUSTEES ET AL.
    
      Construction of Will — Acceleration of Remainder — Equitable Life Interest — Rule in Shelley's Case.
    
    J. H., by his will, gave certain real and personal property to trustees in trust to pay three-eighths of the rents,1 etc., to testator’s niece, E., for her life, and after her death to apply the income to the education and maintenance of E.’s children then living until the expiration of the period of twenty years after the death of E., at which period said three-eighths of the property, together with any surplus income, shall vest absolutely in the children of E. The trustees were directed to pay and hold upon similar terms two-eighths of the property for J. for life, etc.; one-eighth thereof for M. for life; one-eighth thereof for A. for life, etc.; one-eighth for J. M. M. All of these parties except J. M. M., who was the husband of E., were nephews and niece of the testator and children of his brother Samuel. By a subsequent clause of the will it was provided that “ if any of the children of my deceased brother Samuel should die without leaving any child or children, or if any child of any one of the children of my said deceased brother, shall depart this life after the death of his or her parent, and before the expiration of the period of 20 years after the death of his or her parent (such parent being a child of my said deceased brother), then it is my will that the share of the child or children of my said brother, so dying, and of the grandchild or grandchildren of my said brother, so dying, shall be held by my said trustees in trust as to the realty, for the heirs at law of said deceased child or grandchild, and in trust as to the personalty, for such persons as under the laws of this State would be entitled to be the distributees of the personal estate of such deceased child or grandchild; subject, however, in all respects, to the other limitations appointed by this, my last ' will, in reference to the shares of the children of my said deceased brother in so far as such limitations are applicable.”
    The will contained a later clause, providing that in case any devise or legacy should fail to take effect for arly reason whatsoever, then the property therein included should go to the J. H. Hospital. A codicil gave the residue of the testator’s estáte not otherwise disposed of, to the J. H. Hospital and the J. H. University. Upon a bill filed for thé construction of the will, Held:
    
    1st. That upon the death of any nephew after the testator, the trustees held the legal estate in his share until the expiration of the above mentioned twenty year period, while the beneficial interest was vested in the child of such nephew, and that, consequently, the estate of such child did not become absolute under the Rule in Shelley’s case.
    
      2d. That in the case of the death of a nephew without leaving children, the income of his share was payable to his heirs or distributees for twenty years after his death, and vests finally in those who, at the end of that period, answer the description of his heirs and distributees.
    3d. That the fact that some of the persons who may be entitled to the income derived from the share of a nephew dying without issue, might be too far advanced in life to be “ educated and maintained ” during the twenty year period, does not conflict with this construction of the will, but the income from such share would accumulate in the hands of the trustees until the estate is to vest in the heirs and distributees, namely, at the end of the twenty year period.
    4th. That the estates devised to the nephews could not pass under their wills since they took only equitable life estates, and that the estate of a child of a nephew who died before the expiration of the twenty year period could not be devised by him, because until the end of that period he did not have an indefeasible vested estate.
    5th. That the share given to A., the testator’s nephew who pre-deceased him, unmarried and without issue, does not pass to the J. H. Hospital under the “ fail to take effect ” clause, but the same goes to the heirs and distributees of A. at the end of the twenty years from his death, the vesting of the remainder being thereby accelerated, and before the end of such period the income of A.’s share was payable to his heirs and distributees for the time being.
    S., a child of E. above mentioned, whom he survived, executed before the end of the twenty year period, a deed of trust, conveying his property to be held in trust for himself for life, then for his widow for her life, and at her death for S.’s right heirs. Held, that the Rule in Shelley’s case did not operate to give back to S. a fee subject to the widow’s life estate, because the two estates are not of the same quality, one being equitable and the other legal. •
    Appeals from the Circuit Court of Baltimore City (Wickes, J.). The will of Johns Hopkins, construed in this case, is dated July 9th, 1870. The first codicil is dated October 31st, 1871, and the second codicil December 13th, 1873. In this latter, the testator made a few minor changes in his will, not affecting the property concerned in this case, and added “ In other respects I do confirm my said will and any codicil thereto heretofore made.” The testator died December 24th, 1873. After the clause of the will giving three-eighths of the property in question in this case, to trustees for Ella W. Mercer, the next clause provided for the payment of one-eighth of the rents, etc., to J. M. Mercer, husband of Ella W. Mercer, for life, and after his death to apply so much as might be necessary of said one-eighth of the rents, etc., to the education, etc., of E.’s children until the end of twenty years after her death when “ one-eighth part of the said property, together with any surplus income, etc., shall vest absolutely in the child or children of the said ” Ella W. Mercer.
    The next clause was as follows: “ and upon the further trust to pay semi-annually two-eighths part of the clear rents,” etc., “ thereof, to my nephew, John J. Hopkins, for the period of his natural life,” etc., exactly, mutatis mutandis, as in the Ella clause, quoted in the opinion of the Court. In the same terms the next clause provided for a one-eighth part whereof the rents, etc., should be paid “ to my nephew, Mahlon Hopkins,” etc., as before. And the next clause for a one-eighth part wdiereof the rents, etc., should be paid “ to my nephew, Arundel Hopkins,” etc., as before.
    Arundel Hopkins died March 17th, 1873, unmarried. John J. Hopkins died July 22nd, 1875, leaving a widow and no children. By his will he devised the residue of his estate to his wife for life, and remainder to his heirs at law. J. M. Mercer died June 22nd, 1878. Ella W. Mercer died April 12th, 1879, leaving four children, to wit: Samuel H., George D., Mary and Margaret. Mahlon Hopkins died August 26th, 1879, unmarried. George D. Mercer died May 13th, 1887, leaving a widow, his devisee, and no children. Samuel Mercer died January 27, 1897, leaving a widow, his devisee and no children. The Court below decreed:
    
      (3) “ That by the true construction of said will and codicils (and especially of that paragraph of said will above mentioned), upon the death of any one of the . children of Samuel Hopkins named in said will (or the death of James Monroe Mercer, the husband of Ella W. Mercer, one of said children), leaving a child or children living at his or her death, the trustees were directed until the expiration of the period of twenty years after such death (in the case of James Monroe Mercer twenty years after the death of his wife, Ella' W. Mercer), to apply such fraction of the net income from both the real and leasehold property so devised in trust as had been given for life to- such child of Samuel Hopkins (or to James' Monroe Mercer) so dying, to the education and maintenance of such [child’s] — child or children during the period of twenty years after such death, the manner of'so applying such income to education and maintenance being confided to the discretion of the trustees, and- any income not necessary for such purpose to be accumulated. And in case any of such children [of a child of S. H.] should die during said period, then for the balance of said period to apply the proportion of net income from real estate which would have been applied to the education and maintenance of such decedent to the education and maintenance, in manner aforesaid, of those persons who at the time of such application answer to the description of his or her heirs at law, to be ascertained according to the laws of descent of this State; and the proportion of income from leasehold estate which would have been applied to the education and maintenance of such decedent, to the education and maintenance, in manner aforesaid, of those persons who, according to the laws of distribution of personalty of this State, would at the time of the application of such income be the distributees of such decedent. And that at the expiration of such period of twenty years, a legal estate in fee simple in a share of the real property so devised, in trust, proportional to the share of income given to the life tenant (child of S. H. or J. M. M.) so dying (together with any income therefrom accumulated as aforesaid) was to vest absolutely in the then surviving children of such life tenant and the issue of any then deceased leaving issue then surviving (such issue representing their parent) and the heirs at law (representing their ancestor) of any child or children of such life tenant who might have died during said period without leaving any issue surviving at the expiration of such period; (the words “ heirs at law ” being here used in this decree to signify those persons who would have been, according to the laws of descent of this State, the heirs at law of such decedent if he or she had then, just at the expiration of such period, died); and in like manner an absolute estate in a share of the leasehold property so devised in trust proportional to the share of income given to the life tenant so dying (together with any income therefrom accumulated as aforesaid) was to vest absolutely in the then surviving children of such life tenant, and the issue of any then deceased leaving issue then surviving (such issue representing their parent), and the distributees of any child or children of such life tenant, who might have died during said period without leaving any issue surviving at the expiration of such period; (the word “ distributees ” being here used in this decree to signify those persons who would have been, according to the laws of distribution of personalty of this State, the distributees of such decedent, if he or she had then, just at the expiration of said period, died; and such distributees representing such decedent).
    And that in like manner by the true construction of said will and codicils, upon the death of any one of the children of Samuel Hopkins named in said will without leaving a child or children living at his or her death, the trustees were directed until the expiration of the period of twenty years after such death to apply such fraction of the net income from the real property so devised in trust, as had been given for life to the child of Samuel Hopkins so dying, to the education and maintenance of those persons who at the time of the application of such income answer to the description of his or her heirs at law, to be ascertained according to the laws of descent of this State; and to apply the same fraction of the net income from the leasehold property so devised in trust to the’education and maintenance of those persons who, according to the laws of distribution of personalty of this State, would at the time of the application of such income be the distributees of such decedent; the manner of so applying said fraction of the net income from the real and leasehold property to the education and maintenance of such heirs at law and distributees, whether adult or not, being confided to the discretion of the trustees, and any income not necessary for such purpose to be accumulated. And that at the expiration of the period of twenty years after the death of the life tenant so dying, a legal estate in fee simple in a share of the real property so devised in trust proportional to the share of income given to such life tenant (together with any income therefrom accumulated as ■ aforesaid) was to vest absolutely in those persons who would then be the heirs at law of such decedent, ascertained according to the laws of descent of this State, but as if such decedent had then (just at the expiration of said period) died, such persons taking such proportions among themselves as are by the said laws of descent provided; and in like manner an absolute estate in a share of • the leasehold property so devised in trust proportional to the share of income given to such life tenant (together with any income therefrom accumulated as aforesaid), was to vest absolutely in those persons who would then be the distributees of such decedent, ascertained according to the laws of distribution of personalty of this State, but as if such decedent had then (just at the expiration of said period) died, such persons taking such proportions among themselves as are by said laws of distribution provided.”
    Filed with the bill as an exhibit, was a deed of trust executed by Samuel Mercer, and the bill asked for its construction. On February 16th, 1884, Samuel, then unmarried, executed to Layinia Hopkins and others, a deed of trust which was recorded. The deed recites that he is indebted to one of the trustees and others, and is desirous of paying his debts, and conveyed all his property, real and personal, upon trust, to collect the income, etc., of the property to which he was then, or should thereafter, become entitled, and the deed provided that if the grantor should leave a widow and no children, the trustee should hold the property with the same powers, for the use and benefit of said widow during her life, and at her death for the use and benefit of the right heirs of Samuel. It being contended for Samuel’s widow and devisee that the limitation for the use and benefit of the right heirs of Samuel, operated under the Rule in Shelley’s case to give back the fee subject to the widow’s life estate, to Samuel, it was held that the rule did not apply, and also that the interests in the shares of Arundel and John J. Hopkins, which came to Samuel after the date of his deed of trust, passed under said deed, and are now vested in the trustees.
    The cause was argued before McSherry, C. J., Bryan, Fowler, Briscoe and Page, JJ.
    
      John V. L. Findlay and Thomas Mackenzie, for Mrs. Eliz. W. Howard et al.
    ist. Arundel Hopkins or his heirs and distributees took an absolute estate in one-eighth of the realty and personalty immediately upon the death of Johns Plop-kins, and that, therefore, an absolute interest proportionately in said share of the realty and personalty was vested in John J. Hopkins, the brother of Arundel, as one of his heirs and distributees, in accordance with the terms of the will of Johns Hopkins, and which the said John J. Hopkins could and did dispose of by his will.
    2d. John J. Hopkins took by virtue of the rule in Shelley’s case, an absolute interest or estate to the extent of twTo-eighths in the realty, which would pass under his said will, or if the rule cannot be held to apply, then under the very terms of the will of Johns Hopkins, the said John J. Hopkins dying without children, the two-eighths interest in the leasehold held for him became immediately vested in his distributees and his widow (now Mrs. Elizabeth W. Howard), took as one of said distributees a one-half interest in said leasehold property. And if the rule in Shelley’s case applies, Mrs. Elizabeth W. Howard will take in addition, under the will of her former husband, a life interest in two-eighths of the realty.
    
      Thomas B. Mackall, for Mrs. Jennie W. Mercer, widow and devisee of George D. Mercer.
    George, as one of the children of Mrs. E. W. Mercer, was -entitled to one-fourth of the Mercer four-eighths. The “ heirs ” and “ distributees ” are the persons who were the “ heirs ” and “ distributees ” of the several decedents at the time, of their respective deaths, and not (as contended by the appellees) the persons who would be heirs and distributees of such decedent if such decedent had then died, just at the expiration of said period of twenty years after the death of a life tenant.
    The terms next of kiii and heirs have a direct reference to the death of the ancestor, and therefore next of kin and heirs are to be ascertained at the death of the ancestor, and where there is in addition a reference to the statute or to intestacy, the rule is almost without exception. The same rules apply to realty, personalty and to a mixed fund. Theobald on Wills, 263, 265. As to “heirs,” 2 Jarman on Wills, 905, 931, 935. As to “ next of kin,” 2 Jarman on Wills,-981-983, etc., 990-993. Hawkins on Wills, 94-99, etc.; Gundry v. Pinniger, 1 De G. M. & G. 502; Bullock v. Downes, 9 H. L. C. 1; Mortimore v. Mortimore, 4 App. Cas. 448.
    And if the gift is to the next of kin of a person who survives the testator, the class is ascertained at the death of that person. Theobald on Wills, 265; Gundry v. Pinniger, 1 De G. M. & G. 502; Jacobs v. Jacobs, 16 Beav. 557; Markham v. Ivatt, 20 Beav. 579.
    
      L. P. Hennighausen, for Mrs. Marie H. Mercer, widow and devisee of Samuel H. Mercer.
    The deed of trust did not deprive Samuel Mercer of his right to dispose of his property by will. The deed recites that he “is about to leave this country and to take up his residence in Europe ” and that “ he is indebted ” to one of the grantees and others, and manifestly, his two objects were: ist, to create a mere agency for the management of his property during his residence abroad, and 2nd, an active trust for the benefit of his creditors; and it is conceded that all his debts were paid before he made his last will. He destroyed the remainder to his widow for life, by deliberately giving her by will, all his estate. He did not deprive himself of his power of testamentary disposition. It is irrational to presume that he meant to deprive himself of the free disposition of property he might at any time become entitled to by inheritance or otherwise. The disposition made by his will leaves no doubt as to his understanding of the meaning and import of his deed of trust. The deed provided for a remainder to the use and benefit of the right heirs of S. and, accordingly, S. took by that deed, under the Rule in Shelley’s case (Brown v. Renshaw, 57 Md. 67), a fee simple estate, subject to the wife’s life estate.
    
      Frederick J. Brown (with whom was Bernard Carter on the brief), for the Johns Hopkins Hospital and Johns Hopkins University.
    ist. In behalf of the hospital. The hospital is (and ever since testator’s death has been) entitled — under the “ fail to take effect ” clause — to the Arundel one-eighth, Dr. Arundel Hopkins having died childless in the testator’s lifetime — March 17th, 1873 — and the disposition of one-eighth having thus failed to take effect.
    (a) The lapsed legacy provision of the Code (Art. 93, sect. 313) cannot, in the nature of things, save Arundel’s life interest from lapsing, or failing to take effect — cannot “transfer” it; and this, simply because all that A. was to have under the will was an equitable life interest {his life, and that was gone).
    (1b) The “ if any ” clause, properly understood, cannot save the Arundel one-eighth from going to the hospital under the “ fail to take effect ” clause, because, after March 17th, 1873, Arundel was not one of the “ children ” — (“ if any of the children ”) — who might possibly “ die without leaving any child,” etc.
    We agree with appellants, of course, that until March 17th, 1873, the “ children ” of Samuel, the possibility of whose dying “ without leaving any child ” was contemplated, included Arundel. Until that date he was one of a number of “ children ” who might, or might not, so die. But after that date — when he had died childless —there was no chance about it. It could not possibly be said of him any longer that he was one of a class who might die leaving a child in whom a share should vest after the his-life-plus-20-years period.
    As to the Arundel one-eighth, the two principal things contemplated by the testator were, first, the living of Arundel (or of some child of his) to help to fill up the Arundel-life-plus-20-years period, and secondly, the vesting of that property at the end of such period in his children, and both these things had become utterly out of the question. During the last nine months of testator’s life, he must be taken to have said (“ speaking from day to day until he died,” Dalrymple v. Gamble, 68 Md. 523): “ My will speaks of ‘ children ’ of my brother who may or may not help, as stop-gaps or as burning candles, to fill out certain periods; down to March 17th, 1873, Arundel was one of those ‘children’; but since his death, childless — as he cannot help, as a stop-gap or as a burning candle, to fill out the period — the class ‘ children ’ there of course no longer includes him.”
    When testator wrote the word “ children ” there, he wrote it subject to a meaning which would fluctuate and exclude individuals as the events might happen. The event — death of a childless nephew — did happen (in March, 1873), and the meaning then changed (as it was bound to do) so as to exclude him. He was no longer of the “ children.” Any interpretation put upon the “ if any ” clause to save the Arundel one-eighth from going to the hospital must be an interpretation which will both fit the facts and the testator’s meaning after 
      
      Arundel’s death, and also fit the case of the living nephews, and no such interpretation has been or can be supplied.
    Counsel for the different appellees have tried several times to construct such an interpretation, but their attempts to reconcile the irreconcilable, to harmonize in one statement and construction the opposite poles of life and death, have necessarily failed.
    2nd. In behalf of the hospital and university as residuary devisees of three-eighths (the John J. two-eighths and the Mahlon one-eighth). These three-eighths do not fall under the “ fail to take effect ” clause, for they took effect, beyond all doubt; but the question is, for how long? We say, for the life-plus-20-years periods, and no longer, and that the undevised remainder in the John two-eighths vested in the hospital and university on July 22nd, 1895, and that the undevised remainder in the Mahlon one-eighth will so vest on August 26th, 1899.
    The John two-eighths clause (and the same is true of the Mahlon one-eighth clause) did not, by itself and unassisted by the “ if any ” clause, provide for a vesting in any one except his “ child or children ” or descendants. To make his share vest in any one else, the “ if any ” clause has to be invoked, and that clause, while it provided that during the life-plus-20-years periods the property (John’s share for instance) should “ be held ” for a shifting lot of cestuis que trust, carefully provided that this holding should be “ subject, however, in all respects to the other limitations appointed ... in reference to the shares,” etc., and the only limitation which had been appointed was the vesting in child, children, or descendants. There being no child or descendant of John or Mahlon for their shares to vest in, these go to the residuary devisees.
    We say that the objections to appellees’ theory are:
    1st. That it ignores this reference (“ subject however ”) back to the “ other limitations ” set forth in the previous John clause (for instance), the only limitation there being to child or descendant.
    
      2nd. It makes two very different expressions bear one and the .same meaning, for their theory is that the John two-eighths share shall vest preferably in his children if there are any at the end of the life-plus-20-years period, and this it is to do by virtue of the words “.shall vest absolutely in ” (in the John clause), but if there are no children, it is to vest in heirs and distributees, and this it is to do by virtue of the words “ shall be held in trust for ” (in the “ if any ” clause).
    3rd. It makes one and the same expression — “ shall be held in trust for ” — bear two different meanings. For 20 years this phrase means that a legal estate (in the John two-eighths, say) should be held by the trustees in trust for two more or less shifting lots of people (who are mere cestuis que trust, and as such are entitled merely to income of realty and leasehold) when suddenly, on July 22nd, 1875, this protean phrase ceases to mean what it had meant, and all at once means (what it did not mean before) “ shall vest absolutely in ” the lucky survivors of those shifting groups. We admit, of course, that the words “ the share shall be held by my trustees in trust for ” would, of themselves, easily bear the meaning of carrying the fee, but they do not stand by themselves; in the same breath the testator refers back to “ the other limitations ” in the John (for instance) clause, which are that the share shall at the end of the .prescribed period vest in John’s children or descendants.
    4th. It makes the word “ heirs ” (also the word “ distributees ”) bear different meanings. Let us take John’s case. Who were, really, when he died (July 22nd, 1875) his heirs and who ■ his distributees ? Why his brother -and sister — and no other persons — were his heirs, and his wife, his mother, brother and sister — and no other persons — were his distributees. But Johns Hopkins’ will, when it provides that until July 22nd, 1895, a shifting lot of persons, a sort of “ heirs ” and “ distributees,” shall be the cestuis que trust of the John two-eighths, does not moan John’s real heirs and distributees, accurately so-called. “ Heirs ” (or “ distributees ”) is a mere convenient but inaccurate nomen collectivum, meaning for income-receiving-purposes “ heirs ” and “ distributees,” “ heirs ” and “ distributees ” in quotation marks. Not one of John’s 1875 heirs was an “ heir ” in 1895, and only one of his 1875 distributees was a “ distributee ” in 1895. According to appellees’ theory, the strict 1875 meaning of heirs or distributees (of John) is to be revived (after 20 years of abeyance and of meaning something else) for the benefit of the 1895 individuals who have been hitherto only cestuis que trust, recipients of income.
    We give, on the contrary, but one meaning to “ heirs,” and but one to “ distributees,” as used in this clause by testator. We say that they are mere nomina collectiva, to describe fluctuating classes of cestúis que trust, who never became anything else. 'We say that the words “ shall be held in trust for ” begin with having a certain meaning; they declare and define the actual relation of trustees and cestuis que trust; having begun with that meaning, they never change to or acquire any other meaning, and because théy cannot acquire the other meaning, “ shall vest in,” there is no vesting, and the remainders go as undevised residues to our clients.
    
      William A. Fisher and Samuel D. Schmucker (with whom were Richard M. Venable and Geo. Whitelock on the brief), for the trustees and others, appellees.
    1. The words “ heirs ” and “ distributees,” in limiting the remainders on default of issue to the children of Samuel Hopkins, are used in the will in a descriptive rather than a technical sense; but if their technical meaning is to be ascribed to them the result is the same. Where there is an executory devise or a contingent remainder to one and his heirs, and he dies before the contingency happens, it devolves upon his heirs, and so from heir to heir, until the contingency happens upon which the estate vests, when it vests absolutely in him only who can then make himself heir to the first devisee. In such cases it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not the heir at law of the first devisee, but it devolves from heir to heir and vests absolutely in him only who can make himself heir to the first devisee at the time when the devise falls into possession. Barnitz’s Lessee v. Casey, 7 Cranch 456; Buck v. Lantz, 49 Md. 439.
    2. The death of Arundel did not defeat the estates in remainder and create an intestacy. Its effect was merely to accelerate the estates in remainder. 1 Jarman on Wills 536; Jull v. Jacobs, L. R. 3 Ch. Div. 709; Elmsley v. Young, 2 M. & K. 780; Randall v. Randall, 85 Md. 430, and other authorities.
    3. The overshadowing and controlling purpose of the testator was not to give to hospital or university the property now under discussion, but to devote it to the benefit of the children and descendants (or their heirs) of his brother Samuel. Any construction which would transfer this property to the hospital or university (which received the lion’s share of the estate) would defeat the main purpose of the testator in reference to it. (Appellees’ argument with reference to the deed of trust is omitted.)
   Fowler, J.,

delivered the opinion of the Court.

This appeal brings before us for construction several clauses of the will of the late Johns Hopkins of Baltimore City.

Neither the validity of the will nor of any part of it is assailed. But it is alleged that doubts have been suggested as to its true construction in so far as it relates to that portion of the testator’s estate devised to the trustees in trust for James Monro.e Mercer, and the children of Samuel Hopkins, a deceased brother of the testator, and their issue.

The testator devised to the trustees valuable property in the city of Baltimore in the following terms: “ In trust nevertheless for the children . of my deceased brother, Samuel Hopkins,, and for the benefit of James Monroe Mercer, the husband of my niece, Ella W. Mercer, in manner and form following, that is to say, In trust to collect the rents, issues and profits thereof, and to apply the same in the first place to the payment of all charges and taxes upon or repairs of the said property, or any of it, and afterwards to pay semi-annually three-eighths parts of the clear rents,” etc., “ thereof to my niece, Ella W. Mercer ... for the period of her natural life, and after the death of the said lilla W. Mercer, to apply so much of the three-eighths parts of the clear rents,” etc., “ as may be necessary to the education and reasonable maintenance of any child or children of the said Ella W. Mercer, who may be living at her death until the expiration of the period of twenty years after the death of the said Ella W. Mercer, at which period of time three-eighths parts of the property so devised in trust, for the children of my said deceased brother Samuel Hopkins, and for James Monroe Mercer, together with any surplus of income or property proportionably arising therefrom, shall vest absolutely in the child or children of the said Ella W. Mercer as tenants in common — if there be more than one child the issue - of deceased children taking by substitution as tenants in common the respective shares which their respective parents would have taken.” A similar provision, except as to amount, is made by the testator for each of the three sons and their children; and for James M. Mercer, the husband of Ella W. Mercer, who was a child of Samuel Hopkins, a like provision was made with the additional exception that from the death of said Mercer the trustees are to hold the share of the estate devised for his own use until the expiration of twenty years after the death of his wife, when it is to vest as provided in respect to the other shares.

In a later part of the will provision is thus made for the contingency of any child or children of Samuel Hopkins dying without leaving any child or children and for other contingencies.

“ If any of the children of my deceased brother, Samuel Hopkins . . . should die without leaving any child, or children, or if any child, or children, of any one of the children of my said deceased brother . . . shall depart this life after the death of his, her, or their parent (such parent being a child of my said deceased brother . . .), and before the expiration of the period of twenty years after the death of his, her, or their parent (such parent being as aforesaid, a child of my said deceased brother . . .), then, and in such event, it is my will that the share, part or interest of the child,'or children, of my said deceased brother, ... so dying, and of the grandchild, or grandchildren, of my said . . . brother . . . so dying, shall be held by my said trustees and by the survivors of them, in trust, as to the realty, for the heirs at law of such deceased child, or grandchild,' or children, or grandchildren of my said brother . . . and in trust, as to the personalty, for such person, or persons, as under the laws of this State would be entitled to be the distributees of the personal estate of such deceased child, or grandchild, children, or grandchildren, subject, however, in all respects, to the other limitations appointed by this, my last will and testament, in reference to the shares of the children of my said deceased brother, ... in so far as such limitations are applicable.”

The three sons of Samuel Hopkins died leaving no issue. Arundel died in the lifetime of the testator, March 17th, 1873; John J. on July 22nd,. 1875; and Mahlon on the 26th of August, 1879. Samuel Hopkins’ only daughter, Ella W. Mercer, died April 12th, 1879, and her husband, James M. Mercer, June 22nd, 1878. Four children survived them, namely, George D., Samuel E., and Mary M., who is the wife of Charles H. Harding, and Margaret W., who is the wife of Salo Shapiro. George D. and Samuel H. Mercer both died without leaving issue, the former May 15th, 1887, and the latter January 27th, 1897, but the two daughters, Mrs. Shapiro and Mrs. Harding, are both living, and are the only surviving grandchildren of Samuel Hopkins. They with their husbands were defendants below and are appellees in this Court. Mrs. Shapiro has two children — both infants, who are also defendants in this suit. At the time of filing the bill of complaint twenty years had elapsed since the death of Arundel and John J. Hopkins, two of the children of Samuel.

It must be also stated that Mahlon and John J. Hopkins, and George D. and Samuel H. Mercer each left a will; Samuel H. Mercer also made a deed of trust. The bill asks that the Court shall also declare what, if any effect, these wills and the deed of trust had upon the property in question or any part of it.

The Court below, after hearing the testimony and arguments of counsel, adopted by its decree the construction of the clauses we are to consider, set forth in the bill, and so ably supported in their argument before this Court by counsel representing the appellees. From this decree four separate appeals have been taken — that of Mrs. William T. Howard, the widow of John J. Flop-kins; Mrs. Jennie M. Mercer, the widow of George D. Mercer and executrix under his will; the Johns Hopkins Hospital claiming as residuary devisee and legatee, and Mrs. Henrietta Mercer, the widow of Samuel M. Mercer and as devisee under his will.

While it might be interesting and perhaps instructive to consider the several, and to a large extent, conflicting views or theories of the appellants, perhaps both brevity and clearness will be promoted if we proceed at once to the consideration of the controlling questions presented by these appeals.

In the first place, then, it would seem to be too clear for controversy that in the several clauses of his will providing for the children of his brother, Samuel Flop-kins, the testator intended to devise and did devise to each of such children an equitable life estate, during the continuance of which the legal title was vested in the trustees whose duty it was to pay the net income of his or her share to each of the beneficiaries.

Some of the appellants earnestly contend that under the Rule in Shelley’s case this life estate becomes an absolute estate, and some of them deny this proposition with quite as much earnestness. We may as well dispose of this question here. It is well settled that in order to coalesce and form one absolute estate under this rule, the two estates must be of the same quality — both must be equitable or both legal. Ware v. Richardson, 3 Md. 505; Handy v. McKim, 64 Md. 569. In order to make this rule apply to the devises under consideration, it would be necessary to cast aside the express language used by the testator by which he declared that the legal estate should be held by the trustees in trust for the life tenant, and from the expiration of the equitable life tenancy in trust for the period of twenty years, when the estate was to vest absolutely in the children or descendants of such life tenant, if any, and in default of any such issue living at that time, then in the persons who should answer to the description of heirs at law of such life tenant. Here we have the equitable life estate, and a subsequent fee simple or absolute estate. Under such circumstances it is settled the Rule in Shelley’s case cannot be invoked.

Assuming, then, that there is an equitable life estate given to Samuel Hopkins’ children, what is the next succeeding estate created by the will? The will provides that after the death of the equitable life tenant, the trustee shall hold the estate in trust to apply so much -of the income ... as may be necessary to the education and maintenance ... of any child or children of ■such life tenant who may be living at the death of such life tenant until the expiration of twenty years after the •death of such tenant. At the end of this period of twenty years after the death of the life tenant, the trust as to his -or her share of the trust estate ceases, and the share, together with any surplus of income or property proportionably arising therefrom, vests absolutely in the child •or children of such life tenant, as tenants in common. .'So far there would seem to be little room to raise a 'question as to the meaning of the language of the will apart from its application to the share of Arundel who •died during the life of the testator, and apart from what is called in the bill the elliptical and obscure language by which the testator subjected or attempted to subject the •devises made in case any of Samuel Hopkins’ children ■should die without leaving any child or children, to the other limitations which he had made in case any of them should die leaving a child or children, in so far as the limitations made in respect to the latter conting-ency are applicable to the former. In the clause just referred to applying to the case of a child of Samuel Hopkins dying without child or children, it is provided that if any of the above mentioned children of Samuel Hopkins should die without leaving child or children, or if any child or children of the said children of Samuel Hopkins should die after the death of his, her or their parents, and before the expiration of twenty years after the death of such parent, that then and in such event the share of such descendant shall be held by the trustees in trust as to the realty for the heirs at law of such descendant, and as to the personalty for his distributees.

The learned counsel who so ably presented the appeal of Mrs. Howard conceded that up to this point the will was free from ambiguity, and they contended, as do some of the other appellants, that the heirs and distributees who are to take in default of child or grandchild surviving within the twenty year period, are to take the estate absólutely, upon such default, without waiting for the expiration of such twenty year period. To this view we cannot assent. For, however obscure the so-called elliptical clause may be, it is evident that the testator intended to make the estate devised to the heirs and distributees subject to the same limitations which are provided for the estates devised to the children and grandchildren of his brother Samuel, so far as they are applicable. The two marked limitations appointed in reference to the latter are first, the twenty year period, and second, the absolute vesting of the estate at the end of that period. How, then, can we, in the face of this express direction of the testator, say that he intended the “ heirs ” and “ distributees ” to take an absolute estate during and before the end of the twenty years? The provision as to the time of vesting is as applicable in the one case as in the other — and it follows therefore that the estate given to the heirs and distributees must vest, not during the twenty year period, but at the end thereof. It also necessarily follows that only those can take who at that time answer to the description of the class that is then to take. But this conclusion is sustained by authority, as well as by the necessary construction of the clause itself. In the case of Demill v. Reed, 71 Md. 187, it was held that where an estate is given upon a contingency to persons described as a class, only those can take who answer to the description at the time when the estate is to come into possession. “ It seems to us,” said Miller, J., delivering the opinion in the case just cited, “ to be clear law, as well as good sense, that in a case like this, where there is an ultimate limitation upon a contingency to a class of persons plainly described and there are persons answering to the description in esse when the contingency happens, they alone can take.” It may be that the persons who enjoy the income under the terms of the will, as we have construed it, have’ been and will be a fluctuating body. These changes and fluctuations have been pointed out in the exhaustive brief by counsel for the hospital, but these results and others which have been suggested with much ingenuity by the same counsel are not sufficient to convince us that the testator did not fully mean what he' said, namely, that the two limitations, the twenty year period and the absolute vesting at the end thereof, should apply to heirs and distributees. Nor does the fact that under the construction we have adopted some of the persons who would enjoy the income might be too far advanced in life to be “ educated and reasonably maintained ” in the ordinary meaning of those terms. If the income were not needed for these or either of these purposes in the case of any heir or distributee who in the ordinary meaning of the word is already “ educated,” or if maintenance was not necessary, it would accumulate in the hands of the trustee until the time when the trust estate is to vest, that is at the end of the twenty year period. In other words the direction to devote income to education and maintenance would not be applicable and need not, therefore, be applied in the case supposed. For an application of the rule which determines who takes the absolute estate in cases like this, see Buck v. Lantz, 49 Md. 439; Barnitz v. Casey, 7 Cranch 456.

2. It was contended on the part of Marie Henrietta Mercer that her husband Samuel H. Mercer took an absolute estate under his deed of trust to Lavinia Hopkins by the operation of the Rule in Shelley’s' case. But we think, for the same reason and upon the same authority (Ware v. Richardson, supra), that we held the rule did not apply to the estates devised by the will of Johns Hopkins to the children of his brother, Samuel Hopkins, it is not applicable here; the two estates are not of the same quality, one being equitable and the other legal. It will appear from an examination of the case of Brown v. Renshaw, 57 Md. 67, relied on by the appellant, that it is distinguishable from the case of Ware v. Richardson, , and from the case now before us. Without prolonging this opinion by a discussion of the fruitful subject of the Rule in Shelley’s case, we are of opinion that the deed of trust under consideration from Mercer to Lavinia Hopkins, which empowered the trustee to collect and receive the income of the trust estate and to pay it over to the life tenant (Mercer) with re-^ mainder to his right heirs, contains every essential feature of the deed construed in Ware v. Richardson, and must therefore be governed by the opinion in that case. This being so, the first taker here, as in the deed in Ware v. Richardson, took an equitable life estate, and the heirs a legal estate — thus making it impossible to apply the rule. Nor can we adopt the view that Samuel Mercer took under this deed by way of resulting trust — for, as we have said under its provisions, an estate in fee vested in his right heirs.

3. It will be remembered that wills were made by John J. Hopkins and Mahlon Hopkins. But it is evident that, as they took only equitable life estates, no interest in the trust estate passed by these wills. Lavinia Hopkins claimed only as devisee under them, and, therefore, her will can have no effect upon said trust estates under Johns Hopkins’ will. Nor did the will of George D. Mercer affect it in any way, because he died in 1887 before the expiration of twenty years after the death of any child of Samuel Hopkins, before which period we have said he could not have had a vested .or devisable estate.

4. It only remains to discuss briefly the claim of the Johns Hopkins Hospital, based upon the contention that the devise of the share of the trust estate created by the. will of Johns Hopkins to Arundel, one of the children of Samuel Hopkins failed to take effect or lapsed because the devisee, Arundel, died without child or children before the death of the testator.

There is a general provision in the will that in case any devise or legacy shall fail to take effect, the property therein mentioned shall go to the Johns Hopkins Hospital, but the testator also made provision for the case of any devisee or legatee who should dispute the validity of his will, declaring that “ all dispositions ... in favor of such person or persons shall cease and be void,” and that such forfeited devises shall go to the hospital for its corporate uses.

There is also a general residuary clause in the first codicil in favor of the hospital and the university. It is upon the “ fail to take effect clause,” applied to the fact of Arundel’s death without child or children during the lifetime of the testator that the hospital bases its claim to one-eighth of the trust estate.

It is to be observed that Arundel’s estate was only a life estate,' and, therefore, so far as his interest is concerned, it matters not whether he died before or after the death of the testator. If, as is the fact, he died before the testator, his life estate never commenced, the will taking effect only from and after the testator’s death. Therefore, inasmuch as Arundel took nothing under the will, neither the hospital nor the university can take any thing through or from him. Nor do we understand that such is the claim; but the contention is that because Arundel died during the life of the testator without child, etc., the devise over contained in the will, providing for the case of any child of Samuel Hopkins so dying does not apply to Arundel. It must be conceded, of course, that the provision of the Code, Art. 93, sec. 313, relating to lapsed legacies, has no application to this question, because Arundel’s estate being for life only, necessarily ended at his death, and cannot, therefore, be transferred by operation of the statute. But we think it is equally clear that the true construction of this provision of the will relating to a child of Samuel Hopkins dying without child, etc., requires us to decide this question against the view so earnestly and forcibly presented on the part of the two corporations founded by the testator. Indeed, it must follow, if the conclusion we have reached in the former part of this opinion be correct, that the claims of these corporations cannot be maintained, for we have said that the share of a child of Samuel Hopkins dying without child, etc., must, according to the true construction of the will, go to the heirs and distributees of such child. It was urged, however, that after Arundel’s death, the testator living, it was impossible, properly, to speak of Arundel as one of the children of Samuel who might die without leaving a child, because that contingency had already happened before the will began to speak, and that therefore the language of the testator has no application to the share devised to Arundel and then over. But while it is true Arundel was dead when the will took effect, he was living and was one of the children of Samuel who might die without child or children when the will was written and executed. In other words, the will speaks as of the time and must be construed according to the situation of the parties and the circumstances existing when it was written, although it does not take effect until the death of the testator. Now when the will was executed Arundel was living, and, of course, the provision under consideration then applied, and was intended by the testator to apply to him as to all the other children of Samuel. However, while Arundel took nothing under the will, and left no child or children who could take, why should not his heirs and distributees take under the clause providing’ for them in default of Arundel dying without issue? The estate devised to them in remainder, as we have construed the will, was separate from and independent of the equitable life estate devised to Arundel, and therefore the failure of the latter to take effect cannot destroy the devise of the former. There was no time when the whole estate was not vested either in the testator, or in the trustees and the cestuis que trustent. After Arundel’s death, the testator until his own death held both the legal and equitable titles. After his death the legal estate vested in the trustees, and the equitable title in the heirs and distributees of Arundel. So> that there does not appear to be any occasion for the application either of the general law of lapsed legacies and devises or of the special provisions of the will for the case of a devise, etc., failing to take effect. The only effect the death of Arundel can have upon the estates in remainder devised and bequeathed to his heirs and distributees is to hasten the time when they are, under the true construction of the will, entitled to the possession of and enjoy the estate itself. In a word, we have here an illustration of what is called the acceleration of estates in remainder. I Jarman on Wills 536; Jull v. Jacobs, L. R. 3 Ch. Div. 709; Emory v. Young, 2 M. & K. 780; Randall v. Randall, 85 Md. 430; 20 Am. & Eng. Ency. 938.

But again, it seems to us that this contention ignores the necessary result and effect of the second codicil, which was executed .nearly a year after the death of Arundel. What was, the effect of this codicil on the devises and legacies to the children of his brother Samuel? We must, as was urged by counsel for the, hospital, assume that the testator knew his nephew Arundel was dead when the second codicil was executed. If so, the testator deliberately, and doubtless with this knowledge of his nephew’s, death, advisedly confirmed his will. He then and there substantially declared: “ I know that my nephew Arundel died without issue, but I confirm my will. It is true neither he nor any child of his can take anything under my will, but his heirs and distributees will get what I intended for him and his children, and after all, those who will get Arundel’s share are the very persons I have been so careful to provide for, namely the children and grandchildren of my brother Samuel or their heirs and distributees.”

(Decided June 30th, 1898.)

What we have said disposes of the controlling questions presented by these four appeals now before us. It follows, without further discussion of the many questions presented and numerous authorities cited, that the decree appealed from must be affirmed, and that the several estates and interest are vested in the parties to this suit as particularly set forth in the several provisions of that decree.

The cause will be remanded in order that accounts may be stated and proceedings had in accordance with the views expressed in this opinion.

Decree, affirmed and cause remanded, costs in this Court and in the Court below to be paid by the trustees out of the trust estate.  