Because the primary reason for early vesting is no longer as important as it formerly was, proof by the preponderance of the evidence that the settlor, testator, or donor intended to use the term "heirs" in its nontechnical sense is sufficient to delay the vesting of a gift to a time other than at the grantor's death.
The issue was whether a decedent intended that his heirs be ascertained at his death, or whether he desired that they be determined after the death of his wife, who was the life tenant. If the heirs were those surviving at his death, the trust estates passed to appellee charities under the wills of decedent's daughters. If, however, the heirs were determined at the time of his wife's death, the trust estates were divided among appellants, his now-living descendants. On review, the court reversed the summary judgment in favor of charities.
Where the circumstances showed that a testator wished that his heirs be determined as of his wife's death, and that devises to charities vest as of her death, should the charitable devises be set aside and his estate divided among his descendants at his wife's death?
The court found that the circumstances under which decedent created the trust provided additional evidence of his intent to vest the gift at his wife's death. Decedent specified that the trust was to be devised and distributed to his heirs and created a reversion in himself if his wife predeceased him, thus conditioning the duration of the trust on her survival. The court determined that the gift was to be distributed per stirpes because there was sufficient indication that decedent intended the remainder to be divided in accordance with the laws of descent and distribution.