
    Nathaniel P. Denny versus Joseph Allen. Gracia Denny versus Daniel Henshaw. Almira Henshaw versus Nathaniel P. Denny.
    H. devises land and personal estate, after the death of his wife,— to whom he gives the use and profits during her life, —to all the children of his brothers and sisters, “ as well of those brothers and sisters who are deceased, as of those who still survive, in equal proportions.” At the time of making the will and of the death of H., there were living forty-seven nephews and nieces 3 thirty-eight of them, together with three others born after his death, survived the wife. Held¡ that the forty-seven took a vested remainder in the land, which opened to let in the three 3 and that the personal estate belonged to the forty-one who survived the wife.
    The trustee of the personal property having paid over to the widow the whole income, during her life, claimed a compensation for his services during the whole time the fund was in his hands, but he was allowed a compensation only for the time since her death, and his expenses in this suit.
    The facts in these cases, as agreed by the parties, were as follows.
    On the 15th day of February, 1794, Joseph Henshaw made his will, containing the following provisions :
    “ I give and devise the reversion of the real estate, of which my wife is to have the use and profits during her natural life, to and among all the children of my brothers and sisters, as well of those brothers and sisters who are deceased, as of those who still survive, in equal proportions.
    “ I give and bequeath unto William Henshaw and Joseph Allen all my household furniture, plate and jewels, and one moiety of all my other personal estate, but in trust, &c. that my wife shall have the use of said furniture, plate and jewels, and receive the interest and profits of the said moiety, &c. during the time she may remain my widow ; but if my said wife should survive her brother Joshua Henshaw, the said William Henshaw and Joseph Allen shall surrender up all the household furniture, &c. and the moiety, &c. to her, my said wife, and the same shall be absolutely her own property.”
    “ In case my said wife shall again marry, or shall die before her said brother, then after her marriage or decease as aforesaid, I give the household furniture, plate and jewels, and all the other personal estate which I have herein before given her the use and profits of, to and among all the children of my brothers and sisters, as well,” &c., as before. •
    On the 8th of March, 1794, the testator made a codicil, containing this clause : “ And my will and meaning is, that in case any of my real or personal estate should remain undisposed of after my wife’s decease, that the same be equally divided between my nephews and nieces.
    The testator died soon after, and on the 6th of May, 1794, his will and codicil were duly proved and allowed ; and Allen accepted the trust, and continued to carry it into effect until the 4th of January, 1822, when the wife died, leaving her brother Joshua Henshaw.
    At the time of making the will and of the death of the testator, there were living forty-seven children of his brothers and sisters ; thirty-eight of the forty-seven, and three others born after his death, were living when the wife died. Nathaniel P. Denny is one of the thirty-eight, and Almira Henshaw one of the three. Gracia Denny is one of seven children of Isaac Denny, one of the nine who died before the wife.
    The questions submitted to the Court were, to what part, if any, of the real estate, of which the reversion was devised as before mentioned, Almira Henshaw and Gracia Denny were respectively entitled, and what proportion of the personal estate in the hands of the trustee ought to be paid over to Nathaniel P. Denny.
    
      Ward and Denny, of counsel for Gracia Denny,
    cited Co. Lit. 365 a, Butler’s note 213, and cases there cited ; Ding
      
      ley v Dingley, 5 Mass. Rep. 535; Fearne’s Exec. Dev. c. 4, § 20 Benyon v. Maddison, 2 Bro. C. C. 77; Bates v. Webb, 8 Mass. Rep. 458.
    
      Ward, for Almira Henshaw,
    cited Dingley v. Dingley; Heathe v. Heathe, 2 Atk. 122, in nail's; Doe v. Provoost, 4 Johns. Rep. 61.
    d? Denny, for Nathaniel P. Denny,
    cited Baldwin v. Karver, Cowp. 309; Ellison v. Airey, 1 Ves. 114.
    
      Ward and Allen, for the trustee,
    cited Dingley v. Dingley; Baldwin v. Karver; Jones v. Roe, 3 D. & E. 94; 2 Saund. 388, in notis; 6 Cruise’s Dig. tit. 38, c. 20, § 51 et seq.; Goodtitle v. Wood, Willes, 211; Fearne, nt ante, and Butler’s note ; Swinb. pt. 4, § 17, Powell’s note; 2 Eq. Cas. Abr. 548.
   The Court,

on the authority of Dingley v. Dingley, held, that Gracia Denney was entitled to one seventh of one fiftieth part of the real estate, and Almira Henshaw to one fiftieth. With respect to the action of Nathaniel P. Denny, they observed, the general principle to be extracted from the cases in the books is, that when the devise is to take effect upon a future event, it shall be considered that the testator had in view all those of the class to which he intended his bounty, who should be capable .of taking when the event happens ; as in Cowp. 309. Here the testator gives his estate to his wife during life, then to the children of his brothers and sisters, or, as in the codicil, to his nephews and nieces. Of the personal estate thus bequeathed, all the nephews and nieces, who were alive at the time of the death of her who had the life interest, must take in equal shares. There being forty-one thus entitled, the plaintiff must recover one forty-first part of the sum in the hands of the trustee.

The trustee, having paid over the income, during the life of the widow, without any deduction, now prayed leave to retain a certain sum for his services for the whole time that the property has been in his hands. The Court allowed him a compensation only for the time since ihe widow’s decease, and his expenses in attending to this suit  