Mаria E. Vinton (the testatrix), the widow of an inhabitant of Massachusetts, died June 11,1911, having her domicil in Maryland. Her will, made in 1892 when she was already a widow, described her as of Baltimore. A codicil dated April 28,1911, is not significant in this case. Her will was allowed in Maryland on July 12, 1911, and ancillary letters were issued in Massachusetts.
By art. Third of her will, 2 the testatrix gave the residue *632 in trust to her trustee, William Allen Hayes of Cambridge, Massachusetts. Upon the death of the last of her three dаughters to die, the trust fund was to be distributed among the issue of the testatrix’s daughters per stirpes, but in the event, which occurred, of the death of all three daughters “leaving no issue surviving them,” the trust fund (after certain relatively small pecuniary gifts not here in issue) was to “go to my [the testatrix’s] heirs at law.”
In 1918, two individuals were appointed trustees of the residuary trust by the Probate Court for Suffolk County, Massachusetts, and the trust has beеn administered in Massachusetts. The trust has now terminated by the death of Lillian Vinton, the last surviving daughter. The sole remaining successor trustee has brought this petition for instructions as to the disposition of the trust fund.
The Probate Court entered a decree that the ultimate remainder gift of the trust fund “to the testatrix’s ‘heirs at law’ means to those persons who were [the] testatrix’s heirs at law as of the time of her death, namely her three daughters.” The heirs at law of the testatrix, determined at the death of Lillian Vinton on May 4, 1958, are descendants of the testatrix’s parents. They have appealed from the decree of the Probate Court.
*633 From a genealogical chart in the record it appears that, when the will was made in 1892, the testatrix, then a widow, had three living minor daughters, Eleanor, aged thirteen, Lilliаn, aged eleven, and Pamela, aged nine. She also then had two living married sisters and two living married brothers, some of whom had then living children. Her will makes no mention by name of her brothers or of their or her sisters’ issue.
1. The question for decision is whether the ultimate remainder gift “to my heirs at law” in art. Third (see footnote 2, supra) upon the death of all the testatrix’s “daughters . . . leaving no issue surviving them” is to the testatrix’s heirs at law dеtermined at her death in 1911 or at the death in 1958 of Lillian, her last surviving daughter. We first attempt to ascertain the testatrix’s intention by interpretation of the language used by her, giving weight to the ordinary meaning of the words used, the context in which they appear, and other relevant evidence, including the circumstances in which the will was drafted. If her intention cannot be ascertained by such interpretatiоn we must have resort to rules of construction.
The term “heirs at law” as used in art. Third is not directly limited (as would have been appropriate, see Powell, Real Property, § 377, at p. 239) by any express statement of the time as of which or the law by which they are to be determined. In the sentence making the gift, the word “then” is not used. In the preceding sentence it is used in the sense of “in that event.” As so used it is withоut significance in interpretation. See Restatement: Property, § 308, comment o; Simes & Smith, Future Interests (2d ed.) § 734, at p. 204; Am. Law of Property, § 22.60, at pp. 438-439; Powell, Real Property, § 375, at p. 222.
Greneral indications of intention may be gained from the will and the background circumstances. (1) All relevant provisions of the will show that the testatrix’s primary concern was with her daughters and their possible issue. (2) The testatrix showed little direct concern about her collateral relatives either in 1892 or at the time of the 1911 *634 codicil, and on each occasion she did not mention by name most of those collateral relatives then living. (3) It is suggested that the provision, for an “advance” to a daughter of a part of the principal of the trust fund, not exceeding “one half ... of the then expectant or рresumptive or vested share of such” daughter, might have little meaning unless the daughter as an “heir at law” could take a share of principal by way of remainder. This provision may be interpreted sensibly and in a practical manner which will accomplish the testatrix’s obvious purpose, if it is treated as permitting an “advance” to a daughter of up to one half of the share of principal from which she may have been currently receiving the income. Upon this interpretation, a daughter would have a vested equitable life interest, which would come within the word “vested” in the provision. The provision, of course, could conceivably have reference to one half of the amount of principal which she would take as an “heir at law” by way of contingent rеmainder, an existing interest in which there may be an expectant or presumptive share, and not only a mere expectancy or possibility. See Simes & Smith, Future Interests (2d ed.) § 2; Am. Law of Property, § 4.1, at p. 407. A more probable reason, however, for the use of the words “expectant or presumptive” in the provision is the possibility (existing at the date of the will and at the testatrix’s death) that a dаughter of the testatrix might die leaving a child surviving her prior to the death of the last surviving daughter. Such a child would have had at least an expectant or presumptive share of the trust fund to which the provision for advances could have had application. In view of these considerations, the provision seems of slight assistance in the present problem.
We conclude that the remаinder gift to the testatrix’s heirs at law was inserted simply to ensure that, if all the earlier dispositions should fail, the intestacy law would “take its course.” See
Whall
v.
Converse,
2. Although the testatrix at her death had her domicil in Maryland, she was the widow of an inhabitant of Massachusetts and appointed an inhabitant of Massachusetts as her executor and trustee. It has not been shown by whom the will was drawn or what property the testatrix owned either when the will was made or at her death. She seems to have intended that the trust be administered in Massachusetts sо that Massachusetts law would govern matters affecting trust administration. See
Boston Safe Deposit & Trust Co.
v.
Alfred Univ.
3. If we were interpreting the will of a person whose domicil was in Massachusetts, “heirs at law” would mean heirs at law determined at the death of the testatrix “unless a contrary intention appears.”
Tyler
v.
City Bank Farmers Trust Co.
In Demill v. Reid, an obscure and confusing decision, the court held (at p. 191) that “where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons answering the description in esse when the contingency happens, they alone can take.” In the Schapiro case, the testator left the residue of his estate to his wife for lifе (at p. 363) “and in the event of my . . . wife having any . . . children at . . . her death, I . . . devise . . . said estate to said . . . chil *637 dren .... But in the event of my . . . wife dying without issue living, then and in that case I devise ... all said estate to my heirs at law.” The court interpreted (p. 374) the words “any . . . children” as including any children of the wife by a later marriage, a possibility which would not expire until her death. “Having reached that conclusion,” said the court, “it must of necessity follow, that the remainder ... to the heirs of the testator could not vest until the death” of the wife. The court went on to say (at p. 374) “that the limitations ... to the children of . . . [the wife] and to the heirs of the testator are contingent. They are alternative contingent remainders, dependent upon a contingency with a double aspect. ’ ’ It then decided (see p. 376) that at the wife’s death the remainder to the testator’s heirs at law vested in “the sole representative of that class, in esse.”
The rule of Demill v. Reid has been severely criticized. See Reno, Alienability and Transmissibility of Future Interests in Maryland, 2 Md. L. Rev. 89, 116-118; Reno, Further Developments as to the Alienability and Transmissibility of Future Interests in Maryland, 15 Md. L. Rev. 193, 211-220; annotation, 9 Md. L. Rev. 367, 374. Powell, Real Property, § 375, at p. 223, says of the Demill rule that “no satisfactory" independent rationale for it has been discovered.” At least in its application to “heirs at law,” as in the 8chápiro case, the rule postponing the determination of the members of the class seems to run counter to the general rule stated in Restatement: Property, § 308 (but see comment k). See also Restatement: Property, § 261, comment a; Powell, Real Property, §§ 372, 375; Am. Law of Property, § 22.60, at pp. 431 — 435, 441-447. Cf. Simes & Smith, Future Interests (2d ed.) § 734.
The rulе has not been applied to remainder gifts to named or immediately ascertainable remaindermen. When it has been possible to find that specific persons were in fact intended to be remaindermen, the Maryland court has not regarded the doctrine as controlling. See e.g.
Boulden
v.
Dean,
The
Demill
rule, in recent years, has now been clearly recognized as being one of construction аnd not a binding rule of law. See
Boynton
v.
Barton,
The
Demill
rule is not the only rule of construction to be considered here. Maryland, likе Massachusetts, generally recognizes the principle favoring early vesting. See
Hans
v.
Safe Deposit & Trust Co.
The cases already cited indicate to us that the Maryland court in recent years has made substantial effort to avoid application of the
Demill
rule, by finding that particular instruments gave transmissible contingent interests to persons definitely ascertainable, even though described in terms which might suggest a class gift. See Professor Reno’s second article,
supra,
15 Md. L. Rev. 193, 216. There are substantial indications that eventually the
Demill
rule may be wholly disregarded or abandoned. It cannot now be said, however, in view of
Evans
v.
Safe Deposit & Trust Co.
The parties have presented to us a question of interpretation of somewhat conflicting dеcisions of a court of last resort of a sister 'State. We cannot predict what treatment the Maryland court will give to the
Demill
rule when next confronted with its application. As the Maryland decisions now stand, we feel constrained to deal with the
Demill
rule in the same way that the Maryland court seems to do, that is to treat it as still existing despite the indications in the
Chism, Evans,
and
Boynton
cases that there has been a very real shift away from it, at least of emphasis, since the
Demill
and the
8chápiro
cases were decided. The Maryland court (in considering the application of the
Demill
rule) now appears to give weight (although it is not clear how much) to conflicting considerations analogous to the rule favoring early vesting, and to apply the
Demill
rule principally in cases (see the language of
Chism
v.
Reese,
■ We have already said that the general indications as to the testatrix’s actual intention 3 in using the term “my heirs at law” reveal at most her principal interest in her daughters and their possible issue and a relatively slight interest in her collateral relatives. It is true also that-in 1892, and at any time thereafter until her death, the testatrix’s heirs, *641 if she had then died, would have been her three daughters. 4 They thus were the persons she would have been most likely to think of as her heirs. If, however, they had all predeceased her, other persons would have been the testatrix’s heirs. Accordingly, in the circumstances, we are not persuaded that the testatrix actually intended the term “my heirs at law” to mean her three daughters in effect as named individuals. We are confronted with a situation where there are no reliable indications whatsoever of actual intention.
We are thus thrown back wholly on rules of construction. The
Demill
rule seems to us the most clearly applicable rule оf construction. It is more directly relevant than the rule favoring early vesting which is pertinent by analogy in determining whether a contingent remainder is transmissible. The
Demill
rule was applied to closely similar facts in the
S chapiro
case (
4. The final decree is revеrsed. A new final decree is to be entered directing the trustee to distribute to the heirs at law of the testatrix determined as of May 4, 1958, in accordance with the then existing laws of Maryland, the balance of the trust fund (after paying the charitable gift of $10,000, if that has not already been paid) together with all income accrued after Mqy 4, 1958. Costs and expenses of these appeals are tо he in the discretion of the Probate Court.
So ordered.
Notes
This article, so far as relevant, reads, ‘ Third: — All the . . . residue . . . of my property . . . I . . . bequeath to the [t]rustee ... in trust, . . . Viz: — To . . . pay the [net] income ... to my daughters as long as they may live, share and share alike. In ease of the death of any daughter leaving issue, then such daughters share in the income is to be paid to such of her issue as the said daughter shall, by will appoint and in default of such ap *632 pointment then ... to be divided equally among the issue of such daughter, but if any of my daughters shall die without issue, the share in the income of such deceased daughter or daughters is to be divided among her surviving sisters and upon the death of all my said daughters, in trust to divide the principal of said [t]rust fund among the issue of my said daughters per stirpes . . ., if all my daughters should die leaving no issue surviving them, then the principal of said [t]rust fund is to be paid by my said trustee, as follows: — [then follow two contingent pecuniary gifts to friends, which did not take effect, and a $10,000 gift to a charity]. Any remainder of said [t]rust fund not distributed in the manner aforesaid, shall go to my heirs at law. In any ease where the income of the [t]rust fund shall be payable under this [w]ill to a married woman, the same shall be paid to her sole and separate use and upon hеr sole receipt and free from the control of her husband and not in compliance with any assignment or anticipation. I . . . authorize the trustee ... in his uncontrolled discretion ... upon the request of any child or grandchild of mine to advance to said child or grandchild a portion of the principal of said trust fund, but no advancement to such child or grandchild shall exceed one half of the value of the then expectant or presumptive or vested share of such child or grandchild. If any of my daughters after receiving such advance shall die without leaving issue her surviving, such advance shall not be held to be a charge against the estate of such daughter. ’ ’
The use, probably fortuitous, of the words “to divide,’’ “to be paid,” and “shall go” in the various contingent remainder gifts seems to us of no help in determining that the testatrix intended that her “heirs at law” were to be determined at her surviving daughter’s death. Also, in the absence of proof that the will was drawn by a Massachusetts lawyer, not likely to be familiar with the Demill rule, the Massachusetts aspects of the trust hardly provide indication that the testatrix intended the words “heirs at law” to have their usual Massachusetts meaning.
It seems unimportant that the contingent remainder would take effect only upon the complete failure of the testatrix’s own issue and after the death of all of her daughters, each of whom had a life estate in the trust property. The Maryland eases do not appear to have given much consideration to the factors discussed in Restatement: Property, § 308, comment k, Powell, Real Property, § 375, pp. 225-233, Am. Law of Property, § 22.60, and annotation 30 A. L. R. 2d 393, 429 et seq. See
Weller
v.
Kolb,