Mr. Justice Dunn
delivered the opinion of the court:
• The first question in the case is, do the trusts declared in the will violate the rule against perpetuities? If that question is answered in the affirmative the decree of the circuit court is right. The purposes of the trust and nature of the powers conferred and duties imposed upon the trustees are such that they necessarily take the legal estate in fee, though it is not expressly stated so in the will. (West v. Fitz, 109 Ill. 425; McCartney v. Osburn, 118 id. 403.) The design of the testator was that the whole estate should ultimately vest in his grand-nephews and grandnieces, who would necessarily be the lineal descendants of his father and mother, as stated in clause 16 of the will. But the division of the estate among his grand-nephews and grand-nieces was not to take place until twenty-one years after the death of his last surviving nephew or niece, and until that time arrived it could not be told what individuals would be entitled to participate in the division. Therefore, if that time might possibly not arrive until more than twenty-oñe years after the death of the téstator and the death of all his nephews and nieces who were living at his death, the devise to the grand-nephews and grand-nieces would transgress the rule against perpetuities. The rule is, that no interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest, and the possibility that it may not be fulfilled within the time violates the rule. (Howe v. Hodge, 152 Ill. 252; Lawrence v. Smith, 163 id. 149; Eldred v. Meek, 183 id. 26; Owsley v. Harrison, 190 id. 235; Sclmknecht v. Schultz, 212 id. 43; Quinlan v. Wickman, 233 id. 39; Pitsel v. Schneider, 216 id. 87.) Where there is a devise to a class after the termination of an intervening particular estate, all persons belonging to the class at the termination of the prior estate, whether in being at the death of the testator or not, are entitled to share in the devise. Where the preceding estate may not terminate within the limit fixed by the rule against perpetuities, so that the individuals of the class and the interest of each can be ascertained within that time, the devise to the class is obnoxious to the rule and must fail. Schuknecht v. Schultz, supra; Pitzel v. Schneider, supra.
The condition precedent to which the interests of the grand-nephews and grand-nieces are subject is the death of the last surviving nephew or niece of the testator and the expiration of twenty-one years thereafter. The testator left two brothers and a sister surviving him. If a child should now be born to one of them, such child would be a nephew or niece of the testator, and such nephew or niece, if outliving the other nephews and nieces, would be the last surviving nephew or niece of the testator. Such nephew or niece might outlive the lives in being at the testator’s death more than twenty-one years, and thus the death of the last surviving nephew or niece might not occur within the time required by the rule to make the devise to the grandnephews and grand-nieces valid. The ultimate gift to the grand-nephews and grand-nieces is therefore void unless the words “last surviving nephew or niece,” at the beginning of clause 16, are to be understood in a sense different from their natural and ordinary meaning. If they are to be interpreted as meaning something different from what they naturally indicate, the reason for such interpretation must be found in other language in the will showing that the words were used with a meaning different from their primary sense. No such language is found in clause 16. Counsel for appellants find the qualifying.language in the words “my living nephews and nieces,” at the beginning of clause 15. Their argument is that the word's “my last surviving nephew or niece” refer back to “my living nephews and nieces,” and that these latter words refer to the nephews or nieces living at the testator’s death.
No direct gift is made to the nephews and nieces. The rule is that a gift made directly to a class of beneficiaries, though its enjoyment be postponed to a future time, takes effect immediately, in favor, exclusively, of those members of the class in existence at the testator’s death. In such case the word “living” is immaterial, for without it the devise is to the members of the class living at the testator’s death, and the only occasion- for its use arises if it is desired to indicate persons living at some other time. Another rule is, that where the only disposition of property made by a will is contained in a direction to pay money at a future fixed time to a class of beneficiaries, only those members of the class in existence at the time of payment are entitled to share in it. The only disposition of nine-tenths of the net income was the direction to divide it semiannually equally among the testator’s living nephews and nieces. In accordance with the rule of construction just mentioned, this means the nephews and nieces living at the time of each semi-annual division, unless the will contains other language or other provisions showing that these words were not intended to be used according to their usual meaning in this connection.
Counsel for appellants argue that the will speaks from the time of the testator’s death, and that “living nephews and nieces” refers to those living at that time. It is true that the will took effect immediately upon the testator’s death and the entire legal title to his property then passed to the trustees. The will spoke from that time, and its directions as to future payments by the trustees are subject to the ordinary rules of construction and are governed by the conditions existing at the time such payments are required to be made. There is no language in clause 15 which tends in any way to control the words “living nephews and nieces” and limit the living nephews and nieces to those-living at the testator’s death. On the contrary, in both clause 15 and clause 16 there is language indicating that nephews and nieces were in the testator’s contemplation who were not living at the testator’s death. In clause 15, after directing the division of nine-tenths of the net income among the living nephews and nieces, it is provided that “the share of any nephew or niece who may die, either before or after my death, shall be given to his or her lineal descendants, if he or she have such descendants,” etc. It thus appears that all the nephews and nieces of the testator were within his contemplation in this clause, whether living at his death or not, and that he regarded any nephew or niece, whether living at his death or not, and, even though dead in his lifetime, as having, under this clause, a share in the estate, which he directed to be paid to his or her descendants. It is clear that “living,” as used in this clause to indicate the nephews and nieces who should share in the division of the net income, refers to and distinguishes the two classes of beneficiaries,—that is, at each division the nephews and nieces then living and the descendants of those who had died, either before or after the testator. The gift was to the then living nephews and nieces and to the descendants of those who were dead. Clause 16 directs the ultimate division of the estate among all the testator’s grand-nephews and grand-nieces in such way that “the share of each nephew or niece shall be divided, in equal parts, between the sons and daughters of said nephew or niece.” Here, again, the testator recognizes that each nephew or niece is entitled to a share in the estate.
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Mr. Justice Dunn
delivered the opinion of the court:
• The first question in the case is, do the trusts declared in the will violate the rule against perpetuities? If that question is answered in the affirmative the decree of the circuit court is right. The purposes of the trust and nature of the powers conferred and duties imposed upon the trustees are such that they necessarily take the legal estate in fee, though it is not expressly stated so in the will. (West v. Fitz, 109 Ill. 425; McCartney v. Osburn, 118 id. 403.) The design of the testator was that the whole estate should ultimately vest in his grand-nephews and grandnieces, who would necessarily be the lineal descendants of his father and mother, as stated in clause 16 of the will. But the division of the estate among his grand-nephews and grand-nieces was not to take place until twenty-one years after the death of his last surviving nephew or niece, and until that time arrived it could not be told what individuals would be entitled to participate in the division. Therefore, if that time might possibly not arrive until more than twenty-oñe years after the death of the téstator and the death of all his nephews and nieces who were living at his death, the devise to the grand-nephews and grand-nieces would transgress the rule against perpetuities. The rule is, that no interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest, and the possibility that it may not be fulfilled within the time violates the rule. (Howe v. Hodge, 152 Ill. 252; Lawrence v. Smith, 163 id. 149; Eldred v. Meek, 183 id. 26; Owsley v. Harrison, 190 id. 235; Sclmknecht v. Schultz, 212 id. 43; Quinlan v. Wickman, 233 id. 39; Pitsel v. Schneider, 216 id. 87.) Where there is a devise to a class after the termination of an intervening particular estate, all persons belonging to the class at the termination of the prior estate, whether in being at the death of the testator or not, are entitled to share in the devise. Where the preceding estate may not terminate within the limit fixed by the rule against perpetuities, so that the individuals of the class and the interest of each can be ascertained within that time, the devise to the class is obnoxious to the rule and must fail. Schuknecht v. Schultz, supra; Pitzel v. Schneider, supra.
The condition precedent to which the interests of the grand-nephews and grand-nieces are subject is the death of the last surviving nephew or niece of the testator and the expiration of twenty-one years thereafter. The testator left two brothers and a sister surviving him. If a child should now be born to one of them, such child would be a nephew or niece of the testator, and such nephew or niece, if outliving the other nephews and nieces, would be the last surviving nephew or niece of the testator. Such nephew or niece might outlive the lives in being at the testator’s death more than twenty-one years, and thus the death of the last surviving nephew or niece might not occur within the time required by the rule to make the devise to the grandnephews and grand-nieces valid. The ultimate gift to the grand-nephews and grand-nieces is therefore void unless the words “last surviving nephew or niece,” at the beginning of clause 16, are to be understood in a sense different from their natural and ordinary meaning. If they are to be interpreted as meaning something different from what they naturally indicate, the reason for such interpretation must be found in other language in the will showing that the words were used with a meaning different from their primary sense. No such language is found in clause 16. Counsel for appellants find the qualifying.language in the words “my living nephews and nieces,” at the beginning of clause 15. Their argument is that the word's “my last surviving nephew or niece” refer back to “my living nephews and nieces,” and that these latter words refer to the nephews or nieces living at the testator’s death.
No direct gift is made to the nephews and nieces. The rule is that a gift made directly to a class of beneficiaries, though its enjoyment be postponed to a future time, takes effect immediately, in favor, exclusively, of those members of the class in existence at the testator’s death. In such case the word “living” is immaterial, for without it the devise is to the members of the class living at the testator’s death, and the only occasion- for its use arises if it is desired to indicate persons living at some other time. Another rule is, that where the only disposition of property made by a will is contained in a direction to pay money at a future fixed time to a class of beneficiaries, only those members of the class in existence at the time of payment are entitled to share in it. The only disposition of nine-tenths of the net income was the direction to divide it semiannually equally among the testator’s living nephews and nieces. In accordance with the rule of construction just mentioned, this means the nephews and nieces living at the time of each semi-annual division, unless the will contains other language or other provisions showing that these words were not intended to be used according to their usual meaning in this connection.
Counsel for appellants argue that the will speaks from the time of the testator’s death, and that “living nephews and nieces” refers to those living at that time. It is true that the will took effect immediately upon the testator’s death and the entire legal title to his property then passed to the trustees. The will spoke from that time, and its directions as to future payments by the trustees are subject to the ordinary rules of construction and are governed by the conditions existing at the time such payments are required to be made. There is no language in clause 15 which tends in any way to control the words “living nephews and nieces” and limit the living nephews and nieces to those-living at the testator’s death. On the contrary, in both clause 15 and clause 16 there is language indicating that nephews and nieces were in the testator’s contemplation who were not living at the testator’s death. In clause 15, after directing the division of nine-tenths of the net income among the living nephews and nieces, it is provided that “the share of any nephew or niece who may die, either before or after my death, shall be given to his or her lineal descendants, if he or she have such descendants,” etc. It thus appears that all the nephews and nieces of the testator were within his contemplation in this clause, whether living at his death or not, and that he regarded any nephew or niece, whether living at his death or not, and, even though dead in his lifetime, as having, under this clause, a share in the estate, which he directed to be paid to his or her descendants. It is clear that “living,” as used in this clause to indicate the nephews and nieces who should share in the division of the net income, refers to and distinguishes the two classes of beneficiaries,—that is, at each division the nephews and nieces then living and the descendants of those who had died, either before or after the testator. The gift was to the then living nephews and nieces and to the descendants of those who were dead. Clause 16 directs the ultimate division of the estate among all the testator’s grand-nephews and grand-nieces in such way that “the share of each nephew or niece shall be divided, in equal parts, between the sons and daughters of said nephew or niece.” Here, again, the testator recognizes that each nephew or niece is entitled to a share in the estate.
The plan of the testator for the final disposition of his estate was a very simple one. He intended that when the time of final disposition should have arrived his estate should be divided among the descendants of all his nephews and nieces, and that the descendants of each nephew or niece should receive, as together representing their resp'ective ancestors, a share proportionate to the total number of all his nephews and nieces, and that in the meantime the income, subject to the charges imposed thereon by the will, should be divided equally among all his living nephews and nieces and the descendants of such as might be dead, the latter taking by representation. Each nephew or niece was regarded as a stock of descent,—a channel through which the estate should descend. • This is the plain meaning of the language used. It is not a case of ambiguous meaning or doubtful construction. The only difficulty is that this intention violates the rule against perpetuities. If it were not for such violation no one would have any doubt as to the intention. Does the existence of the rule change the intention expressed by the words of the will? Can we wrest the language to another meaning to avoid the rule ?
The rule against perpetuities is a rule of law and not of construction. It cannot be used to ascertain the intention. Its special purpose is to defeat the intention if in violation of the rule. The intention, then, must be ascertained without reference to the rule,—as if the rule did not exist. The course to be pursued was stated by Mr. Baron Parke in Dungannon v. Smith, 12 Cl. & F. 546, on page 599: “We must first ascertain the intention of the testator, or more properly this meaning of his words in the clause under consideration, and then endeavor to give effect to them so far as the rules of law will permit. Our first duty is to construe the will; and this we must do exactly in the same way as if the rule against perpetuity had never been established or was repealed when the will was made, not varying the construction in order to avoid the effect of that rule but interpreting the words of the testator wholly without reference to it.” (Cottman v. Grace, 112 N. Y. 299.) The ultimate disposition of the testator’s property is so essential a part of the scheme of his v ill that it can not be supposed he would have created the trust if he had understood this part of his will would fail. Lawrence v. Smith, supra; Pitzel v. Schneider, supra.
The decree of the circuit court was in accordance with the views here expressed, and it is affirmed.
Decree affirmed.