ON MOTION FOR REHEARING. A motion for rehearing has been filed by appellants. We have considered it, but are still satisfied with the conclusions of law heretofore announced.
As to the point made by appellants not passed on in our opinion, to-wit, that by the said ninth clause, the heirs of Reuben Mockbee, if any, who were to take as devisees, were his heirs living at the time of his death, and not at the time of the testator's death, as held by the lowerDevise to Class: court, we must also rule that contentionMeans Heirs against the appellants. It is true, that 40Living at Testator's Cyc. 1482-83, cited by appellants, is asDeath. follows: "B. Where the gift is to the heirs or next of kin of another than the testator, it ordinarily refers to the death of such other, unless the context of the will manifests . . . a different time, such as at the time of distribution."
In the case at bar, the evidence showed, that Reuben Mockbee died in 1879. That most, if not all, of his seven brothers and sisters living at the time of his death died before the testatrix made her will, leaving numerous descendants living when testatrix died. The testatrix made her will in 1914, and died in 1916. The text quoted from Cyc. evidently refers to cases where such "other" person whose heirs are given an estate was alive when the will was made and the testator died, because, in a note to Paragraph B, the learned author says: "Where such other dies before the date of the will, it has been held, his heirs or next of kin may be ascertained at the date of the death of the testator." So that, in this case, the rule laid down in the note, and not in the text, is applicable. The devise here was to "the Mockbee heirs" without naming them. It was, therefore, plainly devised to them as a class.
In 28 Ruling Case Law, sec. 234, it is said: "The general rule, therefore, is that a gift to a number of *Page 477 persons not named, but answering a general description, is a gift to them as a class." In Section 233 of said volume, it is said: "But under a bequest to a class, subject to increase or diminution by reason of future births or deaths, the entire estate vests in such persons only as fall within the class at the date of distribution." And in Section 237 of said volume, it is said: "Since a will speaks from the date of the testator's death, the members of a class, where there is a devise to a class, must prima-facie, be determined upon the death of the testator."
In this case, the time when the devise to the class took effect, and when the distribution was to be made, was the date of the testator's death. Consequently, the ruling of the lower court on that point, was without error.
The motion for rehearing is, therefore, overruled.