Definition
A testamentary phrase of limitation used in wills and trust instruments to describe a class of beneficiaries — specifically, the testator's children who are alive at a designated future point in time. The phrase operates as both a class gift and a survivorship condition: it identifies the class (children) and simultaneously restricts membership in that class to those who survive to a specified moment (typically the death of a life tenant, the termination of a trust, or some other triggering event).
The phrase has two functional layers. First, it defines who qualifies — children of the testator, not grandchildren or other descendants. Second, it imposes a condition precedent of survivorship, meaning a child who predeceases the triggering event takes nothing under the gift, absent a contrary construction or the operation of an anti-lapse statute.
Common Confusion
SUCH OF MY CHILDREN AS SHALL THEN BE LIVING vs. ISSUE, DESCENDANTS, OR CHILDREN WHO SURVIVE ME: These formulations are sometimes treated as interchangeable by researchers unfamiliar with class gift doctrine, but they are not. "Issue" and "descendants" may encompass grandchildren and more remote descendants; "children" does not. The "then be" or "then be living" language fixes survivorship to a future moment, not the date of the testator's death, which is a critical temporal distinction affecting who ultimately takes. Courts have consistently declined to extend "children" to grandchildren absent explicit language — see Rapalje & Lawrence's note that "living" does not include a grandchild, citing 104 Mass. 193.
Why It Matters in Research
This phrase is a recurring source of interpretive litigation in probate and trust law, and researchers working in the Law Mind corpus should be alert to several navigational concerns.
First, the temporal anchor matters enormously. "Then" points to a future triggering event, not the date of execution or the testator's death. When researching a specific instrument, identify what event "then" refers to — often the death of a life tenant or the closing of a trust — because that determines the survivorship cutoff and the composition of the class.
Second, the exclusion of grandchildren is well-established but frequently litigated. The historical corpus contains significant case law addressing testators who used "children" but clearly intended to benefit a broader class. The 104 Mass. 193 reference in Rapalje & Lawrence signals this tension: courts applying strict construction read "children" narrowly; courts applying a broader equitable or intent-based approach may reach different results. When reviewing older cases in the corpus, note the jurisdiction's default rule of construction at the time.
Third, anti-lapse statutes interact with this phrase in ways that older authorities do not address. Modern statutes in many jurisdictions substitute issue of a deceased child when the child predeceases the triggering event. Historical dictionary entries and older case law predate these statutes entirely, so a researcher relying solely on nineteenth-century sources may reach incorrect conclusions about modern outcomes.
Fourth, class-closing rules (the rule of convenience) also interact with this phrase. Whether the class closes at the testator's death, the life tenant's death, or some other point affects whether afterborn children qualify. The "then be" language generally delays class closing to the triggering event, but courts have not always been consistent.
Historical Dictionary Support
Rapalje & Lawrence address this phrase through their entry on LIVING, noting tersely that the word does not include a grandchild, with a citation to 104 Mass. 193. The entry is characteristically sparse — a single proposition with a single citation — and does not engage with the broader doctrinal questions of class gifts, survivorship conditions, or the rule of convenience. This reflects the reference style of the period: black-letter conclusions without analytical scaffolding.
What Rapalje & Lawrence leave unaddressed is significant for researchers. The entry says nothing about what happens when a child dies between the date of the will and the triggering event, nothing about anti-lapse, and nothing about how "then be" differs from "surviving me." The silence is not an endorsement of any broader rule — it simply reflects the narrower scope of nineteenth-century legal dictionaries, which catalogued propositions rather than synthesized doctrine.
The Massachusetts citation (104 Mass. 193) is consistent with the strict-construction tradition dominant in New England courts in the latter half of the nineteenth century, where testamentary language was read according to its ordinary legal meaning rather than speculative intent.
Jurisdictional Note
The exclusion of grandchildren from "children" is broadly consistent across American jurisdictions, but the effect of anti-lapse statutes on survivorship conditions in class gifts varies significantly. Some jurisdictions apply anti-lapse protections even when an express survivorship condition is present; others treat the "then be living" language as a deliberate exclusion of lapsed shares. Researchers should not assume uniform treatment of this phrase across state lines.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Wills and Testamentary Construction (class gift doctrine, rules of construction); Trusts — Beneficial Interests (survivorship conditions in trust distributions).