We have given a full and careful consideration to the ingenious, able and thorough arguments which have been presented to us by the learned counsel in this cause, and have examined, so far as it was necessary, the authorities cited. But we do not think a review of the cases necessary or useful, as the decision of the questions in issue must depend upon the intention of the testatrix, ascertained from the language of her will, which is peculiar and expresses her wishes with reasonable clearness.
1. And. in the first place, we are all of opinion that it was the intention of the testatrix to make the same provision for each of the children of her son Thomas C. Amory, and not to prefer those who were living at the date of the will, or at the time of her death. It is expressly directed that the fund of $8000 “ be created, held and managed ” “ for the use of the child or children of my son, Thomas C. Amory, who shall be living at my de cease or born afterwards.” The principal is to be paid to and distributed among the issue of her son at his decease, if hia present wile does not survive him ; otherwise, at the decease o *285intermarriage of his widow, “ they, if more than one, to share and share alike.” The implication is plain that if at that time there shall be but one, that one should take the whole.
The disposition of the income, though not strictly corresponding to that of the principal, conforms to the same intention. The father is to -have no benefit or advantage from it while he has any children. The whole is to be used for the maintenance and education of such children as are in being from time to time as it accrues. The last clause in the proviso, that upon the event of the death of all the children in the son’s lifetime, and the subsequent birth of others, the income shall go to the use of the after-born children “ in the same manner and for the same purpose as if the children he now has had continued in life,” to which the counsel for Mrs. Austin attaches so much importance, does not seem to us to have the effect which he gives to it. If the design were to provide exclusively for the children in being at the date of the will, so long as any of them should survive, the literal meaning of this phrase would be absurd, because, upon that supposition,<! if the children he now has had continued in life,” the after-born children would take nothing. Its obvious intent is merely to provide that the “ purpose ” shall be the maintenance and education of the after-born children, and the “ manner ” without any liability to account for its application.
The disposition of the fund created from the residue is to be made in the same manner. With a slight change of phrase ology, the substantial directions are the same, both as to principal and income. The fund is created for the benefit of the child of the testatrix, his wife, or issue, as thereinafter provided. The income is given to her son’s child or children ; the principal to be paid, at his decease, if his wife does not survive him, to his child or children if he leaves any, otherwise to the heirs at law of the testatrix. The language as to the son’s enjoyment of the income in case of the death of all his children, until other children shall be born to him, and the transfer of the income upon the happening of that event is identical with that of the proviso elating to the other fund.
*2862. Secondly, we think it perfectly clear that it was not the intention of the testatrix that either fund should vest in the children so that it would go to their representatives in case they did not survive their father. Whether considered as a bequest to them jointly, with provision for the enlargement of the number of legatees as other children should be bom, or as a gift to a class, to be ascertained at the period of distribution, it would be good as an executory legacy, and can be carried into effect without a violation of the rules of law. In either case, it was her will that the whole income should be devoted to the maintenance and education of the children in being when it accrued, and the whole principal be paid or distributed to the child or children living at the time when the payment or distribution should take place.
3. It follows, that any- part of the income received by the father, and not applied by him to the maintenance or education of any of his children, will belong and should be paid to those for whose use he received it at the time it accrued.
The costs of all the parties to the litigation will be allowed and paid from the fund. . Decree accordingly.