Definition
A phrase of limitation or substitution appearing in wills and trust instruments, typically in remainder clauses where a testator directs property to pass to the surviving children or beneficiaries from a group, and then to the issue — that is, the lineal descendants — of whichever members of that group happen to have died by the time the remainder vests or the condition falls in. The full construction generally reads along the lines of: "to my children, and if any of them shall be dead, then to the issue of such of them as shall then be dead" or a similar formulation. The phrase operates to substitute the descendants of deceased members of a class in place of those members, preserving the deceased member's share within their own line rather than letting it collapse into the surviving members of the original class or fall into residue.
The phrase therefore does two things simultaneously: it identifies a class (those members of a prior group who have died by the relevant time), and it designates the takers within that class (their issue — children, grandchildren, and further lineal descendants as the instrument or applicable law directs).
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Common Confusion
The phrase is easily confused with a simple gift to "issue" outright. A bare gift to "issue of X" vests in X's descendants as a fixed, identifiable group at the relevant time. The phrase "issue of such of them as shall then [be living/be dead]" is conditional — it activates only for the subset of a prior group who satisfy the stated condition at the time the interest falls in. Researchers who fail to read the full surrounding clause may misidentify the class, the condition, and the time of vesting. Similarly, "issue of the body" (a term of art importing an estate tail or fee tail in older law) is distinct; "issue" in this phrase generally carries its modern meaning of lineal descendants rather than the technical limitation language of fee tail doctrine.
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Why It Matters in Research
This phrase is a product of English and American will-drafting conventions primarily from the eighteenth and nineteenth centuries, and it carries significant interpretive weight in probate, trust, and property research for several reasons.
**Time of vesting is everything.** The phrase "as shall then" anchors the class to a specific moment — typically either the testator's death, the death of a life tenant, or the occurrence of some other triggering event. A researcher reading a will or deed must identify precisely what "then" refers to. Courts regularly litigated this question, and the answer determined whether a remainder was vested or contingent, which in turn affected alienability, creditor rights, and the applicability of the Rule Against Perpetuities.
**Class gift mechanics.** When the phrase appears in a class gift, it raises the question whether the issue take per stirpes (each branch receiving what their deceased ancestor would have taken) or per capita (dividing equally among all living issue regardless of branch). The phrase itself does not resolve this — jurisdiction, surrounding language, and applicable construction rules all bear on the answer. Nineteenth-century American courts were not uniform on this question, and researchers tracing a chain of title or a probate dispute must locate the governing law of the relevant time and place.
**Contingency and the Rule Against Perpetuities.** Because the takers are not fully ascertained until the condition ("shall then be dead") falls in, gifts framed this way were frequently challenged under the Rule Against Perpetuities. Whether the remainder was saved by the life-in-being analysis or struck down varied by jurisdiction and drafting. Corpus materials from this period will reflect a high volume of construction litigation around exactly this language.
**Distinguishing the condition.** The phrase can appear in two configurations: "issue of such of them as shall then be dead" (substituting descendants for deceased members) and the rarer inverse "issue of such of them as shall then be living" (limiting the substitution to descendants of survivors, excluding deceased branches entirely). These produce opposite results and are a source of genuine interpretive error in older reports.
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Historical Dictionary Support
Rapalje & Lawrence do not carry a direct entry for this full phrase. Their dictionary entries for cognate expressions — "HAPPEN TO BE DEAD" (citing 1 Dru. & W. 127), "ISSUE OF THE BODY" (citing 8 C. E. Gr. (N.J.) 553; 1 Str. 29, 31), and "ISSUE OF THE MARRIAGE" (citing 3 Atk. 374) — illuminate the surrounding doctrinal vocabulary but do not synthesize the specific phrase as a term of art. This is characteristic of the phrase's status: it was not a single defined term but a recurring drafting formula whose meaning was built up through construction cases rather than lexicographic treatment.
The "HAPPEN TO BE DEAD" entry is the closest doctrinal neighbor, pointing to the same interpretive problem — identifying a class defined by their condition of death at a future moment. The Drury & Warren citation (an Irish Chancery report) reflects the phrase's roots in equity practice, where will construction was the province of Chancery. The "ISSUE OF THE BODY" entries point toward the older fee tail vocabulary from which the modern "issue" construction in remainder clauses gradually separated.
What the historical dictionaries collectively miss is the interaction between this phrase and class gift doctrine as it developed in American courts through the mid-to-late nineteenth century. By the time American jurisdictions began codifying rules of construction, the phrase's ambiguities had generated a substantial body of case law that no single dictionary entry captures.
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Jurisdictional Note
American courts diverged from English Chancery practice in how they treated per stirpes versus per capita distribution when this phrase appeared without explicit direction. Some states adopted a presumption of per stirpes distribution when the phrase substituted issue for deceased class members; others required explicit language. Researchers working in New Jersey, New York, or Massachusetts equity materials from 1820–1890 will find the sharpest development of these construction rules.
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