## Facts

- A testator devised property to his son for life.
- The will then devised the property, on the son’s death, to “all and every” child of the son who attained age 21, and to any daughter who married before 21.
- The will attempted to restrain the son from alienating his life interest and provided that if the son attempted to sell, mortgage, or otherwise dispose of the property, his life interest would terminate and the property would pass to the son’s children “as if” the son had died.
- A construction dispute arose over whether the class of children entitled to take was limited to those who satisfied the age/marriage condition by the son’s death or instead included children who satisfied the condition after the son’s death.
- The trial court construed the will to permit all qualifying children to take, whether they qualified before or after the son’s death, and the matter was appealed.

## Issues

1. Whether the gift to the son’s children included all children who ultimately satisfied the age/marriage condition, even if they satisfied it after the son’s death, or instead closed at the son’s death.
2. Whether the children’s interests were properly characterized as vested class interests subject to opening and conditions, or as contingent interests dependent on satisfying the condition within a fixed period.
3. Whether the forfeiture-on-alienation clause altered the identity of the remaindermen or merely accelerated the time when the remainder took effect in possession.

## Decision

- The Court of Appeal affirmed the construction that the class included all of the son’s children who satisfied the stated condition, regardless of whether satisfaction occurred before or after the son’s death.
- The court treated the disposition as a class gift that remained open to admit qualifying members, rather than a gift limited to those ascertainable at the son’s death.
- The forfeiture provision was construed primarily as an acceleration mechanism (treating an attempted alienation as equivalent to the son’s death for possession purposes), not as a limitation narrowing the class of children entitled to share.

## Legal Principles

- A remainder to “all and every” child of a life tenant who attains a stated age (or, for daughters, marries earlier) is ordinarily construed to include all children who later meet the condition, unless the will clearly fixes an earlier closing of the class.
- Courts prefer constructions that effectuate the will’s overall intent to benefit the described family class and avoid technical constructions that would exclude later-qualifying members without clear language.
- Class gifts following a life estate are commonly treated as vested or vesting class interests subject to opening and to satisfaction of age/marriage conditions, rather than as narrowly contingent interests that would defeat the scheme upon early termination of the prior estate.
- A clause terminating a life estate upon attempted alienation and directing distribution “as if” the life tenant had died generally affects the timing of enjoyment (acceleration), not the identity of the remaindermen, absent explicit contrary language.

## Conclusion

The court construed the will to give the remainder to the full class of the son’s children who ultimately satisfied the age-or-marriage condition, and it treated the attempted forfeiture on alienation as accelerating the remainder into possession rather than redefining or restricting who could take.


Blackman v. Fysh, [1892] 3 Ch. 100 (Eng. C.A.)