
    Higgins’ Estate
    Before Henderson, Van Dusen, Stearne, Sinkler, and Klein, JJ.
    
      
      Walter B. Gibbons, for exceptant.
    
      Frank A. Bedford, Jr., contra.
    November 29, 1935.
   Per Curiam,

Where a cestui que trust dies without descendants, and there is a gift over in such event to the children of certain named legatees and they at the time are childless, does an intestacy necessarily follow, or is the estate to be held for children who may possibly come into existence?

This in effect is the one question raised by exceptants who claim under the intestate law.

The learned auditing judge has held that no distribution may now be made and that, therefore, the estate remains in trust for the benefit of children if any, and we agree with him that this is the correct ruling.

All textbooks and all authorities hold that where there is a class gift over to children, and there are children in existence, the class closes as of the date of the decease of testator or of the life tenant (equitable or otherwise), or time of distribution, and that afterborn children are barred.

There is, however, a well-settled exception, and that exception governs the instant case. If there be no children then in existence, the estate remains for the benefit of children who may afterwards be born.

Says Mr. Hawkins: “If there are no objects in' existence at the death of the testator or period of distribution, the rule has no application, and all children whenever born may be included, unless an intention appear to the contrary. (Harris v. Lloyd, T. & R 310.) Thus, if the bequest be to trustees in trust to invest, and stand possessed in trust for the children of A., share and share alike, and A. is living but has no children at the testator’s death, afterborn children will take, and the interest till the birth of a child falls into the residue”: Hawkins on Wills (2d ed. by Sanger), 93-94.

No contrary intention is shown by the will now under discussion, and as all necessary and essential facts are set forth in the adjudication, further comment is unnecessary.

All exceptions are dismissed and the adjudication is confirmed absolutely.  