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 http://www.archive.org/details/cu31924018802300 
 
CONCISE TREATISE 
 
 CONSTRUCTION OF WILLS. 
 
 BY 
 
 FRANCIS VAUaHAN HAWKINS, M.A., 
 
 OP LINCOLM'S INN, BABRISTEK-AT-LAW, FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 
 
 WITH 
 
 NOTES AND REFERENCES TO AMERICAN DECISIONS, 
 By JOHN SWORD, 
 
 OF TEi: PHIIiASBIiPHIA BAB. 
 
 PHILADELPHIA: 
 T. & J. W. JOHNSON & CO. 
 
 LAW BOOKSELLSBS AND FUBLI3EEBS, 
 
 No. 535 Chestnut Street. 
 187 2. 
 
i£E 
 
 &U-o\\^,^.^ 
 
 Entered according to Act of Congress, in the year 1872, by 
 
 T. & J. W. JOHNSON & CO., 
 
 in the Office of the Librarian of Congress, at Washington, D. C. 
 
 HENRY B, ASHMEAD, PBIXTER, 
 1102 & 1104 Sansom Street. 
 
ADVERTISEMENT TO THE AMERICAN EDITION, 
 
 In the present edition of Mr. Hawkins's treatise, an effort has 
 been made to show what is the law on the topics treated of in the, 
 text in the various states of this country, §o far as the same has 
 been determined by decided cases or by statutes. — Where the Eng- 
 lish rules laid down in the text have been adopted by the courts of 
 this country, the editor has simply referred to cases, deeming it 
 useless to add to the concise, yet in every respect sufficient state- 
 ment, of them given by his author. Where the American cases 
 differ from the English, he has stated briefly the character of the 
 difference. Speculations as to the correctness of the doctrines 
 advanced by the American courts, or as to the probable effect of 
 particular decisions upon the general rules of law, have been care- 
 fully avoided. The decision is simply stated as it is found, and 
 the reader is left to draw his own inferences. 
 
 The editor takes great pleasure in acknowledging his indebted- 
 ness to Mr. James S. Kowe, of Bangor, Me. ; Messrs. Fletcher 
 and Heywakd, of Lancaster, K H. ; Mr. Danl. Egberts, of Bur- 
 lington, Vt. ; The Honorable C. C. Conant, of Greenfield, Mass. ; 
 Messrs. Waldo, Hubbard and Hyde, of Hartford, Conn. ; the 
 Honorable D. M. Bates, of Wilmington, Del.; Mr. George 
 H. Bates, of Wilmington, Del. ; Mr. Henry Kyd Douglas, of 
 Hagerstown, Md. ; Messrs. Scarburgh and Duffield, of Nor- 
 folk, Va. ; Mr. S. F. Phillips, of Kaleigh, N. 0. ; Mr. J. S. G. 
 Richardson, of Sumter, S. C. ; the Honorable W. M. Reese, of 
 
iv ADVERTISEMENT TO THE AMERICAN EDITION. 
 
 Washington, Ga. ; Mr. T. A. Hamilton, of Mobile, Ala. ; Mr. J. 
 Z. George, of Carrollton, Miss. ; the Honorable George Hoad- 
 LET, of Cincinnati, Ohio; Mr. W. C. P. Breckinridge and Mr. 
 B. F. BuoKNER, of Lexington, Ky. ; the Honorable T. M. 
 CooLET, of Ann Arbor, Mich. ; Mr. F. S. Lovbll, of Kenosha, 
 Wis., and Mr. N. W. Cox, of Little Rock, Ark. 
 
 To these gentlemen the editor is indebted for a large part of 
 his information concerning the American statutes upon the 
 subject of his labors, and also for some useful references to decis- 
 ions of the courts of their own states. He is also indebted to 
 Mr. P. Frazer Smith, for the privilege of consultihg the proof- 
 sheets of his forthcoming volume of Pennsylvania Reports. 
 
 In addition to the citation of American cases, a selection has 
 been made from the English decisions published since the first 
 appearance of this treatise, of cases of interest, either as illus- 
 trating further the propositions of the text, or settling some 
 points ■ffhich were previously considered doubtful. Hoping that 
 in some slight degree at least, his labors have added to the use- 
 fulness of this valuable treatise, the editor submits the present 
 edition to the judgment of the American profession. 
 
 J. S. 
 Philadelphia, August 1, 1872. 
 
PREFACE. 
 
 The object of the present work is to embody, in a definite 
 and intelligible form, that portion of the vast mass of re- 
 ported cases on testamentary construction which really consti- 
 tutes the law of the Courts at the present day, and governs 
 the judicial construction of Wills. This body of law consists 
 of a number of rules, called Kules of Construction, determin- 
 ing the construction which the Courts are bound, in the ab- 
 sence of a sufficiently declared intention to the contrary, to 
 put upon particular words, expressions, and forms of disposi- 
 tion occurring in wills. Kules of Law, which are not rules 
 of construction, are not included in the present treatise. 
 
 A rule of construction may always be- reduced to the fol- 
 lowing form : — Certain words or expressions, which may mean 
 either x or y, shall, primd facie, be taken to mean x. A 
 rule of construction always contains the saving clause, "un- 
 less a contrary intention appear by the will:" though some 
 rules are much stronger than others, and require a greater 
 force of intention in the context to control them. On the 
 other hand a rule of law which is not a rule of construction 
 (as, the rule in Shelley's Case, the rules as to perpetuity, 
 mortmain, lapse, &c.), acts independently of intention, and 
 applies to dispositions of property in whatever form of words 
 expressed. This difference is fundamental, and lies at the 
 root of the subject. 
 
VI PREFACE. 
 
 The existing rules of construction are mainly of two classes: 
 first, the old rules, some of very ancient date, not a few very 
 inconvenient in their operation, and not seldom traceable to 
 a misconception of the cases on which they originally rested; 
 and secondly, the more modern rules, chiefly relating to minor 
 matters and subordinate parts of the testamentary disposition, 
 and in many cases useful and beneficial to the intention. The 
 latest rule, Bullock v. Downes (p. 95), is a good example of 
 this class. It seems now generally recognised that the utility 
 of rules of construction is almost confined to the smaller ques- 
 tions arising on wills ; that their function is to remedy some 
 of the ordinary slips and ambiguities of language, and to sup- 
 ply the omissions of the testator in points of detail not affect- 
 ing the vital parts of the disposition ; and that upon wide 
 and general questions, where the whole frame and language 
 of the will bears on the construction, no general rules can 
 usefully be laid down. 
 
 A certain want of congruity is perhaps unavoidable in a 
 system of construction elaborated by a succession of judges, 
 some inclining rather to the grammatical or literal, others 
 to the logical or inferential, interpretation of testamentary 
 instruments. Every rule of construction settles a disputed 
 or disputable point, on which difi"erent minds would enter- 
 tain diiferent opinions ; and it generally happens that in some 
 parts of the subject the one view has prevailed, and in others 
 the opposite. If a rule is pushed too far, a reaction sets 
 in, and the balance is inconveniently and unduly shifted. 
 
 Eules of Construction are also to be distinguished from 
 Rules of Administration, — such as those which define the order 
 in which devises and bequests are made liable to payment of 
 debts, in the absence of any special intention appearing on 
 
PREFACE. Vll 
 
 the will. The statute called Locke King's Act prescribes a 
 rule of administration only, and not a rule of construction : — 
 a point perhaps not immaterial with reference to recent argu- 
 ments respecting it. So the rule in Ilowe v. Lord Dartmouth 
 is, as explained hy Sir J. Wigram in Hinves v. Hinves, 3 Hare 
 609, only a rule applied in the absence of intention, i. e., a 
 rule of administration: had it been a rule of construction, the 
 extremely slight indications which have been held to exclude 
 its operation would scarcely be compatible with its existence 
 as a rule. 
 
 The elaborate development of the English law of testamen- 
 tary construction is due in great measure to the salutary rule, 
 which excludes parol evidence of the testator's actual inten- 
 tions except in cases of equivocal description ; which has com- 
 pelled interpreters to draw their conclusions exclusively from 
 an accurate study of the document itself. I have elsewhere* 
 endeavored to show that the rule which excludes parol evidence 
 in aid of interpretation is not, as has been contended by high 
 authority, a necessary result of the requirement of a written 
 will : indeed Roman jurisprudence proves the contrary. The 
 anomalous cases of what are called " presumptions " of law are 
 in reality rules of construction derived from the civil law, which 
 having obtained a lodgment in English law, but being disap- 
 proved of, have been allowed to retain their own antidote in the 
 shape of the capability of being rebutted by parol evidence, 
 which (in common, however, with other rules of construction) 
 they possessed in the system from which they were originally 
 derived. 
 
 The present work is intended to embrace all the questions 
 
 * In a paper on " Legal Interpretation," 2 Juridical Society's Papers, 
 p. 298. 
 
VIU PREFACE. 
 
 of testamentary law on which rules of construction exist. Where 
 there is no such rule laid down, the intention is the sole guide: 
 reported cases may assist by supplying suggestions, but they do 
 not govern. It seems to have been thought by some that a rule 
 ought to exist upon every possible point of construction : but 
 the tendency of the courts now is to avoid creating (except in 
 minor matters) any fresh rules, and not to extend the older rules 
 beyond their present limits. If this principle be acted on, the 
 law necessary to he known for purposes of construction may be 
 reduced within moderate dimensions, and the present treatise 
 is designed to show (however imperfectly) the form in which it 
 might be permanently retained. 
 
 It is hardly necessary to say that every point in the book 
 has been independently worked out by the author, and no 
 results have been merely taken from other writers.* There is 
 no subject on which isolated cases and statements of cases are 
 so misleading as in the construction of wills : the law on any 
 particular point is to be gained only by a study of the cases as 
 a whole, and it requires much acquaintance with the subject to 
 determine how fa,r any given case found in the books is or is 
 not an authority beyond its own particular circumstances. It 
 is too much to hope that no errors will be discovered in the 
 following pages: but great pains have been taken that they 
 should represent accurately the present state of the law on each 
 point, and that the best authorities should be referred to. The 
 cases given in the large print are the leading authorities, and, 
 taken together, form the framework and main body of the 
 law. 
 
 * Every writer on this subject, however, must feel under very great 
 obligations to " Jarman on Wills," and to the labors both of its author 
 and its subsequent editors. 
 
PREFACE. IX 
 
 It was originally intended to indicate by asterisks those 
 rules whicli appear to be inconvenient in their results, and 
 to deserve to be repealed : the reader can, if he pleases, do 
 this for himself. Any legislative alteration of the law of 
 construction should proceed by simply declaring that certain 
 reported cases (on which the rule is founded) shall no longer 
 be of authority, and not by adding fresh rules which will 
 require judicial interpretation. With some alterations of 
 this nature, and with the introduction by judicial authority 
 of a few rules on subordinate points (see e. g. p. 253, and 
 Appendix II.), it does not seem but that a reasonable and 
 beneficial system of construction would be attained, and that 
 within a moderate compass. Something will be gained to- 
 wards simplifying and consolidating the law, if it can be 
 brought to a form in which it may be easily known and 
 recollected. 
 
 F. V. H. 
 
 7, Stone Buildings, Lincoln's Inn, 
 March 31, 1863. 
 
CONTENTS 
 
 INTRODUCTION. 
 
 PAGE 
 
 General Principles of Construction 1-7 
 
 On Punctuation, etc 7 
 
 Parol Evidence or Intention 9 
 
 Admissible only in cases of equivocal description .... 9 
 
 Equivocal descriptions, what are 9, 11, 12 
 
 What is not evidence of intention 10 
 
 Admissible only to determine which was intended .... 12 
 
 RULES OF CONSTRUCTION.. 
 CHAPTER I. 
 
 DESCRIPTIONS OF PROPERTY, TO TVIIAT PERIOD REFERABLE. 
 
 I. Old Law 
 
 Bule. Devise of freeholds speaks from date of will .... 14 
 
 Rule. Republished will speaks from date of codicil ... 14 
 
 Exception, Bowes v. Bowes 15 
 
 Codicil does not revive a revoked devise , . . . 16 
 
 Rule. Bequest of leaseholds speaks from date of will . . .17 
 
 Bule. General bequest of personalty speaks from death . . 17 
 
 But not specific bequests .17 
 
 II. New Law. 
 
 Rule. Descriptions of property refer to the death (Wills Act, sect. 24) 18 
 
 Effect of section 2a on powers 19 
 
 But the will may refer to its own date 20 
 
 Effect of specific description 20 
 
xii CONTENTS. 
 
 CHAPTER II. 
 
 DEVISES AND BEQUESTS, WHEN OPERATING IN EXECUTION OF 
 
 POWERS. 
 
 Rule. Clere's Case. Devises and bequests do not, prima facie, 
 
 operate in execution of powers 22 
 
 Unless the property be sufficiently described .... 23 
 
 Legacy of stock not a sufficient description .... 24 
 Rule. Denn v. Roake. Devise of lands, the testator having no lands 
 
 of his own, passes lands subject to a power ... 25 
 
 Applies to leaseholds 25 
 
 The rule unaffected by Wills Act 26 
 
 Will of feme covert, when an execution of a power . . 28 
 Rule, New Law. General devises and bequests operate as an execu- 
 tion of general powers (Wills Act, sec. 27) ... 27 
 
 What are general powers 28 
 
 Legacies whether an execution of general powers ... 29 
 
 CHAPTER III. 
 
 "LANDS,' 
 
 Rule. Devise of " lands," &c., includes copyholds .... 30 
 Rule. Old Law. Kosb v. Bartlett. Devise of "lands," &c., does 
 
 not include leaseholds 30 
 
 Exception : leaseholds mixed with freeholds .... 31 
 Rule. New Law. " Lands," &c., includes leaseholds (Wills Act, 
 
 sect 26) . 32 
 
 " Real estate," whether including leaseholds .... 33 
 Rule. CHtTRCH V. MuNDY. "Lands," &c., includes reversionary in- 
 terests 33 
 
 Although devised to uses of particular estate ... 34 
 Chester v. Chester. Lands " not settled " includes an unsettled 
 
 reversion in settled lands 34 
 
 Rule. Lord Bratbroke v. Inskip. Devise of " my lands," &c., in- 
 cludes trust and mortgage estates 35 
 
 But not if devised in trust for sale 35 
 
 Or for purposes inconsistent w^th the application of trust pro- 
 perty 35 n. 2 
 
 Or subject to charges 36 
 
 Devise to beneficid uses 37 
 
 Devise to successive limitations 37 
 
 Devise to tenants in common 37 
 
 Devise to a numerous and unascertained class . . . 37 n. 3 
 
 General devise does not pass beneficial interest in a mortgage 37 
 
 Rule. Devise of lands, &c., includes lands contracted t!»,be purchased 38 
 
 Lands contracted to be sold 38 
 
CONTENTS. Xiu 
 
 CHAPTER IV. 
 
 KESIDUART BEQUESTS AND DEVISES. 
 
 PAGE 
 
 Ride. Residuary bequest carries lapsed and void legacies . . 40 
 Residue under 27th section of Wills Act carries lapsed apppoint- 
 
 ments ■ . . 41 
 
 Residue does not include a share of residue ■which fails . . 42 
 
 Residue of " residue " 43 
 
 Rule. Contingent residuary bequest carries the intermediate income 43 
 
 Specific bequests do not 44 
 
 Rule. Old Law. Residuary devise does not include lapsed devises 44 
 Whether it includes devises void ab initio .... 44 
 
 Ride. New Law. Residuary devise includes lapsed and void devises 
 
 (Wills Act, sect. 25) 45 
 
 Rule. Residuary gift of real and personal estate carries intermediate 
 
 income of both, Geneev v. Fitzgekald .... 45 
 Residuary devise alone (but see Appendix I.) ... 46 
 
 Rule. Personal estate does not include proceeds of converted real 
 
 estate 46 
 
 Residue does not include lapsed gift of proceeds of land . 47 n. 2 
 Nor lapsed legacies charged on land . . . . 47 n. 2 
 
 When legacies charged on land go to the heir, and when they 
 
 sink into the lands 47 n . 2 
 
 Residue includes reversions and remainders , . , 47 n. 2 
 
 CHATTER V. 
 
 WORDS DESCRIPTIVE OF PROPERTY. 
 
 Rule. " Securities for money" or " mortgages" carries the legal estate 
 
 in fee of mortgaged lands 48 
 
 " Moneys on securities," &c., whether legal estate passes by . 49 
 
 Rule. " Money" does not include money in the funds ... 49 
 
 But includes money at a banker's 50 
 
 Money in a saving fund 50 n. 1 
 
 Whether " moneys" includes moneys due .... 50 
 
 Rule. " Ready money" includes cash at a banker's .... 51 
 Rule. Rogers v. Thomas. Gift of "money" remaining after debts 
 
 paid carries the general residue 51 
 
 Money remaining after payment of funeral expenses . . 52 
 
 After payment of legacies 52 
 
 Rule. " Estate" includes both real and personal estate ... 53 
 
 Although the language of the will applies to personal estate 
 
 only. 0' Toole I'. Browne 54 
 
 Rule. " Effects " does not include real estate. Doe d. Dring . 55 
 
 Rule. " Goods," " chattels," carries the whole personal estate . . 56 
 
 Including chases in action 56 n. 1 
 
 Exceptions : when described as in a certain locality . 56 n. 1 
 When accompanied with directions to sell . 56 n. 1 
 
CONTENTS. 
 
 CHAPTER VI. 
 
 OBJECTS OF GIFT GENERALLY. 
 
 Rule. Bkown v. Higgs. Power of appointment not being exercised, 
 
 implied gift to all the objects of the power equally . . 57 
 
 Although the language of the power is alternative . . 58 
 
 Objects take as tenants in common 59 
 
 Several sets of objects 59 
 
 Partial appointment : no clause of hotchpot .... 61 
 
 Objects when ascertained 61 
 
 Gift to one for life with a power of disposition to relations . 61 
 
 Rule. Garvey v. Hibbekt. Gift to children, &c., as consisting of a 
 
 specified number : mistake in the number corrected . . 62 
 
 Applies to grandchildren, servants, &c 62 
 
 Rule. Thetfokd School Case. Where the whole rents are given to 
 
 charitable objects, the objects take the increased rents . 64 
 
 Cases not within the rule : where the whole rents are not given 65 
 
 General charitable intention : cypres ..... 66 
 
 Where the whole rents are given, but not to charitable objects 67 
 
 CHAPTER VII. 
 
 CHILDEEN, ETC., WHEN ASCERTAINED. 
 
 Rule. Gift to children, &o., means, jsrimaybicie, those in existence at 
 
 testator's death 68 
 
 Or those capable of taking 68 n. 1 
 
 Rule applies to all classes of relationship 68 
 
 Gift to " all and every" the children 68 
 
 AVhether words of futurity exclude the rule . . . .70 
 
 Where no children in existence at testator's death ... 71 
 Rule. Gift of aggregate fund to children, &c., as a class, when not 
 immediate, lets in those coming in esse before the period of 
 
 distribution 71 
 
 Rule applies to powers 72 
 
 But not to gifts of separate legacies 73 
 
 Words of futurity ' 73 
 
 Reversionary interest lets in those born befcre it comes into 
 
 possession . . . . . . . . . .74 
 
 But not a fund part only of which is reversionary ... 75 
 Rule. Gift to children at twenty-one : children born after the eldest 
 
 attains twenty-one excluded. Andrews ». Partington . 75 
 
 Words of futurity do not exclude the rule .... 77 
 
 Gift to children when the youngest attains twenty-one . . 77 
 
 Rules exemplified 78 
 
 Rule. Children en ventre considered as living and born ... 79 
 
CONTENTS. XV 
 
 CHAPTER VIII. 
 
 CHILDEEN, ETC., BEJINITIONS OF. 
 
 PAGE 
 
 Rule. " Children,'' &c., means legitimate children only ... 80 
 
 Exceptions : gift to children of a person dead at the date of will 81 
 
 Gift to children, there being one legitimate child only . . 82 
 
 Gift to illegitimate children as persowcB (^m^« ate ... 83 
 Gift to children including an illegitimate child, with a subsequent 
 
 gift to children simpliciter 84 
 
 Rule. " Children" does not include grandchildren ... 85 
 
 Nor " grandchildren" great grandchildren. .... 85 
 
 Rule. "Nephew, niece," does not_ include great nephews, or great 
 
 nieces ...... 85 
 
 Nor nephews, &c., by marriage , 85 
 
 Rule. " Brothers, sisters," &c., includes the half-blood ... 86 
 
 Rule. " Cousins " confined to first cousins 86 
 
 " First cousins " does include first cousins once removed . . 87 
 "First and second cousins " includes all within the degree of 
 
 second cousin ......... 87 
 
 Rule. " Issue " includes descendants of every degree ... 87 
 
 Issue begotten by A. not confined to children .... 87 
 
 Rule. Sibley v. Peeey. " Parents " restrain " issue " to children of 
 
 the parent 88 
 
 Rule applies to real estate 88 
 
 Rule. " Family " in personal estate means, jsinma ybsae children . 89 
 
 Bequest to A. and his family 90 
 
 Family in relation to real estate 90 
 
 CHAPTER IX. 
 
 DESCRIPTIONS EELATIVE TO SUCCESSION TO PERSONAL ESTATE. 
 
 Four classes of persons taking by succession . . . . 91 
 Rule. Bequest to " A. or his heirs " means the persons taking under 
 
 the Statutes of Distributions 92 
 
 Includes a widow 92 
 
 Direct gift to heirs of A. in America, means persons entitled 
 
 under the Statutes of Distributions 92 n. 1 
 
 Immediate gift to the heirs of A., living persons means those 
 who would be his heirs were he dead . . . . 92 n. 1 
 
 But not where the gift is postponed . . . . 92 n. 1 
 
 Heirs when ascertained 94 
 
 Rule. Bullock v. Downes. Gift to the person entitled under the 
 
 Statutes, is a gift to them in the statutable shares . . 95 
 So to the persons entitled in case of intestacy ... 96 
 
 Whether the rule applies to " relations " and " representatives " 96 
 Rule. " Next of kin " does not mean the statutory next of kin, but 
 
 the nearest in blood 97 
 
99 
 99 
 
 100 
 
 xvi CONTENTS. 
 
 " Next of kin according to the statute" includes those taking 
 
 by representation 
 
 But not a -widow • • ' . n 
 
 Rule. GiTNDRY V. PiNNiGER. " Next of km," &c., means next ot 
 kin at death of the propositus, and not at the period of dis- 
 tribution , • 
 
 Although tenant for life is sole next of kin . . . ' -.(^ 
 
 Rule applies to gifts to the heir 100 
 
 Words of futurity do not exclude the rule . . . • 101 
 Wharton v. Barker. Next of kin ascertained at period of dis- 
 tribution ,.,• . • • 102 
 
 Gift to next of kin of A. who dies in testator's lifetime . . lOJ 
 JZiiZe. Giftto "relations" confined to those within the Statutes of 
 
 Distributions 103 
 
 Applies to real estate /. * j ' 
 
 Power to appoint to relations, if of selection, not confined to 
 
 those within the statute 104 
 
 AUter, if of distribution only 10* 
 
 Whether relations take equally * 104 
 
 Eelations when ascertained 105 
 
 Gift to A. for life with a power to appoint to relations : objects 
 
 ascertained at time of cesser of the power . . . 105 
 
 " near relations " equivalent to relations 106 
 
 " Nearest relations " means the next of kin proper . . 106 
 
 liule. " Representatiyes," legal personalrepresentatives, &c., means 
 
 prima facie executors or administrators .... 107 
 
 AUter, where they take beneficially 108 
 
 Equivalent to " heirs " taking by substitution .... 108 
 Immediate gift to A. or his representatives . _ . . . 109 
 Whether representatives taking beneficially take in the statuta- 
 ble proportions 110 
 
 Rules compared HI 
 
 CHAPTER X,. 
 
 JOINT-TPNANCY, ETC. 
 
 Bule. Gift to several without words of severance creates a joint- 
 tenancy Ill 
 
 Although the interests vest at different times .... Ill 
 Rule abolished by statute in some American states . llln. 1 
 Survivorship in joint-tenancy abolished by statute in some 
 
 American states Ill n. 1 
 
 Rule does not apply if some take vested, others contingent in- 
 terests ,....'.... 112 
 
 Words of severance what are 112 
 
 Hule. Gift to children of A. and of B., the children take per capita 113 
 
 Gift to, children of A. and B 113 
 
 Gift to several for life, with remainder to their children . 114 
 
 Gift to " heirs " of A. and of B 115 n. 1 
 
 Gift to those who would be entitled in case of intestacy, though 
 
 not so named 115 n. 1 
 
CONTENTS. xvii 
 
 Eule. Gift to husband and wife and others ; husband and wife take 
 
 only one share 115 
 
 Exception: gift to A., (husband), araci (wife) . . . 116 
 
 Rule. " Sole " use or benefit means separate use .... 116 
 
 " Own " not separate use 117 
 
 " Proper " equivalent to " own " 117 
 
 " Absolute " not separate use 118 
 
 Gilbert v. Lewis : whether " sole " creates a separate use, if the 
 
 object be a feme sole 118 n. 
 
 CHAPTER XL 
 
 DEVISES AND BEQUESTS WITHOUT WORDS OF LIMITATION. 
 
 Bule. "Occupation" of a house, &c., passes an estate for life. 
 
 Kex v. Eatington 119 
 
 Bule. Devise of " rents and profits " passes the land . . . 120 
 
 " Kents and profits " of an estoie carries the fee . . . 120 
 Rule. Trust to raise money out of "rents and profits " charges the 
 
 corpus of the land 120 
 
 Rule. Gift of the income of personal estate without limit as to time, 
 
 is a gift of the principal 123 
 
 Gift to one for life with remainder over 124 
 
 Rule. Gift of an annuity is, pnmayacie, for life only . . . 125 
 
 Aliter, where the gift is of the produce of a fund . . . 125 
 
 Direction to purchase annuity in the funds, perpetual . . 127 
 
 Gift of annuity to one for life, with remainder over . . . 128 
 
 CHAPTER XII. 
 
 DEVISES WITHOUT WORDS OE LIMITATION. 
 
 Old Law 
 
 Rule. Devise of lands, &c., to A., passes an estate for life only . 130 
 
 Rule.. " Estate" passes the fee although with words of locality or 
 
 occupation 131 
 
 But " estate" must be an operative word .... 132 
 
 "Efi'ects," "moiety," "share," &c. . _ 133 
 
 Rule. A charge on the devisee, or on the interest devised, passes 
 
 the fee : but not a devise subject to a charge . . . 134 
 
 Devise to one, he paying an annuity 136 
 
 Rule. Devise to one, with a gift over on death under age, passes the 
 
 fee 136 
 
 So if the gift over is on death under age without issue . . 137 
 
 Rule. Challenger v. Shephard. Devise of the fee simple to trustees 
 
 in trust for A., A. takes the fee J137 
 
 But it must be made out that the fee is in trustees . . 138 
 
 Freely to be possessed and enjoyed 138 n. 1 
 
 Devise accompanied with power to dispose of fee ... . 138 n.l 
 
 Introductory clause declaring intention to dispose of the fee 138 n. 1 
 
 New Law. 
 
 Rule. Indefinite devise passes the fee (Wills Act, sect. 28) . . 139 
 
 B 
 
xviii CONTENTS. 
 
 CHAPTEE XIII. 
 
 ESTATES OF TRUSTEES. 
 
 Bule. Devise in trust to pay rents to A., gives the legal estate to 
 the trustee, hut not a trust to permit A. to receive them 
 
 Trust to pay to or permit and suffer 
 
 Trust to permit A. to receive the net rents 
 
 Trust to permit A. to receive the rents for her separate use . 
 
 Indefinite term of years in trustees ; Cordall's Case . 
 
 Section 30 of the W ills Act : trustees in no case to take an inde- 
 finite term 
 
 Estates in remainder whether legal or equitable . 
 Sule. Dob D. NiCHOLLS. Trustees to take only sa much of the legal 
 estate as the purposes of the trust require 
 
 Devise of copyholds to A. initrust for B. . . . 
 
 Gift over by way of direct devise .... 
 
 Trusts to preserve contingent remainders 
 
 Recurring trusts. Hakton v. Harton 
 
 Trusts to raise money, &c 
 
 Indefinite term of years. Doe v. Simpson 
 
 Determinable fee in trustees 
 
 Doctrine of determinable fee abolished. Doe v. Davies 
 
 Trust for payment of debts gives the fee 
 
 What amounts to a direction to pay debts 
 
 Trusts for payment of annuities 
 
 Powers of sale or leasing vest the fee in trustees 
 
 Unless restricted to period of active trusts 
 
 Trusts to convey 
 
 Bule. Wills Act, sect. 31. Trustees in all cases to take either an 
 estate pur autre vie, or the legal fee simple 
 
 Sections 30 and 31 compared 
 
 Efifect of section 31 
 
 ACCE 
 
 140 
 141 
 141 
 141 
 142 
 
 142 
 143 
 
 143 
 145 
 145 
 146 
 147 
 148 
 149 
 149 
 150 
 151 
 152 
 153 
 153 
 154 
 155 
 
 156 
 
 156 
 
 156 
 
 Devise to trustees by implication 158 
 
 CHAPTER XIV. 
 
 PRECATORY TRUSTS. 
 
 Eule. Expressions of desire accompanying a bequest are, prima facie, 
 
 obligatory, and create a trust 159 
 
 Eule as stated by Lord Truro 160 
 
 " Recommend," " request," " entreat," " advise " . . .161 
 
 "Confidence," "not doubting," "hoping," &c. ... 162 
 
 Gift to widow, with power for her to appoint .... 162 
 
 Wishes not imperative. Meredith v. Heneage ... 163 
 Gift to A. for her sole use and benefit, in confidence that she 
 
 will dispose thereof, &c 164 
 
 Uncertainty of amount 164 
 
 Trust for maintenance good, though amount uncertain . . 165 
 
 Precatory trust for maintenance 165 
 
CONTENTS. XIX 
 
 PAQE 
 
 Gift to A. to be disposed of for the benefit of herself and chil- 
 dren 166 
 
 Gift of income to he applied for maintenance . . . 166 
 
 Uncertainty of objects 166 
 
 Precatory trust raised, although the object unascertained . 167 
 
 CHAPTER XV- 
 
 HBIES, HEIRS MALE, ETC. 
 
 Bule. Devise of customary lands to the heir ; the common-law heir 
 
 takes . . ._ 168 
 
 Devise to testator's heir 168 
 
 Heir male of the body 169 
 
 Lord Coke's rule : heir male to take by purchase must be very 
 
 heir 169 
 
 Bule. Heir male of the body as purchaser need not be heir general. 
 
 Wills v. Palmer 170 
 
 Lord Coke's rule, hovf far abolished 170 
 
 Heir male of the body must claim through males, although 
 
 taking by purchase 171 
 
 Bule. Heirs male of the body, issue male, &c., mean descendants in 
 
 the male line only ^ 172 
 
 Gift to male descendants 172 
 
 Rule. Heirs male, in a will, as words of limitation, mean heirs male 
 
 of the body. ._ 173 
 
 Whether the rule applies wherever "heir male" occurs . 173 
 
 Hfiir male must claim through males 173 
 
 Bule. Archer's Case. Devise to A. for life, with remainder to the 
 heir male (in the singular), with words of limitation super- 
 added, the heir male of the body takes as purchaser . 174 
 Heirs restrained to mean heirs of the body .... 175 
 Bule. "Heirs lawfully begotten" creates an estate tail . . . 175 
 
 But not a devise to "lawful heirs 175 
 
 Bule. Devise to A. and his heirs, with a gift over on failure of is- 
 sue : A. takes an estate tail ' 175 
 
 But not if the gift over is on failure of issue within a limited 
 
 period 176 
 
 Whether the rule applies to wills since 1837 .... 177 
 Bule. Devise to B. on failure of heirs of A. : if B. is capable of be- 
 ing heir to A., " heirs " is restrained to heirs of the body . 177 
 
 Gift over to several, including an heir 178 
 
 Bule. " Necessary " implication : devise to heir after the death of A. 178 
 
 Eule applies to personal estate 178 
 
 Devise to one of several co-heirs 179 
 
 Distributive construction 179 
 
 ^wZe. Devise to A. or his heirs :" or " read " and " . . . 180 
 
 So a devise to A. or the heirs of his body .... 180 
 
XX CONTENTS. 
 
 CHAPTER XVI. 
 
 ESTATES TAIL, ETC. 
 
 PAOB 
 
 Bule. Estate tail cypres : devise to an unborn person for life, with 
 
 remainder to his children 181 
 
 Rule applies to appointments under powers .... 181 
 
 Rule applies to some only of a class 182 
 
 Pitt v. Jackson. Tenancy in common between the children 
 
 rejected 183 
 
 Rule does not apply to personal estate 183 
 
 Bide. "Heirs of the body" are words of limitation. Jesson v. 
 
 Weight 184 
 
 Rule in Shelley's Case abolished in some American states 184 n. 2 
 
 Words of distribution rejected 185 
 
 Whether superadded words of limitation exclude the rule . 185 
 
 Words of explanation 186 
 
 Executory trusts 187 
 
 Bule. " Heirs of the body " in personal estate, confers the absolute 
 
 interest 188 
 
 JJttZe. " Issue " in devises of real estate is a word of limitation . 189 
 
 Devise to one for life with remainder to his issue . . . 190 
 
 Words of distribution rejected 190 
 
 Roddy v. Fitzgerald 191 
 
 Lees v. Moslet. "Issue" more flexible than "heirs of the 
 
 body" . _ 191 
 
 Bule. Devise to one for life, remainder to his issue and their heirs : 
 
 the issue take by purchase 192 
 
 Montgomery v. Montgomery. Words of distribution alone con- 
 vert " issue " into a word of purchase, if the issue can take 
 
 the fee 193 
 
 Wills since 1837 194 
 
 Words of limitation alone, whether sufficient .... 195 
 
 Words of explanation 196 
 
 Executory trusts . . . .' 196 
 
 Efiect of American statutes abolishing estates tail . . 195 n. 2 
 
 " Issue " in relation to personal estate. Ex parte Wynch . 197 
 
 Bequest to A. and his issue 197 
 
 J?M?e. Wild's Case. Devise of real estate to A. and his children . 198 
 
 Rule does not apply to personal estate 198 
 
 Bequest to A. and his children 199 
 
 Bule. Devise to A. for life or indefinitely, with a gift over on failure 
 
 of issue : A. takes an estate tail 200 
 
 Estate tail in remainder. Parr v. Swindels .... 200 
 
 Bule. Implication of cross-remainders 201 
 
 Express limitation in certain events does not exclude the rule 201 
 
 Cross-remainders for life implied 202 
 
 Cross-limitations in personal estate. Pearce v. Edmeades . 202 
 
 " Surviving " read ''^other " by force of gift over . . . 202 
 
 Aliter where no gift over 203 
 
 Bide. Fairfield v. Morgan : " or " read " and " . ... 203 
 
 Rule does not apply to estates tail 204 
 
 American statutes abolishing estates tail .... 204 n. 3 
 
CONTENTS. XXI 
 
 CHAPTER XVII. 
 
 DEATH WITHOUT ISSUE, ETC. 
 
 Old Jjaw. _ paoe 
 
 Rule. '' Die without issue " imports an indefinite failure of issue . 205 
 
 " Die without having issue " equivalent .... 206 
 
 So "die without children" 206 
 
 Death under given age without issue 206 
 
 Exceptions : absolute gift with a gift over, to take effect on the 
 
 death .....' 207 
 
 Gift over, subject to payments to be made on the death . . 208 
 
 " In default of issue " and on " failure of issue " restricted . 209 
 Hughes v. Sayer : gift over of the share of one dying without 
 
 issue to the survivors 209 
 
 Whether Hughes v. Sayer applies to real estate . . . 210 
 
 Gift over for life only : failure of issue not restricted . . 210 
 
 Failure of issue living certain persons 211 
 
 Gift over on death under age or without issue . . ■ 212 
 
 Target v. Gaunt : Malcolm ». Taylor 212 
 
 Failure of issue restrained to period of distribution . . 213 
 
 Rule. Forth ». Chapman. " Die without leaving issue . . . 213 
 
 "Die without having issue" 214n.2 
 
 " To A., to him in fee if he has issue, but if he die without 
 
 issue" over 214 n. 2 
 
 Death without issue " alive," " surviving " . . . . 214 n. 2 
 Effect of the statutes abolishing estates tail . . . 214 n. 1 
 Without issue who shall attain twenty-one .... 214 n. 2 
 New Law. 
 Rule. " Die without issue," &c., restrained to failure of issue at the 
 
 death. (Wills Act, sect. 29) 214 
 
 Effect of sect. 29 215 
 
 " If A. dies without issue in the lifetime of B." . . 216 n. 1 
 Whether it applies to "in default of issue " and " on failure of 
 
 issue " _ . . . 216 
 
 Rule. Maitland v. Ohale. Gift over on death without leaving 
 
 children ;" leaving " read " having " .... 217 
 
 Applies to real estate 217 
 
 Gift over before shares are "payable," referred to period of 
 
 vesting _ . . " . . 218 
 
 Kule in HowGRAVE v. Cartier : provisions for children, if pos- 
 sible, held not contingent on surviving the parent . . 218 
 Unless the intention is unequivocal 220 
 
 CHAPTER XVIII. 
 
 VESTING. 
 
 Meaning of "to vest" 221 
 
 As applied to remainders in real estate .... 221 
 
 Not opposed to " conditional " 221 
 
 Remainders after estates tail, how vested .... 221 
 
 Fearne's definition 222 
 
 Civil Law rules : " vested" equivalent to " unconditional" and 
 
 transmissible" 222 
 
xxu 
 
 CONTENTS. 
 
 Aliter in English Law 
 
 " Vested" means "not subject to a condition precedent" 
 Peksonal Estate. 
 Rule. Gift " at," " when," " upon," " from and after " a given age, 
 
 prima facie, contingent 
 
 Contrary intention : gift over . . . . _. 
 
 Eule. "Hanson v. Gbaham. Gift and time of payment distinct 
 Gift to children payable at twenty-one , . 
 
 Gift to A. payable on marriage only ' 
 
 Rule. Interim interest vests the principal 
 
 Whether given to or for the benefit of the legatee . 
 
 Gift of interest subject to a charge 
 
 Batsford v. Kebbell 
 
 Discretionary power of maintenance 
 
 Contingent gift of interest 
 
 Saunders v. Vautiee. Immediate severance of legacy 
 
 "Vested" read "indefeasible " _ . 
 
 Bule. Hallipax v. Wilson. Payment postponed for convenience 
 
 of estate : vested gift 
 
 Rule. Leeming v. Sheeratt. Gift to children when the youngest 
 attains twenty-one, excludes those dying under twenty-one 
 Although the income of fund be given .... 
 
 Legacies Charged on Land : 
 Rule. Legacies out of land, prima facie, do not vest before time of 
 
 payment 
 
 Although interest be given .... 
 Payment postponed for convenience of the estate. 
 
 Withers 
 
 Legacies given as portions .... 
 
 Legacies payable out of real and personal estate 
 Proceeds of land directed to be sold 
 Real Estate : 
 
 Rule. Boraston's Case. Devise to A. when he attains a 
 
 with intermediate estate carved out, vested 
 
 Intermediate estate may be given for the benefit of another 
 
 Devise "if" he attains twenty-one, not within the rule . 
 
 Rule. Edwards v. Hammomd. Devise to A. if he attains twenty-one 
 
 with a gift over if he die under twenty-one, vested subject 
 
 to be divested 
 
 So if the gift over be on death under twenty-one without issue 
 Whether the rule applies where the devise is to children who 
 
 shall attain twenty-one 
 
 Devise to A. provided he attain twenty-one . . . . 
 
 King v. 
 
 given age. 
 
 PAGE 
 
 223 
 223 
 
 224 
 '225 
 225 
 226 
 227 
 227 
 228 
 229 
 229 
 229 
 230 
 230 
 231 
 
 232 
 
 233 
 234 
 
 234 
 235 
 
 235 
 236 
 236 
 236 
 
 237 
 239 
 240 
 
 240 
 241 
 
 241 
 
 242 
 
 CHAPTER XIX. 
 
 SUBSTITUTION, SURVIVOESHIP, ETC. 
 
 Substitution in testator's lifetime 
 
 Willing v. Baine. Gift over of the legacy or share of a 
 legatee : substitution takes place in testator's life . 
 And although legatee be dead at date of the will 
 Exception : Bone v. Cook. Substitution in favor of executors 
 does not take place in testator's life, unless the gift be im- 
 mediate 
 
 243 
 
 243 
 245 
 
 245 
 
CONTENTS. XXlll 
 
 P\EE 
 
 What is an immediate gift 247 
 
 Substitution to gifts to a class. Ive v. King . . . 247 
 Gift to one for life, remainder to his children or their issue ; 
 
 the issue of a child predeceasing the testator excluded . 248 
 
 Independent gifts : bequest to children and issue of children 249 
 
 Tytherleigh v. Harbin 250 
 
 Gifts partly substitutional. Christopherson v. Naylor . . 250 
 When all of the class are dead at the date of the will . 251 n. 2 
 
 Forma of gift compared 251 
 
 Gifts to children and issue ; whether the issue must survive the 
 
 stirps 251 
 
 Whether the issue must survive the period of distribution . 253 
 Eule. Gift to A. and " in case of his death" to B. ; gift over restrict- 
 ed to death before period of disla^ibution . . . 254 
 " In case of death " following a life estate only . . . 256 
 Gift over in case of death leaving children. Home v. Pillans 257 
 Doctrine of Edwards v. Edwards . . ... 257 
 Alternative gifts over. Clayton v. Lowe .... 258 
 
 Gift over to the survivors of legatees 259 
 
 Gift over restricted to death before vesting. Bouverie v. Bou- 
 
 verie . . . 260 
 
 Bule. Cripps v. Wolcott. Words of survivorship, prima facie 
 
 referred to period of distribution 261 
 
 Real estate 262 
 
 Survivorship referred to last antecedent .... 263 
 
 To period of vesting 264 
 
 " With benefit of survivorship" 264 
 
 Survivorship indefinite or substitutional 265 
 
 Sule. Browne v. Lord Kenton. Gift to several "or" those living 
 
 at a given period, vests in all, subject to be divested . 265 
 
 Bequest to A. or his issue 267 
 
 Directions to settle children's shares 267 
 
 Bule. Ex PARTE West. Clause of accruer does not, prima facie, 
 
 operate on accrued shares 268 
 
 Unless the subject is kept together as an aggregate fund . 269 
 
 Double clause of accruer. Eyeb v. Marsden .... 270 
 
 CHAPTEE XX. 
 
 CHARGES, LIABILITY TO DEBTS, ETC. 
 
 DOWEE. 
 
 Bule. Old Law. Gift to the widow of part of the land liable to 
 
 dower does not put her to election 272 
 
 Nor of an annuity out of the land 272 
 
 Gift of a definite share in the rents 274 
 
 Bule. New Law. Devise to the widow of any interest in land 
 
 liable to dower excludes her 275 
 
 Bule. Old Law. Every devise is, prima facie, subject to the right 
 
 to dower 275 
 
 Devise in trust for sale does not exclude dower . . . 276 
 
 Nor directions as to proceeds of sale 277 
 
 But a power of leasing excludes dower .... 277 
 
Xxiv CONTENTS. 
 
 PASE 
 
 So powers of management 277 
 
 New Law. Every disposition by will excludes dower . . 278 
 
 Mortgages. 
 
 Bule. Old Law. Devise subject to a mortgage does not imply that 
 
 the devisee should take cum onere 278 
 
 New Law. Locke King's Act 280 
 
 What shows an intention not to devise cum onere . . , 280 
 
 Woolstencroft v. Woolstencroft 280 
 
 End v. Tatam : bequest of personalty subject to payment of 
 
 debts exonerates mortgaged estate, if specifically devised . 28l 
 
 Debts and Legacies. 
 
 Bule. Direction to pay debts charges the real estate . . . 282 
 
 But not direction to executors to pay them .... 282 
 
 Direction to executors to pay, charges lands devised to them . 284 
 
 Whether in trust or beneficially 284 
 
 Effect of charges on devise to executors 284 
 
 Lands devised to one executor only not charged . . . 285 
 Direction to executors to pay legacies, whether charges real 
 
 estate devised to them 286 
 
 Bule. Charge of debts on real estate does not exonerate the per- 
 sonal 287 
 
 Nor a direction to sell the real estate to pay debts . . . 287 
 
 Bootle V. Blundell 288 
 
 Specific bequest of personal estate . . . ... . 288 
 
 Trust to pay a particular debt . . . . . . 289 
 
 Liability to legacies and annuities 289 
 
 Gift of annuity charged on a particular estate . . . 289 
 
 Blended real and personal estate 290 
 
 Bule. Roberts v. Walker. Direction to sell real estate ; liability 
 
 pari passu 290 
 
 But not if the real estate is not converted. Boughton v. 
 
 BOUGHTON 291 
 
 Roberts w. Walker not confined to express charges . . 292 
 Bule. Kidney v. Coussmaker. Proceeds of real estate directed to 
 
 form part of personal estate are liable to all charges . 293 
 Bule. Greville v. Browne. Gift of legacies followed by a gift of 
 residue of real and personal estate charges legacies on the 
 
 real residue 294 
 
 Notwithstanding a prior devise of real estate .... 295 
 Bule. CoNEON V. CoNRON. Charge of legacies on all the real estate 
 
 does not charge specific devises 296 
 
 AUter, where a charge of debts and legacies 297 
 
 CHAPTER XXI. 
 
 LEGACIES. 
 
 Rule. Annuities are legacies, and an annuitant is a legatee . . 298 
 
 Charge of legacies includes annuities 298 
 
 Bule. Chancbt'Si Case. Direction to pay debts and legacies rebuts 
 
 the presumption of satisfaction 299 
 
 Whether a direction to pay debts only 300 
 
 Parol evidence not admissible 300 
 
CONTENTS. XXV 
 
 PAGE 
 
 Rule. Legacy of stock, &c.,^nma/fl!cte, not specific . . . 301 
 
 Gift of stock " in" the 3 per cents 801 
 
 East India bonds and canal shares 301 
 
 Reference to particular stock 302 
 
 Direction to transfer stock, not specific .... 302 
 
 Legacy of money out of stock 303 
 
 Sule. Legacies repeated in separate instrument, prima facie, cumu- 
 lative. HooLET V. Hatton 303 
 
 Legacies repeated in same instrument, prima facie, substitu- 
 tional . . 303 
 
 Legacies by two instruments when substitutional . . 304 
 
 Repetition of a series of legacies 305 
 
 Double legacies with the same motive 305 
 
 Parol evidence 305 
 
 Eule. Leacroft v. Matnard. Added and substituted legacies are 
 
 subject to the same incidents as the original legacy . . 306 
 
 Additional legacy, free of legacy duty 306 
 
 Gift out of particular funds 307 
 
 Defeasible legacy. Crowdbr v. Clowes .... 307 
 
 Gift of a clear yearly sum, free of legacy duty .... 309 
 
 iZjtZe. Legacy to executor is ^rmayaeie, attached to the office . 309 
 
 But not a bequest of the residue 310 
 
 Rule excluded : legacy to "my friend," "cousin," &o. . . 310 
 
 Title of executors to undisposed of residue .... 311 
 
 Side. Elcock v. Mapp. Executors appointed trustees of the residue 
 
 cannot claim beneficially 311 
 
 Parol evidence not admissible 313 
 
 Presumption against title of executor from legacy given to him 313 
 
 Appendix I. Income of contingent residuary devise. Hopkins v. 
 
 Hopkins 315 
 
 II. Bequest to A. and his children 31G 
 
 Wills Act, Construction, &c., clauses: sections 24-33 . . 316 
 
 Statutes of Distributions : 22 & 23 Car. 2., cap. 10, sections 5-7 319 
 
 " " 1 Jac. 2, cap. 17, section 7 . .321 
 
TABLE OF ENGLISH CASES. 
 
 Abbott V. Middleton, 2, 3 
 Abrams ». Winsbup, 136 
 Abrey «. Newman, 113, 115 
 Acherley v. Vernon, 14, 88 
 Ackers v. Phipps, 45, 46 
 Ackland v. Lutley, 142, 149 
 Adams v. Adams, 153 
 Adamson v. Armitage, 116, 117, 124 
 Alcock V. Sparhawk, 286 
 Alexander v. Alexander, 308 
 Allan V. Backhouse, 121 
 Allen V. Allen, 281 
 
 — V. Callow, 304 
 Almack v. Horn, 71 n. 
 Ancaster (Duke of) v. Mayer, 287 
 Andrews v. Emmot, 22 
 
 — V. Partington, 76 
 Anon., Dyer, 303, b ; 201 
 Archer's Case, 173, 174 
 Arkell v. Fletcher, 31 
 Armitage v. Williams, 78 
 Armstrong v. Eldridge, 202 
 Arnold v. Att.-Gen., 66 
 
 — V. Chapman, 47 n. 
 Arrow v. Mellish, 114, 115 
 Arrowsmith's Trusts, Ke, 49 
 Ashley v. Ashley, 202 
 Ashmore's Trusts, 229 n. 
 Ashton V. Ashton, 302 
 Aspinall v. Petvin, 178, 179 
 Aspjnwall v. Duckworth, 69 n. 
 Atherton v. Crowther, 108 
 Atkins V. Hiccocks, 227 
 Atkinson v. Barton, 201, 202 
 Att.-Gen. v. Brazenose College, 65 
 
 — V. Bristol (Mayor of), 65, 66 
 
 — V. Drapers' Company, 67 
 
 — V. JTohnson, 64 
 
 — V. Johnstone, 42 
 
 Att.-Gen. v. Price, 104 
 
 — V. Skinners' Company, 65, 67 
 
 — V. Trinity College, Cambridge, 65 
 
 — V. Wax Chandlers' Co., 67 n. 
 
 — V. Wilkinson, 27 n. 
 
 — V. Windsor (Dean of), 67 n. 
 Atwood V. Alford, 249 n. 
 Audsley v. Horn, 198, 199, 316 
 Avison V. Simpson, 97 
 
 B. 
 
 Baddely v. Leppingwell, 136 
 
 Badger v. Gregory, 203 n. 
 
 Bagley v. Mollard, 84 
 
 Bain V. Lesoher, 69 
 
 Bainbridge v. Ashburton (Lord), 
 
 35,37 
 Baines v. Ottey, 108 
 Baker v. Baker, 123 n. 
 
 — V. Mosley, 162 
 Baldwin v. Kogers, 68, 72 
 Barber, Ex parte, 49 
 Bardswell v. Bardswell, 165 
 Barker v. Barker, 253 
 
 — V. Cocks, 257 
 
 — V. Giles, 265 
 
 — V. Greenwood, 140, 141, 147 
 Barnaby v. Tassell, 251 n. 
 Barnes v. Patch, 53, 89, 113 
 Barnet v. Barnet, 179 
 Barrington v. Tristram, 77 
 Barrs v. Fewkes, 312 n. 
 Bartholomew's Trusts, 226 
 Bastard v. Proby, 188 
 Bateman v. Gray, 77 n. 
 Batsford v. Kebbell, 229 
 Beachcroft v. Beachcroft, 83 
 Beauclerk i). Dormer, 205, 206 
 
 Begley v. Cook, 202 
 
XXVlll 
 
 TABLE OF ENGLISH CASES. 
 
 Belk V. Slack, 266 
 Bench v. Biles, 295 
 Bending v. Bending, 274, 277 
 Bennett's Trusts, Re, 253 
 Bennett v. Marshall, 12 
 ■ Benson v. Whittam, 166 
 Bent V. Cullen, 127 n. 
 Berkeley v. Swinburne, 232 
 Bernal v. Bernal, 172 
 Bernard v. MinshuU, 28, 41, 161, 167 
 Berry v. Berry, 85 
 
 — V. Briant, 264 
 Bescoby v. Pack, 50 
 
 Beverley (Mayor, &c., of) v. Att.- 
 
 Gen., 64, 67 
 Bickham v. Cruttwell, 279 
 Birch V. Sherratt, 123 n. 
 Bird M. Harris, 312 n. 
 
 — V. Luokie, 100 
 Birmingham v. Kirwan, 273, 276 
 Biss V. Smith, 176 
 Blackborn v. Edgley, 200 
 Blacklow V. Laws, 118 
 Blackmore v. Snee, 263 
 Blackwell v. Bull, 90, 180 
 Blagrave v. Blagrave, 144, 145, 150 
 Bland v. Williams, 225 
 
 Blann v. Bell, 123, 124 
 
 Blease v. Burgh, 227 
 
 Blewitt V. Roberts, 125, 128 
 
 Blinston v. Warburton, 207, 208 
 
 Blount V. Hipkins, 288 
 
 Bone V. Cook, 245, 246, 247 
 
 Booth V. Booth, 231 
 
 Bootle V. Blundell, 6, 121, 122, 123, 
 
 287, 288 
 Boraston's Case, 237, 238, 239 
 Borton v. Dunbar, 56 
 Boughton V. Boughton, 291, 292 
 
 — V. James, 183 
 Boulton V. Beard, 218 
 Bouverie v. Bouverie, 260, 264 
 Bowen v. Scowcroft, 256 
 Bowers v. Bowers, 258 n. 
 Bowes V. Bowes, 15 
 Bradley v. Cartwright, 193 n. 
 Bradshaw v. Melling, 88 
 Braithwaite v. Britain, 285 
 Branstrom v. Wilkinson, 231 
 Braybroke (Lord) v. Inskip, 35, 37 
 Bree v. Perfect, 225 
 
 Bridge v. Abbot, 109 
 
 Briggs V. Penny, 159, 160, 162, 167 
 
 Bright V. Larcher, 293, 294 
 
 — V. Rowe, 220, 269 
 Bristow V. Warde, 183 
 Britton v. Twining, 188 
 
 Bromfield v. Crowder, 238, 240 
 Bromley v. Wright, 298 
 Brook V. Brook, 60, 162 
 Brooke v. Turner, 56 n. 
 Brouncker v. Coke, 14 
 Brown, Re, 45 
 
 — V. Bigg, 265 
 
 — V. Higgs, 57, 58, 59, 60, 61, 62 
 
 — V. Pocock, 58 
 
 — V. Whiteway, 148 
 
 — V. Wooler, 235 
 Browne v. Browne, 242 
 
 — V. De Laet, 6 
 
 — V. Hammond, 72 
 
 — V. Kenyon (Lord), 212, 266, 267 
 
 — V. Paull, 166 
 Brownson v. Lawrance, 282 n. 
 Bryan v. Twigg, 202 n. 
 Bubb V. Yelverton, 310 n. 
 Buck V. Nurton, 4 
 
 Buckle V. Fawcett, 88, 262 
 Buffar V. Bradford, 198 
 Bull V. Pritchard, 241, 242 
 Bullock V. Downes, 95, 96, 97, 100, 
 101, 105, 109, 111 
 
 — V. Stones, 44 
 Burdus V. Dixon, 38 
 Burgess v. Burgess, 310 
 Burke v. Annis, 136 
 Burrough v. Philcox, 57, 58, 59 
 Burton v. Powers, 134, 135 
 Butcher v. Kemp, 277 
 
 Butler V. Lowe, 70 
 
 — V. Stratton, 113 
 Butter V. Ommahey, 251 
 Byng V. Byng, 198 n. 
 Byrne v. Blackburn, 166 
 Bythesea v. Bythesea, 217, 220 
 
 C. 
 
 Cable V. Cable, 101 
 
 Calvert v. Sebbon, 310 
 
 Cambridge v. Rous, 40, 41, 254 
 
 Camfield v. Gilbert, 55 
 
 Camoys v. Blundell, 10, 210, 212 
 
 Candy v. Campbell, 205, 206, 210, 212 
 
 Careless v. Careless, 12 
 
 Carter v. Bentall, 196 
 
 — V. Taggart, 43 
 
 Cartwright v. Vawdry, 84 
 
 Carver v. Burgess, 261 
 
 Cary v. Cary, 159 
 
 Casamajor v. Strode, 217 
 
 Casterton v. Sutherland, 59 
 
 Castle V. Fox, 20 n. 
 
TABLE OF ENGLISH CASES. 
 
 XXIX 
 
 Cautely, Re, 49 
 Chadock v. Cowley, 210 
 Challenger v. Shephard, 138, 285 
 Chalmers v. Storil, 274 
 Chamberlayne v. Chamerlayne, 174 
 Chambers v. Taylor, 169, 174 
 Chancey's Case, 299 
 Chandos (Duke of) v. Talbot, 234, 
 
 236 
 Chapman v. Hart, 31, 56 n. 
 
 — V. Eeynolds, 49 n. 
 Chapman's Will, Re, 250 n. 
 Charge v. Goodyer, 87 
 Chatham (Earl of) v. Tothill, 188 
 Chatteris v. Yopng, 309 
 Chester v. Chester, 34 
 
 Child V. Elsworth, 8 
 Cholmondeley v. Cholmondeley, 161 
 Christopherson v. Naylor, 249, 250 
 Church V. Munday, 6, 34 
 Churchill v. Dibben, 24 
 Clapton V. Bulmer, 102 
 Clark V. Henry, 258 n. 
 Clarke v. Hilton, 312 n. 
 Clayton v. Lowe, 213, 258, 259 
 Clere's Case, 22 
 Clergy Society, Re, 12 
 Clifford V. Lewis, 282 
 ■ Cloudesley v. Pelham, 286 
 Clough V. Wynne, 124 
 Cloves V. Audry, 28 
 Cloyne (Bishop of) v. Young, 312 
 Coard v. Holderness, 54 
 Coatea v. Hart, 203 n. 
 Cockerell v. Barber, 310 
 Cockran v. Cockran, 18 
 Cogswell V. Armstrong, 45 
 Cole V. Goble, 206 
 
 — V. Scott, 20 
 
 — V. Sewell, 203 
 
 — V. Willard, 299, 300 
 Cole's Will, Re, 309 n. 
 Collins V. Johnson, 248 
 Collis V. Robins, 288 
 Collison V. Girling, 38 
 Compton V. Bloxham, 8 
 Congreve v. Palmer, 248 
 Conron v. Conroii, 296 
 Cook V. Dawson, 283, 285 
 
 — V. Gerrard, 179 
 Cooke V. Bowen, 72 
 
 Cooper V. Cooper, 233, 234, 258, 259 
 
 — V. Day, 306, 309 
 Coote V. Boyd, 305 
 Coopin V. Fernyhough, 17 
 Corbett's Will, Re, 203 
 Corbyn v. French, 246 
 
 •Cordall's Case, 142 
 
 Corneok v. Wadman, 264 n. 
 
 Cort V. Winder, 251 
 
 Coryton v. Helyar, 6 
 
 Costabadie v. Costabadie, 166 
 
 Cotton V. Cotton, 109 
 
 Coulthurst V. Carter, 249 
 
 Counden v. Clerke, 90 
 
 Cowling V. Cowling, 52 n. 
 
 Cowman v. Harrison, 1 64 
 
 Cradook v. Cowley, 210 
 
 Cranley n. Dixon, 178 
 
 Crause v. Cooper, 253, 254 
 
 Craven, Re, 92 
 
 Crawford's Trusts, Re, 107, 108, 109 
 
 246 
 Crawhall's Trusts, Re, 265, 271 
 Creaton v. Creaton, 152, 285 
 Creed v. Creed, 289 
 Cripps V. Wolcott, 260, 261, 262, 265 
 Crockett v. Crockett, 199 
 Crook V. Hill, 83 n. 
 Crook V. Whitley, 85 
 Crooke v. Brooking, 85 
 
 — V. De Vandes, 111 
 Crowder v. Clowes, 306, 307 
 
 — V. Stone, 203, 269 
 Crozier v. Crozier, 193 
 
 — V. Fisher, 260, 264 
 Cruwys V. Colman, 104, 161 
 Cunningham v. Murray, 199 
 
 D. 
 
 D'Almaine v. Moseley, 54 
 Da Costa v. Keir, 259 
 Daore v. Patrickson, 312 
 Dalton V. Hill, 219 
 Daniell v. Daniell, 63, 262 
 Danvers v. Dewes, 42 
 Davenport v. Hanbury, 87 
 David's Trusts, Re, 23 
 Davidson v. Dallas, 78 
 Davies, Ex parte, 207 
 
 — V. Fisher, 224, 229, 230 
 
 — V. Thorns, 24, 25, 262 
 Davies' Will, Re, 114 
 Davis V. Bennett, 115 n. 
 Dawson JJ. Clarke, 311 
 Day V. Croft, 307 
 
 Dean v. Handley, 258 n. 
 
 De Beauvoir v. De Beauvoir, 92 
 
 Defflis V. Goldsohmidt, 70 
 
 De Garagnol v. Liardet, 203 n. 
 
 Denby, Re, 310 
 
 Denn v, Gaskin, 138 n. 
 
XXX 
 
 TABLE OP ENGLISH CASES. 
 
 Denn v. Hood, 132 
 
 — V. Mellor, 135 
 
 — V. Puckey, 195 
 
 — V. Roake, 25, 26 
 
 — V. Trout, 56 
 Devisme v. Mello, 72 
 
 De Witte v. DeWitte, 68, 199 
 
 Dickin v. Edwards, 289 
 
 Dickson v. Robinson, 274 
 
 Dix V. Reed, 310 
 
 Dixon V. Dixon, 107 
 
 Dobson V. Bowness, 54, n. 
 
 Dodgson's Trusts, Re, 218 n. 
 
 Doe d. Angell v. Angell, 170, 172, 173 
 
 — Atkinson v. Fawcett, 134 
 
 — Brodbelt v. Thomson, 1 
 
 — Burton v. White, 132, 133 
 
 — Cadogan v. Ewart, 153, 237 
 
 — Clarke v. Ludlam, 30 
 
 — Cooper V. Collis, 195 
 
 — Davies v. Davies, 150 
 
 — Ellis V. Ellis, 176 
 
 — Goldin V. Lakeman, 120 
 
 — Georges v. Webb, 201 
 
 — Guest V. Bennett, 49 
 
 — Haw V. Earles, 55 
 
 — Hick V. Dring, 55 
 
 — Hiscooks V. Hiscocks, 9, 11 
 
 — Johnson v. Johnson, 212 
 
 — Kimber v. Cafe, 138 
 
 — King V. Frost, 207, 208 
 
 — Knott V. Lawton, 133 
 
 — Lean v. Lean, 132, 133 
 
 — Leicester v. Biggs, 140, 141 
 
 — Lindsey v. Colyear, 173 
 
 — Noble V. Bolton, 155 
 
 — Norris v. Tucker, 133 
 
 — Player v. Nioholls, 143, 144 
 
 — Reade v. Reade, 36 
 
 — Roake v. Nowell, 240, 241 
 
 — Roylance v. Lightfoot, 36 
 -- Sams V. Garlick, 134 
 
 — Shelly «. Edlin, 155 
 
 — Spearing v. Buckner, 53 
 
 — Stevens v. Snelling, 134, 135 
 
 — Stewart v. Sheffield, 44 
 
 — Thwaites v. Over, 103, 104 
 
 — White V. Simpson, 142 
 
 — Winter v. Perratt, 4, 173 
 
 — Wood V. Wood, 131 
 
 — Woodall V. Woodall, 187 
 
 — Woodoook V. Barthrop, 146 
 
 — Wright V. Cundall, 136 
 Doe V. Allen, 13, 138 n. 
 
 — V. Applin, 190 
 
 — V. Birkhead, 269 
 
 — V. Bolton, 140 
 
 Doe V. Brazier, 179 
 
 — V. Burnsall, 194 
 
 — V. Burville, 201 
 
 — V. Cafe, 144, 154 
 
 — V. Claridge, 152 
 
 — V. Clarke, 79 
 
 — V. Coleman, 137 
 
 — V. Collis, 189 
 
 — V. Dring, 55 
 
 — V. Evans, 54 
 
 — V. Field, 145 
 
 — V. Gallini, 4, 200 
 
 — V. Halley, 200 
 
 — V. Harris, 155 
 
 — V. Hicks, 146 
 
 — V. Hopkinson, 242 
 
 — V. Jessep, 3 
 
 — V. Lainchbury, 56 
 
 — V. Laming, 186 
 
 — V. Lawson, 101 
 
 — V. Lea, 237, 239, 240 
 
 — V. Longlands, 55 
 
 — V. Moore, 238 
 
 — V. Needs, 13 
 
 — V. Perratt, 170 
 
 — V. Phillips, 136 
 
 — V. Prigg, 262 
 
 — V. Richards, 135 
 
 — V. Ruoastle, 191 
 
 — V. Shotter, 152 
 
 — V. Simpson, 149, 153 
 
 — V. Trout, 56 
 
 — V. Wainewright, 203 
 
 — V. Walbank, 154 
 
 — V. Walker, 15, 20 
 
 — V. Webb, 201 
 
 — V. AVebber, 206, 208 
 
 — V. Westlake, 13 
 
 — V. White, 56 
 
 — V. WiUan, 154 
 Dolton V. Hewen, 134 
 Doody V. Iliggins, 92, 93, 94 
 Dorchester (Lord) v. Effingham 
 
 (Earl of), 273 
 Dormay v. Borrodaile, 284 
 Douglas V. Andrews, 269, 270 
 Dover v. Alexander, 83 
 
 — V. Gregory, 284 
 Dowling V. Hudson, 286 
 Down V. AVorrall, 60 
 Dowson V. Gaskoin, 52 
 Doyle V. Att.-Gen., 59, 60 
 Drakeford v. Drakeford, 262 n. 
 Drant v. Vause, 39 
 
 Driver v. Ferrand, 288 
 Duffield V. Duffield, 237, 242 
 Dundas v. Murray, 230 n. 
 
TABLE OF ENOLISH CASES. 
 
 XXXI 
 
 Durour v. Motteux, 44 n., 47 n. 
 Button V. Crowdy, 270 n. 
 
 E. 
 
 Earl's Trusts, Ke, 14 
 Eastman v. Baker, 176, 203 
 Easton v. Watts, 163 n. 
 Easum v. Appleford, 41, 43 
 Eccles V. Birkett, 229 
 Eddies V. Johnson, 62 n. 
 Eddowes, Ke, 60 
 Edmondson's Estate, 232 n. 
 Edmunds v. Eessey, 83 
 
 — V. Low, 299, 300 
 Edwards v. Edwards, 256, 257 
 
 — V. Hammond, 238, 240, 241 
 EUcock V. Mapp, 311, 312, 313 
 Ellicombe v. Gompertz, 215, 216 
 Elliott V. Dayenport, 246 
 
 Ellis V. Lewis, 276, 277 
 Elmesley v. Young, 97, 98 
 Elton V. Eason, 188. 189 
 
 — V. Sheppard, 123, 124 
 Emperor v. Rolfe, 219 
 Emuss V. Smith, 20, 39 n. 
 Eno V. Tatam, 281 
 
 Evans v. Cockeram, 280, 289 
 
 — V. Evans, 259 
 
 — V. Jones, 42, 87 
 
 — V. Scott, 235 
 
 Eyre v. Marsden, 270, 271 
 
 F. 
 
 Fairchild v. Bushell, 88 n. 
 Fairfield v. Morgan, 176, 203, 204, 
 
 206 
 Falkner v. Butler, 43 
 
 — V. Grace, 292, 293 
 Farrer v. Barker, 218, 220 
 Farrington v. Knightly, 313 
 Feakes v. Standley, 208 
 Feltham's Trusts, Re, 11 
 Fenwick v. Potts, 153 
 Festing v. Allen, 242 
 Fetherstone v. Fetherstone, 184 
 Field V. Peckett, 293 
 
 Finch V. Hattersley, 285 
 
 — V. Hollingsworth, 62, 106 
 Finlason v. Tatlock, 247 n. 
 Finney's Estate, Re, 37 n. 
 Fisher v. Brierley, 306, 309 
 Fitzgerald v. Field, 220 
 Fleming v. Brook, 56 n. 
 
 Foley V. Parry, 165 
 Ford V. Ford, 34 
 
 — V. Fowler, 161 
 Fordyce v. Bridges, 60, 61 
 Forrest v. Whiteway, 112 
 Forth V. Chapman, 197, 213, 214 
 Foster v. Cautely, 61 n. 
 
 Fox V. Fox, 165 
 Francis v. Clemow, 295, 296 
 Frank v. Stovin, 195 
 Frankcombe v. Hayward, 28 
 Franklin v. Lay, ,195 
 Eraser v. Byng, 305 
 French v. Caddell, 209, 216 
 
 — V. Davies, 276 
 Frogmorton v. Holyday, 136, 137 
 Fry V. Sherborne (Lord), 219 
 
 G. 
 
 Galland v. Leonard, 259 
 Gamboa's Trusts, Re, 93, 94, 102 
 Gardner v. Harding, 132 
 Garratt v. Cockerel!, 212 
 Garrick v. Camden (Lord), 99 
 Garth V. Meyrick, 303 
 Garvey v. Hibbert, 62, 63 
 Gaskin v. Rogers, 298 n. 
 Gauntlett v. Carter, 9 
 Gee V. Manchester (Mayor of), 213, 
 
 259 
 Genery v. Fitzgerald, 45, 46 
 Gether v. Cupper, 3 
 Gibbs V. Rumsey, 44 n. 
 Gibson, Re, 21 n. 
 Gibson V. Gibson, 276, 277 
 
 — V. Montford, 46 
 Gilbert v. Lewis, 118 n. 
 Gilbertson v. Gilbertson, 288 n. 
 Giles V. Giles, 250 
 
 Gill V. Shelley, 81, 82 
 Gillman v. Daunt, 76 
 Gilmore v. Severn, 76 n. 
 Gimblett v. Purton, 77 n. 
 Gittings V. McDermott, 92 
 Gladding v. Yapp, 313 
 Glanville v. Glanville, 62 n. 
 Glenorchy (Lord) v. Bosville, 196 
 Glover V. Monckton, 149, 212 
 
 — V. Spendlove, 34 
 Godfrey v. Davis, 71 
 Golder V. Crop, 192 
 Goldney v. Crabb, 197 
 Gooch V. Gooch, 71, 78 
 Good V. Good, 175 
 Goodfellow V. Goodfellow, 278 
 
xxxu 
 
 .TABLE OP ENGLISH CASES. 
 
 Goodlad v. Burnett, 18, 21 
 Goodman v. Edwards, 32 
 
 — V. Goodman, 270 
 
 Goodright d. Drewry v. Barron, 
 138 n. 
 
 — V. Dunham, 176, 213 
 
 — V. PuUeyn, 4 
 
 — V. Stocker, 136 
 Goodtitle v. Burtenshaw, 170 
 
 — V. Herring, 187 
 
 — V. Meredith, 14 
 
 — V. Whitby, 237, 238 
 Goodwin v. Finlayson, 269 
 ^_ jjQQ 279 
 
 Gordon v'. Whieldon, 116, 199 
 Gosden v. Dotterill, 52 
 Gosling V. Townshend, 258, 259 
 Goulder v. Camm, 118 
 Gowling V. Thompson, 251 n. 
 Grant v. Lynam, 26, 104 
 Granville v. Beaufort, 313 
 Gratwick's Trusts, Ee, 24 n. 
 Gravenor v. liallam, 47 n. 
 Gray v. Garman, 251, 267 
 Green v. Belcher, 121 
 
 — V. Dunn, 45 
 
 — V. Howard, 103, 104 
 
 — V. Marsden, 164 
 
 — V. Pertwee, 43 
 Greene v. Greene, 288 
 Greenway v. Greenway, 180 
 Greenwood v. Rothwell, 192 
 
 — V. Verdon, 176, 210, 211, 212 
 Greet v. Greet, 231 
 
 Gregory v. Henderson, 141 
 
 — V. Smith, 89 
 Gregson's Trusts, Re, 262 n. 
 Greville v. Browne, 286, 292, 294, 295 
 Grey v. Pearson, 6, 203 n. 
 Grieves v. Rawley, 86 
 
 Grieve v. Grieve, 198 n. 
 Grieveson v. Kirsopp, 57 
 Griffiths V. Hamilton, 313 
 
 — V. Pruen, 310 
 Grimsou v. Downing, 185 
 Grosvenor v. Durston, 51 
 Grove's Trusts, 234 n. 
 Gulley V. Cregoe, 162, 163 
 Gummoe v. Howes, 187 
 
 Gundry v. Pinniger, 3, 94, 99, 100, 
 
 105 
 Gyett V. Williams, 294, 295, 296 
 
 H. 
 
 Haddelsey v. Adams, 147, 262 
 
 Hadwen v. Hadwen, 196 
 Hagger v. Payne, 75 
 Haig V. Swiney, 123, 124 
 Hale V. Pew, 183 
 Hales V. Darell, 300 
 Halfhead v. Shepherd, 62 
 Hall V. Children, 80 n. 
 
 — V. Hill, 273, 277 
 Halifax v. Wilson, 218, 232 
 Ham's Trust, 106 
 
 Hamilton (Mayor of) v. Hudsdon, 53 
 Hammond v. Maule, 228 
 
 — V. Neame, 166 
 Hancox v. Abbey, 279, 289 
 Hannam v. Sims, 245 
 
 Hanson v. Graham, 224, 225, 226, 
 
 228 
 Hardoastle v. Hardcastle, 228 n. 
 Harding v. Glyn, 57, 62, 104 
 Harland v. Trigg, 162, 166 
 Plarries's Trusts, Re, 43 
 Harris v. Davis, 177, 178, 180 
 
 — V. Ingledew, 283 
 
 — V. Lloyd, 44, 71 
 
 — V. Watkins, 284, 286 
 Harrison's Estate, Re, 136 n. 
 Harrison v. Foreman, 212, 267 
 
 — V. Grimwood, 229 
 
 — V. Harrison, 190, 194, 275' 
 Hart's Trusts, Re, 228, 229, 236 
 Hart V. Durand, 82 
 
 — V. Tulk, 6 
 Hartland v. Murrell, 284 
 Hartley v. Hurle, 31, 32 
 
 — V. Tribber. 83 
 
 Harton v. Ha'rton, 141, 147, 148 
 Harvey v. Stracey, 69, 73, 74 
 Havergal v. Harrison, 69 
 Hawkins v. Luscombe, 148 
 Hawthorn v. Shedden, 29 
 Haynes v. Haynes, 309 
 Hayward v. James, 218 
 Heardson v. Williamson, 149 
 Hearn v. Baker, 261 
 Heath v. Weston, 298, 299 
 Hedges v. Harpur, 129 
 Heming v. Clutterbuck, 304 
 Heneage v. Andover (Lord), 122 
 Henvell v. Whitaker, 284, 285, 286 
 Hepburn v. Skirving, 20 
 Hephinstall v. Gott, 47 n. 
 Herbert's Trusts, Re, 81, 83 
 Hervey v. McLaughlin, 255, 267 
 Hill's Trusts, Re, 258 n. 
 Hill V. Chapman, 75 
 
 — V. Potts, 126 
 Hinchcliffe v. AYestwood, 107 
 
TABLE OP ENGLISH CASES. 
 
 XXXlll 
 
 Hobson «. Blackburn, 31 
 Hockley v. Mawbey, 193, 194 
 Hodgson's Trusts, 113 
 Hodson V. Beotive, 43 n. 
 
 — V. Micklethwaite, 265 
 Hogan V. Jackson, 55, 130 
 Hogg V. Cook, 86 n. 
 Holdich V. Holdich, 273. 274 
 Holford V. Wood, 303, 304 
 Holgate V. Jennings, 254 n. 
 Holloway v. Clarkson, 107 
 
 — V. Holloway, 100, 101 
 
 — V. Radcliffe, 108 
 Holt V. Sindry, 83 n. 
 
 Home V. Pillans, 254, 255, 257 
 Hone V. Medcraft, 17 
 Hooley v. Hatton, 303, 305 
 Hooper, Ex parte, 217 
 Hope V. Clifden (Lord), 218, 219 
 Hopewell v. Ackland, 130 
 Hopkins' Trusts, Re, 262 n. 
 Hopkins v. Hopkins, 315 
 Horwood V. West, 164 
 Hosking v. Nicholls, 302 
 Hotchkin v. Humfrey, 220 
 Hotohkiss' Trusts, Ee, 247 n., 250 n. 
 Hotham v. Sutton, 49 
 Hougham v. Sandys^ 22 
 Houston V. Hughes, 145 
 Howard v. Collins, 262 n. 
 Howarth v. Dewell, 162 
 Howgrave v. Cartier, 218, 219 
 Hoy V. Master, 165 
 Hudsons, Re, 236 
 HufFam v. Hubbard, 261 
 Hughes V. Hosking, 15 
 
 — V. Sayer, 203, 209, 210 
 
 — V. Turner, 24, 26 
 Hulme V. Hulme, 268 
 Humberston'j). Humberston, 181 
 Humberstone v. Stanton, 243, 245 
 Humble v. Shore, 42 
 Humfrey v. Humfrey, 253 
 Humphrey v. Humphrey, 124 
 Humphreys v. Howes, 245 
 
 — V. Humphreys, 179 n. 
 Hunloke v. Gell, 24 
 Hunter v. Judd, 227 
 Hurry v. Morgan, 203 n. 
 Hurst V. Beach, 303, 305 
 Hutchinson v. Barron, 20 
 Hutton V. Simpson, 179 
 
 I. 
 
 Incorporated Society v. Richards, 35 
 c 
 
 Inglefield v. Coghlan, 117 
 Ingram v. Suckling, 225 
 Innes v, Mitchell, 127 
 
 — V. Sayer, 23 
 Ion V. Ashton, 290 
 Iredell v. Iredell, 76, 77 
 
 Ive V. King, 245, 247, 248, 249, 252 
 
 J. 
 
 Jackson v. Dover, 219 n. 
 Jacobs V. Jacobs, 92, 94 
 James v. Dean, 17 
 
 — V. Irving, 42 
 
 — V. Smith, 86 
 
 — V. Wynford (Lord), 239 
 Jarman v. Vye, 216 n. 
 Jarvis v. Pond, 250 
 Jeaffreson's Trusts, Re, 189 n. 
 Jefferies v. Michell, 300 
 Jeffreys v. Jeffreys, 302 
 Jennings v. Baily, 124 
 
 Jervoise v. Northumberland (Duke 
 
 of), 187 
 Jesson V. Wright, 4, 184, 185, 187 
 
 192 
 Jewis V. Lawrence, 310 n. 
 Johnson v. Simcox, 204 
 Johnston v. Antrobus, 258, 259 
 
 — V. Rowlands, 163 
 
 Johnstone v. Harrowby (Lord), 304 
 
 306, 307 
 Jones V. Bruce, 290 
 
 — V. Jones, 219 
 
 — V. Mackilwain, 229 
 
 — V. Mitchell, 44 n. 
 
 — V. Newman, 10 
 
 — V. Skinner, 34 
 
 — V. Tucker, 24 
 Jordan v. Adams, 184, 187 
 JoRselyn v. Josselyn, 227 
 Judd V. Judd, 227 
 
 K. 
 
 Kavanagh v. Morland, 190,. 192, 193,. 
 
 194 
 Keeling v. Brown, 282 
 Kendall v. Kendall, 56 
 Kenebel v. Scrafton, 81 
 Kennedy v. Kingston,. 62 
 — V. Sedgwick, 217 
 Kendrick v. Beauclerk (Lord), 151 
 Kenworthy v. Ward, 111, 112 
 Kerr v. Middlesex Hospital, 127^ 
 
 128 
 
XXXIV 
 
 TABLE OP ENGLISH CASES. 
 
 Kevern v. 'Williams, 76 n., 77 
 
 Key V. Key, 5, 216 
 
 Kidney v. Coussmaker, 293, 294 
 
 Killiok, Ex parte, 117 
 
 King V. Cleaveland, 107, 108, 251 
 
 — V. Hake, 219 
 
 — V. Isaacson, 225 
 
 — V. Taylor, 255 
 
 — V. Withers, 235 
 King's Mortgage, Re, 48 
 Kirby v. Potter, 303 
 Kirkraan, Re, 254 
 
 Knight V. Boughton, 159, 163 
 
 — v. Cameron, 227 
 
 — V. Ellis, 197 
 
 — V. Knight, 159, 230, 264 
 
 — V. Robinson, 48, 49 
 
 — V. Selby, 138 
 KnoUys v. Shepherd, 39 
 
 Lake v. Currie, 26 
 Lamphier v. Buck. 249 n., 253 n., 
 254 n. 
 
 — V. Despard, 290 
 Lance v. Aglionby, 289 
 Lane v. Stanhope, 31 
 Langdale (Lady) i). Briggs, 18 
 
 — v. Whitfield, 50 
 Langham v. Sanford, 313 
 Laurance v. Laurance, 273 
 Leacroft v. Maynard, 306, 307 
 Leake v. Robinson, 40, 164, 224, 
 
 229 
 Lechmere v. Lavie, 164 
 Lee's Case, 206 
 Lee V. Lee, 68, 100, 101 
 
 — V. Pain, 12, 62, 63, 69, 300, 304 
 
 — V. Priajilx, 118 
 
 Leeds (Duke of) v. Amherst, 10 
 
 — • V. Munday, 36 
 
 Leeming v. Sherratt, 194, 212, 215, 
 
 232, 233, 271 
 Lees V. Massey, 105 
 
 — V. Mosley, 191, 192, 193 
 Legge V. Asgill, 52 
 Leigh V. Byron, 82 
 
 — V. Leigh, 69 
 Lempriere v. Valpy, 27 
 Lett V. Randall, 126, 127 
 Lewis V. Llewellyn, 26 
 
 — V. Mathews, 37 n., 117 n. 
 Lilford (Lord) v. Powys Keck, 20 
 Lincoln (Lady) v. Pelham, 113 
 Lindsell v. Thacker, 35, 37, 117 
 
 Lingon v. Foley, 121 
 
 Lister v. Bradley, 226, 227, 231 
 
 Little V. Neil, 61 
 
 Littlejohn v. Household, 264 
 
 Livesey v. Harding, 201 
 
 Lloyd V. Jackson, 138 n. 
 
 — V. Lloyd, 43, 233, 234 
 Locke V. Lamb, 224 n. 
 Lockhart v. Hardy, 280 
 Lomax v. Lomax, 290 
 Long V. Blackall, 102 
 
 ■ — • V. Watkinson, 108 
 Longmore v. Broom, 58, 61 
 Loring v. Thomas, 249, 250 
 Loveacres v. Blight, 138 n. 
 Lovell V. Knight, 27 
 Lowe V. Davies, 186 
 
 — V. Thomas, 49, 50 
 Lownds V. Lownds, 23 
 Lucas V. Goldsmid, 90 
 Lugar V. Harman, 113 
 Lyon V. Coward, 253 
 Lywood V. Kimber, 172 
 
 M. 
 
 McDonald n. Bryoe, 265 
 McGregor v. McGregor, 111, 112, 
 
 253 
 Machell v. Weeding, 200 
 Mackinnon v. Peach, 244 
 McLeland v. Shaw, 287 
 Maddison v. Andrew, 61 
 Mainwaring v. Beevor, 78 
 Maitland v. Ghalie, 217 
 Malcolm v. Martin, 202 
 
 — V. Taylor, 212, 213 
 Malim v. Keighley, 159, 160 
 Mandeville v. Lackey, 196 
 Mann v. Copland, 290 
 
 — V. Fuller, 308 
 
 — V. Thompson, 68, 69, 70, 73 
 Manning v. Puroell, 8, 50, 51 
 
 — V. Thesiger, 303 
 Manserg v. Campbell, 129 
 Mansfield v. Dugard, 238, 239 
 Mapp V. Bllcock, 311, 312 
 Margetts v. Barringer, 118 
 Marriott v. Abell, 262 n. 
 Marshall, Ex parte, 36 
 
 — V. Hill, 217 
 
 Martin v. Holgate, 253 n. 
 
 — V. Laverton, 35 n., 37 n. 
 
 — V. Martin, 218 n. 
 Maskell v. Parrington, 297 
 Mason's Will, Be, 50 n. 
 
TABLE OF ENGLISH CASES. 
 
 XXXV 
 
 Mason v. Baker, 114 
 
 — V. Clarke, 199 
 Massey t\ Brown, 117 n. 
 
 — V. Hudson, 209, 210 
 
 — V. Parker, 117 
 Masters v. Masters, 17 
 Mathews v. Gardiner, 175 
 Matthews v. Windross, 136 
 Mattingley's Trusts, 24 n 
 Mattison v. Hart, 3 
 Maugham v. Mason, 46, 47 
 May V. Grave, 51 
 Maynard v. Wright, 88 
 Mayor v. Townsend, 268 
 Mayott w, Mayott, 87 
 Measure v. Gee, 186 
 Mellish V. Vallins, 281 
 
 Mercers' Company v. Attorney-Gen 
 
 eral, 66 
 Meredith v. Farr, 84 
 
 — V. Heneage, 159 n., 163 
 Merrick's Trusts, Re, 254 n. 
 Merry v. Hill, 227 n. 
 Meure v. Meure, 196 
 Miall V. Brain, 278 
 Michell V. Michell, 288 
 Miles V. Miles, 21 n. 
 Miller v. Little, 18 
 
 — V. Travers, 9, 10, 12 
 Mills V, Seward, 185, 186 
 Milsom V. Audry, 203, 270 
 Mocatta v. Lindo, 218 
 Mogg V. Mogg, 71 
 Moggridge v. Thackwell, 66, 305 
 Montague v. Sandwich, 52. n. 
 Montgomery v. Montgomery, 193, 
 
 194, 195, 196 
 Moneypenny v. Bristow, 15 
 
 — V. Bering, 181, 182, 183 
 Moor v. Raisbeck, 85 
 Moore's Settlement, J 12 
 Moore v. Cleghorn, 138 
 
 — V. Moore, 56 n., 281, 282 
 Mora's Trusts, Re, 255, 256, 308 
 Moreley, Re, 36 
 
 Morgan, Ex parte, 36 
 
 — V. Morgan, 230 
 
 Morice v, Durham (Bishop of), 164 
 Morrall v. Sutton, 8 
 Morse v. Morse, 199 
 Mortimer v. Hartley, 204 
 
 — V. West, 84 
 Moss V. Barter, 29 
 Mostyn v. Champneys, 34 
 Mounsey v. Blamire, 92 
 MuUins V. Smith, 303 
 Murkin v. Phillipson, 235 
 
 N. 
 
 Nanfan v. Legh, 175 
 Nannock v. Horton, 24, 299 
 Napier «. Napier, 26 
 Nashi). Coates, 147, 186 
 Neath way v. Reed, 261 
 Newton's Trusts, 92 n. 
 Nicholls V. Butcher, 133 
 
 — V. Hooper, 208 
 Nichols V. Hawkes, 125, 139 
 North V. Martin, 187 
 Nottingham v. Jennings, 177 
 
 0. 
 
 Gates V. Brydon, 131 
 Oddie V. Brown, 230, 231 
 
 — V. AVoodford, 172 
 Ogle V. Knipe, 50 n. 
 Ommaney v. Beaven, 254 
 
 — V. Butcher, 53 
 Oppenheim v. Henry, 8, 72 
 Orford (Lord) v. Churchill, 85 
 Ossulton's (Lord) Case, 173 
 O' Toole V. Browne, 54 
 Overhill's Trusts, Re, 82 
 Owen V. Bryant, 84 
 
 Packham v, Gregory, 232 
 Page V. Leapingwell, 43, 124 
 Palmer v. Graves, 284 
 
 — V. Simmonds, 164 
 Papillon V. Voice, 187 
 Parfit V. Hember, 181 n. 
 Paris V. Miller, 134 
 Parker v. Birks, 206, 207 
 
 — V. Bolton, 162, 196 
 
 — V. Clarke, 193, 195 
 
 — V. Fearnley, 286 
 Parker v. Hodgson,' 235 
 
 — V. Marchant, 50, 51 
 
 — V. Sowerby, 233, 277 
 Parkin v. Knight, 197 
 Parkinson's Trusts, 90, 316 
 Parr v. Swindels, 200 
 Parsons v. Baker, 162 
 Paul V. Compton, 69, 72 
 Pawson V. Pawson, 129 
 Peacock v. Stockford, 113, 114 
 Pearce Edmeades, 202 
 
 — V. Loman, 235, 236 
 
 Pearman v. Pearman, 225 n., 231 n. 
 Pearson v. Cranswiok, 202 
 
XX XVI 
 
 TABLE OF ENGLISH CASES. 
 
 Pells V. Brown, 176, 211 
 Pembrooke v. Friend, 282 
 Penny v. Clarke, 253 
 
 — V. Turner, 58 
 
 Perfect v. Curzon (Lord), 219 
 
 Perkins v. Cooke, 123 n. 
 
 Phillips V. Gutteridge, 123, 153 
 
 Philps V. Evans, 102 
 
 Phipps V. Ackers, 238, 241 
 
 Pierson v. Garnet, 161 
 
 Piggott V. "Waller, 14 
 
 Pinbury v. Elkin, 207, 208 
 
 Pitt V. Jackson, 183 
 
 Plenty v. West, 288 
 
 Poad V. Watson, 150, 151 
 
 Pocock V. Lincoln (Bishop of), 130 
 
 Pomfret v. Perring, 28 
 
 Poole V. Poole, 4, 184, 185 
 
 — V. Terry, 235 
 
 Pope V. Whitcombe, 62, 104, 106 
 Porter's Trusts, Re, 92, 93, 246, 247, 
 
 248 
 Potter's Trusts, Ee, 247 n. 
 Potter V. Baker, 129 
 Potts V. Atherton, 229 
 Poulett V. Poulett, 234 
 Powell's Trusts, 53 
 Powell V. Howells, 201 n. 
 
 — V. Robins, 282 
 Powis V. Burdett, 219 
 Powys V. Mansfield, 16 
 Pratt V. Sladden, 313 
 Preston v. Preston, 286 
 Prevost V. Clarke, 161 
 Price V. Strange, 108 
 Prichard v. Ames, 117 
 
 — V. Prichard, 49 n. 
 Pride v. Fooks, 85, 216 
 Pridie v. Field, 309 
 Prowse V. Abingdon, 235 
 Pruen v. Osborne, 88 
 Pulsford V. Hunter, 229 
 Purse V. SnapliBg, 301 
 
 E. 
 
 Rabbeth v. Squire, 119, 201 
 Rackham v. Siddall, 36, 37, 154 
 Radcliffe v. Buckley, 85 
 Raggett V. Beatty, 206 
 Eaikes v. Ward, 166 
 Randall v. Doe d. Roake, 241 
 
 — V. Tuchin, 132, 133 
 Randfield v. Randfield, 256 
 Ranelagh v. Ranelagh, 210 
 Rawlings v. Jennings, 126 
 Eawlinson v. Wass, 100 
 
 Eawson V. Harrison, 281 
 
 Eay, Ex parte, 116, 117 
 
 Rayner v. Mowbray, 101, 103, 104, 
 
 105 
 Read v. Willis, 180, 199 
 
 — V. Stedman, 312 
 
 Eeed v. Braithwaite, 203 n. 
 
 — V. Devaynes, 309 
 Eeeves v. Baker, 166 
 Eemnant v. Hood, 234, 235, 236 
 Eenvoize v. Cooper, 38, 48 
 Reynolds v. Torin, 274 
 
 Rex V. Eatington (Inhabitants of), 
 119 
 
 — V. Ringstead (Inhabitants of), 
 178, 179 
 
 Rhodes v. Rudge, 287, 288 
 Richardson v. Watson, 10, 12 
 Rickabe v. Garwood, 113 
 Ridges V. Morrison, 303 
 Right V. Creber, 186 
 
 — V. Day, 203, 204 
 Riley v. Garnett, 154, 242 
 Ringrose v. Bramham, 73 
 Roadley v. Dixon, 277 
 Roberts v. Cooke, 41 
 
 — V. Dixwell, 168 
 
 — V. Smith, 274 
 
 — V. Spicer, 117 
 
 — V. Walker, 290, 291, 292 
 Robinson v. Addison, 301 
 
 — V. Hunt, 129 
 
 — V. Robinson, 198 
 
 — V. Smith, 108 
 Roch V. Callen, 305 
 
 Roddy V. Fitzgerald, 4, 189, 190, 
 
 191, 193, 195 
 Roe d. Child v. Wright, 132 
 
 — d. Dobson v. Grew, 198, 195 
 
 — V. Bacon, 133 
 
 — V. Jeffrey, 210 
 
 — V. Scott, 210 
 
 — V. Somerset, 180 
 Eogers v. Thomas, 51, 52 
 
 — V. Towsey, 263 
 Eooke V. Att.-Gen., 97 
 Eoper V. Eoper, 198 n. 
 Eose V. Barlett, 31, 32, 33 
 
 — V. Hill, 131 
 
 Ross V. Bower, 127, 128 
 
 — V. Ross, 89 
 Eoutledge v. Dorril, 183 
 Eowe V. Rowe, 300 
 Russell V. Dickson, 304 
 Rust V. Baker, 249 
 Rycroft v. Christy, 118 
 
 Rye's Settlement, Re, 209, 210, 211 
 
TABLE OF ENGLISH CASES. 
 
 XXXVll 
 
 s. 
 
 Saberton v. Skeels, 107 
 Sale V. Moore, 165 
 Salisbury v. Lambe, 264 
 
 — V. Petty, 255, 267 
 Salt o. Chattaway, 290 
 Saltmarsh v. Barrett, 313 
 Salusbury v. Denton, 59, 60 
 Sanders ». Ashford, 216 
 
 — Kiddell, 309 
 Sanders' Trusts, Re, 266 
 Sanderson ». Bayley, 87 
 Sanford c. Raikea, 7 
 Saumarez v. Saumarez, 54 
 Saunders v. Vaatier, 230, 231 
 Savery v. Dver, 125 
 
 Say V. Creed, 100, 102 
 Schenk v. Agnew, 255 
 
 — V. Legh, 219 
 Scott V. Harwood, 70 
 
 — V. Scarborough (Lord), 70, 73, 74 
 Scurfield v. Howes, 263 
 
 Scale V. Scale, 188 
 Serle v. St. Eloy, 279 
 Seymour's Trusts, Ee, 108 
 Shaftesbury (Earl of) v. Marl- 
 borough (Duke of), 306 
 Shallcross v. Finden, 282, 283 
 Shapland v. Smith, 141 
 Sharpc V. Sharpe, 37 
 Shaw, Ex parte, 37 
 
 — V. Cunliffe, 44 
 Shelford v. Acland, 27 
 Shelley's Case, 147, 148, 185 
 Shelley v. Bryer, 85 
 Sheppard's Trusts, 245 
 Shewell V. Dwarris, 118 
 Shipperdson v. Tower, 299 
 Shore V. Wilson, 1, 2 
 Shum V. Hobbs, 226 
 
 Sibley v. Perry, 88, 298, 301, 302. 
 Silcox V. Bell, 87 
 Simmonds v. Cock, 242 
 Simmons v. Rose, 290, 293 
 
 — V. Rudall, 43 
 
 — V. Vallance, 301 
 Simpson v. Ashworth, 175 
 Singleton v. Gilbert, 75 
 Skrymsher v. Northoote, 42, 43 
 Sladen v. Sladen, 169 
 
 Slaney v. Slaney, 258 n. 
 Slater v. Dangerfield, 192 
 Sleech v. Thorington, 63, 301 
 Small V. Wing, 122 
 Smith V. Camelford (Lord), 183 
 
 — V. Campbell, 106 
 
 Smith V. Horsfall, 88 
 
 — V. Lidiard, 85, 86 
 
 — V. Osborne, 203 
 
 — V. Palmer, 108 
 
 — «. Smith, 138, 152, 249, 281 
 
 — V. Streatfield, 114 • 
 Smither v. Willock, 267 
 Soulle w. Gerard, 203 
 
 South Moltott (Mayor, &c., of)- v. 
 
 Attorney-General, 67 
 Southern v. WoUaston, 229 
 Spence v. Spence, 152, 284 
 Spencer v. Wood, 63 n. 
 Spong V. Spong, 296 
 Spooner's Trusts, 29, 41 
 Sprackling v. Ranier, 70 
 Springett v. Jennings, 45 n. 
 Spurrell v. Spurrell-, 262 
 Stackpoole v. Howell, 309, 310 
 Standen v. Standen, 25 
 Stanley v. Stanley, 239 
 Stapleton v. Cheales, 224, 228 
 Stephens v. Stephens, 45, 242 
 Stevens v. Hale, 178, 179 
 Stevenson v. Abingdon, 86 
 
 — V. Gullan, 115 
 Stewart v. Garnett, 120, 133 
 Stillman v. Weedon, 19, 28 
 Stockdale v. Nicholson, 108 
 Stocks V. Barr6, 51, 52 
 Stoddart v. Nelson, 86 
 Stokes V. Heron, 126, 128 
 
 — V. Solomons, 54 
 Stone V. Parker, 281 
 Stoors V. Benbow, 70 
 Stretch v. Watkins, 126 
 Stringer v. Gardiner, 9 
 
 — V. Phillips, 265 
 StummvoU v. Hales, 114 n. 
 Sturgess «. Pearson, 266 
 Swallow V Binns, 219 
 Swift V. Swift, 32, 33 
 Sykes v. Sykes, 43 n. 
 Symers v. Jobson, 189 
 Symons v, James, 285 
 
 Taaffe v. Conmee, 201 n., 265 n. 
 Tait 1). Northwiok (Lord), 287 
 Target v. Gaunt, 212 
 Tate V. Clarke, 194 
 Taylor v. Frobisher, 232 
 Tench v. Cheese, 291, 292, 293 
 Tennent v. Tennent, 34 
 Terry's Will, Re, 89 
 
XXXVUll 
 
 T^BLE OF ENGLISH CASES. 
 
 Tharp's Estate, Re, 203 n. 
 Thellusson v. Woodford, 4 
 Thetford School Ca^e, 64, 65, 66 
 Thirtle v. Vaughan, 37 
 Thomas v. Britnell, 284 
 
 — V. Jones, 19 
 Thompson v. Clive, 252 
 
 — V. Lawley, 30, 31 
 
 — V. Robinson, 86 
 Thompson's Trusts, Re, 217, 251 
 Thornhill v. Thbrnhill, 248 
 Thorp V. Owen, 165, 166, 168 
 Tidwell V. Ariel, 247 
 
 Tiffin V. Longman, 97, 104, 105 
 Tilburgh v. Barbut, 177 
 Titchfield (Marquis of) v. Horn- 
 castle, 55, 56 
 Tiverton Market Act, Re, 113 
 Toller V. Attwood, 148, 186 
 Toovey v. Bassett, 137, 206 
 Torres v. Franco, 219 
 Torrington (Lord) v. Bowman, 133 
 Tothill *. Pitt, 188 
 Towns V. Wentworth, 7 
 Townsend v. Martin, 302 
 Trafford v. Ashton, 121 
 Trevanion v. Vivian, 43 
 Tribe v. Newland, 264 
 Trower v. Butts, 79 
 Tucker v. Harris, 220 
 Tuckey v. Henderson, 305 n. 
 Tugwell V. Scott, 82 
 Turing v. Turing, 265 
 Turner, Re, 158 
 
 — V. Frampton, 210 
 
 — V. Turner, 33 
 
 — V. Whittaker, 114 
 Tylers. Lake, 117 
 
 Tyrone (Earl of) jj. Waterford (Mar- 
 quis of), 198 
 Tytherleigh v. Harbin, 250 
 
 U. 
 
 Usticke, Re, 203 n. 
 Uthwatt V. Bryant, 133 
 
 Vanderplank v. Kins, 181, 182, 183, 
 
 201,202 
 Varley v. Winn, 244 
 Vaughan v. Headfort (Marquis of), 
 
 19'9 
 Vaux V. Henderson, 93, 94 
 
 Venables v. Morris, 146 
 Vick V. Seuter, 133 
 Viner v. Francis, 68 
 Vize V. Stoney, 227 
 Vorley v. Richardson, 265 
 
 W. 
 
 Wace V. Mallard, 162, 163 
 Wagsta'ff V. Crosby, 265 
 
 — V. Wagstaff, 20 n. 
 Wainman v. Field, 42 
 Waite V. Coombes, 50 
 
 Walker v. Camden (Marquis of), 96, 
 109 
 
 — V. Mackie, 24 
 
 — V. Main, 218, 243, 244, 249 
 
 — V. Mower, 225, 240 
 
 — V. Shore, 74 
 
 — V. Simpson, 219 
 Wall V. Bright, 36 
 Wallace v. Pomfret, 299 
 Walsh V. Wallinger, 62 
 Walter v. Makin, 108 
 Warburton v. Loveland, 3 
 Ward V. Burbury, 155 
 
 — V. Gray, 298, 316 
 Ware v. Rowland, 100 
 
 — V. Watson, 258, 268 
 Warman v. Seaman, 190 
 AVarren v. Davies, 285 
 Warrington v. Warrington, 116 
 Warwick v. Hawkins, 307 
 Wasse V. Heslington, 285 
 Watkins v. Cheek, 235 
 Watson V. Brickwood, 287 
 
 — V. Hayes, 229 
 
 — V. Pearson, 144, 153 
 Webbw. Byng, 21, 198, 199 
 
 — V. Hearing, 177 
 
 — V. Honnor, 22 
 
 — V. Jones, 289 
 
 — V. Wools, 164 
 Webster v. Hale, 301 
 Weedon v. Fell, 264 
 Weeds i'. Bristow, 86 n. 
 Well's Estate, 84 
 
 Wellington v. Wellington, 209, 216 
 West, Ex parte, 268, '269 
 
 — V. Miller, 218 n., 220 n. 
 
 — V. West, 231 n. 
 Westwood V. Southey, 210 
 AVharton v. Barker, 94, 100, 102 
 Whatford v. Moore, 220 
 Wheeler v. Addams, 101 
 
 — V. Howell, 294, 295 
 
TABLE OP ENGLISH CASES. 
 
 XXXIX 
 
 Whitbread v. St. John (Lord), 76, 
 
 77 
 White V. Baker, 260, 263, 267 
 
 — V. Collins, 174 
 
 — V. Coram, 131 
 
 — V. Evans, 312, 313 
 
 — V. Hill, 217 n. 
 
 — V. Parker, 141 
 
 — V. Springett, 101 n. 
 White's Trusts, Re, 59, 61 
 Whitehorn v. Harris, 106 
 AYhittell v. Dudin, 268 
 Whittome v. Lamb, 119 
 Wild's Case, 198, 199 
 Wildes V. Davies, 310 
 Wildman's Trust, Re, 252, 253 
 AVilkinson v. Adam, 6, 80, 83 
 
 — Re, 29 n. 
 
 — V. South, 208 
 Williams v. Clark, 226 
 
 — I). Lewis, 188, 189 
 
 — V. Williams, 166 
 
 AVilling V. Baine, 243, 244, 251, 252, 
 
 255 
 Willis V. Hiscox, 174 
 
 — V. Plaskett, 52 
 Wills V. Palmer, 170 
 
 — V. Sayer, 117 
 Wilmot V. Wilmot, 203 
 Wilson V. Eden, 33 
 
 — a. Halliley, 121, 122 
 
 — V. Madison, 126 
 Winch V. Brutton, 163 
 
 AVithers v. Kennedy, 283 
 Withy V. Mangles, 97, 98 
 Wood V. Draycott, 202 n. 
 Woodcock V. Dorset (Duke of], 219 
 Woodgate v. Unwin, 112 
 Woodhouse v. Herrick, 189, 190 
 
 — V. Meredith, 38 
 Woodhouselee (Lord) v. Dalrymple, 
 
 81 
 Woods V. AVoods, 166 
 AVoolIam v. Kenworthy, 53 
 Woolstencroft v. Woolstencroft, 280, 
 
 282 
 Worlidge v. Churchill, 270 
 AVorts V. Cubitt, 84 
 AVright V. Atkyns, 90, 166 
 
 — V. Home, 44 
 
 — V. Pearson, 186 
 Wrightson v. Calvert, 63, 64 
 
 — i»." Macauley, 170, 17 1 
 AAfykham v. Wykham, 6 
 AVylde. Re, 115, 116 
 ATynch, Ex parte, 158, 197 
 AVyndham v. Wyndham, 44 
 Wynne v. Hawkins, 164 
 
 Y. 
 
 Yeate's Trusts, Re, 218 
 Yeatest). Maddan, 128, 129 
 Yeats V. Yeats, 63 
 Young V. Turner, 217 
 
TABLE OF AMERICAN CASES. 
 
 Abbot V. Essex Co., 210 
 Abbott V. Bradstreet, 100 
 
 — V. Jenkins, 246 
 Adams V. Adams, 114 
 
 — V. Logan, 62 
 
 — V. Spaulding, 68 
 Addison v. Addison, 200, 206 
 Alder v. Beal, 115 
 Alexander v. Alexander, 56 
 
 — V. Walch, 72, 232 
 
 — V. "Worthington, 18 
 Allan V. Van Meter, 1, 47, 237 
 Allen V. Harrison, 14, 18 
 
 — V. Lyons, 9 
 
 — V. Markle, 190 
 ^ V. Mayfield, 232 
 
 — V. Pass, 189 
 
 — V. Trustees, 201 
 
 — V. AVhitaker, 224 
 
 — V. White, 44 
 Allender v. Sussan, 213 
 Allyn V. Mather, 181 
 Amory v. Meredith, 23 
 Anderson v. Felton, 223, 229, 233 
 
 — V. Greble, 120 
 
 — V. Jackson, 210 
 Andrews v. Bishop, 279 
 
 — V. Brumfield, 25, 53 
 Angle V. Brosius, 189 
 Annable v. Patch, 72, 75 
 Arcularius v. Geisenheimer, 147 
 Arnold v. Brown, 205, 214 
 
 — V. Buffum, 203 
 Ash V. Coleman, 256 
 Ashden's Estate, 92 
 Attwell V. Barney, 207 
 Attwood V. Beck, 14 
 Ayer v. Ayer, 141 
 
 B. 
 
 Bacon's Appeal, 144, 155 
 
 Badger v. Harden, 214 
 Badley v. Mosby, 189 
 Bailey v. Boyce, 273, 274 
 
 — V. Patterson, 92 
 
 — V. Wagner, 75 
 Baker v. Bridge, 131 
 Balcolm v. Haynes, 113 
 Ball V. Payne, 185 
 Ballard v. Ballard, 72 
 Ballyntyne v. Turner, 1 3 
 Bangs V. Smith, 23 
 Banks v. Phelan 40 
 Barker v. Woods, 232 
 Barksdale v. Gamage, 210 
 
 — V. Macbeth, 113, 115 
 Barnitz's Appeal, 85 
 Barstow v. Goodwin, 88 
 Barton v. King, 44 
 Baskin's Appeal, 92 
 Bass V. Scott, 140 
 Bassettu. Granger, 115 
 Battle V. Speight, 18 
 
 Bayard v. Atykins, 226, 228, 229 
 Beall V. Holmes, 130, 131, 138 
 Beatty v. Lalor, 49, 50 
 
 — V. Montgomery, 223, 254 
 Beckam v. De Saussure, 172 
 Bedford's Appeal, 206, 210 
 Beekman v. Bonsor, 43 
 
 — V. Hudson, 119 
 Bells V. Gillespie, 210 
 Belt V. Belt, 136 
 Bender v. Fleurie, 184 
 Benson v. Wright, 68, 113 
 Biddle's Estate. 258 
 Biddleu. Hoy t,' 261 
 Billingslea v. Moore, 309 
 Bingham's Appeal, 22 
 Birdsall v. Applegate, 54 
 
 — V. Hewlitt, 234, 235 
 Birney v. Richardson, 210, 258 
 Biscoe V. Biscoe, 211 
 Blackburn v. Hawkins, 226 
 Blacklow V. Laws,. 118 
 Blaokstone v. Blackstone, 302 
 
xlii 
 
 TABLE OF AMERICAN CASES. 
 
 Blagge V. Miles, 26 
 
 Blake v. Stone, 187 
 
 Blease v. Burgh, 327 
 
 Bodman v. Tract Soc, 9 
 
 Boies V. Cuming, 241 
 
 — V. Wilcox, 228 
 
 Bolton V. De Peyster, 27 
 
 Booker v. Booker, 210 
 
 Bool V. Mix, 131 
 
 Boone v. Sinkler, 227 
 
 Bowdwitch V. Andrews, 72 
 
 Bowen v. Johnson, 18 
 
 Bowker v. Bowker, 235 
 
 Bowman's Appeal, 226 
 
 Bowman v. Long, 231, 241 
 
 Boyle V. Parker, 120, 139 
 
 Braddish v. Gibbs, 27 
 
 Braden v. Cannon, 177 
 
 Bradstreet v. Clarke, 131, 138 
 
 Bradsford v. Heyward, 45 
 
 Brainerd v. Cowdry, 302 
 
 Bramble v. Billups, 1 90 
 
 Bramlet v. Bates, 211 
 
 Brammett v. Barber, 206 
 
 Branson v. Hill, 261 
 
 Brant v. Gelston,.186 
 
 Brasher v. Marsh, 180 
 
 Bredlinger's Appeal, 56 
 
 Brent v. Washington, 100, 108, 232, 
 
 247, 253, 254 
 Brewer v. Opie, 203 
 Brewster v. M'Call, 14, 18 
 Bridges v. Wilkins, 199 
 Briggs V. Shaw, 254, 256 
 Brigham v. Shattuok, 47 
 Brightman v. Brightman, 210 
 Brimmer v. Sohier, 5, 18 
 Briscoe v. AVickliife, 240 
 Britton v. Miller, 75 
 Broaddus v. Turner, 208, 210 
 Brokaw v. Peterson, 85, 251 
 Brooke v. Croxton, 203, 269 
 Brown v. Boyd, 34 
 
 — V. Brown, (44 N. H.) 226 
 
 — V. Brown, (16 Barb.) 18 
 
 — V. Brown, (5 Ired.) 275 
 
 — V. Brown, (6 Bush) 113 
 
 — V. Lyon, 186 
 
 — V. Williams, 73 
 Brownwell v. De Wolf, 14 
 Brunson v. Hunter, 159 
 Budd V. State, 211 
 Buist V. Dawes, 190, 192 
 Bull V. Bull, 57, 72 
 
 — V. Church, 273, 274 
 Bullard v. Goffee, 54 
 Bullock V. Bullock, 71 
 
 Bullock V. Seymour, 205 
 Bundy v. Bundy, 177 
 Bunner v. Storm, 113 
 Burnet v. Denniston, 177 
 Burvill V. Sheil, 228 
 Burrough v. Foster, 205, 210 
 Burt V. Ilerron, 159 
 Butler V. Little, 131 
 Butterfield v. Haskins, 71 
 Buxton V. TJxbridge, 186 
 Buzby's Appeal, 100 
 Byrne v. Byrne, 299 
 
 C. 
 
 Caldwell v. Skelton, 259 
 Callis V. Kemp, 214 
 Campbell v. Carsen, 138 
 
 — V. Rawdon, 92, 100 
 Canedy v. Haskins, 174 
 Canfield v. Bostwick, 17 
 Carlton v. Carlton, 189 
 Carpenter v. Heard, 203 
 
 — V. Schermerhorn, 72 
 
 — V. Crain, 57 
 
 — V. Estill, 198 , 
 
 — V. Green, 5, 6 
 Carson v. Carson, 68 
 
 — V. Kennerly, 210 
 Carter v. M'Michael, 186 
 Carver v. Oakley, 69 
 Cassell V. Cooke, 136 
 Chamberlain v. Owings, 134 
 Champion, Ex parte, 21, 38 
 Chaplin v. Turner, 258 
 Charter v. Otis, 131, 138 
 Chase v. Lockerman, 5 
 Cheeves v. Bull, 113 
 Chelton v. Henderson, 189, 192 
 ChcYCs V. Haskell, 44 
 Chew's Appeal, 225 
 
 Chew V, Weems, 204 
 Childers v. Childers, 188 
 Childs V. Russell, 232 
 China v. White, 203 
 Chism V. Williams, 206, 207 
 Choice V. Marshall, 188 
 Chrystie v. Phyfe, 2 
 Church V. Wachter, 294 
 Churchill v. Churchill, 85 
 Clagett V. Worthington, 214 
 Clapp V. Vogleman, 213, 214 
 Clark V. Baker, 203 
 
 — V. Hyman, 54 
 Clarke v. Bogardus, 299 
 
 I — V. Cardis, 92 
 
TABLE OP AMERICAN CASES. 
 
 xliii 
 
 Clason V. Clason, 203 
 Clay V. Clay, 92 
 Clayton v. Clayton, 130, 131 
 Cleveland v. Hallet, 154 
 
 — V. Havens, 198 
 
 — V. Spilman, 131 
 Clifton V. Haig. 211 
 
 Cloud V. Clinkinbeard, 299, 300 
 Cole V. Clayton, 4, 7 
 
 — V. Littlefleld, 159, 166 
 Collier's Will, 22, 231, 232, 237, 239 
 Collin V. Collin, 68 
 
 Collins V. Hoxie, 80, 113 
 Colt V. Hubbard, 224, 229 
 Condict V. Kinjj, 306 
 Conklin v. Conklin, 92 
 Conoway v. Piper, 130 
 Conwell V. Heavilo, 232 
 Cook V. Holmes, 131 
 Coon V. Rice, 186, 189 
 Cooper V. Cannon, 115 
 
 — V. Cooper, 185 
 
 — V. Coursey, 184 
 
 — V. Hepburn, 72 
 
 — V. Townsend, 203 
 Corbitt V. Corbitt, 92 
 Corbyn v. French, 246 
 Cordes v. Palmer, 306 
 Cox V. Buck, 206 
 
 — V. McKinnic, 226 
 Craig V. Craig, 120, 158 
 
 — V. Walthall, 274 
 Craighead v. Given j 43 
 Crane v. Crane, 40 
 Creacraft v. Dille, 274 
 Creveling v. Jones, 303 
 Crim V. Knotts, 72, 114 
 Cromer v. Pinckney, 2, 86 
 Crossby v. Smith, 72 
 Crow V. Crow, 113 
 Cruse V. McKee, 61 
 Cuffee V. Milk, 173 
 
 Curtis V. Longstreth, 184, 185 
 Cashing v. Alwyn, 18 
 
 D. 
 
 Dabney v. Cottrell, 49, 
 Dagget V. Slack, 92 
 Dale V. Dale, 178, 179 
 — V. White, 225, 226 
 Dallam v. Dallam, 203, 
 Dalton V. Savage, 72 
 Danforth v. Talbot, 237 
 Daniel v. Thompson, 205 
 
 50 
 
 206 
 
 Dart V. Dart, 205, 210 
 Dashiell v. Dashiell, 214 
 Davidge v. Chaney, 206 
 Davidson v. Davidson, 206 
 Davies v. Miller, 138 
 Davis V. Abbott, 205 
 
 — V. Cain, 301 
 
 — V. Vincent, 22 
 
 Deaf and Dumb Institute v. Nor- 
 wood, 9 
 Deboe v. Lowen, 177, 203, 210 
 Decamp v. Hall, 111 
 Deering v. Adams, 154, 158 
 De Haas v. Bunn, 176 
 Deihl V. King, 207, 211, 212 
 De Kay v. Irving, 5 
 Den V. Allaire, 138, 210 
 
 — V. Armfield, 177 
 
 — V. Browne, 131 
 
 — V. Humphreys, 138 
 
 — V. Manners, 120 
 
 — V. M'Murtrie, 5 
 
 — V. Shenck, 114 
 
 — V. Small, 205 
 
 — V. Wood, 176 
 
 Dennett v. Dennett, 173, 214 
 Dennis v. Dennis, 17 
 Devane v. Larkins, 232 
 De Veaux v. De Veaux, 76 
 Dewitt V. Yates, 303 
 Dey V. Dey, 294 
 Dickenson v. Jordan, 203 
 Dingley v. Dingley, 72 
 Dodd V. Dodd, 138 
 Dodson V. Ball, 185 
 Doe V. Harter, 134, 138 
 
 — V. Roe, 11 
 
 Doebler's Appeal, 4, 5, 177, 185, 203 
 Dommick v. Sayre, 57, 159 
 Donnell v. Mateer, 188 
 Donovan v. Donovan, 131 
 Dooling V. Hobbs, 203 
 Dorsey v. Dorsey, 254 
 Dougherty v. Dougherty, 45, 199 
 Doughty V. Stillwell, 179 
 Douglass V. Feay, 273 
 Dow V. Dow, 5 
 
 — V. Doyle, 202 
 Downing v. Marshall, 44, 68 
 
 — V. Wherrin, 207, 212 
 Drayton v. Drayton, 261 
 m Tiosfi 14 
 
 Drew V. Wakefield, 34, 40, 44, 103 
 Drury v. Grace, 211 
 Du Bois V. Ray, 217 
 Duncan v. Duncan, 274 
 Dunlap V. Shreve, 68, 85 
 
xliv 
 
 TABLE OF AMERICAN CASES. 
 
 Dunn V. Bryan, 112 
 Dupont V. Hutchinson, 113 
 
 E. 
 
 Earl V. Rowe, 120 
 Eaton V. Benton, 299 
 
 — V. Straw, 207, 208 
 Echols V. Jordan, 199 
 Eddings v. Long, 92 
 Edelen v. Dent, 299 
 Edmunson v. Dyson, 188 
 Edwards v. Bibb, 213 
 
 — V. Bishop, 131 
 Eichelberger «. Barnitz, 176, 205, 
 
 211, 213 
 Elcan V. School, 40 
 Elliott V. Davenport, 246 
 Ellis V. Ellis, 159 
 Elton V. Eason, 189 
 Emerson v. Cutler 72, 111, 226 
 Ennis v. Pentz, 106 
 Erickson v. Willard, 159, 163 
 Esclieatoru. Smith, 141 
 Evans v. Brittain, 112 
 
 — V. Godbold, 4, 92, 101, 261 
 
 — V. Harllee, 92 
 Everett v. Mount, 228, 232 
 Everitt v. Everitt, 269 
 Bwing V. Standerfer, 189 
 
 F. 
 
 Fairchild v. Crane, 210, 211 
 Falls V. M'Cullough, 232 
 Faribault v. Taylor, 199 
 Farmer v. Kimball, 113 
 Fay V. Fay. 139 
 
 — V. Taft, 158 
 
 Feit V. Vanatta, 72, 85 
 Felton V. Sawyer, 231 
 Fenby v. Johnson, 202 
 Fennell v. Ford, 203 
 Ferguson v. Hedges, 44 
 
 — V. Mason, 80 
 
 — V. Stewart, 92 
 
 — V. Zepp, 133 
 Ferris v. Gibson, 213 
 Fetch V. Peckham, 299 
 Fetrow's Estate, 5 
 Findlay v. King, 5 
 Firth V. Denny, 40 
 Fisher v. Skillman, 113, 115 
 Fisk V. Keene, 176 
 Fissel's Appeal, 115 
 
 Flinn v. Davis, 213, 214 
 Flournoy v. Flournoy, 180 
 Floyd V. Thompson, 188 
 Fogg V. Clark, 133, 138 
 Folk V. Whitley, 186 
 Ford V. Gooding, 299, 300 
 
 — V. Ford, 43 
 
 Forman v. Troup, 210, 214 
 Forsaith v. Clark, 131 
 Fosdick V. Fosdick, 78 
 Foster v. Stewart, 133 
 
 — V. Wick, 242 
 Freedley's Appeal, 163 
 Freeman v. Flood, 117 
 
 — V. Knight, 92 
 French v. Mcllhenny, 131 
 Fulkeron v. Chitty, 49, 52 
 Fuller V. Fuller, 232 
 
 — V. Winthrop, 229, 236 
 
 — V. Yates, 274 
 Fulton V. Fulton, 254 
 Furlow V. Merrill, 199 
 Furness v. Fox, 226, 227 
 
 G. 
 
 Gable v. Daub, 18 
 Gallagher's Appeal, 294, 296 
 Gardner v. Gardner, 134 
 
 — V. Heyer, 84 
 Garnet v. Cowles, 40 
 Garrett v. Garrett, 17 
 Garrison v. Garrison, 20 
 Gass V. Ross, 9 
 
 Gast V. Baer, 205 
 Gaw V. Huffman, 282 
 George v. Green, 14 
 
 — V. Morgan, 186 
 German v. German, 56 
 Gestu. Way, 113 
 Gibbon v. Gibbon, 18 
 Gibbons v. Fairlamb, 93 
 Gibson v. Gibson, 214 
 
 — V. Horton, 134 
 
 — V. McNeely, 181 
 
 — V. Walker, 259 
 Gilbert v. Chapin, 159, 164 
 Giles V. Franks, 224 
 Gilliam v. Brown, 299 
 
 — V. Underwood, 115 
 Gilpin V. Hollingsworth, 112 
 Girard v. City, 14 
 
 Gist V. Robinet, 38 
 Glenn v. Spry, 134 
 Glover v. Harris, 47 
 
TABLE OF AMEEICAN CASES. 
 
 xlv 
 
 Godard v. Wagner, 40 
 Goddard v. Pomeroy. 294 
 Goodall V. McLean, 243 
 Gore V. Stevens, 44 
 Goss V. Eberhart, 199 
 Gould V. Winthrop, 279 
 Grandy v. Sawyer, 4, 115 
 Grasser v. Bckart, 312 
 Gray v. Gray, 210 
 
 — V. Winkler, 136 
 Green's Appeal, 85 
 Green v. Dikeman, 14 
 
 — V. Pertwee, 43 
 Greene v. Dennis, 44 
 Gregg V. Bethea, 226" 
 Gridley v. Andrews, 294 
 Griswold i-. Greer, 205, 207, 213 
 Grooe V. Rittenbury, 79 
 Gross's Estate, 68 
 
 Guernsey v. Guernsey, 203 
 Guthrie v. Guthrie, 131 
 Guyther v. Taylor, 226 
 
 H. 
 
 Hackney v. Griffin, 92 
 Hadleman v. Hadleman, 198 
 Hall'?;. Chaffee, 205, 207 
 
 — V. Dickinson, 131 
 
 — v. Hancock, 79 
 
 — V. Priest, 205, 206, 210 
 
 — V. Vandegrift, 175 
 Hallowell v. Phipps, 85, 134 
 Hamilton v. Boyles, 254 
 
 — V. Buckwalter, 274 
 
 — V. Wentworth, 184 
 Hamletts v. Hamletts, 72 
 Hampton v. Rather, 184 
 Hancock v. Titus, 232 
 Handberry v. Doolittle, 72, 78 
 Hanna's Appeal, 287 
 Hanson v. Brawner, 228 
 Harden v. Hays, 134 
 Harlason v. Rodd, 60 
 Harper v. Blean, 47, 54 
 
 — V. Phelps, 166 
 Harrell v. Haskins, 47 
 Harris v. Alderson, 72, 232 
 
 — V. Berry, 203 
 
 — V. Fly, 235 
 
 — V. Philpot, 115 
 
 — V. Slaght, 131 
 
 — V. Smith, 205, 207 
 Harrison v. Harrison, 159 
 
 — V. Ward, 97 
 Hart V. Marks, 42 
 
 Hart W.White, 131 
 Hassanclever v. Tucker, 296 
 Hastings v. Earp, 56, 178 
 Hatch V. Hatch, 14 
 Hathaway v. Leary, 226 
 Hauer u.'Shitz (2 iBin.), 203 
 
 — V. Shitz (3 Yeates), 208 
 Haven v. Foster, 14, 15 
 Hawkins v. Everett, 76 
 Hawley v. Northampton, 176, 213 
 Hawn V. Banks, 247 
 
 Hayden v. Stoughton, 34, 47 
 Hays V. Jackson, 294 
 Hayward v. Howe, 200 
 Heard v. Horton, 92 
 Heater v. Van Auken, 72, 80 
 Heath v. Knapp, 35, 37 
 Heck V. Clippenger, 89 
 Heisse v. Markland, 76, 77 
 Helfenstine v. Garrard, 140 
 Helmer v. Shoemaker, 138 
 Helms V. Franciscus, 40 
 Hempstead v. Dickson, 261 
 Henderson v. Henderson, 92 
 
 — V. Ryan, 18 
 
 — V. Womack, 115 
 Henry v. Means, 198 
 Herbemont «. Thomas, 111 
 Herr's Estate, 248 
 
 Hey ward v. Hey ward, 1, 247 
 Hewes v. Dehon, 279 
 Hickey v. Hickey, 274 
 Higginbotham v. Cornwell, 273 
 Hill V. Bank, 261 
 
 — V. Burrow, 177 
 
 — V. Hill (4 Barb.), 208 
 
 — V. Hill (5 Gill & Johns.), 256 
 Hilliard v. Kearney, 258 
 Hilliary v. Hilliary, 198 
 Hitchcock V. Hitchcock, 5 
 Hoes V. Van Hoesen, 290 
 Hoey V. Kenny, 61 
 
 Hoff's Appeal, 279 
 Hogan V. Hogan, 56 
 Holcombe v. Lake (1 Dutch.) 203, 204 
 Holcomb V. Lake (4 Zabr.), 261, 262 
 Hollet V. Pope, 205 
 Holmes v. Williams, 130 
 Holt V. Hogan, 47, 60 
 Homer v. Shelton, 5 
 Horde v. McRoberts, 47 
 Home V. Lyeth, 184, 188 
 Horner v. MoGaughey, 299 
 Hone V. Van Schaick (3 Barb. Oh.), 
 79 
 
 — V. Van Schaick (3 Comst.), 1, 85 
 Houghton V. Kendall, 85, 92 
 
xlvi 
 
 TABLE OP AMERICAN CASES. 
 
 Howard v. Peace Society, 9 
 Howell V. Green, 232 
 Howland v. Howland, 71, 73 
 
 — V. Theological Seminary, 47 
 Hoxton V. Archer, 176, 210, 269 
 Hubbard v. Lloyd, 76 
 Huckabee v. Andrews, 117 
 Hudson V. Pierce, 42 
 
 — V. Wadsworth, 200, 205 
 Hughes V. Allen, 40, 41 
 
 — V. Hughes, 85, 225, 241, 255, 261 
 Hungerford v. Anderson, 130, 201 
 Hunt u. Hunt (11 Mete), 203 
 
 — V. Hunt (4 Gray), 53 
 Hunter's Estate, 56 
 Hutchinson's Appeal, 269 
 
 I. 
 
 Ide V. Ide, 207, 211 
 Ingram v. Fraley, 159 
 
 — V. Girard, 68 
 
 — W.Smith, 92, 114, 116 
 
 J. 
 
 Jack V. Schocnberger, 14 
 Jackson i\ Billinger, 205 
 
 — V. Blansham, 203 
 
 — V. Chew, 210 
 
 — V, Coggin, 198 
 
 — V. Dashiel, 210 
 
 — V. Delancy, 35 
 
 — V. Harris, 138 
 
 — V. House], 53, 133 
 
 — V. Luquere, 1,114 
 
 — V. Merrill, 131 
 
 — V. Roberts, 69 
 
 — V. Wells, 47 
 James v. James, 47 
 Jamison v. Brady, 117 
 
 — V. Hay, 68 
 Jenkins v. Hall, 199 
 Jennings v. Smith, 275 
 Jessup V. Smuck, 258 
 Jiggetts V. Maney, 14 
 Jillson V. Wilcox, 186 
 Johns V. Hedges, 18 
 Johnson v. Baker, 232 
 
 — V. Farrell, 294 
 
 — V. Johnson (1 Munf.), 131 
 
 — V. Johnson [32 Ala.), 118 
 
 — V. Johnstone, 108 
 
 — V. Morton, 131, 261 
 
 — V. Stanton, 22, 47 
 
 Jones' Appeal, 5 
 
 Jones V. Bramlett, 130, 238 
 
 — V. Creveling, 303 
 
 — V. Jones (2 Beas.), 198 
 
 — V. Jones (20 Ga.), 189, 207, 211 
 
 — V. Neuman, 10 
 
 — V. Shoemaker, 14 
 
 — V. Sothoron, 206 
 
 — V. latum, 140 
 
 K. 
 
 Kane v. Astor, 5 
 Karker's Appeal, 254, 258 
 Kean v. Roe, 115 
 Keating v. Smith, 140 
 Kelley v. Stinson, 178, 273 
 Kendig v. Smith, 203 
 Kennedy v. Kennedy, 184 
 Kerr v. Bosler, 44 
 
 — V. Vernor, 202 
 Kersh v. Yongue, 266 
 Killam v. Allen, 154 
 
 Kimball v. Crocker, 225, 226, 231 
 King V. Beck (12 Ohio), 184, 188 
 
 — V. Beck (15 Ohio), 184 
 
 — V. Cole, 134, 136 
 
 — V. King, 232 
 Kinsey v. Lardner, 237 
 Kingsland v. Rapelye, 170, 189, 192 
 Kip V. Van Cortland, 44 
 
 Kirk V. Ferguson, 205 
 Kirkpairick v. Rogers, 42, 80 
 Knight V. Knight, 92 
 
 Lachland v. Downing, 115, 198 
 Lambert w. Paine, 132 
 Lamport v. Beeman, 279 
 Langley v, Heald, 211 
 Lanning v. Cole, 14 
 Lapsley v. Lapsley, 203, 210 
 Larocque v. Clark, 232 
 Laurens v. Read, 294 
 Lawrence v. Hibbard, 245, 249 
 Lea V. Brown, 42, 44 
 Lee V. Lee, 115 
 Leggett V. Perkins, 140 
 Leland v. Adams (12 Allen), 115 
 — V. Adams (9 Gray), 131, 133 
 Lemonnier v. Godfroid, 228 
 Lesly V. Collier, 209 
 Letchworth's Appeal, 100 
 Lewis' Appeal, 203 
 
TABLE OF AMERICAN CASES. 
 
 xlvii 
 
 Lewis V. Darling, 294 
 
 — V. Fisher, 85 
 
 — V. Lusk, 40 
 Lilliard v. Reynolds, 189 
 Lillibridge v. Addie, 203, 205 
 
 — V. Ross, 186 
 
 Lines v. Darden, 159, 164 
 Lingan v. Carrol, 44 
 Lippen v. Bldred, 131 
 Lippett V. Hopkins, 137 
 Livingstone v. Newkirk, 38 
 Lookhart w. Lockhart, 115 
 Lombard v. Boyden, 42, 43 
 Long V. Labor, 249, 250 
 Lord V. Lord, 273, 274 
 Loring v. Coolidge, 202 
 
 — V. Loi'ing, 166 
 
 — V. Thorndike, 92 
 Loveren v. Lamprey, 18 
 Loving V. Hunter, 187 
 Lowry v. O'Bryan, 203 
 Lucas V. Lockhart, 159 
 Ludlan's Estate, 302 
 Lummus v. Mitchell, 130, 131 
 Lupton V. Lupton, 294 
 Lyman v. Vanderspiegel, 234 
 Lyon V. Acker, 115 
 
 M. 
 
 McCabe v. Spruil, 92 
 McCall V. MoCall, 10 
 McCay v. Hugus, 34 
 McChesney v. Bruce, 54 
 McClung V. McMillian, 72 
 McCorkle v. Black, 210 
 McCoury v. Leek, 179 
 McCracken's Estate, 279 
 MoCoUough V. Gilmore, 138 
 McElfresh v. Schley, 14 
 McFeely v. Moore, 184 
 McGaughy v. Henry, 57 
 McGill's Appeal, 232, 247 
 McGinnis v. Foster, 232 
 McGraw v. Davenport, 206, 258 
 McGuire v. Evans, 301, 302, 303 
 Mclntyre v. Ramsey, 173 
 McKennon v. McRoberts, 47 
 McKnight V. Read, 79 
 McLemore v. McLemore, 232 
 McLenahan v. McLenahan, 279 
 McLeod V. McDonnel, 273, 274 
 McLoughlin v. McLoughlin, 294 
 McLure v. Younge, 196 
 McNeiledge v. Barclay, 103 
 — V. Galbraith, 103 
 
 McRee v. Means, 134, 159 
 Machen v. Machen, 188 
 Maddox v. State, 113 
 Magruder v. Carroll, 18 
 Malcolm v. Malcolm, 174, 181 
 Malone v. Majors, 113 
 Manchester v. Durfee, 186 
 Manice v. Manice, 218 
 Mann v. Mann, 49 
 Marsh v. Hague, 85 
 
 — V. Marsh, 287 
 Marshall v. Porter, 18 
 
 — V. Rivers, 214 
 Martin v. Gould, 115 
 
 — V. Kirby, 261 
 
 — V. Martin, 158 
 
 — V. Smith, 112 
 Masden's Estate, 269 
 Mason v. Sadler, 166 
 Matthis V. Hammond, 206 
 May's Appeal, 249 
 Mayer v. Wiltberger, 210 
 Mayo V. Carrington, 133 
 Meares v. Meares, 68 
 Mengel's Appeal, 206 
 Merrit v. Ins. Co., 36 
 Merrymans v. Merrymans, 198 
 Mesick v. Nevr, 134, 136 
 Meyer v. Eisler, 237 
 
 Mifflin e. Deal, 210 
 Miles V. Boyden, 68 
 Miller v. Flournoy, 5 
 
 — V. Hart, 198 
 
 — V. Macomb, 213 
 
 — V. Williams, 213 
 Minnig v. Batdorff, 237 
 Minor v. Dabney, 47 
 Minter's Appeal, 115 
 Moffat V. Strong, 206, 210 
 Moody V. Walker, 206, 210 
 Moon V. Stone, 85 
 
 Moore v. Beckwith, 294, 296 
 
 — v. Brooks, 185, 186 
 
 — V. Dimond, 68, 72 
 
 — V. Howe, 213 
 
 — V. Little, 92 
 
 — V. Lyons, 261 
 
 — V. Paul, 197 
 
 — V. Smith, 224 
 Moorehouse v. Cotheal, 213 
 Morgan v. Morgan, 206 
 
 — V. Pope, 125 
 Morrison v. Semple, 131 
 Morse v. Mason, 69 
 Morton v. Perry, 49 
 Mory V. Michael, 22 
 Mowath V. Carrow, 243 
 
xlviii 
 
 TABLE OP AMEKICAN CASES. 
 
 Mulheran v. Gillespie, 299 
 Murphy v. Harvey, 254 
 Myers' Appeal, 197 
 Myers v. Anderson, 186, 196 
 
 — V. Eddy, 294 
 
 — V. Myers, 68 
 
 — V. Pickett, 188 
 
 — V. Williams, 231 
 
 N. 
 
 Napier v. Howard, 71 
 Neal V. Cosden, 203 
 Nebinger v. Upp, 198 
 Negroes v. Plummer, 159 
 Neide v. Neide, 131, 134 
 Nelson v. Blue, 92 
 Newell's Appeal, 9 
 Newkerk v. Newkerk, 134 
 Newkirk v. Hawes, 100 
 Newman v. Miller, 212 
 Newton v. Griffith, 205, 206, 213 
 Nichols V. Denny, 72 
 Nicholson V. Settle, 214 
 Nightingale v. Burrell, 198 
 Niles V. Gray, 133 
 Nimmo v. Stewart, 199 
 Nix V. Kay, 189 
 Nixon V. Robbins, 228, 232 
 Norcun v. D' (Enoch, 47 
 Norris v. Clark, 273 
 — V. Henderson, 53 
 Norton v. Tripp, 205 
 Nowlin V. Winfree, 210 
 Nyce's Estate, 41 
 
 0. 
 
 O'Byrne v. O'Byrne, 235 
 Ogden's Appeal, 140 
 Olmsted v. Harvey, 131 
 O'Neale v. Ward, 34 
 O'Neall V. Boozer, 5 
 Osborn v. Shrieve, 174 
 Osgood V. Lovering, 85 
 Owen V. Owen, 269 
 Owens V. Simpson, 299, 300 
 
 P. 
 
 Packard v. Packard, 131, 136 
 Paddison v. Oldham, 175 
 Palmer v. Armstrong, 287 
 Pardue v. Given, 115, 119 
 
 Parish v. Ferris, 205 
 Parker v. Bogardus, 18 
 
 — V. Parker, 204 
 Parkman v. Bowdoin, 198 
 Parks V, Parks, 5 
 Parsons v. Lyman, 226 
 Patterson v. Ellis, 213 
 
 — V. Hawthorn, 236, 247 
 
 — V. Swallow, 44 
 Pattison v. Thompson, 131 
 Paxson V. Lefferts, 195 
 
 — V. Potts, 296 
 Paul V. Bull, 51 
 Paup V. Sylvester, 49 
 Pearce v. Savage, 154 
 Pemberton v. Parke, 72, 85 
 Penniman v. French, 56 
 Pennock's Estate, 159, 164 
 Peppard v. Deal, 134 
 Pepper's Will, 25 
 Perkin v. Mathes, 2, 9 
 Perry v. Logan, 213 
 Peyton v. Smith, 139 
 Phelps V. Jesson, 111 
 Phillips V. Melson, 47 
 Picot V. Armistead, 202 
 Pike V. Walley, 306, 309 
 Pitney v. Brown, 113 
 Plimpton V. Fuller, 279 
 
 — V. Plimpton, 131 
 Pond V. Bergh, 18, 203 
 Porter v. Ross, 210 
 
 Powell V. Board of Missions, 192 
 
 — V. Brandon, 184 
 
 — V. Glenn, 187 
 Pratt V. Flamer, 175 
 Prescott V. Prescott, 186 
 Presley v. Davis, 210 
 Prowitt V. Rodman, 85 
 Provenchere's Appeal, 228, 229 
 Pruden v. Pruden, 18 
 Putnam «. Putnam, 111, 112 
 
 Q. 
 
 Quick V. Quick, 184, 185 
 
 R. 
 
 Raines v. Barker, 18 
 Rancel v. Creswell, 190 
 Randolph v. Wendel, 206 
 Raney v. Heath, 225, 241, 242 
 Rapalye v. Rapalye, 282 
 Rapp V. Rapp, 210 
 
TABLE OF AMERICAN CASES. 
 
 XllX 
 
 ]lathljone [■. Dyckman, 17'J, 213 
 Rawlings v. Landes, 232 
 Ray V. Enslin, 203, 206, 2x4 
 lledmond v. Burroughs, 97 
 Keed v. Buckley, 220 
 
 — V. Dickerman, 273, 275 
 
 — V. Reed, 120 
 Renaker v. Lemon, 68 
 Reynolds v. Reynolds, 293 
 Richardson v. Noyes, 137, 206, 210 
 
 — I'. Raughley, 76 
 
 — V. Woodbury, 35 
 Ridgley v. Bond, 200 
 Rife V. Geyer, 140 
 Riggs V. Sally, 207 
 Risk's Appeal, 115 
 Ritter v. Fox, 251 
 
 Rivers v. Fripp, 237, 241, 242 
 Robards v. Jones, 213 
 
 — V. Wortham, 287 
 Robert v. West, 5, 213 
 Roberts' Appeal, 228, 230 
 Roberts v. Brinker, 224, 232, 236, 23'; 
 
 — V. Elliot, 14 
 
 — V. Malin, 234 
 
 — V. Ogbourne, 92, 187 
 
 — V. Watson, 5 
 Robertson ;-. Johnston, 203 
 Robinson v. Allen, 57, OO 
 
 — V. Mclver, 294 
 Rodney v. Burton, 201 
 Rogers v. Brickhouse, 92 
 
 — V. Piogers, 57, 01 
 
 — V. Ross, 45, 46 
 Roney v. Stiltz, 20 
 Roome v. Counter, 115 
 
 — V. Phillips, 203, 237, 241 
 Roper V. Roper, 115 
 
 Ross J). Brake, 72, 201 
 
 — V. Toms, 184, 1S5 
 Rossetter v. Simmons, 53 
 Royall V. Eppes, 207, 21 1 
 Russ V. Russ, 210 
 Russel V. Kennedy, 01 
 
 S. 
 
 Sackett v. Mallory, 47 
 Sadler v. Wilson, 214 
 Sanders v. Hyatt, 200 
 Satterfield v. Mayes, 72 
 Sayward v. Sayward, 203 
 Schaffer v. Kettel, 69 
 Sohoonmaker v. Sheely, 180 
 Schoppert v. Gillam, 261 
 Schriver v. Myer, 138 
 
 Scott w. Alexander, 134 
 
 — V. James, 232 
 
 — V. Logan, 237 
 
 — V. Nelson, 85 
 
 — V. Price, 203 
 
 — V. Terry, 113 
 Scudder v. Vanarsdale, 92 
 Seabrook v. Seabrook, 224, 229 
 Sears v. Russell, 101, 155 
 Seavor v. Lewis, 287 
 
 Seddel v. Wills, 210 
 Seibert's Appeal, 224, 225 
 Settle V. Settle, 187 
 Shands v. Rogers, 204 
 Shattuck V. Steadman, 225, 226 
 Shaw V. Hoard, 203 
 
 — V. Hussey, 138 
 
 — V. Shaw, 273 
 Shearman v. Angel, 80, 1 99 
 Sheets' Estate, 213 
 Sheets v. Grubbs, 85 
 Sheftall V. Roberts, 214 
 Shepard v. Wright, 64 
 Shepherd v. Nabors, 92 
 Sherman v. Sherman, 206 
 Shinn v. Elolmes, 138 
 
 — V. Motley, 71 
 Shriver v. iijnn, 214 
 Shull V. Johnson, 86 
 Silex V. Nelson, 42 
 Simms V. Garrett, 92 
 Simpson v. Batterman, 201 
 
 — V. Coon, 201 
 
 — ■ V. Spence, 76, 79 
 Sims V. Conger, 254, 258- 
 Sisson V. Seabury, 198 
 Skinner v. Lamb, 203 
 Skipwith V. Cabal, 42, 43 
 Sloan V. Hanse, 180 
 Smith's Appeal, 206, 210 
 Smith V. Ashurst, 08, 113 
 
 — V. Bell, 5 
 
 — V. Berry, 131, 133 
 
 — V. Chapman, 214 
 
 — V. Davis, 49, 51 
 
 — V. Dunwoody, 120 
 
 — V. Edrigton, 18 
 
 — V. Hastings, 184 
 
 — V. Jones, 38 
 
 — V. Kniskern, 273 
 
 — v. Smith (1 Allen), 299 
 
 — V. Smith (17 Gratt.), 53 
 
 — V. Wells, 117 
 
 — V. Wiseman, 232, 235 
 Snow V. Snow, 224 
 Snyder v. Snyder, 118 
 Southerland v. Cox, 210 
 
1 
 
 TABLE OP AMERICAN CASES. 
 
 Spencc 1}. Kobins, 234 
 Spraker v. Van Alstyne, 134 
 Springer v. Congleton, 69 
 Spruill V. Moore, 203 
 St. Amour v. Kivard, 181 
 Starling v. Price, 69 
 State V. Lyons, 245 
 Steaoy v. Rice, 141, 144 
 Stedman v. Priest, 69 
 Stevens v. Evans, 213 
 Stevenson v. Jaoocks, 211 
 Still V. Spear, 213 
 Stinton V. Boyd, 261 
 Stokoly 4). Gordon, 9, 11, 12 
 Stokes V. Tilly, 5 
 Stone V. Massey, 234, 235 
 Stook's Appeal, 246 
 Storer v. W heatley, 99 
 Strong V. Williams, 299 
 Stuckey v. Stuckey, 56 
 Sully V. Nebergall, 273, 274 
 Suiters V. Johnson, 294 
 Sutton V. Wood, 53 
 Swan V. Rascoe, 189 
 Swift V. Duffield, 79 
 Swinton v. Egleston, 40 
 
 T. 
 
 Tanner v. Livingston, 186 
 
 Tayloe v. Mosher, 72, 223,. 231, 232 
 
 Taylor v. Conner, 180 
 
 — V. Foster, 269 
 
 — V. Taylor, 189, 195, 196, 208, 211 
 
 — V. Wendel, 282 
 Templeton v. Walker, 92, 100 
 Thayer v. Wellington, 44 . 
 Theological Seminary v. Kellog, 
 
 207 
 Thieband v. Sebastian, 232 
 Thomas v. Anderson, 223, 232 
 
 — V. De Baum, 111 
 
 — V. Mann, 207 
 
 Thomason v. Andersons, 176, 206 
 Thompson v. Hoop, 133 
 
 — V. McDonald, 80 
 
 — V. Thompson (28 Barb.), 232 
 
 — V. Thompson (4 Ohio St.), 279 
 
 — r. Young, 62, 108, 109 
 Thorton v. Burch, 56 
 Thrash v. Hardy, 117 
 Thrasher v. Ingram, 5 
 Threadgill v. Ingram, 210 
 Thurston v. Thurston, 144 • 
 Tier v. Pennell, 85 
 
 Tifft V. Porter, 301 
 
 Tilden v. Tilden, 306 
 Tillinghast v. Cook, 92 
 Timberlake v. Graves, 21 1 
 Tipton V. Tipton, 85 
 Tobias v. Cohn, 119 
 Tole V. Hardy, 287 
 Tolson V. Tolson, 89, 166 
 Toman v. Dunlop, 211 
 Tongue v. Nutwell, 44, 192 
 Torrance v. Torrance, 212 
 Tracy «. Tracy, 294 
 Traver v. Schell, 254, 255 
 Travis v. Morrison, 224 
 Truman v. White, 184 
 Tucker v. Ball, 226, 232 
 
 — V. Bishop, 76 
 
 — V. Boston, 62 
 
 — V. Seaman's Aid Society, 12 
 
 — V. Stites, 85 
 
 — V. Tucker, 44, 158 
 Tudor V. Terrell, 9 
 Turner v. Fowler, 202 
 
 — V. Patterson, 72 
 
 — V. Withers, 203, 269, 270 
 
 U. 
 
 Umstead's Appeal, 259 
 
 Urie V. Irvine, 62 
 
 Usilton V. Usilton, 206, 213 
 
 Vaden v. Hance, 187 
 Van Alstyne v. Spraker, 130 
 Van Ame v. Jackson, 159 
 Vanderzee v. Vanderzee, 138 
 Van Duyne v. Van Duyne, 159 
 Van Dyke v. Emmons, 134 
 
 — V. Vanderpool, 223, 230, 232 
 Vanhook v. Rogers, 77 
 
 Van Kleeck v. Dutch Church, 44 
 
 Van Kortland v. Kip, 14 
 
 Van Tillburgh v. Ilollingshead, 261 
 
 Van Wert v. Benedict, 27 
 
 Van Winkle v. Van Houten, 294 
 
 Van Wyck v. Bloodgood, 223,, 229 
 
 Vanzant v, Morris, 199 
 
 Varrelw. Wendell, 57, 61,, 103, 104 
 
 Vars V. Freeman, 261 
 
 Vaughan v. Dickes, 206 
 
 Ve.-nor v. Henry (3 Watts), 9 
 
 — V. Henry (6 Watts), 62 
 Vickers v. Stone, 261 
 
TABLE OF AMERICAN CASES. 
 
 Vreeland v. 
 
 — V. Van Ryper, 112 
 
 Van Horn, 47 
 
 W. 
 
 Waddell v. Rettew, 214 
 "Wait V. Belding, 14, 134 
 Waldron v. Waldron, 282 
 Walker v. Dunshee, 113 
 
 — V. Griffin, 115 
 
 — i;. Whiting, 158 
 
 — V. AVilliamson, 68 
 Wall V. Maguire, 210 
 Waller v. Forsythe, 114 
 Walston V. AVhite, 1 
 Walters v. Crutcher, 72, 113 
 Ward B. Barrows, 203 
 
 — V. Jones, 194 
 
 — V. Saunders, 92 
 
 — V. Stow, 92 
 
 — V. Waller, 204 
 Ware v. Fisher, 246 
 
 — V. Richardson, 140, 141 
 Waring v. Waring, 44, 47 
 Warner v. Van Swearingen, 17, 18 
 Watkins v. Quarles, 232, 237 
 
 — I'. Sears, 203, 211 
 Watson V. Bonny, 108 
 
 — V. Powell, 138 
 AVebb V. Evans, 273 
 Weidman v. Maish, 131 
 Wells V. Ritter, 174, 189 
 Wesco's Appeal, 299 
 AVessenger v. Hunt, 72, 115 
 AVestcott V. Cady, 111, 112 
 
 — V. Edmunds, 155 
 AVestenberger v. Reist. 214 
 AVetherill v. AA'^etherill', 22 
 AVeyman v. Ringold, 112, 202, '-•28, 
 
 230 
 AVheatland v. Dodge, 198 
 AVheaton v. Andress, 138 
 AVheeler v. Allan, 249 
 
 — V. Dunlap, 54 
 AVhelan v. Reilly, 89 
 AVhite V. Curtis, 23 J 
 
 — V. Fisk, 43 
 
 — V. Green, 178 
 
 — V. Hicks, 25 
 AVhitehead v. Gibbons, 287 
 
 — V. Lassiter, 247 
 AVhitney v. Whitney, 256 
 Wilcox V. Wilcox, i94 
 Wilkes V. Lion, 210 
 AVillard v. AVare, 23 
 
 AVilliams v. Caston, 192. 
 
 — V. Crary, 299 
 
 — V. Graves, 210 
 
 — V. Lewis, 189 
 
 — V. McCall. 177 
 
 — V. Neff, 44, 69 
 Williamson v. Chamberlain, 260 
 
 — V. Williamson, 92 
 Willis V. Bucher, 200 
 
 — V. Jenkins, 85 
 
 — V. Roberts, 234 
 
 — V. Watson, 18 
 AVills ». Cooper, 35, 37 
 
 AVilson V. AVilson (32 Barb.1, 211 
 
 — V. Wilson (6 Md.), 18 
 AVinkley v. Kaime, 9 
 AVinslow V. Goodwin, 72, 232 
 AVinston v. Webb, 42 
 AVithers v. Yeadon, 57 
 Wolbert v. Lucas, 134 
 Wolfe V. Van Nostrand, 258 
 AVomack v. Backer, 85 
 AV^ood V. Burnham, 188 
 
 — V. Hills, 138 
 
 • — V. McGuire, 68 
 AVoodlandj;. Wallis, 211 
 Woodley v. Findlay, 212 
 AVoodruff V. Woodruff, 92, 187 
 Woolmer's Estate, 40 
 AVorcester v. AVorcester, 68 
 Worther v. Pearson, 273 
 Wotten 1-. Redd, 1 
 Wren v. Hynes, 261 
 AVright V. Denn, 130, 134, 138 
 
 — V. Trustees, 92, 93, 245 
 Wurts V. Page, 258 
 AYyatt v. Sadler, 181 
 AVynn v. Story, 213 
 AVynne v. Wynne, 18 
 
 Yancy v. Smith, 273 
 Yeates v. Gill, 68 
 Yeaton v. Roberts, 71, 232 
 Young V. McKinney, 226 
 
 — V. Robinson, 68 
 
 — V. Stoner, 235 
 
 — V. Young, 18. 47 
 
 Ziegler v. Eckart, 299 
 ZoUicoffer v. Zollicoffer, 210f 214 
 
THE LAW 
 
 CONSTRUCTION OF WILLS. 
 
 INTRODUCTION. 
 
 1. General Principles op Construction. 
 
 The General Principles which govern the Construction of Wills 
 are fully settled by authority, and may be conveniently expressed, 
 for purposes of reference, in the Four Propositions following, 
 with the accompanying quotations, viz. — 
 
 Prop. I. In construing a will, the object of the Courts 
 is to ascertain, not the intention simply, but the expressed 
 intentions of the testator, i.e., the intention which the 
 will itself, either expressly or by implication, declares : or 
 (which is the same thing) the meaning of the words, — 
 the meaning, that is, which the words of the will, pro- 
 perly interpreted, convey.^ 
 
 In Shore v. Wilson, 9 CI. & F. 525, Coleridge, J., says: 
 " The object of all exposition of written instruments must be, 
 to ascertain the expressed meaning or intention of the writer, 
 the expressed meaning being equivalent to the intention." 
 
 In Doe d, Brodbelt v. Thomson, 12 Moo. P. C. C. 116, Tur- 
 
 ^ Arcularius v. Geisenheimer, 3 Bradf. 73; Jackson v. Luquere, 5 
 Cowen 228; Hone v. Van Shaick, 3 Comst. 540; Walston «. White, 5 
 Md. 304 ; Wotten v. Kedd, 12 Gratt. 205 ; Heyward v. Heyward, 7 Rich. 
 Eq. 314 ; Allan v. Van Meter, 1 Met. (Ky.) 276. 
 1 
 
1 GENERAL PEINCIPLBS OF COWSTEUCTION. 
 
 ner, L. J., says : " It is upon intention either expressly declared 
 or collected by just reasoning upon *the terms of the instru- 
 
 J ment, or evidenced by surrounding circumstances, where 
 surrounding circumstances can be called in aid, and not upon 
 conjecture merely, that the Court feels bound to proceed," 
 
 In Abbott V. Middleton, 7 H. L. C. 68, Lord Cranworth says: 
 " It is not the duty of a Court of Justice to search for the tes- 
 tator's meaning, otherwise than by fairly interpreting the words 
 he has used." 
 
 And Lord Wensleydale, in the same case : " The use of the 
 expression, that the intention of the testator is to be the guide, 
 unaccompanied by the constant explanation that it is to be sought 
 in his words, and a rigorous attention to them, is apt to lead the 
 mind insensibly to speculate upon what the testator may be sup- 
 posed to have intended to do, instead of strictly attending to the 
 true question, which is, what that which he has written means. 
 The will must be in writing, and that writing only is to be 
 considered." 
 
 Prop. II. In construing a will, the words and expres- 
 sions used aretobe taken in their ordinary, 'pr(yper,?\;xi^ gram- 
 matical sense ; — unless upon so reading them in connection 
 with the entire will, or upon applying them to the facts 
 of the case, an ambiguity or difficulty of construction, in 
 the opinion of the Court, arises : in which case the pri- 
 mary meaning of the words may be modified, extended, 
 or abridged, and words and expressions supplied or re- 
 jected, in accordance with the presumed intention, so far 
 as to remove or avoid the difficulty or ambiguity in ques- 
 tion, but no further.-^ 
 
 It follows from Prop. I., that in every case the words 
 used must be capalle of bearing the meaning sought to be. 
 put upon them. 
 
 1 Chrystie v. Phyfe, 19 N. Y. 348 ; Cromer v. Pinokney, 3 Barb. Ch. 475 ; 
 Perkins v. Mathes, 49 N. H. 110. 
 
SENSE OF WORDS AND EXPRESSIONS. 2 
 
 In Shore v. Wilson, 9 CI. & ¥. 565, Tindal, C. J., says : " The 
 general rule I take to be, that when the words of any written in- 
 strument are free from ambiguity in themselves, *and where r^q 
 external circumstances do not create any doubt or difficulty 
 as to the proper application of those words to claimants under 
 the instrument, or the subject-matter to which the instrument 
 relates, such instrument is always to be construed |iccording to 
 the strict, plain, common meaning of the words themselves." 
 
 In Abbott V. Middleton, 7 H. L. 0. 68, Lord Wensleydale 
 says : " It is now, I believe, universally admitted that, in con- 
 struing a will, the rule is to read it in the ordinary and gram- 
 matical sense of the words, unless some obvious absurdity, or 
 some repugnance or inconsistency with the declared intentions of 
 the writer, to be extracted from the whole instrument, should 
 follow from so reading it. Then the sense may be modified, ex- 
 tended or abridged, so as to avoid those consequences, but no 
 further. This rule, in substance, is laid down by Mr. Justice 
 Burton, in the case so frequently quoted of Warburton v. Love- 
 land, 1 Huds. & Br. 648. It had been previously described as 
 ' a rule of common sense as strong as can be,' by Lord Ellenbo- 
 rough, in the case of Doe v. Jessep, 12 East 293. It is stated 
 as ' a cardinal rule, from which, if we depart, we launch into a 
 sea of difficulties not easy to fathom,' by my noble and learned 
 friend when Chancellor, in Gundry v. Pinniger, 1 D. M. & Gr. 
 502, and as ' the golden rule,' when applied to Acts of Parlia- 
 ment, by C. J. Jervis, in Mattison v. Hart, 14 C. B. 385 (E. C. 
 L. R. vol. 78), and by the late Mr. Justice Maule, as ' the most 
 general of rules, a general rule of great utility :' Gether v. Cupper, 
 24 L. J., C. P. 71. Many other authorities might be cited, 
 but there is no doubt of the excellence and generality of the rule. 
 
 " Quite consistently with this rule, words and limitations may 
 be supplied or rejected when warranted by the immediate con- 
 text or the general scheme of the will, but not merely on 
 a conjectural hypothesis of the testator's intention, however 
 reasonable, in opposition to the plain and obvious sense of the 
 instrument." 
 
3' GENERAL PRINCIPLES OF CONSTRUCTION, 
 
 Peop. III. As a corollary to, or part of, the last 
 
 -' *Proposition, — technical words and expressions must 
 
 be taken in their technical sense, unless a clear intention 
 
 can be collected to use them in another sense, and that 
 
 other can be ascertained.^ ^ 
 
 In Doe d. Winter v. Perratt, 6 M. & G. 342 (E. C. L. R. vol. 
 46), Lord Wensleydale (then Parke, J.) says : " It is a rule in 
 the judicial exposition of wills, that technical words, or words of 
 known legal import, are to he considered as having heen used in 
 their technical sense; or according to their strict acceptation, 
 unless the context contains a clear indication to the contrary. 
 Such is the rule laid down hy Eyre, C. J., in Buck v. Nurton, 1 
 B. & P. 57, by Lord Alvanley, M. R., in Thellusson v. Wood- 
 ford, 4 Ves. 329, and in Poole v. Poole, 3 B. & P. 620, citing 
 Goodright v. Pulleyn, 2 Lord Raym. 1437, and lastly by Lord 
 Redesdale, in Jesson v. Wright, 2 Bligh 1, and other au- 
 thorities." 
 
 In Roddy v. Fitzgerald, 6 H. L. C. 877, Lord Wensleydale 
 says: "Another rule of construction has been referred to by 
 several of the Irish as well as by some of the English Judges, 
 viz. : that the general intention of the testator was to prevail 
 over the particular intention. This doctrine, which commenced, 
 I believe, with Lord C. J. Wilmot, and has prevailed a long 
 time, had, I thought, notwithstanding the use of those terms by 
 Lord Eldon, in the leading case of Jesson v. Wright, been put an 
 end to by Lord Redesdale's opinion in the same case, and by the 
 powerful arguments against its adoption in Mr. Hayes's Princi- 
 ples, and by Mr. Jarman in his excellent work on Wills, and by 
 the judgment of the Court delivered by Lord Denman in Doe v. 
 Galhni, 5 B. & Ad. 640 (E. C. L. R. vol. 27), in which the 
 opinion of Lord Redesdale is approved and adopted. And cer- 
 tainly, if accuracy of expression is important, the use of those 
 terms had better be discontinued, though if qualified and under- 
 
 ^ Doebler's Appeal, 64 Penn. St. 15 ; Grandy v. Sawyer, Phill. Eq. 9 ; 
 Evans v. Godbold, 6 Rich. Eq. 36. 
 
INTENTION CONTROLS THE LETTER. 4 
 
 stood as explained in the last mentioned case, and in the opinion 
 of some of the Judges — ^Baron Watson, for example — it can 
 make no diiference in the result. Lord Redesdale says, ' that the 
 *general intent shall overrule the particular, is not the r^^r 
 most accurate expression of the principles of decision. The 
 rule is, that technical words shall have their legal effect, unless 
 from other words it is very clear the testator meant otherwise.' "^ 
 
 Prop. IV. Notwithstanding the last two Propositions 
 — the intention of the testator, which can be collected 
 with reasonable certainty from the entire will, with the 
 aid of extrinsic evidence of a kind properly admissible, 
 must have effect given to it, beyond, and even against, 
 the literal sense of particular words and expressions. 
 The intention, when legitimately proved, is competent not 
 only to fix the sense of ambiguous words, but to control the 
 sense even oi^clear wtfrds, and to supply the place of 
 express words, in cases of difficulty or ambiguity.^ 
 
 In Key v. Key, 4 D. M. & G. 73, Knight Bruce, L. J., says: 
 " I agree ' certa pro incertis non relinquenda ;' but I say also 'in 
 ohscuris quod verisimilius,' and as ' leges non ex verbis sed ex 
 mente intelligendas,' so of wills. In common -with all men, I 
 
 ^ The language of Lord Eldon is adopted in Smith v. Bell, 6 Peters 78 ; 
 Kane v. Astor, 5 Sandf. S. C. 533 ; Hitchcock v. Hitchcock, 35 Penn. St. 
 399; Chase v. Lockerman, 11 Gill & Johns. 206 ; Robert v. West, 15 Ga. 
 141 ; Thrasher v. Ingram, 32 Ala. 660 ; and it is held to apply not only to 
 questions as to the meaning of technical words, but to cases where it is 
 necessary to choose between inconsistent clauses in a will. Smith v. Bell, 
 6 Peters 78 ; Parks v. Parks, 9 Paige 120 ; Doebler's Appeal, 64 Penn. St. 
 15; Jones' Appeal, 3 Grant Cas. 171 ; Miller v. Flournoy, 26 Ala. 727. 
 
 The language of Lord Redesdale is adopted in Den v. McMurtrie, 3 
 Green 281. 
 
 2 Findlay v. King, 3 Peters 377 ; Dow v. Dow, 36 Me. 216 ; Homer v. 
 Shelton, 2 Mete. 199 ; Brimmer v. Sohier, 1 Cush. 129 ; Parks v. Parks, 9 
 Paige 116 ; De Kay v. Irving, 5 Denio 654 ; Fetrow's Estate, 58 Penn. St. 
 427; Stokes v. Tilly, 1 Stockt. 132; Carr v. Green, 2 McCord 84 ; Roberts 
 V. Watson, 4 Jones L. 320 ; O'Neall v. Boozer, 4 Rich. flq. 22. 
 
5 GENERAL PRINCIPLES OF CONSTRUCTION. 
 
 must acknowledge there are many cases upon the construction of 
 documents, in which the spirit is strong enough to overcome the 
 letter ; cases in which it is impossible for a reasonable being, 
 upon a careful perusal, of the instrument, not to be satisfied from 
 its contents that a literal, a strict, or an ordinary interpretation 
 given to particular passages, would disappoint and defeat the 
 intention with which the instrument, read as a whole, persuades 
 and convinces him that it was framed. A man so convinced is 
 authorized and bound to construe the writing accordingly. 
 
 "Such decisions upon controversies 'ex scripto et sententi^' 
 — as Cicero terms them (De Inv. II., c. 42); — 'scripti et volun- 
 tatis' — in the language of Quintilian (Inst. Or. VII., c. 6, s. 1), 
 who, citing the Judicium Curianum, says, 'In testamentis et 
 ilia accidunt ut voluntas manifesta sit, scriptum nihil sit,' and 
 ,^n-l adds, ' Id *quoque, quod huic contrarium est, accidit nupur 
 ut esset scriptum quod appareret scriptorem noluisse,' hate 
 been of course frequent and familiar, when and wherever justice 
 has been administered among civilized and enlightened men. 
 This is a controversy of that class ; and though it may perhaps 
 seem neither necessary nor very apt in a cause of the particular 
 species of the present to refer to such cases as Browne v. De Laet, 
 4 B. C. C. 527, Church v. Mundy, 12 Ves. 426, and Bootle v. 
 Blundell, 1 Mer. 193 ; 19 Ves. 494, yet the language of Lord 
 Thurlow and Lord Eldon in those instances seems to me not 
 without application. Nor does Lord Eldon's reference, with 
 apparent assent, in Wykham v. Wykham, 18 Ves. 395, and 
 Wilkinson v. Adam, 1 V. & B. 466, to Lord Hardwicke's expres- 
 sion in Coryton v. Helyar, 2 Cox 840. The language as given 
 in Wilkinson v. Adam is, 'Necessary implication means, not 
 natural necessity, but so strong a probability of intention,. that 
 an intention contrary to that which is imputed to the testator 
 cannot be supposed.' The phrases given in Wykham v. Wyk- 
 ham, are 'probable necessity,' and 'an implication so probable 
 that the mind could not resist it.' Mr. Cox's report is thus: 
 ' There is hardly any case where an implication is of necessity, 
 but it is called "necessary" because the Court finds it so to 
 answer the intention of the devisor.' Finally, I may mention 
 
INTENTION CONTROLS THE LETTER. 6 
 
 the present Lord Chancellor's opinion in a recent case of Hart v. 
 Tulk, 2 D. M. & G. 300, where it was held by his lordship and 
 myself that a schedule had been described in a will by a wrong 
 number, and. the authorities there referred to."^ 
 
 Lord St. Leonards in Grey v. Pearson, 6 H. L. C. 61, says : 
 " Nobody is more disposed than I am to abide by clear words, 
 and to give to them their natural and grammatical meaning ; but 
 I never did and I never can come to this conclusion, that the 
 words of a will cannot admit of modification according to the real 
 intention of the testator, as you find it from other expressions, 
 or from the whole context of the will. It is difficult to lay down 
 any abstract rule upon the subject, but where I find the r-^rr 
 *intention, and I find words pointing out the intention, and 
 that if I give to the words their simple meaning according to 
 grammar and according to their ^^lainprimd facie import, I defeat 
 the intention, — I hold that I am bound, by every rule both of law 
 and equity, to see whether I cannot give to them, by natural con- 
 struction, an import which will effectuate and not defeat the 
 intention." 
 
 Lord Kingsdown, in Towns v. Wentworth, 11 Moo. P. C. C. 
 526, says : " In order to determine the meaning of a will, the 
 Court must read the language of the testator in the sense which 
 it appears he himself attached to the expressions which he has 
 used, with this qualification, that when a rule of law has affixed 
 a certain determinate meaning to technical expressions, that 
 meaning must be given to them, unless the testator has by- his 
 will excluded, beyond all doubt, such construction. 
 
 " When the main purpose and intention of the testator are 
 ascertained to the satisfaction of the Court, if particular expres- 
 sions are found in the will which are inconsistent with such inten- 
 tion, though not sufficient to control it, or which indicate an 
 intention which the law will not permit to take effect, such expres- 
 sions must be discarded or modified; and on th« other hand, if 
 the will shows that the testator must necessarily have intended 
 an interest to be given which there are no words in the will 
 
 1 Carr v. Green, 2 M'Cord 86. 
 
7 GENERAL PRINCIPLES OF CONSTRUCTION. 
 
 expressly to devise, the court is to supply the defect ly implication, 
 and thus to mould the language of the testator, so as to carry 
 into effect, as far as possible, the intention which it is of opinion 
 that the testator has on the whole will suflSciently declared." 
 
 2. On Punctuation. 
 
 PunctuMion, ^c, to he adverted to. — Nothwithstanding a dic- 
 tum of Sir W. Grant in Sanford v. Raikes, 1 Mer. 651, it appears 
 to be settled, that in construing a will marks of punctuation, as 
 parentheses, stops, capital letters, &c., may be taken in consider- 
 ation.^ 
 
 ^5,-, *In Morrall v. Sutton, 1 Phill. 533, there was a bequest 
 of leaseholds " to Sarah Callcott, her executors, administra- 
 tors, and assigns {subject to the said annuities charged thereon)" 
 in a parenthesis, "during the term of her natural life." Parke, 
 J., in his judgment, observed: "That proposed by the appellant 
 besides being a very strained construction, requires us to reject 
 the marks of parenthesis which are clearly visible in the probate 
 of the will, and which show that the testator meant the sentence 
 to be read, passing over the intermediate words, as if it had con- 
 tained a gift to Sarah Callcott, her executors, administrators, and 
 assigns, for her natural life." 
 
 In Compton v. Bloxham, 2 Coll. 201, V.-C. Knight Bruce 
 sent for and examined the original will, and decided on the 
 ground that the words "my monies" began an entirely new 
 sentence. \ 
 
 It would seem that marks of punctuation, as stops, capital 
 letters, &c., in the original will may be adverted to, though not in 
 the probate, and though the question relates to personal estate : 
 (Oppenheim v. Henry, 9 Hare 802 n.) But the probate is con- 
 clusive as to what the words of the will are. 
 
 In Manning v. Purcell, T D. M. & G. 55, where the will, one 
 of personalty, was a common printed form filled up by the testator, 
 
 ' " Punctuation may perhaps be resorted to when no other means exist 
 of solying an ambiguity ; but not in cases where no real ambiguity exists 
 except what the punctuation itself creates." Arcularies v. Sweet, 25 Barb. 
 406. 
 
PAROL EVIDENCE OF INTENTION. 8 
 
 with parts of the form struck out, the original will was sent for, 
 and Turner, L. J., in giving judgment, said : " In coming to this 
 conclusion, I have not overlooked the eifect to he given to the 
 erasures, as they appear on the original will." (p. 66.) 
 
 In Child V. Elsworth, 2 D. M. & G. 679, there were several 
 gifts of legacies, the last gift followed by the words " to he paid 
 twelve months after the decease of A." The question was, 
 whether the direction for postponement of payment applied to all 
 the legacies, or only to the last of them. It was held to apply 
 to all the legacies ; and Cranworth, L. J., in giving judgment, 
 sajd: "It is only necessary to add, that we have caused the 
 original will to be examined, and it appears that the whole gift 
 in question to the children and grandchildren of W. D., includ- 
 ing the *direction for the time of payment, is written con- p^q 
 tinuously as one sentence, and is closed with a full stop." 
 (p. 683.) 
 
 In Gauntlett v. Carter, 17 B. 586, the testator devised his 
 freehold estates, " situate in BuUen Court, Strand and Maiden 
 "Lane." Before and after the word "Strand" there were com- 
 mas. The testator having houses in Bullen Court, and others in 
 the Strand but not in Bullen Court, the question was whether the 
 word " Strand" was part of the description of Bullen Court, or 
 whether it operated to pass freehold estates of the testator situate 
 in the Strand. Eomilly, M. R., decided in favor of the latter 
 construction; and observed, "the introduction of commas before 
 and after the word Strand is a circumstance of importance." 
 (p. 591.) 
 
 3. Parol Evidence op Intention, when admissible. 
 
 Generally speaking, all material evidence which can be brought 
 in aid of the construction of a will, is admissible for that purpose. 
 " In every case of ambiguity, whether latent or patent, evidence 
 is admissible to show the state of the testator's family or pro- 
 perty." (Stringer v. Gardiner, 27 B. 37.) But, with the excep- 
 tion of certain cases of (what are called) "presumptions" of law, 
 it is an universal rule that — 
 
9 GENERAL PRINCIPLES OF CONSTRUCTION. 
 
 Rule. Parol evidence to show what were actual testa-- 
 mentary intentions of the testaffcor (such as the instructions 
 given for the will, memoranda, or declarations by the tes- 
 tator as to what he had done or meant to do by his wUl, 
 &c.), is admissible only to determine which of several 
 persons or things was intended under an equivocal descrip- 
 tion. (Miller v. Travers, 8 Bing. 244 (E. C. L. R. vol. 21); 
 Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363.)^ 
 
 Equivocal descriptions are, " where one name and ap- 
 pellation doth denominate divers things" (Bac. Max. 23); 
 ;^jQ-| as a devise to John Cluer of Calcot, *there being two 
 persons of that place named John Cluer, father and 
 son (Jones v^ Newman, 1 W. Bl. 60): or a devise of "the 
 close in Kirton, now in the occupation of J. W." there 
 being two closes in Kirton belonging to the testator both 
 in the occupation of J. W. at the date of the will. (Rich- 
 ardson V. Watson, 4 B. & Ad. 799, E. C. L. R. vol. 24). ^ 
 
 " Where the description of the thing devised, or of the devisee, 
 is clear upon the face of the will, hut upon the death of testator 
 it is found that there are more than one estate or subject-matter 
 of devise, or more than one person whose description follows out 
 and fills the words used in the will : — as where the testator 
 
 ^ Howard v. Peace Soc, 49 Me. 288 ; Perkins v. Mathes, 49 N. H. 113; 
 Bodiuan v. Tract Soc, 9 Allen 449 ; Vernor v. Henry, 3 Watts 385 ; Deaf and 
 Dumb Institute v. Norwood, 1 Busb. Eq. 68 ; Stokely v. Gordon, 8 Md. 496 ; 
 Gass V. Ross, 3 Sneed 214. 
 
 In many American cases it is stated that parol evidence is admissible in 
 all cases of latent ambiguity, such as misdescription (without any equivoca- 
 tion), &c. But it is conceived that this statement arises from an omission 
 to observe the distinction between evidence of the state of the testator's 
 property or family, or of his surrounding circumstances, in aid of the con- 
 struction of the will, and direct evidence of the testator's intention. Winkley 
 V. Kaime, 32 N. H. 268 ; Tudor v. Terrell, 2 Dana 47 ; Deaf and Dumb Insti- 
 tute V. Norwood, 1 Busb. Eq. 68 ; Allen v. Lyons, 2 Wash. C. C. 475 ; New- 
 ell's Appeal, 24 Penn. St. 199. 
 
 » McCall V. McCall, 4 Rich. Eq. 453. 
 
PAROL EVIDENCE OP INTENTION. 10 
 
 devises his manor of Dale, and at his death it is found that he 
 has two manors of that name, "South Dale and North Dale, or 
 where a man devises to his son John and he has two sons of that 
 name: — in each of these cases respectively parol evidence is 
 admissible to show, which manor was intended to pass and which 
 son was intended to take ; (Miller v. Travers, 8 Bing. 244, E. C. 
 L. R. vol. 21). 
 
 What is not evidence of intention. — It is to be observed that 
 evidence in the shape of sayings, &c., of the testator may be, in 
 certain cases, adduced to show in what sense he habitually used 
 certain words, even where the description is not equivocal (pro- 
 vided the sense thus sought to be put on them does not contra- 
 vene their ordinary and legitimate meaning) : this being distinct 
 from evidence adduced to show in what sense he used the words 
 on the particular occasion, of writing his will. 
 
 In Duke of Leeds v. Amherst, 9 Jur. 359, Lord Lyndhurst 
 held that the fact of the testator ^having been accustomed to 
 describe a particular picture belonging to himself as a portrait, 
 might be admitted to show that it properly passed under that 
 description in his will. 
 
 And where the description of a legatee is inaccurate but not 
 equivocal, a former will may be admitted to show that the tes- 
 tator habitually called a certain person by the inaccurate de- 
 cription. (Camoys v. Blundell, 1 H. L. 0. *778.) Thus, p^^-, 
 where the bequest was to " Thomas Turner of Regency 
 Square," there being no Thomas Turner of Regency Square, 
 but a James Turner of Regency Square, surgeon, and a Thomas 
 Turner of Daventry, both of whom claimed the bequest, it 
 was held that a former will in which the testator gave a legacy 
 to Thomas Turner of Regency Square, surgeon, was admissible 
 to show that he habitually misdescribed the surgeon of Regency 
 Square as " Thomas," and that he, and not Thomas Turner, was 
 the legatee intended. (Re Feltham's Trusts, 1 K. & J. 528.) 
 But in this case, if there had been a Thomas Turner of Regency 
 Square, though not a surgeon, the former will would not have 
 been admissible to show that James Turner the surgeon was 
 intended. 
 
11 GENBKAL PRINCIPLES OF CONSTRUCTION-. 
 
 As to what constitutes an equivocal description. — The general 
 test of an equivocal description is, that it must apply with entire 
 propriety to each of the persons or things in question. A 
 description which applies partly to one and partly to another of 
 the persons or things in question, is not equivocal. (Doe v. 
 Hiscocks, 5 M. & W. 363.) Thus a devise to John Thomas 
 Smith, there being a John Smith and also a Thomas Smith, is 
 not equivocal with respect to them.^ 
 
 Descriptions, however, which are partly inaccurate are, or are 
 considered as, equivocal, if the inaccurate part of the description 
 applies to none of the persons or things in question, while the 
 remaining description is equivocal with respect to them. (Doe 
 V. Hiscocks, 5 M. & W. 363.) Thus a devise to John Thomas 
 Smith is equivocal, if there be no Smith bearing the Christian 
 name of Thomas, but two or more Smiths with the Christian 
 name of John. In this case, the word " Thomas," which is 
 inapplicable to any of the claimants, being rejected, the descrip- .- 
 tion John Smith remains, which is equivocal. So where the 
 devise was to " Robert Careless, my nephew, the son of Joseph 
 Careless," the testator having no brother named Joseph, but 
 having two brothers each of whom had a son named Robert, the 
 word 'Joseph' was rejected, and the description thus became 
 equivocal. *(Careless v. Careless, 1 Mer. 384.) But a 
 -■ description which is wholly inapplicable to any of the per- 
 sons or things in question, cannot be equivocal (Miller v. Travers, 
 8 Bing. 244) : for in this case, when the inaccurate part of the 
 description is rejected, nothing remains.^ 
 
 Again, a description may be equivocal, which applies with 
 propriety to each of the persons or things in question, although 
 it may apply with somewhat more propriety to one of them than 
 to another. 
 
 > Stokely v. Gordon, 8 Md. 509. But in Doe v. Roe, 1 "Wend. 541, it 
 was held that where two parts of a description apply respectively to two 
 different properties, evidence of the testator's declarations might be ad- 
 mitted to show which property was intended. 
 
 ' Tucker v. Seaman's Aid See, 7 Mete. 188 ; Stokely v. Gordon, 8 Md. 
 507. 
 
PAROL- EVIDENCE OF INTENTION. 12 
 
 Thus a devise to William Marshall is equivocal, there being 
 two persons, one named William Marshall simpliciter, and the 
 other WilliaEi John Robert Blandford Marshall (Bennett v. 
 Marshall, 2 K. & J. 740) : although if no parol evidence were 
 forthcoming to show which was the devisee intended, the testator 
 would be presumed to mean the one called William Marshall 
 simpUciter, rather than William John Robert Blandford Mar- 
 shall (ib,). And it was said that if a man has two sons named 
 John, speaking of John simpliciter, he would be presumed to 
 mean the eldest ; and that John Smith means John Smith the 
 father rather than John Smith the son: but that both these 
 descriptions are equivocal, and let in parol evidence of inten- 
 tion (ib.). 
 
 Similarly, it has been held that under a bequest to Miss San- 
 ders, the eldest Miss S. would be presumed to be intended, if 
 there were several at the date of the will (Lee v. Pain, 4 Hare 
 249) : but this description would, it should seem, be equivocal. 
 
 A legacy to "The Clergy Society" was held to be equivocal, 
 there being no society strictly so called, but several societies 
 popularly called Clergy Societies. (Re The Clergy Society, 2 
 K. & J. 615.) Had there been a society properly bearing the 
 name, it would of course have been entitled. 
 
 It is to be observed, that parol evidence of intention is only 
 admissible to determine which of the persons or things in ques- 
 tion was intended, and not (e. ff.) to show that the words were 
 used in a sense which would include more than one of them. In 
 Richardson v. Watson, 4 B. *& Ad. 799 (E. C. L. R. vol. 
 24), where the equivocal description was " all that close ^ 
 in Kirton in the occupation of J. W." there being two closes 
 each of which answered to that description, parol evidence was 
 admitted to show which of the two closes was intended. The 
 evidence went to show that the testator supposed the two closes 
 to be in fact one close : but it was held that the evidence was 
 admissible only to show that one or other was intended to pass, 
 and not to show that both were intended to pass. 
 
 The evidence of intention is not excluded by the fact, that the 
 will itself shows the existence of several persons or things each 
 
13 GENERAL PEINCIPLES OF CONSTRUCTION. 
 
 answering to the equivocal description. (Doe v. Needs, 2 M. & 
 W. 129.) Thus where the will contained a devise to George 
 Gord the son of John Gord, another to George Gord the son of 
 G-eorge Gord, and a third to George Gord the son of Gord : it 
 was held that the third description was equivocal, and that parol 
 evidence was admissible to show whether George Gord or John 
 Gord was intended by it {ib.). 
 
 If the context shows decisively which of the persons or things 
 in question was intended, no ambiguity arises, and evidence of 
 intention will not be receivable (Doe v. Westlake, 4 B. & Aid. 57, 
 E. C. L. R. vol. 6), where the devise was to " Matthew Westlake 
 my brother, and Simon Westlake my brother's son," i. e., my 
 said brother's son.^ 
 
 But if the evidence from context is not conclusive, but fur- 
 nishes an argument only, parol evidence will be admitted. (Doe 
 V. Allen, 12 Ad. & Ell. 451, E. C. L. R. vol. 40). 
 
 Declarations by the testator, not contemporaneous with the 
 will, may be received as evidence of intention. (Doe v. Allen, 
 12 Ad. & Ell. 441, E. C. L. R. vol. 40). 
 
 Ballantyne v. Turner, 6 Jones Eq. 228. 
 
*RULES OF CONSTRUCTION. [*i4 
 
 CHAPTER I. 
 
 DESCRIPTIONS OF PROPERTY, TO WHAT PERIOD REFERABLE. 
 
 In "Wills made before Jan. 1, 1838, the rules are as 
 follows : — 
 
 1. Freeholds. 
 
 Rule. Every devise of freehold lands speaks from 
 the date of the will, and describes only the land then be- 
 longing to the testator. (Brouncker v. Coke, Holt 248.)^ 
 
 Thus a devise of '' all my lands," or, "all my lands in A.," 
 neither passes, nor is construed as intending to pass, lands 
 answering to the description acquired by the testator after the 
 date of the will. But, 
 
 Rule. Any codicil duly executed has, primd facie, 
 the effect of republishing the will, so as to make the will 
 speak from the date of the codicil, and include lands ac- 
 quired before the date of the codicil. (Acherly v. Ver- 
 
 ^ Apart from statutory changes this rule has prevailed generally 
 throughout the United States. George v. Green, 13 N. H. 521 ; Haven v. 
 Foster, 14 Pick. 537 ; Brewster v. M'Call, 15 Conn. 289 ; Green v. Dikeman, 
 18 Barb. 537 ; Lanning v. Cole, 2 Halst. Ch. 105 ; Girard v. City, 4 Rawle 
 333 ; McBlfresh v. Schley, 2 Gill. 198 ; Allen ». Harrison, 3 Call 289 ; Jig- 
 gets V. Maney, 1 Murph. (N. C.) 264; Drayton v. Rose, 7 Rich. Eq. {S. 
 C.) 328 ; Jones v. Shoemaker, 35 Ga. 153 ; Attwood v. Beck, 21 Ala. 625 ; 
 Roberts v. Elliot, 3 Monr. 396. 
 
14 RULES OF CONSTBUCTION. 
 
 non, Com. Rep. 381 ; Goodtitle v. Meredith, 2 M. & 
 Sel. 15.)' 
 
 The execution of the codicil has this effect on the construction 
 of the will, although the codicil relates only to personal estate. 
 (Pigott V. Waller, 7 Ves. 98.) And it is not necessary that the 
 codicil should purport to confirm the will. (Re Earl's Trusts, 4 
 K. &. J. 673.) 
 
 Thus, if the testator by his will devises all his lands in the 
 ^^ --, parish of A. to B., and by a codicil ten years *afterwards 
 gives a legacy to C, the effect of the codicil will be to make 
 the devise to B. in the will include any lands in the parish of A. 
 which may have been acquired by the testator between the dates 
 of the will and codicil. 
 
 Exceptions — The identical property referred to. — ^But an ex- 
 ception to this rule exists in certain cases, where the testator, by 
 referring to the devise in the will, is held to show an intention to 
 deal only with the identical property devised by the will, and no 
 more. (Bowes v. Bowes, 2 B. & P. 500 ; Hughes v. Hosking, 
 11 Moo. P. C. C. 1.) 
 
 " That a codicil makes the will speak as of its own date, must 
 be admitted to be the general rule ; but it may, nevertheless, be 
 framed in such a manner as to operate as a partial republication 
 only, or to work no republication at all. If, for example, I 
 leave by will all my farms at Dale to A., and having afterwards 
 acquired another farm at Dale, I say in a subsequent codicil, ' I 
 hereby give to B. the identical farms which my will has given to 
 A.,' it would obviously be doing violence to the language to con- 
 strue these words as carryiiig the newly-acquired farm." (Mony- 
 penny v. Bristow, 2 Russ. & My. 132.) 
 
 Thus, where the testator, having by his will devised all his 
 real estate to trustees, by a codicil revoked the devise so far as 
 related to two of the trustees, and devised the said lands to the 
 
 ' Wait V. Belding, 24 Pick. 134 ; Van Kortland v. Kip, 1 Hill (N. Y.) 
 593 ; Jack v. Schoenberger, 22 Penn. St. 416 ; Hatch v. Hatch, 2 Hayw. (N. 
 G.) 32 ; Drayton v. Rose, 7 Rich. Bq. 333 ; Jones v. Shoemaker, 35 Ga. 154 ; 
 Brownill v. De Wolf, 3 Mason {C. C.) 494 ; Reynolds v. Shirely, 7 Ohio 363. 
 
DESCRIPTIONS OF FREEHOLD LANDS. 15 
 
 remaining trustees, it was held that the after-acquired lands did 
 not pass. (Bowes v. Bowes, 2 B. & P. 500.) 
 
 So where the testator by the codicil, reciting that he had by 
 his will devised all his estates in the town of Birmingham to A., 
 revoked the devise and devised all and every his said estate to 
 B. (Monypenny v. Bristow, 2 Buss. & My. 117.) 
 
 But in a case similar to the above, if the testator go on to say, 
 " and in all other respects I confirm my said will," it seems that 
 the latter words take the case out of the authority of Bowes v. 
 Bowes, and bring down the description of the will to the date of 
 the codicil. (Doe v. "Walker, 12 M. & W. 591.)i 
 
 * Codicil does not revive a revoked Devise. — The eifect of 
 
 r*i6 
 
 the execution of a codicil under the above rule, is to ex- •- 
 tend the description contained in the will to other property 
 besides that previously comprised in it ; but if, immediately 
 before the date of the codicil, there were no property to which 
 the description in the original will applied, i. e., if the property 
 originally comprised in the devise had been withdrawn from its 
 operation, it does not appear that the codicil would have the 
 effect of reviving the devise thus revoked, sO as to cause after- 
 acquired lands to pass by it. Thus, suppose the testator by the 
 will to devise all his lands in the parish of A., and subsequently 
 to sell all his lands in that parish, afterwards to acquire other 
 lands in that parish, and finally to make a codicil to the will : it 
 does not seem that the codicil would have the effect of causing 
 the description in the will to apply to such after-acquired lands. 
 
 ' But in Haven v. Foster, 14 Pick. 541, where the original devise was of 
 " half of all my estate to A.," and by a codicil the said devise was revoked, 
 and to B. was devised " all and every part of the estate which in said will 
 was given to" A., it was held that lands acquired between the date of the 
 will and the codicil passed. From this it would seem that a mere repeti- 
 tion of, or reference to, the terms of the description in the original devise, 
 does not confine the devise to the same lands. From the fact that the 
 devise is expressed to be identical, it does not follow that the lands to be 
 included therein are to be considered identical also ; though perhaps 
 this principle should be applied with caution to any but such general 
 devises as that above mentioned, that is, of "all my estate," or a certain 
 proportion of " all my estate." 
 2 
 
16 OLD LAW AS TO LEASEHOLDS. 
 
 " It is true that a codicil republishing a will makes the will speak 
 as from its own date, for the purpose of passing after-purchased 
 lands, but not for the purpose of reviving a legacy revoked, 
 adeemed or satisfied. The codicil can only act upon the will as 
 it existed at the time: and at the time, the legacy revoked, 
 adeemed or satisfied formed no part of it. Any other rule would 
 make a codicil, merely republishing a will, operate as a new 
 bequest." (Powys v. Mansfield, 3 Myl. & Or. 376.) 
 
 2. Leaseholds. 
 
 In a will made before 1838, a devise of " all my freehold 
 estates," can only mean, " all I possess now, i. e., at the date of 
 the will," the testator having no power to devise by anticipation 
 freehold estates which he might acquire subsequently. But as 
 the testator could, by a will made before 1838, bequeath lease- 
 holds for years which he might acquire after the date of it, a 
 gift of " all my leasehold estates" in such a will is ambiguous : it 
 may mean either '' all I now possess," or " all I shall possess at 
 my death." So a gift of " my leasehold premises at A." may 
 mean "the lease I now possess of premises of A.," or "the 
 ^l »-> leasehold interest which I may have at my death *in the 
 premises at A., which I now hold on lease." But in the 
 absence of a contrary intention, the rule is (in wills made before 
 Jan. 1, 1838), that— 
 
 Rule. A bequest of leaseholds primd facie speaks from 
 the date of the will, and does not include after-acquired 
 leaseholds, nor a renewed lease. (James v. Dean, 11 Ves. 
 383.)^ 
 
 Thus if the testator bequeaths " the premises I hold on lease 
 at A.," and after the date of the will takes a renewed lease of 
 the same premises, such after-acquired lease does not, primd 
 facie, pass under the bequest. ' 
 
 "I agree that in Coppin v. Fernyhough, 2 Bro. C. C. 291, 
 
 ^^Warner v. Van Swearingen, 6 Dana (Ky.) 202. 
 
GENERAL PERSONAL ESTATE. 17 
 
 and Hone v. Medcraft, 1 Bro. C. 0. 260, this general principle 
 is established : that where there is a general bequest in the terms 
 ' all my leasehold estates,' and the testator afterwards surrenders 
 and takes a new lease, that is a revocation. But it depends upon 
 the context of the whole will, whether that general doctrine is to 
 be applied. A leasehold interest for years may be disposed of 
 by a will made before the testator acquired that interest. But 
 the general doctrine is, that you must show that intention. This 
 will upon some parts, particularly the last bequest, must be 
 interpreted to pass the future renewed lease." Per Lord Eldon 
 (James v. Dean, 11 Ves. 390.) 
 
 3. General Personal JEstate. 
 With respect to the general personal estate, which consists of 
 fluctuating particulars, and is not ascertained till the death, a 
 different rule prevailed ; and (in wills made as well before as after 
 Jan. 1, 1838),— 
 
 Rule. A bequest of "all my personal estate," or "the 
 residue of my personal estate," means the personal estate 
 existing at the death of the testator.^ 
 
 The rule was the same as to a bequest of " all my household 
 goods." (Masters v. Masters, 1 P. Wms. 424.) 
 
 But this rule did not, in wills made before Jan. 1, 1838, extend 
 to other bequests of personal estate. 
 
 *Thus, where a testator bequeathed "as many of my r-^..^ 
 shares in the Grand Junction Canal Navigation as I shall 
 leave children me surviving or born in due time after my death," 
 assigning one share to each such child, only the shares existing 
 at the date of the will (though less than the number of children) 
 were held to pass. (Miller v. Little, 2 Beav. 259.) So a bequest 
 of " all the property that I possess in the public funds" was held 
 to mean "all I now possess," i. e., at the date of the will. 
 (Cockran v. Cockran, 14 Sim. 248.) 
 
 1 Canfield v. Bostwick, 21 Conn. 553 ; Garrett z). Garrett, 2 Strobh. Eq. 283 ; 
 Dennis v. Dennis, 5 Rich. L. 468 ; Warner v. Van Swearingen, 6 Dana 196. 
 
18 NEW LAW. 
 
 II. New Law. 
 In wills made or republished on or after Jan. 1, 1838, the 24th 
 section of the Wills Act establishes, with respect to devises and 
 bequests generally, the rule that, — 
 
 RuLe. Descriptions of real or personal estate, the sub- 
 ject of gift, prima facie refer to and comprise the property- 
 answering to the description at the death of the testator. 
 (Stat. 1 Vict. c. 26, s. 24.) 
 
 Thus a devise of "all my freehold lands," or "all my 
 leasehold estates" (Lady Langdale v. Briggs, 3 Sm. & G. 
 246, 2 Jur. N. S. 982), passes after-acquired freeholds or 
 leaseholds. So a bequest of "my Nevf 3i per Cent. 
 Annuities" passes all the stock of that description pos- 
 sessed by the testator at his death. (Goodlad v. Burnett, 
 1 K. & J. 341. )i 
 
 ^ Statutes abolishing or modifying the rule of common law in respect to 
 the time from -which devises of freeholds speak have been passed in almost 
 every state. 
 
 - In Nevr Jersey, Maryland, Virginia, North Carolina, South Carolina, 
 Georgia and Kentucky, the rule of construction contained in the text is 
 adopted in terms or in substance. In some of these states, as in England, 
 the rule of construction applies only to vfills made or republished after the 
 act went into effect ; that is, in Virginia after July 1, 1850 : Baines ». Barker, 
 13 Gratt 128 ; in North Carolina after February 8, 1844 : Battle v. Speight, 
 9 Md. 292 ; in South Carolina after December 21, 1858 ; in Georgia after 
 January 1, 1861 : Gibbon v. Gibbon, 40 Ga. 576 ; and in Kentucky after 
 July 1, 1852 ; but in Maryland by its terms the Act of 1849 applies to 
 all wills taking effect after June 1, 1850, and to all wills taking effect 
 after February 23, 1850, if an intention to dispose of after-acquired real 
 estate appear therein : Alexander v. Worthington, 5 Md. 478 ; Magruder 
 D. Carroll, 4 Id. 346 ; Wilson -o. Wilson, 6 Id. 488. But in the re-enact- 
 ment of this provision by the Revised Code of 1860, the section which ex- 
 tended the operation of the rule to wills made before June 1, 1850, was 
 omitted, and since the date of that Code the rule extends only to wills 
 made after June 1, 1850 : Johns v. Hodges, 33 Md. 515. In New Jersey 
 the act applies to all wills taking effect after March 12, 1851. 
 
 In the other states, while the common law rule is not perhaps wholly 
 
NBW LAW. 18 
 
 Stat. 1 Vict. c. 26, s. 24. "And be it further enacted, that 
 every will shall be construed, with reference to the real estate 
 
 abolished, it is nevertheless very materially modified and abridged in ita 
 operation. 
 
 In New York (by the Code taking effect January 1, 1830), Alabama (by 
 the Code taking effect January 17, 1853), and Indiana (by the Revised Code 
 of 1843), the rule is, that a devise of all real estate or in terms denoting an 
 intention to dispose of all real estate, shall pass all real estate owned by 
 the testator at the time of his death. In Pennsylvania (Act 8 April, 1833), 
 the rule is that a general devise of real estate shall pass after acquired 
 real estate unless an inten.tion appear to the contrary. It is perhaps 
 doubtful whether this phrase " general devise" means a devise of all real 
 estate, thus making the rule identical with that of New York, &c., or 
 whether it would include all devises in terms of general description, such 
 as all real estate of a particular kind or in a particular place, which would 
 make the rule wider in its operation than that of New York. Pond v. 
 Bergh, 10 Paige 149. 
 
 In Indiana it has been held that the statute applies only to cases in 
 which the will purports to devise all the real estate equally or in propor- 
 tions among all the devisees, and not to oases of residuary devises following 
 devises of particular pieces of property : Bowen v. Johnson, 6 Ind. 111. 
 In New York, however, it would appear to apply to devises of all real 
 estate not otherwise disposed of: Brown v. Brown, 16 Barb. 569 ; Youngs 
 V. Youngs, 45 N. Y. 254. 
 
 These statutes give a new rule of construction and therefore apply only 
 to wills made after the respective acts took effect : Parker v. Bogardus, 1 
 Seld. 311 ; Gable v. Daub, 40 Penn. St. 223. 
 
 Literally construed, these statutes give power to dispose of after-ac- 
 quired estates only by means of a certain kind of devise, viz., a general 
 devise or a devise of all real estate, and they not only give the power but 
 also a rule of construction by which an intention is presumed to execute 
 it by these devises. It would seem reasonable that if the statutes in the 
 oases mentioned both grant the power and presume the intention, in 
 cases where the intention is plain, the power should not be wanting. Ac- 
 cordingly in Pond v. Bergh, 10 Paige 149, Chancellor Walworth was of 
 opinion that while a simple devise of all property of a particular _kind or 
 in a particular place would not come within the statute, yet if there was a 
 plainly expressed intention to dispose of all property of that description, 
 or in that place, at the time of the testator's death, it would be clearly 
 within its intent and spirit, though not within its letter. If this then, be 
 a correct view of these statutes, their effect is the same as those included in 
 the class next mentioned. 
 
18 NEW LAW. 
 
 and personal estate comprised in it, to speak and take effect as 
 if it had been executed immediately before the death of the tes- 
 tator, unless a contrary intention shall appear by the will." 
 
 In Alabama an after-acquired interest in an estate specifically devised 
 will pass by will. 
 
 In the remaining states the statutes are as follows : (1.) Those which 
 declare that after-acquired real estate shall pass by a devise when such 
 appears to have been the intention of the testator, or (2) in which power is 
 simply given to dispose of after-acquired real estate. The states in which 
 such statutes have been passed, with dates at which the respective statutes 
 took eifect are as follows : Maine, October 22, 1840 ; New Hampshire, 
 March 1, 1843 ; Vermont, November 19, 1839 ; Massachusetts, April 30, 
 1836 ; Rhode Island, July 1, 1857 ; Delaware, January 1, 1853 ; Ohio, 
 October 1, 1840; Tennessee, 1842; Michigan, September 1, 1838; "Wis- 
 consin, January 1, 1850 ; Minnesota, 1851 ; Iowa, 1851 ; Kansas, March 
 2, 1858 ; California, April 10, 1850 ; Connecticut, June 2, 1830 ; Florida, 
 November 20, 1828 ; Mississippi, 1821 ; Texas, January 28, 1840 ; IIU- 
 nois, 1845 ; Missouri, 1807 (see Applegate v. Smith, 31 Mo. 169 ; Liggart 
 V. Hart, 23 Mo. 137). And in Virginia and Kentucky similar statutes 
 were in effect from January 1, 1785, and March 1, 1797, respectively, to 
 the respective dates of the passage of the statutes before mentioned as 
 being in force now in those states : Warner v. Swearingen, 6 Dana 199 ; 
 Marshall v. Porter, 10 B. Mon. 2 ; Allen v. Harrison, 3 Call. 304. 
 
 These statutes give no new rule of interpretation and have therefore in 
 most of the states been held to apply to all wills taking effect after the date 
 of the act : Loveren v. Lamprey, 2 Foster (N. H.) 447 ; Cushing v. Alwyn, 
 12 Mete. 174. But in Brewster v. M'Call, 15 Conn. 290, the statute in 
 that state was held to apply only to wills made after the act. 
 
 Under these statutes an express declaration of an intention to dispose of 
 after-acquired property is not necessary. It is sufficient if it can be 
 inferred from the terms of the will : Brimmer v. Sohier, 1 Cush. 133 ; 
 Wynne v. Wynne, 2 Swan (Tenn.) 407. It has therefore been frequently 
 held that a devise of all real estate manifesting an intention not to die in- 
 testate of real estate, will pass after-acquired estates : Loveren v. Lamprey, 
 2 Foster 444 ; Brimmer v. Sohier, 1 Cush. 133 ; Cushing v. Alwyn, 12 
 Meto. 174 ; Pruden v. Pruden, 14 Ohio St. 253 ; Wynn v. Wynn, 2 Swan 
 407 ; Henderson v. Ryan, 27 Texas 674 ; Willis ». Watson, 4 Scam. 
 (111.) 67. 
 
 But on the contrary, under the old statutes in Virginia and Kentucky, it 
 was held that the intention must be expressed or inferred from the lan- 
 guage of the will as the actual intention, and that a devise of all real estate 
 speaks from the date of the will only: Allen v. Harrison, 3 Call 304; 
 
"WILL SPEAKS FROM DEATH. 18 
 
 The words "■with reference to the real and personal estate 
 comprised in it," mean " so far as the will comprises dispositions 
 of real and personal estate." (Per Turner, L. J., Lady Lang- 
 dale V. Briggs, 2 Jur. N. S. 996.) 
 
 *Uffect of Sect. 24 on the Execution of Powers. — This 
 section will have an important effect in causing devises and L 
 bequestg to operate as an execution of powers of appointment 
 created after the date of the will. We must distinguish between 
 general and special powers of appointment, the former of which 
 are affected by the 27th section of the Wills Act (post. Chap. II.) 
 as well as the 24th, while the latter are affected by the 24th sec- 
 tion only. 
 
 {a.) As regards general powers of appointment, the effect of 
 the 24th and 27th sections combined will be, it appears, to make 
 all general devises and bequests operate as ani execution by anti- 
 cipation of all general powers vested in the testator at the time 
 of his death, although created by an instrument subsequent in 
 date to the will, unless the language of the power be such as to 
 forbid its being exercised by anticipation. (Stillman v. Weedon, 
 16 Sim. 26 ; so Thomas v. Jones, 2 John. & H. 475.)^ 
 
 Thus, if by a deed subsequent to the date of the will, property 
 be limited " upon such trusts as A. (the testator) shall by deed 
 or will appoint," the will may operate on the property subject to 
 the power, the word " shall" not containing any emphatic refer- 
 ence to future time. But if the property be given on such trusts 
 as the testator "shall hereafter appoint," the power cannot, it 
 appears, be executed by an antecedent will. (Stillman v. Weedon, 
 16 Sim. 26.) 
 
 (5.) It appears from the above case of Stillman v. Weedon, 
 that even special powers of appointment created after the date of 
 the will may be exercised by a bequest contained in the will, if 
 
 Smith V. Edrington, 8 Cranoh 66 ; Warner v. Swearingen, 6 Dana 199 ; 
 Marshall v. Potter, 10 B. Mon. 2. 
 
 ^ Where a general power is given to a number of persons and the sur- 
 vivor of them, a general devise made during the joint lives by the ultimate 
 survivor will operate as an execution of the power. Thomas v. Jones, 2 
 John. & H. 475. 
 
19 WILL SPEAKING FROM ITS DATE. 
 
 the bequest contain a sufficient description of the particular pro- 
 perty afterwards made the subject of the power to show that the 
 testator had the subject of the power in view, which is the test of 
 execution as regards special powers. (See post, Chap. II.) In 
 Stillman v. Weedon, 16 Sim. 26, the testator by a will made in 
 1845, bequeathed to his children " all the effects due to me from 
 the estate of T. Hedges." The testator subsequently , by deed 
 settled the effects due to *him from the estate of Hedges 
 -* in trust for himself for life, with remainder to his children 
 as he should by deed or will appoint. It was held that the effect 
 of the 24th section being to make the will speak from the death, 
 and the property comprised in the settlement being distinctly re- 
 ferred to, the will operated as an execution of the after-acquired 
 special power of appointment contained in the settlement. 
 
 Exceptions to Sect. 24. — The exceptions to the rule estabhshed 
 by the 24th section will fall under two heads : 
 
 (1.) The will refers to its own date. — Where the date of the 
 will as opposed to the death, is distinctly referred to. (Cole v. 
 Scott, 1 Mac. & G. 518.) 
 
 Thus if the testator devise " all that my messuage with the 
 buildings and lands belonging thereto now occupied by me at 
 W.," it is clear that a close of land taken into occupation by the 
 testator after the date of the will will not pass, notwithstanding 
 the 24th section. (Hutchinson v. Barron, 6 Hurlst. & Nor. 583.) 
 
 In Hepburn v. Skirving, 4 Jur. N. S. 651, a bequest of " all 
 the shares which I now possess in the Union Bank at C," was 
 held to pass after-acquired shares : but this seems doubtful. 
 
 In Doe V. Walker, 12 M. & W. 591, it was held that under a 
 devise of " all the estates of which I am seised in the parish of 
 B.," after-acquired lands passed, the word " am" not containing 
 any emphatic reference to present time. (Lord Lilford v. Powys 
 Keck, 30 B. 300.)^ 
 
 1 In Castle v. Fox, L. K. 11 Eq. 553, Malins, V.-C, dissents from the de- 
 cision in Cole v. Soott. He says (p. 554), " The word ' now' does not occur 
 here, and therefore it is not necessary for me to decide in opposition to 
 that case ; hut I have no hesitation in saying that if the word ' now' had 
 
•WILL SPEAKING FROM ITS DATE. 20 
 
 (2.) Specific description. — The operation of the rule ^111 be 
 excluded by a sufficient particularity in the description of the 
 specific subject of gift, showing that an object in existence at the 
 date of the will was intended. If the thing intended be individ- 
 ualized by a special description, as if the gift be of " my brown 
 horse," or "that freehold estate which I purchased of Mr. B." 
 (Emuss V. Smith, 2 De Gr. & Sm. 722), the description shows that 
 it must have been intended to refer to the state of things exist- 
 ing at the date of the will, and not at the death of the testator. 
 
 *But the word " my " alone is insufficient to show a con- p^^o-i 
 trary intention: for a gift of "my 3 per Cent. Consols," 
 may mean " the 3 per Cent. Consols which I may possess at my 
 death." "When a bequest is of that which is generic, of that 
 which may be increased or diminished, then I apprehend the 
 Wills Act requires something more on the face of the will for the 
 purpose of indicating a contrary intention, than the mere circum- 
 stance that the subject of the bequest is designated by the pro- 
 noun " my." (Per Wood, V.-C, Goodlad v. Burnett, 1 K. & 
 J. 341).^ 
 
 occurred here, I should have come to the same conclusion that I now do 
 and decided in opposition to Cole v. Scott. 
 
 In Cole V. Scott the testator made a distinction between property owned 
 at the time of making his will and property subsequently to be acquired. 
 As to freeholds and copyholds the words were " now vested in me ;'' but 
 as to leaseholds is added " or shall be vested in me at the time of my 
 death." The words "now owned" or other like words denoting present 
 possession will not confine a devise or bequest to property owned at the 
 date of the will, without aid yrom the context: Wagstaff «. Wagstaff, L. E. 
 8 Eq. 230. The question is whether they were used with the intention of 
 limiting the description, or of merely stating a fact which may be rejected 
 as surplusage, and the latter is the primd facie construction : Garrison v. 
 Garrison, 5 Dutch. (N. J.) 153 ; Roney v. Stiltz, 5 Whart. 385. 
 
 ^ In re Gibson, L. R. 2 Bq. 672. 
 
 The same principles are involved in this question of special description 
 as in that of the time of possession. If the testator appears to have intended 
 to make the particulars he refers to, essential parts of his description the 
 devise will be confined to the property so described, otherwise they will be 
 rejected as surplusage. Thus a devise " of all that messuage partly lease- 
 hold and partly freehold," will pass a subsequently purchased reversion in 
 the premises : Miles v. Miles, L. K. 1 Eq. 246. 
 
21 WILL SPEAKING PROM DEATH. 
 
 In Webb v. Byng, 1 K. & J. 580, the devise was of "my 
 Quendon-Hall estates in Essex ;" which was held to be " an arbi- 
 trary designation which had acquired a particular meaning in the 
 mind of the testatrix," and for that reason not to include certain 
 small properties acquired after the date of the will, though merely 
 additions to the main subject of the devise. But it would seem 
 that the meaning attached to the term "my Quendon-Hall es- 
 tates " by the testatrix might well include prospectively such 
 additions as might afterwards be made by her to the subject of 
 the devise, as in the case of any collective bequest, e.g., of " my 
 household goods," or " my furniture." 
 
 A general devise, followed by a particular enumeration, which embraces 
 all the real estate owned by the testator at the date of the devise, will in- 
 clude after-acquired land. Ex parte Champion, 1 Busb. Eq. 246. 
 
*CHAPTERII. |-^22 
 
 DEVISES AND BEQUESTS, WHEN OPERATING IN EXECUTION OF 
 
 POWERS. 
 
 Testamentary dispositions do not, as might be supposed, 
 operate bj force of all powers enabling the testator to make the 
 dispositions in question. If the •will does not purport to be in 
 execution of the particular power, or of all powers vested in the 
 testator, it is a rule that (subject to the exception introduced by 
 the 27th section of the Wills Act, hereafter mentioned), — 
 
 Rule. Devises and heqnests primd facie do not include 
 property not the testator's own, but over which he has a 
 power of disposition. (Clere's Case, 6 Co. 17, b.; Andrews 
 V. Emmot, 2 Bro. C. C. 297 ; Webb v. Honnor, 1 J. & 
 W. 352 ; Hougham v. Sandys, 2 Sim. 95.)^ 
 
 Thus a gift of "all my real estate" or "all my personal es- 
 tate," will not include real or personal estate settled on the tes- 
 tator for life, with remainder as he should by deed or will appoint, 
 and in default of appointment for his children. 
 
 " To execute a power there must be a direct reference to it, or a 
 clear reference to the subject, or something upon the face of the 
 will or independent of it some circumstance, which shows that 
 the testator could not have made that disposition without having 
 intended to comprehend the subject of his power." (Per Lord 
 Alvanley, 3 Ves. 300.) 
 
 " A donee of a power may execute it without referring to it, 
 or taking the slightest notice of it, provided the *intention r*oq 
 to execute it appear Whore, however, the power is 
 
 1 Johnson v. Stanton, 30 Conn. 303 ; Wetherill v. Wetherill, 18 Penn. 
 St. 266 i Bingham's Appeal, 64 Id. 349 ; Davis v. Vincent, 1 Houat. 426 ; 
 Mory V. Mitchell, 18 Md. 241 ; Collier's "Will, 40 Mo. 329. 
 
23 POWERS WHEN EXECUTED. 
 
 not referred to, the property comprised in it must be mentioned, 
 so as to manifest that the disposition was intended to operate over 
 it ; the donee must do such an act as shows that he has in view 
 the thing of which he had a power to dispose. (1 Sugd. Pow. 
 385, 6th ed.y 
 
 Exception. The Property referred to. — But if the property 
 subject to the power be sufficiently described, so that it is clear 
 that the testator had in view the subject of the power, the devise 
 or bequest will operate as an execution of the power. 
 
 Thus, in Ke David's Trusts, 1 Johns. 495, where the descrip- 
 tion was, " I bequeath to A. all the residue of my property, to be 
 found in the Three and a Half per Cent. Reduced Bank Annuities 
 (now reduced to Three and a Quarter per Cent.), and all other 
 property whatsoever and wheresoever," and the testatrix had no 
 stock of her own at the date of the will, or at any time after- 
 wards, the stock in question, over which the testatrix had a power 
 of appointment, was held to pass. 
 
 In Innis v. Sayer, 3 Macn. & G. 606, the testatrix having a 
 power of appointment over several sums of stock, but having no 
 stock of her own at the date of the will or at any time afterwards, 
 bequeathed to one charitable institution " lOOOZ. in the 3 per 
 Cent. Consols," to another " 500Z. in the 3 per Cent. Consols," 
 &c., and then added, "iAe remainder in the Three per Cents., 
 and three separate sums in the New 3J per Cents., with lOOZ. a 
 year Long Annuities, and any other property I may die possessed 
 of, I leave to my brothers." It was held that all the legacies 
 were specific gifts out of the stock subject to the power. 
 
 In Lownds v. Lownds, 1 You. & Jer. 445, the property sub- 
 ject to the power being the sum of 2500L in the funds, the testa- 
 tor by the will directed 500Z. to be sold out of the funds, and 
 directed "fAe 2000Z. to remain in the funds:" it was held that 
 the power was executed. 
 
 ' In Massachusetts it is held that a general devise or bequest will operate 
 in execution of a power, if there be nothing to show a contrary intention ; 
 Amory «. Meredith. 7 Allen 397 ; Bangs v. Smith, 98 Mass. 273 ; Willard 
 t!. Ware, 10 Allen 267. 
 
WHAT A SUFFICIENT DESCRIPTION. 23 
 
 Where a testatrix having a power of appointment over a lease- 
 hold estate and certain sums of stock, bequeathed *to A. pm-oa 
 all the property she possessed at her decease except 501. of 
 her Bank Stock which she gave to her executors, the will oper- 
 ating as an execution of the power as to the stock was held to 
 execute the power, also as to the leasehold estate. (Walker v. 
 Mackie, 4 Russ. 76.) But this case was disapproved of in 
 Hughes V. Turner, 3 Myl & K. 697. 
 
 In some cases, however, the language of the whole will taken 
 together, may give to the whole will the character of an appoint- 
 ment under the power. (Hunloke v. Gell, 1 Russ. ^ My. 615 ; 
 Churchill v. Dibben, 1 Sugd. Pow. 407, 6th ed.) 
 
 What is not a sufficient Description. — A bequest of a sum of 
 stock of the same description as that subject to the power is not 
 a description of the property subject to the power, so as to show 
 an intention to execute the power, but is a mere general legacy. 
 (Nannock v. Horton, 7 Ves. 391.) There the bequest was " I 
 give 2001. 3 per Cent. Consols;" Lord Eldon said, " That sum is 
 so given that it cannot be disputed, that if when he died, he had 
 not had any stock, but had other personal estate, that stock must 
 have been purchased for the legatee. It is not specific. It 
 would operate only as a direction to purchase stock, if he died 
 without any stock; and it is very difficult to say, that what would 
 amount to that direction in a will is to be construed into a gift of 
 that which was not his to give, but over which he had a power." 
 (7 Ves. 399.)! 
 
 ' Where the testatrix had a power of appointment over certain Three 
 per Cent. Consols, and bequeathed all the money belonging to her in the 
 Three per Cent. Consols or in any other stocks or funds of Great Britain 
 and all other moneys she might die possessed of, and she had no stock at 
 the time of her making her ■will, or afterwards, except the consols, it was 
 held that the power was executed. In re Gratwick's Trusts, L. K. 1 Bq. 
 177. But in Mattingley's Trusts, 2 Jo. & H. 427, where the words of the 
 will were "as to all my money in the funds and all the residue of my per- 
 sonal estate I bequeath," &c., and the testator had no money in the funds, 
 except that he had power of appointment over certain consols, it was held 
 the power was not executed. V. C. Wood held that the test was whether 
 the words would include after acquired property. 
 
24 KULB IN DENN V. ROAKE. 
 
 Identity of amount.— And the gift by will of legacies identi- 
 cal in amount with the fund subject to the power, does not in 
 general show an intention to execute the power. 
 
 Thus in Jones v. Tucker, 2 Mer. 533, where the testatrix 
 having power by will to appoint the sum of 100?., gave " the sum 
 of lOOZ. to A.," the power was held not to be executed ; and an 
 inquiry to show that the testatrix had no property of her own 
 was not allowed. 
 
 So in Davis v. Thorns, 3 De G. & Sm. 347, where the fund 
 subject to the power was lOOOL, and the testator bequeathed 
 legacies an^ounting together to lOOOZ., the power was held not to 
 be executed. "According to authority, the circumstances of 
 *9K-\ legacies being identical in *amount with a fund subject 
 to a power, and of the insufficiency of the donee's own pro- 
 perty to answer the bequests given by the will, are not enough 
 to raise more than a conjecture, and therefore not enough to form 
 grounds of judicial determination." (Davis v. Thorns, 3 De G. 
 & Sm. 347.) 
 
 These, however, were even sums : if the fund subject to the 
 power were fractional, as (e. g.) 1666Z. 6s. 8d. 3 per Cent. Con- 
 sols, and the will contained a bequest of that particular sum, 
 qu. : whether the coincidence in amount might not sufficiently 
 demonstrate the fund subject to the power as being in the con- 
 templation of the testator.^ 
 
 2. Denn v. Roahe. 
 
 The rule that devises and bequests do not operate in execu- 
 cution of powers is, however, qualified, as regards real estate, 
 by another rule, viz. : — 
 
 Rule. If a testator devise " all his lands," or " all his 
 lands in A.," or " all his real estate," and have at the 
 
 1 In White v. Hicks, 33 N. Y. 387, and Andrews v. Brumfield, 32 Miss, 
 108, it was held that an intention to execute a power may be gathered 
 from the condition of the testator's personal estate at the time of making 
 his will by comparing it with the dispositions made in the will, and the 
 more especially when the will is made in extremis. 
 
POWER PARTIALLY EXECUTED. 25 
 
 time of the devise no lands in his own answering to the 
 description, lands over which he had a power only will 
 pass by the devise. (Standen v. Standen, 2 Yes. jun. 
 589 ; Denn v. Roake, (H. L.), 6 Bing. 475, E. C. L. R. 
 vol. 9.)i 
 
 " If a ■ffill contain a devise of all the testator's lands generally, 
 and he has some lands upon which the will may work by his in- 
 terest, the law will attribute the will to his interest ; and land of 
 which he has only a power to deyise will not pass. So if the 
 will be of all his lands in a county or place named, and he has 
 lands of his own therein. On the other hand, if the testator has 
 no lands, or none in the county or place named, upon which the 
 will may work by his interest, there the law will attribute the 
 will to his power, and will infer that he intended to execute his 
 power : because if that be not done, the will will be void, either 
 wholly or so far as respects the county or place named." (Denn 
 V. Roake, 5 B. & C. 732, E. C. L. R. vol. 11.) 
 
 Leaseholds. — The rule in Denn v. Roake has been held r^no 
 *to apply to bequests of leaseholds for years. (Grant v. 
 Lynam, 4 Russ. 292.) Thus if a testator having no leaseholds 
 of his own, but having a power of appointment over leaseholds, 
 bequeaths " all my leasehold property," the leaseholds subject to 
 the power pass, {lb.) 
 
 The rule in Denn v. Roake is unaffected by the Wills Act, and 
 applies (as regards special powers of appointment) to wills made 
 or republished on or after January 1, 1838. (Lake v. Currie, 
 2 D, M. & G. 547.) " To hold that cases which before the 
 Statute would have been an execution are not so now, would be 
 contrary to the whole scope of the Act." (lb.) 
 
 Power partially executed. — It has been held that in cases 
 where the will, by the operation of the rule in Denn v. Roake, is 
 construed as referring to part of a subject, or to some of many 
 subjects, over which a power of appointment extends, that cir- 
 cumstance is not sufficient alone to cause the will to operate as 
 
 ' Pepper's Will, 1 Pars. Sel. Eq. Ca. (Pa.) 441. 
 
26 WILL OP FEME COVERT. 
 
 an execution of the power as to such parts or such subjects as 
 are not referred to. (Lewis v. Llewellyn, T. & R. 104 ; Hughes 
 V. Turner, 3 My. & K. 666.)i 
 
 In Lewis v. Llewellyn, T. & R. 104, the testator having a 
 power of appointment over freehold and copyhold estates, and 
 having freehold estates of his own, but" not copyhold, devised all 
 his freehold and copyhold estates. The devise was held to oper- 
 ate as an execution of the power as to the copyholds, but not as 
 to the freeholds. 
 
 So in Napier v. Napier, 1 Sim. 28, where the testator de- 
 vised all his lands in nine parishes, having no lands of his own 
 in three of them, it was held that lands over which he had a 
 power of appointment in those three parishes passed by the de- 
 vise, but that lands subject to the same power in another parish, 
 in which the testator had lands of his own, did not pass by it. 
 
 Will of Feme Oovert. — It has been contended that as a married 
 woman has no general power of testamentary disposition, any 
 devise or bequest made by her must, upon the principle of Denn 
 V. Roake, be construed to pass property over which she had a 
 
 * 
 
 27] 
 
 power of *appointment : it being presumed (unless the con- 
 
 trary were shown) that she had no property of her own on 
 which the will could operate. It seems to be established, however, 
 by the cases of Lovell v. Knight, 3 Sim. 275, and Lempriere v. 
 Valpy, 5 Sim. 108, that a general devise or bequest by a mar- 
 ried woman does not stand on a diflferent footing, as regards this 
 question, from other wills : 'i. e., does not, without more, pass 
 property the subject of a power vested in the testatrix. But in 
 Shelford v. Acland, 28 B. 10, Romilly, M. R., was of opinion 
 that a bequest of personal estate by a married woman would 
 operate as an execution of a power, if it were shown that she had 
 no personal estate of her own which she could dispose of by will. 
 Sed qu. : inasmuch as the bequest would operate on property 
 which she might afterwards acquire to her separate use. Perhaps 
 
 But where testatrix specifically devised part of the real estate sub- 
 ject to the power, calling it her house and land, and then devised all the 
 residue of her estate of every nature and kind, it was held that the residuary 
 devise operated as an execution of the power as the remainder of the estate : 
 Blagge V. Miles, 1 Story's Rep. 454. 
 
NEW LAW AS TO QBNBKAL POWERS. 27 
 
 the construction -whicli refers a devise or bequest to a power 
 vested in the testator, would be somewhat more readily adopted 
 in the case of the will of a feme covert, than of other wills.^ 
 
 3. New Law. 
 
 The 27th section of the Wills Act introduces a distinction 
 between general powers of appointment, or powers unlimited in 
 respect of the objects to whom an appointment may be made, 
 and special powers, or powers limited to a particular class of 
 objects. Special powers are unaffected by the statute ; but with 
 respect to general powers, it is enacted that, — 
 
 Rule. In wills made or republished on or after Jan. 1, 
 1838, general devises of real estate, and bequests of per- 
 sonal estate described in a general manner, are construed 
 as including real or personal estate which the testator 
 may have power to appoint in any manner he may think 
 proper ; unless a contrary intention appear by the will. 
 (Stat. 1 Vict. c. 26, s. 27.)^^ 
 
 » " And be it further enacted, that a general devise of the real estate of 
 the testator, or of the real estate of the testator in any place, or in the occu- 
 pation of any person mentioned in his will, or otherwise described in a 
 general manner, shall be construed to include any real estate, or any real 
 estate to which such description shall extend (as the case may be) which he 
 may have power to appoint in any manner he may think proper, and shall 
 operate as an execution of such power, unless a contrary intention shall 
 appear by the will ; and in like manner a bequest of the personal estate of 
 the testator, or any bequest of personal property described in a general 
 manner, shall be construed to include any personal estate, or any persoaal 
 estate to which such description shall extend (as the case may be) which 
 he may have power to appoint in any manner he may think proper, and 
 
 ' But see also Attorney-General v. Wilkinson, L. R. 2 Eq. 818., In 
 Bradish v. Gibbs, 3 Johns, Ch. 523, it was held that a will of a married 
 woman being inoperative unless as an execution of a power, it must be 
 held to operate as an execution thereof. 
 
 ^ Similar statutes have been adopted in New York, North Carolina, Michi- 
 gan, Wisconsin, and Minnesota. In New York the statute applies only to 
 3 
 
28 WHAT AKE GENERAL POWERS. 
 
 ^90-, *If a power of appointment has already been exercised 
 "by deed, but with the reservation of a power of revoca- 
 tion and new appointment, it is clear that this section does not 
 cause a mere general devise or bequest to operate as an exercise 
 of the power of revocation. The power of appointment has been 
 already exercised : what remains is a power to revoke what has 
 been already appointed, and such a power is not within the scope 
 of the section. (Pomfret v. Perring, 5 D. M. & G-. 775.) 
 
 Power to appoint "in any manner" the donee may think 
 proper, in the 27th section, means " to any objects the donee may 
 think proper," and not " by any form of execution." 
 
 Thus a power to appoint generally by will (but not by deed) is 
 within the section. (1 Sugd. Pow. 7th ed. p. 369.) On the other 
 hand, a power to appoint in any manner to children, or any other 
 limited class of objects, is not, it appears, within the section. 
 (Cloves V. Awdry, 12 B. 604.) 
 
 It has been already considered (sup. Chap. I.) in what cases a 
 devise or bequest may, under this section, operate as an execu- 
 tion of powers acquired by the testator after the date of the will. 
 (Stillman v. Weedon, 16 Sim. 26.) 
 
 It is not an objection to the operation of a devise or bequest 
 as an execution of a power under this section, that the property 
 is described as the testator's own. Thus a gift of "property 
 which I am possessed of or entitled to," passes property subject 
 to a power of appointment in the testator. (Frankcombe v. Hay- 
 ward, 9 Jur. 344.) 
 
 ^nqi *The words " constituting A. B. my residuary legatee," 
 are suflScient under the section to operate as an execution 
 
 shall operate as an execution of such power, unless a contrary intention 
 shall appear by the will." 
 
 This section applies to the will of a married woman. (Bernard v 
 Minshull, Johns. 276.) 
 
 real estate ; but in Bolton v. De Peyster, 25 Barb. 576, Mitchell, P. J., was 
 of opinion that the courts are bound to apply the same rule to bequests of 
 personal estate. And the same opinion was expressed in Van Wert v. 
 Benedict, 1 Bradf. 123. 
 
GENERAL POWERS HOW EXECUTED. 29 
 
 of all general powers as regards personal estate. (Spooner's 
 Trusts, 2 Sim. N. S. 129.) 
 
 Legacies whether an execution of general powers. — It has been 
 held in Hawthorn v. Shedden, 3 Sm. & G. 293, that the gift 
 of general pecuniary legacies is a suflScient execution of a power 
 under this section, so as to make the legacies payable out of any 
 personal estate over which the testator may have a general power 
 of appointment: sed qu. It was said, that "general pecuniary 
 legacies with no particular fund indicated for their payment are 
 bequests of personal estate described in a general manner ; and, 
 therefore, where the proper assets of the testator are inadequate 
 without resort to personal estate over which the testator had a 
 general power of appointment, general pecuniary legacies are 
 within the operation of the 27th section, and the will must be 
 held to include and extend to the personal estate subject to the 
 power of appointment, so far as necessary to satisfy general 
 pecuniary legacies described in a general manner." (Ib.)^ 
 
 In Moss V. Harter, 2 Sm. & G. 458, a gift of " all my per- 
 sonal estate not otherwise effectually disposed of," was held not 
 to operate as an execution of a general power of appointment, 
 the property being settled, in default of appointment, in trust for 
 certain persons. But qu., inasmuch as the property was the tes- 
 tator's only to the extent of the power of appointment, and to 
 that extent it was not disposed of independently of the will. 
 
 ' Hawthorn v. Shedden is approved in Re Wilkinson, L. E. 4 Ch. App. 
 589. 
 
*30] *CHAPTEE III. 
 
 "LANPS," ETC., WHAT KINDS OF PROPERTY INCLUDED UNDER. 
 
 1. Copyholds. 
 
 Since the statute 55 Geo. 3, c. 192, supplying the effect of a 
 surrender to the use of the will, it is a rule that — 
 
 Rule. A devise of " lands," " real estate," &c., includes 
 copyhold lands as well as freehold. (Doe d. Clark v. 
 Ludlam, 7 Bing. 275 (E. C. L. R. vol. 20) ; Stat. 1 Vict. 
 c. 26, s. 26.) 
 
 " Before the Act 65 Geo. 3, c. 192, copyhold property -would 
 not have passed under a general residuary devise of real estate, 
 if there had been no surrender to the use of the will. But when 
 the statute has in effect supplied a surrender, the objection can 
 no longer prevail, and that brings the case within the decisions 
 which have determined that an equitable interest in copyholds 
 would pass before the statute, even where there had been no sur- 
 render." (Per Alderson, J., Doe d. Clark v. Ludlam, 7 Bing. 
 283, E. C. L. K. vol. 20.) 
 
 2. Leaseholds. 
 
 Rule. In wills made before Jan. 1, 1838, a devise of 
 "lands," or "lands and tenements," or "lands, tene- 
 ments, and hereditaments" (per Lord Eldon, in Thompson 
 V. Lawley, 2 B. & P. 313), does noi,primd facie, include 
 leaseholds for years, unless at the time of the devise the 
 testator had no freehold lands *answering to the 
 description. (Rose v. Bartlett, Cro. Car. 293; 
 Thompson v. Lady Lawley, 2 B. & P. 303.) 
 
 " If a man has lands in fee and lands for years, and devises all 
 
LEASEHOLDS. 31 
 
 his lands and tenements, the fee simple lands pass only, and not 
 the lease for years ; but if he has no fee simple, the lease for 
 years passes." (Rose v. Bartlett, Cro. Car. 293.) 
 
 The rule applies where the devise is of " lands in the parish of 
 A.," or any other limited description. 
 
 In Chapman v. Hart, 1 Ves. 271, Lord Hardwicke held, that 
 if a testator having freeholds and leaseholds in A.., devised all 
 his lands in A. by a will, attested by two witnesses only, the fact 
 that the will would be inoperative as regards the freeholds, did 
 not put the devise on the same footing as if the testator had had 
 no freeholds, in which case the leaseholds would have passed ; 
 but that the devise was altogether inoperative. 
 
 '■^Messuages." — It is not altogether clear whether the rule in 
 Rose V. Bartlett extends to other Avords besides "lands, tene- 
 ments and hereditaments;" as, for instance, "messuages" and 
 "farms." In Hartley v. Hurle, 5 Ves. 540, it was treated as 
 clear that a devise of " all my messuages, lands, tenements and 
 hereditaments" was within the rule. But it may perhaps be 
 doubte^ whether a devise of "messuages," not associated with 
 "lands" or "tenements," would not now (in a will prior to 
 1838) be held to include leasehold as well as freehold messuages. 
 And this observation applies somewhat more strongly to the 
 word "farms." (Lane v. Stanhope, 6 T. R. 345; Arkell v. 
 Fletcher, 10 Sim. 299.) 
 
 Exceptions. Leaseholds blended to ith freeholds. — But the rule 
 has not been so applied as to exclude portions of leasehold pro- 
 perty, blended in situation and enjoyment with the freeholds, 
 from passing along with the latter under a devise of "lands" or 
 "tenements." 
 
 Thus, in Hobson v. Blackburn, 1 Myl. & K. 571, where the 
 testator having a freehold house on Ludgate Hill, took a lease 
 for twenty-one years of premises behind, *which he threw r^t-qo 
 into the house, and occupied therewith for the purpose of 
 his trade, the whole was held to pass under a devise of " all my 
 messuage or tenement in Ludgate Hill, with the appurtenances," 
 although the devise was to limitations strictly applicable to free- 
 hold property only. So where the leasehold portion was held 
 
32 XEW LAW. 
 
 under a renewable lease from a college, and had been long in the 
 testator's family, and united in occupation with the freehold land. 
 (G-oodman v. Edwards, 2 Myl. & K. 759.) So where the lease- 
 hold portion was held for the residue of a term of 2000 years, 
 and let with the freehold to one tenant at an entire rent. (Swift 
 V. Swift, 1 De G. F. & J. 160.) 
 
 And the rule will readily yield to indications from the context 
 of an intention to pass leaseholds ; as where the devise was 
 expressed to be " subject to ground rents and other outgoings in 
 respect of the said lands," &c. (Hartley v. Hurle, 5 Ves. 540.) 
 And from the same case it would appear that a devise of lands, 
 tenements and hereditaments to trustees, their heirs, executors 
 and administrators, without more, is sufficient to pass leaseholds 
 for years. 
 
 Although the word "real estate" is more strictly appropriated 
 to freeholds than the word " lands," yet in Swift v. Swift, 1 De 
 G. F. & J. 160, a devise of all the testator's real estate in A. to 
 trustees "to hold to them and the survivor according to the 
 respective natures and tenures thereof," was held to pass lease- 
 holds for years as well as freeholds. 
 
 Ifew Law. — The 26th section of the Wills Act reverses the 
 rule in Rose i'. Bartlett, and eracts that, — 
 
 Rule. In wills made or republished on or after Jan. 1, 
 1838, every general devise of " lands," " lands in A.," 
 &c., primd facie includes leaseholds for years as well as 
 freeholds." (Stat. 1 Vict. c. 26, s. 26.)^ 
 
 ° Stat. 1 Vict. 0. 26, s. 26. " And be it further enacted, that a devise of 
 the land of the testator, or of the land of the testator in any place, or in 
 the occupation of any person mentioned in his will, or otherwise described 
 in a general manner, and any other general devise, which would describe 
 a customary, copyhold or leasehold estate, if the testator had no freehold 
 estate which could be described by it, shall be construed to include the 
 customary copyhold and leasehold estates of the testator, or his customary 
 copyhold and leasehold estates, or any of them, to which such description 
 shall extend, as the case may be, as well as freehold estates, unless a con- 
 trary intention shall appear by the will." 
 
 ' This statute has been adopted in Virginia and Kentucky. 
 
EEVERSIONART INTERESTS. 33 
 
 *Iii Wilson V. Eden, 5 Exch. 752, 21 L. J. Q. B. 385, .^gg 
 a testator by a -will made after 1837 devised "all my mes- 
 suages, lands, tenements and hereditaments . . . and all other 
 my real estates." It was held, contrary to Lord Langdale's 
 opinion (11 B. 237), that lands of leasehold tenure passed, the 
 word " real estate" not operating to restrain the extended mean- 
 ing given by the 26th section to the word "lands." 
 
 Meaning of "real estate." — In Wilson v. Eden it seems to have 
 been considered that the meaning of the word "real estate" was 
 not enlarged by the 26th section. The word "real estate" 
 seems, independently of the rule in Rose v. Bartlett, not to in- 
 clude leaseholds for years, which are personal estate. But lease- 
 holds may pass under the word "real estate," in a will prior to 
 1838 (Swift V. Swift, 1 De G. F. & J. 160). And although if a 
 testator before 1838, having lands of inheritance, devised all his 
 real estate to A., and all his personal estate to B., leaseholds 
 would certainly pass by the will to B. and not to A. (Turner v. 
 Turner, 21 L. J. Ch. 843), yet if the testator had no interest in 
 land except the leaseholds, it does not seem but that the lease- 
 holds. might pass to A. under the denomination of real estate. 
 And this being so, it might perhaps be contended that the 26th 
 section enacting that "any general devise which would describe 
 a leasehold estate if the testator had no freehold estate which 
 could be described by it," shall in every case include lease- 
 holds unless a contrary intention be shown, must cause lease- 
 holds always now to pass by a devise of "real estate " Sed. qu. 
 
 3. Reversionary Interests. 
 Rule. A devise of "lands," "real estate," &c., in- 
 cludes reversionary interests of whatever description. 
 *(Clmrcli V. Mundy, 15 Ves. 396 ; Ford v. Ford, p*o < 
 6 Hare 486.)^ ■- 
 
 Thus, if the testator having the reversion in fee of lands settled 
 on his wife for her life, devises his real estate to his wife for life, 
 
 1 Drew V. Wakefield, 54 Me. 297 ; Hayden v. Stoughton, 5 Pick. 538 ; 
 M'Cay V. Hugus, 6 Watts 347 ; Brown v. Boyd, 9 W. & S. 128 ; O'Neale 
 V. Ward, 3 Har. & McH. 93 ; and see the next chapter. 
 
34 LANDS NOT SETTLED. 
 
 with remainder to A., the fact of the devise being to the wife for 
 life does not show an intention to exclude from the operation of 
 the devise (as regards A.) the reversion expectant on the wife's 
 decease in the settled lauds. (Ford v. Ford, 6 Hare 486.) 
 
 " It is now settled, that a reversion in fee will pass under a 
 general devise, unless a clear intention to exclude it be shown, 
 though it is limited in part to the same uses to which the particu- 
 lar estate (if I may so call it) is already dedicated." (Per Lord 
 St. Leonards, Tennent v. Tennent, 1 Jo. & Lat. 389.) 
 
 In Tennent v. Tennent, the testator devised Whiteacre to A. 
 for life, with remainder to the issue of A. in tail, leaving the ulti- 
 mate reversion undisposed of, and devised the residue of his real 
 estate to B. for life, with remainder to A. and his issue in tail. 
 It was held that under the residuary clause, B. took an estate 
 for life in Whiteacre, in remainder after the estates limited to the 
 issue of A. 
 
 A devise of the testator's real estate to trustees for a term of 
 years to pay debts and legacies, has been held to include a rever- 
 sion in fee, vested in the testator, of lands of which the testator 
 was tenant in tail. (Mostyn v. Champneys, 1 Bing. N, C. 341, 
 E. C. L. R. vol. 27.) 
 
 It follows from the foregoing rule, that a devise of " lands not 
 hereinbefore disposed of," includes any undisposed of interest in 
 lands already partially disposed of by the will. It is further 
 established, that — 
 
 Chester v. Chester. 
 
 Rule. A devise of lands " not settled," includes an un- 
 settled reversion in settled lands. (Chester v. Chester, 
 3 P. Wms. 56 ; Glover v. Spendlove, 4 Bro. C. C. 337 ; 
 Jones V. Skinner, 5 L. J. Ch. N. S. 87.) 
 
 ^or-i Thus, where a testator having two landed estates, one 
 *in settlement, the other not, devised "m^ unsettled real 
 estate," the devise was held to pass not only the unsettled estate, 
 but the unsettled reversion in the settled estate. (Incorporated 
 Society v. Richards, 1 D. & War. 285.) " The cases show that 
 
TRUST AND MORTGAGE ESTATES. 35 
 
 where a testator speaks of Ms property 'not settled,' or ' out of 
 settlement,' or to that effect, the Court intends him to mean not 
 otherwise disposed of, and does not hold itself concluded by the 
 fact that the property is included in a settlement providing a 
 jointure or otherwise. It construes these words as referring to 
 all property over which, or any part of which, the testator has 
 the absolute dominion." (Ibid.) 
 
 4. Trust and Mortgage Estates. 
 Rule. A general devise of " my lands," " my lands in 
 A.," " my real estate," &c., includes lands of -whicli the 
 testator was seised as trustee or mortgagee, unless an 
 intention appear to the contrary. (Lord Braybroke v. 
 Inskip, 8 Ves. 435 ; Bainbridge v. Lord Ashburton, 2 
 You. & Col. (Ex.) 347.)^ 
 
 " A trust estate will pass by general words in a will, unless it 
 can be collected either from the expressions in the will or from 
 the purposes or objects of the testator, that he did not mean that 
 the legal estate should pass ; as, for instance, where the devise is 
 of all the testator's real estates to a trustee in trust to sell and 
 receive the proceeds, or where the estates are given to one for 
 life, with remainders over. There the object of the devise in the 
 one case, and the mode of limitation in the other, are inconsistent 
 with the intention to pass a dry legal estate." (Lindsell v. 
 Thacker, 12 Sim. 182.) 
 
 Exceptions. — If, however, the disposition made by the will is 
 such as the testator could not intend to make of property not 
 beneficially his, the rule in Lord Braybroke v. Inskip will not 
 apply.'' Thus, 
 
 1 Kichardson v. Woodbury, 43 Me. 209 ; Jackson v. Delancy, 13 Johns. 
 554 ; Heath v. Knapp, 4 Penn. St. 230 ; Wills v. Cooper, 1 Dutch. (N. J.) 
 161. 
 
 ^ Where the purposes for which the property is devised are inconsistent 
 with the application thereto of anything of which the testator was not the 
 beneficial owner, it does not pass by the devise. Martin v. Laverton, L. K. 
 9 Eq. 570. 
 
36 DEVISE IN TRUST FOE, SALE. 
 
 ^qn-i 1. Trust for sale. — If tte property be devised to *trustees 
 in trust for sale, mortgage and trust estates do not pass. 
 (Ex parte Marshall, 9 Sim. 555; Re Morley, 10 Hare 293.)' 
 
 In Wall V. Bright, IJ. & W. 474, a devise of all the testa- 
 tor's real estate to trustees in trust for sale was held to pass the 
 legal estate in land which the testator had contracted to sell, but 
 the purchase-money, or a considerable part, was unpaid. "If 
 this had been the case of a naked trust, the will would not have 
 passed the estate ; for the testator takes on himself to direct a 
 sale, a conversion of the estate, treating it as his own, in a man- 
 ner quite incompatible with an intention to give it to another, 
 for the purpose of holding it as he himself held it, as a trustee. 
 But the question is, whether, having entered into a contract to 
 sell his estate, he is thereby put for this purpose in the same 
 
 situation as a naked trustee He intended that all 
 
 his real estate should be converted into money ; then, if the con- 
 tract is completed, it supersedes the necessity of another sale ; if 
 not, the trustees are to sell. To give to the trustees the legal 
 estate is not inconsistent with this intention ; on the contrary, it 
 is just what he ought to have done to enable them to convey to 
 the purchaser. They are to dispose of the legal estate in the 
 manner directed by the will, except that it differs by being in 
 pursuance of a prior instead of a future sale." (Ibid.) 
 
 2. Devise subject to charge. — If the property is by the will 
 devised subject to a charge, trust and mortgage estates do not 
 pass by the devise. " It would be absurd to suppose that he 
 intended an estate to be charged, which he had no power to 
 charge at all." (Rackham v. Siddall, 16 Sim. 297.) 
 
 As where the testator devised all his real estate, after payment 
 of debts, legacies and funeral expenses, to A. (Roe d. Reade v. 
 Reade, 8 T. R. 118 ; Doe d. Roylance v. Lightfoot, 8 M. & W. 
 553.) So where the property was devised subject to payment of 
 debts and of an annuity (Duke of Leeds v. Munday, 3 Ves. 348) : 
 or " subject and charged with an annuity of 201. to A." (Ex 
 ^ parte *Morgan, 10 Ves. 101 ; Rackham v. Siddall, 16 
 
 "^'J Sim. 297.) 
 
 Merrit v. Ins. Co., 2 Edw. (N. f.) 549. 
 
DEVISE TO LIMITATIONS. 37 
 
 3. Devise to beneficial uses. — If the property be devised to the 
 separate use of a married woman, trust and mortgage estates will 
 not pass by it. (Lindsell v. Thacker, 12 Sim. 178.)^ 
 
 But it is settled that a general devise " to A., his heirs and 
 assigns, to and for his and their own use and benefit," passes 
 trust and mortgage estates. (Bainbridge v. Lord Ashburton, 2 Y. 
 & C. (Ex.) 347 ; Sharpe v. Sharpe, 12 Jur. 598.f 
 
 And even where the testator devised all his property to his 
 wife, her heirs, executors, and administrators, for all his estate 
 and interest therein, for her own use and benefit, and to be dis- 
 posed of by her by deed or will, or otherwise, as she might think 
 fit, trust estates were held to pass by the devise. (Ex parte Shaw, 
 8 Sim. 159.) 
 
 Devise to successive limitations. — " Complicated limitations " 
 are suflGcient to show an intention not to include a dry legal es- 
 tate in the property devised to such limitations. (Lord Bray- 
 broke V. Tnship, 8 Ves. 436.) Thus where there was a general 
 devise to three persons as tenants in common, with a proviso that, 
 in case of the death of any of them under 21, the share of the 
 one so dying should go over to the others by way of executory 
 devise, a trust estate was held not to pass. (Thirtle v. Vaughan, 
 24 L. T. 5, per V.-O. Wood.) And in Lindsell v. Thacker, 12 
 Sim. 182, it was said that the fact of the devise being to one for 
 life, with remainders over, would be sufficient to show an inten- 
 tion not to include trust estates in a general devise. 
 
 But it would appear that the fact of the devise being to several 
 persons as tenants in common, does not of itself show an intention 
 not to include trust and mortgage estates. (Thirtle v. Vaughan, 
 24 L. T. 5.)' 
 
 ' Sed contra, Heath v. Knapp, 4 Penn. St. 228. 
 
 •■> Lewis V. Mathews, L. R. 2 Eq. 180. 
 
 ' But it is a circumstance of considerable weight. Martin v. Laverton, 
 L. R. 9 Eq. 568. 
 
 A devise to a numerous and unascertained class, will not include trust 
 and mortgage estates. In re Finney's Estate, 3 Gif. 465. 
 
 Where the devise is to the cestui que trust and a conveyance to him 
 by the trustee would be a dereliction of duty, the presumption will be 
 against an intention to include it. Wills v. Cooper, 1 Dutch. {N. J.) 161. 
 
37 LANDS CONTRACTED FOR. 
 
 General devise does not pass the heneficial interest in a mort- 
 gage. — It seems to be clear that a general devise which passes the 
 legal estate in a mortgage vested in the testator, does not include 
 the beneficial interest in the money secured by the mortgage, 
 which is personal estate, and passes under the general or residu- 
 ^qo-i ary bequest of *personal estate contained in the will. On 
 the other hand, if a mortgagee in possession devises the 
 mortgaged lands by a specific description, as a devise of " all 
 my lands in the parish of A.," the testator having no other lands 
 answering to the description, such a devise may well be held to 
 pass the beneficial as well as the legal estate in the mortgaged 
 lands. (Woodhouse v. Meredith, 1 Mer. 450 ; Burdus v. Dixon, 
 4 Jur. N. S. 967.) 
 
 The rule that a general devise passes the legal estate in mort- 
 gaged lands, assumes that there is no other devise in the will 
 which more properly includes the mortgaged property. But if 
 the testator devises all his lands to A., and all his securities for 
 money to B., no doubt the legal estate in lands of which the tes- 
 tator was mortgagee would pass to B. and not to A. (Renvoize 
 V. Cooper, 6 Mad. 371.) 
 
 5. Lands contracted for. 
 With respect to lands contracted to be purchased by the testa- 
 tor, it is a rule (which in wills made or republished on or after 
 Jan. 1, 1838, will extend to lands contracted to be purchased 
 after the date of the will), that — 
 
 Rule. A general devise of the testator's lands, &c., in- 
 cludes lands contracted to be purchased by the testator, 
 but not actually conveyed. (Acherley v. Vernon, 10 
 Mod. 518.)^ 
 
 "What a party is entitled to he considers as his own. Lands 
 contracted for will pass by a general devise of all the testator's 
 
 ' Livingstone v. Newkirk, 3 Johns. Cii. 316 ; Ex parte Champion, 1 
 Busb. Eq. (N. C.) 24iS ; Smith v. Jones, 4 Ham. (Ohioj 12J ; Gist v. liobi- 
 net, 3 Bibb (Ky.) 4. 
 
LANDS CONTRACTED TO BE SOLD. 38 
 
 lands and of all the lands purchased by him, although he had 
 other lands purchased and actually conveyed." (Oollison v. 
 Girling, 4 Myl. & Cr. 75.) 
 
 Lands contracted to be sold. — Lands which the testator has 
 contracted to sell, are lands of which he is a trustee, and the legal 
 estate in them passes, therefore, under a general devise of the tes- 
 tator's lands, unless an intention *appear to the contrary. r*qq 
 But the devisee will not be entitled to the purchase-money 
 beneficially (Knollys v. Shepherd, 1 J. & W. 479) : though if the 
 particular estate contracted to be sold be specifically devised in 
 such a way as to show that the testator intended some beneficial 
 interest in it to pass by the devise, the devisee may. it should 
 seem, be entitled to the interest which the testator had in the es- 
 tate, ^■. e., to the purchase-money of it. (Drant v. Vause, 1 Y. 
 & C. 0. C. 580.)' 
 
 ^ In Drant v. Vause, there was at the time of the testator's death no 
 absolute and final contract of sale. It was a lease for years, with an option 
 in the lessee to purchase at the end of the term. The option was not exer- 
 cised until after the testator's death. Bmuss v. Smith, 2 De G. & Sm. 735, 
 is a similar case, and Bruce, V.-C, admits that there is a distinction 
 between such a case and one in which there is an absolute contract of 
 
*40] ^CHAPTER IV. 
 
 RESIDUARY BEQUESTS AND DEVISES. 
 
 1. Residuary Bequests. 
 A GIFT of the residuary personal estate of the testator has a 
 peculiarly extended meaning, and comprises every interest in 
 personal estate, which the •will in event does not otherwise dispose 
 of: thus it is a rule that — 
 
 Rule. A general residuary bequest carries lapsed and 
 void legacies. (Cambridge y. Rouse, 8 Ves. 25 j Leake v. 
 Robinson, 2 Mer. 392.)^ 
 
 "I have always understood that with regard'to personal estate, 
 everything which is ill given hy the will does fall into the 
 residue ; and it must be a very peculiar case indeed, in which 
 there can at once be a residuary clause and a partial intestacy, 
 
 • Drew V. Wakefield, 54 Me. 296 ; Firth v. Denny, 2 Allen 471 ; Crane v. 
 Crane, 2 Root 487 ; Banks v. Phelan, 4 Barb. 90 ; Woolmer's Estate, 3 
 "Whart. 480 ; Helms v. Franciscus, 2 Bland Ch. 560 ; Elcan ». School, 2 P. 
 & H. (Va.) 68 ; Godard v. Wagner, 2 Strob. Eq. 9 ; Swinton «. Egleston, 3 
 Rich. Eq. 204 ; Hughes v. Allen, 31 Ga. 489 ; Lewis v. Lusk, 35 Miss. 422 ; 
 Garnet v. Cowles, 39 Id. 60. 
 
 In Connecticut in the Revised Statutes of 1835, there is added to the 
 statute providing that a devise or legacy to any child or grandchild of the 
 testator shall not lapse, if the devisee or legatee leave issue surviving the 
 testator, a direction that " if there be no such issue, at the time of the 
 testator's death, the estate desposed of hy such devise shall be considered 
 and treated as intestate estate." The same provision occurs in a similar 
 statute in Illinois. 
 
LAPSED APPOINTMENTS. 40 
 
 unless some part of the residue itself be ill given. It is im- 
 material ho J it happens that any part of the property is un- 
 disposed of, — whether by the death of a legatee, or by the 
 remoteness and consequent illegality of the bequest. Either way 
 it is residue, i. e., something upon which no other clause of the 
 will effectually operates. It may in words have been before 
 given ; but if not effectually given, it is, legally speaking, undis- 
 posed of, and consequently included in the denomination of 
 residue." (Leake v. Robinson, 2 Mer. 393.) 
 
 " The general rule, that a residuary clause passes a lapsed 
 legacy — ^that which was intended to be the subject of bounty to 
 another — is founded upon this; not that it *effects, in r-^j^ 
 specie, what the testator intended, for he probably contem- '" 
 plated nothing beyond the particular legacy taking effect, but 
 because the residuary clause is understood to be intended to em- 
 brace everything not otherwise effectually given ; because, as Sir 
 W. Grant expresses it in Cambridge v. Rous, the testator is sup- 
 posed to give it away from the residuary legatee only for the sake 
 of the particular legatee." (Easum v. Appleford, 5 Myl. & Or. 61.) 
 
 A gift of the testator's personal estate " not hereinbefore dis- 
 posed of " (Roberts f. Cooke, 16 Ves. 451), or a gift of "all 
 other my property " (Bernard v. Minshull, 1 Johns. 276), is sim- 
 ply a form of residuary bequest, and as such carries lapsed and 
 void legacies.^ 
 
 Lapsed, ^e,, appointments. — In wills made or republished on 
 or after Jan. 1, 1888, a general residuary bequest will include 
 not only property ineffectually attempted to be bequeathed by 
 the other dispositions of the will, but also property over which 
 the testator has a general power of appointment, and which he 
 has by the will ineffectually appointed. As the fact of property 
 
 ' A gift of " all the remainder of my property uot herein specified, ex- 
 cepting what is herein reserved and bequeathed," was held to pass lapsed 
 legacies. Nyoe's Estate 5 W. & S. 260. But in Hughes v. Allen, 31 Ga. 
 491, a bequest of "all other property not heretofore specified," did not 
 pass certain slaves which the testator had illegally ordered to be made 
 free. 
 
41 LAPSED SHARE OF RESIDUE. 
 
 being specifically bequeathed does not show an intention on the: 
 part of the testator that it should not pass under the residuary 
 gift if the specific bequest fails, so the fact of property being 
 specifically appointed does not, it has been held, show an inten- 
 tion that the residuary gift should not operate, under the 27th 
 section of the Wills Act, as an execution of the power as to the 
 property specifically appointed, if the specific appointment fails. 
 Thus, if the testator, in exercise of a general power of appoint- 
 ment, gives 5000?. to A., and gives the residue of his personal- 
 estate to B., and A. dies in the testator's lifetime, the 5000?. ap- 
 pointed to A. will pass under the residuary gift to B. (Spooner's. 
 Trusts, 2 Sim. N. S. 129 ; Bernard v. MinshuU, 1 Johns. 276.) 
 
 Exceptions. — The testator may, however, show an intention 
 to circumscribe and confine the residuary bequest, so as to ex- 
 ifAn-i elude from it, in every event, ^particular property specifi- 
 cally given. (Att-Gen. v. Johnstone, Amb. 577 ; Danvers, 
 V. Dewes, 3 P. "W. 401.y 
 
 But a bequest in the form, — " I give all my personal estate 
 to A., except certain property which I give to B.," seems to 
 fall within the general rule, so that on failure of the gift to B., 
 the excepted property will fall into the general bequest to A. : 
 the exception out of the gift to A. being considered as made only 
 for the purpose of benefiting B. (Evans v. Jones, 2 Coll. C. 0. 
 516 ; James v. Irving, 10 B. 276.) In Wainman v. Field, Kay 
 507, however, where the testator gave all his personal estate to 
 trustees in trust to pay debts and legacies, " except my leasehold 
 estates, which it is my intention to exonerate from debts and , 
 legacies," — and bequeathed the leaseholds specifically upon trusts 
 which partially failed ; it was held that the leaseholds were ex- 
 cluded altogether from the gift of residue.^ 
 
 Share of residue which fails. — The most important exception, 
 
 • Lea V. Brown, 3 Jones Bq. (N. C.) 148 ; Hudson «;. Peirce, 8 Ired. Eq. 
 128. 
 
 2 Lombard v. Boyden, 5 Allen 251 ; Hartu. Marks, 4 Brad. 162 ; Skip- 
 with V. Caball, 19 Gratt. 786 ; Kirkpatrick v. Rogers, 6 Ired. Eq. 136 ; Win- 
 ston V. Webb, Phill. Eq. 2 ; Silex v. Nelson, 24 Ga. 90. 
 
RESIDUE OF RESIDUE. 42 
 
 however, to the comprehensiveness of a general residuary hequest 
 is, that it does not include any part of the residue itself which fails. 
 
 " A part of the residue of which the disposition fails will not 
 accrue in augmentation of the remaining parts, as a residue of 
 residue ; hut instead of resuming the nature of residue, devolves 
 as undisposed of. Residue means all of which no effectual dis- 
 position is made by the will, other than the residuary clause ; 
 but when the disposition of the residue itself fails, to the extent 
 to which it fails, the will is inoperative. In the instance of a 
 residue given in moieties, to hold that one moiety lapsing should 
 accrue to the other, would be to hold that a gift of a moiety of 
 the residue shall eventually carry the whole." (Skrymsher v. 
 Northcote, 1 Sw. 570.) 
 
 This is strongly exemplified in Humble v. Shore, 7 ,H. 247, 
 where the testator by will gave one-sixth of the residue of his es- 
 tate to A., and by codicil revoked the absolute bequest and gave 
 the one-sixth share to A. for life, with a direction that on A.'s 
 , death it should sink into the residue of the testator's estate and be 
 *disposed of accordingly. It was, notwithstanding, held ri^Ao 
 that the one-sixth share upon A.'s death was undisposed 
 of, and went to the next of kin.^ 
 
 Residue of "residue."^ — The comprehensive import of the 
 word residue does not extend to a gift of the residue of that resi- 
 due. Thus, if the testator gives £10,000 out of the residue of 
 his personal estate to A., and the residue to B., and the bequest 
 to A. fails, the gift to B. will not, it appears, in general carry 
 the £10,000 bequeathed to A., which will therefore be undisposed 
 
 1 Sykes v. Sykes, L. R., 4 Eq. 202 ; Skipwith v. Caball, 19 Gratt. 786 ; 
 Ford V. Ford, 1 Swan (Tenn.) 435. In Ohio, by an Act of 1866, intended 
 to prevent lapse in case of the death of a legatee or devisee (being a child 
 or other relation of the testator) leaving issue, it is enacted, that if the 
 legacy or devise be residuary and no issue be left, the same shall go to the 
 other residuary legatfee or devisee, if he or she be a child or relative of the 
 testator, unless the will provide differently. 
 
 ' Where legacies are given to several legatees and the residue is be- 
 queathed to the same legatees, the residue will not include a lapsed legacy 
 of one of them. Craighead v. Given, 10 S. & R. 353 ; Lombard v. Boyden,, 
 5 Allen 251. 
 i 
 
43 INTEKMEDIATB INCOME. 
 
 of. (Green v. Pertwee, 5 Hare 249 ; Skrymsher v. Northcote, 
 Sw. 566 ; Lloyd v. Lloyd, 4 B. 231 ; Simmons v. Rudall, 1 Sim. 
 N. S. 115).i 
 
 A gift of the residue of the residue of the testator's personal 
 estate is, in fact, a gift of the residue of a particular fund. If a 
 part of a particular fund be given to one person, and the residue 
 to another, it is a question of intention, not subject to any par- 
 ticular rule, whether the gift of the residue is to be read as a 
 gift of the mere balance of the fund after deducting the amount 
 of the sum previously given out of it, as in the cases of Page v. 
 Leapingwell, 18 Ves. 463, and Easum v. Appleford, 5 My. & 
 Or. 56 ; or a gift of the entire fund subject to the gift previ- 
 ously made out of it, as in Falkner v. Butler, Ambl. 514 ; Car- 
 ter V. Taggart, 16 Sim. 423 ; and Re Harries's Trusts, Johns. 
 199. In the latter case, if the gift of part fails, the gift of the 
 residue may carry the whole fund ; in the former case not so. 
 
 Intermediate ineome.-^The comprehensive nature of a general 
 residuary bequest is shown in another respect, viz., that — 
 
 Rule. A general residuary bequest, contingent in terms, 
 carries the intermediate income, which is not undisposed of, 
 but accumulates. (Trevanion v. Vivian, 2 Ves. sen. 430.)^ 
 
 Thus, if the testatator bequeaths the residue of his personal 
 *4.4.1 estate to such son of A. as shall first attain 21, and *A. 
 has no son at the testator's death, the income of the resi- 
 due does not go to the next of kin, but accumulates in trust for 
 a son of A. who may come into existence. 
 
 The same rule seems to have been extended, in Bullock v. 
 Stones, 2 Ves. sen. 521, to a bequest of " all my personal estate 
 at A." But with respect to specific bequests generally, the 
 rule appears to be that the intermediate income does not pass to 
 the legatee until the period of vesting. (Wyndham v. Wyndham, 
 3 Bro. C. C. 58 ; Shawew. Cunliffe, 4 Id. 144 ; Harris «. Lloyd, 
 T. & R. 310).3 
 
 1 White V. Fisk, 22 Conn. 35 ; Beekman v. Bonsor, 23 N. Y. 312. 
 
 2 Hodson V. Bective, 1 Hem. & M. 390. 
 » Ken- V. Bosler, 62 Penn. St. 187. 
 
RESIDUARY DEVISES. 44 
 
 2. Residuary Devises. 
 
 A devise of the residue of' the testator's real estate has not 
 the same extended meaning as a bequest of the residuary per- 
 sonal estate ; and it is a rule that — 
 
 Rule. In wills made before January 1, 1838, a resi- 
 duary devise of real estate does not include specific de- 
 vises which lapse. (Wright v. Home, 8 Mod. 255, note c.y 
 
 Void devises. — There is, however, a distinction between devises 
 which are valid in their inception but afterwards lapse by the 
 death of the devisee in the lifetime of the testator, and devises 
 which are void ah initio, either from illegality, or by the devisee 
 being dead at the date of the will. And it would appear from 
 Doe d. Stewart v. Sheffield, 13 East 627, that a general residu- 
 ary devise in a will prior to 1838 will include devises void ab 
 initio, as being intended to comprise all that the will does not 
 otherwise actually dispose of at the time of the devise. Thus, ac- 
 cording to Doe V. Sheffield, a devise of " all my real estate not 
 hereinbefore disposed of" carries an estate previously devised to 
 a person dead at the date of the will.^ 
 
 ^ AVaring ». Waring, 17 Barb. 556 ; Barton v. King, 41 Miss. 289 ; 
 Cheves v. Haskell, 10 Kich. Eq. 534 ; Gore v. Stevens, 1 Dana (Ken.) 206. 
 
 ^ The only authority for this distinction in regard to void devises seems to 
 be the dictum of Lord Bllenborough in the case above cited, and it may be 
 considered at least doubtful whether it is correct. The weight of authority 
 seems to favor the doctrine that the residuary devisee can take only what, 
 at the date of the will, was intended for him. Gibbs v. Eumsey, 2 Ves. & 
 B. 294 ; Durour v. Motteux, 1 Ves. Sen. 320 ; Jones v. Mitchell, 1 Sim. & 
 Stu. 294. The distinction was acknowledged and acted on in Ferguson v. 
 Hedges, 1 Harring. (Del.) 528 ; but has been very generally rejected in 
 other cases in this country. Greene v. Dennis, 6 Conn. 804 ; Van Kleeck v. 
 Dutch Church, 20 Wend. 469 ; Downing v. Marshall, 23 N. Y. 375 ; Lin- 
 gan B. Carrol, 3 Har. & McH. (Md.) 338 ; Tongue v. Nutwell, 13 Md. 
 427 ; Lea v. Brown, 3 Jones Bq. (N. C.) 14T. 
 
 But in New York it has been held that where an illegal devise is made in 
 trust for certain persons, and the residue is given to the same persons, the 
 land illegally devised falls into the residue. Tucker v. Tucker, 1 Seld. 408. 
 
 In Massachusetts the rule is that lapsed devises fall into the residue, it 
 
44 EESIDUARY DEVISES — NEW LATV. 
 
 New law. — The 25th section of the Wills Act reverses the 
 rule as to lapsed devises, and enacts that — 
 
 Rule. In wills made or republished on or after 
 *45 ^ . , . , . 
 
 *January 1, 1838, real estate comprised m devises 
 
 which fail or are void passes tinder the residuary devise 
 
 in the Avill, unless an intention appear to the contrary. 
 
 (Stat. 1 Vict. c. 26, s. 25.) 
 
 " That unless a contrary intention shall appear by the will, 
 such real estate or interest therein as shall be comprised or in- 
 tended to be comprised in any devise in such ivill contained, 
 ■which shall fail or be void by reason of the death of the devisee 
 in the lifetime of the testator, or by reason of such devise being 
 contrary to law or otherwise incapable of taking effect, shall be 
 included in the residuary devise (if any) contained in such will." 
 
 A devise of " all other my real estate" (Cogswell v. Armstrong, 
 2 K. & J. 227), or of " my real estate not hereinbefore disposed 
 of" (Green v. Dunn, 20 B. 6), is only a form of residuary devise, 
 and as such carries specific devises which lapse.^ 
 
 The 25th section applies only to general residuary devisees, 
 and does not extend to devises of the residue of particular pro- 
 perty, as a devise of " all other the hereditaments" comprised in a 
 certain deed : (Re Brown, 1 K & J. 522.)' 
 
 being held that the statute which enacts that after-acquired real estate 
 shall pass by devise, takes from residuary devises their specific character 
 and removes all ground of distinction between them and residuary be- 
 quests. ' Thayer v. Wellington, 9 Allen 295 ; Allen v. White, 97 Mass. 
 504. The same opinion was expressed in Drew v. WakeJSeld, 54 Me. 
 296 ; and in Patterson v. Swallow, 44 Penn. St. 490 ; but see Williams 
 V. Neff, 52 Id. 333. 
 
 In Kip V. Van Cortland, 7 Hill (N. Y.) 348, it was held that a residuary 
 devise includes devises revoked. The will should be construed as though 
 the specific devise was not in it. 
 
 ^ Similar statutes have been enacted in Virginia (act taking effect July 
 1, 1850) ; North Carolina (act taking effect 8th Feb., 1844). 
 
 ^ Nor to devise of " the rest of my freehold hereditaments situate in the 
 parish of A." Springett v. Jenings, L. R. 6 Ch. App. 333. 
 
INCOME OF RESIDUARY BBVISB. 45 
 
 Intermediate income. — Devises of real estate to take effect at 
 a future period do not, in general, carry the intermediate rents 
 and profits until the period of vesting : (Genery v. Fitzgerald, 
 Jac. 468.) But where the real and personal estate are given 
 together, it is the rule that, — 
 
 E,ULE. A gift of the testator's residuary real and per- 
 sonal estate (blended) , though contingent in terms, carries 
 the intermediate rents and profits of the real estate, as 
 well as the income of the personal estate. (Stephens v. 
 Stephens, Forrest. 228 ; Genery v. Fitzgerald, Jac. 468 ; 
 Ackers v. Phipps, 3 CI. & F. 691.)^ 
 
 " Thus if the real and personal estate be given to an unborn 
 person, the rents and profits of the real estate *do not 
 descend to the heir till the birth of the person entitled, but L 
 accumulate. 
 
 "The general principles are these: When personal estate is 
 given to A. at 21, that will carry the intermediate interest. If 
 a testator gives his estate Blackacre at a future period, that will 
 not carry tho intermediate rents and profits. But when he 
 mixes up real and personal estate in the same clause, the ques- 
 tion must be, whether he does not show an intention, that the 
 same rule shall operate on both." (Per Lord Eldon, Genery v. 
 Fitzgerald, Jac. 470.) 
 
 Income of residuary devise alone. — According to Lord Hard- 
 wicke, in Gibson v. Montfort, 1 Ves. sen. 485, and Lord 
 Brougham, in Ackers v. Phipps, 3 01. & F. 691, it would seem 
 that a general residuary devise of real estate, not combined with 
 a gift of the residue of the personal estate, would, though contin- 
 gent in terms, carry the intermediate rents and profits before the 
 period of vesting. " I am also of opinion, that the gift of a real 
 residue, without blending it with a personal residue, would of 
 itself have the same effect upon another ground, namely, the 
 
 ' Rogers v. Ross, 4 Johns. Ch. 397 ; Brailsford v. Heyward, 2 Desaus. 
 (S. 0.) 31 ; Dougherty v. Dougherty, 2 Strob. Eq. (S. 0.) 65. 
 
46 SURPLUS PROCEEDS OF REAL ESTATE. 
 
 meaning of residue : still more if, as here, the -words ' not other- 
 wise disposed of are 'found in the gift; for this shows that the 
 devisee under such gift, is to take all the real estate not other- 
 wise given ; and this must exclude the heir, who cannot as such 
 take under any gift." (Per Lord Brougham, Ackers v. Phipps, 
 3 CI. & F. 691.y But see Appendix I. 
 
 Proceeds of real estate not personal estate. — Where real estate 
 is directed by the will to be sold, but the surplus proceeds are not 
 expressly disposed of, it is a rule that, — 
 
 Rule. A general or residuary bequest of the testator's 
 personal estate does not, prima facie, include the pro- 
 ceeds of real estate directed by the will to be sold. 
 (Maugham v. Mason, 1 V. & B. 410.) 
 
 ^ , --, " Properly speaking, nothing is the personal estate of a 
 *testator, that was not so at his death. He may certainly 
 so express himself as to show that something else was intended ; 
 but where there is nothing but a direction to sell land, with ap- 
 plication of the money to a particular purpose, and a subsequent 
 bequest of the rest and residue of the personal estate, I know of 
 no case in which it has been held that the surplus, after the par- 
 ticular purpose is answered, forms part of the personal estate so 
 as to pass by the residuary bequest." (Maugham v. Mason, 1 V. 
 & B. 410.) 
 
 But this rule is of course excluded by a direction that the pro- 
 ceeds of the sale of the real estate shall form part of the testator's 
 personal estate.^ 
 
 ' It was so held in Rogers v. Ross, 4 Johns. Ch. 397. 
 
 ^ Durour v. Motteux, 1 Ves. sen. 320. 
 
 Gifts of the proceeds of real estate directed to be sold, and gifts of 
 money charged on land, like devises of land, do not upon lapse fall into the 
 residue : Gravenor v. Hallam, Amb. 643 ; Arnold v. Chapman, 1 Ves. Sen. 108. 
 
 Whether a charge which is undisposed of goes to the heir, or sinks into the 
 land on which it is made for the benefit of the devisee, depends upon 
 whether on the whole will it was intended to be an exception out of the 
 devise of the land, or it was made merely for the purpose of providing for 
 
REVERSIONARY INTERESTS. 47 
 
 some object, and subject to such, purpose the estate was to go to the 
 devisee : Hephinstall v. Gott, 2 Johns. & Hem. 450. 
 
 A residuary devise or bequest, vfill include every reversionary interest 
 however remote which is undisposed of by the previous gifts in the will, 
 whether the same be a reversion remaining after an interest created by the 
 will or not : Brigham v. Shattuck, 10 Pick. 308 ; Cole v. Clayton 1 Wash. 
 (Va.) 262 ; Arcularius v. Geisenheimer, 3 Bradf. 73 ; Youngs v. Youngs, 
 45 N. Y. 258 ; Harper v. Blean, 3 "Watts 471 ; Harrell v. Haskins, 2 Dev. 
 & Bat. 480; Allen v. Vanmeter, 1 Mete. (Ken.) 274. 
 
 Thus in a devise upon a condition subsequent, as to a town, on condi- 
 tion that they build a school-house, on nonperformance of the condition the 
 estate goes to the residuary devisee : Haydon v. Stoughton, 5 Pick. 538. 
 
 But the interest must be one which naturally results from the nature of 
 the devise, and such that the testator may well be supposed to have con- 
 templated when he made his will. Therefore, where the widow refuses to 
 accept a devise made to her in lieu of dower, or where generally the devisee 
 refuses to accept the land devised, it does not go to the residuary devisee 
 but to the heir : James v. James, 4 Paige 117 ; Waring v. AVaring, 17 Barb. 
 558. 
 
 Exceptions. — The rule will not be applied where upon the whole will, it 
 appears not to have been the intention of the testator. Thus where there 
 is a gift of residue with directions for an immediate distribution, and in 
 another clause a division of some of the reversionary interests is directed 
 to be made upon the death of the devisees to whom the particular estates 
 are given, the other reversionary interests, concerning which no such 
 division is directed, will not pass under the residuary clause : Howland 
 V. Theo. Seminary, 3 Sanf. (N. Y.) 96. 
 
 So where the application of the rule would be inconsistent with other 
 provisions in the will, it will be excluded ; as where an estate was given to 
 the widow for life, and after her death to A. if he should survive her, and 
 if not to such person as he should by will appoint, and the residuary estate 
 was given to A. It was held that the reversion of the estate given to the 
 vddow did not pass as residue, since tliat would make the contingent gift to 
 A. nugatory : Johnson v. Stanton, 30 Conn. 301. 
 
 In Virginia it has been held, that in the case of a devise without words 
 of limitation (which passed but a life estate), the reversion will not be in- 
 cluded in the residuary clause : M'Kennon v. M'Roberts, 1 Wash. 109 ; 
 Horde v. M'Roberts, 1 Call 337 ; Minor v. Dabney, 3 Rand. 209. This is 
 contrary however to the ruling in other states : Jackson v. Wells, 9 Johns. 
 222; Harper v. Blean, 3 Watts 473. 
 
 And also in Virginia, it has been held, that where the residue is given to 
 the same person to whom the life estate is given, the reversion will not be 
 included: Phillips v. Melson, 3 Munf. 76. This doctrine is not accepted in 
 
47 REVERSIONARY INTERESTS. 
 
 other states: Arcularius v. Geisenheimer, 3 Bradf. 73; Harpers. Blean, 
 3 Watts 473 i'Norcum v. D'CEnoch, 17 Mo. 115. 
 
 A residuary bequest of personal estate with directions that the estate be 
 sold immediately, or with direction for an immediate distribution, will not 
 include reversionary interests: Glover v. Harris, 4 Bich. Eq. (S. C.) 31; 
 Holt V. Hogan, 5 Jones Eq. (N. C.) 87. 
 
 Where residue is given to A. and B., absolutely to A. and contingently 
 to B., A. will not take the interest remaining after B.'s contingent interest ; 
 but it will be undisposed of: Sacketa. Mallory, 1 Mete. (Mass.) 355 : Vree- 
 land V. Van Horn, 2 C. E. Green (N. J.) 135. 
 
*CHAPTER V. [*48 
 
 WORDS DESCKIPTIVB OF PROPERTY. 
 
 Securities for Money. 
 In order that the legal and beneficial interest in a mortgage 
 may not be separated, it is a convenient rule that — 
 
 Rule. A gift of "securities for money," or "mortgages," 
 passes the entire benefit of the mortgage security, in- 
 cluding the legal estate in the premises subject to the 
 mortgage. (Renvoize v. Cooper, 6 Mad. 371 ; Re King's 
 Mortgage, 5 De Gr. & Sm. 644; Knight v. Robinson, 2 K. 
 & J. 503.) 
 
 "I am of opinion that the mortgaged fee will pass to the wife 
 by the gift of mortgages and other securities for money, though 
 coupled with personal property. In substance, money secured 
 by a mortgage in fee is personal property, and a gift of a mort- 
 gage security for money is a gift of all the testator's interest in the 
 money and security, and will therefore pass the fee. " (Renvoize 
 V. Cooper, 6 Mad. 371.) 
 
 If the mortgage be in fee, the legal fee simple will pass with- 
 out words of limitation, even in a will prior to 1838. And 
 it is no objection to the legal estate passing, that the gift is of 
 " securities for money and all other my personal estate. ' ' (Knight 
 V. Robinson, 2 K. & J. 503.) 
 
 And the legal estate in a mortgage will pass under the term 
 "securities for money," although the bequest is *made r^^^q 
 "subject to payment of debts and legacies." (Knight u. 
 Robinson, 2 K. & J. 503), or in trust for sale (Ex parte Barber, 
 5 Sim. 451) ; though these expressions would prevent the legal 
 estate from passing under a devise of " lands." 
 
1 
 
 49 STOCK IN THE FUNDS NOT MONET. 
 
 Money on securities. — It was held by V.-C. Kindersley (Re 
 Cautley, 17 Jur. 124), that a bequest of " money on securities " 
 does not, primd facie, pass the legal estate in a mortgage. But 
 it seems that any expressions implying that the legatee of 
 the money secured by the mortgage is to have the power of call- 
 ing in the mortgage, will be sufficient to cause the legal estate in 
 the mortgage to pass under a gift of " moneys on mortgage," or 
 "money on securities." Thus, where the testator directed that 
 his wife should receive all moneys on mortgage belonging to him, 
 it was held that the legal estate in fee passed to her. (Doe d. 
 Guest V. Bennett, 6 Exch. 892.) Parke, J., said, in Doe v. Ben- 
 nett, " It must be assumed that the testator intended the wife to 
 receive the money, and to possess all the powers necessary for 
 the purpose of recovering it ; and therefore she is entitled to 
 bring ejectment for that purpose :" and these observations have 
 been approved by the Lords Justices in Re Arrowsmith's Trusts, 
 4 Jur. N. S. 1123. 
 
 Money. 
 
 The word "money" is not unfrequently used, by uneducated 
 persons at all events, to denote the whole of a man's personal 
 • property ; but such is not its legal meaning. And although it is 
 usual to speak of " money in the funds," just as of " money at a 
 banker's," yet it is a rule that — 
 
 Rule. A gift of the testator's " money" or " moneys" 
 does not include stock in the public funds. (Hotham v. 
 Sutton, 15 Ves. 327 ; Lowe v. Thomas, Kay 369, 5 D. 
 M. G. 315).^ 
 
 1 Mann v. Mann, 1 Johns. Ch. 236 ; Beatty v. Lalor, 2 McCart. Ch. (N. 
 J.) 109 ; Dabney v. Cottrell, 9 Gratt. 581 ; Paup v. Sylvester, 22 Iowa 375. 
 Komilly, M. R., in Chapman v. Reynolds, 28 Beav. 222, thought that the 
 fact that the testator had no money to answer to the bequest would be a 
 strong circumstance indicating an intention to include stock. 
 
 Where a testator directed " that the income arising from his principal 
 money should be paid " to his wife for the support of herself and the 
 education of his children, and at her death to be divided among them, 
 
LOWE V. THOMAS. 49 
 
 Stock in the public funds is in fact only the right to p^,^ 
 *receive a perpetual annuity, subject to redemption. "An 
 annuity is not, though its fruit is, money." (Per Knight Bruce, 
 L. J., 5 D. M. G. 316.) 
 
 In Lowev. Thomas, the will in extenso Vfas as follows: "I, 
 A. B., give and bequeath to C. D., the whole of my money for 
 his life ; at his death to be divided between my two nieces, E. 
 and F. My clothes to be divided likewise between them ; my 
 watch and trinkets for my niece, D. I likewise declare that the 
 longest survivor of the above-mentioned nieces is to become posses- 
 sor of the whole money." The testatrix had little else than two 
 sums of stock : yet it was held that they did not pass by the will. 
 
 In Waite v. Coombes, 5 De Gr. & S. 676, a direction to the 
 testator's executors " to take and receive all moneys that may be 
 in my possession or due to me at the time of my decease, and to 
 prosecute for the recovery of the same," was held to pass stock 
 in the funds ; but qu. whether this case would now be followed. 
 
 Money at a banker's. — But a bequest of the testator's 
 "moneys," though it does not ordinarily paips money in the 
 funds, includes money standing to the testator's account at his 
 banker's, whether on a current account (Parker v. Marchant, 1 
 Phill. 356), or on a deposit account. (Manning v. Purcell, 7 D. 
 M. G. 55.)i 
 
 making no other disposition, and he had but little money, strictly speaking, 
 but a large amount of personal property, it was held that personal property 
 of every description passed : Priehard v. Prichard, L. E., 11 Eq. 234. A 
 bequest of money will pass the whole personal estate whenever upon a 
 consideration of the whole will and the circumstances of the testator, there 
 appears an intention to that effect : Morton v. Perry, 1 Mete. 449 ; Smith 
 V. Davis, 1 Grant's Cas. (Pa.) 158 ; Fulkerson v. Chitty, 4 Jones Eq. (N. 
 C.) 244. 
 
 In Morton v. Perry the testator expressed in the beginning of his will 
 an intention of disposing of his whole estate. He had but little money on 
 hand at the time of making his will, and he commonly had on hand not 
 more than twenty or thirty dollars. He had at the time of making his 
 will a large amount of promissory notes which would have been undisposed 
 of unless included in the term "money." 
 
 ^ In Beatty v. Lalor, 2 McCart. 110, it was held that money at a bank- 
 er's will pass, but not money at a saving fund, that being in the nature of 
 
50 READY MONEY. 
 
 It seems that stock in the funds may pass under a bequest of 
 " securities for money." (Bescoby v. Pack, 1 Sim. & Stu. 500./ 
 
 Moneys due.— In an old case (Gilb. Eq. Eep. 200), it was 
 said that "money " comprehends both money in the possession 
 of the testator, and money due to him ; but it seems (Langdale v. 
 Whitfield, 4 K. & J. 426) that a bequest of the testator's moneys 
 would not now be held, without aid from the context, to pass 
 moneys due to the testator on security or otherwise. In Lang- 
 dale V. Whitfield, however, 'a bequest of the residue of the 
 moneys of which the testatrix might at her death be absolutely 
 possessed, was held, upon the whole will, to include moneys due 
 on security or otherwise.^ 
 
 * 
 
 51] 
 
 *Ready Money. 
 
 Rule. A bequest of the testator's " ready money" in- 
 cludes cash at a banker's on a current account. (Parker 
 V. Marchant, 1 Phill. 356 ; Manning v. Purcell, 7 D. M. 
 G. 55.) 
 
 " Everybody speaks of the sum which he has at his banker's 
 as money ; ' my money at my banker's,' is a usual mode of expres- 
 sion. And if it is money at the banker's, it is emphatically 
 ready money, because it is placed there for the purpose of being 
 ready when occasion requires." (Parker v. Marchant, 1 Phill. 
 360.) 
 
 A bequest of " ready money," however, will not include unre- 
 ceived dividends on stock in the funds. (May v. Grave, 3 De G. 
 & Sm. 462.) 
 
 an investment drawing interest and not usually subject to the immediate 
 order of the owner. In Dabney v. Cottrell, 9 Gratt. 580, on the other hand, 
 it was held that money in a saving fund would pass. 
 
 ^ A bequest of " securities for money" will not pass shares in a bank- 
 ing company, they being merely an interest in an incorporated partnership. 
 Ogle w. Knipe, L. R. 8 Bq. 436. 
 
 ^ A bequest of " moneys and securities for money " will not include a 
 debt unsecured. In Re Mason's Will, 34 Beav. 498. 
 
KOQBRS V. THOMAS. 51 
 
 RoGEKS V. Thomas. 
 
 ^^ Money" remaining after payment of debts. — The -word 
 "money," however, is in one instance considered as being used 
 in its most comprehensive meaning, including the whole personal 
 estate of the testator ; viz : — 
 
 Rule. Where there is no other general residuary 
 bequest, and there is a bequest of the "money" remain- 
 ing, or which may remain after payment of the testator's 
 debts and legacies, or after payment of his debts' (Stocks 
 V. Barre, Johns. 54), the word '^ money" is held to com- 
 prise the whole residuary personal e'state of the testator. 
 (Rogers v. Thomas, 2 Keen 8 ; Stocks v. Barr^, Johns. 
 54 ; Grosvenor v. Durston, 25 B. 97.)^ 
 
 " In this case the general rule of construction must prevail, 
 viz., that, where there is no other gift of the residue of the testa- 
 tor's personal estate, and there is a bequest of any "money" 
 which may remain after payment of his debts, the court must 
 construe the word "money" as including the general residue of 
 the *personal estate not specifically bequeathed, and which p^^^o 
 by law is liable to the payment of his debts." (Stocks v. 
 Barr^, Johns. 54.) 
 
 Funeral expenses. — The same rule applies where the bequest 
 is of the "money" which may remain after payment of the tes- 
 tator's funeral expenses. (Legge v. Asgill, T. & R. 265, n. ; 
 Willis V. Plaskett, 4 B. 208.) In Legge v. Asgill, the testatrix 
 in the body of the will said, "I believe there will be sufficient 
 money left to pay my funeral expenses;" and in the codicil, "If 
 there is money left unemployed, I desire it may be given in 
 charity." It was held that in the will, the word " money " must 
 have referred to the general residue, because it was out of the 
 general residue that the funeral expenses must be paid ; and that 
 the same word in the codicil must have reference to the same 
 subject. 
 
 ' Smith V. Davis, 1 Grant's Cas. (Pa.) 158 ; Paul v. Ball, 31 Tex. 10. 
 
52 MONEY LEFT AFTER LEGACIES PAID. 
 
 Legacies.— In Gosden v. Dotterill, 1 My. & K. 56, a bequest 
 of " the rest of my money," folio-wing gifts of pecuniary legacies, 
 was held not to carry the general residue. This case, therefore, 
 is an authority against extending the rule in Rogers v. Thomas 
 to a hequest after payment of legacies ; but the reason of the 
 rule would seem to extend to this case ; and Gosden v. Dotterill 
 was decided before the rule itself was well established. In Dow- 
 son V. Gaskoin, 2 Keen 14, the testatrix gave certain special 
 directions respecting her burial (which might perhaps be held 
 equivalent to a direction for payment of funeral expenses), and 
 gave a legacy to her executors, and then bequeathed " whatever 
 remains of money :" and it was held that the latter bequest car- 
 ried stock.^ 
 
 Exceptions. — If the gift of the remainder of the testator's 
 moneys be followed by a bequest of " wearing apparel, trinkets, 
 and all other property I may die possessed of," the rule is of 
 course excluded, and the word "moneys " cannot have its exten- 
 ded meaning. (Willis v. Plaskett, 4 B. 208.) 
 ;^rq-| And where the testator directed his books, plate, and 
 *household furniture to be sold, and after giving a legacy 
 added, " in case there is any money remaining I wish it to be 
 given in charity," the latter words were held not to comprise the 
 general residue, on the ground that the testator was adverting to 
 that which he had directed to be converted into money, and that 
 
 ^ Gosden v. Dotterill, is criticised by Sir John Romilly, in Cowling v. 
 Cowling, 26 Beav. 452, and Dawson v. Gaskoin considered the preferable 
 authority. 
 
 " If a person gives the whole of his money to A. B., and afterwards gives 
 specific chattels, it is clear that they are not to be treated as money, and 
 therefore the word ' money' is not to be treated as the whole residuary 
 estate. But if a testator bequeaths specific chattels first, and the residue 
 of his money afterwards it is the converse." (Per Romilly, M. R., in Mon- 
 tague V. Sandwich, 33 Beav. 326.) 
 
 In Fulkeron v. Chitty, 4 Jones Eq. (N. C.) 244, a bequest of the "resi- 
 due of my moneys" following bequests of pecuniary legacies, was held to 
 pass stock, notes and bonds. But this construction was aided by the con- 
 text. 
 
ESTATE. 53 
 
 the Avords applied only to the residue of the produce of the par- 
 ticular articles directed to be sold, after providing for the pay- 
 ment ordered to be made. (Ommaney v. Butcher, T. & R. 260.) 
 The rule cannot be extended to a bequest of " ready money," 
 so as to make a gift of the testator's "ready money " remaining 
 after payment of his debts carry the whole personal estate. 
 (Powell's Trust, Johns. 49.) 
 
 '■'■Estate." 
 
 The word "estate" was in the older cases not unfrequently 
 held to be confined to personal estate. In Woodlam v. Ken- 
 worthy, 9 Ves. 137, Lord Eldon said: "The question whether 
 the words ' all my estate and effects ' will include a real estate 
 or not, depends upon the context of the will." But the rule 
 seems to be observed with considerably greater strictness in 
 modern times, that, — 
 
 Rule. The word " estate " comprehends both the real 
 and personal estate of the testator. (1 Salk. 236 ; 
 Barnes v. Patch, 8 Ves. 604; Mayor of Hamilton v. Hods- 
 don, 6 Moo. P. C. C. 76.)^ 
 
 " The word " estate " is genus generalissimum, and includes all 
 things real and personal." (Per Lord Holt, 1 Salk. 236.) 
 
 It was formerly considered that where the word " estate " 
 occurred among words descriptive of personal property only, and 
 the limitations and trusts declared were appropriate only to per- 
 sonal estate, the meaning of " estate" was to be restricted to per- 
 sonal estate. Thus in Doe d. Spearing v. Buckner, 6 Term Rep. 
 610, where the testator gave all the rest of his estate and effects 
 of what nature soever *to A. and B., their executors and r*r_^ 
 administrators, in trust to add the interest to the principal 
 so as to accumulate the same, real estate was held not to pass. 
 
 ' Hunt«. Hunt, 4 Gray 190; Jackson v. Housel, 17 Johns. ?81 ; Resetter 
 o. Simmons, 6 S. & R. 456 ; Smith v. Smith, 17 Gratt. 276 ; Sutton v. Wood, 
 Cam. & Nor. (N. C.) 205 ; Andrews v. Brumfield, 32 Miss. 117 ; Morris v. 
 Henderson, 37 Id. 505. 
 
54 O'TOOLE v. BROWNE. 
 
 And this construction was adopted in tlie recent case of Ooard v. 
 Holderness, 20 B. 147 : while in Saumarez v. Saumarez, 4 Myl. 
 & Or. 331, and Stokes v. Salomons, 9 H. 75, although the 
 word "estate" was upon the whole will held to carry real estate, 
 yet the question was considered doubtful by reason of the appli- 
 cability of the trusts declared to personal estate only.^ 
 
 Where language of the will applies to personal estate only. — 
 But the case of O'Toole v. Browne (3 B. & B. 572) seems to 
 put an end to this class of exceptions to the rule. In O'Toole v. 
 Browne the testator by a will made in 1849, after bequests of 
 legacies and of household goods and furniture, gave " all the rest, 
 residue, and remainder of my goods, chattels, stock in trade, es- 
 tate, and effects of what nature and kind soever," not therein- 
 before bequeatjjed, to trustees, to hold to them and to their 
 executors, administrators, and assigns, in trust to sell, &c., and to 
 assign and convey the said residue of his estate and effects, and 
 the interest, dividends, and produce thereof, to the testator's 
 children on the youngest attaining twenty-one. The testator had 
 no real estate at the date of the will : but it was held that after- 
 acquired real estate passed.^ 
 
 In Doe V. Evans, 9 Ad. & E. 719 (E. C. L. R. vol. 36), and 
 D'Almaine v. Moseley, 1 Drew. 629, in both of which cases real 
 estate was held to pass, a distinction was mentioned, that where 
 the word " estate " was associated with other words sufficient to 
 pass the ■whole personal estate, it would carry real estate, but not 
 otherwise (the trusts declared being applicable to personal estate 
 
 ^ The signification of the word may be restricted by the context, or by 
 being associated with words pertaining peculiarly to personal estate. Bui. 
 lard V. Gofi'e, 20 Pick. 257 ; Birdsall v. Applegate, Spenc. (N. J.) 245 ; 
 M'Chesney v. Bruce, 1 Md. 347 ; Clark v. Hyman, 1 Dev. (N. C] 382. 
 
 But some American cases, like the later English, hold that there must 
 be a clear indication of an intention to restrict the meaning of the word. 
 The fact that there has been no previous devise of real estate, or that the 
 words used have been applied in a previous part of the will to personal es- 
 tate, or that they are accompanied with words descriptive of personal estate 
 merely, is not sufficient to restrain their meaning : Wheeler v. Dunlap, 
 13 B. Mon. 293 ; Harper v. Blean, 3 "Watts 474. 
 
 ' Dobson V. Bowness, L. R. 5 Eq. 407. 
 
REAL ESTATE NOT EFFECTS. 54 
 
 only) : so that a bequest of " estate and effects " would carry real 
 estate, where " estate " alone would not do so. But qu. whether ' 
 this distinction would now be attended to.^ 
 
 "■Effects." 
 Notwithstanding some cases inconsistent with the rule, it 
 appears to be settled by authority that, — 
 
 *lluLE. The word " effects " is confined to per- ^^ ^ ^ 
 
 r 55 
 
 sonal estate, and does not include real estate, un- 
 less an intention appear to the contrary. (Doe d. Hick 
 V. Bring, 2 M. & Sel. 448 ; Doe d. Haw v. Earles, 15 M. 
 & W. 450.) 
 
 " In Ilogan v. Jackson, Lord Mansfield certainly considered 
 effects as a word of very general and extensive signification, and 
 if his authority stood alone, I should be inclined to think that he 
 considered the word effects as sufiicient in itself to pass the real 
 estate. But the subsequent cases of Carafield v. Gilbert and Doe 
 V. Lainchbury, have treated it otherwise, and as applying only 
 to personalty in its primary signification." (Per Bayley, J., in 
 Doe V. Dring, 2 M. & Sel. 458.) 
 
 '•There is no doubt that the meaning of the word ' effects ' is, 
 in common parlance, confined to personal things ; and it has been 
 judicially decided to bear that meaning, unless the context shows 
 that the testator used it in a more comprehensive sense. This was 
 held by all the Court of King's Bench, in the cases of Oamfield 
 V. Gilbert, 3 East 510, and of Doe v. Longlands, 14 East 370 : 
 and although according to the report of the case of The Marquis 
 of Tichfield v. Horncastle, 2 Jur. 610, Lord Langdale appears 
 to have thought that the word might originally have been con- 
 strued to embrace all the effects, real and personal, of a man's 
 industry, he does not intimate any opinion that the decisions 
 ought not to be abided by." (Per Parke, B., in Doe v. Earles, 
 15 M. & W. 456.) 
 
 ^ The distinction is recognised in DolDson v. Bowness, L. R. 5 Bq. 407 ; 
 Harper v. Blean, 3 Watts 474. 
 5 
 
55 GOODS AND CHATTELS. 
 
 In Doe d. Hick v. Dring, 2 M. & Sel. 448, the will in exten- 
 so was as follows : "I, A. B., declare this to be my will, by 
 which I give and bequeath to my wife all and singular my effects 
 of what nature or hind soever, to her own use and enjoyment 
 during her natural life, and at her death to be equally divided 
 between our surviving children." It was held that real estate 
 could not pass. 
 
 But the context may show an intention to include real estate 
 ;^P^-| under the words "effects;" as if the testator speaks *of 
 " my said effects," referring to a previous devise of land 
 (Doe V. White, 1 East 33; Den v. Trout, 15 East 394), or direct 
 an annuity to be paid out of his real and personal estate by the 
 persons to whom the " effects " are given. (Marquis of Titch- 
 field V. Horncastle, 2 Jur. 610.) 
 
 " aoods," " Chattels" 
 Rule. The word "goods," and equally the word 
 " chattels," prima facie comprise the whole personal es- 
 tate of every description. (Kendall v. Kendall, 4 Russ. 
 370.)^ 
 
 1 Stuckey v. Stuckey, 1 Hill Ch. (S. C.) 309. 
 
 These words will include choses in action. Moore v. Moore, 1 Bro. C. C. 
 127. But a bequest of " goods and chattels " or of " personal property," &o., 
 in a certain place will not include choses in action, for they " have no 
 locality otherwise than by drawing the jurisdiction of the ecclesiastical 
 court," per Lord Thurlow: Moore v. Moore 1 Bro. C. C. 129; Chapman 
 V. Hart, 1 Ves. Sen. 272 ; Fleming v. Brook, 1 Soh. & Lef. 318 ; Brooke v. 
 Turner, 7 Sim. 681 ; Penniman v. French, 17 Pick. (Mass.) 404. 
 
 Where a testatrix bequeathed " all her property of whatever nature or 
 kind the same may be, that should be found in her house, except a bond 
 of F. M. in her writing box in said house," this bequest was held not to in- 
 clude a bond and mortgage, and several banker's receipts found in the 
 house, the exception not being sufficiently strong evidence of intention to 
 take it out of the general rule. Fleming v. Brook, 1 Sch. & Lef 318. 
 
 Nor will a bequest of " personal property " with direction for a sale in" 
 elude bonds, notes, mortgages and other choses in action, or money, such 
 property not being ordinarily made a subject of sale. Hunter's Estate, 6 
 Penn. St. 97 ; Bredlinger's Appeal, 2 Grant's Ca. 461 ; German v. German, 
 27 Penn. St. 116 ; Alexander v. Alexander, 6 Ired. Eq. 230 ; Hastings v. 
 
GOOBS ANB CHATTELS. 56 
 
 In some cases the nature of the bequest may show that par- 
 ticular species of personal estate could not be intended to pass by 
 it. In Borton v. Dunbar, 30 L. J. Ch. 8, where the testator 
 bequeathed the remainder of his "money and effects" to be ex- 
 pended in purchasing a suitable present for his godson, it was 
 held that a contingent reversionary interest in stock did not 
 pass : but the case seems one of difficulty. 
 
 Earp, Phill. Eq. (N. C.) 5. But in order to prevent a partial intestacy 
 where there is a direction to the executors to sell the whole of the testator's 
 property and out of the proceeds to pay legacies, choses in action will be 
 included. Thorton v. Burch, 20 Ga. 791. 
 
 And a distinction is taken in Nbrth Carolina between a bequest that the 
 whole personal property be sold and divided, and a bequest of the pro- 
 ceeds of a sale, holding in the former case that choses in action will pass. 
 Hogan V. Hogan, 63 N. C. 222. 
 
*57] ^CHAPTER VI. 
 
 OBJECTS OF GIFT GENERALLY. 
 
 Brown v. Higgs. 
 
 If the testator by will leaves the objects of his bounty to be se- 
 lected by a given person, and no selection is made, either by the 
 death of the person to whom the duty is intrusted or otherwise, 
 it might be argued that there was in event no devise or bequest ; 
 but the Court, where a class of objects are pointed out among 
 whom the selection is to be made, carries out the intention of the 
 testator cypres, whether the power be one of selection or distri- 
 bution : and it is a rule that, — 
 
 Rule. If real or personal estate b^ given to or for the 
 benefit of such of certain objects as A. shall appoint, or to 
 or for the benefit of certain objects in such proportions as 
 A. shall appoint, and there is no gift in default of ap- 
 pointment : — if the power of selection or distribution be 
 not exercised, the gift is not void for uncertainty, but the 
 property is held divisible among all the objects of the 
 power equally. (Brown v. Higgs, 4 Ves. 708 ; 8 Id. 561; 
 Burrough v. Philcox, 5 My. & Or. 72.) ^ 
 
 Thus if the testator bequeath property to such of his relations 
 as A. shall think most deserving (Harding v, Glyn, 1 Atk. 469), 
 
 1 Varrell v. Wendell, 20 N. H. 431 ; Bull v. Bull, 8 Conn. 47 ; Dominick 
 V. Sayre, 3 Sandf. S. C. 555 ; Robinson v. Allen, 11 Gratt. 789 ; Withers 
 V. Yeadon, 1 Rich. Eq. 324 ; M'Gaughy v. Henry. 15 B. Monr. 399 ; Rogers 
 V. Rogers, 2 Head. 663 ; Carr v. Grain, 2 Bug. 241. 
 
 In New York, Alabama, Michigan, Wisconsin, and Minnesota the rule 
 of Brown v. Higgs is established by statute. 
 
BROWN V. HIGGS. 57 
 
 or to his widow to divide among his children as she shall think 
 fit (Grieveson v. Kirsopp, 2 Keen 653), or for the benefit of the 
 
 wife and children of *A. in such manner as he shall by 
 
 r*58 
 will bequeath (Brown v. Pocock, 6 Sim. 257), and the ^ 
 
 power be not exercised, as by the death of the donee of the 
 
 power or by his declining to exercise it, the Court will divide 
 
 the property equally among the class of objects mentioned, per 
 
 capita. 
 
 " When there appears a general intention in favor of a class, and 
 a particular intention in favor of individuals of a class to be se- 
 lected by another person, and the particular intention fails, from 
 that selection not being made, the Court will carry into efiect the 
 general intention in favor of the class. - When such an intention 
 appears, the case arises, as stated by Lord Eldon in Brown v. 
 Higgs, of the power being so given as to make it the duty of the 
 donee to execute it ; and in such case the Court will not permit 
 the objects of the power to suffer by the negligence or conduct 
 of the donee, but fastens upon the property a trust for their bene- 
 fit." (Burrough v. Philcox, 5 My. & Cr. 92.) 
 
 "A bequest to A. or B. is void ; but a bequest to A. or B. at 
 the discretion of 0. is good, for he may divide it between them. 
 That is the case of this will .... The executors having their 
 discretion might say to whom the fund should be given, the 
 parents or the children. But the Court has not that discretion, 
 but has only to say, what class are to take ; and then the distri- 
 bution must be equal." (Longmore v. Broom, 7 Ves. 128.) 
 
 Power to appoint to some objects "or" to others. — The rule in 
 Brown v. Higgs is applicable, although the language of the power 
 is alternative. Thus if property be bequeathed to the testator's 
 brothers and sisters or their children in such shares and propor- 
 tions and at such times as the trustees shall think fit, in default 
 of appointment the property is divisible among all the children 
 and their parents equally per capita. (Longmore v. Broom, 7 
 Ves. 128 ; Penny v. Turner, 2 Phill. 493.) So if the gift be 
 " to such children of A. as B. shall think most deserving, or to 
 the children of C." (Brown v. Higgs, 8 Ves. 561) ; or if the gift 
 
58 SEVERAL SETS OP OBJECTS. 
 
 be "amongst my nephews and nieces or their children, either all 
 to one of them or to as many of them *as my surviving 
 '^ child shall think proper." (Burrough v. Philcox, 5 My. & 
 Cr. 73.) 
 
 Tenancy in common. — It seems that wherever the rule in 
 Brown v. Higgs is applied, the objects will take the property 
 among them as tenants in common, and not as joint tenants. 
 This is certainly the case if the power be to diviae the property 
 "amongst" or "between" the objects (Casterton v. Sutherland, 
 9 Ves. 445) ; and in Re White's Trusts, Johns. 656, a gift to 
 "such other of my children or their issue" as A. should appoint, 
 was held in default of appointment, to create a tenancy in com- 
 mon between all the children and issue. In fact any power 
 which enables the donee either to select objects, or to fix propor- 
 tions, seems to contain that reference to plurality of interest 
 among the objects which is sufficient to create a tenancy in 
 common. 
 
 Several sets of objects. — The rule has been applied to cases 
 where the power of appointment was among several sets of objects 
 entirely unconnected with each other. In these cases the dis- 
 tribution is, it seems, per stirpes, one set of objects taking one- 
 half of the fund, and the other set taking the remainder. 
 
 Thus in Doyle v. Attorney-General, 4 Vin. Abr. 485, where 
 property was bequeathed to trustees, in trust to dispose of it to 
 such of the testator's relations of his mother's side who were 
 most deserving, in such manner as they thought fit, and for such 
 charitable uses and purposes as they should also think most pro- 
 per and convenient, the court directed that one-half of the estate 
 should go to the testator's relations on the mother's side, and the 
 other half to charitable uses. 
 
 So in Salusbury v. Denton, 3 K. & J. 529, where the testa- 
 tor bequeathed property " to be at the disposal of my said wife to 
 apply a part to such charitable endowment for the benefit of the 
 poor of Offley as she may prefer, and the remainder to be at her 
 disposal among my relations in such proportions as she may 
 direct," it was held that the property was divisible in equal parts. 
 
SEVERAL SETS OE OBJECTS. 60 
 
 one of such *parts to be for charitable purposes, and the p^^^ 
 other for the only child of the testator absolutely. 
 
 Again in Fordyce v. Bridges, 2 Phill. 497, where the testa- 
 tor gave his residuary personal estate to trustees, to invest in the 
 purchase of estates in England or Scotland, such estates, if in 
 England, to be settled upon one set of trusts, and if in Scotland 
 upon another set of trusts ; it was held that, the discretionary 
 power having ceased to exist, the unappointed fund was divisible 
 into moieties, one-half to be invested in land in Scotland, and 
 the other half being payable to those entitled under the trusts 
 declared of the English estates. 
 
 In Down v. "^orrall, 1 My. & K. 561, where property was 
 left to trustees to settle either for charitable purposes at their 
 discretion or for the separate benefit of the testator's sister and 
 her children, the fund was held (no settlement having been made) 
 to be undisposed of ; but this case seems not to be consistent with 
 Doyley v. Attorney-General, and Salusbury v. Denton, there 
 being no difference, as regards the application of the rule, between 
 a bequest to A. or B. at the discretion of C, and a bequest to 
 A. and B. in such proportions as C. shall appoint. The rule 
 applies equally to both cases. 
 
 In Re Eddowes, 1 Dr. & Sm. 395, where the testator by will 
 bequeathed his real and personal estate equally among his chil- 
 dren, and by a codicil revoked the share of one of his sons, and 
 gave that share to trustees upon trust at their discretion to apply 
 the whole or such part thereof for the benefit of his said son, or 
 otherwise to apply the whole or such part thereof in augmenta- 
 tion of the shares of the other children ; the power not having 
 been exercised, there was held to be an intestacy as to the share 
 in question. Sed qu. as to this case. 
 
 The rule in Brown v. Higgs, however, does not apply where 
 there is a mere permission to give to certain objects, as if pro- 
 perty be given to a married woman for her separate use, with 
 power for her (if she chooses) to bequeath it by will to her 
 husband and children. (Brook v. Brook, 3 Sm. & a. 280.)' 
 
 1 Robinson v. Allen, 11 Gratt. 785; Holt v. Hogan, 5 1 Jones Eq. 88; 
 Harlason v. Kodd, 15 Ga. 148. 
 
61 OBJECTS WHEN ASCERTAINED. 
 
 ^gj-| *In Little V. Neil, 10 W. R. 592, V.-C. K., property 
 was vested in trustees, with a direction to apply the income 
 for the benefit of such one or more of the wife and cliildren of A. 
 as the trustees should think fit, but any provision made for the 
 wife was to be in the shape of an annuity for her separate use, 
 determinable on the life of her husband ; the power not having 
 been exercised, it was held that the fund was divisible equally 
 among the wife and children of A. the wife taking her share, not 
 in the form of an annuity, but absolutely. 
 
 Power exercised in part. — If the power has been partially 
 exercised, the rule in Brown v. Higgs applies, and the unap- 
 pointed part is divisible equally among the objects of the power, 
 without regard to the appointment. (Maddison v. Andrew, 1 
 Ves. sen. 57 ; Fordyce v. Bridges, 2 Phill. 513.)^ 
 
 Objects when ascertained. — It would seem that the period for 
 ascertaining the objects to take in default of appointment should 
 be the time when the power ought to havevbeen exercised.^ Thus 
 in Longmore v. Broom, 7 Ves. 124, where there was an imme- 
 diate gift to the children of A. as B. should appoint, it was held' 
 that the fund vested at the testator's death, and that after-born 
 children could not take. 
 
 So in Re White's Trusts, Johns. 656, where a sum of 2500?. 
 was given to trustees in trust for the testator's son A. for life, 
 with remainder to his children, "but should A. die childless, I 
 confide in the said trustees for applying the said sum of 2500?. 
 for the benefit of such other of my children or their issue, as they 
 may think fit," it was held that the children and issue of children 
 
 ' Foster v. Cautely, 3 Sm. & Gif. 99 ; Russel v. Kennedy, 66 Penn. St. 
 252 ; Cruse v. M'Kee, 2 Head 7. But in Varrell v. "Wendell, 20 N. H. 
 431, it was held that where a power is given to distribute amongst a cer- 
 tain class, and through a mistaken notion of the extent of the power, the 
 donee appoints to a number of persons, some of whom are, and some are 
 not proper objects of the power, the power is to be considered as wholly 
 unexecuted, and the whole property is to be distributed equally among 
 the objects of the power. Sed contra, Cruse v. M'Kee, 2 Head 1. 
 
 2 Hoey V. Kenny, 25 Barb. 398 ; Rogers v. Rogers, 2 Head 667. 
 
GARVEY V. HIBBERT. 61 
 
 living at the death of A. took the fund per capita, the trustees 
 having died in the lifetime of A. 
 
 If the bequest be to A. for life, with a power of disposition 
 among the testator's relations by deed or will, and A. dies with- 
 out exercising the power, it is settled that the class to take under 
 the rule in Brown v. Higgs, are those who would be the next of 
 kin, according to the Statutes of Distribution, of the testator at 
 the death of A., *and not at the death of the testator (2 r^cf^o 
 Sugd. Pow. 268, 271, 6th ed.), whether the power be one 
 of selection (Harding v. Glyn, 1 Atk. 469), or of distribution 
 (Pope V. Whitcombe, see Fiuch v. Hollingswortb, 21 B. 112). 
 
 Where the power is not to arise until a given period, — If the 
 power of appointment is not to arise until a given period, no ob- 
 jects can take, under the rule in Brown v. Higgs, who die before 
 that period. Thus, if the gift be to A. for life, and after his 
 decease to his children, as he shall hy will (only) appoint, chil- 
 dren dying in the lifetime of A. are excluded. (Walsh v. Wal- 
 linger, 2 E. & My. 78 ; Kennedy v. Kingston, 2 J. & W. 431.) 
 
 So where the testator devised his real estate to his wife for 
 life, and after her death directed that his brother should divide 
 the estate among his children as they should attain twenty-one, 
 and the children all died in the lifetime of the testator's widow, 
 it was held that the estate was in event undisposed of. (Half- 
 head V. Shepherd, 7 W. R. 480.) 
 
 Garvey v. Hibbbrt. 
 
 It is a convenient rule, to remedy mistakes in the number of 
 legatees intended by the testator, that — 
 
 Rule. Where a gift to children describes them as con- 
 sisting of a specified number, which is less than the num- 
 ber in existence at the date of the will, the Court rejects 
 the specified number on the presumption of mistake, and 
 all the children in existence at the date of the will are 
 held entitled ; unless it can be inferred who were the 
 
62 MISTAKE IN NUMBER OP LEGATEES. 
 
 particular children intended. (Garvey v. Hibbert, 19 
 Ves. 124; Lee v. Pain, 4 Hare 250.)^ 
 
 Thus if the bequest be of 1000/. to the "three" chU- 
 dren of A., and A. has at the date of the will four, five, 
 or a larger number of children, all are held entitled. 
 
 The rule is the same where the legacy is of a given 
 
 ^^q-| amount to each child, as " to the three children of 
 
 A. *100/. each," although the total amount of the gift 
 
 is increased by the construction adopted. (Garvey v. 
 
 Hibbert, 19 Ves. 124.)^ 
 
 The same rule applies to gifts to brothers or sisters 
 (Lee V. Pain, 4 Hare 250), grandchildren (Wrightson v. 
 Calvert, 1 Johns. & H. 250), servants (Sleech v. Thoring- 
 ton, 2 Ves. sen. 561). 
 
 "The ground on which the Court has proceeded is, that it is a mere 
 slip in expression; the meaning is, all children, or all servants; 
 and the Court conceiving the intention to be to give to each child 
 so much, strikes out the specified number." (Garvey v. Hibbert, 
 19 Ves. 126.) 
 
 In Daniell v. Daniell, 3 De G. & Sm. 337, the testatrix by 
 ■will gave " to the three children of A. 500Z. each," A. having 
 then three children, and three only, as the testatrix knew. The 
 testatrix afterwards made three other wills, repeating in each the 
 above bequest in the same words. A. had in the meantime other 
 children born, and at the date of the last will had nine children, 
 
 ' Vernor i-. Henry, 6 Watts 201 ; Urie v. Irvine, 21 Penn. St. 312 ; 
 Thompson v. Young, 25 Md. 459 ; Adams v. Logan, 6 Monr. 177. 
 
 Where a gift is made to a whole class and only some of the class are named, 
 those not named will be included : Eddels c. Johnson, 1 Giff. 27 ; Tucker 
 '.v. Boston, 18 Pick. 166. 
 
 But where the words were " to my four nephews and my niece," naming 
 three nephews and the niece, omitting the only remaining nephew, 
 Romilly, M. R., held that he took nothing, that the word four referred not 
 to the number of nephews, but to the whole number of persons included 
 in the gift : Glanville v. Glanville, 33 Beav. 304. 
 
 ^ Spencer v. Ward, L. R. 9 Eq. 509. 
 
THETFORD SCHOOL CASE. 63 
 
 of the birth of each of ■whom the testatrix had been regularly 
 informed; it was held, however, that the evidence was not suffi- 
 cient to negative the claim of the six younger children to share in 
 the bequest, that the rule in Garvey v. Hibbert applied, and that 
 each of the nine children was entitled to a legacy of 500?. 
 
 Again, in Yeates v. Yeates, 16 B. 170, where the testator 
 before making his will caused inquiry to be made respecting the 
 family of A., and was informed, as was then the fact, that A. had 
 seven children, and the testator made his will, giving " to each of 
 the seven children now living of A. an annuity of 40?. each," but 
 in the meantime, and before the will was made, two more children of 
 A. had been born ; it was held that the rule applied, and that all 
 the nine children were entitled to an annuity of 40?. each. 
 
 But the rule is of course excluded in a case where the testator 
 points out the particular children intended by an *addi- r^/>^ 
 tional description, as by adding, "they live near Gr.," when 
 only the specified number lived there. (Wrightson v. Calvert, 
 1 Johns. & H. 250.y 
 
 Thbtford School Case. 
 
 It not unfrequently happens that the rents of an estate devised 
 to charitable purposes greatly increase in amount since the time 
 of the devise, and that the will makes no express provision for 
 the employment of the surplus rents. In such cases it is a rule 
 that : — 
 
 Rule. If sums amounting together to the whole rents 
 of an estate, at the time of the devise, are given to 
 charitable objects, the objects will take the increased rents 
 in the same proportions, unless an intention appear to the 
 contrary. (Thetford School Case, 8 Co. Rep. 130 b; 
 Attorney-General v. Johnson, Amb. 190; Mayor &c. of 
 Beverley z'. Attorney-Greneral, 6 H. L. C. 310.) 
 
 ^ Where one or more of the class have already been provided for, and the 
 specified number corresponds with the number unprovided for, the rule 
 will not apply. Shepard v. Wright, 5 Jones Eq. (N. C.) 22. 
 
64 THETFOED SCHOOL CASE. 
 
 In the Thetford School Case, 8 Co. Rep. 130 b, land to the 
 value of 351. a year was devised for the maintenance of a preacher, 
 schoolmaster, and poor people in Thetford : and by the will a 
 special distinction was made, how much the preacher, schoolmaster 
 and poor people should have, amounting in the whole to 35?. a 
 year, which was the value of the land at the time of the devise ; 
 and afterwards the land increased to be of the value of lOOL a 
 year. It was held " that the revenue of the lands should be em- 
 ployed to increase the several stipends of the persons appointed 
 to be maintained by the devisor." 
 
 " There are many cases which have decided, that where it ap- 
 pears on the will itself, what was the yearly value of the estates 
 given to charitable purposes, and the testator has parcelled among 
 the different charities the whole of that yearly rent or value so 
 attributed to the property, any future increase of rents must go 
 to charity. The Court seems to have said, that the testator has 
 himself declared what constitutes the whole of the estate ; and 
 *from the circumstance of his knowing what was the then 
 -■ present value of the estate, and devoting it exclusively to 
 charity, we have inferred an intention on his part, that the whole 
 of the estate should be given to charitable purposes. The doctrine 
 of these cases is neither more nor less than this: — a gift of the 
 rents and profits of an estate is a gift of the estate itself; such 
 a devise as I have just mentioned is a gift of the rents and 
 profits ; it is therefore a gift of the estate." (Per Lord Eldon, 
 Attorney-General v. Skinners' Company, 2 Russ. 441.) 
 
 " As far as I have read these ancient cases, they state it to de- 
 pend upon the intention of the donor, and that one way of find- 
 ing out the intention is, to inquire whether the whole of the 
 annual value of the property was, at the time of the foundation 
 of the charity, distributed among the objects of the charity. If 
 it was, they say that that circumstance is evidence of the donor's 
 intention to give the whole of the increased value to the same 
 objects." (Attorney-General v. Mayor of Bristol, 2 J. & W. 313.) 
 
 The cases not coming within the rule in the Thetford School 
 Case will fall under two heads : 
 
APPLICATION CYPRES. 65 
 
 1. Where the whole rents are not given. — First, where the 
 sums given to the various charitable objects do not exhaust the 
 whole annual value of the lands at the time of the devise. (At- 
 torney-General V. Mayor of Bristol, 2 J. & W. 294.) If property 
 be given to a corporate body, and certain annual sums are directed 
 to be paid thereout, which are less (by however small an amount) 
 than the annual rents at the time of the devise, the rule does 
 not apply, and the corporate body will in general be held to take 
 the increased rents for their own benefit. 
 
 Thus, in Attorney-General v. Brazenose College, 2 01. & F. 
 295, where the rent was at the time of the devise 66Z. 13s. id. a 
 year by the foundation accounts, and the charges upon it amounted 
 to 65Z. 3s. 4c?. only, the increased rents were held to belong to 
 the College. So, in Attorney-General v. Trinity College, Cam- 
 bridge, 34 B. 383, where the testator devised real estates which 
 he described as " of *the yearly value of fourscore pounds rj|,^p 
 or thereabouts," to the College, and at the testator's death 
 the rents exceeded the specific payments to be made thereout by 
 1?. Qs. 8c?., the College was held entitled to the whole surplus 
 rents. 
 
 But even though the whole rents are not distributed among the 
 charitable objects, the will or other instrument may show an inten- 
 tion that they shall participate in the increased rents. As in 
 Mercers' Company v. Attorney-General, 2 Bligh, N. S. 165, 
 where a rent of 150?. was given by deed upon trust, and the pay- 
 ments to be made amounted to 149?. lis. only, the augmented 
 rents were held to belong to the charitable objects : there being a 
 direction that if the rents fell off, the various charities should 
 abate in proportion. 
 
 General charitable intention. — It is to be observed that, where 
 the whole rents of an estate are not specifically appropriated, but 
 the Court discovers upon the will a general intention to devote 
 the whole to charity, the general charitable intention will be car- 
 ried out by the Court, and the whole of the increased as well as 
 the original rents will be appropriated by the Court of Chancery 
 to charity. (Arnold v. Attorney-General, Show. P. 0. 22.) 
 
 " If a testator gives all his lands to charitable uses, but not so 
 
66 GENERAL CHARITABLE INTENTION. 
 
 many as to exhaust the whole value of the land, yet the gift will 
 carry all the rents and profits, in point of application, to chari- 
 table purposes." (Attorney-General v. Mayor of Bristol, 2 J. & 
 W. 320.) 
 
 So also, " if the testator has manifested a general intention to 
 give to charity, the failure of the particular mode in which the 
 charity is to be effectuated shall not destroy the charity : but, if 
 the substantial intention is charity, the law will substitute another 
 mode of devoting the property to charitable purposes, although 
 the formal intention as to the mode cannot be accomplished." 
 (Moggridge v. Thackwell, 7 Ves. 69.) 
 
 2. Where the rents are given, but not wholly to charitable objects, 
 — Secondly, the rule in the Thetford School Case does not apply. 
 
 * 
 
 67] 
 
 where the whole rents at the time of the devise *are disposed 
 
 of by the will, but part only of the rents is given to chari- 
 table objects, and the remaining part, under the name of surplus 
 or overplus, is given to a corporate body, or some other object not 
 charitable. In such cases the charitable objects have no claim 
 to absorb the whole of the increased rents, and the corporate body 
 or other person to whom the surplus rents are given will in gen- 
 eral be entitled, after making the specified payments to the 
 charitable objects, to take the whole of the increased rents. 
 (Mayor, &c., of South Molton v. Attorney-General, 5 H. L. C. 
 1 ; Mayor, &c., of Beverley v. Attorney-General, 6 H. L. C. 
 
 sio.y 
 
 It may however be a question in such cases, whether there is 
 to be a proportionate augmentation of the sums devoted to chari- 
 table purposes : but such a proportionate distribution of the in- 
 creased rents will not, it appears, be Aade without a special 
 intention appearing to that effect. (Attorney-General v. Skin- 
 ners' Company, 2 Russ. 438, 443.) However, where the testa- 
 tor directed lands of the value of lOOZ. a year to be purchased, 
 and gave 961. to charity, and gave " the residue of the said sum, 
 being 4:1. yearly," to the Drapers' Company for their pains, it 
 
 1 Attorney-General v. Wax Chandlers' Co., L. R. 5 Ch. App. 503. 
 
GENERAL CHARITABLE INTENTION. 67 
 
 was held that all the objects were entitled ratealjly to the in- 
 creased rents. (Attorney-Greneral v. Drapers' Company, 4 
 B. 67.y 
 
 ^ The question is, whether the intention was that the rents should be 
 divided in certain proportions amongst the different objects of the testa- 
 tor's bounty, or that specified sums should be permanently paid to par- 
 ticular objects, and that they should be entitled to nothing more than the 
 payment of the specified sums without abatement and without augmenta- 
 tion. Whether the lands are given in trust exclusively for charitable 
 purposes, or beneficially on condition that specific sums are paid : Per 
 Lord Campbell, Attorney-General v. Dean of Windsor, 8 H. L. C. 393-4. 
 
*68] ^CHAPTER VII. 
 
 CHILDREN, ETC., WHEN ASCERTAINED. 
 
 It might be supposed that a gift to the children of a person 
 simpliciter, would include all the children he might have, when- 
 ever coming into existence: hut the testator is considered to 
 intend the objects of his bounty to be ascertained at as early a 
 period as possible ; and it may be laid down as a general rule 
 (qualified by the other rules which follow in this chapter) that, 
 
 CHfts to Children, Sj-c, as a Class. 
 
 Rule. A devise or bequest to the children of A., or of 
 the testator, means, prima facie, the children in existence 
 at the testator's death : provided there are such children 
 then in existence. (Viner v. Francis, 2 Cox 190 ; Mann 
 V. Thompson, Kay 638.)^ 
 
 ^ Adams v. Spaulding, 12 Conn. 359 ; Miles v. Boyden, 3 Pick. 216 ; 
 Worcester v. Worcester, 101 Mass. 132 ; Collin v. Collin, 1 Barb. Ch. 636 ; 
 Downing u. Marshall, 23 N. Y. 373 ; Gross' Estate, 10 Penn. St. 361 ; Ingram 
 V. Girard, 1 Houst. 286 ; Benson v. Wright, 4 Md. Ch. 279 ; Meares v. 
 Meares, 4 Ired. L. 196 ; Myers v. Myers, 2 M'Cord Ch. 214 ; Wood 
 V. M'Guire, 15 Ga. 205 ; Walker v. Williamson, 25 Ga. 554 ; Smith v. 
 Ashurst, 34 Ala. 210. 
 
 The rule applies also where any of the members of the class, though 
 alive, are incapacitated from taking under the will : thus in Downing v. 
 Marshall, 23 N. Y. 373, where there was a devise to the children of A., 
 and all the children of A., except one, were aliens, it was held that the one 
 took the whole. 
 
 In most, if not in all, of our states, statutes have been passed to prevent 
 lapse in certain devises and bequests, in some cases, to children and to 
 descendants, or to all relations in others, and in others to all persons what- 
 soever. These statutes, though differing in detail, in general, provide that 
 
aiFTS TO CHILDREN AS A CLASS. 68 
 
 The rule is the same whether the gift be of an aggre- 
 gate fund to the class, as 1000^. to the children of A., or 
 of a certain sum to each member of the class, as, to the 
 children of A. 100^. each. (Mann v. Thompson, Kay 
 638.) 
 
 The rule extends to gifts to grandchildren, issue, 
 brothers, nephews, cousins. (Lee v. Lee, 1 Dr. & Sm. 
 85; Baldwin v. Rogers, 3 D. M. G. 649.) 
 
 A gift to all the children, or to "all and every" the children 
 of a person, is, for the purpose of this and the following rules, 
 equivalent to a gift to children simpliciter ; the words " all and 
 every" not being considered as emphatic. 
 
 The rule applies where the gift is to and for the benefit of A. 
 and his children jointly. (De Witte v. De Witte, 11 Sim. 41.) 
 
 *The rule applies to gifts by way of appointment, rif^n 
 (Harvey v. Stracey, 1 Drew. 73.) 
 
 Additional description. — The rule applies, although the class 
 of children entitled may be further limited by an additional 
 description. 
 
 Thus, if the gift be "to all the 'present horn children of A." 
 
 if such devisee or legatee shall die before the testator, leaving issue who 
 shall survive the testator, such issue shall take the estate as the devisee or 
 legatee vrould have done, in case he had survived the testator. If these 
 statutes apply to gifts to classes as well as to individuals they prevent the 
 application of this rule in all cases to which they extend. 
 
 This question has been raised in several states, and has been decided 
 in the affirmative in some (Moore v. Dimond, 5 R. I. 121 ; Yeates v. 
 Gill. 9 B. Mon. 206 ; Jamison v. Hay, 46 Mo. S52), in others in the nega- 
 tive (Gross' Estate, lOPenn. St. 362 ; Young u. Robinson, 11 Gill & J. 328). 
 
 In Kentucky, there is a later statute, which expressly provides that when 
 a devise is made to a class, and one or more of the class shall die before 
 the testator, the share of those so dying shall go to their descendants, if 
 any, or if none to the survivors, unless a different disposition be made : 
 Renaker v. Lemon, 1 Duv. 212 ; Carson v. Carson, 1 Mete. (Ky.) 300. 
 Whether this statute extends to the descendants of one who is dead at the 
 date of the will, quaere: Dunlap v. Shreve, 2 Duv. 335. 
 6 
 
69 GIFTS TO CHILDREN AS A CLASS. 
 
 (Leigh V. Leigh, 17 B. 605), or to the children of the late A., a 
 person dead at the date of the will, those children only who 
 answer the description and who afterwards survived the testator 
 take the whole fund.^ 
 
 So if the gift be to A. for life, and after his decease to all and 
 every his children living at his decease, and A. dies in the testa- 
 tor's lifetime, the rule applies, and those children of A. who 
 survive the testator take the whole fund. (Lee v. Pain, 4 Hare 
 250.) 
 
 Again, if the gift be " to such of the children of A. as shall 
 attain 21, the sum of 100?. each" (Mann v. Thompson, Kay 
 638), and none have attained 21 at the death of the testator, 
 those only who were in existence at the testator's death and who 
 afterwards attain 21 will be entitled. 
 
 So if there be an immediate bequest to such of the children of 
 
 A. as B. shall appoint, and there are children in existence at the 
 testator's death, the power of appointment is confined to children 
 then in existence. (Paul v. Compton, 8 Ves. 375.) 
 
 Hxceptions. — If the description is such as to make the gift not 
 one to a class, but to particular persons individually, the rule of 
 course does not apply. As if the gift be " to the children of A., 
 namely, B., C, and D." (Bain v. Lescher, 11 Sim. 397), or 
 "to the brothers and sister of A.," A. having several brothers 
 and only one sister at the date of the will. (Havergal v. Harrison, 7 
 
 B. 49.) In this case the share of an object predeceasing the 
 testator will lapse.^ 
 
 ^ A gift to such children of A. as shall be living at the death of B., and 
 B. dies in the testator's lifetime, all the children of A. living at the death 
 of the testator will take though born after the death of B. Carver v. 
 Oakley, 4 Jones Bq. 85. 
 
 2 Williams v. Neff, 52 Penn. St. 333. In Morse v. Mason, 11 Allen 36, a 
 gift " to the surviving children of A. not knowing their names, they living 
 in M.," was held to be a gift not to a class but to individuals. So in Star- 
 ling V. Price, 16 Ohio St. 32, where the testator having numerous relations, 
 referred to them as children of their respective parents now living, some- 
 times mentioning their number and sometimes not; it was held that the 
 gifts throughout were to individuals and not to classes. 
 
WORBS OF FUTURITY. 69 
 
 And children born after the testator's death may be admitted 
 under a gift to children as a class, if the intention clearly appear. 
 Thus -where the gift was " to all *grandchildren now born 
 or hereafter to he horn during the lifetime of their respec- L 
 tive parents," afterborn objects were admitted. (Scott v. Lord 
 Scarborough, 1. B. 154.) 
 
 The rule, however is not departed from on slight grounds of 
 inference. Thus, in Scott v. Harwood, 5 Madd. 332, the testa- 
 tor devised his real estate to '< all and every the children of A.," 
 with a gift over in case " the said children" should die under 21, 
 and directed the rents to be accumulated till the children should 
 attain 21, and divided among such as should attain 21 : and the 
 testator gave his residuary personal estate to the children of A., 
 payable at 21. Notwithstanding that children born after the 
 testator's death were thus entitled to share in the personal estate, 
 and the correspondence between the two gifts, it was held that 
 the devise of the real estate was confined to children living at the 
 death of the testator. 
 
 Words of futurity. — If words importing futurity be added to 
 the bequest, as if the gift be to the children " born and to he 
 born," "begotten and to be begotten," "which A. has or shall 
 have," it is a question whether the additional words have the 
 
 But where the gift is to persons who constitute a class although they are 
 named, yet if on construction of the whole will it appear that the tes- 
 tator regarded them as a class and not as individuals, they will be so con- 
 sidered : Jackson v. Roberts, 14 Gray 550 ; Stedman v. Priest, 103 Mass. 
 293. Thus where in other parts of the will they are clearly regarded as a 
 class, they will be so considerered in a clause where they are named : 
 Schaffer v. Kettel, 14 Allen 530. In Springer v. Congleton, 30 Ga. 977, it 
 seems to be considered a rule, that when a gift is made to a class, the mere 
 enumeration of the persons who compose the class at the date of the will, 
 shall not render it a gift to individuals. The testator used two descriptions, 
 supposing them to be consistent. The idea of class was the leading one 
 and shall prevail. 
 
 It seems that the naming of some members only of the class, does not 
 take the case out of the rule. Thus in a gift, " to my nephew J, H. and 
 the children of my sister E.," on the death of some of the children of B., 
 J. H. and the survivors take the whole equally between them : Aspinwall 
 V. Duckworth, 35 Beav. 307. 
 
70 IP NO CHILDEEN AT TESTATPK'S DEATH. 
 
 effect of letting in children born after the testator's death to 
 share in the gift. Where the gift is not immediate, it is settled 
 that the addition of such words does not alter the construction. 
 (Scott V. Lord Scarborough, 1 B. 154 ; Whitbread v. Lord St. 
 John, 10 Ves. 152) ; and it would appear that in the case of an 
 immediate gift also they will generally be considered as intended 
 only to provide for the case of children coming into existence 
 between the date of the will and the testator's death. "If there 
 is a bequest to the children of A., begotten and to be begotten, 
 it has been generally held that the words " to be begotten " show 
 only that the testator contemplated children to be born after the 
 date of his will and before his death." (Butler v. Lowe, 10 Sim. 
 325.) The authorities for this construction are Sprackling v. 
 Ranier, 1 Dick 344; Butler v. Lowe, 10 Sim. 325; Storrs v. 
 Benbow, 2 Myl. & K. 46 ; and dicta in Mann v. Thompscm, 
 Kay 643. On the other hand, in Defflis v. Goldschmidt, 
 1 Mer. 417, a gift to " all children of A. whether now 
 ^B-|-| *born or hereafter to be born," and in Mogg v. Mogg, 1 
 Mer. 654, a devise of real estate in trust to pay the rents 
 for the maintenance of children begotten and to be begotten, 
 were held to let in all after-born children ; and a similar construc- 
 tion was adopted in Gooch v. Gooch, 14 B. 565, see pp. 576, 
 577, and approved of, see 3 D. M. G. 380, 394. The point is 
 perhaps not entirely settled.^ 
 
 Jf no children at testator's death. — If there are no objects 
 in existence at the death of the testator or period of distribution, 
 the rule has no application, and all children whenever born may 
 be included, unless an intention appear to the contrary. (Harris 
 
 ^ In this country it seems to be generally settled that words of futurity 
 will let in after-born children : Butterfield v. Haskins, 53 Me. 392j Yea- 
 ton V. Roberts, 8_Foster 459 : Shinn v. Motley, 3 Jones Eq. 491 ; Bullock 
 V. Bullock, ^^ev^q. 316 ; Napier v. Howard, 3 Kelley (Ga.) 202. The 
 difficulty which the English cases suggest, that of postponing the distri- 
 bution, is overcome by taking refunding bonds from those to whom distri- 
 bution is made. 
 
 The use of words of futurity only does not exclude those already in ex- 
 istence : Almack v. Horn, 1 Hem. & M. 633. But when the gift is of sepa- 
 rate legacies, see Howland v. Howland, 11 Gray 469. 
 
GIFT TO CHILDREN IN REMAINDER. 71 
 
 V. Lloyd, T. & R. 310.) Thus, if the bequest be to trustees in 
 trust to invest, and stand possessed in trust for the children of 
 A., share and share alike, and A. is living but has no children 
 at the testator's death, after-born children will take, and the in- 
 terest till the birth of a child falls into the residue. (lb.) But 
 if the property be given over in the event of there being no 
 child in existence when by the terms of the will it should vest in 
 possession (Godfrey v. Davis, 6 Ves. 43), or if the devise be a 
 legal contingent remainder which fails by the determination of 
 the particular estate before the birth of a child, after-born chil- 
 dren will of course be excluded. 
 
 (rift of Aggregate Fund to Children, ^c, as a Class in 
 Remainder. 
 Notwithstanding the preceding rule, " the general wish of the 
 Court is, if it can, to include all children, coming in esse before 
 a determinate share becomes distributable to any one." (2 Madd. 
 129.) Consequently, where the total amount of the gift is not 
 dependent on the number of children admitted, it is the rule 
 that — 
 
 E/ULE. A devise or bequest of a corpus or aggregate 
 fund to children as a class, where the gift is not imme- 
 diate, vests in all the children in existence at the death of 
 the testator, but so as to open and let in children subse- 
 quently coming into existence before *the period r*i<2, 
 of distribution. (Devisme v. Mello, 1 Bro. C. C. 
 537; Browne v. Hammond, Johns. 212 n. {a-).Y 
 
 ^ Moore v. Dimond, 5 R. I. 129 ; Carpenter v. Schermerhorn, 2 Barb. 
 Ch. 320 ; Heater v. Van Aukin, 1 McCart. Ch. 167 ; Feit v. Yanatta, 6 C. 
 E. Green 86 ; Pemberton v. Parke, 5 Binn. 606 ; Ross v. Drake, 37 Penn. 
 St. 375 ; Tayloe v. Mosher, 29 Md. 445 ; Hamletts v. Hamletts, 12 Leigh. 
 350; Cooper v. Hepburn, 15 Gratt. 558 ; Wessenger v. Hunt, 9 Rich. £q. 
 464 ; Nichols v. Denny, 37 Miss. 65 ; Turner v. Patterson, 5 Dana 296 j 
 Walters v. Cruteher, 15 B. Monr. 10 ; Handberry v. Doolittle, 38 111. 206. 
 
 In Bull V. Bull, 8 Conn. 49 it is held that where the gift vests at the 
 death of testator to be enjoyed in futuro, only those who are in existence 
 
72 PERIOD OF DISTEIBUTIOKT. 
 
 Thus if real or personal estate be given to A. for life, 
 and after his decease to the children of B., all the children 
 in existence at the testator's death take vested interests, 
 subject to be partially divested in favor of children sub- 
 sequently coming into existence during the life of A. 
 
 So if the gift be to the children of A., to be distribu- 
 ted among them at the end of twenty years from the 
 testator's death, the children living at the testator's 
 death take vested interests, subject to open and let in 
 children coming in esse during the twenty years. (Op- 
 penheim v. Henry, 10 HareJ^jl.) 
 
 at his death can take. Sed qu. While in Dingley v. Dingley, 5 Mass. 
 536, it was held that the rule applied to devises of real estate in Massachu- 
 setts. In Emerson v. Cutler, 14 Pick. 115, it was held that in gifts of per- 
 sonalty, only those living at the period of distribution could take. But 
 this case seems to have been overruled, and the doctrine of that state con- 
 formed to the English rule : Winslow v. Goodvrin, 7 Mete. 375 ; Dalton v. 
 Savage, 9 Id. 37 ; Bowdwitch v. Andrew, 8 Allen 342. In Massachu- 
 setts it seems a devise of land to a class will embrace those born after the 
 period of distribution : Annable v. Patch, 13 Pick. 363 ; Ballard v. Bal- 
 lard, 18 Id. 44. 
 
 A mere direction that, if any of the children die before the period of 
 distribution, their share shall not go to their issue, without any other dis- 
 position of it, will not exclude the operation of the rule : Crossby v. Smith, 
 3 Rich. Eq. 244. 
 
 In Tennessee, in a gift to a class, those only who are members of the 
 class at the time of distribution can take : Satterfield v. Mayes, 11 Humph. 
 58. But any indications of an intention to give to all the members of the 
 class will take a case out of the rule : e. g. " to A. for life, and after her 
 death to her children that she now has or hereafter may have" ■- Harris 
 V. Alderson, 4 Sneed 254, and see Alexander v. Walch, 3 Head 493. And 
 it is held where the gift, though to a class is not to the class as a unit, but 
 each member takes a several interest, the rule does not apply, and thus re- 
 viving to the extent of such gifts, the distinction between joint tenancy 
 and tenancy in common, after it had been practically abolished by statute : 
 McClung V. McMillan, 1 Heiskell 655. 
 
 A gift " in equal shares among A.'s children and B.'s children, and that 
 A. and B. have the use of their children's portion during their lives, and 
 at their death to their children" is a postponed gift: Crim v. Knotts, 4 
 Rich Eq. 340. 
 
SEPARATE LEaACIES. 72 
 
 THe rule extends to gifts to grandchildren, issue, 
 brothers, nephews, cousins. (Baldwin v. Rogers, 3 D. 
 M. a. 649.) 
 
 Thus the ohjects among whom the fund becomes ultimately - 
 distributable are the children who may be living at the period of 
 distribution, and the representatives of such as may have died 
 before that period, having survived the testator. 
 
 It has been already stated that a gift to " all and every " the 
 children, &c., is equivalent to a gift to children simpliciter, and 
 does not let in objects born after the period of distribution. 
 
 The rule applies where the gift is to A. for life, with remainder 
 to B. and C. and their children (jointly). (Cooke v. Bowen, 4 
 Y. & C. 244.) 
 
 Powers of appointment. — The rule applies to gifts in the na- 
 ture of powers, and to gifts in exercise of powers of appointment. 
 
 Thus, if the bequest be to A. for life, and after his decease to 
 such of the children of B. as A. shall appoint, A. can only 
 appoint to children born in his lifetime, provided there are such. 
 (Paul V. Compton, 8 Ves. 375.) 
 
 *Again, if property be settled on A. for life, and after ri^nn 
 his decease in trust for such persons as B. shall appoint, 
 and B. by will appoints the property after the death of A. to all 
 and every the children of C, and B. dies in the lifetime of A., 
 the objects to take under the appointment will be the children of 
 C. who may be living at the death of B., and those who may sub- 
 sequently come into existence during the lifetime of A. (Harvey 
 V. Stracey, 1 Drew. 73.) 
 
 Separate legacies. — The rule which admits objects born after 
 the testator's death and before the period of distribution to share 
 in the bequest, only applies where the total amount of the gift is 
 independent of the number of objects among whom it is to be 
 divided, and is therefore not increased by the construction adopted. 
 But a gift of a certain sum to each of a class of objects at a future 
 period is confined to those living at the testator's death. Thus 
 whereas, under a gift of £500 to all and every the children of 
 
73 WORDS OF FUTUKITT, ETC. 
 
 A., payable at 21, children born after the testator's death and 
 before the eldest child attains 21 are included {see post), if the 
 gift be of £50 each to all and every the children of A., payable 
 at 21, the children living at the testator's death alone are en- 
 .titled. (Ringrose v. Bramham, 2 Cox 384; Mann v. Thompson, 
 Kay 688.) The reason given is, that in the latter case, if after- 
 born children were admitted, the distribution of the personal es- 
 tate of the testator would have to be postponed till it could be 
 ascertained how many legacies of the given amount would be 
 payable.* 
 
 Words of futurity, ^c. — Children or other objects born after 
 the period of distribution may of course be included by the effect 
 of express words, as if the bequest, to take effect at a future 
 period, be to " all children born or who shall hereafter be born 
 during the lifetime of their respective parents." (Scott v. Lord 
 Scarborough, 1 Beav. 154.)^ 
 
 But it is settled that words importing futurity, as if the 
 *74.i *g^^* ^® *° " children born or to be born," " begotten or to 
 be begotten," &e., do not extend the gift to objects born 
 after the period of distribution. (Scott v. Lord Scarborough, 1 
 B. 154.) In that case it was said (p. 168), " if the testator had 
 expressed himself in terms which show that he contemplated a di- 
 vision of the fund at the end of twenty years from his death : and 
 if he had described the objects to be his grandchildren, or all 
 such grandchildren born or to be born as many as there may be, 
 it would, I think, have followed from the cases which were cited, 
 that the fund would have vested in and become divisible among 
 
 ' In like manner where separate legacies were given to each of the testa- 
 tor's grandchildren, expressly including those born after his death, and the 
 residue was given immediately to his children, it was held that to extend 
 the formation of the residue to the time at which a grandchild could be 
 born, was inconsistent with the gift thereof to the children, and the court 
 therefore decreed that grandchildren born after the time of filing a bill for 
 a settlement of the estate could not be admitted, but all born before that 
 time, though after the death of the testator, were admitted : Howland v. 
 Howland, 11 Gray 476. 
 
 ' Brown v. Williams, 5 R. I. 318. 
 
KEVERSIONART INTERESTS. 74 
 
 the grandchildren answering the description who were living at 
 the end of the term of twenty years ; the generality of the expres- 
 sion ' all my grandchildren,' or 'all my grandchildren born or to 
 be born ' being by construction, and, as it is said, for convenience, 
 limited to the time of distribution, and the words applying to 
 afterborn children being satisfied by giving the benefit of the be- 
 quest to those born after the testator's death and before the 
 period of distribution. But here the gift is to all the grandchild- 
 ren answering the description who are ' now born or who shall 
 hereafter be born during the lifetime of their respective parents ;' 
 and the grandchildren who may be born after the end of twenty 
 years cannot be excluded without striking these words out of the 
 will." 
 
 Reversionary interests. — The rule which admits objects born 
 after the testator's death but before the period of distribution, 
 where the gift is not immediate, applies not only to the case 
 where the period of distribution is postponed until the expiration 
 of a life estate created by the testator himself, but to the case 
 where he has only a reversionary interest expectant upon a life 
 estate previously subsisting, and then disposes of the fund to take 
 effect after the death of the tenant for life. (Walker v. Shore^ 
 15 Ves. 122 ; Harvey v. Stracey, 1 Drew. 123.) " I think the 
 distinction too thin, that the interest for life is not the gift of the 
 testator himself." (Per Lord Eldon, 15 Ves. 125.) And it does 
 not seem to be necessary that the bequest *should expressly pn-c 
 refer to the period of determination of the previously 
 existing interest. 
 
 Gift of a fund, part of which is reversionary. — But if there be 
 an immediate bequest of an aggregate fund, and part of the fund 
 consists of reversions or expectancies, or from any other cause is 
 not immediately distributable, this does not entitle objects born 
 before such portion of the fund actually falls into possession to 
 share in it. (Hill v. Chapman, 3 Bro. C. 0. 391 ; Hagger v. 
 Payne, 23 B. 474.) "A residue may include reversions or ex- 
 pectancies which may come in hereafter, but this court does not 
 make separate and distinct classes as each part of the residue 
 
75 GIFT TO CHILDREN AT A GIVEN AGE. 
 
 comes in, but when once the residue in general becomes distribu- 
 table, the rights are to be then ascertained and the class deter- 
 mined." (Hagger v. Payne, 23 B. 479.) Thus, if the testator 
 bequeaths a particular fund to A. for life, and after his decease 
 directs that it shall fall into the residue, and gives the residue of 
 his estate to the children of A., children born after the testator's 
 death will not be admitted to share in the fund given to A. for 
 
 life.^ 
 
 So the fact that payment of legacies is by law postponed for a 
 year from the testator's death, does not enlarge the class of 
 objects. (Ib.)^ 
 
 If lands be devised to trustees for a term of years, and, subject 
 to the term, to the children of A., the devise to the class is im- 
 mediate, and children born after the testator's death are not 
 admitted. (Singleton v. Grilbert, 1 Cox 68.) 
 
 Crifl to Children at a Given Age. 
 
 In the cases considered under the preceding rule, the shares 
 of all the objects became payable at the same time, and the 
 period of distribution was the same for them all : where the shares 
 become payable at different times, as in the ordinary case of a 
 gift to children at 21 or marriage, the last rule requires to be 
 supplemented by another, viz. that — 
 
 Rule. Where there is a bequest of an aggregate fund 
 
 to children as a class, and the share of each child is made 
 
 payable on attaining a given age, or *inarriage, the 
 
 period of distribution is the time when the first 
 
 child becomes entitled to receive his share, and children 
 
 coming into existence after that period are excluded. 
 
 1 To the contrary, Annable v. Patch, 3 Pick. 360 ; Britton ». Miller, 63 
 N. C. 270. 
 
 ' But where the testator directs a postponement for one year, it has been 
 held that a child born during that period will be included: Bailey v, 
 "Wagner, 2 Strobh. Eq. 1. 
 
GIFT TO CHILDREN AT TWENTY-ONE. 76 
 
 (Andrews v. Partington, 3 Bro. C. C. 403 ; Whitbread v. 
 Lord St. John, 10 Ves. 152.)i 
 
 " I have always taken the rule to be as it is stated by Mr. 
 Jarman, viz. that where a legacy is given to the children, or all 
 the children, of A., to be payable at the age of 21, or to Z. for 
 life, and after his decease, to the children of H., to be payable at 
 21 ; and it happens that any child in the former case at the death 
 of the testator, and in the latter at the death of Z., has attained 
 21, so that his or her share would be immediately payable, no 
 subsequently born child will take : and for this reason, viz. that 
 the child who has attained 21 cannot be kept waiting for his 
 share ; and if you have once paid it to him, you cannot get it 
 back. (Gillman v. Daunt, 3 K. & J. 48.) 
 
 The rule applies to gifts to grandchildren (Iredell v. Iredell, 25 
 B. 485), and, it would seem, to all classes of relatives embraced 
 in the preceding rules. 
 
 The rule applies equally, whether the vesting or the payment 
 only be postponed to the given age : e, g. whether the gift be to 
 "such children of A. as shall attain 21," or "to the children of 
 A. payable at 21," or "when or as they shall attain 21." (Gill- 
 man V. Daunt, 3 K. & J. 48.)^ 
 
 This rule, like the preceding one, applies where the gift is to 
 "all and every the children." And it applies only where the 
 gift is of an aggregate fund, and not to bequests of a certain 
 amount to each of the children of a person at a given age — in 
 
 1 Hubbard v. Lloyd, 6 Gush. 523 ; Tucker v. Biskop, 16 N. Y. 404 ; Heisse 
 V. Markland, 2 Rawle, 275 ; Hawkins v. Everett, 5 J.ones Eq. 44 ; Simpson 
 ». Spence, 5 Jones Eq. 208 ; De Veaux v. De Veaux, 1 Strob. Eq. 283. 
 
 ^ There seems to be some doubt whether a present gift, in terms with a 
 subsequent direction for postponement of payment will include children 
 born after the death of the testator. Kevern v. Williams, 5 Sim. 171 ; 
 Richardson v. Raughley, 1 Houst. (Del.) 568. 
 
 In these cases the fact that there was an immediate gift and a post- 
 ponement of the payment only, was held to confine the gift to those in 
 existence at the testator's death. But no such distinction is noticed in 
 Gilmore v. Severn, 1 Bro. C. C. 582; Andrews w. Partington, 3 Bro. C. C. 
 401, or Hawkins v. Everett, 5 Jones Bq. 44, in each of which cases the gift 
 and time of payment were distinct. 
 
77 aiFT TO CHILDREN AT TWBNTY-ONE. 
 
 ■whicli case, as already stated, only those in existence at the tes- 
 tator's death are entitled. 
 
 Payable at 21, or on death under that age leaving issue. — The 
 rule appears to apply to all cases where the share of each child is 
 made payahle on an event personal to him or her. Thus, if the 
 fund he given to the children of A., the share of each to be paid 
 
 ^ 
 
 77] 
 
 on attaining 21, or on *death under that age leaving issue, 
 
 and a child dies under 21 leaving issue, before any child 
 has attained 21, no afterborn child can take. (Barrington v. 
 Tristram, 6 Ves. 344.) 
 
 If the gift be in remainder after a life interest, as a bequest to 
 A. for life and after his decease to the children of B. payable at 
 21, the period of distribution is the later of the two events to which 
 payment is postponed : thus, if a child attains 21 in the lifetime 
 of A., children born afterwards in A.'s lifetime are admissible; 
 and if at the death of A. no child has attained 21, children born 
 after A.'s death before the first child attains 21 are admissible.' 
 
 Words of futurity, ^c. — It is settled that the addition of words 
 of futurity does not prevent the application of the rule, so as to 
 let in children born after the first share has become payable. As 
 if the gift be to " the children of A. born or to be born, as many 
 as there may be" (Whitbread v. Lord St. John, 10 Yes. 152); 
 or, " to all my grandchildren whether born in my lifetime or 
 after my death." (Iredell v. Iredell, 25 B. 485.)^ 
 
 But the rule may be excluded by inference from the context. 
 Thus, where a bequest to all the testator's grandchildren who 
 should attain 21 was followed by a power of advancement and 
 maintenance to take efiect " whether such grandchildren shall or 
 not have attained the age of 21," and notwithstanding the liability 
 of a " subsequent addition to the class entitled," it was held that 
 the rule was excluded, and that grandchildren born after the 
 eldest had attained 21 were entitled to shares. (Iredell v. Ire- 
 dell, 25 B. 485.)* 
 
 ' Vanhook v. Rogers, 3 Murph. (N. C.) 180. 
 
 ^ Heisse v. Markland, 2 Rawle 275. 
 
 'Bateman v. Gray, L. R. 6 Eq. 215. But in Gimblett u. Purton, L. E. 
 
GIFT WHEN THE TOUNGEST ATTAINS TWENTY-ONE. 77 
 
 "Where the bequest was to A. for life, and after his decease to 
 the grandchildren of B. payable at the age of 25, it was held that 
 the class of grandchildren to take was limited to those born in 
 the lifetime of A. (Kevern v. "Williams, 5 Sim. 172.) Sed qu. 
 
 Gift to children when the youngest attains 21. — The r-j),,jo 
 *rule is not extended to the case of a gift to children when 
 the shares are made payable on the youngest attaining a given age, 
 so as to exclude children born after the youngest for the time 
 being has attained that age. (Mainwaring v. Beevor, 8 Hare 
 44.) The distribution of the eldest child's share being postponed 
 beyond the time when he himself attains the given age, " all the 
 inconvenience is let in, and the eldest may have to wait for an 
 indefinite time, so long as children may continue to be born." 
 (lb.) All children, whenever born, are therefore admitted in 
 general, when the payment is postponed till the happening of an 
 event personal to the youngest.' 
 
 But the context may of course show, in a particular case, that 
 the testator meant the distribution of the fund to take place when 
 the youngest /or the time being in esse should attain a given age; 
 as if he speaks of the youngest child attaining 21 in the lifetime 
 of the parent: and in such case children born after the period of 
 distribution thus pointed out will be excluded. (Gooch v. Gooch, 
 3 D. M. G. 366.) 
 
 Where the interest of a fund was to be applied for the educa- 
 tion of all the children, and " on their attaining 21," the whole 
 was to be sold and divided equally among them, the words were 
 held to mean "on their all attaining 21," and all afterborn chil- 
 dren were admitted. (Armitage v. "Williams, 27 B. 346.) 
 
 12 Eq. 430, Malins, V.-C, considered the rule evaded by the Master of the 
 Rolls in Bateman v. Gray and Iredell v. Iredell, and declares that even if 
 there were a clause of advancement in the case before him, " similar to 
 that which if found in Bateman «. Gray," he "should have declined to 
 follow the decision of the Master of the Rolls in that case, as it tends to 
 throw a doubt upon a rule which is as well settled as any rule of interpre- 
 tation in the courts." L. R. 12 Eq. 431. 
 
 > Fosdick V. Fosdick, 6 Allen 43 ; Handberry v. Doolittle, 38 111. 206. 
 
78 CHILDREN EN VENTRE. 
 
 Rules exemplified.— It will be evident that, under the prece- 
 ding rules, a slight difference in the form of gift "will materially 
 affect the number of children entitled to share in it. Thus : 
 
 (1.) Let the bequest be of ^1000 to all and every the children of 
 A., with a gift over of the shares of children dying under 21 to 
 the survivors. This bequest will include only children in exist- 
 ence at the testator's death. (Davidson v Dallas, 14 Ves. 576.) 
 
 (2.) Let the bequest be of £1000 to all and every the children 
 
 of A. who shall attain 21. This bequest will include not only 
 
 ^„Q-| the children living at the testator's death, *but all who may 
 
 subsequently come into existence before the first child 
 
 attains 21. 
 
 (3.) Let the bequest be, to all and every the children of A. 
 who shall attain 21, lOOZ. each. This bequest will include only 
 children in existence at the testator's death. 
 
 Children en Ventre. 
 
 In the preceding rules for ascertaining the class of children to 
 take under a bequest, a child en ventre at any period, and bom 
 in due time afterward, is considered as in existence at that period, 
 and is included in the class as if actually born. " It seems now 
 settled, that an infant en ventre sa mere shall be considered, gen- 
 erally speaking, as born for all purposes for his own benefit." 
 (Doe V. Clarke,- 2 H. Bl. 401.) It is further established that— 
 
 Rule. A devise or bequest to children '■'■horn or to 
 children "living" at a given period, includes <& child en 
 ventre at that period, and born afterwards. (Doe v. Clarke, 
 2 H. Bl. 399 ; Trower v. Butts, 1 S. & Stu. 181.)^ 
 
 ' Hall V. Hancock, 15 Pick. 258 ; Hone v. Van Shaick, 3 Barb. Ch. 508 ; 
 Swift V. Duffield, 5 S. & R. 38 ; Simpson v. Spence, 5 Jones Eq. 208 ; Groce 
 V. Rittenberry, 14 Ga. 234. 
 
 Since a child tn ventre is considered as born only when it is for his 
 benefit, when the share he would take under gift made to children in the 
 will is less than he would take under the statutory provision for preter- 
 mitted children, he will not be included in the class : McKnight v. Read, 
 1 Whart. 213. 
 
CHILDREN EN VENTEE. 79 
 
 " It is now ■ fully settled, that a child en ventre sa mere is 
 within the intention of a gift to children living at the death of a 
 testator ; not because such a child (and especially in the early 
 stages of conception) can strictly be considered as answering the 
 description of a child living ; but because the potential existence 
 of such a child places it plainly within the reason and motive of 
 the gift. 
 
 "Upon the whole, I am of opinion that, inasmuch as it is 
 adopted as a rule of construction, that a child en ventre sa mere 
 is within the intention of a gift to children living at the death of 
 a testator, because plainly within the reason and motive of the 
 gift ; so a child en ventre sa mere is to be considered within the 
 intention of a gift to children horn in the lifetime of a testator, 
 because it is equally within the reason and motive of the gift." 
 (Trower v. Butts, 1 S. & Stu. 181.) 
 
*80] ^CHAPTER VIII. 
 
 CHILDREN, ETC., DEFINITIONS OF. 
 
 Legitimacy. 
 
 It is a strongly established rule of construction, aided by the 
 policy of the law, that — 
 
 Rule. A gift to children means legitimate children only, 
 unless it appears, from the context or from circumstances, 
 that illegitimate children must have been intended. (Wil- 
 kinson V. Adam, 1 V. & B. 422.)^ 
 
 The same rule applies to gifts to sons, issue, and terms 
 of relationship generally. (lb.) 
 
 " The rule cannot be stated too broadly, that the description 
 'child,' 'son,' 'issue,' &c., every word of that species, must be 
 taken primd facie to mean legitimate child, son or issue; but 
 the true question here is, whether it appears by what we call 
 suflScient description or necessary implication, that the testator 
 did mean these illegitimate children. 
 
 "The question comes round to this, whether it is possible to say 
 he could mean, at the time of making that will, any but illegiti- 
 mate children." (Per Lord Eldon, Wilkinson v. Adam, 1 V. & 
 B. 461, 468.) 
 
 Legitimacy is a question not of reputation, but of fact ; and, 
 therefore, a child afterwards discovered to be illegitimate, can- 
 not share in a gift to children, although the child may have passed 
 as legitimate at the date of the will. 
 
 ' Paul V. Children, L. R. 12 Eq. 16;. Collins v. Hoxie, 9 Paige 88; 
 Heater v. Van Auken, 1 M'Cart. Ch. 164 ; Kirkpatrick v. Eogers, 6 Ire. 
 Eq. 135 ; Thompson v. McDonald, 2 Dev. & Bat. Eq. 479 ; Shearman v. 
 Angel, 1 Bail. Eq. 351 ; Ferguson v. Mason, 2 Sneed 625. 
 
GIFT TO CHILDREN OP A DECEASED PERSON. 80 
 
 And it is clear, as a general rule, that a gift to the *chil- p^o^ 
 dren of A., who has illegitimate children, but no legitimate 
 children at the date of the will, does not let in the illegitimate 
 children ; inasmuch as A. may afterwards marry and have legiti- 
 mate children. 
 
 Nor does a gift to the children of a particular man by a par- 
 ticular woman, who at the date of the will are cohabiting but not 
 married, and have illegitimate children, let in such illegitimate 
 children ; inasmuch as the persons in question may afterwards 
 marry and have legitimate children. (Kenebel v. Scrafton, 2 East 
 530.) 
 
 The case is the same if the gift be to the children of the testa- 
 tor, or to his children by a particular woman. (lb.) " We may 
 conjecture that he meant illegitimate children, if he did not 
 marry ; yet notwithstanding that may be conjectured, the opinion 
 of the Court was, as mine is, that where an unmarried man, de- 
 scribing an unmarried woman as dearly beloved by him, does 
 no more than making a provision for her and children, he must 
 be considered as intending legitimate children." (Per Lord Eldon, 
 1 V. & B. 464.) 
 
 Exceptions. — The exceptions to the rule will fall under two 
 heads : — 
 
 (1.) Where the gift is to the children of a person dead at the date 
 of the will. — If the gift be to the children of A., a person dead 
 at the date of the will, and there are living at the date of the will 
 illegitimate children of A., but no legitimate children, and the 
 facts as to the family of A. and. his death were known, or can be 
 presumed to have been known, to the testator, it is necessarily 
 to be inferred that, under the word " children," the illegitimate 
 children of A. were intended, and they will take under the be- 
 quest. (Lord Woodhouselee v. Dalrymple, 2 Mer. 419 ; Gill v. 
 Shelley, 2 R. & My. 336.) 
 
 It is not essential that the gift should be to the children of a 
 person described as dead, if the fact of his death was presumably 
 known to the testator. 
 
 In Re Herbert's Trusts, 1 Jo. & H. 121, knowledge on the 
 1 
 
81 GIFT TO CHILDKEN OF A DECEASED PERSON. 
 
 ^^o-i part of the testator was inferred from his having *been 
 ^ intimate with a brother of the deceased ; but it was said 
 that knowledge of the state of the family of a relation of the 
 degree of first cousin once removed, will not in general be pre- 
 sumed. 
 
 A gift to the children of a married woman 49 years old, who 
 has illegitimate children only, does not admit them (Re Over- 
 hill's Trusts, 1 Sm. & G. 362) ; but qu. whether if the woman 
 were known by the testator to be of very advanced age, as 
 seventy, the illegitimate children would not be admitted by neces- 
 sary inference. 
 
 Grift to "children," there, being but one legitimate child. — And 
 if the gift be to the children of the deceased person (in the plural 
 number), when he has left only one legitimate child, and one or 
 more illegitimate children, living at the date of the will — knowl- 
 edge of these facts on the part of the testator being proved or 
 inferred — inasmuch as the words implying plurality of objects 
 cannot be satisfied without extending the word children to the 
 illegitimate object or objects, the illegitimate child or children 
 may take under the gift together with the legitimate child. (Gill 
 V. Shelley, 2 R. & My. 336 ; Leigh v. Byron, 1 Sm. & G. 486.) 
 So where the gift was to the children of the testator's nephews 
 and nieces, and the testator had, at the date of the will, one 
 legitimate nephew only, and had no brother or sister then living, 
 the children of an illegitimate nephew were admitted to share in 
 the bequest. (Tugwell v. Scott, 24 B. 141.) 
 
 But it is essential that the testator should be presumed cog- 
 nisant of the facts. In Hart v. Durand, 3 Anstr. 684 (see Gill 
 V. Shelley, 2 R. & My. 342), the gift was, " to every of the sons 
 and daughters of my late cousin A." ; and that cousin having 
 left only one legitimate daughter, and only two illegitimate chil- 
 dren, a son and a daughter, it was held that the expression in the 
 will manifested that the testator was ignorant of the actual state 
 of A.'s family, and the illegitimate children were not admitted. 
 
 * 
 
 83] 
 
 Where the gift was to the daughters of A., who had 
 
 *died, leaving two illegitimate daughters, one of whom had 
 afterwards died before the date of the will, and there were no 
 
ILLEGITIMATE CHILDREN ENTITLED. 83 
 
 legitimate children, the surviving daughter was held to be entitled, 
 inasmuch as the testator might have been ignorant of the death 
 of one of the daughters, though cognisant of A.'s death, and of 
 his having left the illegitimate children only. (Re Herbert's 
 Trusts, 1 Jo. & H. 121.) 
 
 In Edmunds v. Fessey, 29 B. 233, the gift was " to each of the 
 sons and daughters of my late cousin A.," who had died leaving 
 two legitimate and one illegitimate sons, and only one daughter, 
 who was illegitimate. It was held a gift to the legitimate sons 
 and to the only daughter, and the illegitimate son was excluded. 
 
 In order that illegitimate children may take under a gift to 
 children, they must of course be proved to have been known and 
 reputed as such. 
 
 (2.) Even where the gift is to the children of a living person, 
 the context may be sufficiently strong to show that particular 
 illegitimate children were intended to take under the gift, as 
 personce designatce. 
 
 Thus, " if a gift were made to the children of A., now living — if 
 A. had at the date of the will none but illegitimate children, and 
 they had acquired by reputation the character of his children, 
 they would no doubt, take under the gift." (Dover v. Alexander, 
 2 Hare 282. ) In Beachcroft v. Beach croft, 1 Mad. 430, where the 
 gift was "to my children, 5000?. each : to the mother of my children 
 sicca rupees 6000," the illegitimate children were held entitled. 
 So in Hartley v. Tribber, 16 B. 510, a bequest, contained in a 
 codicil, to A. "for her own and the children's benefit," was held 
 to refer to two illegitimate children described by name in a prior 
 codicil.^ 
 
 In Wilkinson v. Adam, 1 V. & B. 422, a strong case, the 
 testator being married, but having no children by his wife, de- 
 vised estates to his wife for life, and, after her decease, to Ann 
 
 ^ A gift to A. described as the wife of B. (the supposed marriage between 
 them being illegal, though its illegality was unknown to the testator), 
 and after her death to her children begotten and to be begotten, was a 
 valid gift to the illegitimate children of the illegal union. Holt v. Sindry, 
 L. R. 7 Eq. 170 ; Crook v. Hill, L. R. 6 Ch. App. 311. 
 
83 ILLEGITIMATE CHILDKEN. 
 
 Lewis, who then lived with him, with remainder to his children hy 
 ^g^-, the said Ann Lewis. It *was held that illegitimate children 
 of the testator by Ann Lewis, who had acquired the repu- 
 tation of his children at the date of the will, were entitled; in- 
 asmuch as the testator " being a married man, with a wife who 
 he thought would survive him, providing for another woman to 
 take after the death of his wife, and for children by that woman ; 
 it is impossible he could mean anything but illegitimate children." 
 (Per Lord Eldon, 1 V. & B. 468.) But a bequest to the testator's 
 children, there being at the date of the will three legitimate children 
 and one illegitimate, and the income being directed to be applied 
 in fourths for their maintenance, was held not to include the illegiti- 
 mate child. (Cartwright v. Vawdry, 5 Ves. 530. See 1 V. & B. 
 463.)! 
 
 If the will contains a gift to the children of A. including B. 
 (an illegitimate child), and there is a subsequent gift to the said 
 children of A., of course B. will take under the subsequent gift. 
 But doubtful cases arise where an illegitimate child is expressly 
 included in a bequest to children in one part of the will, and 
 there is a gift to children simpliciter (not, to the said children), 
 in another part of the will. As if legacies be given to B. (an 
 illegitimate child) and the other children of A., and the residue be 
 given to all and every the children of A., is B. entitled to share 
 in the residue? It would seem that unless there is something 
 necessarily to couple the two gifts together, the fact of being 
 described as a child elsewhere in the will is not sufficient to entitle 
 the illegitimate object to claim, where not expressly mentioned; 
 and this conclusion is supported by Bagley v. Mollard, 1 R. & My. 
 581 ; and see Owen v. Bryant, 2 D. M. Gr. 697. On the other 
 hand, in Meredith v. Farr, 2 Y. & C. C. 0. 525, and Worts v. 
 Cubitt, 19 B. 421, illegitimate children were admitted under 
 similar circumstances. 
 
 A bequest to A. and B. (illegitimate children) " and every 
 
 ' So where a testator had five legitimate children, and two illegitimate, 
 named Ann and Thomas, and gave six shares to his children living at his 
 death, except his son Thomas (for whom he had made a previous provision), 
 it was held that Ann took nothing. Well's Estate, L. R. 6 Eq. 599. 
 
GRANDCHILDREN, ETC. 84 
 
 other the children" of a person, does not of course include an- 
 other illegitimate child not expressly named. (Mortimer v. West, 
 3 Russ. 370.y 
 
 * Grandchildren, fc. [*85 
 
 Although the word "children" is sometimes used in a loose 
 sense, signifying descendants, it is perfectly settled that — 
 
 Rule. A gift to the " children " of a person does not 
 include grandchildren. (Radcliflfe v. Buckley, 10 Ves. 
 195; Pride v. Fooks, 3 De G. & J. 252.)'' 
 
 So a gift to " grandchildren" does not include great- 
 grandchildren. (Lord Orford v. Churchill, 3 V. & B. 59.) 
 
 If the gift be to the children of a person dead at the date of 
 the will, who has left grandchildren but no children then living, 
 and if it be proved or inferred that the testator was aware of the 
 facts, a ground is laid for construing children to mean grand- 
 children or descendants (Crooke v. Brooking, 2 Vern. 50) ; and 
 it was so held in Berry v. Berry, 3 Giif. 184. But the fact of 
 the gift being to the children of a person who is living, but has 
 no children at the date of the will, is of course no argument 
 against construing the word in its proper sense. (Moor v. Rais- 
 beck, 12 Sim. 123.)^ 
 
 ^ But in Gardner v. Heyer, 2 Paige 11, a testator having three illegiti- 
 mate daughters and a son, gave a certain sum to this son, naming him, and 
 certain other sums to his daughters, and a certain amount per year to the 
 mother of the children by name, it was held the illegitimate daughters 
 took under the gift to daughters ; the testator never having been married. 
 
 ' Osgood V. Lovering, 33 Me. 469 ; Marsh v. Hague, 1 Edw. Ch. 186 ; 
 Tier v. Pennell, Id. 354 ; Hone v. Van Shaick, 3 Comst. 540 ; Brokaw v. 
 Peterson, 2 McCart. Ch. 198 ; Feit v. Vanatta, 6 6. E. Green 85 ; Hallo- 
 well V. Phipps, 2 Whart. 380 ; Moon v. Stone, 19 Gratt. 327 ; Womack v. 
 Backer, Phil. Bq. 161 ; Willis v. Jenkins, 30 Ga. 168 ; Tucker v. Stites, 39 
 Miss. 213 ; Sheets v. Grubbs, 4 Mete. (Ky.) 341. 
 
 » Hallowell v. Phipps, 2 Whart. 380 ; Marsh v. Hague, 1 Edw- Ch. 186 ; 
 Churchill V. Churchill, 2 Mete. (Ky.) 469. 
 
 The rule will readily yield to any indications of an intention to include 
 more remote descendants (Prowit v. Rodman, 37 N. Y. 42 ; Scott v. Nelson, 
 
85 NEPHEW, NIECE. 
 
 Nephew, Niece. 
 Notwithstanding the derivation of "nephew," from "nepos," 
 a grandchild, it is settled that — 
 
 EuLE. A gift to " nephews" or " nieces" does not in- 
 clude great-nephews or great-nieces. (Shelley v. Bryer, 
 Jac. 207 ; Crook v. Whitley, 7 D. M. G. 490.) ^ 
 
 Nephews, ^c, hy marriage. — Nor does the word "nephew" 
 or niece," include a nephew or niece by marriage, i. e. a nephew 
 or niece of the wife or husband of the testator. (Smith v. Lidi- 
 ard, 3 K. & J. 252.)^ 
 
 And the fact of a great-nephew or great-niece, or *nephew 
 J or niece hy marriage, being erroneously described in one 
 part of the will as a nephew or niece, does not entitle such person 
 to share in a gift to nephews or nieces in another part of the will. 
 (Smith V. Lidiard, 3 K. & J. 252 ; Thompson v. Robinson, 27 
 B. 486.) 
 
 But in James v. Smith, 14 Sim. 214, where the testatrix gave 
 legacies to two great-nieces, describing each as " my niece A., the 
 daughter of my nephew B.," it was held that this was not a mere 
 erroneous description of two individuals, but that the testatrix 
 
 3 Port. (Ala.) 455; Tipton v. Tipton, 1 Cold. 255; Barnitz's Appeal, 5 
 Penn. St. 265), as where the word is used interchangeably with other 
 words of more extended meaning in other p.arts of the will : Prowitt v. 
 Rodman, supra; Hughes v. Hughes, 12 B. Mon. 115 ; Dunlap v. Shreve, 
 2 Duv. 334 ; Houghton v. Kendall, 7 Allen 75. Or where the gift is to 
 " children except A.," and A. is a grandchild : Pemberton v. Parke, 5 
 Binn. 606 ; Dunlap v. Shreve, 2 Duv. 334. And in Prowitt v. Rodman, 
 37 N. Y. 58, it is stated that in a gift to the children of the first taker 
 living at his death, with gift over for want of such children, the presump- 
 tion is in favor of the more remote descendants in preference to the donee 
 over. By a statute in Texas, " children" includes descendants in every 
 degree. In Kentucky it is enacted that "children" shall include grand- 
 children where there are no children and no other construction will give 
 effect to the will. In Alabama, by statute, a power to appoint to children 
 may be exercised in favor of grandchildren. 
 
 ' Lewis V. Fisher, 2 Yeates 196. 
 
 ^ Green's Appeal, 42 Penn. St. 30. 
 
HALF-BROTHERS, COUSINS. 86 
 
 had defined her meaning of the word "niece," so as to show that 
 she included in it a child of a nephew or niece : and under a sub- 
 sequent gift to " all and every my nephews and nieces," great- 
 nephews as well as great-nieces were admitted to share with 
 nephews and nieces ; it being considered that as by the word 
 "nieces" she meant nieces in the second degree, it followed that 
 by the word "nephews" she meant nephews in the same degree.^ 
 
 Half Blood. 
 Though Johnson's Dictionary defines " brother" as " one horn 
 of the same father and mother," it is settled, as a point of con- 
 struction, that — 
 
 Rule. A gift to " brothers" or " sisters" includes half- 
 brothers and half-sisters. (Grieves v. Rawley, 10 Hare 
 63.)^ 
 
 So a gift to "nephews" or "nieces" includes the 
 children of a half-brother or half-sister. (lb.) 
 
 Cf. Leviticus, xviii. 9. " Thy sister, the daughter of thy 
 father or the daughter of thy mother." 
 
 Cousins. 
 
 It is a rule of construction, adopted, it would seem, partly for 
 the sake of convenience, that — 
 
 Rule. A gift to " cousins " prima facie means only 
 
 ' And see Weeds v. Bristow, L. K. 2 Eq. 333. 
 
 In Cromer v. Pinckney, 3 Barb. Ch. 475, there was a bequest to nephews 
 and nieces except A. [who was a great-nephew) ; and in another part of 
 the will there was a bequest to " the children of my nephew A." It was 
 held that the bequest to nephews and nieces included great-nephews and 
 great-nieces. 
 
 Where the testator never had brother or sister and therefore no nephews 
 and nieces, a bequest to his nephews and nieces will be construed a be- 
 quest to the nephews and nieces of his wife. Hogg v. Cook, 32 Beav. 641. 
 
 = Shull V. Johnson, 2 Jones Eq. 202. 
 
86 FIRST COUSINS, ISSUE. 
 
 first cousins. (Stoddart v. Nelson, 6 D. M. G. 68 ; Ste- 
 venson V. Abingdon, 31 B. 305.) 
 
 * 
 
 t^--, * First cousins. — ^A gift to "first cousins," or cousins- 
 german, does not include first cousins once removed 
 (Sanderson v. Bayley, 4 My. & Cr. 56) ; nor are the latter conse- 
 quently included in a gift to cousins simpliciter. 
 
 First and second cousins. — But a gift to " all the first and 
 second cousins" of a person is construed as including all cousins 
 ■within the degree of second cousin, and therefore includes first 
 cousins once removed, and also first cousins twice removed. 
 (Mayott V. Mayott, 2 Bro. G. C. 125 ; Silcox v. Bell, 1 Sim. & 
 Stu. 301 ; Charge v. Goodyer, 3 Buss. 140.) 
 
 Note. — The rule is, in ascertaining the degree of relationship 
 in Yrhich one person stands to another, to count up to the common 
 ancestor, and then down again to the person whose relationship 
 is sought ; thus the first cousin twice removed is related to the 
 propositus in the same degree as his second cousin, for they are 
 both in the sixth degree. 
 
 Issue. 
 Rule. A gift to "issue," prima facie, includes descend- 
 ants of every degree. (Davenport v. Hanbury, 3 Ves. 258.) 
 
 A gift to the issue of A. simpliciter creates a joint tenancy : 
 but if the gift be to the issue as tenants in common, they take 
 per capita. (Davenport v. Hanbury, 3 Ves. 258.) 
 
 Issue begotten by A. — It is settled that the addition of the 
 words " begotten by A." to the word issue, does not necessarily re- 
 strict issue to the sense of children. (Evans v. Jones, 2 Coll. 516.) 
 
 Sibley V. Perry. 
 The generality of the word "issue" is, however, restricted, in 
 a case which frequently arises, by a reference to the parent of 
 the issue in question ; for it is an established rule that, — 
 
 ^gg-. *RuLE. "Where the "parent" of "issue" is spoken 
 of, the word issue is frima facie restricted to children 
 
RULE IN SIBLEY V. PERRY. 88 
 
 of the parent. (Sibley v. Perry, 7 Ves. 522 ; Pruen v. 
 Osborne, 11 Sim. 132.)^ 
 
 Thus if the devise or bequest be to the children of A. 
 living at a given period, with a direction that the issue of 
 any child dying before that period shall take their 
 parent's share, the gift to issue is confined to grandchildren 
 of A. 
 
 And the rule is the' same, if the gift be to the children 
 of A. living at a given period, and the issue of such as 
 shall be then dead, such issue to take their parent's share ; 
 although the gift to issue is distinct from the direction as 
 to taking the share of the parent. (Smith v. Horsfall, 
 25 B. 628 ; Maynard v. Wright, 26 B. 285.) 
 
 The rule applies to devises of real estate. (Bradshaw 
 V. Melling, 19 B. 417.) 
 
 "I have always considered it as settled that, in a will or in a deed, 
 if it is a question whether the word ' issue' shall be taken gener- 
 ally, or in a restricted sense, a direction that the issue shall take 
 only the shares which their parents would have taken if living, 
 must be taken to show that the word ' issue' was used in its re- 
 stricted sense." (Pruen v. Osborne, 11 Sim. 138.) 
 
 The rule of course is the same, where the direction is that the 
 issue shall take their "father's or mother's" share. (Buckle -y. 
 Fawcett, 4 Hare 636.) 
 
 Uxc^ption. — But the rule ^ill yield to indications of a con- 
 trary intention : and there is a manifest distinction between the 
 case where, as in Sibley v. Perry, the only gift to the issue is 
 contained in the direction that they shall take the shares which 
 their respective parents would have taken if living, and the more 
 usual case where there is a distinct gift to the issue, followed by 
 
 ^ Barstow!). Goodwin, 2 Bradf. 416. Where the gift is " to the issue of A. 
 then living, and the child or children of such of them as shall then be 
 dead," issue means children : Fairchild r. Bushell, 32 Beav. 158. 
 
89 FAMILY. 
 
 a direction that *the issue shall take only a parent's <-;^nq 
 share. In the latter case the direction as to the share may 
 he construed distributively ; e. g., that a grandchild shall take 
 a child's share, and a great-grandchild take a grandchild's share 
 "It is clear that the 'issue' of the 'parent' must mean the 
 children of the parent, but it is not certain, in every case, that 
 the testator has by the word ' parent ' meant to signify the first 
 taker, the child in the first instance." (Ross v. Ross, 20 B. 
 649.) Thus, where the gift was to the children of A. and the 
 issue of such as should have died, " the issue, if more than one, 
 to take equally amongst them the share which their parent would 
 have taken, and if but one then to take a child's share," with a 
 gift over on general failure of issue of A., the rule was held to 
 be excluded, and a great-grandchild of A. was admitted to take. 
 (Ross V. Ross, 20 B. 645.) But this construction of the word 
 parent requires to be aided by the context. (Id.) 
 
 Family. 
 The word " family " is of doubtful import, and would anciently 
 have rendered many gifts void for uncertainty. It appears, 
 however, to be established as a convenient rule of construction, 
 in the absence of a contrary intention, that — 
 
 Rule. A bequest of personal estate of the " family " 
 of a person prima facie means his children. (Barnes v. 
 Patch, 8 Ves. 604 ; Gregory v. Smith, 9 Hare 708 ; Re 
 Terry's Will, 19 B. 580.)^ 
 
 Thus, a bequest to "A.'s family" does not 'primd facie, in- 
 clude himself or his wife. (Barnes v. Patch, 8 Ves. 604.) And 
 a bequest to " the Smith family " is, it seems, equivalent to a 
 gift to the family of Smith, so as to mean his children exclusively. 
 (Gregory v. Smith, 9 Hare 711.) A bequest to " the famihes of 
 
 ^ Heck V. Clippenger, 5 Penn. St. 388 ; "Whelan v. Reilly, 3 W. Va. 610. 
 In Tolson V. Tolson, 10 Gill & J. 159, a precatory trust in favor of " J. T- 
 and his family," was held void as to his family, these words not being a 
 sufficiently certain description of the persons designed to take. 
 
GIFTS TO A. AND HIS FAMILY. 89 
 
 Gregory and Gear," creates a joint-tenancy between the children 
 of those persons. (Id.) 
 
 *So a bequest to " A. and his family " was held to p^q^. 
 create a joint-tenancy between A. and his children living 
 at the testator's death. (Parkinson's Trusts, 1 Sim. N. S. 242.) 
 But see Appendix II. 
 
 But the word " family " is extremely flexible, and no strong 
 rule can be laid down concerning it. " Under dilFerent circum- 
 stances it may mean a man's household, consisting of himself, 
 his wife, children, and servants ; it may mean his wife and chil- 
 dren, or his children excluding the wife ; or, in the absence of 
 wife and children, it may mean his brothers and sisters, or his 
 next of kin ; or it may mean the genealogical stock from which 
 he may have sprung. AJl these applications of the word, and 
 some others, are found in common parlance." (Blackwell v. 
 Bull, 1 Keen 181.) 
 
 Family in relation to real estate. — In devises of real estate, 
 the word "family" will generally, it will appear, be construed 
 as equivalent to "heirs" or "heirs of the body." (Counden v. 
 Gierke, Hob. 29 ; Wright v. Atkyns, Coop. 122.) A devise to 
 A. and his family would, in general, it would appear, give A. an 
 estate tail. (Lucus v. Goldsmid, 29 B. 657.) 
 
*91] CHAPTER IX. 
 
 DESCRIPTIONS RELATIVE TO SUCCESSION TO PERSONAL ESTATE. 
 
 We must distinguish between four classes of persons who may 
 take the personal estate beneficially by way of succession : 1st. 
 The "next-of-kin" proper, or nearest blood-relations of the 
 deceased, according to the degrees of the civil law : e. g., the 
 parents and children of the deceased in the first degree, and in 
 default of these the brothers and sisters, grandchildren, and 
 grandparents in the second degree, and so on. 2dly. The " next- 
 ,of-kin according to the Statutes of Distributions," including those 
 who take by representation to next-of-kin under those statutes : 
 in this class, children and their representatives take to the exclu- 
 sion of parents, brothers and sisters and their children to the 
 exclusion of grandparents, &c. (See Stephen's Comm. II. 197, 
 209, 3d ed.) 3dly. The wife, who is a person entitled to a 
 share of the personal estate by virtue of the Statutes of Distri- 
 butions, but is not in any sense one of the next-of-kin. 4thly. 
 The husband, who succeeds to, or rather appropriates, the per- 
 sonal estate of his wife by virtue of the marital right, but is not a 
 person entitled under the Statutes of Distributions. These dis- 
 tinctions must be borne in mind in considering the rules con- 
 tained in this chapter. 
 
 Bequest to "A. or his heirs." 
 
 If the testator gives a legacy to his heir, or to the heir of 
 another person, the proper sense of the word, meaning the heir- 
 *921 ^*"^*^' ^^ '^o* necessarily to be changed because *the sub- 
 ject of the bequest is personal estate. (De Beauvoir v. De 
 Beauvoir, 3 H. L. 0. 524 ; Mounsey v. Blamire, 4 Russ. 384.) 
 Where, however, the gift is to the heirs," byway of substitution 
 
BEQUEST TO A. OR HIS HEIKS. 92 
 
 for the legatee, in the event of his dying before the period of 
 payment, it is inferred that by the word "heir," the testator 
 meant such persons as would inherit not the real, but the personal 
 estate ; and it is a rule that — 
 
 Rule. A bequest of personal estate to "A. or his 
 heirs " is construed as a gift by way of substitution to the 
 heirs, in the event of the death of A. before the period of 
 distribution. (Gittings v. McDermott, 2 My. & K. 69 ; 
 Doody V. Higgins, 9 Hare App. 32.) 
 
 And the word " heirs " is held to mean the persons who 
 would be entitled to the personal estate of A., by virtue 
 of the Statutes of Distributions, if he had died intestate, 
 including therefore a widow, but not including a husband. 
 (Jacobs V. Jacobs, 16 B. 557; Doody v. Higgins, 2 K. & 
 J. 729 ; Re Craven, 23 B. 333 ; Re Porter's Trusts, 4 K. 
 & J. 188.)i 
 
 ' The same is the rule when the bequest is made to the heirs of a person 
 who is dead at the date of the will, as a gMa«i-substitutional gift : Newton's 
 Trusts, L. R. 4 Eq. 173. 
 
 In this country the meaning of the term "heirs" depends upon the 
 nature of the property ; and whether the gift be substitutional or original, 
 a bequest of personalty to the heirs of A. is a gift to those who would be 
 entitled to the personal estate of A. under the Statutes of Distributions 
 Houghton V. Kendall, 7 Allen 76 ; Wright v. Trustees, 1 Hoff. Ch. 212 
 Scudder v. Vanarsdalo, 2 Beas. Ch. 109 ; Corbitt ». Corbitt, 1 Jones Eq, 
 117 ; McOabe v. Spruil, 1 Dey. Eq. 190 ; Nelson v. Blue, 63 N. C. 660 
 Evans v. Godbold, 6 Rich. Eq. 35 ; Evans v. Harllee, 9 Rich. L. 501 
 E.ddings v. Long, 10 Ala. 205 ; Ferguson v. Stewart, 14 Ohio 140 ; Clay v. 
 Clay, 2 Duv. 296 ; Ward v. Saunders, 3 Sneed 391 ; though Aspden's Estate 
 2 Wal. Jr., 442 is to the contrary. 
 
 If real and personal estate be given together to " heirs'' those who are 
 entitled to the real estate take the personal estate also : Clarke v. Cordis, 4 
 Allen 480 ; Loring v. Thorndike, 5 Id. 269 ; Rogers v. Brickhouse, 5 Jones 
 Eq. 304 ; Hackney v. Griffin, 6 Jones Eq. 383. 
 
 But where personal estate is given to the wife for life, and after her 
 death to the testator's " heirs," since to construe " heirs" as distributees 
 would include the widow, the term is given its strict signification : Hen- 
 derson V. Henderson, 1 Jones L. 221. 
 
92 BEQUEST TO A. OR HIS HEIRS. 
 
 The heirs take as tenants in common, in the propor- 
 tions fixed by the statutes. (Jacobs v. Jacobs, 16 B. 
 557; Re Porter's Trusts, 4 K. & J. 188.)^ 
 
 " The first question is, -who were the persons intended by the 
 testator to take under the disposition of the residue to ' the fol- 
 lowing persons or their heirs.' I have looked into the cases 
 ■which were cited in the argument, and into many other cases 
 upon this point, and I think that the words, 'or their heirs,' 
 must be construed as words of substitution ; and that the word 
 ' heirs,' must he construed heirs according to the nature of the 
 property, that is, next-of-kin, the property being given as money 
 to the persons intended to take." (Per Turner, V.-C, Doody v. 
 Higgins, 9 H. App. 35.) 
 
 An immediate gift to the heirs of K, who is recognised in the will as 
 living is a gift to those persons who would be his heirs if he were dead at 
 the time of the gift : Conklin w. Conklin, 3 Sandf. Ch. 67 ; Campbell v. Raw- 
 don, 18 N. Y. 417 ; Ward v. Stow, 2 Dev. Eq. 517 ; Bailey u. Patterson, 3 
 Rich. Bq. 158 ; Williamson v. Williamson, 18 B. Monr. 370 ; Shepherd v. 
 Nabors, 6 Ala. 636. 
 
 If the gift be postponed the rule fails : Campbell v. Bawdon, 18 N. Y. 
 417 ; unless the "heirs" be referred to as persons already in being, or to 
 come into being during life of A. : Conklin v. Conklin, 3 Sandf. Ch. 67 ; 
 Woodruff -0. Woodruff, 32 Ga. 360 ; Roberts v. Ogbourne, 37 Ala. 178. 
 
 A postponement for the life of a third person and not for the life of the 
 person to whose heirs the gift is made, has been held not to exclude the 
 rule : Heard u. Horton, 1 Denio 165 ; Knight v. Knight, 3 Jones Eq. 169; 
 Simms u. Garrott, 1 Dev. & Bat. 396 ; Ingram «. Smith, 1 Head 426 ; though 
 Campbell v. Rawdon is to the contrary. 
 
 In New York where the rule in Shelly's Case has been abolished, it has 
 been held in a gift of land to A. with remainder to his heirs, the remain- 
 der vests immediately in the heirs apparent, subject to be divested as to 
 any one of them by his death before A. : Moore «. Little, 41 N. Y. 66. 
 
 ' The same is the rule in direct gifts of personalty to heirs (meaning 
 in this country, distributees) : Tillinghast v. Cook, 9 Meto. 147 ; Daggetu. 
 Slack, 8 Id. 453 ; Baskin's App,, 3 Penn. St. 305 ; Freeman v. Knight, 2 
 Ired. Eq. 75 ; Templeton v. Walker, 3 Rich. Eq. 543. But where the will 
 directs the property " to be equally divided," it has been held that the dis- 
 tribution must be ptr capita : Hackney v. Griffin, 6 Jones Eq. 384 ; Free- 
 man V. Knight, 2 Ired. Eq. 75 ; Scudder v. Vanarsdale, 2 Beas. Ch. 113 ; 
 though Baskin's Appeal, 3 Penn. St. 305, is to the contrary. 
 
HEIRS TAKE BY SUBSTITUTION. 93 
 
 *"It is now well settled that where the word 'heir' p^Q„ 
 occurs in a gift of personal property, and the heir-at-law 
 does not take as persona designata, the term 'heir' shall mean 
 not personal representative, but those who for the purposes of 
 succession stand in regard to the personal property of the testa- 
 tor in a position analogous to that in which the heir-at-law would 
 stand in regard to his real property. It has often been said that 
 in such cases the word means next-of-kin, but in Doody v. Hig- 
 gins, 1 held it must mean such persons as would have been enti- 
 tled, under the Statutes of Distribution, to succeed to the per- 
 sonal property of the deceased in case he had died intestate, 
 including therefore a widow." (Re Porter's Trusts, 4 K, & J. 
 197.) 
 
 " The husband does not take by succession, he is not entitled 
 under the Statutes of Distribution, but by virtue of his marital 
 right — a right distinct from and paramount to the Statutes of 
 Distribution. And under a bequest to a woman, and in the 
 event of her death, to her heirs, taking the word ' heirs' as equiva- 
 lent to 'the persons who, under the Statutes of Distribution, 
 would be entitled to succeed to her personal property,' her hus- 
 band would be excluded." (Doody v. Higgins, 2 K. & J. 738.)' 
 
 The rule applies whether the gift be immediate, as to A. or 
 his heirs, or in remainder, as to A. for life, and after his decease 
 to B. or his heirs. And the rule applies if the gift be to several, 
 as to A. and B. or their heirs, or to a class, as to the children 
 of A. or their heirs. 
 
 The rule will apply to any form of gift where the heirs are to 
 take expressly by way of substitution for the original legatee ; 
 as if the bequest be "to A., and failing him by decease before 
 me to his heirs." (Vaux v. Henderson, 1 J. & W. 388.) 
 
 In Re Gamboa's Trusts, 4 K. & J. 756, the bequest was "to 
 the heirs of my late partner A. the sum of QQOL, for losses sus- 
 tained while the business of the house was under my sole con- 
 trol." It was held that the rule applied, *having regard to f^qa 
 the express motive of the bequest, and that the persons 
 
 1 Wright V. Trustees, 1 Hoff. Ch. 213. But to the contrary is Gibbons 
 V. Fairlamb, 26 Penn. St. 218. 
 
94 HEIRS WHEN ASCERTAINED. 
 
 entitled under the Statutes of Distribution, and not the heir-at- 
 law, took the money. 
 
 The rule applies to a bequest " to the following persons or 
 their heirs /or ever, viz., A., B., C, &c." (Doody v. Higgins, 9 
 Hare, App. 32), the words, "for ever" being held not to alter 
 the construction. And in Jacobs v. Jacobs, 16 B. 557, where 
 the gift was "to A. and B., or to their heirs, in such manner as 
 they might deem proper ; " the power of appointment among the 
 heirs not having been exercised, it was held that the rule applied, 
 and that the heirs took in the statutable proportions. 
 
 Beirs when ascertained. — As in the case of a bequest to next- 
 of-kin, next-of-kin according to the statute, &c., so under a sub- 
 stitutional bequest to the "heirs" of any one, the persons to take 
 are to be ascertained at the death of the propositus whose heirs 
 are spoken of, and not at the period of distribution. (See post, 
 rule in Gundry v. Pinniger.) Thus, if the gift be to B. for life, 
 remainder to A. or his heirs, and A. dies in the lifetime of B., 
 the persons to take are those who would be entitled to the per- 
 sonal estate of A. by virtue of the Statutes of Distribution at 
 his death, and not at the death of B. 
 
 If the substitutional bequest be to the heirs of A., a person 
 who dies in the testator's lifetime, or who was dead at the date of 
 the will, the persons to take are primd facie those who at the 
 testator's death would have been entitled to the personal estate of 
 A., by virtue of the statutes, if he had then died intestate. 
 (Vaux V. Henderson, 1 J. & W. 388 ; Re Gamboa's Trusts, 4 
 K. & J. 756.) Thus, if A. had died leaving children only, 
 who afterwards died in the testator's lifetime, and grandchildren 
 only of A. were living at the testator's death, the gift would not 
 lapse, but the grandchildren would be entitled. The same rule 
 prevails where the gift is to the next-of-kin, or next-of-kin 
 according to the statute. (Wharton v. Barker, 4 K. & J. 502.) 
 
BULLOCK V. DOWNBS. 95 
 
 *BULL0CK V. DOWNES. [*95 
 
 A gift to a class of persons, without words of severance, creates 
 a joint-tenancy between them ; and it has consequently been con- 
 tended that under a bequest to "next-of-kin according to the 
 statute," or to "the persons entitled under the statute," the 
 words of reference to the Statute of Distributions applied only to 
 determine the objects of the gift, and that the persons having 
 been ascertained by reference to the statute, took as joint-tenants, 
 and not in the statutable shares : but it is now settled as a rule of 
 construction, that — 
 
 Rule. A gift to the persons who would be eatitled to 
 the personal estate of any one by virtue of the Statutes 
 of Distributions is prima facie a gift to them in the shares 
 in which they would take under the statutes, and not in 
 joint-tenancy. (Bullock v. Downes, 9 H. L. C. 1.) 
 
 The rule applies whether the gift be to the persons en- 
 titled under the statutes simpliciter, or to the persons en- 
 titled under the statutes as next-of-kin, (excluding a 
 widow) . (lb.) 
 
 " Where under a will property is to go to the persons entitled 
 under the Statutes of Distributions, and there is no indication of 
 an intention to exclude the effect of the Statute of Distributions 
 as to interest as well as persons, that statute must be applied to 
 determine the interest as well as the persons." (Per Lord Brough- 
 am in Bullock v. Downes, 9 H. L. C. 17.) 
 
 " The authorities seem to me to bear out the proposition, in 
 itself as I think perfectly reasonable, and most likely to give 
 effect to the intention of testators, that under a direction to pay 
 to those entitled under the statute, if no other expression or indi- 
 cation of intention be found as to the interest to be given, refer- 
 ence must be *had to the statute for the measure as well as ^^^q 
 the objects of the gift." (Per Lord Kingsdown, Id., 9 H. 
 L. 0. 30.) 
 
 In Bullock V. Downes the bequest was, in remainder after a 
 
96 BULLOCK V. DOWNES. 
 
 life-interest, " in trust for such person or persons of the blood of 
 me, as would by virtue of the Statutes of Distributions have 
 become and been then entitled thereto in case I had died intes- 
 tate:" equivalent to a gift to the next-of-kin, according to the 
 statute, of the testator at the time of his death. 
 
 Reference to intestacy. — The rule in Bullock v. Downes will 
 clearly apply where the reference in the terms of the gift is not 
 to the statute, but to an intestacy. Thus, under a bequest to 
 "my next-of-kin as if I had died intestate," or " to the persons 
 entitled in case of intestacy " to the personal estate of any one, 
 the objects will take in the statutable proportions, and not in 
 joint-tenancy. 
 
 It is a further question how far the rule applies to other ex- 
 pressions under which the Statute of Distributions is referred to 
 to determine the objects, although the words themselves do not 
 refer to the statute: as "relations," and "representatives," 
 where the latter word is held to mean, not executors or adminis- 
 trators, but the persons entitled under the statute. In Walker 
 V. Marquis of Camden, 16 Sim. 329, it was held that under a 
 gift to " representatives," meaning the persons entitled under the 
 statute, the objects took as joint-tenants, and not in the statutable 
 shares: but as under a substitutional bequest to "heirs," the 
 objects take in the statutable proportions, though there is no ex- 
 press reference to the statute, it would seem likely that the same 
 principle will be applied to "representatives," and that Walker 
 V. Marquis of Camden, will be held to have been overruled by 
 Bullock V. Downes. 
 
 The word "relations " stands on a somewhat diflFerent footing, 
 since the word itself has no reference to the course of legal suc- 
 cession, and is only limited to objects within the range of the 
 Statutes of Distributions of necessity, and to prevent the gift 
 ;^g^-, being void for uncertainty. *As it has been considered 
 previously to Bullock v. Downes, that a bequest to " rela- 
 tions," simpliciter, is not governed by the statute as to the shares,, 
 but creates a joint-tenancy (2 Sugd. Pow. 267, 6th ed. ; TiflBn v. 
 Longman, 15 B. 275), it is possible that the rule may not be 
 extended to this case. 
 
NEXT OP Km. 97 
 
 "Next of Kin." 
 Tkere is an important difference between a gift to " next of 
 kin " simpliciter, and a gift to " next of kin according to the 
 statute;" for while both are technical expressions, the latter 
 points expressly to the law of succession db intestato, while the 
 former points only to the law of consanguinity. The law of suc- 
 cession, as established by the Statutes of Distributions, prefers 
 some of the true next of kin to others, as the children to the 
 parents of the propositus ; and admits some who are not, properly 
 speaking, next of kin, to take by representation along with those 
 who are. And it was formerly supposed that the word "next 
 of kin," used simpliciter, might have acquired by usage a meaning 
 analogous to that of "heir" in immovables, so as to have become 
 synonymous with the expression, " next of kin according to the 
 statute;" but it has been conclusively established as a rule of 
 construction, both with regard to deeds and wills, that the strict 
 meaning of the word is to be preserved, and that — 
 
 Rule. A gift to " next of kin," whether of thfe tes- 
 tator or another person, means the nearest blood-relations 
 in equal degree to the propositus, and is not equivalent to 
 " next of kin according to the Statutes of Distributions." 
 (Elmesley v. Young, 2 My. & K. 780 ; Withy v. Mangles, 
 4 B. 358 ; 10 CI. & F. 215 ; Avison v. Simpson, Johns. 
 43 ; Rpoke v. Attorney-Gleneral, 31 B. 313.)^ 
 
 Thus, all who are related in equal degree to the propo- 
 situs, as father, mother, and chUdren, take *together 
 as joint tenants (Withy v. Mangles) ; while those 
 who would be entitled under the statute by representation 
 only are excluded. (Elmesley v. Young.) 
 
 " I think that the appellant has wholly failed in proving that 
 the term next of kin, used simpliciter, has by a technical or con- 
 ventional construction obtained the meaning of ' those who would 
 
 ' Harrison v. Ward, 5 Jones Eq. 240 ; Redmond v. Burroughs, 63 N. C. 
 245. 
 
98 NEXT OF KIN. 
 
 be entitled, in case of intestacy, under the Statute of Distribu- 
 tions ;' and I am therefore of opinion that these words must be 
 construed in their natural and obvious meaning, of nearest in 
 proximity of blood." (Per Lord Cottenham, in Withy v. Man- 
 gles, 10 CI. & F. 253.) 
 
 " Although it does appear to me, that the common use which 
 is made of the term 'next of kin,' in connection with the admin- 
 istration and distribution of personal estates in case of intestacy, 
 may occasionally have given rise to a notion that the persons to 
 whom the law gives the succession are legally and for all pur- 
 poses to be considered as the next of kin, yet this does not 
 appear to be a notion which can be supported in law. The con- 
 struction given to the term ' next of kin,' with reference to the 
 statute of Car. 2, shows that the next of kin entitled to adminis- 
 tration and distribution, are not to be deemed next of kin for all 
 purposes ; and I apprehend, that in all other cases, the terms 
 'next,' or 'nearest of kin,' must be construed according to their 
 simple and obvious meaning, or according to the legal construc- 
 tion of the whole instrument in which they occur." (Withy v. 
 Mangles, 4 B. 367.) 
 
 It makes no difference in the construction, that the words in 
 question occur (in a marriage settlement) in the ultimate limita- 
 tion of personal property to the "next of kin" of the intended 
 wife. (Withy v. Mangles, 10 CI. & F. 215.) And the case 
 would be the same, if the ultimate limitation were to the " next 
 of kin" of the settlor or testator. 
 
 *991 *Iieference to intestacy. — But an express reference to 
 the case of intestacy is equivalent to a reference to the 
 statute. Thus a gift " to my next of kin as if I had died intes- 
 tate," is equivalent to a gift to "my next of kin according to the 
 Statute of Distributions." (Grarrick v. Lord Camden, 14 Ves. 
 372.) 
 
 '' Next ofhin according to the statute." — A gift to "next of 
 kin," with express reference to the Statutes of Distributions, or 
 to an intestacy, while it excludes those in equal degree whom the 
 statutes postpone, includes those who take under the statutes by 
 
RULE IN &UNDRY V. PINNIGER. 99 
 
 representation to next of kin, as well as the next of kin them- 
 selves. (Garrick v. Lord Camden, 14 Ves. 372.) 
 
 Does not include a widow. — But a gift to next of kin, either 
 simpliciter or by reference to the statute or to intestacy, does not 
 include a wife, nor d fortiori a husband. (Grarrick v. Lord Cam- 
 den, 14 Ves. 372.) " If a husband bequeaths to his next of kin, 
 that primd facie does not include his wife: and it is quite clear 
 that if a married woman, under a power by settlement, bequeaths 
 to her ' next of kin,' it would be impossible to hold that under 
 such a will, without more, the husband would take as sole next 
 of kin. On the other hand, it is competent to, and required 
 from, the Court to look through the whole will; and to see 
 whether from the whole an intention is manifested to include the 
 wife among those who are to be taken more strictly as next of 
 kin: a descri'ptionL primd facie excluding her." (lb.)* 
 
 GUNDRY V. PiNNIGBR. 
 
 In accordance with the primary meaning of the words, and 
 with the general leaning of the Courts to ascertain the objects of 
 the testator's bounty as early as possible, it is established as a 
 rule of construction (which has been observed more strictly of 
 late years) that — 
 
 Rule. A devise or bequest to " next of kin," " next 
 
 *of kin accordina; to the statute," &c., means the ^, ,„„ 
 ° [*100 
 
 next of kin at the death of the person whose next 
 
 of kin are spoken of. (Gundry v. Pinniger, 1 D. M. G. 
 502 ; Bird v. Luckie, 8 ,Hare 301 ; Bullock v. Downes, 9 
 H. L. C. 1.)^ 
 
 Thus if the gift be to A. for life, and after his decease 
 to the next of kin of the testator, the persons to take as 
 next of kin are to be ascertained at the death of the tes- 
 tator, and not at the death of A. 
 
 ' Storer v. Wheatley, 1 Penn. St. 506. 
 
 == Letchworth's Appeal, 30 Penn. St. 175 ; Brent v. Washington, 18 
 Gratt. 535. 
 
100 RULE IN SUNDRY V. PINNIGER. 
 
 And the rule applies, although the tenant for life be 
 the sole next of kin, or one of the next of kin, at the 
 death of the testator and at the date of the will. Thus, 
 if the gift be to A. for life, and after his decease to the 
 next of kin of the testator, and A. is the sole next of 
 kin at the death, A. takes the property absolutely. 
 (Holloway v. HoUoway, § Ves. 399 ; Ware v. Rowland, 
 2 Phill. 635; Lee v. Lee, 1 Dr. & Sm. 85; Wharton v. 
 Barker, 4 K. & J. 498.)^ 
 
 The rule is the same where the devise is to the heir. 
 Thus, if there be a devise to A. for life, remainder to the 
 right heirs of the testator, and A. is the testator's heir- 
 at-law at his death, A. takes the property absolutely. 
 (Holloway v. Holloway, 5 Ves. 399 ; Rawlinson v. Wass, 
 9 H. 673.)^ 
 
 "Where the testator gives property to a tenant for life, and 
 after the death of the tenant for life to his next of kin, and there 
 is nothing in the context to qualify, or in the circumstances of 
 the case to exclude, the natural meaning of the testator's words, 
 the next of kin of the testator living at his death will take ; and 
 if the tenant for life be such next of kin, either solely or jointly 
 with other persons, he will not on that account only be ex- 
 cluded." (Say V. Creed, 5 Hare 587.) 
 
 " In the case of a bequest in trust for A. for life, and from 
 
 and after his death in trust for a class of persons, *as for 
 
 -I example, the testator's next of kin ; this is an immediate 
 
 gift to the persons answering the description of the testator's 
 
 next of kin at his death, subject to the life interest given to A. 
 
 " In the case of a bequest in trust for A. for life, and from and 
 
 ' Buzby's Appeal, 61 Penn. St. 114. 
 
 " And in this country it applies to gifts of personalty to heirs. Abbott 
 V. Bradstreet, 3 Allen 587 ; Campbell v. Rawdon, 18 N. Y. 412 ; Buzby's Ap- 
 peal, 61 Penn. St. 114 ; Newkirk v. Hawes, 5 Jones Eq. 267 ; Templeton 
 V. Walker, 3 Rich. Eq. 543. 
 
NEXT OF KIN ASCERTAINED AT THE DEATH. 101 
 
 after his death in trust for the testator's next of kin, A. being 
 himself the next of kin, or one of the next of kin, there is no 
 reason for holding that A. would be precluded by the gift to him 
 of the life estate from taking under the gift to the next of kin ; 
 nor for holding that the next of kin who are to take are those 
 who may be such at the death of A." (Lee v. Lee, 1 Dr. & Sm. 
 86, 92.) 
 
 Exceptions. — The language of the will may be such as to show 
 that the testator intended the next of kin to be ascertained at the 
 period of distribution ; but the later cases are generally adverse 
 to this construction. (See Bullock v. Downes, 9 H. L. C. 1.)^ 
 
 Words of futurity. — Thus it is settled that words of futurity 
 alone do not exclude the rule: as if the gift be (in remainder 
 after a life interest) to the person or persons who shall he the 
 next of kin of the testator, or of A. (Rayner v. Mowbray, 3 Bro. 
 C. C. 234 ; HoUoway v. Holloway, 5 Ves. 399.) 
 
 In Doe V. Lawson, 3 East 278, a gift from and after the de- 
 cease of A., " for and amongst such person and persons as shall 
 appear and can be proved to be my next of kin, in such parts 
 and proportions as they would by virtue of the Statute of Distri- 
 butions have been entitled to my personal estate if I had died in- 
 testate," was held to be within the rule. 
 
 So in Cable v. Cable, 16 B. 507, where the gift was " from and 
 after the decease of A. to become the property of the person or 
 persons who should then become entitled to take out administra- 
 tion, &c., in the proportions pointed out by the statute, in case he 
 
 1 White V. Springeth, L. K. 4 Ch. 300. 
 
 Where construing the gift to the testator's heir as a gift to those who 
 are his heirs at the time of his death would defeat the object which the 
 testator had in making the gift, the rule will not apply, but it will be con- 
 strued a gift to those who would be his heirs had he died at the time the 
 gift takes effect. Sears v. Russell, 8 Gray 86. 
 
 In Evans v. Godbold, 6 Rich. Eq. 26, a gift to the testator's " surviving 
 heirs " at the death of his widow, was held to mean those who should be 
 at that time his heirs, and therefore included the children of a child of the 
 testator who had died before the widow. 
 
101 NEXT. OF KIN WHEN ASCERTAINED. 
 
 had died unmarried and intestate," it was held that the next of 
 kin were to be ascertained at the death. 
 
 *1 021 ®° ^"^ Wheeler v. Addams, 17 B. 41 7, where the gift *was 
 (in remainder after a life interest) " in trust for such per- 
 son or persons as shall then be the next of kin of A., and would 
 have been entitled thereto under the Statutes of Distributions, in 
 case she had died unmarried or intestate." 
 
 On the other hand, the rule was held to be excluded, and the 
 next of kin to be ascertained at the period of distribution, in 
 Wharton v. Barker, 4 K. & J. 483, where the cases were re- 
 viewed : — the gift being (in remainder after a life interest) " to 
 the person or persons that shall then be considered as my next of 
 kin and personal representative or representatives, agreeable to 
 the order of the Statutes of Distribution." The same construction 
 was adopted in Long v. Blackall, 3 Ves. 486, where the gift was 
 to A. for life, and after his decease to the persons who should 
 then be the legal representatives of the testator. Other cases, as 
 Say V. Creed, 5 Hare 580, and Clapton v. Bulmer, 5 Myl. & Cr. 
 108, where the period of distribution was adopted on grounds of 
 inference from the context, are perhaps of less importance at the 
 present day, the rule being now more strictly followed. 
 
 Gift to next of Mn of A., who dies in testator's lifetime. — The 
 rule in Gundry v. Pinniger must be stated with a qualification, 
 viz.: — where the gift is to the "next of kin," "next of kin 
 according to the statute," &c., of a person who dies in the testa- 
 tor's lifetime, or who is dead at the date of the will : — in this case 
 the objects to take are to be ascertained at the death of the testa- 
 tator, as if the person whose next of kin are spoken of had died 
 at that time. (Philps v. Evans, 4 De G. & Sm. 188 ; Wharton 
 V. Barker, 4 K. & J. 502.) Thus, if the gift be " to the next of 
 kin of the late A.," and A. has died leaving children, who after- 
 wards die in the testator's lifetime, and at the death of the testa- 
 tor the next of kin of A. are his brothers and sisters, the gift 
 will not lapse, but the brothers and sisters of A. will be entitled. 
 The rule is the same in the case of a substitutional bequest to 
 " heirs." (Gamboa's Trusts, 4 K. & J. 756.) 
 In Wharton v. Barker, 4 K. & J. 483, where the gift (in re- 
 
'X. 
 EELATIONS. ih- , 
 
 \^ 
 mainder after a life interest) was, as to oiS^I^lt^^j, ^u t.j-^^^„ 
 
 trust for the persons who should then be eon'si^ir^^^'e:'^' 
 next of kin of the testator, and as to the other moTety^ " to the 
 persons who shall then be considered as the next of kin of my late 
 wife agreeaby to the order of the Statute of Distributions," it 
 was held that the rule was excluded, and that the next of kin 
 both of the testator and of his deceased wife were to be ascer- 
 tained at the period of distribution. 
 
 "Relations." 
 
 The word "relations" primd facie extends to all degrees of 
 relationship, however remote : but in order to prevent gifts to 
 the relations of a person from being void for uncertainty, the 
 Courts have adopted the rule (both with regard to real and per- 
 sonal estate) that — 
 
 Rule. A devise or bequest to the " relations" of A., or 
 of the testator, is construed to mean the persons who 
 would be entitled under the Statutes of Distributions, 
 either as next of kin or by representation to next of kin. 
 (Rayner v. Mowbray, 3 Bro. 0. C. 234 ; Grreen v. How- 
 ard, 1 Bro. C. C. 31 ; Doe d. Thwaites v. Over, 1 Taunt. 
 263.)^ 
 
 The rule applies to devises of real estate. (Doe d. 
 Thwaites v. Over, 1 Taunt. 263.)^ 
 
 "Although ' relation ' is a word of very vague and general 
 import, yet it has obtained a certain degree of ascertained mean- 
 ing in the courts where questions of this sort have arisen with 
 respect to personal property ; that is, it means those who are en- 
 titled to take as relations under the Statute of Distributions. 
 This rule of interpretation has been adopted to control the more 
 extensive and lax sense of the word. The term then having 
 
 ' Varrill v. Wendell, 20 N. H. 435 ; Drew v. Wakefield, 54 Me. 298 ; 
 M'Neiledge v. Galbraith, 8 S. & R. 45. 
 "■ M'Neiledge v. Barclay, 11 S. & R. 103. 
 
103 POWER TO APPOINT TO RELATIONS. 
 
 obtained this construction in courts of equity, I do not see why 
 ^, ^ . -, it should not obtain the same construction *in courts of 
 -' law." (Doe d. Thwaites v. Over, 1 Taunt. 269.) 
 
 " It is perfectly settled, that a bequest to relations is good. 
 Yet that is very indefinite. It may extend in infinitum. In the 
 contest about the founder's kindred. All Souls College contended 
 that it should not be extended beyond the tenth degree. But it 
 was extended to the fourteenth. The Court of Chancery, how- 
 ever, in cases of bequests to ' relations' has, upon grounds of 
 convenience, adopted the rule of the Statute of Distributions ; 
 and though, where a power of selection is given, the party may, 
 according to Harding v. Glyn, go beyond that rule, it is adhered 
 to, wherever the execution devolves upon the Court." (Cruwys 
 V. Coleman, 9 Ves. 323.) 
 
 "delations" in this sense does not, of course, include a wife. 
 (Green v. Howard, 1 Bro. C. C. 31.) 
 
 A gift to " those related to" a person, is equivalent to a gift 
 to relations (Raynor v. Mowbray, 3 Bro. C. C. 234) : and a gift 
 to " those of A.'s family," has been held equivalent to a gift to 
 the relations of A. (Cruwys v. Colman, 9 Ves. 319.) 
 
 But the rule is only applied when it is necessary to restrict 
 the term "relations" to a definite class: thus, a charitable gift 
 to relations, by way of continuing trust, is not confined to those 
 within the statute. (Attorney-General v. Price, 17 Ves. 371.) 
 
 Power to appoint to relations. — A power to appoint to rela- 
 tions of the testator, or of A., if the power be one of selection, 
 authorizes an appointment to relations not within the statute. 
 (Harding v. Glyn, 1 Atk. 4Q9.y 
 
 But if the power be one of distribution only, the donee can 
 appoint only to those within the statute. (Pope v. Whitcombe, 
 3 Mer. 689.) 
 
 And if there be a power of selection among relations, with no 
 gift in default of appointment, and the power be not exercised, 
 those within the statute only will take by implication. (Harding 
 V. Glyn, 1 Atk. 469 ; Grant v. Lynam, 4 Russ. 297.) 
 
 1 Varrell v. Wendell, 20 N. H. 435. 
 
KBIiATIONS WHEN ASCERTAINED. 104 
 
 Relations take per capita. — In TifBn v. Longman, 15 B. p^^ ^r 
 *275, it was held that the relations take equally per capita, 
 the statute being employed only to define the objects, and not to 
 determine the shares. But it may perhaps be doubted whether 
 (at least in the case of bequests of personal estate) the rule in 
 Bullock V. Downes, 9 H. L. C. 1, may be not extended to " re- 
 lations," as well as to heirs and next of kin according to the 
 statute. 
 
 Relations when ascertained. — A gift to relations, whether imme- 
 diate or in remainder, will in general follow the rule in Grundry 
 V. Pinniger, and be ascertained at the death of the person whose 
 relations are spoken of, or at the death of the testator if the 
 person has died in his lifetime. Thus, in Rayner v. Mowbray^ 3 
 Bro. C. C. 234, a gift to A. for life, and after his decease " to 
 such persons as shall he related" to the testator, was held to vest 
 in the next of kin at the testator's death. 
 
 But inasmuch as "relations," in the wide sense, includes all 
 who would come within the description of next of kin at the 
 period of distribution, as well as at the testator's death, the rule 
 in Gundry v. Pinniger does not perhaps apply so strictly to a 
 gift to "relations," as to a gift to "next of kin," (Tiffin v. Long- 
 man, 15 B. 275) ; and where the gift cannot vest at the testator's 
 death, the period for ascertaining the relations may be post- 
 poned. (See, on this point. Lees v. Massey, 3 De G. F. & J. 
 113.) 
 
 Thus, where at the death of the tenant for life without issue, 
 the testator directed advertisements to be made for his relations, 
 and gave the property to such as should make their claim within 
 two months from that time, it was held that the class to take 
 were those who would have been the next of kin, according to the 
 statute, of the testator at the period of distribution. (Tiffin v. 
 Longman, 15 B. 275.) 
 
 Power to appoint to testator's relations. — And where property 
 is given to A. for life, with a power of appointment in favor of 
 the testator's relations, and there is no gift in default of appoint- 
 ment, if the power be not exercised, the gift by implication is to 
 
105 NEAR RELATIONS. 
 
 those who would have been the next of kin, according to the 
 *statute, of the testator if he had died at the time of the 
 -' cesser of the power by the decease of A., and not the sur- 
 vivors of those persons who were the next of kin of the testator 
 at his death : whether the power be one of selection or distribu- 
 tion. (2 Sugd. Pow. 270, 6th ed. ; Pope v. Whitcombe, see 
 Finch V. HoUingsworth, 21 B. 112.) 
 
 And the donee of the power may appoint to any persons who 
 would have been next of kin according to the statute at the date 
 of the appointment, though they were not such at the death : 
 although the power be one of distribution only. (Finch v. Hol- 
 lingsworth, 21 B. 112.) 
 
 The same rule would seem to apply, where the power is to 
 appoint to relations, not of the testator, but of another person. 
 
 In Ham's Trust, 2 Sim. N. S. 106, the gift was " to the rela- 
 tions of my late wife, in such shares and proportions as they 
 would have been entitled in case she had died possessed thereof a 
 spinster and intestate." It was held that the gift did not vest in 
 the next of kin of the wife at the death of the testator, but that 
 the shares of such of her next of kin as died in the testator's 
 lifetime lapsed. 
 
 Ifear relations. — A gift to " near relations," is equivalent to 
 relations ; i. e., next of kin according to the Statutes of Distri- 
 butions. (Whitehorne v. Harris, 2 Ves. sen. 527.) 
 
 Nearest relations. — But a gift to "nearest relations" is equiva- 
 lent to next of kin simpliciter, and excludes those who would take 
 by representation under the statute, but (it would seem) admits 
 all who are in equal degree of consanguinity. (Smith v. Camp- 
 bell, 19 Ves. 400.)i 
 
 " Representatives." 
 A bequest to the "representatives" of any person is ambigu- 
 ous ; it may either mean those who represent the deceased legally, 
 i. e., his executors or administrators, or those who represent him 
 *1071 *^'*^-^^*^%' *'• ^- (^^*^ respect to ^personal estate) the per- 
 sons entitled by virtue of the Statutes of Distributions. 
 
 ' Ennis v. Pentz, 3 Bradf. 385. 
 
REPBESENTATIVES. 107 
 
 But it is settled by the more recent cases as a rule of construc- 
 tion, that — 
 
 Rule. A bequest of personal estate to the " repre- 
 sentatives," or " legal " or " personal " or " legal personal 
 representatives" of any one, means, primd faeie, executors 
 or administrators. (Saberton v. Skeels, 1 R. & Mj. 587 ; 
 Re Crawford's Trusts, 2 Drew. 230 ; King v. Cleaveland, 
 4 De G. & J. 477.) 
 
 Thus if the gift be to A. for life, with remainder as he shall 
 by will appoint, and in default to his " representatives" (Saberton 
 V. Skeels, 1 E. & My. 587 ; Dixon v. Dixon, 24 B. 129), or to 
 A. for life, with remainder to the children of B. " or their repre- 
 sentatives" (Crawford's Trusts, 2 Drew. 230; Hinchcliffe v. 
 Westwood, 2 De Gr. & Sm. 216), the property passes to the 
 executors or administrators as part*bf the assets of the deceased, 
 and not directly to the next of kin : and the addition of the 
 words "legal" or "personal" does not vary the construction. 
 
 " I should say, that the conclusion to be drawn from the more 
 modern, not unsupported by some of the earlier cases, is this : 
 that under a gift simply to 'representatives,' 'legal representa- 
 tives,' 'personal representatives,' and to executors and adminis- 
 trators, the hand to receive the money is that of the person 
 constituted representative by the Ecclesiastical Courts : but that 
 such person will, in the absence of a clear intention to the con- 
 trary, take the property as part of the estate of the person whose 
 representative he is, and not beneficially." (Holloway v. Clark- 
 son, 2 Hare 523.) 
 
 " What is the ordinary and legal meaning of the term ' repre- 
 sentatives ?" Whom does the law regard as properly represent- 
 ing a deceased person with reference to personal property? 
 Certainly his executors or administrators. They represent his 
 person ; they represent him *in respect of his personal p^., qq 
 estate." (Crawford's Trusts, 2 Drew. 234.) •- 
 
 As in the case of a gift " to the executors of A." simpliciter, 
 so under a bequest to " representatives," the execi*ors or ad- 
 
108 REPRESENTATIVES TAKING BENEFICIALLY. 
 
 ministrators take the property in their official capacity, and not 
 beneficially. (Long v. Watkinson, 17 B. 4T1 ; Re Seymour's 
 Trusts, Johns. 472.) 
 
 Exceptions. — But the rule is not a strong one, and the words 
 in question may also mean the persons who take under the 
 Statutes of Distribution in case of intestacy. In this sense the 
 word "representatives " is equivalent to "heirs " taking by way 
 of substitution : ^ it includes a widow (Smith v. Palmer, 7 Hare 
 225), but not a husband (King v. Cleaveland, 4 De G. & J. 477.)' 
 
 Share and share alike. — Thus where the gift is followed by a 
 direction that the representatives are to take " share and share 
 alike" (Smith v. Palmer, 7 Hare 225), or '■'■per stirpes and not 
 per capita" (Atherton v. Crowther, 19 B. 448), it is clear that 
 the primary meaning of the word is excluded. And if the gift 
 be to the children of A. living at a given period, and the repre- 
 sentatives of such as shall be then dead, share and share alike, 
 it seems that the latter words will be held to apply to the repre- 
 sentatives, as well as to the first takers, the- children (King v. 
 Cleaveland, 4 De Gr. & J. 477): though Price v. Strange, 6 
 Madd. 159, is contrd. 
 
 So where the gift was " unto and equally amongst my personal 
 representatives" (Holloway v. Radcliffe, 23 B. 169), or "to and 
 amongst" the representatives (Baines v. Ottey, 1 My. & K. 465).^ 
 
 ' In Stockdale v. Nicholson, L. R. 4 Bq. 359, where the cases are re- 
 viewed, the gift was to the "next personal representatives," and it was 
 held that the word " next " took the case out of the rule. 
 
 ' Watson V. Bonney, 2 Sandf. S. 0. 417. But in Brent v. Washington, 
 18 Gratt. 535, in a gift to "representatives according to the Statute of Dis- 
 tributions," it was held that the hushand took, though not a distributee 
 under the statute. " If we hold the husband entitled, we give the pro- 
 perty to the party who is substantially distributee, though not so under 
 the statute. If we give it to the children, we give it to those who could 
 not take under the statute or otherwise, and construe the words not in 
 their literal sense, but as meaning those who would have represented their 
 mother under the statute, if she had not been a married woman." 
 
 ' Thompson v. Young, 25 Md. 450 ; Johnson v. Johnstone, 12 Rich. Eq. 
 260. In the latter case the Court incline to the opinion that th.6 prima facie 
 meaning of the words should be distributees. 
 
GIFTS TO A. OR HIS REPEESENTATIVBS. 108 
 
 So where a sum of money was given to A. in trust to pay the 
 income to his wife for life, and at her decease to pay the trust- 
 moneys as she should by will appoint, and in default to her per- 
 sonal representatives, it was held that the husband was excluded. 
 (Robinson v. Smith, 6 Sim. 47.) 
 
 In Walter v. Makin, 6 Sim. 148, it was held that, there being 
 
 a gift to the executors of A. in one part of the *will, a 
 
 P ^ ' r*109 
 
 gift to his legal representatives in another part could not ^ 
 
 have the same meaning : sed qu. 
 
 Immediate gift to A. or his representatives. — In Re Crawford's 
 Trusts, 2 Drew. 234, it was said that, although a gift to A. or his 
 representatives in remainder after a life interest means, primd 
 facie, executors or administrators ; yet that where the gift or 
 legacy to A. or his representatives is immediate, without any 
 prior life estate, the primary meaning of the word " representa- 
 tive " is excluded; a distinction founded on the cases of Bridge 
 V. Abbot, 3 Bro. 0. C. 224, and Cotton v. Cotton, 2 Beav. 67. 
 "In such event the legatee could not under any construction 
 which could be put on the words ' legal representatives,' derive 
 
 any advantage from the bequest And, therefore, it 
 
 is highly improbable that the testator should intend that, if the in- 
 tended legatee should die in his lifetime, the legacy should go to his 
 executors or administrators as part of the legatee's assets, perhaps 
 to benefit no one but the legatee's creditors. And this improb- 
 ability is such as to furnish sufficient evidence, where the gift to 
 A. or his legal representatives is immediate, of the testator's in- 
 tention to use the term ' representatives ' not in its ordinary legal 
 sense, but as designating the persons who by virtue of the Statute 
 of Distributions would be entitled to A.'s personal estate, if he 
 had died intestate." (Crawford's Trusts, 2 Drew. 242.) 
 
 But qu. how far Bridge v. Abbot, and Cotton v. Cotton are 
 law at the present day. 
 
 Whether the representatives take in the statutable proportions. — 
 In Walker ». Marquis of Camden, 16 Sim. 329, it was held that 
 where the word "representatives" is used to designate the per- 
 sons taking the personal estate beneficially, and words of sever- 
 ance are not added, the representatives take as joint tenants and 
 
109 RULES COMPABBD. 
 
 not in the statutable proportions. But this case would seem 
 to be contrary to the rule laid down in Bullock v. Downes, 9 H. 
 L. C. 1 ; and under a similar gift to "heirs" the statutable pro- 
 portions are held to be implied. (Supra, gifts to " A. or his 
 heirs.")' 
 
 *Bules compared. — It may be observed that the expres- 
 J sions considered in this chapter fall into three classes, 
 corresponding to the ideas of succession, of statutory kinship, 
 and of consanguinity. 
 
 Thus (1.) "Heirs" taking by substitution, and "representa- 
 tives " taking beneficially, include all who succeed to the personal 
 estate of the deceased, but exclude the husband, who does not 
 succeed, but appropriates. 
 
 (2.) "Relations" and "next of kin according to the statute" 
 include all who take under the Statute of Distributions except the 
 wife, who is not of kin to the deceased. 
 
 (3.) " Next of kin" and "nearest relations" include all the 
 nearest blood relations in equal degree, but exclude those who 
 take only by reference to the statute. 
 
 It would seem that in all expressions falling under (1) and (2), 
 the statutory proportions ought to be implied, in the absence of 
 any expression indicating a contrary intention. 
 
 ' In Thompson v. Young, 25 Md. 461, it is held that they take in statut- 
 able proportions, unless the will indicates an intention to make a different 
 distribution. 
 
*CHAPTER X. [*111 
 
 JOINT TENANCY, ETC. 
 
 Althouoh it was once doubted whether there could be a joint 
 tenancy of a legacy or residue (see per Lord Eldon, Crooke v. 
 De Vandes, 9 Ves. 204), it has long been settled that — 
 
 Rule. A devise or bequest to several persons nomina- 
 tim, or to a class, without more, creates a joint tenancy.^ 
 
 ' Wescott V. Cady, 5 Johns Ch. 334. This rule has been abolished as re- 
 gards devises of real estate, by statute, and it is enacted that a devise to two 
 or more shall create a tenancy in common, unless an intention to create a 
 joint tenancy be expressly declared or manifestly appear in the will, in 
 Maine (by an Act of March 15, 1821) ; New Hampshire (by the Revised 
 Statutes of Dec. 23, 1842) ; Vermont (by an Act of Oct. 20, 1797) ; Massa- 
 chusetts (by an Act of 1785) ; Rhode Island ; New York (by the Revised 
 Statutes of 1830) ; New Jersey (by an Act of Feb. 4, 1812) ; Delaware (by 
 an Act of Feb. 16, 1816) ; Maryland (by an Act of 1822) ; Indiana (by the 
 Revised Statutes of 1852) ; Illinois (by the Revised Statutes of 1845) ; 
 Michigan (by an Act of Sept. 1, 1838) ; Wisconsin (by Revised Statutes 
 taking effect July 1, 1839) ; Minnesota ; Iowa (by an Act March 2, 1821) ; 
 Missouri (by an Act of March 25, 1845) ; Arkansas (by an Act of Nov. 30, 
 1837,) and California (by an Act of April 27, 1855). 
 
 Survivorship in joint tenancy has never existed in Connecticut: Phelps 
 V. Jesson, 1 Root 48, and it has been abolished by statute in Pennsylvania 
 (by an Act of March 31, 1812) ; Virginia (by an Act of Nov. 28, 1786) ; 
 North Carolina (by an Act of April 19, 1784) ; Georgia (by an Act of 
 Dec. 17, 1828) ; Florida (by an Act of Nov. 17, 1829) ; Alabama (by an Act 
 of 1818) ; Mississippi ; Kentucky (by an Act of Jan. 1, 1797), and Tennessee 
 (by an Act of 1784). In South Carolina (by Acts of 1734 and 1791), 
 survivorship is abolished between joint tenants where the tenants are 
 seised and possessed of the estate : Herbemont v. Thomas, Cheves Ch. 23. 
 
 The first class of these statutes applies only to devises of real estate, and 
 bequests of personal estate are still subject to the rule in the text: De- 
 9 
 
Ill JOINT TENANCY, ETC. 
 
 The rule applies to gifts to children, issue, next of kin, 
 &c. 
 
 But the rule does not apply to expressions which contain a 
 reference to the Statutes of Distributions, as "heirs," "next of 
 kin according to the statute," &c. {Supra, rule in Bullock v. 
 Downes, 9 H. L. C. 1.) 
 
 The rule applies to gifts to a class, although the interests of 
 members of the class vest at different times. Thus, under a be- 
 quest to A. for life, with remainder to the children of B., the 
 children in esse at the death of the testator take the whole in- 
 terest given to the class as joint tenants, and as more children 
 come into esse during the life of A. they take as joint tenants 
 also. (McGregor v. McGregor, 1 De G. F. & J. 63 ; Ken- 
 worthy V. Ward, 11 Hare 196.) A devise or bequest in this re- 
 spect follows the analogy of a conveyance to uses, and not of a 
 feoffment at common law, in which the fact of the estates vesting 
 at different times prevents the creation of a joint tenancy. 
 
 But it seems that in devises and bequests it is necessary that 
 the interests of all the joint tenants should be *the same, 
 J and that there cannot be a joint tenancy between a class, 
 some of the members of which have vested and others contingent 
 interests. Therefore under a bequest to A. for life, with re- 
 mainder to the children of B., if the interests of the children are 
 not to vest until a given age, e. g., 21, the children will take as 
 tenants in common, although if the interests vested at birth they 
 would take as joint tenants. (Woodgate v. Unwin, 4 Sim. 129 ; 
 
 eamp v. Hall, 42 Vt. 485 ; Emerson v. Cutler, 14 Pick. 116 ; Putnam v. 
 Putnam, 4 Bradf. 309. 
 
 The statutes of Rhode Island, Virginia and Kentucky, expressly include 
 devises to husband and wife. In Vermont, Massachusetts, Indiana, Wis- 
 consin, Michigan and Minnesota, such devises have been expressly ex- 
 cepted from the operation of the statutes, and in other states where no 
 mention is made of such devises, it has been held that they are not within 
 the operation of the statutes : Thomas v. De Baum, 1 McCart. 40. 
 
 In Vermont, Massachusetts, Pennsylvania, Indiana, Illinois, Kentucky, 
 Michigan, Wisconsin and Minnesota, devises in trust are expressly ex- 
 cluded by the statutes from their operation. 
 
WORDS OF SEVERANCE. 112 
 
 see McGregor v. McGregor, 1 De G. F. & J. 63 ; Kenworthy v. 
 Ward, 11 Hare 196.)' 
 
 If lands be devised to two men, or two women, " and the heirs 
 of their bodies," inasmuch as the devisees cannot have common 
 heirs of the body, the devisees take joint estates for life with 
 several inheritances in tail. (Co. Lit. 184 a.) 
 
 And if the devise be to two men, or two women, ''their heirs 
 and assigns," the devisees take several remainders in fee. (For- 
 rest V. Whiteway, 3 Exch. 867.) 
 
 The same construction is adopted, wherever the devisees are in 
 contemplation of law incapable of having issue inter se, as if the 
 devise be to two men and one woman or to a man and his sister 
 or aunt. (Co. Lit. 184 a.) 
 
 Words of severance. — The rule is excluded by any w^ords 
 which import distinctness or plurality of interest among the ob- 
 jects of the gift. 
 
 Thus if the gift be to several, or to a class, " equally," or 
 " between " or " among " them, or if the " share " of any one is 
 spoken of, a tenancy in common is created.^ 
 
 '■^Respective." — A gift to several persons "respectively" 
 creates a tenancy in common. 
 
 Thus, under a gift to the testator's brothers and sisters " or 
 their executors or administrators respectively," the brothers and 
 sisters take as tenants in common. (Moore's Settlement, 10 W. 
 R. 315.) 
 
 But under a gift to a class, with a direction that the share of 
 a legatee dying before the period of distribution shall go " to his 
 or her children respectively," although *the primary lega- r*-.-. o 
 tees take as tenants in common, the children of each 
 legatee take inter se as joint tenants. (Hodgson's Trusts, 1 K. 
 & J. 178.) 
 
 1 Weyman v. Kingold, 1 Bradf. 43 ; Putnam v. Putnam, 4 Id. 309. 
 
 ' "Westcott V. Cady, 5 Johns. Ch. 348 ; Vreeland v. Van Ryper, 2 C. E. 
 Green. 134 ; Martin v. Smith, 5 Binney 18 ; Evans i>. Brittain, 3 S. & R. 
 137 ; Gilpin v. Hollingsworth, 3 Md. 194 ; Dunn v. Bryan, 38 Ga. 160. 
 
113 SIFT TO CHILDREN OP A. AND OF B. 
 
 In Ee Tiverton Market Act, 20 B. 374, it was held that under 
 a devise " to the children of A. and the heirs of their bodies res- 
 pectively," the children take as tenants in common in tail; but 
 that under a devise " to the children of A. and the heirs of their 
 respective bodies," the children take as joint tenants for life with 
 several inheritances in tail. 
 
 Gifts to Qhildren per Capita. 
 
 Rule. Under a devise or bequest to the children of A. 
 and of B. as tenants in common, prima facie the children 
 take per capita, not per stirpes. (Lady Lincoln v. Pelham, 
 10 Ves. 166.)^ 
 
 The rule is the same where the gift is to A. and the 
 children of B. (Butler v. Stratton, 3 Bro. C. C. 367.)^ 
 
 " The cases of Barnes v. Patch, 8 Ves. 604, Lady Lincoln v. 
 Pelham, 10 Ves. 166, and Rickabe v. Garwood, 8 Beav. 579, 
 decide that a fund is to be distributed per capita and not per stirpes, 
 when it is directed to be paid on a particular event, in such cases 
 as the following: namely, where a fund is to be divided between 
 the families of my brother L. and my sister E. ; where one-fourth 
 of a residue is to be paid to the younger children of N., and one 
 other fourth part to or among the younger children of S. ; where 
 a legacy is to be paid between and amongst the children of P. 
 and the children of R. In all these instances the court has de- 
 termined that the distribution is per capita and not per stirpes." 
 (Abrey v. Newman, 16 B. 433.) 
 
 ^ Farmer v. Kimball, 46 N. H. 439 ; Balcolm v. Haynes, 14 Allen 205 ; 
 Collins V. Hoxie, 9 Paige 89 ; Gest v. Way, 2 Whart. 451 ; Walker v. Dun- 
 shee, 38 Penn. St. 439 ; Maddox v. State, 4 Har. & Johns. 541 ; Benson v. 
 Wright, 4 Md. Ch. 2Y8 ; Crow v. Crow, 1 Leigh 77 ; Barksdale v. Macbeth, 
 7 Rich. Eq. 132 ; Walters v. Crutoher, 15 B. Monr. 10 ; Brown v. Brown, 6 
 Bush. 648 ; Malone v. Majors, 8 Humph. 579. 
 
 ' Bunner v. Storm, 1 Sandf. Ch. 362 ; Fisher v. Skillman, 3 C. B. Green 
 231 ; Cheeves v. Bull, 1 Jones Bq. 237 ; Dupont v. Hutchinson, 10 Rich Bq. 
 2 ; Smith v. Ashurst, 34 Ala. 208 ; Scott v. Terry, 37 Miss. 64 ; Pitney v. 
 Brown, 44 111. 365. 
 
GIFT TO CHILDREN IN EEMAINDBR. 113 
 
 Gift to the children of A. and B. — According to Lugar v. 
 Harman, 1 Cox 250, and a dictum in Peacock v Stockford, 3 D. 
 M. & Gr. 78, a gift to or in trust for "the ^children of A. r:if.-i-iA 
 and B." must be read as a gift to B. and not to his children 
 on account of the non-repetition of the word "of," before the 
 word B. But although it may be more idiomatic to speak of 
 " the children of A. and of B.," it may perhaps be doubted 
 whether usage requires the repetition of the particle. And in 
 the cases of Mason v. Baker, 2 K. & J. 567, and Re Davies' 
 Will, 7 Jur. N. S. 118, this distinction was disregarded, and a 
 gift to " the children of A. and B." was held to mean the children 
 of B. as well as of A.^ 
 
 If the gift be " in trust for the benefit of the children of A. 
 and of B.," of course the children of B. and not B. himself are 
 entitled. (Peacock v. Stockford, 3 D. M. & Gr. 73.) 
 
 Exceptions. — Where the bequest is to A. and B. as tenants in 
 common for life, with remainder to their children, it would seem 
 that the rule should not apply, and that the children should take 
 the share of their respective parents per stirpes? 
 
 Thus in Arrow v. Mellish, 1 De G. & Sm. 355, where the gift 
 was "to my three nieces, viz. A., B. and C, to be by them equally 
 divided, share and share alike, and at their deaths to go equally 
 share and share alike to their children," it was held that the 
 children took per stirpes. 
 
 So in Turner v. Whittaker, 23 B. 196, where the gift was, " at 
 the death of A. I desire that the annuity held by her shall be 
 equally divided between my sons B. and C, but not the principal; 
 that I bequeath to their children, to be equally divided among 
 them at the death of my sons B. and C." 
 
 ^ Lugar V. Harman was followed in StummvoU v. Hales, 34 Beav. 124. 
 To ascertain the meaning the Court must look at the circumstances of each 
 case and the position in which the parties are placed. See Waller v. For- 
 sythe, Phill. Eq. {N. C.) 353 ; Ingram v. Smith, 1 Head 425. The context 
 and the nature of the previous dispositions in the will may easily lead to 
 a contrary interpretation : Adams v. Adams, 2 Jones Eq. 217. 
 
 ^ Jackson v. Luquere, 5 Cowen 229 ; Crim v. Knotts, 4 Kioh. Eq. 347. 
 
114 GIFT TO CHILDREN IN REMAINDER. 
 
 But on the other hand, in Smith v. Streatfield, 1 Mer. 359, 
 the gift being "one half of the interest to be paid to A., the 
 other half of the interest to be paid to B., during the term of 
 their natural lives ; and as their lives drop and expire, I direct that 
 the principal and interest be reserved, and be equally divided 
 among their children, when they shall severally attain twenty- 
 one," it was held that the children took per capita. 
 
 *And in Abrey v. Newman, 16 B. 431, where the gift 
 -I was "all the above-named property to be equally divided 
 between A. and his wife, and B. and his wife, for their lives, after 
 which to be equally divided between their children (that is to say) 
 the children of A. and B. ahovenamed," it was held that the 
 latter words imported distribution per capita. 
 
 If the gift be to A. and B. as joint tenants for life, with 
 remainder to their children, the reason of Arrow v. Mellish of 
 course does not apply, and the children will take per capita. 
 (Stevenson v. GuUan, 18 B. 590.)i 
 
 ' Where there is anything in the will which indicates an intention to 
 distribute per stirpes, it will, of course be followed : Thus, in a gift to the 
 issue of A. and of B., in equal shares, if more than one of such respective 
 issue, the word "respective" makes it a gift to separate classes : Davis ». 
 Bennett, 4 De G. F. & J. 327. Where the children in the contemplation 
 of the testator stand in the place of their parents (Henderson v. Wor- 
 mack, 6 Ired. Eq. 487; Barksdale v. Macbeth, 7 Rich. Eq. 132); where 
 when previously mentioned in the will the children are treated as separate 
 classes (Gilliam v. Underwood, 3 Jones Eq. 100 ; Lockhart v. Lockhart, 
 Id. 206 ; Pardue v. Given, 1 Jones Eq. 312 ; Walker v. Griffin, 11 Wheat. 
 375) ; where separate words of limitation are annexed to the gift to each 
 class, to the children of A. and their heirs, and to the children of B. and 
 their heirs (Aiders. Beall, 11 Gill & Johns. 123) ; where the word '' and" is 
 repeated between each class, as to the children of A. and the children of 
 B. and the children of C. (Fissel's Appeal, 27 Penn. St. 57 ; Risk's Appeal, 
 52 Penn. St. 273), in all these cases the distribution is^'e'' stirpes. 
 
 Where the classes are designated as the "heirs" of A. and of B., since 
 that term involves the idea of representation of a stock they take per stirpes: 
 Basset v. Granger, 100 Mass. 349 ; Roome v. Counter, 1 Halst. 113; Fissel's 
 Appeal, 27 Penn. St. 57. In North Carolina however, it is held that the 
 use of this word, though a circumstance of weight is not of itself sufficient 
 to form an exception to the rule : Roper v. Roper, 5 Jones Eq. 19 ; Harris 
 V. Philpot, 5 Ired. Eq. 328 ; but if it be a devise of real estate, the word heirs 
 
GIFT TO HUSBANB AND WIFE. 115 
 
 GHfts to Susband and Wife. 
 
 It is a rule of construction (which certainly does not in all cases 
 accord with the probable intention), that — 
 
 Rule. Where there is a devise or bequest to a husband 
 and wife and one or more other persons, prima facie the 
 husband and wife take as one person, and take only one 
 share. (Co. Lit. s. 291 ; Re Wylde, 2 D. M. &. G. 724.) 
 
 Thus if the gift be to husband and wife and A., the 
 husband and wife take one moiety, and A. the other 
 moiety. 
 
 The rule applies whether the gift be in joint tenancy 
 or tenancy in common, and whether of real or personal 
 estate. (Re Wylde, 2 D. M. & G. 724.) 
 
 has its technical meaning, and they take per stirpes : Grrandy v. Sawyer, 
 Phill. Eq. 9. If the gift be to the "next of Jdn " of A. and B. they take 
 per stirpes: Cooper v. Cannon, Phill. Eq. 83. In Ingram v. Smith, 1 
 Head 427, a gift "to be equally divided between the heirs of A. and B.," 
 was held a gift j^er capita. 
 
 If the gift be to those persons who would take the estate in case of intes- 
 tacy, though not so named, the distribution will 'he primd facie per stirpes 
 if such would be the distribution under the intestate laws. The Statute 
 of Distributions governs in all cases where there is no will, and where there 
 is one, and the testator's intention is in doubt the statute is a safe guide : 
 Lyon V. Acker, 33 Conn. 224 ; Leland v. Adams, 12 Allen 287 ; Fisher v. 
 Skillman, 3 C. E. Green 236 ; Fissel's Appeal, 27 Penn. St. 58 ; Minter's 
 Appeal, 40 Penn. St. 115 ; Kisk's Appeal, 52 Penn. St. 271 ; Lackland v. 
 Downing, 11 B. Monr. 34. But in North and South Carolina it is held 
 that though such a distribution would be more natural, yet the court will 
 not adopt it without aid from the context, but they will lay hold of very 
 slight circumstances in aid of such construction : Wessenger v. Hunt, 9 
 Kioh. Eq. 471 ; Martin v. Gould, 2 Dev. Eq. 306. 
 
 It has been held that the words " equally to bo divided" do not affect 
 the construction, since they may apply to a division among the classes as 
 readily as to a division among the individuals : Risk's Appeal, 52 Penn. St. 
 273; but in Kean v. Roe, 2 Harring. (Del.) 118, it was held that their 
 effect was to cause a division per capita. The words " share and share 
 alike," perhaps point more decidedly to a distribution per capita : Lee v. 
 Lee, 39 Barb. 173. 
 
115 SOLE AND SEPARATE USB. 
 
 " If a joint-estate be made of land to a husband and wife and 
 to a third person, in this case the husband and wife have in law, 
 in their right, but the moiety. And the cause is, for that hus- 
 band and wife are but one person in law. 
 
 " In the same manner it is, where an estate is made to the 
 husband and wife and to two other men ; in this case the husband 
 and wife have but the third part, and the other two men the 
 other two parts." (Co. Lit. sect. 291.) 
 
 *Thus where the bequest was of 700Z. "unto and 
 J amongst John Collins and Catherine his wife and William 
 Lea, in equal shares and proportions," W. Lea was held to take 
 a moiety of the 700Z., although in another part of the will the 
 testator gave to John Collins 2001., to Catherine Collins 200L, 
 and to W. Lea 200?., separately. (Re Wylde, 2 D. M. & G. 
 724.) 
 
 So where the bequest was " to A. his wife and children 3000Z.," 
 and there were two children living at the decease of the testator, 
 the legatees were held to take as joint tenants in thirds, viz., the 
 husband and wife one, and the two children each of them one. 
 (Gordon v. Whieldon, 11 B. 170.) 
 
 It is of course immaterial whether the husband and wife are 
 described as such in the bequest, or not. 
 
 Exception. — But the rule is held not to apply where the gift 
 is to A. (husband), and (wife), the word "and" implying that 
 the husband and wife are to take as two persons. 
 
 Thus where the gift was, " All the residue of my property I 
 leave equally between my brother T. Warrington, my sister A. 
 Van Cortlandt, my nephew W. 11. Warrington, and Emma his 
 wife, their heirs and assigns," it was held that the residue was 
 divisible into fourths, and that the husband and wife each took 
 one of them. (Warrington v. Warrington, 2 Hare 54.) 
 
 " Sole " and separate Use.'' 
 
 In 'order to create a gift to the separate use of a woman, an 
 intention must appear to exclude the husband, or to exclude all 
 
 ' But see note, p. 118. 
 
GIFTS TO SEPARATE USB. 116 
 
 persons including the husband, from participating in the gift ; 
 and it is a rule that — 
 
 Rule. A gift to or for the " sole" use or benefit of a 
 woman means primd facie, separate use. (Adamson v. 
 Armitage, 19 Ves. 416 ; Ex parte Ray, 1 Mad. .^^^r^ 
 *199 ; LindseU v. Thaoker, 12 Sim. 178 ; Ex parte 
 Killick, 8 Mont. D. & De a. 480.) 
 
 As if the bequest be " to my wife for her sole use for ever." 
 (LindseU v. Thacker, 12 Sim. 178), or to A. " solely and for her 
 own use and benefit during her life," (Inglefield v. Coghlan, 2 
 CoU. 247.) 
 
 "Taking the words 'sole use' by themselves, they must have 
 the same meaning as 'separate use ' : omitting the word sole, the 
 property would go to the husband ; but I am not at liberty to 
 reject that word. ' Sole ' means solely hers — for her sole benefit. 
 It is an emphatic and operative word. I admit that a husband's 
 marital right cannot be taken away but by a clear intention ; but 
 here I think the intention is clear. The Master of the Rolls has 
 decided on the efiect of these words in the case of Adamson v. 
 Armitage, and that they pags a separate estate." (Ex parte 
 Eay, 1 Mad. 207.) 
 
 "The word "sole" has this effect, although the donee is a 
 single woman at the time of the bequest. (Adamson v. Armi- 
 tage, 19 Ves. 416 ; Ex parte Killick, 3 Mont. D. & De G. 480.) 
 
 In Massey v. Parker, 2 My. & K. 174, however, a direction 
 that the fund should be "under the sole control" of the legatees 
 was held to refer to and exclude only the control of their mother, 
 and not to create a separate estate.' 
 
 ' Where this was a gift to H., " her heirs, executors, administrators and 
 assigns, for her and their sole and absolute use and benefit," it was held 
 that since the word "sole" was applied to her heirs, executors, &c., it 
 could not have been used in the sense of separate : Lewis v. Matthews, L. 
 K. 2 Eq. 177. 
 
 In Massey v. Brown, L. R. 4 H. L. Cas. 288, it is said that "sole" is 
 not a technical word, has not a certain definite meaning attached to it 
 
117 SEPAEATB USE. 
 
 "Own," not separate use. — It is settled that the word "own" 
 has not the same force as "sole," and that a gift to a married 
 woman "for her own use and benefit" does not exclude the hus- 
 band. (Wills V. Sayers, 4 Mad. 409 ; Roberts v. Spicer, 5 Mad. 
 491.) 
 
 But where the bequest was to a woman " for her own use and 
 at her own disposal," it was held that the latter words created a 
 separate estate, showing an intention to give her that power of 
 disposition which the law does not give her. (Prichard v. Ames, 
 T. & R. 222.) 
 
 "Proper" equivalent to "own." — It has been decided by 
 Tyler v. Lake, 2 R. & My. 183, and followed in *Black- 
 -■ low V. Laws, 2 Hare 49, that the word "proper" is merely 
 equivalent to "own," and that a direction to "pay into the pro- 
 per hands" of a married woman " for h^t proper use and benefit," 
 is not sufficient to create a separate estate. But the decision is 
 contrary to the opinion of Sir J. Wigram. (See 2 Hare 53.)^ 
 
 A gift to a woman " independently of any other person" (Mar- 
 getts V. Barringer, 7 Sim. 482), or with a direction that her 
 receipt shall be a sufficient discharge (Lee v. Priaulx, 3 Bro. C. 
 C. 381), or that she shall receive the rents herself, "whether 
 
 which throws upon the person who contests that meaning the necessity of 
 showing by implication that it is not used in its strict and technical sense. 
 That Adamson v. Armitage, and Ex parte Killiok, and kindred cases, were 
 decided not upon the efficacy of the word " sole" itself, but because upon 
 construction of the whole will, it appeared that word was used in the sense 
 of separate. 
 
 The same view seems to have been taken of the effect of this word in 
 Smith V. Wells, 7 Mete. (Mass.) 243 ; and of the word " only" in Thrash v. 
 Hardy, 31 Ga. 205. 
 
 " Sole" will not mean "separate" use when used for males and females 
 alike, and when used convertibly with "only:" Huckabee w. Andrews, 
 34 Ala. 650. 
 
 In Pennsylvania a gift for a married woman's " own use" will create a 
 separate use : Jamison v. Brady, 6 S. & K. 466. The same meaning was 
 given to the word, when aided by other circumstances, in Freeman ». Flood, 
 16 Ga. 532. 
 
 ' "Own proper use" was held to create a separate estate in Snyder v. 
 Snyder, 10 Penn. St. 423. 
 
ABSOLUTE USE. 118 
 
 married or single" (Goulder v. Camn, 12 G. F. & J. 146), is suffi- 
 cient to create a separate estate. 
 
 Absolute. — It would appear that a gift to a woman " abso- 
 lutely," or "for her own absolute use," is not alone sufficient to 
 exclude the husband. (Kycroft v. Christy, 3 Beav. 238 ; Shewell 
 V. Dwarris, Johns. 172.) But where the bequest was, in case 
 the husband and wife should not be living together, as to one 
 half for the wife absolutely, and as to the other half for the hus- 
 band, it was held that the bequest was to the separate use of the 
 wife. (Shewell v. Dwarris, Johns. 172.)' 
 
 Note.— In Gilbert v. Lewis, 1 N. K. Ill, it was said by Westbury, C, 
 that the word "sole" does not of itself create a separate use, in a gift to a 
 woman who is discovert, or to the widow of the testator. This dictum 
 throws some doubt on the rule ; which however has, it is conceived, been 
 generally considered as settled by the decisions. In Ex parte Killick, 3 
 Mont. D. & De G. 487, Knight Bruce, V.-C, said : " I apprehend it is 
 clear, that when property is given to a woman, whether married or unmar- 
 ried, ' for her own sole use and benefit,' it is vested in her for her separate 
 use, free from the control of the marital right." 
 
 ^ Johnson v. Johnson, 32 Ala. 639. 
 
*119] *CHAPTER XI. 
 
 GIFTS, ETC., WITHOUT WORDS OF LIMITATION. 
 
 Occupation. 
 Occupation, in the legal sense, denotes possession or owner- 
 ship, not the act of inhabiting : hence it is a rule that — 
 
 Rule. " Occupy " does not, primd facie, mean person- 
 ally occupy. Thus a devise of the " use and occupation " 
 of a house to A. passes an estate for life, not subject to 
 the condition of residence. (Rex v. Inhabitants of Eal^ 
 ington, 4 T. R. 177 ; Whittome v. Lamb, 12 M. & W. 
 813; Rabbeth v. Squire, 4 De G. & J. 406.)^ 
 
 In Rex V. Inhabitants of Batington, 4 T. R. 177, a cottage 
 was conveyed in fee, with a proviso that it should be lawful 
 for the vendor " to live, inhabit, dwell in, and occupy the said 
 cottage with the appurtenances, as he has done and now does, 
 during the term of his natural life :" it was held that a life estate 
 was reserved to the vendor. " The word ' occupy ' in the proviso, 
 is extremely material, to show that the deed must have this opera- 
 tion : for it is a reservation of the thing itself, of the whole es- 
 tate. For a license to occupy an estate for a particular time is 
 a lease of the whole estate for that time." (4 T. R. 182.) 
 
 In Rabbeth v. Squire, 4 De Gr. & J. 406, the devise was that 
 A. and B. should have the "joint use and occupation " of certain 
 lands, with a proviso that if either *A. or B. should 
 ^ decline such use and occupation, the other should have 
 the whole use and occupation thereof. It was held that no con- 
 dition was annexed requiring personal occupation. 
 
 1 Beekman v. Hudson, 20 Wend. 53 ; Tobias v. Cohn, 36 N. Y. 363 ; 
 Pardue v. Givens, 1 Jones Eq. 307. 
 
DEVISE OF RENTS AND PROFITS. 120 
 
 ^^ Bents and Profits." 
 
 Rule. A devise of the " rents and profits " of land is 
 , equivalent to a devise of the land itself. (Doe d. Goldin 
 V. Lakeman, 2 B. & Ad. 30, E. C. L. R. vol. 22.)^ 
 
 Thus if the testator directs the " rents and profits " of his lands 
 to be divided among his three daughters in equal proportions, till 
 A. returns from Rome, the daughters take an estate of freehold 
 as tenants in common. (Doe v. Lakeman, 2 B. & Ad. 30, E. C. 
 L. R. vol. 22.) 
 
 A devise of " rents and profits " to A. without words of limita- 
 tion, in a will prior to 1838, of course passes only an estate for 
 life. But in a will made or republished on or after Jan. 1, 1838, 
 a devise of the " rents and profits " of land will, it would appear, 
 by force of the 28th section of the Wills Act, pass the fee simple 
 of the land. 
 
 In Stewart v. Garnett, 3 Sim. 398, a devise (in a will prior to 
 1838) of " the rents and profits of an estate called I." in moieties, 
 was held to carry the fee simple by force of the word " estate." 
 
 Trust to raise and pay out of " Bents and Profits." 
 As a gift of the rents and profits of land is equivalent to a gift 
 of the land itself, so a direction to raise money out of the rents 
 and profits of land may be considered equivalent to a direction to 
 raise out of the land itself, unless the will contains something to 
 show that by "rents and profits" the testator meant annual 
 rents and profits only. And it appears to be settled as a rule of 
 construction, that — 
 
 ^ Earl V. Rowe, 35 Me. 419 ; Craig v. Craig, 3 Barb. Ch. 94; Anderson 
 V. Greble, 1 Ash. 1 38 ; Den v. Manners, 1 Spencer 144 ; Smith v. Dun- 
 woody, 19 Ga. 237. The same may be said of a devise of the " income " of 
 land : Reed v. Reed, 9 Mass. 372. 
 
 In Boyle v. Parker. 3 Md. Ch. 45, it is said that a devise of " rents and 
 profits " does not ex vi termini pass the land, but only furnishes evidence 
 of an intention that it shall pass, and if upon the face of the will a different 
 intention is manifested, that evidence is rebutted. 
 
120 TRUST TO RAISE OUT OF RENTS AND PROFITS. 
 
 Rule. A trust to raise and pay money out of the " rents 
 and profits " of land is sufficient to create a charge on the 
 *i9n corpus of the land, where the purposes *of the 
 trust require it : unless the context shows that 
 " rents and profits " mean only " annual v&nis and profits." 
 (Trafi"ord v. Ashton, 1 P. W. 415 ; Allan v. Backhouse, 
 2 Ves. & B. 64 ; Bootle v. Blundell, 1 Meriv. 232 ; Wil- 
 son V. Ilalliley, 1 Russ. & My. 590.) 
 
 " In general, where money is directed to be raised by rents 
 and profits, unless there are other words to restrain the meaning, 
 and to confine them to the receipt of the rents and profits when 
 they accrue, the Court in order to obtain the end which the party 
 intended by raising the money, has by the liberal construction 
 of these words, taken them to amount to a direction to sell ; and 
 as a devise of the rents and profits will at law pass the lands, the 
 raising by rents and profits is the same as raising by sale." 
 (Per Lord Hardwicke, Green v. Belchier, 1 Atk. 506.) 
 
 " I have understood it to be a settled rule, that where a term 
 is created for the purpose of raising money out of the rents and 
 profits, if the trusts of the will require that a gross sum should 
 be raised, the expression ' rents and profits ' will not confine the 
 power to the mere annual rents, but the trustees are to raise it 
 out of the estate itself, by sale or mortgage." (Per Lord Eldon, 
 Bootle V. Blundell, 1 Mer. 232.) 
 
 Thus, where lands were devised to trustees, in trust out of the 
 rents and profits to pay debts and legacies (Lingon v. Foley, 2 
 Ch. Cas. 205), or where a term of ninety-nine years was limited 
 to trustees, in trust out of the rents and profits to raise portions 
 for daughters to be paid as soon as conveniently might be (Traf- 
 ford V. Ashton, 1 P. W. 415), the charge has been decreed to be 
 raised by sale or mortgage. 
 
 So in Allan v. Backhouse, 2 V. & B. 64, a direction to raise 
 and pay the fines and expenses attending renewals of leases out 
 of the rents and profits of the testator's lands was held to authorize 
 
TRUST TO RAISE MONET BY RENTS AND PROFITS. 122 
 
 a sale, it being necessary *when the renewals took place 
 that a gross sum should be paid immediately. L 
 
 So in Bootle v. Blundell, 1 Mer. 193, a devise to trustees for 
 a term of 500 years in trust out of the rents and profits of the 
 said premises to pay the testator's debts and also all such annui- 
 ties or legacies as were thereinafter mentioned, was considered 
 by Lord Eldon to bear the same construction, it being clear that 
 the legacies were to be paid immediately. 
 
 In Wilson v. Halliley, 1 R. & My. 590, the testator directed 
 his trustees to convert his personal estate, and out of the moneys 
 so to arise, and the rents, issues, and profits of his real estates, 
 to pay a legacy of 501. and an annuity of 100?., and the testa- 
 tor's funeral expenses and debts. It was held that " inasmuch 
 as debts can be immediately claimed, to the extent of this pur- 
 pose, if necessary, a sale or mortgage might certainly be made." 
 The testator then directed the trustees to raise and levy out of 
 the rents and profits of his real estate the sum of 5850Z., which 
 he apportioned among legatees : and devised the real estate, 
 "subject to the receipt of the rents and profits" by his trustees 
 for the purposes aforesaid. It was held upon the whole will that 
 the purposes of the latter trust were to be satisfied out of the 
 annual rents and profits only, the immediate payment of the 
 money not being required. 
 
 In Small v. Wing, 5 Bro. P. C. Toml. 66, the direction was 
 that the testator's debts and a sum of 1000?. to be paid to his 
 daughter should be raised out of the rents and profits of his real 
 estate, and the rents and profits were not to be received by the 
 devisees till the charge was raised, but were to be received by 
 the trustees and paid over to the daughter : and until the charge 
 was raised the trustees were directed to let the premises for the 
 purpose of raising and paying the debts and the sum of lOOOZ. 
 The context was held to show that the charges were to be raised 
 only out of the annual rents and profits. 
 
 In Heneage v. Lord Andover, 3 Y. & J. 360, a term of 
 *500 years was limited to trustees in trust out of the j-^^oq 
 rents and profits to raise sums of 500?., 700?., and 1000?., L 
 to be paid as soon as might be, to raise and pay certain annuities, 
 
123 UNLIMITED GIFT OF INCOME. 
 
 and the testator's debts ; and to pay over the residue and over- 
 plus of the net rents and profits to the devisees in remainder. 
 It was held that the charge was confined to the annual rents and 
 profits : but qu. how far this case is consistent with what was 
 said in Bootle v. Blundell, 1 Mer. 232. 
 
 Annuity payable out of rents and profits. — In Phillips v. Gut- 
 teridge, 11 W. R. 21,^ it was laid down by Westbury, C, that a 
 direction to pay an annuity out of the rents and profits of land is 
 sufficient to constitute the annuity a charge on the corpus of the 
 land ; unless the context shows an intention to preserve the cor- 
 pus, in any event, intact for those in remainder.^ 
 
 Unlimited Gift of Income. 
 
 A gift of personal estate without words of limitation is suffi- 
 cient to pass the absolute interest. But it might be supposed 
 that a bequest of the income or annual produce of a fund, as 
 opposed to a bequest of the fund itself, would be confined to the 
 life of the donee, in the absence of a contrary intention : the 
 rule, however, is otherwise, and it is settled that — 
 
 Rule. A bequest of the income of personal estate, 
 "without limit as to time, is equivalent to a gift of the 
 principal. 
 
 Thus a bequest of the interests, dividends, or annual 
 produce of 1000?. stock to A., simplicUer, is a gift to A. 
 of the capital sum of lOOOZ. stock. (Elton v. Sheppard, 
 1 Bro. C. C. 532 ; Haig v. Swiney, 1 Sim. & Stu. 487 ; 
 Blann v. Bell, 2 D. M. & G. 775.) 
 
 ' Reported 3 De G. J. & S. 332. 
 
 ^ In the question whether an annuity is a charge on the corpus or not, 
 there is first a distinction between cases in which the fund out which the 
 annuity is payable is made part of the residue, and those in which the 
 fund is specifically given oyer after the death of the annuitants : Baker v. 
 Baker, 6 H. L. C. 625 ; Perkins v. Cooke, 2 Johns. & Hem. 393. And in 
 the cases of a specific gift over, a distinction is next made between a simple 
 gift over of the fund after the death of the annuitant, and a gift over after 
 the satisfaction of the annnity, or subject to the annuity : Birch v. Sherrat 
 L. R. 2 Ch. App. 644. 
 
123 
 
 Primd facie a gift of the produce of a fund is a gift of that 
 produce in perpetuity ; and is consequently a gift *of the ^^^ ^ > 
 fund itself, unless there is something upon the face of the 
 will to show that such was not the intention." (Adamson v. 
 Armitage, 19 Ves. 418.) 
 
 The rule applies whether the income of the fund be given 
 directly, or through the intervention of trustees. (Haig v. Swiney, 
 1 Sim. & Stu. 487.) 
 
 Thus where the testator directed his trustees to lay out and 
 invest the residue of his estate in the public funds, and to pay 
 and apply the dividends and interest arising from the same to 
 A. and B. equally between them as tenants in common, it was 
 held that A. or B. could file a bill for the absolute transfer of a 
 moiety of the residue. (Page v. Leapingwell, 18 Ves. 463.) 
 
 Direction to pay dividends, ^c, to separate use of a married 
 woman. — It is settled that the rule applies to a bequest of per- 
 sonal estate to trustees, in trust to pay the dividends or interest 
 to A., a married woman, for her sole and separate use, with a 
 direction that her receipt alone shall be a discharge for the same : 
 so that A. becomes entitled, to her separate use, to the capital of 
 ,the fund. (Elton v. Sheppard, 1 Bro. C. C. 532 ; Haig v. Swiney, 
 
 1 Sim. & Stu. 487 ; Humphrey v. Humphrey, 1 Sim. N. S. 
 536.) 
 
 Where the interest of a fund is given to A. for life, and after 
 his decease to B. indefinitely, the rule applies, and B. takes the 
 fund absolutely, subject to A.'s life interest. (Clough v. "Wynne, 
 
 2 Madd. 188.) 
 
 But where the testator directed the dividends of stock to be 
 equally divided between A. and B. and the survivor, it was held 
 that the rule was excluded, and that the survivor was entitled for 
 life only. (Blann v. Bell, 2 D. M. G. 775.) Cranworth, L. J., 
 said : " What is the survivor to take ? Why only the same thing 
 as the deceased co-legatee. She stands in her place as to her 
 half, and takes only the same interest as she did, namely, a life 
 interest." (lb. p. 781.) 
 
 In Jennings v. Baily, 17 B. 118, the testatrix directed her 
 executors to pay to or permit A. to receive the dividends, interest, 
 
 10 
 
124 ANNUITY PERPETUAL FOR LIFE. 
 
 and produce of her personal estate ; and *" from and after 
 -^ the death of A." the testatrix gave some pecuniary legacies. 
 It was held that the rule applied, and that A. took the personal 
 estate absolutely, subject to payment of the legacies. 
 
 Annuity, whether perpetual. 
 
 The question whether an annuity given by will is perpetual or 
 for life only, depends mainly on the distinction between a simple 
 gift of an annuity, and the gift of the produce of a fund without 
 limit as to time. Where there is no reference to the fund out 
 of which the annuity is to come, it is the rule that — 
 
 Rule. A bequest of an annuity, not existing before, to 
 A., simpliciter, is primd facie for life only. (Savery v. 
 Dyer, Amb. 139 ; Blewett v. Roberts, Cr. & Pb. 274.)i 
 
 Tbe rule is unaffected by tbe Wills Act. (Nichols v. 
 Hawkes, 10 Hare 342.) 
 
 " If one gives by will an annuity, not existing before, to A., 
 A. shall have it only for life." (Savery v. Dyer, Amb. 140.) 
 
 " An annuity may be perpetual, or for life, or for any period 
 of years ; but in the ordinary acceptation of the term used, if it 
 should be said that a testator had left another an annuity of lOOZ. 
 per annum, no doubt would occur of the gift being an annuity for 
 the life of the donee. It is the gift of an annual sum of 100?. ; 
 that is, of as many sums of lOOL as the donee shall live years." 
 (Blewitt V. Roberts, Cr. & Ph. 280.) 
 
 But where a personal annuity was given to A. during the life 
 of B., and A. died in the lifetime of B., it was held that the 
 annuity did not expire, but went to the executor of A. (Savery 
 V. Dyer, Amb. 139.) 
 
 The exceptions to the rule will fall under two heads : 
 First, where the bequest is in effect a gift of the produce of a 
 fund, the case is assimilated to that of a gift of the income of a 
 
 ^ Morgan v. Pope, 7 Cold. 547. 
 
FUND PRODUCING ANNUITY. 125 
 
 fund witliout limit as to time, and the *annuity will be p^-. no 
 perpetual. " To make an annuity, created by will, per- 
 petual, there must be express words in the will so describing it, or 
 the testator must by some language in the will indicate an intention 
 to that effect. The most common indication is a direction by the 
 testator to segregate and appropriate a portion of his property, 
 from the interest or profits of which the annuity is to be paid. 
 Where this is done, the annuity when mentioned in the will repre- 
 sents the corpus so appropriated, and the corpus passing by the 
 bequest of the annuityj the annuity maybe said to be perpetual." 
 (Lett V. Randall, 2 De G. F. &. J. 392.) 
 
 As if the gift be of " 2001. a year, being part of the moneys I 
 have in Bank security" (Rawlings v. Jennings, 13 Ves. 39), or a 
 bequest of " 1201. per annum, that is to say, the interest of 4000?. 
 of my 3 per cent, consols." (Stretch v. "Watkins, 1 Mad. 253.) 
 But in Wilson v. Maddison (2 Y. & 0. 0. 0. 372), a direction 
 that 30?. a year '■'■from the interest of the testator's property in 
 the Bank of England," should be paid for the maintenance of 
 certain legatees, was held to be an annuity charged wpon the 
 stock, not an annuity part of the stock, and consequently not to 
 be perpetual. 
 
 In Hill V. Potts, 2 Jo. k H. 634, a gift as follows : " I give 
 and bequeath to A. all my property, landed and personal, except 
 5001. a year, which I give and bequeath to B.," was held a gift 
 to B. of the corpus sufficient to produce that income. 
 
 In Stokes v. Heron, 12 CI. & F. 161, perpetual annuities 
 were held to be given by these words : — " My will is that what- 
 ever I may die possessed of, together with any property my wife 
 may be in any way entitled to, shall produce to my wife an 
 annuity of 100?. per annum, to each of my daughters 100?. per 
 annum for themselves and their children, to my wife's mother an 
 addition to any property she may possess so as to make up to her 
 during her life an annuity of 100?. per annum, the said annuities 
 after the decease of my wife and her mother to be equally divided 
 among my three children. . . . * All the rest and resi- r*i27 
 due of my property I give to my son A."^ 
 
 1 Bent V. Cullen, L. R. 6 Ch. App. 237. 
 
127 GIFT OF ANNUITY IN THE FUNDS. 
 
 On the other hand, in Lett v. Randall, 2 De G. F. & J. 388, 
 under a devise of the testator's real and personal estate to trustees 
 in trust to make up to his wife 1200?. per annum, including 
 what she was entitled to under her father's will, and after her 
 decease the said sum of 1200Z. to be equally divided among all 
 and every his children then living, the annuities were held to be 
 limited to the lives of the widow and children, no appropriation 
 being contemplated to form the corpus of the annuity. 
 
 Although the bequest be of the produce of a fund, the gift as 
 a whole may of course show that the income of the fund is given 
 for life only. Thus in Innes v. Mitchell, 9 Ves. 212, where the 
 gift was of 200Z. per annum to A. for the use of herself and 
 children, with a direction to the executors to invest 5000Z. in the 
 funds in lieu thereof, as soon as convenient, " for her and their 
 use, and to the longest liver of her and her children, subject to 
 an equal division of the interest while n^ore than one of them are 
 alive," it was held that the annuity determined with the life of 
 the survivor of the children. 
 
 Annuity to be purchased in the funds. — It is settled that a 
 gift by way of a direction to purchase an annuity for a person in 
 the funds, government securities, &c., amounts to a gift of the 
 corpus of stock suflBcient to produce the annuity, and is not to be 
 construed as a direction to buy a government annuity for the 
 life of the person. (Kerr v. Middlesex Hospital, 2 D. M. & Gr. 
 576 ; Ross v. Borer, 2 Jo. & H. 469.) " Where a particular 
 fund is to be purchased to produce an annuity, the annuitant is 
 entitled (in the absence of any contrary direction) to the particu- 
 lar fund so purchased and set apart." (Ross v. Borer, 2 Jo. & 
 H. 472.) 
 
 " The word ' funds,' in common parlance, and according to its 
 natural import, means the funds of England, the British funds. 
 If, however, a man buys a life annuity of the government, he 
 does not buy an annuity in the British funds, but an annuity 
 
 * 
 
 128] 
 
 payable out of the * Consolidated Fund. Now the Con- 
 
 solidated Fund is money raised by the authority of Par- 
 liament to pay the British funds themselves." (Kerr v. Middle- 
 sex Hospital, 2 D. M. & G. 588.) 
 
GIFT OF ANNUITY TO SEVERAL. 128 
 
 In Kerr v. Middlesex Hospital, 3 D. M. & G. 576, the be- 
 quest was, " I desire that my executrix shall purchase annuities 
 for each of my two sisters, viz., A. and B., of 100?. a year each, 
 the said annuities to be purchased in the British Funds." In 
 Ross V. Borer, 2 Jo. & H. 409, the bequest was, " I direct my 
 executors to purchase an annuity in government securities to the 
 amount of 50?. a year for my servant A., in consideration of her 
 faithful services, the annuity to commence from the day of my 
 decease." In both cases the annuities were held to be perpetual. 
 
 Secondly : — ^Where an annuity is given to A. for life, and 
 after his decease to B., the fact that the annuity extends beyond 
 the life of the first taker is not alone sufficient to render it per- 
 petual. Thus where the annuity was given to A. for life, but 
 if he should die leaving a child, the annuity was to be continued 
 for. the child's use and benefit, it was held that the child of A. 
 took for life only. (Yates v. Maddan, 3 Mac. & G. 532.) So 
 where the annuity was given to A. for life, and after his decease 
 the said annuity was to be equally divided between B., C, and 
 D., or the survivors or survivor of them, it was held that the leg- 
 atees in remainder took annuities only for their respective lives. 
 (Biewitt V. Roberts, Or. & Ph. 274.) 
 
 But where an annuity is given for life -with remainder over, 
 the context not unfrequently leads to the inference that a per- 
 petual annuity is intended. "In Stokes v. Heron, Lord Cottenji 
 ham alluded to two principles on which annuities given indefi- 
 nitely have been held to be perpetual : the one is, that a gift of 
 the produce of a fund, whether particular or residuary, without 
 limit as to time, is a gift of the fund itself; the other is, that 
 where the testator speaks of an annuity which he gives to a 
 person for life, as if it were in existence after the death of such 
 *person, irrespective of any words added for the purpose r*229 
 of continuing its existence for the benefit of another per- 
 son, there the annuity given indefinitely to such other person is 
 a perpetual annuity." (Per Lord Truro, Yeates v. Maddan, 3 
 Mac. & G. 540.) 
 
 Thus, where the gift was " to A. 50Z. a year for her and her 
 
129 ANNUITY HELD PERPETUAL. 
 
 children : and after her decease the money to each of them at 
 21," the annuity was held perpetual. (Potter v. Baker, 13 B. 
 273.) 
 
 So -where the annuity was given to A. for life, and if he should 
 have children, to be equally divided between them, but if A. 
 should die without issue, then the annuity was to be given to B. 
 and Ms heirs for ever, the children of A. were held to take the 
 annuity absolutely. (Robinson v. Hunt, 4 B. 450.) 
 
 In Pawson v. Pawson, 19 B. 146, the testator gave to A. an 
 annuity of 60Z. a year out of his bank stock, and directed that 
 the annuity should not be sold till after the death of A. and his 
 wife, nor until their youngest child should attain twenty-one : it 
 was held that the annuity was perpetual. 
 
 In Hedges v. Harpur, 3 De G. & J. 129, an annuity was given 
 to each of the testator's daughters, and, after their respective 
 decease, to their children respectively, share and share alike, 
 with a direction that if any or either of the daughters should die 
 without issue, the annuity should cease and fall into the residue : 
 it was held that the annuities were perpetual, the latter direction 
 importing that the annuity was not to cease unless the daughter 
 died without issue, and also that it was to fall into the residue, if 
 at all, as an entire fund. 
 
 So, in Manserge v: Campbell, 3 De Gr. & J. 232, where the 
 annuity was given to A. for life, and after her decease to her 
 children as tenants in common, with a direction that on the 
 youngest child attaining twenty-one, tJie said annuity should be 
 sold, and the proceeds divided among the children : the annuity 
 was held perpetual, inasmuch as if the children took for life only, 
 there being no survivorship between them, the sale would be of 
 so many separate annuities. 
 
*CHAPTER XII. [nSO 
 
 DEVISES WITHOUT WORDS OP LIMITATION. 
 
 1. Old Law. 
 
 In wills made before Jan. 1st, 1838, 
 
 Rule. A devise of lands to A., simpliciter, confers an 
 estate for life only, unless an intention appear to the 
 contrary.^ 
 
 The rule is the same where the devise is of "lands, 
 tenements, and hereditaments." (Hopewell v. Ackland, 1 
 Salk. 239.)^ 
 
 The rule extends to a devise of manors, farms, rents, 
 tithes, or any kind of hereditament. 
 
 " Grenerally speaking, no common person has the smallest idea 
 of any diiference between giving a person a house and a quantity 
 of land. Common sense alone would never teach a man the 
 difference ; but the distinction, which is now clearly established, 
 is this : if the words of the testator denote only a description of 
 the specific estate or land devised, in that case, if no words of 
 limitation are added, the devisee has only an estate for life. But 
 
 ' Lummus v. Mitchell, 34 N. H. 45 ; Van Alstyne u. Spraker, 13 Wend. 
 582 ; Wright v. Denn, 10 Wheat. 204 ; Clayton v. Clayton, 3 Binn. 483 ; 
 Conoway v. Piper, 3 Harring. (Del.) 482; Beall v. Holmes, 6 liar. & 
 Johns. 207 ; Jones v. Bramlett, 1 Scam. 276. In Connecticut this rule 
 has never been in force : Holmes v. AVilliams, 1 Root 341 ; Hungerford v. 
 Anderson, 4 Day 371. 
 
 ^ Wright V. Denn, 10 Wheat. 238. 
 
130 DEVISES WITHOUT WORDS OF LIMITATION. 
 
 if the words denote the quantum of interest or property that the 
 testator has in the lands devised, then the whole extent of such 
 interest passes by the gift to the devisee." (Hogan v. Jackson, 
 Cowp. 306.) 
 
 In Pocock V. Bishop of Lincoln, 3 Brod. & B. 27 (E. C. L. 
 K. vol. 7), a devise to A. of " the perpetual advowson of H., and 
 my manor of S., and all my lands in N." was held to pass the 
 advowson for life only, although the devisee was then the actual 
 incumbent. 
 
 ^. „^-| *A devise of lands to A. and Ms assigns (in a will prior 
 to 1838) passes only an estate for life. (Co. Lit. 96.) 
 
 But any words implying that more than a life estate is intended 
 are suflScient to cause the fee to pass by an indefinite devise. 
 
 Thus a devise of lands to A. for ever passes the fee. (Co. 
 Lit. 96.) 
 
 So a devise to A., his executors or administrators, passes the 
 fee. (Rose v. Hill, 3 Burr. 1881.) 
 
 So if lands be given to be at the disposition of a person (Leon. 
 156), or to be kept in the name and family of the devisee (Doe 
 d. Wood V. Wood, 1 B. & Aid. 518), the fee simple may be held 
 to pass. 
 
 If lands be given to A. for life, and after his decease to be 
 equally divided between B. and C, it has been held that B. and 
 C. take the fee simple, on the ground that the corpus of the land 
 is to be divided between them. (Dates v. Brydon, 3 Burr. 1895.)^ 
 
 ' Wyatt V. Sadler, 1 Munf. 537 ; but on the other hand see Bool v. Mixi 
 17 Wend. 127 ; Lippen v. Eldred, 2 Barb. 131 ; Edwards v. Bishop, 4 
 Comst. 62; Clayton v. Clayton, 3 Binn. 483. 
 
 In many of the states of this country before the passage of the statutes 
 abolishing this rule, it was held that whenever an intention of disposing 
 of the fee could by any fair inference be drawn from the will, the operation 
 of the rule would be excluded, and very slight circumstances would be laid 
 hold of as indicating such an intention. (Lummus v. Mitchell, 34 N. H. 
 46 ; Cleveland v. Spilman, 25 Ind. 99.) Thus where a devise was made 
 without words of limitation but with an intention to pass the fee evinced 
 by the use of the word estate or by its being subject to a charge, and then 
 another devise was made in a similar manner but without !>ny such attend- 
 ant circumstance, the latter devise would pass the fee : Cook v. Holmes, 
 
ESTATE. 131' 
 
 "Ustate." 
 The word " estate " is, properly speaking, ambiguous : it may 
 either mean the land itself, or the testator's interest in it ; but 
 the Courts, in order to remedy to some extent the mischief caused 
 by the preceding rule, requiring words of limitation to pass the 
 fee, have leant strongly towards considering the word " estate" 
 as conveying the absolute interest : and it is a rule, observed 
 more strictly in recent times, that — 
 
 Rule. In wills made before Jan. 1st, 1838, 
 
 The word " estate " is sufficient to pass the fee simple 
 
 of land, although accompanied by words of locality or 
 
 occupation.^ 
 
 11 Mass. 532 ; Neide v. Neide, 4 Rawle 82 ; Guthrie v. Guthrie, 1 Call 7 ; 
 Pattison v. Thompson, 7 Ind. 282. The fact that the testator had pre- 
 viously devised an estate and expressly limited it for life, and then made 
 a devise without words of limitation which included the reversion of the 
 life estate, was held a sufficient indication of an intention to pass the fee : 
 French v. Mollhenney, 2 Binn. 13. Where the general purpose of the 
 testator in making the devise, either expressed or gathered by implication, 
 cannot be carried out without giving the devisee a fee, the fee will pass : 
 Baker v. Bridge, 12 Pick. 31. The existence of a residuary bequest of 
 personalty and the absence of a residuary devise, the coupling of a devise 
 with a general bequest, and the fact that the devise is in remainder after 
 a life estate, are circumstances, the cumulated effect of which is to pass 
 the fee : Charter v. Otis, 41 Barb. 529 ; Harris v. Slaght, 46 Id. 502. 
 
 In Massachusetts it is held that a devise after a life estate (especially to 
 a son) will pass the fee: Plimpton o. Plimpton, 12 Cash. 463. The con- 
 trary was held in New York in Olmsted v. Harvey, 1 Barb. 112. In 
 Hall V. Dickinson, 1 Grant's Cases 240, and Butler v. Little, 3 Greenl. 241, 
 such a devise passed the fee, when made to an heir, with an expressed 
 intention of excluding the other heirs. 
 
 The fact that real and personal estate are given together by the same 
 clause and in the same words, has been held entitled to great weight if not 
 conclusive in this country upon the question of an intention to pass the 
 fee : Packard v. Packard, 16 Pick. 193 ; Charter v. Otis, 41 Barb. 531 ; 
 Morrison v. Semple, 6 Binn. 98 ; Johnson v. Morton, 10 Penn. St. 249 ; 
 Weidman v. Maish, 16 Id. 511 ; Johnson v. Johnson, 1 Munf. 552 ; Cleve- 
 land V. Spilman, 25 Ind. 100. 
 
 1 Forsaith v. Clark, 1 Foster 423 ; Hart v. "White, 26 Vt. 267 ; Leland 
 
131 ESTATE AS AN OPERATIVE WORD. 
 
 The rule is the same where the word is " estates," in 
 the plural. 
 
 Thus a devise of the testator's estates in the occupation 
 of A. in the parish of B. to C, without more, passes the 
 fee simple. (White v. Coram, 3 K. & J. 652.) 
 
 *1 ^21 *^° where the devise was of " all my egtate, lands, &c., 
 known by the name of the Coalyard, in the parish of St. 
 Giles, London," the fee was held to pass. (Roe d. Child v. 
 Wright, 7 East 259.)^ 
 
 " It is established, by a long course of decisions, that the word 
 ' estate,' or ' estates,' used in the operative part of the will, passes 
 not only the corpus of the property, but all the interest of the 
 testator in it, unless controlled by the context ; and that super- 
 added words of local description more applicable to the corpus of 
 the property, indicating its situation, or the nature of its occu- 
 pation, do not prevent it from passing the whole interest. Nor 
 do words apparently explanatory of the meaning of the term 
 inserted in the devise itself : as where the testator leaves his real 
 estate, that is, his lands and buildings situate at A. (Denn v. 
 Hood, 7 Taunt. 35, E. C. L. R. vol. 2) : or his freehold estate 
 consisting of SO acres of land (Gardner v. Harding, 3 Moore 565) ; 
 or where the testator after devising dwelling-houses to one for 
 life (with a minute description), all which estates he devised after 
 his death to another. (Randall v. Tuchin, 6 Taunt. 410, E. C. 
 L. R. vol. 1.) The courts have extended the meaning of the 
 word, in order to effectuate what it may always be presumed that 
 it was the intention of the testator to have done." (Doe d. 
 Burton v. White, 1 Exch. 534.) 
 
 The rule would seem to apply equally, whether the devise be 
 of "my estate called A.," or of " an estate called A.," although, 
 
 V. Adams, 9 Gray 174 ; Jackson v. Merrill, 6 Johns. 191 ; Bradstreet v. 
 Clarke, 12 Wend. 660 ; Denn v. Bowne, 3 Harr. 210 ; Donovan v. Donovan, 
 4 Barring. 177 ; Beall v. Holmes, 6 Har. & Johns. 208. 
 
 In Smith v. Berry, 8 Ohio 367, a devise of " all my lands " was held to 
 pass the fee. 
 
 ' Lambert v. Paine, 3 Cranch 97. 
 
ESTATE, EFFECTS, MONEY. 182 
 
 in Doe d. Lean v. Lean, 1 Q. B. 229 (E. 0. L. R. vol. 41), this 
 difference of expression was commented on. 
 
 "Estate " must he an operative word. — But the rule does not 
 apply unless the word "estate" is an operative word, occurring 
 in the gift itself. If the testator devise lands to A., simpliciter, 
 and afterwards refer to the same lands as " the said estate," this 
 does not carry the fee to A. " Where the word ' estates ' is not 
 used in the operative part of the devise itself, but is introduced 
 into another part of the will referring to it, we find no decision 
 or dictum authorizing us to construe it as having the effect 
 *of extending the meaning of the operative clause, whether p^.. „„ 
 prior Of subsequent, and to read the will as if the testator 
 had said ' by the devise of lands in another clause I mean to give 
 all my interest in those lands.' " (Doe d. Burton v. "White, 1 
 Exch. 535.)! 
 
 Thus, if the testator devise his estate called A. to B. for life, 
 and after his death devises the same lands, or the same heredita- 
 ments to C, C. takes for life only. (Doe d. Norris v. Tucker, 3 
 B. & Ad. 473 (E. C. L. R. vol. 23) ; Vick v. Sueter, 3 Ell. & Bl. 
 219, E. 0. L. R. vol. 77.) 
 
 But, on the other hand, if the testator devises his lands, at A. 
 to B. for life, and after his death devises the said estates to C, C. 
 takes the fee simple. (Roe v. Bacon, 4 M. & Selw. 366 ; Uthwatt 
 V. Bryant, 6 Taunt. 317, E. C. L. R. vol. 2.) 
 
 And if the gift be " I devise my estates at A. to B. for life, and 
 after his death to C, 0. takes the fee simple. (Randall v. Tuchin, 
 6 Taunt. 410, E. C. L. R. vol. 2.) 
 
 Where the gift was, " I devise an estate called L. to A. for life, 
 and after his death I devise the same to B.," it was held that B. 
 took for life only. (Doe d. Lean v. Lean, 1 Q. B. 229, E. C. L. 
 R. vol. 41.) Sed qu. 
 
 Where the testator devised an estate to A., except a certain 
 
 ^ Yet in Leland v. Adams, 9 Gray 171, where the words were "I devise 
 all my lands in C. to A. This estate was the property of Gr., and I now 
 devise it as a token of my respect," &c., it was held that by reason of the 
 use of the word "estate " the fee passed. 
 
133 WHERE A CHARGE PASSES THE FEE. 
 
 house which he devised to B., it was held that B. took the fee 
 simple in the house devised to him, by necessary intendment. 
 (Doe d. Knott v. Lawton, 4 Bing. N. C. 455, E. C. L. R. vol. 38.) 
 
 Effects. — Where the word " effects " is used in the sense of 
 real estate, it passes the fee ; thus a devise of " all my effects 
 real and personal" passes the fee simple of lands. (Lord Tor- 
 rington v. Bowman, 22 L. J. Ch. 236.)i 
 
 It is clear that the word "property" passes the fee simple. 
 (Nicholls V. Butcher, 18 Ves. 193.)^ 
 
 In Stewart y>Garnett, 3 Sim. 398, it was held that a devise of 
 the "rents and profits" of an estate to A., simpliciter, passes the 
 fee simple by force of the word estate. 
 
 Moiety, share, ^c. — If the testator devise one moiety of lands 
 
 to A., and the other moiety of the lands to B., *A. and 
 
 -I B. will of course take life estate only in their respective 
 
 moieties, as if the devise had been of the entire lands to one of 
 
 them. 
 
 But if the testator, having only a moiety or share of lands, 
 devises his moiety or Ms share of the lands, it is settled that the 
 fee simple passes without words of limitation. (Doe d. Atkinson 
 V. Fawcett, 3 C. B. 274 (E. C. L. R. vol. 54) ; Paris v. Miller, 
 5 M. .S^ Selw. 408.) In Paris v. Miller, Ellenborough, C. J., 
 said: " This is not the devise of a portion which the devisor has 
 carved out of the entirety ; it existed in her as it is devised. . . . 
 It appears to me that the word share passes the fee." (P. 410.)* 
 
 ' Ferguson v. Zeph, 4 Wash. C. C. 645. 
 
 ^ Fogg V. Clark, 1 N. H. 163 ; Jackson v. Housel, 17 Johns. 282 ; Foster 
 V. Stewart, 18 Penn. St. 23 : Mayo v. Carrington, 4 Call 476 ; Niles v. Gray, 
 12 Ohio St. 328. 
 
 In Ohio it is held that the words " lands," " plantation," " farm," &c., are 
 descriptive as well of the quantity of interest as of the subject: Smith v. 
 Berry, 8 Ohio 367 ; Thompson v. Hoop, 6 Ohio St. 488. 
 
 'A devise of "my right" (Newkerk v. Newkerk, 2 Caines 351), in 
 certain lands, or " my part" CPeppard v. Deal, 9 Penn. St. 142), or "my 
 portion" (Hallowell v. Phipps, 2 Whart. 383), will pass the fee. So will 
 a devise of "my late purchase" (Neide v. Neide, 4 Rawle 81), or "all I 
 have," " everything" (Chamberlain u. Owings 30 Md. 453). 
 
CHARGES. 134 
 
 A devise of "my share in the New River Campany " has been 
 held to confer an estate for life only, the word being there used 
 in its technical sense. (Skinn. 339.) 
 
 Charges. 
 The effect of a charge in enlarging an indefinite devise is fully 
 settled by authority, and it is the rule that — 
 
 Rule. In wills made before Jan. 1st, 1838, 
 An indefinite devise is enlarged by a fee simple by the 
 imposition of a charge, however small, on the person of 
 the devisee, or on the quantum of interest devised to him; 
 but not if the devise is merely subject to a charge. (Doe 
 d. Stevens v. Snelling, 5 Bast 87; Doe d. Sams v. Garlick, 
 14 M. & W. 698; Burton v. Powers, 3 K. & J. 170.)^ 
 
 Thus, a devise of lands to A., he paying 10^. to B., 
 passes the fee simple; but a devise of lands to A. subject 
 to a charge of 10^., passes only an estate for life.^ 
 
 So a devise of "all that my house, &c., to A., whom I name 
 sole executrix, she paying my debts and funeral charges," passes 
 the fee. (Dolton v. Hewen, 6 Mad. 9.) But a devise of a farm 
 and premises to A., "subject to the payment out of the aforesaid 
 premises" of several *sums of 50Z., gives an estate for life r^-. qr 
 only. (Burton v. Powers, 3 K. & J. 170.) ^ 
 
 " The distinction which runs through the cases seems to be 
 this, that if an estate in land be given after payment of debts or 
 
 1 Wait V. Belding, 24 Pick. 139 ; King v. Cole, 6 R. I. 587 ; Spraker v. 
 Van Alstyne, 18 Wend. 205 ; Harden v. Hays, 9 Penn. St. 155 ; Glenn v. 
 Spry, 5 Md. 117 ; Gibson v. Herton, 5 Har. & Johns. 180. 
 
 ^ Van Dyke v. Emmons, 34 N. Y. 186 ; Mesick v. New, 3 Seld. 165 ; 
 Wright V. Denn, 10 Wheat 231 ; Gardner v. Gardner, 3 Mason 209 ; Soott 
 V. Alexander, 2 Houst. 241 ; McRee v. Means, 34 Ala. 377 ; Doe v. Horter, 
 7 Blaokf. 489. But in Pennsylvania (Wolbert v. Lucas, 10 Penn. St. 73,) 
 it is said that the acceptance by the devisee of the land charged makes him 
 personally liable, and therefore he takes the fee. 
 
135 DEVISE SUBJECT TO CHARGE. 
 
 legacies, it is of no consequence for this purpose whether the de- 
 visee take the estate for life or in fee ; for the land will be charged 
 into whatever hands it may pass, and the purposes of the devisor 
 will equally be answered. But where an indefinite estate is given 
 to a person in lands, and th&t person is charged with the payment 
 of debts or legacies, he must take a fee ; for otherwise, if he only 
 take for life, and pay the charges, and die soon after, he may be 
 a loser, which the devisor could never have intended. It is the 
 same thing if such indefinite estate be given to one, and the debts 
 are to be paid out of the estate given to the devisee, he must there 
 also take the fee ; for otherwise the estate may not be sufficient 
 to pay the debts." (Per Lawrence, J., Doe d. Stevens v. Snell- 
 ing, 5 East 96.) 
 
 " In any case, where a payment is to be made out of the inte- 
 rest given to the devisee, so that it is a charge upon the estate 
 devised to him, that estate is to be measured by the possible, not 
 the probable, amount of the charge, and if it may require the fee 
 simple to provide for it, the fee simple is considered to pass to 
 the devisee. 
 
 " There is another class of cases, of which Denn v. Mellor, 2 
 B. & P. 247, is the principal authority, where the gift is to the 
 devisee "after" satisfaction of some previous legacy, and there 
 the devisee takes nothing until the legacy is satisfied : . . . con- 
 sequently it cannot be inferred in any way, that the charge is to 
 be paid out of the estate given to the devisee, it being in fact para- 
 mount thereto ; and therefore his estate cannot be enlarged by 
 any implication arising from such charge." (Burton v. Powers, 
 3 K. & J. 172.) 
 
 In Doe V. Eichards, 3 T. R. 356, a devise of lands, " my 
 
 legacies and funeral expenses being thereout paid," was held to 
 
 mean " being paid out of the interest of the *devisee," 
 
 ^ and therefore to carry the fee : but this case is doubtful.^ 
 
 A devise of lands to A., he paying a sum of money to B. when 
 
 B. shall attain twenty-one, carries the fee simple, although the 
 
 1 Mesick v. New, 3 Selden 167. 
 
GIFT OVER ON DEATH UNDER AGE. 136 
 
 payment to B. is contingent. (Doe v. Phillips, 3 B. & Ad. 753 
 (E. 0. L. R. vol. 23); Abrams v. Windshup, 3 Russ. 350.) 
 
 Devise to A., he paying an annuity. — If lands be devised to 
 A., he paying thereout 20s. a year to B., the annuity to B. is not 
 restricted by implication to the lifetime of A. ; but A. takes the 
 fee simple, and the annuity continues during the life of B. 
 (Baddely v. Leppingwell, 3 Burr. 1633 ; Goodright v. Stocker, 5 
 T. R. 13.y 
 
 In Matthews v. Windross, 2 K. & J. 406, the testator devised 
 to A. " the Dove Close, also the Blake Close, also the house he 
 now lives in ;" and afterwards bequeathed to B. the sum of 10?. 
 a year to be paid out of the Dove Close by A. It was held that 
 A., though taking the fee simple in the Dove Close, took the 
 remaining property for life only. 
 
 Grift over on Death under Age. 
 A gift over in the event of the devisee dying under age is also 
 held to show an intention to give the fee simple : and it is a rule 
 that — 
 
 Rule. In wills made before Jan. 1st. 1838, 
 If lands be devised to A. indefinitely, with a gift over 
 in the event of A. dying under twenty-one. A., if he at- 
 tains that age, takes the fee simple. (Frogmorton v. 
 Holyday, 3 Burr. 1618 ; Doe d. Wright v. Cundall, 9 
 East 400 ; Burke v. Annis, 11 Hare 232.) ^ 
 
 "If he should die under twenty-one, there is a devise over to 
 the three daughters of the testatrix. This shows her intention to 
 
 1 King V. Cole, 6 R. I. 588. 
 
 ^ Cassell V. Cooke, 8 S. & R. 288 ; Packard v. Packard, 16 Pick. 193 ; Gray 
 V. Wiakler, 4 Jones Eq. 314. The rule was not noticed in Belt v. Belt, 4 
 Har. & McH. 80. 
 
 The rule of Frogmorton v. Holyday has been extended to a gift to the 
 members of a class living at a certain time, and the children or issue of 
 such members of the class as should then be dead, the children to take the 
 share their parents would have taken if living: In re Harrison's Estate, 
 L. R. 5 Ch. App. 412. 
 
136 RULE IN CHALLBNGER V. SHEPPAED. 
 
 give a fee. For if he lived to twenty-one, he might then dispose 
 of it himself: if he died before, he could not ; and then she dis- 
 poses of it. 
 
 ^^„„-, *" If John was barely to take an estate for life, the 
 ^ time of his death must be immaterial to the devise over. 
 But limiting it over only on the contingency of his dying in his 
 minority, shows that she intended to give him an absolute estate 
 in fee, which he might dispose of when he came of age ; and 
 unless he lived to be of age (when he might dispose of it) she 
 meant it should go to her daughters. (Per Lord Mansfield, 
 Frogmorton v. Holyday, 3 Burr. 1623.) 
 
 The rule extends to the case, where the gift over is in the event 
 of death under eighteen (Doe v. Coleman, 6 Price 179) ; or, it 
 should seem, under any other age. 
 
 Death under age, without issue. — The rule applies, where there 
 is a devise to A. indefinitely, with a gift over in the event of A. 
 dying under age and without issue: and the words importing 
 failure of issue are restrained to failure of issue at the death of 
 A. Thus, if lands be devised to the children of A. as tenants in 
 common, with a gift over of the share of any child dying under 
 age and without leaving issue to the survivors, the children take 
 estates in fee, with executory devises over, in the event of their 
 dying under twenty-one without leaving issue at the time of their 
 respective deaths. (Toovey v. Bassett, 10 East 460.)' 
 
 Challenger v. Sheppard. 
 
 If, in a will prior to 1838, lands be devised unto and to the use 
 of trustees and their heirs in trust for A. indefinitely, the estate 
 of A. is not enlarged to a fee simple, because the estate taken by 
 the trustees is (see next chapter) co-extensive only with the trust 
 to be performed, and is therefore limited to an estate during the 
 life of A. But if the other purposes of the trust require the 
 whole legal fee simple to be in the trustees, the equitable estate 
 of A. is enlarged accordingly : and it is a rule that — 
 
 ' Lippitt V. Hopkins, 1 Gall. C. C. 454. The rule applies also to a gift 
 over in case of death without children : Richardson v. Noyes, 2 Mass, 61. 
 
DEVISE TO TRUSTEES IN TRUST FOR A. 137 
 
 EuLE. In wills made before January 1st, 1838, 
 If lands be devised to trustees in trust for A. indefi- 
 nitely, and the purposes of the trust require the ^ 
 *whole legal fee to be in the trustees, A. takes 
 the beneficial interest in fee. (Challenger v. Sheppard, 
 8 T. R. 597, marginal note ; Knight v. Selby, 3 Man. & 
 G. 92 (E. C. L. R. vol. 42) ; Moore v. Cleghorn, 12 Jur. 
 591, per Lord Cottenham; Smith v. Smith, 31 L. J. C. 
 P. 25.) 
 
 Thus, if the devise be to trustees in trust to pay the 
 testator's debts, and subject thereto in trust for A., A. 
 takes an equitable estate in fee simple. 
 
 " The defendants relied on the cases of Challenger v. Shop- 
 hard, Knight V. Selby, and Moore v. Cleghorn, and contended, 
 and rightly contended, we think, that these authorities establish 
 the general rule, that whenever an estate in fee is devised to 
 trustees in trust, without any limitation of the estate of the cestui 
 que trust, the latter takes the beneficial interest in fee ; because, 
 in such cases, everything which the trustees take is given for the 
 benefit of the devisees, and there is therefore no resulting trust 
 for the heir." (Smith v. Smith, 31 L. J. C. P. 27.) 
 
 In Smith v. Smith the testator devised his real and personal 
 estate to trustees in trust after payment of his debts, &c., to pay 
 the rents to A. for life, and proceeded, " then I give my close or 
 piece of land called Whiteacre to B." It was held that the 
 trustees took the legal fee under the charge of debts, and there- 
 fore that the devise of Whiteacre to B. passed the fee simple. 
 
 But it must first be made out that the whole fee is vested in 
 the trustees. In Doe d. Kimber v. Cafe, 7 Exch. 675, the devise 
 was to trustees and their heirs in trust to pay the rents to A. for 
 life, and after her death to apply the rents during the minority 
 of her children for their benefit ; and on the youngest attaining 
 twenty-one the testator devised the lands to the children indefi- 
 nitely : — it was held that the estate of the trustees was limited to 
 11 
 
138 NEW LAW. 
 
 the life of A. and minority of her children, and consequently, 
 that the children took estates for life only.^ 
 
 *139] *II. New Law. 
 
 The preceding rules are destroyed or rendered unnecessary by 
 the 28th section of the Wills Act, which enacts that — 
 
 ' In Loveacres v. Blight, 1 Cowp. 352, Lord Mansfield held that the 
 ■words " freely to be possessed and enjoyed" accompanying a devise of 
 land, meant free from all limitations, and therefore would pass the fee. 
 But the contrary has since been held in England : Goodright v. Barron, 
 11 East 220 ; Lloyd v. Jackson, L. K. 1 Q. B. 579. There later authorities 
 have been followed in Wright v. Denn, 10 Wheat. 241 ; Wheaton v. 
 Andress, 23 Wend, 453 ; but the doctrine of Lord Mansfield has been 
 adopted in Campbell v. Carson, 12 S. & K. 56. 
 
 A devise without words of limitation, if accompanied with a power to dis- 
 pose of the fee, will pass the fee : Shaw v. Hussey, 41 Mu. 498 ; Helmer 
 V. Shoemaker, 22 Wend. 139 ; Bradstreet v. Clarke, 12 Id. 662 ; Den v. 
 Humphreys, 1 Harr. 27 ; M'Cullough ». Gilmore, 11 Penn. St. 373. So 
 a devise to one with power in another to dispose of the fee for his benefit : 
 Den V. Humphreys, 1 Harr. 25. 
 
 In England, it is held that an introductory clause expressing an inten- 
 tion of disposing of the whole estate will have no efiect on the quantity of 
 interest which may pass by the subsequent devises : Doe v. Allen, 8 Term 
 Kep. 497 ; Goodright d. Drewry v. Barron, 11 Bast 220. 
 
 The same doctrine has been adopted in some of our states : Jackson v. 
 Harris, 8 Johns. 145 ; Vanderzee v. Vanderzee, 36 N. Y. 232 ; Dodd v. 
 Dodd, 2 Houst. 76 ; Beall v. Holmes, 6 Har. & Johns. 209. Though in 
 New York it was held that the combined effect of such an introductory 
 clause, and the absence of a residuary clause of realty, though there was 
 one of personalty, was to pass the fee (Charter v. Otis, 41 Barb. 525), 
 herein diff'ering from the English authorities : Denn v. Gaskin, 2 Cowp. 
 657. 
 
 In other states considerable weight is given to such a clause ; it will 
 pass a fee when aided by other expressions, indicative of a similar intent : 
 Fogg V. Clark, 1 N. H. 166 ; or when connected with the devising clause 
 of the will by words which show that the devise is made in pursuance of 
 the intention expressed in the introductory clause : Doe v. Harter, 7 
 Blackf. 490 ; or even without such aid it has been considered as of itself 
 sufficient to enlarge the estate devised, if there be no residuary devise : 
 Den V. Allaire, Spencer 8 ; Schriver v. Myer, 19 Penn. St. 89 ; Wood v. 
 Hills, Id. 515 ; Shinn v. Holmes, 25 Id. 142 ; Davies v. Miller, 1 Call 127; 
 Watson V. Powell, 3 Id. 306. 
 
INDEFINITE DEVISE PASSES THE FEE. 139 
 
 Rule. In wills made or republished on or after January 
 1st, 1838, 
 
 A devise of lands, &c., without words of limitation, 
 passes the fee simple, unless an intention appear to the 
 contrary. 
 
 Stat. 1 Vict. c. 26, s. 28. " That where any real estate shall 
 be devised to any person without any words of limitation, such 
 devise shall be construed to pass the fee simple, or other the 
 whole estate or interest which the testator had power to dispose 
 of by will in such real estate, unless a contrary intention shall 
 appear by the will." 
 
 This section applies only to devises of previously existing 
 estates or interests, and not to the devise of an estate created by 
 the will. (Nichols v. Hawkes, 10 Hare 342.) Thus a devise of 
 a rent-charge vested in the testator, without words of limitation, 
 passes the fee simple : but a devise of a rent-charge, not existing 
 before, to a person indefinitely, confers only an estate for life. 
 (Ib.)^ 
 
 ' Similar statutes have been adopted in most of the states of this country. 
 The statute in Maine went into effect April, 1857 ; New Hampshire, Jan. 1, 
 1823 ; Vermont, July 1, 1840 ; Massachusetts, April 30, 1836 ; New York, 
 Jan. 1, 1830 ; New Jersey, Aug. 26, 1784 ; Pennsylvania, April 8th, 1833; 
 Delaware, Jan. 1, 1853; Maryland in the year 1825; Virginia, Jan. 1. 
 1787;; North Carolina, June 2, 1784; South Carolina, Dec. 17, 1824 (but 
 was held to be merely in affirmance of the common law in that State : 
 Peyton v. Smith, 4 McCord 476) ; Georgia, Dec. 21; 1821 ; Alabama, in the 
 year 1812 ; Mississippi, June 13th, 1822 ; Ohio, Oct. 1, 1840 ; Indiana, 1843 ; 
 Illinois, Sept. 10, 1845; Kentucky, Jan. 1, 1797; Tennessee, April, 1784; 
 Michigan, Sept. 1, 1838; Wisconsin, Jan. 1, 1850; Missouri, March 25, 
 1845 ; California, April 10, 1850. A similar statute is found in the Re- 
 vised Statutes of Kansas of March 2, 1868, though it is probably older in 
 date. 
 
 The contrary intention which prevents the operation of the new rule 
 need not be expressly declared, it may be gathered from a comparison of 
 the different provisions of the will : Fay v. Fay, 1 Cush. 102. 
 
 In Maryland it is held, where the intention is to give the rents and 
 profits only and not the land, the act does not apply : Boyle v. Parker, 3 
 Md. Ch. 45. 
 
1=140] ^CHAPTER XIII. 
 
 ESTATES OF TRUSTEES. 
 
 Two questions may arise respecting the nature and quality of 
 the estate taken by trustees under a devise to them : 1st, What 
 is the quantum of estate and interest, beneficial as well as legal, 
 vested in the trustees for the active purposes (if any) of the 
 trusts reposed in them: and, 2d, What becomes of the legal 
 estate (if any) remaining after the active purposes of trusts are 
 satisfied ; does it remain in the trustees, or pass from them to the 
 cestuis que trust ; in other -words, are the estates of the persons 
 beneficially interested equitable or legal ? These questions may 
 to some extent be considered separately. 
 
 I. As to the quantum of estate or interest taken by the trus- 
 tees for the active purposes of the trust. 
 
 The distinction between paying the rents and profits to a per- 
 son and permitting him to receive them is considered to mark 
 the difference between an active and passive trust : and it is a 
 rule that — 
 
 Rule. A devise of real estate to a trustee, in trust to 
 pay the rents and profits to A., vests the legal estate in 
 the trustee. 
 
 But a devise to a trustee, in trust to permit A. to 
 receive the rents and profits, vests the legal estate in A. 
 (Doe d. Leicester v. Biggs, 2 Taunt. 109 ; Doe v. Bolton, 
 11 Ad. & 1E11. 188 (E. C. L. R. vol. 39) ; Barker v. Green- 
 wood, 4 M. & W.421.)i 
 
 1 Keating v. Smith, 5 Cush. 234 ; Leggett v. Perkins, 2 Comst. 305 ; Ware 
 n. Richardson, 3 Md. 508. 
 -In PennsylTania this distinction is not recognised, and to support a trust 
 
TRUSTS TO PAT RENTS, ETC. 141 
 
 *"It is now clearly settled, that wliere an estate is r^-,A^ 
 limited to trustees, and the words used are " in trust to 
 pay to" a specified person the rents and profits of the land, there 
 the trustees take the legal estate ; because they must receive, 
 before they can make the required payments ; but where the 
 words are " in trust to permit and sufi'er A. B. to take the rents 
 and profits," there the use is divested out of them, and executed 
 in the party, the purposes of the trust not requiring that the legal 
 estate should remain in them." (Per Parke, J., Barker v. Green- 
 wood, 4 M. & W. 429.) 
 
 A devise in trust to pay unto or else permit and suffer A. to 
 receive the rents and profits, vests the legal estate in A., and 
 not in the trustee. (Doe d. Leicester v. Biggs, 2 Taunt. 109.) 
 
 But a devise to trustees, in trust to permit A. to receive the 
 net or clear rents and profits, vests the legal estate in the trustees ; 
 it being presumed that the trustees are to receive the gross rents, 
 and after payment of outgoings to hand over the net rents to the 
 person entitled. (Barker v. Greenwood, 4 M. & W. 421 ; White 
 V. Parker, 1 Bing. N. C. 573, E. 0. L. R. vol. 27.) 
 
 So if the trustees are directed to pay taxes and repairs (Shap- 
 land V. Smith, 1 Bro. C. C. 75), or to pay all outgoings, to re- 
 pair and to let the premises (White v. Parker, 1 Bing N. C. 573, 
 E. C. L. R. vol. 27), they take the legal estate. 
 
 And where the devise was to trustees in trust to permit the 
 testator's widow to receive the rents and profits, and it was 
 declared that her receipt for the rents with the approbation of 
 the trustees should be good, it was held that the legal estate was 
 in the trustees. (Gregory v. Henderson, 4 Taunt. 772.) 
 
 as active, it is necessary that there should be some lawful purpose to he 
 subserved by it. If the whole beneficial interest is in the cestui que trust, 
 without restrictions as to the enjoyment of it, it will be considered as exe- 
 cuted, notwithstanding that it is a trust to receive and pay over : Rife v. 
 Geyer, 59 Penn. St. 396 ; Ogden's Appeal, 69 or 70 Id. ; 29 Leg. Int. 165. 
 
 In Ohio there is no statute of uses (Helfenstine v. Garrard, 70 Ohio 275), 
 and in Virginia the statute does not extend to devises. (Bass v. Scott, 2 
 Leigh 358 ; Jones v. Tatum, 19 Gratt. 732.) In these states therefore it is 
 in the discretion of the court to direct the trustee to convey the legal title 
 wherever it is deemed proper that it should be done. 
 
141 INDEFINITE TERMS. 
 
 Trust for separate use.— Wherever the beneficial interest is 
 given to the separate use 9f a married woman, the trustees are 
 held to take the legal estate for her protection. Thus, a devise 
 to trustees in trust to permit A. to receive the rents and profits 
 for her separate use, vests the legal estate in the trustee. (Har~ 
 ton V. Harton, 7 T. R. 652.y 
 
 * Indefinite terms of years. — " It has been often deter- 
 *142] ^jjjjg^ tjjat in devises to trustees it is not necessary that 
 the word 'heirs' should be inserted to carry the fee at law; for, 
 if the purposes of the trust cannot be satisfied without having a 
 fee, courts of law will so construe it." (Per Lord Hardwicke, 1 
 Ves. sen. 491.) Thus, a devise (in a will prior to 1838) unto and 
 to the use of A. in trust for B. and his heirs, gives A. the whole 
 legal fee simple. 
 
 In some cases, however, a devise to trustees in trust out of the 
 annual rents and profits to pay debts or to raise a sum of money, 
 was held to give the trustees, not the fee simple, but an estate for 
 an uncertain term of years, sufficient to raise and pay the re- 
 quired amount ; a construction based on the authority of Cor- 
 dall's Case, Cro. El. 316. Thus, in Doe d. White v. Simpson, 
 5 East 162, a devise to trustees in trust out of the annual rents 
 and profits to pay several annuities and a sum of 800?., with a 
 devise over after such payment, was held to give the trustees an 
 estate only for the lives of the annuitants, together with a term 
 of years sufficient to raise the 800?. And in Ackland v. Lutley, 
 9 Ad. & El. 879 (E. C. L. R. vol. 36), 2 M. & Gr. 937, a de- 
 vise to trustees in trust to pay a debt and legacies, to be paid as 
 soon as the clear rents and profits would admit, was considered 
 to vest in the trustees no more than a chattel interest, determin- 
 able when the debt and legacies were paid. But it seems prob- 
 able that in similar cases (even in wills prior to 1838) the trus- 
 tees would now be held to take the fee simple, and that the con- 
 struction giving an uncertain term of years to trustees would not 
 now be followed. 
 
 ' Ayer v. Ayer, 16 Pick. 330 ; Steacy v. Kioe, 27 Penn. St. 81 ; "Ware v. 
 Richardson, 3 Md. 508 ; Escheater v. Smith, 4 McCord 456. 
 
INDEFINITE TERMS. 142 
 
 And, with respect to -ffills made or republished on or after 
 January 1st, 1838, section 30 of the Wills Act enacts, that in no 
 case are trustees to take an indefinite term of years for the pur- 
 poses of the trust. 
 
 Stat. 1 Vict. c. 26, s. 30. "That, where any real estate 
 (other than or not being a presentation to a church) shall be de- 
 vised to any trustee or executor, such devise shall be construed 
 to pass the fee simple, or other the whole estate or interest which 
 the testator had power to dispose of by *will in such real r^-ij^q 
 estate, unless a definite term of years, absolute or deter- 
 minable, or an estate of freehold, shall thereby be given him, ex- 
 pressly or by implication." 
 
 The meaning of this section is, that any devise, under which 
 before the passing of the Act a trustee would have been held to 
 take an indefinite or uncertain term of years, shall now be con- 
 strued to pass the fee. 
 
 II. As regards the disposition of so much of the legal estate 
 as is not required to be vested in the trustees for the active pur- 
 poses of the trusts. 
 
 This question frequently arises in relation to the operation of 
 the rule in Shelley's Case. Thus, if lands be devised to trustees 
 and their heirs, in trust to pay the rents and profits to A. for 
 life, and after his decease in trust for the heirs male of the hody 
 of A., the question arises whether the remainder to the heirs 
 male of the body of A. is an equitable remainder, in which case 
 it will operate in conjunction with the equitable life estate of A. 
 to vest in A. an estate in . tail male, or a legal remainder, in 
 which case the heir male of the body will take by purchase : and 
 this question depends on another, viz., whether the whole legal 
 fee simple is vested in the trustees, or only an estate during the 
 life of A., commensurate with the active purposes of the trust. 
 
 It is settled that, in such a case, the legal estate or use exe- 
 cuted in the trustees is, in the absence of a contrary intention, 
 limited by implication to the life of A., and the remainders over 
 are legal remainders ; it being established, as a rule of construc- 
 tion (qualified, however, as regards wills made or republished 
 
143 RULE IN DOE V. NICHOLLS. 
 
 since 1837, by the operation of the 31st section of the "Wills Act 
 hereafter mentioned), that, — 
 
 Rule. Where real estate is devised to trustees, al- 
 though with words of inheritance, primd facie the trustees 
 take only so much of the legal estate as the purposes of 
 the trust require. (Doe d. Player v. *Nicholls, 1 
 *"^^*^ B. & C. 336 (E. C. L. R. vol. 8) ; Watson v. Pear- 
 son, 2 Exch. 581 ; Blagrave v. Blagrave, 4 Exch. 550.)^ 
 
 Thus, if lands be devised to trustees and their heirs, 
 in trust to pay the rents and profits to A. for life, and 
 after his decease in trust for B., the trustees take the 
 legal estate only during the life of A., and the estate of 
 B. is legal and not equitable. 
 
 So if the devise be to trustees and their heirs, in trust 
 to permit A. to receive the rents and profits for life, and 
 after his decease in trust for B., the trustees take no 
 estate. 
 
 So if (in a will prior to 1838) lands be devised to trustees and 
 their heirs, in trust to apply the rents and profits during the 
 minority of A. for his benefit, and "when A. shall attain the age 
 of twenty-one, in trust for A. and his heirs, the trustees take the 
 legal estate only during the minority of A. (Doe d. Player v. 
 Nicholls, 1 B. & C. 336, E. C. L. R. vol. 8.) 
 
 And if the devise be to. trustees in trust to pay the rents to A. 
 for life, and afterwards to apply the rents for the maintenance 
 of the children of A. during their minority, and when the 
 youngest child shall attain twenty-one, in trust for the children 
 of A. in fee, the estate of the trustees is limited to the life of A. 
 and the minority of the children. (Doe v. Cafe, 7 Exch. 675.) 
 
 " It may be laid down, as a general rule, that where an estate 
 is devised to trustees for particular purposes, the legal estate is 
 
 1 Thutston V. Thurston, 6 R. I. 299 ; Steacy v. Rice, 27 Penn. St. 81 ; 
 Bacon's Appeal, 57 Id. 504. 
 
ESTATE CO-EXTENSIVE "WITH TRUSTS. 144 
 
 vested in them as long as the execution of the trust requires it, 
 and no longer, and therefore, as soon as the trusts are satisfied, 
 it will vest in the person beneficially entitled to it." (Doe v. 
 Nicholls, 1 B. & 0. 336, E. 0. L. R. vol. 8.) 
 
 " It is conceded on both sides, that the rule laid down by this 
 Court in the case of Watson v. Pearson is perfectly correct, viz. , 
 that "where the purposes of the trust on which an estate is 
 devised to trustees are such as not *to require a fee in 
 them ; as, for instance, where the trust is to pay annul; '- 
 ties, or to pay over rents and profits to a party for life ; there, 
 if subject to the specified trusts, the estate is given over, the 
 parties taking under such devise over have been held to take 
 legal estates ; the estate given to the trustees (even when given 
 with words of inheritance) having been in such cases taken to 
 have been meant to be co-extensive only with the trusts to be 
 performed." 
 
 " Those cases, however, in which it is laid down that the 
 Courts look solely to the trust to be performed, even where there 
 are words of inheritance, must be read with this qualification, 
 that due effect is to be given to the language of the will, unless 
 we can collect from the context an intention to give a more lim- 
 ited estate." (Blagrave v. Blagrave, 4 Exch. 550.) 
 
 Contrary intention. — The rule may of course be excluded by 
 a clear intention to vest the legal estate in the trustees, irrespect- 
 ive of any active trusts reposed in them. 
 
 Thus, if lands be devised unto and to the use of A. and his 
 heirs in trust for B. and his heirs, the fee simple of the use is 
 executed in A., and B. takes only an equitable estate. (Doe v. 
 Field, 2 B. & Ad. 564, E. C. L. R. vol. 24.) 
 
 So, if copyhold lands (which are not within the Statute of 
 Uses) be devised to A. and his heirs in trust for B. and his heirs, 
 A. takes the legal estate. And in Houston v. Hughes, 6 B. & 
 Cr. 408, it was considered that, under a devise of freehold and 
 copyhold lands to A. and his heirs in trust for B. and his heirs, 
 the circumstance that A. took the legal estate in the copyholds 
 
145 TRUSTS TO PRESERVE CONTINGENT REMAINDERS. 
 
 ■was an argument in favor of his taking the legal estate in the 
 freeholds. 
 
 But even where, as in the above cases, an unequivocal inten- 
 tion appears to vest the legal estate in the trustees in the first 
 instance, yet, if, after a particular estate, there be a gift in re- 
 mainder by way of direct devise, the estate of the trustees may 
 be restricted by implication to the continuance of the particular 
 estate. As if the gift be, "I devise Whiteacre unto and to the 
 y,se of A. and his *heirs in trust for B. during his life, 
 -' and after his decease I devise Whiteacre to C." 
 
 So, in Doe d. Woodcock v. Barthrop, 5 Taunt. 382 (E. C. L. 
 R. vol. 1), where copyhold lands were devised to A. and his 
 heirs in trust for the separate use of B. for life, and subject 
 thereto the testator devised the premises to such uses as B. 
 should appoint ; it was held that the legal estate in the trustee 
 was limited by implication to the life of B. 
 
 Trusts to preserve contingent remainders. — The rule applies to 
 limitations to trustees in trust to preserve contingent remainders. 
 Thus, if lands be devised to A. for life, with remainder to trus- 
 tees and their heirs in trust to preserve contingent remainders, 
 with remainder to the first and other sons of A. in tail, and there 
 are no other contingent remainders subsequently limited, the 
 estate of the trustees, though not expressly limited to the life of 
 A., will be restricted to that period by implication, since the 
 purposes of the trust cannot continue longer : and the remainders 
 over will be legal and not equitable. 
 
 If, however, there were among the subsequent limitations con- 
 tingent remainders which would not necessarily vest (if at all) 
 during the life of A., the estate of the trustees would of course 
 not be restricted to that period. 
 
 And it seems that if the lands be devised to A. for life, with 
 remainder to trustees and their heirs in trust to preserve contin- 
 gent remainders, with remainder to the first and other sons of A. 
 in tail, with remainder to such persons and for sttch estates as A. 
 should appoint, the trustees would be held to take the legal fee 
 simple, inasmuch as A., in execution of the power of appoint- 
 
RECURRING TRUSTS. 146 
 
 ment, might introduce contingent remainders which would re- 
 quire protection. (Per Lord Kenyon, Doe v. Hicks, 7 T. R. 
 437 ; Venables v. Morris, Id.) 
 
 The application of the rule which restricts the estate of the 
 trustees to preserve contingent remainders, to the period during 
 which the remainders would require such protection, is not ex- 
 cluded by the fact, that the result of the estate of the trustees 
 being so restricted is to prevent *the supposed contingent p^-. ^,j 
 remainders from taking effect as such, which they would 
 have done if the estate of the trustees had not been restricted. 
 Thus, if lands be devised to A. for life, with remainder to trus- 
 tees and their heirs in trust to preserve contingent remainders, 
 with remainder to the heirs male of the body of A., or to the 
 issue of A., the estate of the trustees will be limited to the life of 
 A., although the result is that the remainder to the heirs of the 
 body or issue of A., being a legal remainder, will vest in A. him- 
 self, under the rule of Shelley's Case, whereas if the trustees 
 took the fee simple it would have taken effect as a contingent 
 remainder. (Nash v. Coates, 3 B. & Ad. 839 (E. 0. L. R. 
 vol 23) ; Haddelsey v. Adams, 22 B. 266.) 
 
 If lands be devised to trustees upon trusts not requiring the 
 legal fee to vest in them, and there is no trust expressly declared 
 to preserve contingent remainders, it would appear that the cir- 
 cumstance of contingent remainders being found among the lim- 
 itations of the beneficial interest is not sufficient ground for hold- 
 ing the trustees to take the legal estate in order to preserve such 
 contingent remainders. (See per Parke, J., Barker v. Greenwood, 
 4M. & W. 421.) 
 
 Recurring trusts. — The general rule is subject to an exception, 
 established by the case of Harton v. Harton, 7 T. R. 652, viz., 
 that where there are recurring trusts which require the legal es- 
 tate to be in the trustees, with intervening limitations which, 
 taken alone, would vest the legal estate in the persons benefi- 
 cially entitled, and there is no repetition, before each of the recur- 
 ring trusts, of the gift of the legal estate to the trustees, the legal 
 estate is held to be in the trustees throughout, and the interme- 
 diate estates are equitable and not legal. 
 
147 TRUSTS TO RAISE MONET. 
 
 Thus, if the devise be to trustees and their heirs in trust for the 
 separate use of A. for life, with remainder in trust for the heirs 
 of the body of A., with remainder in trust for the separate use of 
 B. for life, with remainder in trust for the heirs of the body of 
 B., inasmuch as the *trusts for separate use require the 
 -I legal estate to be in the trustees, the legal estate is held 
 to be in them throughout, and the limitation to the heirs of the. 
 body of A., being an equitable remainder, vests in A. an estate 
 tail under the rule in Shelley's Case ; whereas if the limitation 
 to the separate use of B. had been omitted, the legal estate in 
 the trustees would have stopped at the death of A., and the lim- 
 itation to the heirs of the body of A., being a legal estate, would 
 have taken effect as a contingent remainder. (Harton v. Harton, 
 7 T. R. 652 ; Hawkins v. Luscombe, 2 Sw. 391, per Lord El- 
 don ; Brown v. Whiteway, 8 Hare 145 ; Toller v. Atwood, 15 
 Q. B. 929, E. C. L. R. vol. 69.) 
 
 In Toller v. Atwood, 15 Q. B. 929 (E. C. L. R. vol. 69), it was 
 doubted whether in such a case the legal estate in the trustees 
 would extend beyond the last trust for the separate use of a 
 feme covert ; in other words, whether the limitation to the heirs 
 of the body of B., in the case supposed, if followed by no other 
 limitation requiring the legal estate to be in the trustees, would 
 be equitable or legal. 
 
 In Brown v, Whiteway, 8 Hare 145, the devise was to trustees 
 in trust to pay the rents to A. for life, with remainder in trust to 
 and for the use of B. for life, with remainder in trust to and for 
 the use of such persons, &c., as B. should appoint, with remain- 
 der in trust for the separate use of C. for life, with remainder in 
 trust to and for the use of the lieirs of the body of C, with vested 
 remainders over not requiring a legal estate in the trustees : it 
 was held that C. took an equitable estate tail, the legal estate 
 being in the trustees throughout : but qu. whether the trustees 
 were held to take the fee in order to preserve contingent remain- 
 ders which might be created under the power of appointment, or 
 solely by reason of the limitation to the separate use of C. 
 
 Trusts to raise money, ^c. — The rule which restricts the estate 
 taken by trustees to the quantity necessary for the performance 
 
INDEFINITE TERM OF YEARS. 148 
 
 of the trusts was formerly pushed to a great length, hy the adop- 
 tion of the inconvenient constructions *of an indefinite r:(ci4 
 term of years, and a determinable fee. 
 
 Indefinite term of years. — First, where the estate was limited 
 to trustees simplioiter, or to trustees and their executors or admin- 
 istrators, upon trust out of the annual rents and profits (only) to 
 %aise a given sum of money, pay debts or legacies, &c., with a 
 direct devise over of the beneficial interest : it was held that the 
 trustees took the legal estate only for an uncertain term of years 
 sufficient to raise the required sum, and that the estates of the 
 devisees in remainder were legal estates. The cases in which 
 this construction was adopted are Doe v. Simpson, 5 East 162, 
 where the devise was to trustees and their executors in trust out 
 of the rents and profits and arrears due to pay certain persons 
 800?. : Ackland v. Lutley, 9 Ad. & Ell. 879, (E. C. L. R. vol. 
 36) ; a devise to trustees in trust to let the premises, and out of 
 the rents to pay a debt and legacies, to be paid as soon as the 
 clear rents would admit, with a devise over from and after pay- 
 ment of the debts and legacies ; and Heardson v. Williamson, 1 
 Keen 33, a devise to trustees and their executors in trust to let, 
 and apply the rents in payment of mortgage debts, till the whole 
 should be paid by gradual receipt of the rents, with a devise over 
 after the debts should have been paid. 
 
 These cases have not been overruled, but the construction 
 which gives an uncertain term of years has often been disapproved 
 of, and it is scarcely probable that it would now be adopted, even 
 in a will made before 1838. The 30th section of the Wills Act 
 has abolished it, as regards wills made subsequently. 
 
 Determinable fee. — Secondly, where the devise was to trustees 
 and their heirs, in trust to pay debts or to raise a sum of money, 
 with limitations over, it was considered that the trustees might 
 take the fee simple only until the money required had been raised, 
 and when it should have been raised without a sale, that the legal 
 fee in the trustees would determine, and the devisees over take legal 
 estates. Thus, in Glover v. Monckton, 3 Bing. 13 (E. C. L. B. 
 vol. 11), where the devise was to trustees and their heirs in trust 
 
150 DETERMINABLE FEB. 
 
 to raise *7000?., with limitations over, it was held that 
 J the trustees took the fee simple until the 7000Z. should 
 have been raised. 
 
 But the construction which would give to the trustees in such 
 cases a determinable fee has been negatived by the cases of Doe 
 d. Davies v. Davies, 1 Q. B. 430 (E. C. L. E. vol. 41), and 
 Blagrave v. Blagrave, 4 Exch. 550. In Doe v. Davies, the de-* 
 vise was to trustees and their heirs in trust for several persons 
 successively for life, with remainder to the use of the trustees in 
 trust to preserve, &c., with remainder over; and upon further 
 trust by mortgage or demise, or out of the rents and profits, to 
 raise 80Z., to be applied in payment of the testator's debts : it 
 was held that the trustees took the legal fee, not determinable 
 upon the raising of the 80?. Patteson, J., said (p. 438) : " If 
 the devise be for purposes which are to last only for a certain 
 time, the use of the word heirs will not give a fee ; the devise will 
 be cut down to the time necessary for those purposes. But if a 
 fee be given in terms, with trusts which by their nature extend 
 over an indefinite time, it is not so : ifno particular time can be 
 fixed at which the trusts shall end, the estate cannot be cut 
 down. Here the trustees are to raised 80?. by mortgage or de- 
 mise of the real estate, or from the rents and profits, or by such 
 other ways and means as they shall think fit. It is not said when 
 the sum is to be raised and paid ; and if they can deal with the 
 legal estate in part for this purpose, and we cannot say what 
 part, they must have the whole." And these remarks were 
 approved by Lord Campbell in Poad v. Watson, 6 Ell. & Bl. 
 615 (E. 0. L. R. vol. 88). 
 
 In Blagrave v. Blagrave, 4 Exch. 550, the devise was to the 
 trustees and their heirs, in trust out of the rents and profits to 
 pay a jointure of 700Z. and certain annuities, and to raise 10,000?., 
 with power, if the personal estate should be insufficient to pay 
 debts and legacies, to raise the deficiency by mortgage of the 
 real estate ; and subject thereto in trust to pay the rents to A. 
 for life, and after his decease to stand seised of the estates " to 
 *1511 ^^^ "®^* following, viz., to the use of B. for life, &c. :" it 
 
 *was held that the trustees took the whole legal fee simple. 
 
TRUSTS TO PAY DEBTS. 151 
 
 and that the estates in remainder were equitable, inasmuch as 
 no certain period could be fixed at which the legaj. estate should 
 go over from the trustees — notwithstanding the manifest intent of 
 the testator that the devisees in remainder should take legal estates. 
 
 These cases appear to establish that, even in a will made before 
 1838, a devise to trustees in trust to pay debts or legacies, or to 
 raise a sum of money, vests in them the legal fee simple, and not 
 an estate determinable whenever the purposes of the trust shall 
 have been satisfied. 
 
 In Poad V. Watson, 6 Ell. & Bl. 618, Exch. Ch., (E.' C. L. 
 R. vol. 88), the devise was to trustees upon trusts requiring the 
 legal estate to continue in them only during the lives of certain 
 persons ; but the will gave to the trustees a power of reimburse- 
 ment out of the premises devised to them. The trustees having 
 mortgaged the property devised for a term of years to secure 
 300Z. due to them on the trust account, it was held that the term 
 was well created, the trustees either taking the fee simple or a 
 power to mortgage. 
 
 Trusts for payment of debts. — It may be considered as settled 
 that, in wills made as well before as since 1838, a devise to 
 trustees in trust to pay the testator's debts vests in them the 
 absolute legal fee. 
 
 But, on the other hand, a mere charge of debts on the lands 
 devised, the trustees not being directed to pay the debts, does not 
 enlarge the estate of the trustees.* (Kenrick v. Lord Beauclerk, 
 3 B. & P. 178.) 
 
 " It does not appear that the 14th and 16th sections of the Act 22 & 23 
 Vict. c. 35 (Property and Trustees' Belief Amendment Act), will have any 
 effect on the construction of the estates taken hy trustees under a devise to 
 them. The 14th section enacts that where the testator shall have charged 
 real estate with debts, legacies, or the raising of a sum of money, and " shall 
 have devised the estate so charged to any trustee or trustees for the whole 
 of his estate or interest therein," the trustees shall have power to raise the 
 money by sale or mortgage. The 16th section enacts that if the testator 
 having created such a charge shall not have devised the estate " in such 
 terms as that his whole estate or interest therein shall have become vested 
 in any trustee or trustees," the executors shall have the like power of 
 raising the money. The question, what estate the trustees take, appears 
 to be left untouched by these sections. 
 
152 DIRECTIONS TO PAY DEBTS. 
 
 *In Smith V. Smith, 11 0. B. N. S. 121 (E. C. L. R. 
 -■ vol. 103), the testator by a will made before 1838, devised 
 all his real estate to trustees " in trust to and for the uses there- 
 after mentioned, that is to say, after payment of my debts," &e., 
 the testator devised Whiteacre to A. B. without words of limita- 
 tion ; it was held that the words " after payment of debts " 
 vested the legal fee in the trustees, and that A. B. took an equit- 
 ahle estate in fee in Whiteacre, and not a legal estate for life only. 
 
 In Spence v. Spence, 10 W. R. 605, C. P.^ the testator, after 
 directing his debts to be paid by his executors, devised his real 
 estate to trustees in trust to pay the rents to A. for life, and after 
 his decease in trust for the right heirs of A., and appointed the 
 trustees to be executors ; it was held that the trustees took the 
 whole legal estate, and therefore that A. had an equitable estate 
 in fee. The will was subsequent to 1887, but as the rents and 
 profits were given to A. for life, the 31st section of the Wills Act 
 had no influence on the question. 
 
 The strongest case, however, on this point is Creaton v. Creaton, 
 3 Sm. & G. 386, where it was held that under a devise to trustees 
 in trust to pay the rents to A. for life, with remainder in trust 
 for B. in fee, a direction that the testator's debts should be paid 
 (without saying by whom) at the beginning of the will, the trustees 
 being also executors, was sufficient to vest in the trustees the 
 whole legal fee. 
 
 But, of course, a direction to the executors and trustees to pay 
 the testator's debts will not give the trustees the legal fee, where 
 there is an express limitation of the estate to be taken by them ; 
 as if the devise be to trustees expressly during the life of A. in 
 trust for him, with remainder to B. in fee simple. (Doe v. 
 Claridge, 6 0. B. 641, E. C. L. R. vol. 60.) 
 
 And a direction that executors sJiall sell lands for payment of 
 debts, unaccompanied by a devise to.them, confers only a power 
 and not an estate. (1 Sugd. Pow. 128, 6th ed. ; Doe v. Shotter, 
 8 Ad. & Ell. 905, E. C. L. R. vol. 35.) 
 
 1 Reported 12 Com. B. N. S. (E. C. L. R. vol. 104) 199. 
 
POWERS OE SALE, LEASING, ETC. 153 
 
 * Trust to pay annuities.-r-'hi wills made before Janu- p^^ ^o 
 ary 1, 1838, a devise to trustees and their heirs in trust 
 to pay an annuity out of the annual rents and profits only, and 
 subject thereto in trust for A. in fee, the annuity not being a 
 charge on the corpus of the land, vests the legal estate in the 
 trustees only during the life of the annuitant. (Doe v, Simpson, 
 5 East 162 ; Adams v. Adams, 6 Q, B. 860, E. C. L. R. vol. 51.) 
 
 And if the trust be to pay several annuities, the trustees take 
 the legal estate only for the lives of the respective annuitants. 
 (Doe V. Simpson, 5 East 162.) 
 
 But, if the annuity be a charge on the corpus of the land, as 
 if lands be devised to trustees in trust to pay thereout an annuity 
 to A., and subject thereto in trust for B., the trustees take the 
 fee simple. (Fenwick v. Potts, 8 D. M. G. 506.) 
 
 And it is to be remembered, that a direction to pay an annuity 
 out of rents and profits may create a charge on the corpus, the 
 words "rents and profits" not being restricted to annual rents 
 and profits. (Phillips v. Gutteridge, 3 De G. J. S. 332.} 
 
 Powers of sale, leasing, ,^o. — Where a devise to trustees upon 
 trusts which, standing alone, would not vest in them the whole 
 legal estate, is followed by a power to sell, lease or mortgage, 
 not limited to the period of continuance of the active trusts, the 
 trustees are held to take the whole legal fee, and not a mere 
 limited estate with a superadded power of sale or leasing. (Doe 
 d. Cadogan v. Ewart, 7 Ad. & E. 636 (E. C. L. R. vol. 34) ; 
 Watson V. Pearson, 2 Exch. 581.) Thus, if the devise be to 
 trustees and their heirs upon trust to pay the rents to A. fqr life, 
 and after his decease to' apply the rents for the maintenance of 
 his children during their minority, and when the children attain 
 twenty-one, upon trust for them in fee, and a general power of 
 sale is given to the trustees, they take the whole legal fee sim- 
 ple, and not an estate limited to the hfe of A. and the minority 
 of his children. (Watson v. Pearson, 2 Exch. 581.) Parke J., 
 said (lb. p. 598) : *" The general rule is, that where an j-^jg^ 
 estate is given to trustees, all the trusts which they are to 
 perform must, primd facie at least, be performed by them by 
 
 12 
 
154 POWERS OF LEASING. 
 
 virtue and in respect of the estate vested in them. Here the 
 interest devised is in terms at least an interest in fee simple. 
 One of the duties imposed on the trustees is, if they should deem 
 it expedient, to sell the estate. This they can only do hy exer- 
 cising the dominion over the , fee simple ; and in such a case, 
 even without words of inheritance, there would be strong reason 
 for holding that they were intended to take the fee. But it is 
 not necessary here to go that length. The fee is in terms de- 
 vised to them ; and it would he a very strained and artiiicial 
 construction to hold, first, that the natural meaning of the words 
 is to he cut down, because they would give an estate more exten- 
 sive than the trust requires ; and ^then, when the trust does in 
 fact require the fee simple, to hold that that must be supplied by 
 way of power, defeating the estate of the subsequent devisees, 
 and not out of the interest of the trustees." * 
 
 The strongest case of this kind is Rackham v. Siddall, 1 Mac. 
 & G. 607, where a devise to trustees and their heirs expressly to 
 the use of A. for life, with remainder to the use of the trustees 
 in trust to preserve, &c., with remainders over, with a general 
 power of sale reserved to thetrustees, was held to vest in them 
 the fee, and not a mere power. 
 
 Powers, of leasing. — Similarly a devise to trustees, followed by 
 a general power of leasing, vests. in them the fee simple. (Doe 
 V. Willan, 2 B. & Aid. 84 ; Doe d. Walbank, 2 B. & Ad. 554 
 (B. 0. L. R. vol. 22) ; Riley t». Garnett, 8 De G. & Sm. 629.f 
 
 But, if the power to sell or lease, be restricted by implication 
 to the period during w^hich the active trusts are to continue, the 
 trustees will not take the fee. Thus, in Doe v. Cafe, 7 Exch. 
 675, under a devise to trustees in trust 'to pay the rents to A. 
 for life, with a trust for mainteiiance during the minority of his 
 children, with remainder to the children at twenty-one, a power 
 ^-i^tr\ °^ leasing the estate for twenty-one years was held to be 
 J *exercisable' only during the life of A. and the minority 
 of the children, and the remainders over were held to be legal 
 .estates. ■•.'■' 
 
 'Killam ». Allen, 52 Barb.- 606 ; Cleveland v. Hallet, 6 Gush. 404. 
 -""Deering v. Adams,'37-Me. 269 ; Pearce v. Savage, 45 Id. 98. 
 
TRUSTS TO CONVEY— NEW LAW. 155 
 
 And in Doe v. Harris, 2 D. & Ey. 36, a power to the trustees 
 to lease for seven years, and to sell at any time after the death 
 of the testator, was sinailarly held to be restricted to the minori- 
 ties of the cestuis que trust, and not to imply that the legal estate 
 was to continue in the trustees after that period. 
 
 Trusts to convey, ^e. — If the devise be to trustees in trust to 
 pay the rents and profits to A. for life, and after his death to 
 convey the estate to B., the trustees of course take the fee simple. 
 (Doe d. Shelley v. Edlin, 4 Ad. & E. 582, E. C. L. R. vol. 31.)' 
 
 But under a devise to trustees in trust to permit A. to receive 
 the rents for life, and after his decease to convey to B., it has 
 been held that the trustees take the fee simple in remainder only, 
 and that the estate of A. is legal. (Doe d. Noble v. Bolton, 11 
 Ad. & E. 188, E. C. L. R. vol. 39.) 
 
 In Ward v. Burbury, 18 B. 190, the devise was to trustees 
 and their heirs, in trust to sell and divide the proceeds among 
 the children of A., but if A. should die without issue, in trust to 
 pay the rents and profits for the maintenance of B. during his 
 minority, with a devise of the estate to B. on attaining twenty- 
 one. A. having died without issue, it was held that the estate 
 of the trustees ceased, and the legal estate vested in B. on his 
 attaining twenty-one. 
 
 New Law. — The general rule above considered, that the legal 
 estate vested in trustees is limited to the amount necessary for 
 the performance of the active trusts . reposed in them, is some- 
 what, though not greatly, modified by the 31st section of the 
 "Wills Act, which enacts that, — 
 
 Rule. In wills made or republished on or after Janiiary 
 1st, 1838, 
 
 " Where any real estate shall be devised to a trustee, 
 without any express limitation of the estate *to be ^^^^q 
 taken by such trustee, and the beneficial interest 
 
 1 Sears «. Russell, 8 Gray 89. But the contrary Was held in Pennsyl- 
 vania: Bacon's Appeal, 57 Penn, St. 512 ; Westcott v. Edmunds, 68 Id. 36. 
 
156 SECTION 31 OE WILLS ACT. 
 
 in such real estate, or in the surplus rents and profits 
 thereof, shall not be given to any person for life, or such 
 beneficial interest shall be given to any person for life, 
 but the purposes of the trust may continue beyond the 
 life of such person, such devise shall be construed to vest 
 in such trustee the fee simple or other the whole legal 
 estate which the testator had power to dispose of by will 
 in such real estate, and not an estate determinable when 
 the purposes of the trust shall be satisfied." (Stat. 1 
 Vict. c. 26, s. 31.) 
 
 Sections 30 and 31 compared. — The 30th and 31st sections 
 of the Wills Act have been described as obscure and even con- 
 flicting: their meaning, however, ■will be apprehended by ob- 
 serving, that the 30th section, ■which speaks of a devise passing 
 " the fee simple or other the whole estate or interest of the tes- 
 tator," relates to the quantity of estate to be taken by a trustee • 
 for the purposes of the trust; while the 31st section, which 
 declares that a devise shall vest in trustees " the fee simple or 
 other the whole legal estate " in the premises devised, relates to 
 the disposition of the legal estate not required for the purposes 
 of the trust. The 30th section enacts that- in no case shall 
 trustees or executors be held, for the purposes of the trust, to 
 take an indefinite term of years : the 31st section enacts that 
 wltere the estate of the trustees is not expressly limited, they 
 shall in all cases take either an estate determinable on the life 
 of a person taking a beneficial life interest in the property, or 
 the absolute legal estate in fee simple. 
 
 Effect of the 31g;t section. — The 81st section seems to have 
 been chiefly aimed at the doctrine, now (as before observed) 
 abandoned, of a determinable fee. Its operation in other re- 
 spects will be as follows. 
 
 *1571 ^^^' ^^^ ordinary case of a devise to trustees in trust 
 *to pay the rents and profits to A. for life, and after his 
 decease in trust for B. and his heirs, is left unaltered : the legal 
 estate will still vest in B. after the death of A. 
 
EFFECT OF SECTION 31. 157 
 
 So, in the case of a devise to A. for life, with remainder to 
 trustees and their heirs in trust to preserve contingent remain- 
 ders, with remainder to the first and other sons of A. in tail, 
 with vested remainders over : the estate of the trustees to pre- 
 serve will still be restricted by implication to the life of A. 
 
 2dly. Trusts to pay annuities will be altered. A devise to 
 trustees in trust to pay an annuity to A. for life, and subject 
 thereto in trust for B., will now vest in the trustees the whole 
 legal fee simple, and not an estate during the life of the annui- 
 tant, although the annuity be payable out of the annual rents 
 and profits only. 
 
 3dly. Trusts during minority will present a difference. If the 
 ^devise be to trustees in trust to apply the rents and profits for 
 the maintenance of A. during his minority, and when A. attains 
 twenty-one in trust for A. during Ms life, with remainders over, 
 the legal estate will still as before vest in A. on his attaining 
 twenty-one, inasmuch as the beneficial interest is given to him 
 for life, and the purposes of the trust cannot continue longer. 
 
 But if the devise be (after the trust during minority) in trust 
 for A. on his attaining twenty-one, in fee or in tail, and not for 
 life only, the section will apply, and the whole legal estate will 
 remain in the trustees, so that the estate of A. will be equitable 
 only. 
 
 It may be a question whether, if the trusts declared are to pay 
 the rents and profits to several persons (not to one only) succes- 
 sively for life, with remainders over, the legal estate will vest *in 
 the trustees in fee simple or for the lives of the respective per- 
 sons taking beneficial life interests. 
 
 The section appears to apply to every case where there is no 
 express limitation of the estate to be taken by the trustee, 
 although the gifts over to the persons beneficially entitled may 
 be in the form of a direct devise to them. Thus, if the gift be, 
 " I devise Whiteacre to A. and his *heirs in trust to ap- 
 ply the rents and profits during the minority of B. for L 
 his benefit, and when B. attains twenty-one I devise Whiteacre 
 to B.," it would appear that the trustees must, notwithstanding 
 the latter words, take the fee by force of the 31st section. 
 
158 DEVISES TO TRUSTEES BY IMPLICATION. 
 
 Devise ly implication. — If property be given- to the separate 
 use of a married ■woman, a direction that certain persons shall be 
 trustees for her is sufficient to vest in them the legal estate in the 
 property. (Ex parte Wynch, 5 D. M. G. 188.)i 
 
 If there is a devise by will to trustees, and by a codicil the 
 appointment of trustees is revoked and other trustees substituted, 
 this is sufficient to vest the estate in the new trustees. (Re Tur- 
 ner, 2 De G. F. & J. 52T.) 
 
 ' AValker ». Whiting, 23 Pick. 313 ; Fay v. Taft, 12 Cush. 448. 
 
 Where rents and profits of land are devised, and there appears an inten- 
 tion that they shall be received by the devisee through the medium of 
 certain persons, e. g., executors, the latter take the legal estate : Craig v. 
 Craig, 3 Barb. Ch. 94. 
 
 Where there is no devise made, except on the happening of a future 
 event, and certain duties and powers respecting the estate are in the 
 meanwhile imposed upon others, a devise of the legal estate to the latter 
 ■will be implied : Deering v. Adams, 37 Me. 270. 
 
 But wliere the duties imposed can be discharged by virtue of a naked 
 power, no devise will be implied, especially if the trust would be illegal; 
 Tucker v. Tucker, 1 Said. 408-, Martin v. Martin, 43 Barb. 184. 
 
*CHAPTER XIV. [*159 
 
 . PRECATORY TRUSTS. 
 
 If a testator expresses a wish only with respect to the applica- 
 tion of property, without imposing a command or creating a 
 trust, it is probable that in most cases he intends to leave the 
 parties at liberty to carry out his wishes or not, as they may 
 think fit: or at least tp impose only a moral, and not a legal 
 obligation. The Courts, however, lean to the construction which 
 regards the testator's wishes as meant to be imperative on those 
 to whom they are addressed : and it is a rule that, — 
 
 Rule. The expression of a wish or desire on the part 
 of the testator, accompanying a devise or hequest, that a 
 particular application wUl be made of the property, is 
 frimA facie considered as obligatory, and creates a trust, 
 unless an intention appear to the contrary. (Malin v. 
 Keighley, 2 Ves. 333; Knight v. Boughton, 11 CI. &.F. 
 513 ; Knight v. Knight, 3 B. 148; Briggs v. Penny, 3 
 Mac. & a. 546 ; Gary v. Gary, 2 Sch. & Lef. 189.) 
 
 Thus, " if a testator gives 1000^. to A. B., desiring, 
 wishing, recommending, or hoping, that A. B. will at his 
 death give the same sum or any certain part of it to G. 
 D., it is considered that G. D. is an object of the testa- 
 tor's bounty, and A. B. is a trustee for him." (Knight 
 V. Knight, 3 B. 173.)i 
 
 1 The English doctrine on this sulrjeot has been adopted in some of the 
 Amcr.can states: Cole v. Littlefield, 35 Me. 445; Erickson v. Willard, 1 
 
159 WORDS OF RECOMMENDATION. 
 
 *1 fiOl " ■'■ ^^^^ ^^y down the rule as broad as this ; wherever 
 *any person gives property, and points out the object, the 
 property, and the way in which it shall go, that does create a 
 trust, unless he shows clearly that his desire expressed is to be 
 controlled by the party, and that he shall have an option to 
 defeat it. The word ' recommend' proves desire, and does not 
 prove discretion. If a testator shows his desire that a thing 
 shall be done, unless there are plain express words or necessary 
 implication that he does not mean to take away the discretion, 
 but intends to leave it to be defeated, the party shall be con- 
 sidered as acting under a trust. I will not criticise upon the 
 words. 'Recommend' is a request and more. If I request a 
 
 N. H. 229 ; Van Amee c. Jackson, 35 Vt. 177 ; Dominick v. Sayre, 3 Sandf. 
 S. C. 560 ; Negroes v. Plummer, 17 Md. 176 ; Harrisons v. Harrison, 2 
 Gratt. 13 ; Ingram v. Fraley, 29 Ga. 553 ; Brunson.c. Hunter, 2 Hill Ch. 
 490 ; Lucas v. Lockhart, 10 Sm. & M. 470. 
 
 It is acknowledged, however, in England, that the application of this 
 rule defeats as often, perhaps, as it gives effect to the intention of the tes- 
 tator (Meredith v. Heneage, 1 Sim. 551) ; and in some of our states the 
 rule is reversed, and it is held, that words expressive of wish and desire 
 are not primd facie imperative : Gilbert v. Chapin, 19 Conn. 346 ; Van 
 Duyne B. Van Duyne, 1 M'Cart. 405 ; Pennock's Estate, 20 Penn. St. 268 ; 
 Burt V. Herron, 66 Id. 402 ; Lines v. Darden, 5 Fla. 74 ; Ellis v. Ellis, 15 
 Ala. 300 ; McEee v. Means, 34 Ala. 864. 
 
 A hope or wish may be imperative " if addressed to an executor or trus- 
 tee, the trust being created, or if coupled with other expressions indicat- 
 ing a clear intention that they shall operate as a command. But standing 
 alone, and addressed to a legatee, to whom the property is given, in terms 
 importing an absolute gift, they are not imperative :" Van Duyne v. Van 
 Duyne, 1 M'Cart. 405. 
 
 " "Words expressive of desire, recommendation and confidence are not 
 words of technical, but of common parlance, and are not primlt facie suffi- 
 cient to convert a devise or bequest into a trust. They may amount to a 
 declaration of trust when it appears, from other parts of the will, that the 
 testator intended not to commit the estate to the devisee or legatee, or the 
 ultimate disposal of it to his kindness, justice, or discretion :" Pennock's 
 Estate, 20 Pehn. St. 268. But when addressed to an executor such words 
 are imperative : Burt v. Herron, 66 Id. 402. 
 
 The word "will" has an imperative force, and is not to be classed 
 amongst precatory words : McRee v. Means, 34 Ala. 364. 
 
PRECATORY TRUSTS. 160 
 
 man to do anything, I recommend it; and vice versd." (Per 
 Lord Alvanley, Malim v. Keighley, 2 Ves. jun. 335.) 
 
 In Briggs v. Penny, 3 Mac. & G. 554, Truro, L. C, said : " I 
 conceive the rule of construction to be, that words accompanying 
 a gift or bequest, expressive of confidence or belief, or desire or 
 hope, that a particular application will be made of such bequest, 
 will be deemed to import a trust upon these conditions, first, that 
 they are so used as to exclude all option or discretion on the 
 party who is to act, as to his acting according to them or not ; 
 secondly, the subject must be certain ; and thirdly, the objects 
 expressed fnust not be too vague or indefinite to be enforced." 
 But this formula is perhaps not strictly accurate : for the rule 
 is, not that a trust is created, if the expressions used exclude dis- 
 cretion (which is of course), but that precatory expressions shall, 
 primd facte, be considered to exclude discretion ; and a preca- 
 tory trust may be created, as will appear, though the quantum 
 of interest to be taken under it be uncertain, or the objects of it 
 unascertained. 
 
 Examples. — Thus a trust has been held to be created by the 
 following expressions : — 
 
 Recommend. — Where the gift was, " I bequeath to my daughter 
 A. the sum of 10,000?., and I recommend to my said daughter 
 and her husband that they do forthwith settle and assure the said 
 sum of 10,'OOOZ., together also *with such sum of money 
 of his own as the said (husband) shall choose, for the bene- 
 fit of my said daughter A. and her children :" it was held that a 
 trust was created as to the 10,000?., whether the husband settled 
 anything besides or not : and therefore that the gift did not 
 lapse by the death of A. in the testator's lifetime. (Ford v. 
 Fowler, 3 B. 146.) So, where the gift was, " The whole of my 
 property to be given to my sister, to be hers independent of any 
 husband: and I earnestly recommend her to take such measures 
 as she may deem best for making it sure that whatever she may 
 inherit under this my will may go at her decease to her children." 
 (Cholmondeley v. Cholmondeley, 14 Sim. 590.) 
 
 Bequest.— '' Knd. it is my dying request to the said A., that if 
 he shall die without issue living at his death, the said A. do dis- 
 
161 PRECATORY TRUSTS. 
 
 pose of -what fortune he stall receive under this my will to and 
 among the descendants of my late aunt B,, in such manner and 
 proportions as he shall think proper." (Pierson v. Garnet, 2 
 Bro. C. C. 38, 226.) "I appoint the said property as follows, 
 viz., the whole to my husband absolutely ; but it is my request to 
 him that after reserving for his own use the sum of 2000Z., he 
 will make such disposition of the remainder by will or settlement 
 as he may deem most desirable to carry out my wishes often 
 expressed to him." (Bernard v. Minshull, Johns. 276.) 
 
 Desire. — " And it is my absolute desire that my sister A. be- 
 queaths at her own death to those of her own family what she 
 has in her power to dispose of that was mine, provided they 
 behave well to her." (Cruwys v. Colman, 9 Ves. 319.) 
 
 Entreat. — " The property of the said stock and the free dis- 
 posal thereof, save the prayer hereinafter contained, to be to the 
 
 survivor of A. and B convinced of the high sense 
 
 of honor, the probity and affection of my son-in-law A., I entreat 
 him, &c." (Prevost v. Clarke, 2 Mad. 458.) 
 
 Advise. — " I give to A. all my real and personal property and 
 
 appoint him my sole executor, and after my death do advise him 
 
 to settle it upon himself and his issue *male by his present 
 
 -I wife, and for want of such issue on E. and his issue male, 
 
 &c." (Parker v. Bolton, 5 L. J. N. S. Ch. 98.) 
 
 Confidence. — So, where the gift was " I desire and bequeath 
 all my estate and effects to my wife, her heirs, executors, or 
 administrators, to and for her sole use and benefit, in full oonfir 
 denee that she my said wife will in every respect appropriate and 
 apply the same unto and for the benefit of all my children," 
 the widow was held to take a life interest only, with a power of 
 appointment among the children. (Wace v. Mallard, 21 L. J. 
 Ch. 355.) So, in Gully v. Cregoe, 24 B. 185, under a gift to 
 the widow, "as to and for her own sole use and benefit for ever, 
 feeling assured and having every confidence that she will here- 
 after dispose of the same fairly and equitably amongst my two 
 daughters and their children," the same construction was adopted. 
 
 Trusting. — So, a bequest of stock to A., "trusting that he 
 will preserve the same so that after his decease it may go and be 
 
DESIEE NOT IMPERATIVE. 162 
 
 equally divided among his four children." (Baker v. Moslev 12 
 Jur. 740.) 
 
 Mt doubting.— 8o, a devise to A., " not doubting, in case he 
 should have no children, but that he will dispose and give my said 
 real estate to the female descendants of B., in such part or parts 
 and in such manner as he shall think fit, in preference to any 
 descendants in his own female line." (Parsons v. Baker, 18 
 Ves. 476.) 
 
 Well knowing.—" I bequeath the same to A., her executors, 
 administrators, and assigns, well knowing that she will make a 
 good use and dispose of it in accordance with my views and 
 wishes." (Briggs v. Penny, 3 Mac. k G. 546.) 
 
 Roping. — The word "hoping" is sufficient to create a preca- 
 tory trust. (Harland v. Trigg, 1 Bro. C. C. 142.) 
 
 Power to appoint.— In Brook v. Brook, 3 Sm. & G. 280, a 
 devise to a married woman for her separate use, " with power for 
 her to appoint the same to her husband and children in such way 
 and in such proportions as she may think fit:" and in Howorth 
 V. Dewell, 29 B. 18, a *devise to the widow with power i-hc-ico 
 for her to appoint the same to the testator's children for 
 such estates, &c., as she should in her discretion see most fitting 
 and proper : were held not to create a precatory trust. Sed qu. 
 
 Contrary intention. — If the expression of the testator's desire 
 is accompanied by other words, showing clearly that he did not 
 intend the wish to be imperative, but that having expressed it he 
 meant to leave it to the legatee to act thereon or not at his dis- 
 cretion, no trust will be created.^ 
 
 As in Meredith v. Heneage, 1 Sim. 542 ; 10 Price 306, H. 
 L., where the testator, after entreating his wife to settle such 
 part of his real estate as she should think fit in a certain manner 
 (which was held not to create a trust by reason of the uncer- 
 tainty of subject) devised all his estate to her " unfettered and 
 
 ^ In the construction of the words, " I desire that the said W. should at 
 his discretion appropriate," &c. It was held that the discretion related 
 not to the performance of the duty, but to the manner of its performance : 
 Erickson v. Willard, 1 N. H. 229. 
 
163 UNCEKTAINTT OF SUBJECT. 
 
 unlimited, in full confidence and with the firmest persuasion " 
 that she would devise the whole to such of the testator's heirs as 
 she should think fit : it was held that no trust was created. So, 
 where the words were, " I trust to the liberality of my succes- 
 sors to reward any other of my old servants and tenants, and to 
 their justice in continuing the estate in the male succession." 
 (Knight V. Boughton, 11 CI. & F. 513.) So, where the gift was 
 to the testator's wife " to and for her own absolute use, benefit, 
 and disposal, . . . and whereas I have hereby manifested abun- 
 dant proof of entire confidence in my said wife by thus giving 
 her the sovereign control over the whole of my property for her 
 sole use and benefit, . . . but nevertheless I earnestly conjure 
 her, &c." (Winch v. Brutton, 14 Sim. 379.)^ 
 
 In Johnston v. Rowlands, 2 De G. & Sm. 356, a gift to the 
 wife of 2000Z. " to be disposed of by her will in such way as she 
 shall think proper, but I recommend her to dispose of one half 
 thereof to her own relations, and the other half amongst such of 
 my relations as she shall think proper," was held not to create 
 a trust. 
 
 In Wace M. Mallard, 21 L. J. Ch. 355, and Gully v. Cregoe, 
 
 24 B. 185, it was held that under a gift to A. for *her sole 
 
 *1641 
 
 J use and benefit, in confidence that she will dispose thereof 
 
 at her decease among her children, A. takes the beneficial interest 
 for life only, and the words "for her sole use and benefit" do 
 not negative the creation of a trust in remainder. 
 
 But where the bequest was to A. for her sole use, &c., in con- 
 fidence that she will dispose thereof for the joint benefit of her- 
 self and her children, it was considered that no precatory trust 
 was raised. ("Webb v. Wools, 2 Sim. N. S. 267.) 
 
 Uncertainty of amount. — " The indefinite nature and quantum 
 of the subject, and the indefinite nature of the objects, are always 
 used by the Court as evidence that the mind of the testator was 
 
 ' See Easton v. Watts, L. R. 4 Eq. 151 ; Harper v. Phelps, 21 Conn. 
 269. 
 
 In like manner from the context it may appear that the words " in 
 trust" were not intended to create a technical trust : Freedley's Appeal, 
 60 Penn. St. 344. 
 
UNCERTAINTY OF AMOUNT. 164 
 
 not to create a trust." (Per Lord Eldon, Morice v. Bishop of 
 Durham, 10 Ves. 536.) 
 
 Thus, where a gift is made to a person, " not doubting but 
 that she will dispose of what shall he left at her death to our two 
 grandchildren." (Wynne v. Hawkins, 1 Bro. 0. C. 179), or 
 with a request that the legatee will give " what shall be remain- 
 ing " (Green v. Marsden, 1 Drew. 647), or that he will give 
 "the hulk of my said residuary estate" (Palmer v. Simmonds, 2 
 Drew. 221), or, " what money or property she may have saved 
 out of the income hereinbefore given her " (Cowman v. Harrison, 
 10 Hare 234) : it has been held that no precatory trust is 
 raised.' 
 
 In Lechmere v. Lavie, 2 My. & K. .197, the words " If they 
 die single of course they will leave what they have among their 
 brothers and sisters, " were held not to mean the property taken 
 under the bequest, but any property the legatees might possess 
 at their death ; and therefore no trust was held to be created. 
 But, in Horwood v. West, 1 S. & St. 387, where the bequest 
 was to the testator's wife, relying on her to settle for her sepa- 
 rate use, in case of her second marriagtf, " whatever she should 
 possess herself of " by virtue of his will, with a recommendation 
 to her to dispose of by will in a certain manner " what she should 
 die possessed of" under the will, it *was held that the r:^i..c 
 recommendation was not confined to what, if anything, 
 happened to remain undisposed of at her death, but extended to 
 the whole property, and that a vahd trust was created. 
 
 Again, it has been held that no precatory trust was created by 
 the following expressions : — " recommending to her and not 
 doubting but that she will consider my near relations, should 
 she survive me " (Sale v. Moore, 1 Sim. 534): trusting that her 
 affections would induce her to make our said daughter her prin- 
 cipal heir " (Hoy v. Master, 6 Sim. 568) : " well knowing that 
 he will discharge the trust reposed in him by rememhering my 
 
 ^ Pennock's Estate, 20 Penn. St. 268 ; Lines v. Darden, 5 Fla. 73. In 
 Gilbert v, Chapin, 19 Conn. 346, it was held that an uncertainty as to the 
 proportions in which the parties are to take was sufiScient to take the case 
 out of the rule, if it were to be considered the law of that state. 
 
165 TRUST rOK MAINTENANCE. 
 
 children" (Bardswell v. Bardswell, 9 Sim. 819): "having full 
 confidence in her sufficient and judicious provision for my dear 
 children." (Fox v. Fox, 27 B. 301.) 
 
 Trusts for maintenance, ^c. — But a trust may he created, 
 although the quantum of interest to he taken under it may be 
 indefinite. "Whatever diflBculties might originally have been 
 supposed to exist in the way of a court of equity enforcing a 
 trust, the extent of which was unascertained, the cases appear 
 clearly to decide that a court of equity can measure the extent 
 of interest which an adult as well as an infant takes under a 
 trust for his support, maintenance, advancement, provision, or 
 other like indefinite expression, applicable to a fund larger, con- 
 fessedly, than the party entitled to the support, maintenance, 
 or advancement can claim, and some interest in which is given 
 to another person." (Per Wigram, V.-C, Thorp v. Owen, 2 
 Hare 610.) 
 
 And a trust for maintenance, &c., may be created by preca- 
 tory words. Thus, in Foley v. Parry, 2 My. & K. 138, the 
 words, "and it is my particular wish and request that my dear 
 wife and A. will superintend and take care of the education of 
 B., so as to fit him for any respectable profession or employ- 
 ment," were held to create a charge on the interest taken by 
 the testator's widow under the will. 
 
 A gift to A., to be disposed of for the benefit of herself and 
 her children, gives the children an interest in the *fund5 
 ■J and as between A. and her children she is either a trustee 
 with a large discretion as to the application of the fund, or 
 has a power in favor of the children subject to a life interest 
 in herself. (Crockett v. Crockett, 2 Phill. 553 ; Raikes v. Ward, 
 1 Hare 445 ; Woods v. Woods, 1 My. & Cr. 401. )i 
 
 But a gift to A., to enable her to maintain or provide for 
 her children is an absolute legacy to A., with the motive only 
 pointed out. (Thorp v. Owen, 2 Hare 610 ; Benson v. Whittam, 
 5 Sim. 22.)^ 
 
 ' A gift to A. "for her benefit and support, and the support of my son 
 J.," creates a trust as to one half the property for the support of J. : Loring 
 V. Loring, 100 Mass. 340. 
 
 ^ Mason v. Sadler, 6 Jones Bq. 150. 
 
TJNCERTAINTY OP OBJECT. 166 
 
 . Where the interest of a fund is given to a parent, to he 
 affiled for or towards the maintenance or education of chil- 
 dren, the principal of the fund being given to the children in 
 remainder, the parent is in general entitled to receive the in- 
 come subject to no account, provided he discharges the duty of 
 maintaining and educating the children. (Browne v. Paull, 1. 
 Sim. N. S. 92 ; Costabadie v. Costabadie, 6 Hare 410 ; Byne v. 
 Blackburn, 26 B. 41.)i 
 
 And in Hammond v. Neame, 1 Sw. 35, the parent was held 
 entitled to receive the income, although there was no child. 
 
 Uncertainty of objects. — In Harland v. Trigg, 1 Bro. C. C. 
 142, a gift to A. "hoping he will continue them in the family," 
 was held not to create a trust on account of uncertainty in the 
 object. But in Wright v. Atkyns, Coop. Ill, a devise to A. "in 
 full confidence that after her decease she will devise the pro- 
 perty to my family," was considered by Lord Eldon sufficient 
 to raise a trust.^ 
 
 In Beeves v. Baker, 18 B. 372, a devise to A. in fee, " being 
 fully satisfied that she will dispose of the same fairly and equit- 
 ably to our united relatives," was held not to create a trust : 
 but qu. as to this case, and the somewhat similar one of Wil- 
 liams V. Williams, 1 Sim. N. S. 358. 
 
 A precatory trust may be created, although the object of it 
 maybe undefined. "Vagueness in the object will unquestion- 
 ably furnish reason for holding that no trust was intended, yet 
 this may be countervailed by other *considerations which r*-(piT 
 show that a trust was intended, while at the same time "" 
 
 ' In Cole V. Littlefleld, S5 Me. 445,, it was held that a gift to A. " for her 
 own and her children's support," created a trust, and A. might he called to 
 account for the purpose of correcting any waste, extravagant expenditure 
 or misapplication of the income. ^ 
 
 ' In Tolson v. Tolson, 10 Gill. & J. 159, a gift to A. with a " request to 
 take care of B. and his family," was held invalid for uncertainty, so far 
 as B.'s family were concerned. In Harper v. Phelps, 21 Conn. 259, where 
 the bequest was to A. " for the support of herself and her nephews and 
 nieces, whom she has now under her care, and such other persons as she 
 may request to be members of her family, it was held that the objects 
 were too uncertain to raise a trust. 
 
167 UNCBRTAINXY OF OBJECT. 
 
 sucla trust is not sufficiently certain to be valid and effectual; and 
 it is not necessary to exclude the legatee from a beneficial interest 
 that there should be a valid or effectual trust ; it is only neces- 
 sary that it should clearly appear that a trust was intended." 
 (Briggs V. Penny, 3 Mac. & G. 556.) Thus, if the gift be to 
 A. " well knowing that she will dispose of the same in accordance 
 with my views and wishes," these words are sufficient to create a 
 trust, although the views and wishes of the testator may never 
 have been made known, or might if known be too vague and in- 
 definite to be enforced. (-Briggs v. Penny, 3 Mac. & Gr. 646; 
 Bernard v. Minshull, Johns. 276.) 
 
*CHAPTER XV. [*168 
 
 HEIRS, HEIRS MALE, ETC. 
 
 Considerable favor seems to have been anciently shown to 
 the common-la-w heir, even in questions of construction. Hence, 
 perhaps, several of the following rules, including this, that — 
 
 Seir of Customary Lands. 
 
 Rule. If customary lands be devised to the heir or 
 heirs of any person, without an estate in the ancestor, 
 primd facie, the common-law heir takes, and not the cus- 
 tomary heir. 
 
 Thus, if gavelkind lands be devised to the heirs of A., 
 who dies leaving several sons, the eldest alone takes the 
 fee simple. (Co. Lit. 10 a; Robinson on Gavelkind 
 156 ; Thorp v. Owen, 2 Sm. & G. 90.) 
 
 " As if lands of the nature of gavelkind be given to B. and his 
 heirs, having issue divers sons, all his sons after his decease shall 
 inherit; but if a lease for life be made, remainder to the right 
 heirs of B., and B. dieth, his eldest son only shall inherit, for he 
 only to take by purchase is right heir by the common law." 
 (Co. Lit. 10 a.) 
 
 In Thorp v. Owen, 2 Sm. & G. 90, the rule was applied to a 
 devise of customary land to the heirs male of A., i. e., heirs male 
 of the body of A. 
 
 In Roberts v. Dixwell, 1 Atk* 607, a devise of gavelkind lands 
 by way of executory trust, to be settled on the *heirs of r^igg 
 the body of A. was executed by a settlement on the first 
 and other sons of A. successively in tail. 
 
 13 
 
169 HEIR MALE OF THE BODY. 
 
 Devise to testator's heir. — In Sladen v. Sladen, 2 Jo. & H. 
 369, it was doubted whether the rule applies to the case of a 
 devise of customary lands to the right heirs of the testator, inas- 
 much as the heir would (before the Act 3 & 4 W. 4, c. 106) have 
 taken by descent and not by purchase. But qu. whether there be 
 any distinction ; for if the common-law heir takes by virtue of 
 the rule, he does not take by descent. 
 
 But where gavelkind freeholds and leaseholds (mixed) were 
 evised to the right heirs of the testator, the common-law heir 
 was held to take. (lb.) 
 
 HEIR MALE OF THE BODY. 
 
 Doctrine of " Very Seir," 
 
 It is laid down by Lord Coke (Co. Lit. 246), that under a de- 
 vise to the heirs male (or female) of the body of any person with- 
 out an estate in the ancestor, the person to take as heir male of 
 the body by purchase must be heir general of the body, or very 
 heir. In other words, the expression " heir male of the body," 
 so far as it designated the person to take an estate by purchase 
 under the devise in question, was considered by Lord Coke to 
 mean, the heir general of the hody leiYig a male, and not, as it 
 more properly does mean, the person who would have inherited an 
 estate in tail male from the ancestor ; or, to adopt Lord Cotten- 
 ham's language in Chambers v. Taylor, 2 My. & Cr. 385, such 
 persons as would be heir, if males only were capable of being 
 heirs, and of transmitting descent. Thus, according to Lord 
 Coke's rule, the expression " heir male of the body," designating 
 a person to take by purchase, had no reference to the course of 
 descent of an estate in tail male, but pointed at and described 
 the heir general of the body, with the superadded qualification of 
 being of the male sex. It followed, that the person thus desig- 
 *1701 °^*^*^ could take, if very heir and a *male, although not 
 claiming through males only. (Co. Lit. 256 ; per Bosan- 
 quet, J., Doe v. Perratt, 10 Bing. 216, E. C. L. R. vol. 25.) 
 Lord Coke's rule has now been (at least as regards estates 
 
LOED coke's rule. 170 
 
 tail) altogether abolished, and it is settled in accordance with the 
 natural construction of the words, that — 
 
 Rule. Under a devise to " heirs male of the body" of 
 any person, the heir male of the body taking by purchase 
 need not be heir general. (Wills v. Palmer, 5 Burr. 
 2615; Goodtitle v. Burtenshaw, Fearne C. R. App. 570; 
 Doe d. Angell v. Angell, 9 Q. B. 328, E. C. L. R. vol. 58.) 
 
 Thus, if the devise be to the heirs male of the body of A., who 
 has died leaving a younger son and a daughter of a deceased 
 eldest son, the younger son will take an estate in tail male by 
 virtue of the devise, although the granddaughter is heir. 
 
 The same rule would apply to a devise to heirs female of the 
 body. 
 
 The new rule applies to a devise to "heirs male," where these 
 words are taken to mean "heirs male of the body." 
 
 Thus, in Doe d. Angell v. Angell^ 9 Q. B. 328 (K C. L. R. vol. 
 58), a devise " to the male heirs, if any such there be, of W. A. and 
 their male heirs for ever," was held to vest in a person as purchaser 
 who was heir male of the body of W. A., but not heir general. 
 
 Lord Coke's rule, how far abolished. — In Wrightson v. Macau- 
 lay, 14 M. & W. 214, Parke, J., said that Lord Coke's rule had 
 been broken in upon only as regards estates tail. But it would 
 seem that the old rule would not now be applied to any case 
 where the expression "heirs male of the body" is used; thus, 
 under a devise to the heir male of the body of A. and the heirs of 
 such heir male, it is conceived that the person claiming by pur- 
 chase, as heir male of the body, an estate in fee simple under the 
 devise, need not be heir general ; and consequently *that r^^Ji 
 he must claim through males. If there were any case in 
 which the expression "heir male" should be held woi to mean 
 "heir male of the body," the old rule might perhaps still apply, 
 and the words be construed to mean the heir general, being a 
 
 male. 
 
 Of course under a devise to "the right heirs of A., being of 
 the name of B.," no person could claim as purchaser who was 
 
I 71 MALES CLAIMING THROUGH MALES. 
 
 rot heir general of A., as -vyell as of the name of B. ("Wrightson 
 V. Macaulay, 14 M. & W. 214.) 
 
 Heir male of the body must claim through males. — It seems 
 to be a necessary consequence of the rule above stated, that the 
 person claiming as purchaser under the description of heir male 
 of the body, as -well as those claiming by descent, must convey 
 his descent entirely through males. 
 
 According to Lord Coke's rule this was 'not necessary; for 
 the words "heir male of the body" being taken to mean "heir 
 general of the body, being a male," if the person claiming satis- 
 fied the latter conditions, there was nothing in the expression to 
 require that he should be heir of the body by descent through 
 males. Lord Coke says, " If A. hath issue a daughter and dieth, 
 and the son hath isSue a daughter and dieth, and a lease for life 
 is made, remainder to the heirs female of the body of A., in this 
 case the daughter of A. shall not take causd qud supra" p. e., 
 because not heir general] ; " but albeit the daughter of the son 
 maketh her conveyance by a male, she shall take an estate tail 
 by purchase, for she is heir and a female." (Co. Lit. 256.) 
 The latter part of this passage appears, like the former part, to 
 be no longer the law. Now that the words " heir male of the 
 body" are held to mean the person who would have inherited an 
 estate in tail male from the ancestor, although not heir general, 
 the condition of claiming through males is necessarily introduced. 
 
 Males Claiming through Males. 
 
 *1721 ^^® ^^^^ °^ ^^ ^^^^ ™^^^ °^ *^^ hoAj taking by *pur- 
 chase is thus brought into conformity with the general 
 rule of construction, that — 
 
 Rule. " Heirs male of the body," or " issue male," 
 mean descendants in the male line only, i. e., males claim- 
 ing through males. (Co. Lit. 25 a; Bernal v. Bernal, 3 
 My. & Cr. 559 ; Lywood v. Kimber, 29 B. 38.)^ 
 
 ' The contrary was held concerning "issue male," in Beckam v. De 
 Saussure, 9 Rich. L. 531. 
 
172 
 
 In Lywood v. Kimber, 29 B. 38, a sum of stock was given to 
 five persons for life, and after their deaths to their issue male ; 
 and it was held that males claiming through females were not 
 entitled. 
 
 In Bernal v. Bernal, 3 My. & Or. 559, the rule was applied 
 to a gift (in a Dutch will) to the " male descendants" of a person. 
 Lord Cottenham said (p. 581), " To entitle any one to claim, he 
 must show that he is one of the favored class ; that is, one of the 
 class of male descendants. A male descended from a female of 
 the family would undoubtedly answer the description, as he 
 would be a descendant and a male ; but he would not be one of 
 the class of male descendants. Such would be the ordinary 
 acceptation of the terms. In speaking of a man and his male 
 descendants, as a class, no one would conceive the son of a 
 female descendant as included, and such is the construction 
 which our law has put upon the words, as ' issue male,' which is, 
 in fact, the same thing as male descendants." 
 
 So, a gift to "the eldest male lineal descendant of A." has 
 been held inapplicable to a male claiming through females. 
 (Oddie V. Woodford, 3 My. & Or. 584 ; 7 H. L. 0. 429.) 
 
 The rule of course applies to a devise to "heirs male," where 
 these words mean "heirs male of the body." (Doe v. Angell, 9 
 Q. B. 328, E. 0. L. R. vol. 58.) 
 
 But a gift to "all the issue, male and female," of A. would 
 no doubt include males claiming through females, and females 
 claiming through males. So, a devise to A. and the heirs male 
 or female of his body, confers an estate in tail general. (Co. 
 Lit, 256.) 
 
 *''Meirs Male." [=^173 
 
 The expression "heirs male" is, properly speaking, unknown 
 to the law. In a deed, a limitation to A. and his heirs male 
 confers an estate in fee, the word "male" being rejected as 
 repugnant (Co. Lit. 27 a) ; but with respect to devises it is a 
 rule that — 
 
173 "HEIES MALE." 
 
 Rule. "Heirs male," in a will, as words of limita- 
 tion, are construed to mean " heirs male of the body." 
 
 Thus a devise to A. and his heirs male, or to A. for 
 life, with remainder to his right heirs male for ever, vests 
 in A. an estate in tail male. (Co. Lit. 27 a; Doe d. 
 Lindsey v. Colyear, 11 East 548.) 
 
 It would appear that the rule extends to every devise to " heirs 
 male," although there be no estate limited to the ancestor. Thus, 
 in Lord Ossulston's Case, 3 Salk. 336, a devise to the right 
 heirs male of the testator, and in Doe d. Angell v. Angell, 9 Q. 
 B. 328, a devise to the heirs male of A. and their heirs male, 
 were held to vest an estate in tail male in the heir male of the 
 body as purchaser. 
 
 And in Doe d. Winter v. Perratt, 10 Bing. 204 (E. C. L. R. 
 vol. 58), Taunton, J., laid down generally that, " in a will, the 
 words heir male of A. mean heir male of the body of A." But 
 qu. whether this has been expressly decided with respect to "heir 
 male" in the singular. Under a devise, as in Archer's Case, 1 
 Rep. 66, to the next heir male of A. and the heirs male of the 
 body of such next heir male, it might perhaps still be contended 
 that the words "heir male" did not mean "heir male of the 
 body," but "the heir general, being a male." But qa} 
 
 Heir male must claim through males. — Wherever heir male is 
 held to mean heir male of the body, the two preceding rules of 
 course apply, and the heir male, although claiming by purchase, 
 ^-j,,^-, need not be heir general, but, *on the other hand, must 
 claim through males. If, however, there be any case in 
 which the words heir male do not mean heir male of the body, it 
 would appear that they must mean " the heir general, being a 
 male," in accordance with Lord Coke's rule ; and it would follow 
 that the condition of claiming through males only would cease to 
 be implied. 
 
 ^ In Cuffee v. Milk, 10 Meto. 366, it is held, that the expression " heir 
 male" creates an estate tail. But in Dennett v. Dennett, 43 N. H. 499, a 
 devise to A., " and to descend from him to his oldest male heir," was held 
 not to create a fee simple ; and see Mclntyre v. Bamsey, 23 Penn. St. 317. 
 
aecher s case. 174 
 
 archer's case. 
 
 A devise to A. for life with remainder to the heir, or heir 
 male, of his body, without words of inheritance superadded, cre- 
 ates an estate tail in A. ("White v. Collins, 1 Com. Rep. 289 ; 
 ' Chambers v. Taylor, 2 Myl. & Cr. 387) ; but where words of 
 limitation are added to a devise to the heir male (in the singular) 
 it is a rule that — 
 
 Rule. Under a devise to A. for life vsdth remainder to 
 the heir male of Ms lody and the heirs male of the body 
 of such heir male, A. takes an estate for life only, and 
 the heir male of his body takes an estate in tail male as 
 purchaser. (Archer's Case, 1 Rep. 66; Willis v. His- 
 cox, 4 Myl. & Cr. 197.) 
 
 So, if the devise be to A. for life vrith remainder to the 
 heir male of his body and the heirs, or heirs of the body, 
 of such heir male, A. takes for life only, and the heir male 
 of his body takes an estate in remainder in fee or in tail. 
 (Willis V. Hiscox, 4 Myl. & Cr. 197; Chamberlayne v. 
 Chamberlayne, 6 E. & B. 625, E. C. L. R. vol. 88.)^ 
 
 The rule applies where the devise is to A. for life with re- 
 mainder to his heir male and the heirs male of the body, or heirs, 
 of such heir male. (Archer's Case, 1 Rep. 66.) Whether in this 
 case the words "heir male" are equivalent to "heir male of the 
 lody," or designate the heir general, being a male, qu. 
 
 In Chamberlayne v. Chamberlayne, 6 E. & B. 625 (E. C. L. 
 R. vol. 88), the rule was applied to a devise to A., to "hold to him 
 and *the heir male of his body and the heirs and assigns r*275 
 of such heir male," although no express estate for life 
 was limited to A 
 
 ' Canedy v. Haskins, 13 Meto. 389. But if there is a gift over on failure 
 of male heirs, or in default of male heir, the rule is excluded : Malcolm v. 
 Malcolm, 3 Gush. 472 ; Osborn ». Shrieve, 3 Mason 391. 
 
 The rule applies to the words "issue male" as well as "heir male:" 
 Wells V. Bitter, 3 Whart. 208. 
 
175 HEIRS, MEANING HEIRS OF THE BODY. 
 
 "HEIRS," MBANINa HEIRS OF THE BODY. 
 
 There would seem to have been in early times a disposition to 
 restrain the meaiiing of " heirs " to heirs of the body on not very 
 strong grounds, and several rules of construction are directed to 
 this point. The first is that — 
 
 Seira Lawfully Begotten. 
 
 Rule. A devise of real estate to A; and his heirs law- 
 fully legotten confers only an estate tail, "heirs" being 
 construed heirs of the body. (Co. Lit. 206, n. 2 ; Nan- 
 fan V. Legh, 7 Taunt. 85 (E. C. L. R. vol. 2) ; Good v. 
 Good, 7 Ell. & Bl. 295, E. C. L. R. vol. 90).^ 
 
 " The devisor has clearly used apt words for giving an estate 
 tail, by limiting the land to a man and his heirs lawfully begot- 
 ten." (Per Lord Campbell, Good v. Good, 7 Ell. & Bl. 295, E. 
 C. L. R. vol 90.) 
 
 But a devise to A. and his lawful heirs passes an estate in fee. 
 (Simpson v. Ashworth, 6 B. 412 ; Mathews v. Gardiner, 17 B. 
 254.) 
 
 Secondly, the restriction of heirs to heirs of the body is effected 
 in the following case, viz : — 
 
 Ciift over on failure of Issue. 
 
 Rule. A devise of real estate to A. and his heirs, fol- 
 lowed by a limitation over to take effect on a general 
 failure at any time of issue or heirs of the body of A., 
 vests in A. only an estate taU : the word " heirs " being 
 
 ^ Hall V. Vandegrift, 3 Binn. 374. In Maryland that these words confer 
 an estate tail, only -when there is a gift over on failure of heirs : Pratt e. 
 Flamer, 5 Har. & Johns. 10 ; hut when there is no gift over it has heen 
 held that these words pass a fee simple : Paddison v. Oldham, 1 Har. & 
 McH. 336. No such distinction is' observable in the English authorities. 
 
GIFT OVER ON FAILURE OP HEIRS. 176 
 
 construed to mean heirs of the body. *(Doe d. Ellis, 
 
 V. Ellis, 9 East 382 ; Biss v. Smith, 2 H. & N. 105; 1^*^^^ 
 
 Greenwood v. Verdon, 1 K. & J. 74.)^ 
 
 The rule is the same, where the devise is to A., his 
 heirs and assigns, for ever. (lb.) 
 
 Thus, if (in a will made before January 1, 1838,) the 
 devise be to A., his heirs and assigns, but if A. shall die 
 without leaving issue, to B. in fee, A. takes only an estate 
 taU. 
 
 But the rule does not apply if the gift over he to take effect on 
 failure of issue of A. within a limited period, or on failure of a 
 particular class of issue only. In the latter cases the word 
 "heirs" is not restrained from its original meaning, but the gift 
 over takes effect as an executory devise after an estate in fee.^ 
 
 Thus, if the devise be to A. and his heirs, but if A. die under 
 twenty-one without issue, then to B., A. takes the fee simple, sub- 
 ject to an executory devise over. (Eastman v. Baker, 1 Taunt. 
 179.) 
 
 And the construction is the same, if the devise be to A. and 
 his heirs, with a gift over if A. die without issue, or under the 
 age of twenty-one, the word " or " being construed " and " by the 
 rule in Fairfield v. Morgan. (lb.) 
 
 So, if the devise be to A. and his heirs, with a gift over if A. 
 should die without issue in the lifetime of B., A. takes the fee 
 simple with an executory devise over. (Pells v. Brown, Cro. 
 Jac. 590.) So, where the devise was to A. in fee, with a gift 
 over on the death of A. without issue to the then surviving legatees, 
 A. was held to take the fee, the gift over being restrained to a fail- 
 
 ' Fisk V. Keene, 35 Me. 350 ; Hawley v. Northampton, 8 Mass. 3 ; Bichel- 
 berger v. Barnitz, 9 Watts 447 ; Hoxton v. Archer, 3 Gill & Johns. 199 ; 
 Den V. Wood, Cam. & Nor. 202. 
 
 The same rule applies in case of a gift over in default of child or chil- 
 dren, these words being construed to mean issue : Thomason v. Ander- 
 son, 4 Leigh. 118. 
 
 ^ The cases in which failure of issue is construed to be definite are dis- 
 cussed in the next chapter. 
 
176 HElRS, MEANING HEIRS OF THE BODY. 
 
 ure of issue before the death of the last surviving legatee. (Green- 
 wood V. Verdon, 1 K. & J. 74.) 
 
 Again, where the devise was to the children of A. and their 
 heirs, with a gift over on failure of issue of A., the children of A. 
 were held to take the fee simple, the word "issue" in the gift 
 over being restrained to mean children. (Goodright v. Dunham, 
 Doug. 264.)! 
 
 * Wills made since 1837. — The rule will have little 
 J application to wills made or republished on or after January 
 1st, 1838, inasmuch as by the 29th section of the Wills Act, the 
 expressions " die without issue," &c., are primd facie restricted 
 to failure of issue at the death of the person, and therefore cannot 
 have the effect of restraining "heirs " to mean heirs of the body. 
 
 But it may be perhaps doubted whether the expressions " on 
 failure of issue " or "in default of issue " are within the 29th sec- 
 tion. If not, then in the case of a devise to A. and his heirs, with 
 a gift over on failure of issue of A., the rule will still apply, and 
 A. will take an estate tail. 
 
 Thirdly, the word "heirs " is restrained to heirs of the body 
 by force of a gift over in the following cases, viz. : — 
 
 Gift over on Failure of Seirs. 
 
 Rule. If real estate be devised to B. on failure of heirs 
 of A., and B. is capable of being heir to A., the word 
 " heirs " is construed to mean heirs of the body, since 
 otherwise the devise to B. could never come into opera- 
 tion. (Webb V. Hearing, 3 Lev. 70; Fearne C. R. 467; 
 Nottingham v. Jennings, 1 P. Wms. 23 ; Harris v. Davis, 
 1 Coll. 423.)^ 
 
 1 De Haas v. Bunn, 2 Penn. St. 337. 
 
 " Williams v. MoCall, 12 Conn. 328 ; Burnet v. Denniston, 5 Johns. Ch. 
 42 ; Braden ». Cannon, 24 Penn. St. 168 ; Hill v. Burrow, 3 Call 342 ; 
 Den V. Armfield, 8 Ired. L. 25 ; Delboe v. Lowen, 8 B. Mon. 616. 
 
 Where a devise is made to two, and in the same clause a devise over in 
 case of either dying without heirs, is made to one who is capable of being 
 
NECESSARY IMPLICATION. 177 
 
 Thus, by the operation of this and the preceding rule, if lands 
 be devised to A., a son of the testator, and his heirs, and on 
 failure of heirs of A., to the right heirs of the testator, A. takes 
 an estate tail only. (Nottingham v. Jennings, 1 P. Wms. 23.) 
 
 But if B. be not capable of inheriting land from A., the mean- 
 ing of the words "heirs" will not be restricted. Thus where, 
 under the old law of descent (before 3 & 4 "Will. 4, c. 106), the 
 testator devised to his son A. and his heirs, but if he died with- 
 out heirs then to his son B., and B. was Jialf-brother to A., A. was 
 held to take the fee simple. (Tilburgh v. Barbut, 1 Ves. sen. 89.) 
 
 * Grift over to several, including an heir. — The rule rjK-i7Q 
 would seem to apply where the gift over is to several 
 persons, and any of them is capable of being heir to the first de- 
 visee. In Harris v. Davis, 1 Coll. 423, the rule was applied 
 where the devise over was to nine persons, eight of whom were in 
 the course of descent from the first devisee. 
 
 " NECESSARY " IMPLICATION. 
 
 Grift to Heir after the Death of A. 
 
 A gift of real estate to the heir after the death of a particular 
 person is considered necessarily to imply, not so much an inten- 
 tion to benefit that person, as an intention to exclude the heir 
 during his life, which can only be effected by implying a life es- 
 tate to the person in question : hence it is a rule that — 
 
 Rule. If real estate be devised after the death of A. 
 
 heir to one of the first devisees but not to the other, the word heirs will be 
 construed to mean heirs of body as to each devisee : Bundy v. Bundy, 38 
 . N. Y. 410. 
 
 If a devise is made to A. and his heirs with a gift over upon his death 
 without heirs within a limited period, there is no necessity for construing 
 the word heirs to mean "heirs of his body" in both instances. The word 
 as used in the gift over will be so construed, while as used in the limita- 
 tion of the estate of the first taker it will retain its full signification, the 
 devise being equivalent to a devise to A. and his heirs, with a gift over on 
 a definite failure of issue : Doebler's Appeal, 64 Penn. St. 9. 
 
178 GIFT TO B. AFTER THE DEATH OF A. 
 
 to B., the heir-at-law of the testator, and the will contains 
 no disposition of the property during the life of A., A. 
 takes an estate for life by implication : but if B. is not 
 the heir-at-law, A. takes no estate. (Rex v. Inhabitants 
 of Ringstead, 9 B. & C. 218 (E. C. L. R. vol. 17) ; Aspinall 
 V. Petvin, 1 S. & Stu. 544 ; Stevens v. Hale, 2 Dr. & Sm. 
 22.)^ 
 
 And a bequest of personal estate similarly, after the 
 death of A., to the person or persons who would be en- 
 titled in case of intestacy, gives A. a life interest by im- 
 plication. (Stevens v. Hale, 2 Dr. & Sm. 22 ; Cranley 
 V. Dixon, 23 B. 512.)^ 
 
 " If a testator gives to his heir after the death of A., he plainly 
 
 means that his heir should not take during the life of A. ; and 
 
 having named no other person to take during the life of A., it is 
 
 necessarily to be implied that he means A. to take during his own 
 
 life. But if the *testator gives to a stranger after the 
 *1791 . . . 
 
 ^ death of A., it does not plainly and necessarily "appear 
 
 from thence that he means that his heir should not take during 
 the life of A." (Aspinwall v. Petvin, 1 S. & Stu. 544. )3 
 
 " The same principle has been extended to the case of person- 
 alty ; and it may be considered as now settled, that if there is a 
 bequest of personalty, whether of a particular portion or the 
 whole residue, after the death of A. to the person or persons 
 who is or are the next of kin of the testator, A. takes a life 
 estate by implication, upon a ground similar to that which applies 
 in the case of real estate." (Stevens v. Hale, 2 Dr. & Sm. 22.) 
 
 1 Kelley v. Stinson, 8 Blackf. 390. 
 
 * Dale V. Dale, 13 Penn. St. 446. But in North Carolina it has been held ' 
 that the rule does not extend to a bequest of personal estate : White v. 
 Green, 1 Ired. Eq. 45 ; Hastings «. Earp, Phill. Eq. 7. 
 
 » MoCoury v. Leek, 1 McCart. 72 ; Doughty v. Stillwell, 1 Bradf. 310. 
 In McCoury v. Leek, Chancellor Green was of opinion that in a bequest of 
 personalty to B. on the death of A., there was an implied bequest to A. 
 for life, if otherwise there would be an intestacy, and this reasoning is 
 admitted also in Dale v. Dale, 13 Penn. St. 448. 
 
GIFT TO A. AFTER THE DEATH OF B. 179 
 
 Where the will contains a residuary devise or bequest, which 
 will embrace the undisposed of interest during the life of A., the 
 rule of course has no application. 
 
 Devise to one of several co-heirs. — The principle of the rule 
 does not seem to apply where the gift over is to one only of 
 several co-heirs, or to the heir jointly with other persons : and it 
 appears that the rule will not be extended to such cases. (Bar- 
 net V. Barnet, 29 B. 239 ; Rex v. Inhabitants of Ringstead, 9 
 B. & Cr. 228 (E. C. L. R. vol. 17), where Hutton v. Simpson, 
 2 Vern. 723, is commented on.) 
 
 SeirsMp, when to he considered. — It would seem clear, on 
 principle, that the devisee over must be heir-at-law at the death 
 of the testator, in order that the implication may arise : but the 
 point is not expressly decided.' 
 
 Distributive construction. — If a particular estate be devised to 
 A. for life, and after the death of A. the same, together with 
 other property, is devised to B., it is a question of construction, 
 not subject to any particular rule, whether the words are to be 
 read distributively, so as to give an immediate estate to B. in 
 the property not devised to A. for life (Cook v. Gerrard, 1 Saund. 
 183 ; Doe v. Brazier, 5 B. & Aid. 64, B. C. L. R. vol. 7) ; or 
 whether the devise to B. is altogether postponed until the death 
 of A., so that the rule will apply, and A. take a life estate or 
 not, according as B. is or not the heir-at-law. (Rex v. Inhabi- 
 tants of Ringstead, 9 B. & Cr. 218, E. C. L. R. vol. 17.)^ 
 
 A gift to B. after the death of A. may, by force of the r*-|^gQ 
 *context give a life interest to A. although not the heir- 
 at-law or next of kin. (Roe v. Somerset, 5 Burr. 2608 ; Black- 
 well v. Bull, 1 Keen 176.) In Blackwell v. Bull, the testator, 
 after desiring that his business should be carried on for the bene- 
 
 1 But whesre the gift on the death of A. was to his brothers and sisters, 
 if living, and if dead to his nephews and nieces ; it was held that A. took 
 a life estate by implication. V.-C. Stuart in this case doubts whether it 
 is a settled rule, that the implication does not arise from a mere postpone- 
 ment without regard to the nature of the gift over ; Humphreys v. Hum- 
 phreys, L. R. 4 Eq. 475. 
 
 ^ Eathbone v. Dyckman, 3 Paige 9. 
 
180 DEVISE TO A. "OB" HIS HEIRS. 
 
 fit of his family, devised all his property in trust that, at Ms 
 wife's decease, the whole should be divided among his children. 
 It was held that, upon the whole will, the widow took a life in- 
 terest by implication in the real and personal estate not engaged 
 in the testator's business. 
 
 Devise to A. "or" his Seirs. 
 
 If personal estate be given to A. or his heirs, the word 
 "heirs " is read as a word not ot limitation but of substitution, 
 so as to prevent a lapse ; but in the case of real estate, if the 
 substitutional construction were adopted, the result would be (in 
 a will prior to 1838) to give to A. only an estate for life : hence 
 the rule as to real estate is different, viz. : — 
 
 Rule. A devise of real estate to " A. or his heirs " 
 gives to A. an estate in fee, the word " or " being read 
 "and." (Read v. Snell, 2 Atk. 645, per Lord Hard- 
 wicke.)^ 
 
 So, a devise to " A, or his heirs of his body " gives to 
 to A. an estate tail. (Harris v. Davis, 1 Coll. 416 ; 
 Greenway v. Greenway, 2 De G. F. & J. 128.) 
 
 It would appear, therefore, that a devise to A. or his heirs, 
 or heirs of the body, would lapse by the death t)f A. in the testa- 
 tor's lifetime. 
 
 ^ Sloan V. Hanse, 2 Kawle 28 ; Brasher v. March, 15 Ohio St. 112. But 
 where a testator devised to his six sons by name, all his real estate, " to 
 be equally divided among them or their heirs," and two of his sons were 
 known to him to be dead at the date of the will, it was held that the 
 gift was substitutional, and the heirs of the two then dead, took under the 
 devise. " This construction may not be favored by common law authori- 
 ties, but seems to be justified by common sense :" per Perkins, J., Taylor 
 V. Conner, 7 Ind. 119. A similar construction has been put on a devise 
 to a class after a life estate "and to their heirs for ever:" Flournoy u. 
 Flournoy, 1 Bush 515i 
 
♦CHAPTER XVI. [*181 
 
 ESTATES TAIL, ETC. 
 
 ESTATE TAIL CYPRES. 
 
 If property be given by will to a person unborn at the death 
 of the testator for life, with remainder to his issue as purchasers, 
 the limitations to the issue are beyond the limits of perpetuity ; 
 but the Courts, in a particular case, carry out the intention of 
 the testator cypres, and it is a rule that — 
 
 Rule. If real estate be devised to A. for life^ with re- 
 mainder to his first and other sons successively in tail, 
 with remainder to his daughters as tenants in common in 
 tail, with cross remainders between them, and A. is un- 
 born at the death of the testator, the limitations to his 
 children being void for remoteness, A. is held to take an 
 estate tail, to effect as far as may be the intention. 
 (Humberston v. Humberston, 1 P. Wms. 332 ; Mony- 
 penny v. Bering, 16 M. & W. 418 ; 2 De G. M. & G. 
 145 ; Vanderplank v. King, 3 Hare 1.)^ 
 
 And if the devise be similarly to A. (the unborn per- 
 son) for life, with remainder to his first and other sons 
 
 ' Parflt u. Humber, L. K. 4 Eq. 443 ; AUyn v. Mather, 9 Conn. 114 ; 
 Gibson v. M'Neeley, 11 Ohio St. 131. 
 
 A gift over upon failure of the issue of the first taker, prevents the 
 necessity of applying the doctrine of cypres : Malcolm v. Malcolm, 3 
 Gush. 472. 
 
 In St. Armour v. Rivard, 2 Mich. 294, the Court refuse to apply the 
 doctrine to a gift of successive life estates, and doubt whether the rule 
 would be adopted in any form in that state. 
 
181 RULE OF CYPRES. 
 
 in tail male, A. is held to take an estate in tail male, 
 (lb.) 
 
 The same rule applies to a devise by way of appoint- 
 ment under a power where A. is, but his children are not, 
 objects of the power. (lb.) 
 
 *" The doctrine of cypres, in reference to questions of 
 -• perpetuity, arises where a testator gives real estate to an 
 unborn person for life, with remainder to the first and other 
 sons of such person in tail male, or with remainder to the first 
 and other sons of such person in tail general, with remainder to, 
 the daughters as tenants in common in tail, with cross remain-^ 
 ders amongst them. In such a case, the course of succession 
 designated by the testator is one allowed by law ; but the direc- 
 tion that the first taker should take for life only, with remainder 
 to his children as purchasers, is illegal, as tending to a per- 
 petuity Such a devise has therefore been held to give 
 
 an estate in tail male or in tail, as the case may be, to the first 
 taker. By these means the estate, if left as it were to itself, will 
 go in the precise course marked out by the testator, though it 
 will be (contrary to what he intended) liable to be diverted from 
 that course by the act of the first taker." (Monypenny v. Ber- 
 ing, 16 M. & W. 428.) 
 
 Where the limitations are as above stated, it does not appear 
 to be essential to the application of the rule, that there should be 
 a gift over on failure of issue, or issue male, of A. 
 
 Again, if there were no express limitation of cross remainders 
 in tail among the daughters, yet if there were a gift over on 
 failure of issue of A., cross remainders would be implied, and the 
 rule would therefore apply. 
 
 The rule of cypres may be applied to some only of a class of 
 children, leaving the estates of other members of the class unaf- 
 fected by it. Thus, where the devise was to the children of A., 
 a living person, for their lives as tenants in common, with re- 
 mainder after their respective deaths" to their children respect- 
 ively, and the heirs of their bodies, with cross remainders 
 amongst them, it was held that children of A., born in the testa- 
 
PITT V. JACirsON. 182 
 
 tor's lifetime, took estates for life only, with remainders to their 
 children, while children of A., born after the testator's death, 
 took estates tail cypres. (Vanderplank v. King, 3 Hare 1.) 
 
 The rule applies, although the estate for life limited to n^-, „„ 
 *the first taker be for her separate use. (Pitt v. Jackson, 
 2 Bro. C. C. 51.) 
 
 Bule, as extended hy Pitt v. Jackson. — In one instance the 
 rule is held to apply, although the effect is to alter the course of 
 devolution of the estate ; viz., where the devise is to A. (the 
 unborn person) for life, with remainder to his children as tenants 
 in common in tail, with remainder over, A. takes an estate tail, 
 the tenancy in common being rejected, (Pitt v. Jackson, 2 Bro. 
 C. C. 51 ; see Smith v. Lord Camelford, 2 Ves. jun. 698 ; Van- 
 derplank V. King, 3 Hare 1 ; Monypenny v. Dering, 2 De G. 
 M. & G. 173.) • 
 
 But the rule will not be applied where the effect would be to 
 give estates to persons whom the testator did not intend to include 
 in the line of devolution at all. Thus, if the devise be to A. (the 
 unborn person) for life, with remainder to his first son (only) in 
 tail male, no estate being limited to the second and other sons of 
 A., A. cannot be held to take by virtue of the rule an estate in 
 tail male. (Monypenny v. Dering, 2 De Gr. M. & G. 145.) 
 
 The rule does not apply where the devise is to A. (the unborn 
 person) for life, with remainder to his children in fee simple. 
 (Bristow V. Warde, 2 Ves. jun. 336 ; Hale v. Pew, 25 B. 335.) 
 
 The rule does not apply to a bequest of personal estate. 
 (Routledge v. Dorril, 2 Ves. jun. 365.) How far it would apply 
 to a gift of real and personal estate (blended) seems uncertain. 
 (Boughton V. James, 1 Coll. 44.) 
 
 WORDS OF LIMITATION. 
 
 ITeirs of the Body. 
 
 Perhaps the strongest of all rules, of construction is that 
 
 which defines the meaning of " heirs of the body," when used in 
 
 devises of real estate. Not only are the words highly technical, 
 
 implying both an unlimited series of objects and a fixed order of 
 
 u 
 
183 JESSON V. WBIGHT. 
 
 succession, but it would be difficult, in most cases, to find any 
 secondary meaning for them -ffhicli could carry out any probable 
 ^^jjj^-n intention on the *part of the testator. It has therefore 
 become by degrees established as an inflexible rule, where 
 the testator has not explained the words in question as having 
 been used in some other sense, that — 
 
 EuLE. In devises of real estate, the words "heirs of 
 the body/' following a gift to the ancestor, are words of 
 limitation, and create an estate tail : — notwithstanding 
 the addition of other inconsistent words or expressions. 
 (Jesson V. Wright, 2 Bligh 1 ; Poole v. Poole, 3 B. & P. 
 620 ; Fetherstone v. Fetherstone, 3 CI. & F. 67 ; Jordan 
 V. Adams, 9 C. B. N. S. 483, E. C. L. R. vol. 99.)^ 
 
 Thus, a devise to A. for life and after his decease to 
 the heirs of his body, share and share alike as tenants in 
 common, vests in A. an estate tail. (Jesson v. Wright, 
 2 Bligh 1.)^ 
 
 ' Kennedy v. Kennedy, 5 Dutch. 186 ; Home ». Lyeth, 4 Har. & Johns. 
 431. 
 
 ^ Quick V. Quick, 6 C. E. Green 13 ; Curtis v. Longstreth, 44 Penn. St. 
 302 ; Ross V. Toms, 4 Dev. L. 376. 
 
 In many of the American states the rule in Shelley's Case has been abol- 
 ished by statute, and a gift to A. for life, with remainder to his heirs, heirs 
 of his body, or issue is but an estate for life in A. and the heirs, heirs of 
 body, &c., take as purchasers. These States are as follows : — New Hamp- 
 shire (Kev. Statute of 1842): Massachusetts (by an Act of 1791) ; Con- 
 necticut ; New York (by the Revised Statutes, taking effect Jan. 1, 1830) ; 
 New Jersey (by an Act of April 16, 1846) ; Virginia; Alabama (by the 
 Code, taking effect January, 1853) ; Michigan by (Revised Statutes, taking 
 effect March 1, 1847) ; Wisconsin (Revised Statutes of 1849) ; Kentucky 
 (by Act, taking effect July 1, 1852). 
 
 In Maine (Act of 1821), Ohio (Act taking effect October 1, 1840), and 
 Kansas, the terms of the statutes seem to include only gifts in remainder 
 to heirs, the words being " and after his death to his heirs in fee, or by 
 ■words to that effect." 
 
 In Vermont, it has been held that the rule in Shelley's Case is to be re- 
 garded as of no special force in that state, except as a rule of construction 
 and intention ; and therefore, where there is a clear intention that the 
 
HEIRS OF THE BODY. 184 
 
 So, a devise to A, for life, with remainder to his heirs, 
 or to the heirs male of his body, vests in A. an estate in 
 fee or in tail male.^ 
 
 " I take the effect of the authorities on this subject clearly to 
 be, that when land is devised to a man for life, with remainder to 
 his heirs or the heirs of his body— no incident superadded to the 
 estate for life, however clearly showing that an estate for life 
 merely, and not an estate of inheritance, was intended to be 
 given to the first donee ; nor any modification of the estate given 
 to the heirs, however plainly inconsistent with an estate of in- 
 heritance ; nor any declaration, however express or emphatic, of 
 the devisor ; can be allowed, either by inference or by the force 
 of express direction, to qualify or abridge the estate in fee or in 
 tail, as the case may be, into which, upon a gift to a man for life, 
 with remainder to his heirs, or the heirs of his body, the law in- 
 exorably converts the entire devise in favor of the ancestor." 
 (Per Cockburn, C. J., Jordan v. Adams, 9 C. B. N. S. 497, E. 
 C. L. R. vol. 99.) 
 
 first taker shall have a life estate only, that intention shall prevail, and 
 the heirs shall take as purchasers : Smith v. Hastings, 29 Vt. 240. The 
 same was held, also, in a late case in Maine, as the rule in that state apart 
 from the statute : Hamilton v. Wentworth, 58 Me. 101 ; and see to the 
 same effect King v. Beck, 15 Ohio 559. 
 
 In Truman v. White, 14 B. Monr. 570, it was doubted whether the rule 
 in Shelley's Case was in force in Kentucky. , 
 
 In Mississippi, in the Act of June 13th, 1822, abolishing estates tail, there 
 is a proviso to the effect that estates may be limited to a succession of donees 
 in being, with remainder to the right heirs of the remainderman, and it has 
 been held, that the effect of this proviso is to abolish the rule in Shelloy's 
 Case as to devises of real estate, and in all limitations to heirs in remainder, 
 the heirs take as purchasers unless it plainly appears to have been the in- 
 tention of the testator to specify a class of persons to take in succession 
 from generation to generation, in their character as heirs of the ancestor : 
 Powell V. Brandon, 24 Miss. 366 ; Hampton v. Bather, 30 Miss. 193. 
 
 ^ The words, "heirs of body," are words of limitation, and as such they 
 create an estate tail in the first taker, which cannot be cut down, even by 
 the clearest expression of a desire that it shall be a life estate only : per 
 Black, J., Bender v. Fleurie, 2 Grant 347 ; M'Feely v. Moore, 5 Ohio 464 ; 
 King V. Beck, 12 Id. 390 ; Cooper v. Coursey, 2 Cold. 416 ; Fraser v. Clane, 
 2 Mich. 81. 
 
184 WORDS OF DISTRIBUTION REJECTED. 
 
 " Neither an intent manifested by the testator to give only an 
 ^-.oc-i estate for life, nor the interposition of trustees to *pre- 
 serve contingent remainders, nor mere words of condition 
 describing the order in which the devisees are to take, nor the 
 introduction of powers of jointuring or of liberty to commit 
 waste, are of themselves sufficient to vary the technical sense of 
 the words used." (Poole v. Poole, 3 B. & P. 627./ 
 
 So, on the other side, with reference to the estate to the heirs, 
 although the devisor may have annexed to it incidents wholly 
 inconsistent with an estate by descent, as that the heirs shall 
 take according to the appointment of the ancestor, or that the 
 heirs shall take as tenants in common, or share and share alike, 
 or without regard to seniority of age, .... no inference 
 arising from such provisions can be allowed to prevail against ^ 
 the rule of law." (Per Cockburn, C. J., 9 0. B. N. S. 498, E. 
 C. L. R. vol. 99.)=' 
 
 In Jesson v. Wright, 2 Bligh 1, the devise was to A. for life, 
 and after his decease to the heirs of his body in such shares and 
 proportions as A. should appoint, and in default to the heirs of 
 his body, share and share alike as tenants in common, and if but 
 one child, the whole to such only child : it was held that A. took 
 an estate tail. 
 
 Words of limitation and distribution. — It is entirely settled, 
 at the present day, that words implying that the heirs are to 
 take distributively or together, and not successively (as, if the 
 devise be to the heirs of the body, share and share alike as 
 tenants in common), do not exclude the rule, but are rejected as 
 repugnant. (Jesson v. Wright, 2 Bligh 1 ; Mills v. Seward, 1 
 Jo. & H. 733;-Grimson v. Downing, 4 Drew. 125.)^ 
 
 Words of limitation superadded. — The effect of words of 
 limitation superadded to the gift to the heirs of the body, is not 
 
 1 Doebler's Appeal, 64 Penn. St. 17. 
 
 2 Dodson V. Ball, 60 Penn. St. 493 ; Ball v. Payne, 6 Rand. 73. 
 
 ' Cooper V. Cooper, 6 R. I. 261 ; Quick v. Quick, 6 C. E. Green 13 ; 
 Curtis V. Longstreth, 44 Penn. St. 302 ; Moore v. Brooks, 12 Gratt. 135 ; 
 Ross V. Toms, 4 Dev. 376. 
 
SUPERADDED WORDS OP LIMITATION. 185 
 
 perhaps so conclusively settled. It was formerly held (1) that 
 if the words of limitation were such as to change the course of 
 descent (as, if the devise were to A. for life, with remainder to 
 the heirs of his body and the heirs male of their bodies), the 
 heirs of the body took by purchase (Shelley's Case, 1 Rep. 95 b) ; 
 and (2) that words of limitation to *the heirs general of 
 heirs of the body, coupled with words of distribution, and L 
 without a gift over on failure of issue of the ancestor, were suf- 
 ficient to explain "heirs of the body," as meaning children: so 
 that under a devise to A. for life, with remainder to the heirs of 
 his body, their heirs and assigns, share and share alike, the chil- 
 dren of A. took in fee as purchasers. (Doe v. Laming, 2 Burr. 
 1100 ; Right v. Creber, 5 B. & C. 866, E. C. L. R. vol. ll.f 
 
 But, though these cases have not been expressly overruled, it 
 is, on the other hand, now settleli by authority (1) that a devise 
 to A. for life, with remainder to the heirs male of his body, their 
 heirs and assigns, with a gift over on failure of male issue, does 
 not exclude the rule (Wright v. Pearson, Fearne C. R. 126 ; 
 Nash V. Coates, 3 B. & Ad. 839, E. C. L. R. vol. 23) ; and 
 (2) that the rule is not excluded by words of limitation to the 
 heirs general of heirs of the body, coupled with words of distri- 
 bution, there being a gift over on failure of issue of the ancestor. 
 (Mills V. Seward, 1 Jo. & H. 733 ; Measure v. Gee, 5 B. & Aid. 
 910 (E. 0. L. R. vol. 7). See, also. Toller v. Attwood, 15 Q. B. 
 929, E. C. L. R. vol. 69.) 
 
 Upon the whole it is conceived that, as the rule now stands, 
 words of limitation (whether general or special) will in future be 
 held to have no more effect than words of distribution in excluding 
 the operation of the rule. (See Mills v. Seward, 1 Jo. & H. 733.) 
 Thus a devise to A. for life, with remainder to the heirs of his 
 body, share and share alike, their heirs and assigns (or, heirs 
 
 1 In Prescott v. Prescott, 10 B. Mon. 56, Doe v. Laming and kindred 
 cases are followed and words of distribution, &c., are held to exclude the 
 rule, especially where there is a clear intention to give but a life estate. 
 Jesson V. Wright is cited, but the Court express a determination to adhere 
 to the older authorities. And so Myers v. Anderson, 1 Strobh. Eq. 346 ; 
 Lillibridge v. Boss, 31 Ga. 730. 
 
186 WORDS OF EXPLANATION. 
 
 male), would vest in A. an estate tail, the inconsistent words 
 being rejected as repugnant.^ 
 
 Words of explanation. — But if the testator himself explain 
 the words in question in a secondary sense, as by saying in effect 
 "by heirs of the body — / mean first and other sons," &c., the 
 rule is excluded. 
 
 As where the devise was " to A. and his heirs lawfully begotten, 
 that is to say, to his first, second, and other sons successively, 
 and the heirs of their bodies." (Lowe v. Davies, 2 Lord Raym. 
 1561.) So, where the devise was " to the heirs male of the body 
 
 ^ The later English authorities have been very generally adopted in the 
 United States : Moore v. Brooks, 12 Gratt. 135 ; Carter v. McMichael, 10 
 S. & R. 429 ; Folk v. Whitley, 8 Ired. 133. 
 
 A devise to A. for life and after her death to the heirs of her body and 
 to their heirs and assigns, with a gift over on the death of A. vrithout issue 
 surviving her, is virithin the rule : Manchester v, Durfee, 5 K. I. 549. 
 And so a devise to A. for life and to the male heirs of his body and their 
 descendants, with a, gift over on the death of A. without such male heirs 
 of his body or their descendants living at the time of his death : Jillson v. 
 Wilcox, 7 R. I. 515. So a devise to A. and the lawful heirs of his body 
 and their heirs and assigns, without any limitation over : Buxton ». Ux- 
 bridge, 10 Mete. 87 ; Brown v. Lyon, 2 Seld. 419. So a devise to A. for 
 life, remainder to the heirs male of his body and the heirs and assigns of 
 such male heirs or heir, and for want of such heirs male, over : Carter v. 
 McMichael, 10 S. & R. 429 ; George v. Morgan, 16 Penn. St. 95 ; Folk ». 
 Whitley, 8 Ired. 133 ; and without limitation over : Coon v. Rice, 7 Id. 217. 
 
 But in Tanner v. Livingston, 12 Wend. 83 (decided in 1834), the older 
 English cases are followed. This case is explained in Schoonmaker v. 
 Sheely, 3 Denio 489, as follows : The gift was to the heirs male and their 
 heirs. The statute had abolished entails, and primogeniture had also been 
 abolished. The object of the testator was to give the estate to sons or 
 male descendants, and the superadded words of limitation to the heirs 
 general clearly showed that the testator could not have intended to limit 
 an estate to any persons which would at common law have been an estate 
 tail. In Brant v. Gelston, 2 Johns. Cas. 384, a devise to A. for life and 
 after his death to the heirs of his body and his, her or their heirs and 
 assigns for ever, equally to be divided between them share and share alike, 
 was held to be within the rule. This was a deed made before estates tail 
 were abolished. 
 
WORDS OP EXPLANATION. 187 
 
 of A., the elder of such *sons and the heirs male of his 
 hody being preferred to the younger of such sons and the ^*'^^'^ 
 heirs male of their bodies, and for default of such issue to the 
 daughters of the body of A.," &c. (Goodtitle v. Herring, 1 
 East 264.) 
 
 So, Tvhere the devise was to four persons as tenants in common 
 for life, with remainder as to the share of each to his children in 
 strict. settlement, a limitation over on failure of issue of any of 
 the four to the survivors " and the heirs of their bodies in man- 
 ner aforesaid," was held to be explained by the preceding limita- 
 tions, and not to create an estate tail. (Doe d. Woodall v. Wood- 
 all, 3 C. B. 349, E. C. L. R. vol. 54.) 
 
 In Jordan v. Adams, 9 C. B. K S. 483, Ex. Ch. (E. C. L. R. 
 vol. 99), where the devise was to A. for life, with remainder to 
 the heirs male of his body for their lives, "in such proportions 
 as the said A., their father, should appoint," it was held by a 
 majority of judges that "heirs male of the body" were ex- 
 plained to mean sons only. 
 
 Expressions which imply that children are included among 
 heirs of the body, but not that heirs of the body are confined to 
 children, do not exclude the rule. Thus a devise to the heirs* of 
 the body, "and if hut one child, the whole to such only child," 
 is within the rule. (Jesson v. Wright, 2 Bligh 1.) Gummoe v. 
 Howes, 23 B. 184, seems inconsistent with this.' 
 
 ' In a devise to A. for life, remainder to the heirs of his body, C. B., 
 sou of said A., excepted, the latter clause, excluded the rule : Blake v. 
 Stone, 27 Vt. 475. 
 
 Where the heirs are referred to as persons already in existence, the rule 
 does not apply ; as in a gift to the heirs of the body of A., the said A. to 
 have the use and enjoyment of the property during his life : Roberts v. 
 Ogbourne, 37 Ala. 175. So, a gift to A. for life, for her support and for 
 i\i6 support of the heirs of her body hegotten, and after her death to the 
 heirs of her body begotten, does not come within the rule : Powell v. 
 Glenn, 21 Ala. 458 ; nor does a limitation to A. for life, remainder to his 
 heirs, " born and to be born :'' Woodruff v. Woodruff, 32 Ga. 358. 
 
 Where there is only a loan to A. for life, which implies not the title, but 
 the use, the estates are considered as not of the same nature, and the rule 
 does not apply : Loving v. Hunter, 8 Yerg. 4 ; Stttle v. Settle, 10 Humph. 
 474; Vaden v. Hance, 1 Head 301. 
 
187 EXEeUTO'RY TRUSTS. 
 
 But in North v. Martin, 6 Sim. 266, the expression "and if 
 more children than one, equally to be divided among them," fol- 
 lowing the gift to the heirs of the body, was held to imply that 
 heirs of the body meant only, children. 
 
 Executory trusts. — The rule which gives to "heirs of the 
 body" their technical meaning is not so inflexibly applied to 
 directions to settle lands by way of executory trust. (Papillon v. 
 Voice, 2 P. Wms. 471 ; Tearne C. R. 145 ; Jervoise v. Duke of 
 Northumberland, IJ. & W. 539.) " Where there is an executory 
 trust, where the testator has directed something to be done, and 
 has not himself, according to the sense in which the Court uses 
 these words, completed the devise in question, the Court has 
 „-. *been in the habit of looking to see what was his inten- 
 tion ; and if what he has done amounts to, an imperfec- 
 tion, with respect to the execution of that intention, the Court 
 inquires what it is itself to do, and it will mould what remains to 
 be done so as to carry that intention into execution. (Per Lord 
 Eldon, IJ. & W. 570.) 
 
 Thus, although a direction to settle lands on A. and the heirs 
 of his body, simpliciter, would probably make A. tenant in tail 
 (Scale V. Scale, IP. W. 290) ;■ yet, if the testator show an inten- 
 tion that the first taker should not be made tenant in tail (as, if 
 the direction be to settle and assure lands, as counsel should ad- 
 vise, to the use of A. for life, and after his decease on the heirs 
 of his body), the Court would direct a conveyance to uses in 
 strict settlement. (Bastard v. Proby, 2 Cox 6.)^ 
 
 ffeirs of the Bqdy — Personal Estate. 
 
 It has sometimes been laid down that whatever words in a de- 
 vise of real estate would create an estate tail, confer the absolute 
 interest in personal estate. This, however, is too large a propo- 
 sition: the word "issue," fori instance, receives a different con- 
 struction, according as the subject of the gift is real or personal 
 estate (as will appear subsequently) : as regards the technical 
 
 ^ Wood V. Burnham, 6 Paige 513 ; Edmundson v. Dyson, 2 Kelly 307. 
 
PERSONAL ESTATE. 188 
 
 words "heirs of the body," however, the statement is perhaps 
 correct ; it is at all events the rule that — 
 
 Rule. A bequest of personal estate or chattels real to 
 A. and the heirs of his body, or to A. for life, and after 
 his decease to the heirs of his body, vests the property 
 in A. absolutely. (Earl of Chatham v. TothUl, 7 Bro. P. 
 C. 453 ; Elton v. Eason, 19 Yes. 73 ; Williams v. Lewis, 
 6 H. L. C. 1013.)! 
 
 So, a bequest to A. and the heirs male of his body, or 
 to A. for life, and after his decease to the heirs male of 
 his body, is an absolute gift to A. (lb. ; Britton v. Twi- 
 ning, 3 Mer. 176.) 
 
 *" It is clearly settled, that a bequest of personal pro- r-^^ qq 
 perty to a man for life, and afterwards to the heirs of his 
 body, is an absolute bequest to the first taker. "Whatever dispo- 
 sition would amount to an estate tail in land, gives the whole 
 interest in personal property ; which is incapable of being en- 
 tailed." (Elton V. Eason, 19 Ves. 78.) 
 
 In Williams v. Lewis, 6 H. L. 0. 1013, under a bequest of 
 leaseholds in trust to permit A. to receive the rents for life, with 
 remainder to his heirs male and the heirs male of their bodies, 
 and in default of issue over, the rule was applied, and A. held 
 entitled absolutely.^ 
 
 ' Home V. Lyeth, 4 Har. & Johns. 431 ; Floyd v. Thompson, 4 Dev. & 
 Bat. 478 ; Donnell ». Mateer, 5 Ired. Eq. 7 ; Myers v. Pickett, 1 Hill Ch. 
 35 ; Choice v. Marshall, 1 Kelly 97 ; Childers v. Childers, 21 Ga. 377 ; 
 Machen v. Machen, 15 Ala. 373 ; King v. King, 12 Ohio 390. 
 
 ^ So a bequest to A. for life, remainder to the heirs of his body and 
 their heirs, is an absolute estate in A. ; Coon v. Eice, 7 Ired. 217. Words 
 of distribution do not affect the application of the rule : Ewing v. Stan- 
 derfer, 18 Ala. 400. 
 
 But in North Carolina it has been held that words of distribution, 
 "manifesting an intention that the legatees shall take distributively, and 
 as purchasers, not in succession, but all at the same time," especially 
 when followed by a gift over in case of death " without surviving child or 
 
189 ISSUE — REAL ESTATE. 
 
 The context, however, may explain the meaning of " heirs of 
 the body" to be confined to children. (Symers v. Jobson, 16 
 Sim. 267.y 
 
 ISSUE. 
 Real Estate. 
 
 The effect of the irord "issue" in devises of real estate, as a 
 word of limitation or of purchase, has been much controverted. 
 " Issue" is less technical than "heirs of the body," inasmuch as 
 it points out the objects, viz., all generations of descendants, but 
 not the manner in which they are to take, i. e., by descent as 
 heirs. In the important case of Roddy v. Fitzgerald, 6 H. L. C. 
 823, the ratio decidendi of the Lords shows the disposition of the 
 Courts now to be, to place " issue" as nearly on a level with the 
 technical words "heirs of the body" as the course of previous 
 decisions will admit: and although it was formerly said that 
 "issue" was either a word of purchase or limitation, as would 
 best answer the intent of the devisor (Doe v. Collis, 4 T. R. 
 294),^ it is now firmly established as a rule of construction, 
 that — 
 
 Rule. In devises of real estate, " issue" is primd facie 
 
 children'' will, in a gift of personal property, take the case out of the 
 rule. Jesson v. Wright is considered applicable to real estate only : Allen 
 t). Pass, 4 Dev. & Bat. 77 ; Swain v. Rascoe, 3 Ired. 200 ; Lilliard v. Rey- 
 nolds, Id. 366. In a gift of personalty to A. for life and after her death 
 to the heirs of her body, their executors, administrators, or assigns, it has 
 been held that the heirs of the body take aa purchasers : Bradley tv 
 Mosby, 3 Call 56. 
 
 In South Carolina and Georgia it has been held that in a gift of per- 
 sonalty to A. and the heirs of his body, a gift over in event of the death 
 of A. without heirs of his body or issue living at his death, takes the case 
 out of the rule, and the heirs of his body take as purchasers : Nix v. Ray, 
 5 Rich. 423 ; Carlton v. Carlton, 10 Ga. 496 ; Jones v. Jones, 20 Id. 701. 
 
 ' Re Jeaffreson's Trusts, L. R. 2 Eq. 279. 
 
 ' In accordance with the doctrine of Doe v. Collis are Wells v. Ritter, 3 
 Whart. 217 ; Taylor v. Taylor, 63 Penn. St. 483 ; Chelton v. Henderson. 9 
 Gill 436. 
 
ISSUE A WORD OF LIMITATION. 189 
 
 a word of limitation, and equivalent to '-heirs of the body." 
 (Roe d. Dodson v. Grew, Wilm. 272; Roddy v. Fitz- 
 gerald, 6 H. L. C. 823 ; Woodhouse v. Herrick, 1 K. & 
 J. 352.)^ 
 
 *Thus, a devise to A. and his issue, or to A. for p-gg 
 life, and after his decease to his issue, vests in A. ' 
 an estate tail. (Roddy v. Fitzgerald, 6 H. L. C. 823.)^ 
 
 " The word issue is ex vi termini nomen collectivum and takes 
 in all issue to the utmost of the family, as far as heirs of the 
 body could do." (Per Rainsford, J., Warman v. Seaman, Finch 
 282.) 
 
 In Harrison v. Harrison, 7 M. & Gr. 938 (E. C. L. R. vol. 
 49), the testator devised his " estates" to his children as tenants 
 in common, with remainder to their issue as tenants in common, 
 with no gift over : the words importing distribution among the 
 issue being held (apparently) to mean distribution per stirpes 
 only, it was held that the children took as tenants in common in 
 tail. The case is thus an authority that under a devise to A. for 
 life, with remainder to his issue, if neither words of limitation nor 
 of distribution be annexed to the gift to the issue, A. takes an 
 estate tail, although there be no gift over on failure of his issue, 
 and although the issue be capable of taking the fee as purchasers: 
 as they would be in every case where the will is subsequent to 
 1837.3 
 
 Words of distribution rejected. — And if, in a will made before 
 1838, lands be devised to A. for life, with remainder to his issue 
 share and share alike as tenants in common, or with other words 
 implying that the issue are to take concurrently, and there is a 
 
 ' Kingsland v. Rapelye, 3 Edw. Ch. 6 ; Angle v. Brosius, 43 Penn. St 
 189. 
 
 ' Rancel v. Creswell, 30 Penn. St. 158 ; Buist v. Dawes, 4 Strobh. Eq. 47. 
 
 " Kingsland v. Rapelye, 3 Edw. Ch. 8. " Offspring" is synonymous with 
 issue, and a devise to A. for life remainder to his offspring creates an 
 estate tail: Allen v. Markle, 36 Penn. St. 117; Bramble v. Billups, 4 
 Leigh 90. 
 
190 RODDY V. FITZGERALD. 
 
 gift over on failure of issue of A., inasmuch as the issue, if taking 
 by purchase, would take for life only, the words implying distri- 
 bution are rejected, and A. is held to take an estate tail, in order 
 to carry out the general intention that all the issue should take. 
 (Doe V. Applin, 4 T. R. 82 ; Kavanagh v. Morland, Kay 16 ; 
 Roddy V. Fitzgerald, 6 H. L. C. 823 ; "Woodhouse v. Herrick, 1 
 K. & J. 352.) 
 
 And, in such a case, there is no authority for the construction 
 
 which would give to the issue estates for life by purchase, with 
 
 an estate tail in remainder only to the *parent by impli- 
 
 -■ cation. (Roddy v. Fitzgerald, 6 H. L. C. 823 ; see per 
 
 Crompton, J., p. 859.) 
 
 In Roddy v. Fitzgerald, 8 H. L. C. 823, lands were devised 
 to A. for life, and after his decease to his issue in such manner, 
 shares, and proportions as A. shall appoint, and in default of 
 appointment to his issue equally if more than one, and if only 
 one child to said child, with a gift over on failure of issue of A. 
 It was held that, there being an express devise to the issue in 
 default of appointment, the estates for life which the issue would 
 take, if taking by purchase, could not be enlarged by implication 
 from the terms of the power, and therefore A. was held to take 
 an estate tail : the words " if only one child," &c., not being held 
 to vary the construction. 
 
 In Doe V. Rucastle, 8 C. B. 876 (E. C. L. R. vol. 54), the 
 devise was of lands to A. for life with remainder to his issue, if 
 more than one equally amongst them, with a gift over if A. 
 should die without issue living at his death : and A. was held to 
 take an estate tail. 
 
 Whether, in the case of there being words of distribution 
 annexed to the gift to issue, but the issue not being capable of 
 taking the fee, the first taker would be held to take an estate tail, 
 if there were no gift over, or whether the issue would take estates 
 for life by purchase, qu. 1 
 
 Where, however, there are words of distribution, and the issue 
 can take the fee as purchasers, the rule is different, although there 
 be a gift over on failure of issue of the first taker : as will appear 
 subsequently. 
 
ISSUE TAKING BY PURCHASE. 191 
 
 Issue taking by Purchase. 
 
 Notwithstanding that, as before observed, the dispositions of 
 the courts now is to place " issue " as nearly as may be on a level 
 with " heirs of the body," yet the cases, of which Lees v. Mosley, 
 1 Y. & C. 589, is the leading authority, establish a marked dis- 
 tinction between the two expressions, showing that a less demon- 
 strative context will suffice, in certain cases, to convert "issue" 
 into a word of purchase, than to alter the meaning of *the r^-iq^ 
 technical words " heirs of the body." * Words of distri- ^ 
 bution are insufficient to alter the meaning of " heirs of the body" 
 (Jesson V. Wright, 2 Bligh 1) ; but words of distribution and of 
 hmitation, annexed to a devise to issue, suffice to show an inten- 
 tion that the issue should take by purchase : it being a rule that — 
 
 Lees V. Mosley. 
 
 Rule. "Where there is a devise to one for life, with 
 remainder to his issue as tenants in common, with a limi- 
 tation to the heirs general of the issue, the issue take as 
 purchasers in fee." (Per Parke, J., Slater v. Dangerfield, 
 15 M. & W. 273; Lees v. Mosley, 1 T. & C. 589 ; Green- 
 wood V. RothweU, 5 Man. & G. 628 (E. C. L. R. vol. 44) ; 
 6Beav. 492.)'' 
 
 The rule, that words of limitation and distribution (together) 
 convert "issue" into a word of purchase, applies, although there 
 
 ' In Chelton v. Henderson, 9 Gill 432 ; Tongue v. Nutwell, 13 Md. 416, 
 it is held that where there is a clearly expressed intention to create an 
 estate for life only in the first devise, the issue will take as purchasers ; 
 and in the latter case it was so held notwithstanding a gift over upon an 
 indefinite failure of issue. 
 
 In South Carolina the rule of Nix v. Ray is followed in gifts to issue, 
 and if there be a gift over on a definite failure of issue the issue take as 
 purchasers : 'Willianis ». Caston, 1 Strobh. 130 ; Buist v. Dawes, 4 Rich. Eq. 
 421. 
 
 ' Powell V. Board of Missions, 49 Penn. St. 54. In New York, Kings- 
 land V. Rapelye, 3 Edw. Ch. 1, is directly contrary to this rule. 
 
192 ISSUE A WOED OF PURCHASE. 
 
 be gift over, in the event of the first taker dying without issue, 
 or without leaving issue : and the gift over takes effect as an 
 alternative contingent remainder, in the event of there being no 
 issue to take the fee as purchasers. (Golder v. Crop, 5 Jur. N. 
 S. 252 ; Lees v. Mosley, 1 Y. & 0. 589 ; Kavanagh v. Morland, 
 Kay 16.) " I have always considered that where an estate is 
 given to the ancestor, and there is a direction that it is after- 
 wards to go to the issue of his body, and the mode in which the 
 issue are to take is specified, with words added giving them the 
 absolute interest, then the ancestor takes an estate for life and 
 not an estate tail, although there is a devise over in the event of 
 the ancestor not having {qu. leaving ?) any issue." (Per Romilly, 
 M. R., 5 Jur. N. S. 252.) 
 
 It would appear that the rule should apply, and the issue take 
 by purchase, wherever there are words of limitation inconsistent 
 with an estate tail in the ancestor, added to words of distribution. 
 As, if the devise were to A. for life, remainder to his issue and 
 
 their heirs male as *tenants in common, the issue should, 
 *193n 
 
 -■ it would seem, take estates by purchase in tail male. 
 
 And in Parker v. Clarke, 6 D. M. Gr. 106, under a devise to 
 
 several in equal shares and the survivors and survivor for life, 
 
 with remainder to their issue as tenants in common and the heirs 
 
 of their bodies, with cross remainders in tail between the issue, it 
 
 was held that the issue took as purchasers. 
 
 Words of distribution alone. — The principle of Lees v. Mos- 
 ley has been extended further ; and the law appears to be, that 
 where there is a devise to one for life and after his decease to 
 his issue, with words of distribution (as, to the issue, " share and 
 share alike as tenants in common," "equally to be divided 
 among them," &c.) annexed to the gift to the issue, but without 
 superadded words of limitation : yet, if the issue taking by pur- 
 chase can take the fee by the terms of the devise, the issue take 
 by purchase, words of distribution alone being held to control the 
 meaning of "issue," though ineffectual with respect to the more 
 highly technical words "heirs of the body." This doctrine, 
 founded on Hockley v. Mawbey, 3 Bro. C. C. 82, was expressly 
 
MONTGOMERY V. MONTGOMERY. 193 
 
 laid down in Montgomery v. Montgomery, 3 Jo. & Lat. 47, and 
 Crozier v. Crozier, 3 D. & War. 373, by Lord St. Leonards, 
 and recognised as valid in Kavanagh v. Morland, Kay 16, and in 
 the opinions of the judges in Roddy v. Fitzgerald, 6.H. L. C. 
 823 ; and was not impugned by the Lords who decided the latter 
 case.^ 
 
 Thus if the devise be of an " estate," or of the testator's 
 " part" of lands to one for life, with remainder to his issue, or 
 issue male, share and share alike (Montgomery v. Montgomery, 
 3 Jo. & Lat. 47), or if the devise be to A. for life, with remain- 
 der to his issue, to be divided amongst them as A. should appoint, 
 subject to the payment of an annuity by the persons becoming 
 entitled under the devise (Crozier v. Crozier, 3 D. & War. 373), 
 the issue take a constructive fee simple as purchasers. So if the 
 devise be to A. for life, with remainder to his issue as tenants in 
 common, with a gift over in the event of the *issuc di/ing p^^ q . 
 U7ider twenty-one (Doe v. Burnsall, 6 T. R. 30), the 
 issue taking the fee by force of the gift over, take as purchasers. 
 
 And the case is the same, although there be a gift over in the 
 event of the ancestor dying without issue ; the gift over being 
 construed as an alternative contingent remainder, to take effect in 
 the event of there being no issue to take the fee by purchase 
 under the gift to them. (Montgomery v. Montgomery, 3 Jo. & 
 Lat. 47 ; Kavanagh v. Morland, Kay 16. J " If there be a gift 
 to the issue, and a limitation in the will with reference to them, 
 which has the effect of giving them the fee simple, then if there 
 be a gift over in case of dying without issue, the gift over affords 
 no evidence of intention to justify the application of the rule in 
 Shelley's Case, because the fee was in the issue, and the words 
 "dying without issue," are consequently held to mean only such 
 issue as were before mentioned, as in the cases of Hockley v. 
 Mawbey, 1 Ves. jr. 142 ; and Leeming v. Sherratt, 2 Hare 14.) 
 But it must first be made out that the fee is in the issue as pur- 
 chasers." (Kavanagh v. Morland, Kay 16.) 
 
 ^ The doctrine of Montgomery v. Montgomery, was approved in Brad- 
 ley V. Cartwright, L. R. 2 C. P. 521. 
 
194 SUPERADDED WORDS OE LIMITATION, 
 
 Words of distribution referred to first takers. — But where the 
 devise is, not to one, but to several, as tenants in common for 
 life, with remainder to their issue " as tenants in common," or 
 "equally to be divided," the words of distribution may he re- 
 ferred to the first takers, so as to import distribution among the 
 issue per stirpes only ; and thus the first takers may be held to 
 take estates tail as tenants in common, although the issue might 
 be capable of taking the fee as purchasers. (Tate v. Clarke, 1 
 B. 100 ; Harrison v. Harrison, 7 M. & Gr. 938, E. C. L. K. 
 vol. 49.) 
 
 Wills since 1837. — The result of the doctrine of Montgomery 
 V. Montgomery will be, as regards wills made or republished on 
 or after January 1, 1838, that under a devise to A. for life, and 
 after his decease to his issue as tenants in common, A. will take 
 for life only, and his issue born in his lifetime will take the fee 
 simple in remainder, notwithstanding a gift over on failure of 
 issue of A.* 
 
 Words of limitation only. — Whether, under a devise to 
 oj *j^ foj, ijfg^ and after his decease to his issue, words of 
 limitation alone, superadded to the gift to issue, without words 
 implying that the issue are to take concurrently, are sufficient 
 to convert " issue" into a word of purchase, is not yet completely 
 settled. 
 
 It is clear that if the words of limitation do not enlarge the 
 course of descent, as if the devise be to A. for life, with remain- 
 der to his issue and the heirs of their bodies, or to his issue male 
 and the heirs male of their bodies, there is no ground for exclud- 
 ing the ordinary rule, and A. will take an estate in tail or in tail 
 male. (Roe v. Grew, Wilmot 272.) And it would appear to 
 be immaterial, whether there be or not a gift over on failure of 
 issue of A. 
 
 Again, a devise to A. for life, with remainder to his issue and 
 their heirs, or heirs and assigns, followed by a gift over on failure 
 of issue of A., vests in A. an estate tail ; the limitation to the 
 
 ' This was expressly decided in North Carolina in respect to their 
 statute of 1784 : "Ward v. Jones, 5 Ired. Eq. 400. 
 
WORDS OP EXPLANATION. 195 
 
 heirs general of the issue being restrained to heirs of the body 
 by force of the gift over, so as to reduce the devise to one to A. 
 for life with remainder to his issue and the heirs of their bodies. 
 (Frank v. Stovin, 3 East 348 ; Denn v. Puckey, 5 T. K. 299 ; 
 Franklin v. Lay, 6 Madd. 258.)i 
 
 But under a devise to A. for life, with remainder to his issue 
 and their heirs, without a gift over on failure of issue of A., it 
 has been laid down by Lord St. Leonards in Montgomery v. 
 Montgomery, 3 Jo. & Lat. 47, that the words of limitation ex- 
 clude the rule, and that the issue take by purchase. This appears 
 to rest on the authority of Doe d. Cooper v. Collis, 4 T. R. 294, 
 where an estate was devised in moieties,: viz., one moiety to A. 
 and his heirs, and the other moiety to B,. for life, and after his 
 decease to his issue and their heirs ; and it was held that the 
 issue took by purchase. In this case the devise of the other 
 moiety strongly favored the construction. 
 
 On the other hand, in Parker v. Clarke, 6 D. M. Gr. 109, 
 Lord Cranworth, C, said, " I quite agree with the general rule 
 which has been advanced in the argument, that where the gift is 
 to one for life, and after his death *to the issue of his body p^.. „/. 
 and the heirs of such issue for ever, there by the addition 
 of words of limitation, the testator is merely using words which 
 are idle, and which shall not prevail to convert the word ' issue' 
 into a word of purchase." And considering the disposition 
 shown in Roddy v. Fitzgerald, 6 H. L. C. 823, to put a devise 
 to "issue" more nearly on a level with "heirs of the body," it 
 ' may perhaps be doubted whether Montgomery v. Montgomery 
 is, on this point, an authority at the present day.^ 
 
 1 Paxson V. Lefferts, 3 Rawle 59; Taylor v. Taylor, -63 Peiin. St. 484.* 
 ' In Soufh Carolina, in a devise to A. for life, remainder to his is&ue for 
 ever, it is held that the words " for ever'' being equivalent to a limitation 
 in fee to the issue, they take as purchasers : Myers v. Anderson, 1 Strohh. 
 Eq. 344 ; M-Lure v. Young, 3 Eieh. Bq. 376. 
 
 In North Carolina (Ward v. Jones, 5 Ired. Eq. 405), it is held that the 
 Act of 1784 converting estates tail into estates in fee simple, has the effect 
 of putting devises and bequests on the same footing in respect to the con- 
 struction of gifts to A. for life, with remainder to the heirs of his body, his 
 issue, &c. ; so that any words which in a bequest of personalty would be 
 15 
 
196 EXECUTORY TRUSTS. 
 
 Words of explanation. — The word "issue" may^ of course, 
 like " heirs of the body," be converted into a word of purchase 
 by words of explanation ; as if the devise be to A. for life, with 
 remainder to his issue male, '* the eldest of such sons always to 
 he preferred before the youngest," &c. (Mandeville v. Lackey, 
 3 Ridg. P. C. 352.) But the expression, " and if but one child, 
 the whole to said child," following a devise to issue, does not 
 imply that " issue" is confined to children. (Roddy v. Fitzger- 
 ald, 8 H. L. C. 828.y 
 
 But where ^ersonaZ estate was given to the issue of A., "and 
 if only one child, then to such one child," it was held that 
 " issue" was confined to children. (Carter v. Bentall, 2 B. 551.) 
 
 Executory trusts. — The rule which construes "issue" as a 
 word of limitation in devises does not apply so strictly to a direc- 
 tion to settle lands by way of executory trusts. Thus, if land 
 be directed to be settled on A. for life, with remainder to his 
 issue, A. will be held to take for life only. (Meure v. Meure, 2 
 Atk. 265 ; Lord Glenorchy v. Bosville, Cas. t. Talb. 8.) So if the 
 direction be to settle on A. and his issue male by his present wife. 
 (Parker v. Bolton, 5 L. J. Ch. N. S. 98.) And in Hadwen v. 
 Hadwen, 23 B. 551, under a direction to purchase lands to be 
 settled on A. for life, " and then divided among his issue if any," 
 the children of A. were held to take as tenants in common in 
 tail, with cross remainders. 
 
 *"ZssMe" in relation to personal estate, — The rule, 
 
 *197T 
 
 -■ that " issue " is primd facie a word of limitation, does not 
 
 extend to bequests of personal estate. (Knight v. Ellis, 2 Bro. 
 
 C. C. 570 ; Ex parte Wynch, 5 D. M. G. 188.) If it be clear 
 
 that the testator intended to make such a disposition of personal 
 
 estate as would in the case of real estate amount to an estate tail, 
 
 construed words of purchase, will be so construed in a devise of realty made 
 since that act. And in South Carolina, the fact that estates tail have never 
 existed has been held to the same efPect on the construction of such devisesi 
 Buist ». Dawes, 4 Rich. Eq. 423. 
 
 ' The expression, " such issue to inherit their mother's rights," confines 
 the meaning of the word issue to children, and they therefore take as pur- 
 xhasers: Taylor v. Taylor, 63 Penn. St. 484. 
 
BEQUEST TO A. AND HIS ISSUE. 197 
 
 the first taker will take the absolute interest : but it is not the 
 case that every expression which would create an estate tail in 
 real estate, will be held to indicate the same intention in the case 
 of personal estate. On this point Ex parte Wynch establishes a 
 distinction with respect to " issue," similar to that in Forth v. 
 Chapman, 1 P. Wms. 663^ with respect to " die without leaving 
 issue." 
 
 Thus if personal estate or chattels real be given to A. for life, 
 and after his decease to his issue, A. takes for life only, and the 
 issue take in remainder : although there be a gift over on failure 
 of issue of A. (Knight v. Ellis, 2 Bro. C. C. 570 ; Ex parte 
 Wynch, 5 D. M. Q. 188 ; Goldney v. Crabb, 19 B. 338.)' 
 
 Bequest to A. and Ms issue. — And although it was formerly 
 held that a bequest of personal estate to A. and his issue M'as an 
 absolute gift to A. (Parkin v. Knight, 15 Sim. 83), it would 
 appear that this construction would not now be adopted, even 
 though, as was the case in Parkin v. Knight (but as was also the 
 case in Forth v. Chapman), real and personal estate be given 
 together by the same words. A gift of real estate to A. and his 
 issue of course confers an estate tail ; but a bequest of personal 
 estate to A. and his issue would seem to be governed by the same 
 rules (so far as the gift to issue is concerned) as a bequest to the 
 issue of A. simpliciter. Thus, if the gift be immediate, A. and 
 his issue (if any) living at the testator's death would take in joint- 
 tenancy ; and if the gift be deferred, issue subsequently born 
 before the period of distribution would be admitted along with 
 them ; and if no issue had come into existence before the period 
 of distribution, A. would take the whole. But slight circum- 
 stances would probably be *held to show an intention that r-;,,-. qq 
 the issue should take in remainder, after a life interest in 
 the parent.^ 
 
 1' Myers's Appeal, 49 Penn. St. 111. But Moore v. Paul, 7 Eich. Eq. 358, 
 is contrary to the rule stated in the text. Chancellor Durgan considers 
 Knight V. Ellis as overruled by Attorney-General v. Bright, 2 Keen 57, 
 which, however, is denied in Ex parte Wynch. 
 
 ' If there be a gift over in the event of A. dying without issue living at 
 his death, the issue will take as purchasers in remainder after the death of 
 A. . Henry v. Means, 2 Hill {S. C.) 328 ; Cleveland!;. Havens, 2 Beas. 101. 
 
198 EULE IN wild's CASE. 
 
 •wild's case. 
 
 GhUdren. 
 
 Although " children " is not properly a Tvord of limitation, it 
 may be used as such, if the intention appear ; but the presump- 
 .tion is against its being so used, except in the particular case fol- 
 lowing, viz. : — 
 
 Rule. A devise of real estate to A. and his children, A. 
 having no children at the time of the devise, vests in A. 
 an estate tail : " children " being construed as a word of 
 limitation. (Wild's Case, 6 Rep. 17 ; see Webb v. Byng, 
 2K.& J. 669.)^ 
 
 ' Nightingale v. Burrell, 15 Pick. 104; Wheatland v. Dodge, 10 Mete. 
 502 ; Parkman v. Bowdoin, 1 Sumn. 359 ; Hilliary v. Hilliary, 26 Md. 
 275 ; Miller v. Hart, 12 Ga. 359. 
 
 Lord Cranworth in Byng d. Byng, 10 H. L. C. 178, says, " I have qualified 
 the rule as stated hy Lord Coke by introducing the ■words " prim& facie ;" 
 and it is clear that in acting on the rule in both its branches, the Courte 
 have ahvays considered themselves at liberty to disregard it where an ad- 
 herence to it would defeat the intention of the testator as collected from 
 other passages in the will." And in Greive v. Greive, L. E. 4 Eq. 180, 
 where there was a devise of a house after a life estate in the sister of the 
 testatrix, to two nieces and their children, a direction that the furniture 
 -should go with the house, was held a sufB.cient -reason for not giving estates 
 tail. 
 
 The fact that there is at the time of the devise, a child of A. en ventresa 
 mere, does not take the case out of the rule: Eoper v. Eoper, L. E. 3 
 C. P. 32. 
 
 Even though there be children at the time of the devise, if there is a gift 
 over upon the death of A. without children, A. takes an estate tail; since 
 the intent is manifest that the children should take not with, but after the 
 parent: Nightingale v. Burrell, 15 Pick. 114; Wheatland v. Dodge, 10 
 Mete 502. 
 
 Words of limitation and distribution exclude the rule, and in such case 
 the parent takes a life estate with remainder to the children : Sisson ». 
 Seabury, 1 Sumn. 242 ; Nebinger v. Upp, 13 S. & E. 68. 
 
 In Carr v. Estill, 16 B. Mon. 309, the Court refuse to follow the rule in 
 Wild's Case, holding that in this country where estates tail have been abol- 
 ished, and where the same precision and particularity are not observed in 
 
GIFTS TO A. AND HIS CHILDREN. 198 
 
 The rule does not apply to bequests of personal estate. 
 (Audsley v. Horn, 1 De G. F. & J. 226.) 
 
 The time of the devise appears to mean the date of the will, 
 and not the death of the testator. (Buffar t;. Bradford, 2 Atk. 
 220.) 
 
 " Children "a word of limitation. — But a deVise to A. and his 
 children may create an estate tail, although there be children at 
 the date of the will. Thus in Webb v. Byng, 2 K. & J. 669, 
 affd. 10 H. L. C. 171, where the testator devised " to A. and her 
 children all my Quendon-Hall estates in E., provided she takes the 
 name of Cranmer and arms, and her children, with my mansion 
 house, furniture, &c., as heir-looms," A. was held to take an es- 
 tate tail, the intention to preserve the estates in One body being 
 apparent. 
 
 A devise to A. and " his children for ever," or to A. and " his 
 children in succession " (Earl of Tyrone i>. Marquis of Waterford, 
 1 De Gr. E. & J. 613), will create an estate tail.' 
 
 So even the word " son " may be a word of limitation (Robin- 
 son V. Robinson, 1 Burr. 38) — "to such son as he should have 
 lawfully to be begotten" — or the word "heir," in the singular. 
 (Co. Lit. 9 b, n. (4)). 
 
 * Bequest to A. and his children.^ — A bequest of per- 
 sonal estate to A. and his children, or a similar devise of '- 
 
 the creation of remainders as in England, the reasons for the rule fail, and 
 the more reasonable and natural construction is to give a life estate to 
 the parent with remainder to the children. 
 
 1 Koper V. Roper, L. E. 3 0. P. 32. 
 
 A devise "to A., to her and her children," creates an estate tail in A. 
 although there be children at the time of the devise : Merrymans v. Merry- 
 mans, 5 Munf. 440 ; Lachland v. Downing, 11 B. Mon. 33. 
 
 Jones V. Jones, 2 Beas. 236, and Hadleman v. Hadleman, 40 Penn. St. 
 29, are instances of the word "children" being construed a word of 
 limitation. 
 
 The same construction was given to a somewhat similar devise of 
 realty, in Jackson v. Coggin, 29 6a. 403. 
 
 ' But see Appendix II. 
 
199 GUTS TO A. AND HIS CHILDKEN. 
 
 1-eal estate not within the rule in Wild's Case, is primd facie a 
 gift to the parent and children concurrently, and being a gift to 
 a class is subject to the same rules as a gift to the children of A. 
 (Crockett v. Crockett,, 2 Phill. 553 ; Webb v. Byng, 2 K. & J. 
 669 ; De Witte v. De Witte, 11 Sim. 41 ; Gordon v. Whieldon, 
 11 B. 170.)' 
 
 Thus, if the gift be immediate, A. and' his children (if any) 
 living at the death of the testator will take as joint tenants : and 
 if no children at that period, A. will take the whole. (Mason v. 
 Clarke, 17 B. 130.) If the gift be deferred, A. will take jointly 
 with his children living at the testator's death, and with those 
 subsequently born before the period of distribution (Cunningham 
 V. Murray, 1 De G. & S. 366) ; and if no such children, A. will 
 take the whole. (Read v. Willis, 1 Coll. 86.) Again, if A. pre- 
 deceased the testator, the gift would not lapse, but his children 
 would be entitled. 
 
 But slight circumstances are sufficient to show an intention 
 that the children should not take jointly with the parent. 
 (Crockett v. Crockett, 2 Phill. 553.)^ 
 
 ' See Nimmo v. Stewart, 21 Ala. 690. But in Vanzant v. Morris, 25 Id. 
 285, it was held that bequests of personalty as well as devises of realty 
 come within the rule of Wild's Case, and a bequest to A. and his children, 
 if A. has no children, is an absolute gift to A. But where the gift is not 
 immediate, the application of the rule is not necessary, and the children, 
 if there be any when the gift takes effect, take jointly with their parent. 
 And see also Echols ». Jordan, 39 Ala. 24 ; and in North Carolina, Jenkins 
 V. Hall, 4 Jones Eq. 338. 
 
 A gift of personalty to A. and her children for ever creates an absolute 
 estate in A. But any appearance of an intention that the children shall 
 take in remainder, e. g. to A. and her children if she leaves any at her 
 death, will exclude the rule : Shearman v. Angel, 1 Bail Eq. 357 ; 
 Dougherty v. Dougherty, 2 Strobh. Eq. 63. 
 
 2 Bridges v. "Wilkins, 3 Jones Eq. 342 ; Faribault v. Taylor, 5 Id. 219. 
 In a bequest " to A. and her children, heirs of her body," it was held that 
 the addition of the words " heirs of her body'' indicated that the children 
 were not to take until after the death of their mother, and it was therefore 
 a bequest to A. for life, with remainder to her children who should survive 
 her : Goss v. Eberhart, 29 Ga. 546. 
 
 In Furlow «, Merrill, 23 Ala. 705, where the bequest was " to A. entirely 
 
BLACKBORN l). EDGLEY. 199 
 
 ThusTvWe the bequest -was to A. and his children "to be 
 secured for their use," the latter words were held to refer to the 
 shares of the children only, and they were held to take in re- 
 mainder, s J" as to admit all after-born children. (Vaughan i;. 
 Marquis of Headfort, 10 Sim. 639.) So where the gift, partly 
 immediate and partly deferred, was to A. and her children, with 
 a direction that other persons should be trustees of the sum for 
 them. (Morse v. Morse, 2 Sim. 485.) 
 
 But in De Witte v. De Witte, 11 Sim. 41, a bequest of the 
 residue to trustees in trust to sell and to stand possessed of the 
 proceeds in trust for the sole use of A; and her children, inde- 
 pendent of her husband, and her receipts alone to be a sufficient 
 discharge, was leld to be a gift to A. (for her separate use) and 
 her children jointly. 
 
 In Audsley v. Horn, 1 De G. F. & J. 226, under a 
 *bequest to A. for life, and at her death to her daughter f^*^^^ 
 B. and B.'s children, B. was held to take for life only with 
 remainder to Jier children. Sect qu. 
 
 -Grift over on Failure of Issue. 
 It has been already shown that a gift over to take effect on a 
 general failure of issue, following a devise to one and his heirs, 
 or heirs and assigns^ restrains the previous devise to an estate 
 tail. It is further the rule that — 
 
 Rule. A devise of real estate to A. for life, or to A. 
 indefinitely, followed by a gift over on general failure of 
 his issue, vests in A. an estate tail. (Blackborn v. Edg- 
 ley, 1 P. W. 600; Machell v. Weeding, 8 Sim. 4.)^ 
 
 " I consider it to be a settled point, that whether an estate be 
 given in fee, or for life, or generally without any particular limit 
 
 for her benefit and her children," and A. was unmarried at the time the 
 will was made and when it took effect, it was held that it was a gift to A^ 
 for life, with remainder to her children. 
 
 ^ Hayward v. Howe, 12 Gray 49 ; Hudson v. AYadsworth, 8 Conn,s 358 j 
 Willis V. Bucher, 3 Wash. C, C. 369 ; Eidgeley v. Bond, 18 Md. 434 5 
 Sanders v, Hyatt, 1 Hawks 247 ; Addison v. Addison, 9 Rich. Eq. 58. 
 
200 CROSS-REMAINDEES IMPLIED. 
 
 as to its duration, if it be followed by a devise over in case of the 
 devisee dying without issue" p. e. in a will prior to 1837, where 
 these words import a general failure of issue], " the devisee will 
 take an estate tail." (Machell v. Weeding, 8 Sim. 7.) 
 
 But, in a will since 1837, a devise to a person indefinitely, with 
 a gift over on his death without issue, will confer an estate in fee 
 simple with ah executory devise over on death without issue living 
 at the death : and a devise for life, with the like gift over, will 
 confer only an estate for life. 
 
 Estate tail in remainder. — In some cases (Parr v. Swindels, 
 4 Russ. 283 ; Doe v. Halleyj 8 T. R. 5 ; Doe v. Gallini, 3 Ad. 
 & E. 340, E. C. L. R. vol. 30), under a devise to A. for life, 
 with remainder to his children for life or in tail, with a gift over 
 on failure of issue of the parent, A. has been held to take an 
 estate tail by implication from the gift over, in remainder after 
 *9ni -1 the estates limited to his *children ; the doctrine of these 
 cases, however, is not, perhaps, likely to be extended. 
 
 Personal estate. — A bequest of personal estate to A., with a 
 gift over on a general failure of his issue, vests the property in 
 A. absolutely, the gift over being void for remoteness. 
 
 Implication of Cross-remainders. 
 A gift over on a failure of issue generally has also the effect 
 of creating an estate by implication in the following case, viz. — 
 
 Rule. If real estate be devised to several or to a class 
 as tenants in common in tail, with a limitation over on 
 failure of issue of all the devisees, cross-remainders in 
 tail are, primd facie, to be implied amongst them. (Anon., 
 Dyer 303 b. ; Doe d. Gorges v. Webb, 1 Taunt. 234 ; 
 Vanderplank v. King, 3 Hare 1 ; Atkinson v. Barton, 3 
 DeG. J.&F.)^ 
 
 1 Taffee w. Conmee, 10 H. L. C. 64 ; Allen v. Trustees, 102 Mass. 262 ; 
 Hungerford v. Anderson, 4 Day 372 ; Eodney v. Burtin, 4 Barring. 183. 
 In Simpson v. Coon, 4 S. & R. 368, the court refused to apply the rule to 
 a devise over on failure of heirs of two devisees, " or ere one of them," 
 C. J. Gibson dissenting. 
 
 Where the devise was to three and the heirs of their bodies respectively, 
 
CROSS-REMAlNDiERS IMPIilED. 201 
 
 Thus, if the devise be to the daughters of A. and the heirs or 
 respective heirs of their bodies, as tenants in common, and in de- 
 fault of such issue over, cross-remainders in tail will be implied 
 among the daughters. (Doe v. Webb, 1 Taunt. 234 ; livesey v. 
 Harding, 1 R. & My.. 636.) 
 
 In Doe V. Burville, 2 East 47, n., the implication was sus- 
 tained, though the gift dver was introduced only by the words 
 " remainder to," kc. 
 
 The circumstance of cross-remainders being expressly limited 
 between the devisees in certain events,' does not necessarily show 
 that cross-remainders are not to be implied in other events (At- 
 kinson V. Earton, 3 De G-. F. & J.) ; although it may in some 
 cases do so. (Rabbeth v. Squire, 4 De G. & J. 406.) 
 
 Thus where the devise was to several as tenants in common 
 for life, with remainder as to the share of each to his children in 
 tail, with remainder to the survivors of sucli *children in r+pAp 
 tail, with a limitation over on failure of issue of the first 
 devisees, it was held that cross-remainders were expressly limited 
 only between the children of each devisee, but that cross-remain- 
 ders in tail were to be implied between the several sets of chil- 
 dren. (Atkinson v. Barton, 3 De G. F. & J. 339.)i 
 
 Cross-remainders for life implied. — Similarly, where real es- 
 tate is devised to several or to a class as tenants in common for 
 life, with a gift over on the decease of all the devisees, or on the 
 decease of the survivor, cross-remainders for life may be implied, 
 among them. (Ashley t;. Ashley, 6 Sim. 358 ; Vanderplank v. 
 King, 3 Hare 1.)^ 
 
 and in default of such issue of any of them over, it was held that the re- 
 mainder over did not take effect until the failure of all the issue of each of 
 them, and cross-remainders were therefore implied : Powell v. Howells, 
 L.R. 3Q. B. 654. 
 
 ' Atkinson v. Barton, was reversed in the House of Lords (10 H. L. C. 
 313), but upon grounds not affecting the positions in law taken by Justice 
 Turner. 
 
 * Dow V. Doyle, 103 Mass. 489 ; Turner v. Fowler, 10 Watts 325 ; Kerr 
 V. Vernor, 66 Penn. St. 326. This rule was not observed in Bulkley v. 
 Bulkley, 1 Root 78. 
 
202 CROSS LIMITATIONS FOB LIFE. 
 
 And where the devise was to the children of A. as tenants in 
 common for life, with remainder to their children in tail, and 
 with a gift over on failure of issue of A., and some of the chil- 
 dren of A. were held to take estates tail by the rule of cypres, 
 it was held that the inequality thus created in the estates of the 
 children, some being tenants for life, and others in tail, was no 
 objection to the implication of cross-remainders among them. 
 (Vanderplank v. King, 3 Hare 1.) 
 
 Bequests of personal estate. — And if personal estate be given 
 to several, or to a class, as tenants in common for life, with a 
 gift over on the death of all, or on the death of the survivor, 
 cross-limitations for life may be implied among them. (Pearce 
 V. Edmeades, 3 Y. & C. 246 ; Malcolm v. Martin, 3 Bro. C. C. 
 50 ; Begley v. Cook, 3 Drew. 662 ,y This seems a better con- 
 struction than to reject the words importing tenancy in common, 
 as' suggested in Armstrong v. Eldridge, 3 Bro. C. C. 215, and 
 Pearson v. Cranswick, 31 B. 624. 
 
 " Surviving " read as " other." — Where there is a gift to 
 several, or to a class, as tenants in common in tail, with remain- 
 
 1 Wood V. Draycott, 2 N, R. 55 ; Loring v. Coolidge, 99 Mass. 191.. 
 
 But the limitation may be such that each takes an interest in his share 
 for the life of the longest liver, as where an annuity is given to several as 
 tenants in common during their joint lives, or the life of the longest liver, 
 or survivor of them, in which case the shares of those dying during that 
 period go to their personal representative : Bryan v. Twigg, L. R. 3 Ch. 
 App. 183. 
 
 No implication of cross-remainders can arise from a devise in fee, or an 
 absolute bequest of personalty with gift over in the event of all dying 
 without issue living at death, or under twenty-one, or the like : Weyman 
 V. Ringold, 1 Bradf. 46 ; Fenby v. Johnson, 21 Md. 106 ; Picot v. Armi- 
 stead, 2 Ired. Eq. 226. " Cross-remainders are implied amongst tenants in 
 tail, to prevent a chasm in the limitations, inasmuch as some of the estates 
 tail might expire, while the ulterior devise could not take eifect until the 
 failure oi all. But in cases of limitations in fee of real estate and of abso- 
 lute estates in personal property, the gift vesting in the persons to whom 
 the testator has given his whole estate, upon their death it will vest in 
 their legal representatives, and thus a chasm cannot occur, while the 
 ultimate devise is awaiting the contingency upon which it is to take effect :" 
 Fenby v. Johnson, 21 Md. 111. 
 
SURVIVOR MEANING OTHER. 202 
 
 der as to the share of each of the " survivors " or "surviving" 
 devisees in tail, with a limitation over on failure of issue of all 
 the devisees, the words " survivor " or " surviving " will he con- 
 strued as "other," so as to create cross-remainders among the 
 devisees by express *limitation ; either in a deed or will. p^g„„ 
 (Doe V. Wainewright, 5 T. R. 427 ; Cole v. Sewell, 2 H. ■- 
 L. C. 186 ; Smith v. Osborne, 6 H. L. C. 375.y 
 
 Although in other cases "surviving" may be read as "other" 
 if the case require it (Wilmot v. Wilmot, 8 Ves. 10), the later 
 authorities are adverse to this construction. Thus, if personal 
 estate be given to several, or to a class, as tenants in common, 
 either for life or absolutely, with a gift over of the shares of those 
 dying without issue to the survivors, but without a gift over on 
 failure of issue of all: the word "survivor" will be construed 
 strictly. (Milsom v. Awdry, 5 Ves. 465 ; Crowder v. Stone, 3 
 Russ. 217 ; Re Corbett's Will, Johns. 591.)^ 
 
 1 Hurry u. Morgan, L. R. 3 Bq. 152 ; Re Thorp's Estate, 1 De G. J. & S. 
 453 ; Badger v. Gregory,- L. R. 8 Eq. 78 ; Pond v. Bergh, 10 Paige 140 ; 
 Clark ». Baker, 3 S. & R. 470 ; Shaw jr. Hoard, 18 Ohio St. 227 ; Lilli- 
 Bridge ». Addie, 1 Mason 240. 
 
 Where the gift over is upon the death of any members of one class to 
 the survivors of another class, "survivors" cannot be read "others," 
 as where a gift is made to the testator's sons and daughters, and upon the 
 death of any of his daughters without children, her or their share "to the 
 survivors of them my said sons and daughters i" De Garagnol ». Liardet, 
 32Beav. 608. 
 
 If the ultimate gift over is in the event of all dying without issue living 
 at death, the necessity of construing " survivors " as " others " ceases ; for 
 on the death of any one leaving issue at death, the ultimate gift over is 
 defeated : Skinner v. Lamb, 3 Ired. L. 155 ; Turner v. Withers, 23 Md. 42. 
 
 ' Re Usticke, 35 Beav. 338 ; Clason v. Clason, 18 Wend. 369 ; Guernsey 
 ». Guernsey, 36 N. Y. 267 ; Cooper v. Townsend, 1 Spenc. 366 ; Dooling v. 
 Hobbs, 5 Harring. 405 ; Turner v. Withers, 23 Md. 18 ; Spruill v. Moore, 5 
 Ired. Eq. 284 ; Lowry w. O'Bryan, 4 Rich. Eq. 262 ; Deboe v. Lowen, 8 B. 
 Monr. 616. 
 
 Where however the main purpose of the testator seems to have been to 
 make an equal distribution of his estate among his children and to secure 
 it to his descendants, it has been held that survivors will be construed 
 "others " with a gift ov«r on the failure of the issue of all : Harris v. Berry, 
 7 Bush 114. 
 In Pennsylvania, in a devise to several as tenants in common, with gift 
 
203 RULE IN FAIRFIELD V. MORGAN. 
 
 But in this case the gift over on d;ying -without issue would 
 probably (even in a will prior to 1838) be restrained by force of 
 the word "survivor" to a failure of issue at the death of each 
 legatee. (Hughes v. Sayer, 1 P. W. 534. See next chapter.) 
 
 FAIRFIELD V. MORGAN. 
 
 "Or" read as "And." 
 
 It is an ancient rule of construction (the principle of which, 
 however, would not be extended at the present day),* to avoid dis- 
 inheriting issue, that — 
 
 Rule. If real estate be devised to A. in fee simple with 
 a limitation over in the event of A. djdng under twenty- 
 one or without issue, the word " or" will be read "and," 
 and the gift over will be construed to take effect only in 
 the event of A. dying under twenty-one and without issue. 
 (SouUe V. Gerard, Cro. Eliz. 625 ; Fairfield v. Morgan, 2 
 B. ^ P. N. R. 38 ; Right v. Day, 16 Bast 69 ; Eastman 
 V. Baker, 1 Taunt. 174.)^ 
 
 over to the survivors in case of the death of any without issue, " sm-vivors" 
 will be read " others," although there be no gift over on the failure of the 
 issue of all : Lapsley v. Lapsley, 9 Penn. St. 130 ; Lewis' Appeal, 18 Penn. 
 St. 318. 
 
 ' Grey V. Pearson, 6 H. L. C. 61 ; Coates v. Hart, 32 Beav. 349 ; Reed v. 
 Braithwaite, L. R. 11 Eq. 514 ; Robertson v. Johnson, 24 Ga. 103. 
 
 ' Sayward v. Sayward, 7 Greenl. 210 ; Ray v. Bnslin, 2 Mass. 554 ; Car- 
 penter V. Heard, 14 Pick 449 ; Arnold v. Buffum, 2 Mason 208 ; Jackson v. 
 Blanstram, 6 Johns. 54 ; Roome v. Phillips, 24 N. Y. 469 ; Holcombe v. 
 Lake, 1 Dutch. 605 ; Doebler's Appeal, 64 Penn. St. 14 ; Dallam v. Dallam, 
 7 Har. & Johns. 239 ; Watkins v. Sears, 3 Gill 492 ; Neal v. Cosden, 34 Md. 
 422; Brewer v. Opie, 1 Call 212 ; Dickenson «. Jordan, 1 Murph. 380; Fen- 
 nell V. Ford, 30 Ga. 707 ; Ward v. Barrows, 2 Ohio St. 247 ; Kendig v Smith, 
 39 111. 300. And so in a devise to A. provided he attain twenty-one and 
 has issue, "and" will be read, "or:" Sayward ». Sayward, 7 Greenl. 210. 
 
 The rule applies although the devisee is over the age specified at the 
 
RULE IN FAIRFIELD v. MORGAN, 203 
 
 ^ "A multitude of decisions have established, that the disjunc- 
 tive word ' or' in a devise of this kind is to be construed as the 
 copulative ' and,' to avoid the mischief *which would other- r-^^^. 
 wise happen, of carrying over the estate if the first devi- '" 
 see died under the age of twenty-one, though he had left issue; 
 when it was the apparent intention of the devisor that both events 
 should happen, the dying under twenty-one, and without issue, 
 before the estate should go over. Then at the age of twenty-one, 
 the testator contemplated that the devisee would take the fee, 
 and consequently the power of disposing of the estate in what way 
 he pleased ; the testator leaving it to the devisee, after his attain- 
 ing twenty-one, to make what provision he pleased for his issue, 
 if he had any : but only providing in the , event of the devisee 
 dying before twenty-one, that the estate should not go over from 
 the issue." (Right v. Day, 16 East 69.) 
 
 The rule applies where the gift over is in the event of the de- 
 visee dying under any other age (as twenty-five), or without issue 
 (Fairfield v. Morgan, 2 B. & P. N. R. 38) : and where the gift 
 over is in the event of death under the given age or without 
 issue living at the death. (lb.) 
 
 The rule applies where the devise to A. is of a constructive fee 
 , simple only (in a will prior to 1838), as if the devise be of an 
 "estate" or subject to a payment by the devisee. (Fairfield v. 
 Morgan, 2 B. & P. N. R. 38.) And inasmuch as a devise to A. 
 indefinitely, with a gift over on his death under a given age with- 
 out issue, confers a constructive fee simple, it would appear that 
 
 date of the will : China v. "White, 5 Bich. Eq. 426 ; Hauer v. Shitz, 2 Binn. 
 545. 
 
 If the devise be " to A., and if he should die before he attain the age of 
 twenty -one, or without lawful heir, in either case''' over, " or" cannot he 
 read as " and:" Brook v. Croxton, 2 Gratt. 597. But where the gift over 
 was, if A. die before he attain the age of twenty-one years, unniarried, or 
 without lawful issue, then or in either case to B., it was construed so as to 
 read if A. should die under twenty-one and unmarried, or under twenty- 
 one and without issue : Scott v. Price, 2 S. & R. 59. 
 
 The rule applies to a gift over in case A. die under twenty-one or un- 
 >married : Roome v. Phillips, 24 N. Y. 468 ; Hunt v. Hunt, 11 Meto. 88. 
 
204 RULE IN FAIBFIBLD V. MORGAN. 
 
 the rule applies -where the devise is to A. simpliciter, in wills as 
 •n-ell before as after 1837.' 
 
 But if the devise be to A. for life only, the rule would not apply. 
 
 And the rule does not apply wliere the devise to A. is of an 
 estate tail. (Mortimer v. Hartley, 6 Exch. 47.)^ 
 
 In Johnson v. Simcox, 7 H. & N. 344, Ex. Ch., the devise 
 was to B. if A. (the heir-at-law of the testator) should die under 
 twenty-one or without issue, but in case A. should have issue, to 
 A. and his heirs : it was held that the rule applied, and that A. 
 took the fee simple by descent, to the exclusion of B., although 
 A (having attained twenty-one) died without issue.^ 
 
 ' Shands v. Kogers, 7 Kioh. Eq. 422 ; Chew v. Weems, 1 Har. & McH, 
 463. But the rule will be more readily overcome by the context in such a 
 case : Parker v. Parker, 5 Meto. 134. 
 
 ■" It is held in New Jersey that it does : Holcomb v. Lake, 1 Dutch. 611. 
 In South Carolina where the statute de donis was never in force, the rule 
 applies to a devise of a fee conditional : Ward v. Waller, 2 Spear 786. 
 
 ' Estates tail have been entirely abolished and converted into fees simple 
 in New Hampshire (by Statutes of 1789 : Jewel v. Warner, 35 N. H.) ; Vir- 
 ginia (by Act, Oct. 7, 1776); North Carolina (by an Act of June 2, 1784) ; 
 Florida (ActNov. 17, 1829); Alabama (Act of 1812); Mississippi (Act of 13th 
 June, 1822) ; Kentucky ; Tennessee (Act of 1784) ; Indiana (Rev. Stat. 
 1852) ; Michigan (by an Act of 1820) ; and Iowa by an Act of Mar. 2, 1821. 
 
 In Jordan v. Roach, 32 Miss. 616, it was stated that the statute De Bonis 
 was never in force in Mississippi. Nor was it ever in force in South 
 Carolina (Murrell v. Matthews, 2 Bay 397), a devise to one and the heirs 
 of his body, there creating a fee conditional at common law. See Jones 
 V. Pestell, State Rep. (Harper) 92 ; Edwards v. Barksdale, 2 Hill Ch. 184 ; 
 Barsdale v. Gawrage, 3 Rich. Eq. 271. 
 
 All devises made in Pennsylvania after 27th April, 1855 ; in Georgia after 
 21st December, 1823 ; in Ohio after June 1, 1812 ; which would otherwise 
 create a fee tail, shall, by virtue of the statute, pass an estate in fee simple. 
 In Wisconsin (by an Act taking effect July 4, 1839), and in Minnesota (by 
 an Act of 1856), all estates tail vesting in possession after the respective 
 acts took effect shall be estates in fee simple, though probably such has 
 been the law of Wisconsin since 1836. In Vermont (by Revised Statutes, 
 taking effect July 1, 1840) ; Connecticut (by an Act of 1784) ; Rhode Island 
 (by an Act of July 1, 1857) ; New Jersey (by an Act of April 16, 1846) ; 
 Missouri (as to all devises after March 25, 1845) ; Illinois ; Missouri (by an 
 Act of March 25, 1845) ; estates tail are to be construed as estates for life 
 in the first taker, with remainder in fee to his children, or the person who 
 shall be tenant in tail at his death. 
 
^CHAPTER XVII. [*205 
 
 DEATH WITHOUT ISSUE, ETC. 
 
 "Die without Issue." — Old Lav). 
 ^ Ik the case of a devise of an estate tail, followed by a limita- 
 tion over in the event of the devisee dying without issue, it is a 
 beneficial and liberal construction to hold that the gift over should 
 take effect by way of remainder on the estate tail, not only if 
 the devisee died without issue living at his death, but also in case 
 of a failure of issue occurring at a later period, in which case the 
 devisee could not strictly speaking be said to have died without 
 issue. Such was probably the origin of the following rule of 
 construction : a rule which, though beneficial in the case above 
 supposed, became subversive of the intention when applied gene- 
 rally, and most of all when applied to bequests of personal estate, 
 where it had the effect of rendering the gift over void for remote- 
 ness, as limited upon a general failure of issue; viz., that — 
 
 Rule. In wills made before January 1, 1838, 
 The words "die without issue" are construed to mean 
 the death of the person spoken of and failure of his issue 
 at the time of his death or at any time afterwards ; unless 
 the context shows the meaning to be confined to a failure 
 of issue at the time of his death. (8 Co. 86; Beau- 
 clerk V. Dormer, 2 Atk. 313; Candy v. Campbell, 2 CI. 
 & F. 421.)^ 
 
 ' Hall V. Chaffee, 14 N. H. 219 ; Hall «. Priest, 5 Gray 18 ; Dart u. Dart, 7 
 Conn. 261 ; Burrough ». Foster, 6 E. I. 534 ; Arnolds. Brown, 7 R. I. 188 ; 
 Lillibridge v. Adie, 1 Mason 224 ; Jackson v. Billinger, 18 Johns. 368 ; Den 
 
206 DIB -WITHOUT ISSUE. 
 
 ^ *The rule applies both to real and personal estate. 
 
 -' (8 Co. 86; Beauclerk v. Dormer, 2 Atk. 313; Candy 
 V. Campbell, 2 CI. & F. 421.)^ 
 
 Thus if real estate be devised to A. and his heirs, or to 
 A. for life, or to A. indefinitely, with a limitation over in 
 the event of A. dying without issue, A. takes an estate 
 tail with remainder over (heirs being construed heirs of 
 the body). 
 
 So if personal estate be given to A., with a limitation 
 over in the evient of A. dying without issue, A. takes the 
 absolute interest, the gift over' being void for remoteness. 
 
 The words "die without hdving issue," are equivalent 
 
 V. Small, 1 Spencer 151 ; Eioheltierger v. Bafnitz, 9 Watts 447; Gast ». 
 Baer, 62 Penn. St; 37 ; HoUett «. Pope, 3 Harring. 542VNewtoii ». Griffith, 
 1 Har. & Gill. Ill ;• Davis u. Abbott, 3 Md! 137; Norton v. Tipp, 1 Speers 
 250; Kirk «. Ferguson, 6 Cold. 479. 
 
 In Connecticut, however,, the -vrords are construed to mean prima facie, 
 " die without issue living at death :" Hudson v. Wadsworth, 8 Conn. 359 ; 
 Bullock V. Seymour, 33 Conn. 290. They will nevertheless have the effect 
 of enlarging an estate for life, or an indefinite devise to an estate tail, 
 which is in that state an estate -for life in the first donee with remainder 
 in fee to his issue living at his death: Hudson «. Wadsworth, 8 Conn. 358. 
 But a limitation on death without issue after a devise of an express fee, is 
 an executory devise on death without issue living at death. Ibid. 
 
 The English rule is rejected also in Ohio and Kentucky, and it is there held 
 that the words " die without children," " die without issue or heirs of the 
 body," are to be. interpreted in their plain sense and referred to the time of 
 
 , death, unless the contrary intention is plainly expressed in the will, or is 
 necessary to carry out its undoubted purposes : Parish v. Ferris, 6 Ohio 
 St. 563 ; Daniel v. Thompson, 14 B. Monr. 663. In Geor^a the inclina- 
 
 .tion of the courts is to reject the rule, or at least to lay hold of slight 
 expressions to exclude its operation : Harris v. Smith, 16 Ga. 548 ; Gris- 
 wold V. Greer, '18 Id. 550. 
 
 ■ 1 Hall ». Priest, 6 Gray 22 ; Moffatt «. Strong, 10 Johns. 14; Smith's 
 Appeal, 23 Penn. St. 9; Mengel's Appeal, 61 Id. 238; Davidge v. Chai\^ey,,4 
 Har. & M'H. 393 ; Usilton v. IJsilton, 3 Md. Ch. 36 ; Cox v. Buck, 5 Rich. 
 604; M'Graww., Davenport, 6 Port. 327; Randolph v. Wendel, 4 Sneed. 
 647 ; Chism v. Williams, 29 Mo. 299 ; Moody v. Walker, 3 Ark. 147. 
 
DEATH WITHOUT ISSUE. 206 
 
 to "die without issue." (Lee's Case, 1 Leon. 385; Cole v. 
 Goble, 13 C. B. 445, E. C. L. R. voL 76.)^ 
 
 The rule applies of course where the expression is " die with- 
 out issue male," &c. 
 
 Die without children. — A devise over of real estate on death 
 without children is within the. rule, " children "being read as equi- 
 valent to "issue." 
 
 Thus a devise to A., but if A. die without children, over, vests 
 in A. an estate tail. (Raggett v. Beatty, 5 Bing. 243.) So under 
 a devise to A. and his heirs (Doe v. Webber, 1 B. & Aid. 713), 
 or to A. and his heirs and assigns (Parker v. Birks, 1 K. & J. 
 156), with a gift over in the event of A. dying without children, 
 A. takes an estate tail.^ 
 
 Death under a given age without issue. — The rule does not 
 apply where the gift over is on death under a given age without 
 issue. Thus a devise to A., or to A. and his heirs, with a gift 
 over if A. die under twenty-one without issue, vests in A. an 
 estate in fee with an executory devise over in the event of a 
 failure of issue at his death, and not an estate tail (Toovey v. 
 Bassett, 10 East 460); and the same would be the case if the 
 
 1 Vaughan v. Dickes, 20 Penn. St. 509 ; Newton v. Griffith, 1 Har. & 
 Gill 111 ; Davidson v. Davidson, 1 Hawks 163. 
 
 ^ Bichardson v. Noyes, 2 Mass. 61 ; Thomason v. Anderson, 4 Leigh 118. 
 
 But the rule does not apply to a gift over in case of death " without 
 child or children:" Sljerman v. Sherman, 3 Barb. 385. 
 
 In some states, estates tail being abolished, it is held that the rule does 
 not extend to the words " die without children :" Thomason v. Anderson, 
 4 Leigh 118 ; Matthis v. Hammond, 6 Rich. Eq. 402 ; Morgan v. Morgan, 5 
 Day 517. ' 
 
 The rule is not applicable to bequests of personalty with gift over on 
 death without children : Bedford's Appeal, 40 Penn. St. 18 ; Brammet v. 
 Barber, 2 Hill 543. But where there was a gift of real and personal 
 estate to A. for life, with gift over in case of his death," without leaving 
 any child or children or their descendants," it was held that the gift over 
 was upon an indefinite failure of issue in order to carry out the manifest 
 intention that the issue should take, by raising an estate tail by implica- 
 tion: Addison v. Addison, 9 Rich. Eq. 58. 
 16 
 
206 RESTRICTED CONSTRUCTION. 
 
 gift over were on death under twenty-one or without issue, by the 
 rule in Fairfield v. Morgan.^ 
 
 *9 
 
 07] 
 
 *Uxceptions. — But the words "die without issue" may 
 
 be restrained by the context (in wills prior to 1838) to 
 mean a failure of issue at the death of the person, and not an 
 indefinite failure of his issue. This construction is adopted 
 (where the words in question follow a devise of real estate in fee 
 simple, or a bequest of personal estate absolutely) in the follow- 
 ing cases, viz. : — 
 
 First, where the gift over is expressly to take effect on the death 
 of the person. — Thus, if real estate be devised to A. and his heirs, 
 and if A. die without issue, the property is devised to B. upon 
 the death of A., the latter words restrain the gift over to a failure 
 of issue at the death, and A. takes an estate in fee with an exe- 
 cutory devise over, and not an estate tail. (Doe d. King v. Frost, 
 3 B. & Aid. 546 (E. C. L. R. vol. 5) ; Ex parte Davies, 2 Sim. 
 N. S. 114 ; Parker v. Birks, 1 K. & J. 156.)^ 
 
 And the case is the same if the devise be to A. in terms which 
 
 ' Ray V. Enslin, 2 Mass. 554 ; Jones v. Sothoron, 10 Gill. & Johns. 188 ; 
 Dallam v. Dallam, 7 Har. & Johns. 221. 
 
 " Jones V. Jones, 20 Ga. 701. The same construction is given where 
 the property is devised to B. after the death of A. : Downing v. Wherrin, 
 19 N. H. 9 ; Theological Seminary v. Kellog, 16 N. Y. 84 ; Attwell v. 
 Barney, Dudley 207. 
 
 The operation of the rule is excluded whenever, by the provisions or 
 terms of the will, it appears to have been intended'that the ultimate de- 
 vise should take effect at the death of the first taker : Eaton v. Straw, 18 
 N. II. 321 ; as where the gift is of " what estate A. shall leave :" Ide v. 
 Ide, 5 Mass. 503 ; or where it is directed that " if A. have no issue to heir 
 her estate, she shall have the use of the premises during her life only :" 
 Hall V. Chaffee, 14 N. H. 216. 
 
 In some cases it has been held, that if the devise over is, " if A. die 
 without issue, then and in that case" to B., "then" is to be construed an 
 adverb of time and refers to the death of A. : Deihl v. King, 6 S. & R. 32 ; 
 Harris v. Smith, 16 Ga. 550 ; Griswold v. Greer, 18 Ga. 55Q. In each of 
 these cases, however, this construction was favored by the context. This 
 construction was rejected in Thomas v. Mann, 3 Har. & Johns. 238 ; Royall' 
 V. Eppes, 2 Munf. 479 ; Chism v. 'Williams, 29 Mo. 296. 
 
GIFT OVER UPON THE DEATH. 207 
 
 are suflBcient to give a constructive (thougli not an express) fee 
 simple : as if the devise be to A., he paying 50Z., with a gift over 
 if A. die without issue, to take effect on the death of A. (Blins- 
 ton V. Warburton, 2 K. & J. 400.) 
 
 But if the gift to the first taker be such as, standing alone, 
 would confer only an estate for life or an estate tail, the restricted 
 construction will not be adopted : but the first taker will be held 
 to take an estate tail, in order to give an interest in the property 
 to his issue. (Blinston v. Warburton, 2 K. & J. 400 ; Ex parte 
 Davies, 2 Sim. N. S. 114.) Thus, if the devise be to A., or to 
 A. for life, or to A. and the heirs of his body, with a gift over if 
 A. die without issue, the restricted construction will not be 
 adopted, although the gift over be expressly to take effect on the 
 death of A. (Ib.)i 
 
 Personal estate. — Again, if personal estate be given to A., 
 with a gift over, if A. die without issue, upon the death of A. the 
 restricted construction will be adopted, and the gift over will 
 take effect as an executory bequest on failure of issue at the 
 death. (Pinbury v. Elkin, 1 P. W. 563 ; *Wilkinson v. 
 South, 7 T. R. 555.) So, if the bequest be to A. and the ■- 
 heirs of his body, with the like gift over, the restricted construc- 
 tion will be adopted. (Wilkinson v. South, 7 T. R. 555.) 
 
 Cfift over subject to payments to he made at the death, ^c. — 
 The principle of the above cases of Doe v. Frost and Pinbury v. 
 Elkin applies wherever the gift over on death without issue, fol- 
 lowing a devise of real estate in fee or a bequest of personal 
 estate absolutely, is subject to conditions showing that it is to 
 take effect, if at all, on the death of the first taker, and not after 
 an indefinite failure of his issue. 
 
 Thus, in Blinston v. Warburton, 2 K. & J. 400, where real 
 estate was devised to A. in fee, but in case A. should die without 
 issue, then to B. in fee, " in consideration that he pays to C. the 
 sum of 250Z. within twelve months after the decease of A.," the 
 restricted construction was adopted. 
 
 So in Nicholls v. Hooper, 1 P. W. 197, where lands were de- 
 vised to A. for life, with remainder to B., his h eirs and assigns , 
 1 Kiggs V. Sally, 3 Shep. 408. 
 
208 IN DEFAULT OF ISSUE. 
 
 and if B. should die without issue, then a gift of 200?. to be paid 
 ■within six months after the death of the survivor of A. and B. ; 
 it was held that the bequest was good, as not limited after an 
 indefinite failure of issue.* 
 
 Again, where the devise Was to A. and his heirs, and if A. 
 should have no issue, then to B., subject to such legacies as A. 
 should leave hy will, it was held to be an executory devise, inas- 
 much as if A. had taken an estate tail it would have been unne- 
 cessary to give him the specific power of charging the estate with 
 legacies., (Doe v. Frost, 3 B. & Aid. 546, E. C. L. E. vol. 5.) 
 
 So in Doe v. Webber, 1 B. & Aid. 713, where the gift was to 
 A. and her heirs, and on her death without issue, to B., " pay- 
 ing lOOOZ. to the executors of A., or such persons as she should by 
 will appoint," the failure of issue was held to be confined to the 
 death of A.'' , 
 
 But in Feakes v. Standley, 24 B. 485, the gift over being "in 
 case the said A. shall die without issue, the said lands to be sold 
 by his executors," the restricted construction was not adopted.* 
 *Again, where the testator devised lands, in case he 
 J should die without having issue, to A. for life with re- 
 mainder to B. for life, with remainder to trustees in trust to sell 
 and out of the proceeds pay 4000Z. to C, to be a vested interest 
 at twenty-one, notwithstanding the payment should be postponed 
 till the death of the survivor of A. and B., it was held that the 
 latter words showed that death without issue was to be restricted 
 to a failure of issue at the death. (Re Rye's Settlement, 10 
 Hare 106.) 
 
 " Jm default of issue," ^c, restricted. — Even the expressions 
 "in default of issue," and "on failure of issue," which do not 
 contain in themselves any reference to the death of the person 
 whose issue are spoken of, may be restricted to a failure of issue 
 
 ' Hauer v. Shitz, 3 Yeates 235. So, if the gift over is subject to pay- 
 ments to be made to three grandsons, when they should respectively be- 
 come of age : Hill v. Hill, 4 Barb. 419. 
 
 ' Eaton V. Straw, 18 N. H. 329. 
 
 ' Broaddus v. Turner, 5 Rand. 308. Sed. contra, Taylor v. Taylor, 63 
 Penn. St. 485. 
 
GIFT OVER TO SURVIVORS OR SURVIVOR. 209 
 
 at the death, if the ulterior limitations are such as could not be 
 reasonably meant to depend on a general failure of issue. 
 
 Thus, if a testator, having no issue, devises lands, in default 
 or on failure of his own issue, to trustees in truSt to pay his 
 debts, legacies, and the annuities given by his will, the devise 
 will be construed as intended to take effect only on a failure of 
 issue at the death of the testator. (French v. Caddell, 3 Bro. P. 
 C. Toml. 257 ; Wellington v. Wellington, 4 Burr. 2165.) 
 
 Whether a devise or bequest to take effect on a general failure 
 of issue (not being a remainder on an estate tail) is good if the 
 failure of issue happen in the testator's lifetime, is not yet set- 
 tled. (See, per Turner, V.-C, 10 Hare 112.)^ 
 
 Secondly, gift over to the survivors or survivor, where there 
 is a bequest of personal estate to several as tenants in com- 
 mon, with a gift over of the share of any one dying without 
 issue to the survivors or survivor, the presumption is raised 
 that an indefinite failure of issue was not contemplated, and 
 the words " die without issue" will be restrained to a failure 
 of issue at the death of the person whose share is spoken of. 
 (Hughes V. Sayer, 1 P. W, 534 ; Massey v. Hudson, 2 Mer. 
 133 ; Ranelagh *v. Ranelagh, 2 My. & K. 441 ; Turner pg^Q 
 V. Frampton, 2 Coll. 231 ; Westwood v. Southey, 2 Sim. 
 N. S. 192.)2 
 
 " I adopt the language of Sir W. Grant, in Massey v. Hudson, 
 and take the rule to be, that primd facie, a bequest over to the 
 survivor or survivors of two or more persons, after the death of 
 one without issue, affords the presumption that an indefinite 
 failure of issue could not be in the testator's contemplation." 
 (Per Sir J. Leach, 2 My. & K. 441.) 
 
 ' It is decided in the negative in Lesly v. Collier, 3 Eich. Eq. 125. 
 
 2 Moffat V. Strong, 10 Johns. 12; Fairchild v. Crane, 2 Beas. 108 
 Threadgill v. Ingram, Ired. 577 ; Carson v. Kennerly, 8 Kich. Eci. 259 
 Williams V. Graves, 17 Ala. 62 ; Birney v. Richardson, 5 Dana 427 
 Booker v. Booker, 5 Humph. 505 ; Moody v. Walker, 3 Ark. 148. This 
 rule was not noticed in Smith's Appeal, 23 Penn. St. 9, but was recognised 
 in Bedford's Appeal, 40 Penn. St. 22, and acted on in Mifflin v. Deal, 6 
 S. & R. 460 ; and Kapp v. Rapp, 6 Penn. St. 49. 
 
210 HUGHES V. SAYEK. 
 
 But if the gift over be with words of limitation, as to the sur- 
 vivor, "his executors, administrators or assigns," it seems that 
 the principle of Hughes v. Sayer does not apply. (Massey v. 
 Hudson, 2 Mer. 134.)' 
 
 Aliter in devises of real estate. — It would appear that Hughes 
 V. Sayer does not apply to devises of real estate (where the pre- 
 sumption is in favor of an estate tail in the first taker) ; so that 
 under a devise to several and their heirs, as tenants in common, 
 with a gift over on the death of any without issue to the survi- 
 vors, the devisees will take estates tail. (Ohadock v. Cowley, 
 Cro. Jac. 695 ; Roe v. Scott, Fearne 0. R. 473, n.)^ 
 
 Hughes V. Sayer does not apply where the gift over is to the 
 survivors or survivor of other persons, or to those of other per- 
 sons who may be then living. Thus, if the bequest be to A., 
 with a gift over on his dying without issue to the nephews and 
 nieces of the testator who may be then living (dandy v. Camp- 
 bell, 2 CI. & F. 421), or " to the then surviving legatees" of 
 other property (Greenwood v. Verdon, 1 K. & J. 74), the gift 
 over will not be confined to a failure of issue at the death of A.^ 
 
 ' The Court refused to accept this ruling in Threadgill v. Ingram, 1 Ired. 
 577 ; but it was acknowledged in Barksdale v. Gamage, 3 Rich. Bq. 276 ; 
 Presley v. Davis, 7 Id. 108. 
 
 ^ Dart V. Dart, 7 Conn. 250 ; Burrough v. Foster, 6 R. I. 534 ; Lapsley 
 V. Lapsley, 9 Penn. St. 130 ; Wall v. Maguire, 24 Id. 248 j Jackson v. 
 Dashiel, 3 Md. Ch. 257 ; Hoxton v. Archer, 3 Gill & Johns. 199 ; Bells 
 V. Gillespie, 5 Rand. 273 ; Broaddus v. Turner, Id. 308 ; Nowlin v. 
 Winfree, 8 Gratt. 348. But in many of the American states the rule is 
 applied to devises and bequests alike : Anderson v. Jackson, 16 Johns. 
 382 ; Wilkes v. Lion, 2 Cowen 385 ; Jackson v. Chew, 12 Wheat. 153 ; 
 Den V. Allaire, Spencer 6 ; Seddel v. Wells, Id. 223 ; Southerland v. Cox, 
 3 Dev. 394 ; Zollicoffer u, Zollicoffer, 4 Dev. & Bat. 438 ; McCorkle v. 
 Black, 7 Rich. Eq. 407 ; Euss v. Euss, 9 Tla. 105 ; Deboe v. LoWen, 8 B. 
 Monr. 620. In Massachusetts Hall v. Priest, 6 Gray 18, follows the 
 English authorities. But on the other hand Richardson v. Noyes, 2 Mass. 
 62 ; Brightman v. Brightman, 100 Id. 238 ; and Abbot ». Essex Co., 2 
 Curtis 126, 18 How. 203, are in favor of the construction more generally 
 adopted in this country. The question is considered doubtful in Georgia 
 and Alabama : , Mayer v. Wiltberger, Ga. Dec, Pt. 2, 27 ; Williams v. 
 Graves, 17 Ala. 62. 
 
 ' Porter v. Ross, 2 Jones Eq. 196 ; Gray v. Gray, 20 Ga. 804 ; but 
 
GIFT OVER TO PERSONS THEN LIVING. 210 
 
 G-ift over for life oreZy.— Notwithstanding Roe v. Jeffery, 7 T. 
 R. 589, it is settled that the fact of the devise or bequest over 
 after the death without issue of the first taker, being of an estate 
 for hfe only, is not sufficient to restrain the meaning to failure of 
 issue at the death of the first taker. « The creation of life 
 estates after the failure of the issue, would not be sufficient to 
 limit the failure of issue to the death of the testator," [the gift 
 over being on the testator's death without issue,] " for it would 
 be consistent *with an intention that the tenants for life .^^^^ 
 should take if the issue failed in their lifetime." (Per ^ 
 Turner, V.-C, Re Rye's Settlement, 10 Hare 111./ 
 
 Failure of issue living certain persons. — But the cases in which 
 "die without issue is restricted to failure of issue at the death of 
 the person whoso issue are spoken of, must be distinguished from 
 those in which, although not so restricted, it is still confined to a 
 failure of issue in the lifetime of certain other persons. 
 
 Thus if real estate be devised to A. and his heirs, with a gift 
 over upon the death of A. without issue in the lifetime of B., and 
 B. be living at the testa-tor's decease, A. takes an estate in fee, 
 with an executory devise over on failure of his issue within 
 the given period, and not an estate tail. (Pells if. Brown, Cro. 
 Jac. 590.) 
 
 Again, if personal estate be given over on the death of A. 
 without issue, to B. for life only, and B. be living at the testator's 
 death, the bequest is good, inasmuch as it must take eifect, if at 
 all, on failure of A.'s issue during the lifetime of B. 
 
 So, if the gift over be to those of certain persons (living at the 
 testator's death) who shall be then living, i. e., living at the time 
 
 on the other hand in Forman v. Troup, 30 Id. 496, this distinction was 
 rejected. 
 
 ' Roe V. Jeffrey is recognised as an authority in Ide v. Ide, 5 Mass. 502, 
 and Taylor v. Taylor, 63 Penn. St. 485. That the fact of the gift over 
 being for life only, is sufficient to restrict the meaning of the words " die 
 without issue," was determined in "Wilson v. "Wilson, 32 Barb. 328, and 
 Drury v. Grace, 2 Har. & Johns. 356. In "Watkins v. Sears, 3 Gill 496, 
 however, which was a devise of real estate, it was decided that it was in- 
 sufficient. The matter is considered doubtful in Stevenson v. Jaoooks, 3 
 Murph. 558. 
 
211 DEATH WITHOUT ISSUE EESTEICTED. 
 
 of the decease and failure of issue of the first taker, the gift 
 over may take effect as an executory devise or hequest, being re- 
 strained to a failure of issue during the lifetime of any of the 
 persons entitled under the ulterior devise or bequest. (Greenwood 
 w. Verdon, 1 K. & J. 74.) Thus, where, after legacies to several 
 living persons, real estate was devised to A^ and his heirs, with 
 a gift over on the death of A. without issue to " the then surviving 
 legatees " in fee simple, A. was held to take, not an estate tail, 
 but the fee simple, with an executory devise over in the event of his 
 death and failure of his issue in the lifetime of any of the 
 legatees. (Ib.)^ 
 
 But if personal estate be given to A., and if A. die without 
 issue, to the nephews and nieces of the testator who shall be then 
 living, the testator having brothers and sisters living at his de- 
 cease, the gift over cannot take effect as an executory bequest, 
 inasmuch as the testator *misht have nephews or nieces 
 -' born more than twenty-one years after his death, and there- 
 
 ^ Langley v. Heald, 7 W. & S. 96 ; Toman v. Dunlop, 18 Penn. St. 72; 
 Fairchild v. Crane, 2 Beas. 108 ; Jones v. Jones, 20 Ga. 701 ; Bramlet v. 
 Bates, 1 Sneed 554. 
 
 In some cases where a gift over is made to certain persons in being, 
 without words of limitation, it has been considered as intended as a per- 
 sonal benefit to those persons, and the gift will be construed as one to take 
 effect on the death of the first legatees without issue during the lives of 
 the ultimate legatees : Eichelberger v. Barnitz, 17' S. & R. 292 ; Deihl v. 
 King, 6 Id. 33 ; Timberlake v. Graves, 6 Munf. 175 ; Clifton v. Haig, 4 
 Dessaus. 330. 
 
 Where the gift was upon the death of A. without issue to B., and if B. 
 have no children to C, it was held, that since the gift over from B. to C. was to 
 take effect on B.'s death without children, the gift over from A. to B. was 
 to take effect if at all in B.'s lifetime : Budd v. State, 22 Md. 48. 
 
 In Maryland a bequest over of a man slave, in case the first taker die 
 without issue ; was construed a gift upon failure of issue during the life of 
 the slave : Biscoe v. Biseoe, 6 Gill & Johns. 232, and the same construction 
 was given to a bequest of liberty to a slave or slaves upon the death of 
 the first taker without issue : Woodland v. Wallis, 6 Md. 151. In Virginia 
 the same construction was applied to a gift over of a number of slaves both 
 male and female, no mention being made of their issue : Koyall v. Eppes, 
 2 Munf. 479. 
 
GIFT TO ISSUE IN REMAINDER. 212 
 
 fore the failure of issue would not of necessity be confined witliin 
 the legal period. (Candy v. Campbell, 2 CI. & F. 421.) 
 
 Again if personal estate be given to A., but if A. die without 
 issue "to the children of the testator then living," the gift over 
 is not void for remoteness. But if the gift over be " to the 
 children of the testator or such of them as shall be then living," 
 the gift over cannot take effect as an executory bequest; for by 
 the rule in Brown v. Lord Kenyon, post, p. 266, this form of gift 
 operates as a vested gift to all the children, subject to be divested 
 in favor of those (if any) living at the death of A. without issue; 
 and therefore the failure of issue remains indefinite. (Greenwood 
 V. Verdon, 1 K. & J. 89.) 
 
 So, if the bequest be to A., but, if A. should die without 
 issue, to the children of the testator living at the death of A. 
 (not, at the death of A. without issue), or at any other collateral 
 period, the failure of issue remains indefinite, and the gift over is 
 void. (Garratt v. Cockerell, 1 Y. & C. C. C. 494.) 
 
 Thirdly, where there is a devise to A. and his heirs, with a 
 gift over if A. should die under twenty-one, or, having attained 
 twenty-one, should die without issue, it has been held that the 
 correspondence between the two events on which the limitation 
 over is to take effect, is sufficient to restrain the dying without issue 
 to a failure of issue at the death. (Glover v. Monckton, 3 Bing. 
 13 (E, C. L. K. vol. 11) ; Doe d. Johnson v. Johnson, 8 Bxch. 81.)^ 
 
 Gift to issue in remainder. — Where there is a bequest of per- 
 sonal estate to A. for life, and after his decease to his issue as A. 
 shall appoint, with a gift over on the death of A. without issue, 
 the dying without issue may be restrained to a failure of issue at , 
 the death. (Target v. Gaunt, 1. P. W. 432 ; Leeming v. Sherratt, 
 2 Hare 14)." 
 
 ^ The same construction is given to a gift over in case of the death of A. 
 unmarried or without issue : Downing v. Wherrin, 19 N. H. 87 ; Deihl v. 
 king, 6 S. & W. 33. 
 
 2 Newman v. Miller, 7 Jones 518 ; Woodley v. Findlay, 9 Ala. 716. In 
 Torrance v. Torrance, 4 Md. 11, a case appropriate for its application, 
 this rule is not noticed. 
 
212 FAILUKB OF ISSUE EBSTRAINED. 
 
 Again where real estate is devised to A. for life, with remainder 
 to his children in fee, with a devise over on the death of A. with- 
 out issue, the gift over takes effect as an *alternative con- 
 -' tingent remainder, in the event of there being no children 
 entitled under the prior devise. (Goodright v. Dunham, Doug. 
 264 ; Malcolm v. Taylor, 2 K. & My. 416.)» 
 
 Failure of issue restrained to period of distribution. — In some 
 cases a gift over on the death of a person without issue may be 
 restrained to the event of failure of issue before the period of 
 possession or distribution. Thus, if real estate be devised to A. 
 and his heirs, with a gift over if A. die leaving issue, and also a 
 gift over if A. die without issue, the words may be restrained to 
 the event of A. dying without issue before the devise takes effect 
 in possession (whether the devise be immediate or in remainder), 
 in order to avoid an absolute inconsistency with the prior devise 
 in fee to A. (Clayton v. Lowe, 5 B. & AH. 636 (E. 0. L. R. 
 vol. 7) ; Gee v. Mayor of Manchester, 17 Q. B. 737, B. C. L. R. 
 vol.79.) See ;)os«. Chapter XVIII. 
 
 "i)«e without leaving Issue," 
 
 The principle that words may be differently construed, accord- 
 ing to differences in the subject-matter, is strongly exemplified 
 in the rule of construction which follows — viz., that — 
 
 HuLE. In wills made before January 1, 1838, 
 In relation to real estate, the words " die without 
 leaving issue " are equivalent to " die without issue," and 
 import a failure of issue at the death of the person whose 
 issue are spoken of, or at any time afterwards, unless an 
 intention appears to the contrairy.^ 
 
 ' Sheets' Estate, 52 Penn. St. 268 ; Stevens v. Evans, IQ Ohio St. 307. 
 
 '^ Hawley v. Northampton, 8 Mass. 38 ; Eiohelberger u. Barnitz, 9 Watts 
 447 ; Miller v. Macomb, 26 Wend. 229 ; Ferris v. Gibson, 4 Ed. Ch. 707 ; 
 Moorehouse v. Cotheal, 1 Zabr. 480 ; Wynn v. Story, 38 Penn. St. 166 ; 
 Newton v. Griffith, 1 Har. & Gill 111. 
 
 In Georgia it is held that the words " die without leaving issue '' import 
 
FORTH V. CHAPMAN. 213 
 
 But, in relation to personal estate and chattels real, the 
 words " die without leaving issue " import a failure of 
 issue at the death of the person spoken of, and not an 
 indefinite failure of his issue. (Forth v. Chapman, 1 P. 
 W. 663.)' 
 
 *And the words in question, when applied to both de- p^g.. . 
 scriptions of property in the same sentence, receive the 
 one construction as regards the real estate, and the other con- 
 struction as regards the personal estate. 
 
 Thus, if freeholds and leaseholds be devised together to A., 
 but if A. should die without leaving issue, then to B., A. takes 
 an estate tail in the freeholds, with remainder to B. ; and the 
 absolute interest in the leaseholds, subject to a contingent execu- 
 tory bequest in favor of B., to take effect upon the death of A. 
 without issue living at his death. (Forth v. Chapman, 1 P. 
 Wm. 663.)^ 
 
 a definite failure of issue in devises of realty as well as in bequests of per- 
 sonalty : Griswold v. Grier, 18 Ga. 550, The same is perhaps the rule in 
 Alabama: Flinn u. Davis, 18 Ala. 132; and such construction was cer- 
 tainly given to a gift over of realty and personalty together on death 
 " without leaving issue :" Edwards v. Bibb, 43 Ala. 666 ; and see also Clapp 
 V. Fogleman, 1 Dev. & Bat. Eq. 466. 
 
 ^ Rathbone v. Dyckman, 3 Paige 30 ; Still v. Spear, 3 Grant's Cases 306 ; 
 Usilton V. Usilton, 3 Md. Ch. 36; Allender v. Sussan, 33 Md. 11 ; Robards 
 v., Jones, 4 Ired. 53 ; Miller v. Williams, 2 Dev. & Bat. 500 ; Perry v. 
 Logan, 5 Rich. Eq. 202 ; Robert v. West, 15 Ga. 123 ; Elinn v. Davis, 18 
 Ala. 132; Moore v. Howe, 4 Monr. 199. But in Patterson v. Ellis, 11 
 • Wend. 277, it was held that " leaving " did not restrict the failure of issue 
 in regard to either real or personal estate. 
 
 2 The words "die before having issue" are read "die without having 
 had any issue " and the estate becomes absolute on the birth of issue : Ray 
 V. Enslin, 2 Mass. 562 ; Dashiell v. Dashiell, 2 Har. & Gill 127 ; Sadler v. 
 Wilson, 5 Ired. Eq. 296 ; Marshall v. Rivers, 8 Rich. L. 88. 
 
 Where there is a gift to A. for life or indefinitely " and if he has issue 
 to him in fee ; but if he die without issue then to B.," the restricted con- 
 struction is adopted : Shriver v. Lynn, 2 How. 43 ; Waddell v. Rettew, 5 
 Rawle 231 ; Clagett v. Worthington, 3 Gill 83 ; Badger v. Harden, 6 Rich. 
 Eq. 148 ; Sheftall v. Roberts, 30 Ga. 543. But contrary to these cases is 
 
214 DIE WITHOUT ISSUE — NEW LAW. 
 
 "Die without Issue," ^o. — iVew Law. 
 The rule which construed gifts on death without issue as de- 
 pending on an indefinite failure of issue, is abolished by the 29th 
 section of the Wills Act as regards wills subsequent to 1837 ; 
 and the contrary rule established, viz., that — 
 
 Rule. In wills made or republished on or after January 
 1, 1838, 
 
 In devises and bequests of real or personal estate, 
 tbe expressions "die without issue," "die without having 
 issue," " die without leaving issue," and any other equiv- 
 alent words, are construed to mean a failure of issue at 
 the death of the person whose issue are spoken of, and 
 not an indefinite failure of his issue, unless an intention 
 appear to the contrary. (Stat. 1 Vict. c. 26, s. 39.)^ 
 
 Arnold v. Brown, 7 K. I. 188 ; and in Callis v. Kemp, 11 Gratt. 78, where 
 an estate was given to A. for life, " and if he should die without issue to 
 B., hut if A. should leave lawful issue he might dispose of the land to 
 such of his issue as he should see fit," it was held the limitation to B. was 
 on an indefinite failure of issue of A. 
 
 A bequest over on the death of A. " without issue who shall attain 
 twenty-one" means without issue living at his death who shall attain 
 twenty-one : Westenberger v. Reist, 13 Penn. St. 594. 
 
 A bequest over on the death of A. " without issue alive :" Den v. Shenck, 
 3 Halst. 29, or "without surviving issue:" Nicholson v. Settle, 57 Penn. 
 St. 386, imports a failure of issue at death. 
 
 Where there is one limitation over on the death of any or all of the de- 
 visees or legatees without issue, and by reason of the nature of the pre- 
 vious gifts to some of the devisees or legatees, the failure of issue is con- 
 strued a failure of issue at death, and there appears no intention to make 
 any distinction between the several gifts, the same construction will be 
 given to them all : Gibson v. Gibson, 4 Jones 428 ; Sheftall v. Roberts, 30 
 Ga. 462. 
 
 ' Similar statutes have been adopted in New York (Revised Statutes 
 taking effect Jan. 1, 1830) ; New Jersey (Act of March 12, 1851) ; Mary- 
 land (Act of 1862) ; Virginia (Act of March 12, 1819) ; North Carolina 
 (Act taking effect Jan. 15, 1828) ; South Carolina (Act of Deo. 20, 1853) ; 
 Georgia (Act of Feb. 11, 1854) ; Alabama (Code, taking effect Jan. 1, 
 1853) ; Mississippi (Act of June 13, 1822); Wisconsin; Michigan (Code, 
 
NEW LAW. 214 
 
 " That in any devise or bequest of real or personal estate the 
 words 'die without issue,' or 'die without leaving issue,' or 
 'have no issue,' or any other words which may import either a 
 want or failure of issue of any person in his lifetime, or at the 
 time of his death, or an indefinite failure of his issue, shall he 
 construed to- mean *a want or failure of issue in the life- ^^^^ ^ 
 time or at the time of the death of such person, and not 
 an indefinite failure of his issue, unless a contrary intention shall 
 appear by the will, by reason of such person having a prior 
 estate tail, or of a preceding gift being, without any implication 
 arising from such words, a limitation of an estate tail to such 
 
 taking effect March 1847) ; Missouri (Revised Code of 1845) ; Minnesota ; 
 and California (Act of April 27, 1855). 
 
 Of the above statutes, all except those of New Jersey and Maryland 
 apply the same same rule of construction to the words " die without 
 heirs," "lieirs of body," as is by the English statute applied to " die with- 
 out issue." 
 
 In North Carolina the operation of the act is in terms confined to wills 
 made after its date, that is, after January 15, 1828. In Georgia, however, 
 the act has been held to apply to all wills taking effect after the date of the 
 act, that is, February 17, l854 : Worrill v. Wright, 25 Ga. 657. The same 
 is the effect of the Act of New Jersey : Condict v. King, 2 Beas. 377. 
 
 In those states in which the common law rule has not been abolished 
 it m&j perhaps be modified as regards devises by the statutes abolishing 
 estates tail. Thus in Dennett v. Dennett, 43 N. H. 501, it was said that 
 while it is true that where an estate is limited over in default of issue of any 
 person, that person will take an estate tail by implication. ..." It by no 
 means follows that such an implication can be made when estates tail do 
 not exist. ... An estate in fee admits of no remainder, and the implica- 
 tion of an estate in fee must destroy the devise. . . . And we are therefore 
 compelled to hold that a devise over on failure of issue of one of the de- 
 visees, will not give an estate in fee by implication to that devisee." And 
 in Zollicoffer v. ZoUicoffer, 4 Dev. & Bat. 440, it was held that in a devise 
 over on death without leaving issue, or on death without issue to the sur- 
 vivors, the restricted construction should be adopted, because since the 
 abolition of estates tail, there was no more reason for taking these words 
 in a technical and artificial sense in regard to lands than in regard to 
 chattels. Therefore, in a devise of land, we must receive them in their 
 natural sense, as they have been before received in both countries in per- 
 sonal bequests." And see also Clapp v. Togleman, 1 Dev. & Bat. Eq. 468 ; 
 Smith V. Chapman, 1 Hen. & Munf. 240; Flinn ». Davis, 18 Ala. 132; 
 Forman v. Troup, 30 Ga. 496. 
 
215 EFFECT OF SECTION 29 OP WILLS ACT. 
 
 person or issue, or otherwise : provided, that this Act shall not 
 extend to cases where such words as aforesaid import if no issue 
 described in a preceding gift shall be born, or if there shall be 
 no issue who shall live to attain the age or otherwise answer the 
 description required for obtaining a vested estate by a preceding 
 gift to such issue. (Stat. 1 Vict. c. 26, s. 29.) 
 
 Effect of section 29. — Thus if (in a will since 1837) real estate 
 be devised to A. and his heirs, or to A. indefinitely, with a limi- 
 tation over to take effect on the death of A. without issue, or 
 without having or leaving issue, A. will not (as before) take an 
 estate tail with remainder over, but an estate in fee, with an ex- 
 ecutory devise over in the event of his death without issue living 
 at Ms death. 
 
 So, if the devise be to A. for life, with a limitation over on 
 his death without issue, A. will not, as before, take an estate 
 tail, but an estate for life only, with the like executory devise 
 over. 
 
 Again, if personal estate be given to A., with a bequest over 
 to B. upon the death of A. without issue, the gift over will not 
 (as before) be void for remoteness, but will take effect as a con- 
 tingent executory bequest upon the death of A. without issue 
 living at his death. 
 
 The 29th section does not absolutely prevent the words "" die 
 without issue" from in any case raising an estate tail by implica- 
 tion. If there be a devise to A. for life, with estates in remain- 
 der to some only of his issue, and with a limitation over upon the 
 death of A. without issue ; if it be clear upon the whole will that 
 all the issue of A. were intended to take, and not those only to 
 whom particular estates are limited, A. may still take an estate 
 tail by implication, in order to carry out that intention. (Elli- 
 combe v. Gompertz, 3 My. & Cr. 127 : Leeming v. Sherratt, 2 
 *Har.e 14 ; Sanders v. Ashford, 28 B. 609.) " Provision is 
 -• made for certain members of a class answering a particular 
 description, and then a gift over is made upon the failure of the 
 class. If it be clear that the whole of the class were not to take, 
 the gift over, though made to depend upon the failure of the 
 whole class, will be construed to take place upon the failure of 
 that description of the class who were to take ; and on the other 
 
MAITLAND V. CHALIE. 216 
 
 hand, if it appears that all the class were intended to take, 
 although some only are enumerated, and the gift over he upon 
 the failure of the whole class, the Court will adopt such a con- 
 struction as will extend the benefit, in the best way the law will 
 admit, to the whole class." (Per Lord Cottenham, Ellicombe v. 
 Gompertz, 3 My. & Cr. 151.) 
 
 But it is not .possible to lay down any general rules to deter- 
 mine where a gift over on death without issue, or on failure of 
 issue, refers only to issue previously mentioned, and where not. 
 (Key V. Key, 4 D. M. & G. 73 ; Pride v. Fooks, 3 De G. & J. 
 252.y 
 
 In default of issue, fc. — It seems doubtful whether the 29th 
 section applies to the expressions "in default of issue," and "on 
 failure of issue." These expressions are not mentioned in the 
 section, and they stand on a different footing from "die without 
 issue," inasmuch as they contain in themselves no reference to 
 the death of the person whose issue are spoken of. But as they 
 certainly mat/ by force of context " import a want or failure of 
 issue of any person in his lifetime, or at the time of his death" 
 (as in French v. Caddell, and Wellington v. Wellington), the 
 language of the 29th section may be held to embrace these ex- 
 pressions also. 
 
 Maitland v. Chalie. 
 
 Where provision is made for children (whether of the testator 
 or another person) by will, subject to the usual conditions as to 
 vesting, i. e., to sons at twenty-one, and to daughters at twenty- 
 one or marriage, the Courts lean *strongly against a con- ^ 
 struction which makes the interest of a child who has at- L 
 tained the given age subject to the additional contingency of sur- 
 viving his or her parent : and it is a rule that — 
 
 Rule. If personal estate be given to tlie children of 
 A., the shares to vest in them on attaining a given age 
 
 ^ Under the new law a devise over on the death of A. without issue in the 
 lifetime of B. means a failure of issue during the life of B. and not at the 
 death of A., and therefore where A. dies leaving issue, living B. and the issue 
 die before B. the gift over takes effect: Jarman v. Vye, L. R. 2 Bq. 784. 
 
217 "leaving" constrxibd "having." 
 
 or marriage, vrithout reference to their surviving the 
 parent, but there is a gift over on the death of A. vrithout 
 " leaving" a child or children : — the word " leaving" wUl 
 be construed " having" or " having had," in order not to 
 defeat the prior vested interests. (Maitland v. Chalie, 6 
 Mad. 243 ; Casamajor v. Strode, 8 Jur. 14 ; Re Thomp- 
 son's Trusts, 5 De G. & Sm. 667; Kennedy v. Sedgwick, 
 3 K. & J. 540.)^ 
 
 " In this case a clear vested interest is in the first place given 
 to the children of a daughter attaining twenty-one. If, in the 
 clause which gives the property over on failure of children of the 
 daughter, the word ' having' be read for ' leaving,' the whole will 
 will express a consistent intention to that effect. I feel myself 
 bound by the authorities to adopt this construction." (Maitland 
 V. Chalie, 6 Mad. 250.) 
 
 The rule would probably apply where the shares of the chil- 
 dren are given to them in the first instance absolutely, not con- 
 tingent on their attaining a particular age. 
 
 Meal estate. — It would appear that the rule may be applied 
 to devises of real estate. (Marshall v. Hill, 2 M. & Sel. 608 ; 
 Ex parte Hooper, 1 Drew. 264.)^ 
 
 If, however, the gift to the children is introduced by words 
 importing the contingency, as if the gift be " in case A. shall 
 leave any child or children, to the children of A. at twenty-one, 
 &c., but if A. shall die without leaving children," over, the rule 
 is excluded, and the word " leaving" must have its natural sense. 
 (Bythesea v. Bythesea, 23 L. J. Ch. 1004; Young, v. Turner, 1 
 Best & S. 550.) 
 
 *But although the gift be thus contingent on some child 
 -^ surviving the parent, yet if any child survives, all the 
 children, including those who predeceased the parent, will take. 
 (2 J. & W. 459 ; Boulton v. Beard, 3 D. M. G. 608.) 
 
 Gift over before shares are ^^payahle," ^c. — ^Wherever a fund 
 
 1 Du Bois V. Kay, 35 N. Y. 162. 
 « White V. Hill, L. R. 4 Eq. 265. 
 
HOWGRAVE V. CARTIER. 218 
 
 is given to a person for life, and after his decease to his children, 
 and the vesting or payment of the shares of the children is post- 
 poned till a given age or marriage, a gift over of the share of any 
 of the children will be construed if possible to refer to death 
 before the age or time appointed for vesting or payment, and not 
 to death in the lifetime of the parent. 
 
 Thus, if the bequest be to A. for life, and after his death to 
 his children at twenty-one, with a gift over of the shares of chil- 
 dren dying before their shares become payable, the gift over will 
 be held to operate only on the share of a child dying under 
 twenty-one, and not on the share of a child who attains twenty- 
 one, and afterwards dies in the lifetime of the parent. (Hallifax 
 V. Wilson, 16 Ves. 168 ; Mocatta v. Lindo, 9 Sim. 56 ; Walker 
 V. Main, IJ. & W. 1.) 
 
 So, if the gift over be of the share of any child dying before 
 he becomes "entitled to the receipt of" his share (Hayward v. 
 James, 28 B. 523); or before he becomes "entitled in posses- 
 sion." (Re Yates' Trusts, 16 Jur. 78,)^ 
 
 Hule in Sotvgrave v. Qartier. — In cases, more especially of 
 wills making provision for children of the testator, or for other 
 persons towards whom the testator places himself in loco parentis 
 (see Farrer v. Barker, 9 Hare 737), a principle or rule originally 
 laid down with regard to settlements, sometimes called the rule 
 in Howgrave v. Oartier, 3 V. & B. 85, applies. 
 
 This principle or rule, as applied to settlements, is : — " That 
 
 ' So if the gift over be of the share of any child, dying before his share 
 "should be received:" West v. Miller, L. R. 6 Eq. 59; Re Dodgson's 
 Trusts, 1 Drew. 440. So where there is a direction to sell after the expi- 
 ration of a life estate, and to divide the proceeds among the testator's sons 
 and daughters, with a gift over of the shares of any dying "prior to such 
 division, and leaving no issue living at the time of such division," the 
 estate vests absolutely in all who survive the widow : Manice v. Manice, 
 43 N. Y. 303. 
 
 Where there is an immediate gift with a gift over of the shares of those 
 dying before the testator, or " before they have actually received their 
 share," the latter contingency will be rejected as " an immeasurable pur- 
 pose:" Martin v. Martin, L. R. 2 Eq. 411. 
 17 
 
218 HOWGEAVB V. CARTIBR. 
 
 primd facie a child having attained twenty-one, or marriage, is 
 to be considered a child entitled to a portion" (per Lord Eldon, 
 Hope V. Lord Clifden, 6 Ves. *509) ; and that the settle- 
 -■ ment is not to be read as making the provision for a child 
 contingent on its surviving either or both its parents, unless the 
 intention to do so is perfectly unambiguous. 
 
 " If the settlement clearly and unequivocally makes the right 
 of the child to a provision to depend upon its surviving both or 
 either of the parents, a Court of Equity has no authority to con- 
 trol that disposition. If the settlement is incorrectly or ambigu- 
 ously expressed, if it contains conflicting and contradictory 
 clauses, so as to leave in a degree uncertain the period at which, 
 or the contingency upon which, the shares are to vest, the Court 
 leans strongly towards the construction which gives a vested inte- 
 rest to the child, when that child stands in need of a provision, 
 usually as to sons at twenty-one, and as to daughters at that age 
 or marriage. (Howgrave v. Cartier, 3 Ves. & B. 85.) 
 
 Thus, words importing the necessity of survivorship have been 
 got rid of on strength of other expressions in Emperor v. Rolfe, 
 1 Ves. sen. 208 ; Woodcock v. Duke of Dorset, 3 Bro. C. C. 
 699 ; Hope v. Lord Clifden, 6 Ves. 509 ; Howgrave v. Cartier, 
 3 Ves. & B. 85 ; King v. Hake, 9 Ves. 438 ;i by the effect of a 
 power of advancement : Powis v. Burdett, 9 Ves. 428 ; Walker v. 
 Simpson (a will), 1 K. & J. 713 ; on the word " payable" : Schenk 
 V. Legh, 9 Ves. 300 ; Fry v. Lord Sherborne, 3 Sim. 243 ; 
 Jones V. Jones, 13 Sim. 561 (a will) ; on the language of the gift 
 over : Perfect v. Lord Curzon, 6 Madd. 442 ; Torres v. Franco, 
 1 Russ. & My. 649 ; Swallow v. Binns, 1 K. & J. 417. 
 
 In Dalton v. Hill, 10 W. R. 396, V.-C. W., a strong case, the 
 bequest was to the testator's daughter for life, remainder to her 
 husband for life, remainder to the children of the testator's 
 daughter who should he living at her decease, the shares of the 
 children to be vested in them at twenty-one or marriage, but pay- 
 ment to be postponed till the death of the survivor of the daugh- 
 ter and her husband, with a gift over to the next of kin of the 
 
 1 Jackson v. Dover, 2 Hem. & M. 209. 
 
HOWGRAVE V. CARTIBR. 220 
 
 testator, as if he had died without issue. *It was held |-*ogo 
 that children of the daughter attaining twenty-one, but 
 dying in her lifetime, were entitled to shares. 
 
 But if the settlement or will contain no provisions inconsistent 
 with the necessity of survivorship as a condition of the gift, the 
 rule in question cannot be applied. (Whatford v. Moore, 3 Myl. 
 & Cr. 270; Farrer v. Barker, 9 Hare 737 (a will); Tucker v. 
 Harris, 5 Sim. 538 (a will); Bright v. Rcwe, 3 Myl. & K. 316 
 (a will) ;^ Hotchkin v. Humfrey, 2 Madd. 65 ; Fitzgerald v. 
 Field, 1 Russ. 430 ; Bythesea v. Bythesea, 23 L. J. Ch. 1004 
 (a will).) 
 
 ' Bright V. Kowe is doubted in West v. Miller, L. R. 6 Eq. 64. 
 
*221] ^CHAPTER XVIII. 
 
 VESTING. 
 
 The word "to vest" has several senses, whicli it is important 
 to distinguish. 
 
 1. Meal estate. — Originally the word had reference only to 
 real estate. As applied to estates in land, " to vest " signifies 
 the acquisition of a portion of the actual ownership or feudal pos- 
 session of the land {"vestire " — seisinam dare — infeodare : Spel- 
 man) : the acquisitioli, not of an estate in possession, but of an 
 actual estate. The fee simple being supposed to be carved out 
 into parts or divisions by the creation of particular estates, a 
 grant to any person of one of these portions of the fee vested 
 him with, or vested in him, an estate in the land. Thus "vested" 
 is nearly equivalent to "possessed." 
 
 In this, its original sense, "vested" has no reference to the 
 absence of conditional-ness or contingency. If an estate tail be 
 limited to A., with remainder to B., the estate of B. is a " vest- 
 ed" remainder, not because the failure of issue of A. is considered 
 an event certain at some time or other to happen, as has been 
 alleged (Smith's View of Executory Interests, sect. 192) : — 
 failure of issue of a person is an event altogether contingent: — 
 but because such a remainder vests in B. an actual portion of the 
 fee, though the time of its falling into possession is wholly con- 
 tingent and uncertain. B. is invested with a portion of the 
 ownership of the land. 
 
 All remainders, not vested, are in fact contingent, not as being 
 
 ^ necessarily limited on an uncertain event, but *because 
 
 ■J their taking effect depends on the contingency of their 
 
 happening to vest during the continuance of the particular estate 
 
 which supports them, and which may determine at any moment. 
 
VESTED AND CONTINGENT. 222 
 
 Thus "vested" comes to mean the opposite of "contingent" or 
 conditional. But the -n'ord itself refers, as has been said, not to 
 contingency, hut to possession. 
 
 It is obvious that this division into " vested " and " contingent " 
 fails when applied to future executory interests in land, not 
 taking effect as remainders. An executory devise, after a fee 
 simple, cannot be said to be "vested," as an estate, until it vests 
 in possession ; yet it may be limited on an event absolutely cer- 
 tain to happen, and is, therefore, not contingent. When, there- 
 fore, Fearne (C. R. Introduction, p. 1) divides "vested estates" 
 into (1) estates vested in possession, and (2) " estates vested in 
 interest, as reversions, vested remainders, such executory devises, 
 future uses, conditional limitations, and other future interests as 
 are not referred to or made to depend on a period or event that is 
 uncertain," he uses the expression " Vested in interest" in a dif- 
 ferent sense from that which it bears as applied to a remainder. 
 Thus, the word is already losing its original meaning. 
 
 2. Personal estate. — The rules and expressions relative to the 
 vesting of personal estate have been derived in great measure from 
 the civil law. In that system (see Domat, L. iv. Tit. 2, sec. 9) 
 legacies not immediately payable are divided into two classes : — 
 (1) legacies payable at a future time certain to arrive (as to 
 which, dies legati was said cessisse, though not venisse) : and (2) 
 conditional legacies, or legacies payable on an event which might 
 never happen. The former class were transmissible to the repre- 
 sentatives of the legatee, if he died before the time of payment : 
 the latter were not. 
 
 In speaking of the civil law rules, it is natural to use the term 
 "vested" to denote the former class of legacies, and "contin- 
 gent " to denote the latter. In the *civil law, therefore r*223 
 " vested is equivalent to unconditional and to transmissi- 
 ble : " contingent" is equivalent to conditional and to non-trans- 
 missible. 
 
 But it is obvious that this division is wholly inapplicable to the 
 English law of legacies, which allows future conditional interests 
 to be transmitted to the representatives of the legatee, and which 
 
223 PERSONAL ESTATE. 
 
 considers some kinds of conditional gifts as " vested subject to be 
 divested," i. e., subject to a condition subsequent and not prece- 
 dent. By English law contingent legacies may be transmissible 
 (as, a legacy to A., if B. returns from Rome), and vested legacies 
 may be conditional (as, a legacy to A., with a gift over on his 
 death under 21). To retain, therefore, the civil law definitions of 
 " vested " and " contingent," as equivalent respectively to "trans- 
 missible " and "non-transmissible," as is done by Koper (Rop. 
 Leg. vol. i. p. 500, 4th ed.,) appears to be fallacious. 
 
 3. The only definition that can be given of the word " vested " 
 in English law, as applied to future interests, other than remain- 
 ders, is, that it means "not subject to a condition precedent :" 
 what amounts to a condition precedent, the cases only can deter- 
 mine. As applied to remainders in land, the word retains its 
 original sense, denoting the actual possession of an estate in the 
 land.i 
 
 ' In New Jersey it is held that whether a legacy is contingent or vested, . 
 depends not upon the time, but upon the event upon which it is to take 
 effect. If the event is uncertain the legacy is contingent, though the time 
 is fixed ; and if certain it is vested, although the time is uncertain. Thus 
 a gift when the legatee arrives at twenty-one is contingent, because the 
 event is uncertain ; but a gift at the death of A. is vested, not it would 
 seem for the reason given by the English authorities, but because the event 
 is certain to happen. Thomas v. Anderson, 6 C. B. Green 22 ; Beatty v. 
 Montgomery, Id. 324 ; and in Van Dyke v. Vanderpool, 1 MoCart. 206, the 
 inclination is to confine the uncertain events which will make a legacy con- 
 tingent to those which are personal to the legatee. 
 
 A similar doctrine is laid down in Taylor v. Mosher, 29 Md. 443. In 
 this latter case the Court say, " To make an estate contingent it must ap- 
 pear from the language used and the nature and circumstances of the case, 
 that the time of payment was made the substance of the gift, and that the 
 testator meant that time as the period of vesting." 
 
 One case, however, in North Carolina holds the strict doctrine that a 
 postponement itself makes the gift contingent, unless it appear that it is the 
 time of payment only that is postponed ; the death of the legatee before 
 the time of the gift, causing, as it were, a lapse, there being no legatee to 
 answer to the description at the time the gift is to take effect : Anderson 
 V. Felton, 1 Ired. Bq. 55. The general doctrine in this country, however, 
 is that a postponement will not of itself create a contingency, unless it be 
 upon an event of such nature that it is to be presumed the testator 
 
PERSONAL ESTATE. 223 
 
 The rules as to the vesting of gifts by will differ according as 
 the subject-matter is personal estate, real estate, or a legacy 
 charged on land. 
 
 I. PERSONAL ESTATE. 
 
 Where a legacy is given to a person "if" he attains a given 
 age, it is plain that the legacy is contingent till he attains that 
 age ; and in the absence of indications of a contrary intention, 
 the same effect is given to the following expressions, viz. : 
 
 Rule. A bequest of personal estate to A., "at" a 
 *given age or ' marriage, is prima facie, contin- 
 gent. (Stapleton v. Cheales, Prec. Ch. 317.) ^*^'^^ 
 
 So, a bequest to A. " upon " attaining a given age, is 
 prima, facie contingent. (Leake v. Robinson, 2 Mer. 
 363.)^ 
 
 So, a bequest to A. "when " or " as " he shall attain, 
 or " from and after " his attaining a given age, is primA 
 facie contingent. (Hanson v. Graham, 6 Ves. 239; 
 Leake v. Robinson, 2 Mer. 363 ; Davies v. Fisher, 5 B. 
 201.)2 
 
 The rule is the same where the bequest is to a class ; 
 as, to the children of A. at or upon attaining, or when or 
 as they shall attain, a given age. (Leake v. Robinson, 2 
 Mer. 363.) 
 
 intended to make no gift unless the event happened, or as it is sometimes 
 put, unless the time be annexed to the substance of the gift : Van Wyck v. 
 Bloodgood, 1 Bradf. 154. 
 
 ' Travis v. Morrison, 28 Ala. 494. 
 
 " Locke V. Lamb, L. K. 4 Eq. 372 ; Snow v. Snow, 49 Me. 159 ; Moore v. 
 Smith, 9 Watts 403 ; Seibert's Appeal, 13 Penn. St. 501 ; Giles v. Franks, 
 2 Dev. Eq. 521 ; Seabrook v. Seabrook, 1 McMull. Eq. 210 ; Allen r. 
 Whitaker, 34 Ga. 6 ; Koberts v. Brinker, 4 Dana 572. In Connecticut it 
 is doubted whether the words " as," " when," and " at," ought in this 
 country to be construed as importing a contingency, when there is no ex- 
 press disposition of the intermediate income, nor anything else to indicate 
 an intention to ^ive contingently : Colt v. Hubbard, 33 Conn. 285, 
 
224 GIFT AND TIME OF PAYMENT DISTINCT. 
 
 The rule is the same where the gift is in the form of a 
 direction to pay (Leake v. Robinson, 2 Mer. 363). Thus, 
 if the bequest be to trustees upon trust for A. for life, 
 and after his decease upon trust to pay and divide among 
 his children when they shall respectively attain twenty- 
 one, no child dying under that age will be entitled.^ 
 
 So, a gift to the children of a person living at the testator's 
 decease, when, as, upon, or from and after, attaining the age of 
 twenty-five, is void for remoteness. 
 
 "If I give to persons of any description when they attain 
 twenty-five, or upon their attaining twenty-five, or from and after 
 their attaining twenty-five, is it not precisely the same thing as if 
 I gave to such of those persons as should attain twenty-five ? 
 None but a person who can predicate of himself that he has 
 attained twenty-five, can claim anything under such a gift." 
 (Leake v. Robinson, 2 Mer. 386.) 
 
 " No case has determined that the word 'when,' as referred to 
 a period of life, standing by itself, and unqualified by any words 
 or circumstances, has ever been *held to denote merely 
 -• the time at which it is to take 66*001 in possession ; but, 
 standing so unqualified and uncontrolled, it is a word of condi- 
 tion, denoting the time when the gift is to take effect in substance. 
 That this is so, is evident upon mere general principles ; for it is 
 just the same, speaking of an uncertain event, whether you say 
 ' when ' or ' if ' it shall happen. Until it happens, that which is 
 grounded on it cannot take place." (Hanson v. Graham, 6 Ves. 
 243.) 
 
 Contrary intention. — But these expressions are ambiguous, 
 and but slight circumstances in the context may sufiice to show 
 that the attainment of the specified age was not intended as a 
 condition, but only to fix the time of actual payment.^ 
 
 Thus, if the bequest be in trust to pay to the children of A. 
 
 ' Moore u. Smith, 9 Watts 403. 
 
 ' Shattuck V. Stedman, 2 Pick. 468 ; Dale v. "White, 33 Conn. 290. 
 
BEQUEST TO A. PAYABLE AT TWENTY-ONE. 225 
 
 as they respectively attain twenty-one, with a gift over in the 
 event of A. dying without leaving children (not without children 
 who should attain twenty-one), the gift over may he held to show 
 an intention that the children (if any) should take, although not 
 attaining twenty-one. (Bree v. Perfect, 1 Coll. 128 ; Ingram v 
 Suckling, 7 W. R. 386, V.-C. W.f 
 
 Again, in the case of a gift to children when and as they 
 should attain a given age, with a gift over of the shares of those 
 dying under that age without leaving issue, it has been held that 
 the chadren took vested interests, inasmuch as they were to take 
 if leaving issue, although dying under the given age. (Bland v. 
 Williams, 3 My. & K. 411. )2 
 
 Under a gift to children at twenty-one, " and if but one child, 
 the whole to such only child,'' it has been held that an only child 
 took though not attaining twenty-one. ("Walker v. Mower, 16 
 B. 365 ; King v. Isaacson, 1 Sm. & G. 371.) 
 
 Grift and Time of Payment distinct. 
 A bequest to A. at twenty-one, and a bequest to A. payable 
 at twenty-one, do not much differ in expression : *yet one 
 is a vested, the other a contingent gift ; for it is a rule of L 
 construction that — 
 
 Rule. In bequests of personal estate, if the gift and 
 direction as to payment are distinct, the direction as to the 
 time of payment does not postpone the vesting. (Bar- 
 tholomew's Trusts, 1 Mac. & Gr. 354 ; Lister v. Bradley, 
 1 Hare 12.) 
 
 Thus, a bequest to A. pat/ahle at twenty-one, or to be 
 
 ^ This rule was not observed in Seibert's Appeal, 13 Penn. St. 501. 
 
 " Kimball v. Crocker, 53 Me. 263 ; Chew's Appeal, 37 Penn. St. 28. A 
 gift over on death of the legatee under twenty-one has been considered an 
 indication of intention that the gift should be vested, subject to be defeated 
 on that event : Pearman v. Pearman, 33 Beav. 394. In Raney v. Heath, 2 
 Patt. & H. 219, and Hughes v. Hughes, 12 B. Monr. 117, the rule of Ed- 
 wards V. Hammond is held applicable to bequests of personal estate. (See 
 p. 241.) 
 
226 BEQUEST PAYABLE TO A. AT TWENTY-ONE. 
 
 paid at twenty-one, is vested; and if A. dies under 
 twenty-one, his representatives will be entitled. 
 
 So, a bequest to the children of A., equally to be 
 divided among them when they attain twenty-one, vests 
 in the children at birth. (Williams v. Clark, 4 De G. 
 & Sm. 472.)^ 
 
 "A distinction has been introduced between the effect of giving 
 a legacy at twenty-one and a legacy payable at twenty-one. 
 That is also borrowed from the civil law. The code (lib. 6, tit. 
 53, sect. 5) thus states it : — " Ex his verbis, do lego ^lise Sev- 
 erinse filias mese et secundse decern, quce legata aecipere debehit, 
 cum ad legitimum statum pervenerit : non conditio fidei commisso 
 vel legato inserta, sed petitio in tempus legitimse setatis dilata 
 videtur." (Hanson v. Graham, 6 Ves. 245.) 
 
 ^ Kimball v. Crocker, 53 Me. 267 ; Brown v. Brown, 44 N. H. 281 ; 
 Shattuck V. Stedman, 23 Pick .468 ; Emerson v. Cutler, 14 Pick. 113 ; Dale 
 V. White, 33 Conn. 295 ; Tucker v. Ball, 1 Barb. 95 ; Parsons v. Layman, 4 
 Bradf. 269 ; Bowman's Appeal, 34 Penn. St. 23 ; Conwell v. Heayilo, 5 
 Harring. 297 ; Hathaway v. Leary, 2 Jones Eq. 264 ; Young v. M'Kinnie, 
 5 Fla. 548 ; Cox v. M'Kinney, 32 Ala. 462 ; Gregg v. Bethea, 6 Port. 9 ; 
 Blackburn v. Hawkins, 1 Eng. 51. 
 
 If there is a doubt whether the postponement is of the gift, or of the 
 time of payment, the latter construction will be adopted. Thus in a 
 bequest " to my son and my three daughters, to be equally divided between 
 them, when my son arrives at the age of twenty-One years," the word '' when" 
 is referred to the clause " to be equally divided :" Guyther v. Taylor, 3 Ired. 
 Eq. 327. So a bequest, " to A. $500, if he shall attain the age of twenty- 
 one, then to be paid to him," is read as if written "to be paid to him if he 
 shall attain the age of twenty-one years :" Furness v. Fox, 1 Cush. 135. 
 In Keed v. Buckley, 5 W. & S,, the bequest was as follows : " I direct that 
 the net proceeds of my estate be equally divided between my children, 
 share and share alike, and at the times of their respectively arriving at the 
 age of twenty-one years." It was held that the sentence was elliptical, 
 and that the word " paid" should be inserted after the word " and ;" and 
 the legacies were therefore vested. 
 
 A gift to a trustee in trust for A., or for the use and benefit of A. (being 
 a gift to A.), to be paid him when he arrives at the age of twenty-one 
 years, is a separate gift and direction as to payment : Bayard v. Atkyns, 
 10 Penn. St. 18. 
 
INTEKEST VESTS THE PRINCIPAL. 226 
 
 In Bartholomew's Trusts, 1 Mac.. &. Cr. 354, the bequest 
 being to trustees " upon trust to pay the same unto or amongst 
 the children of A., as and when they shall attain the age of 
 twenty-one years, to whom I give and bequeath the same accord- 
 ingly," the latter words were held to constitute a gift indepen- 
 dent of the direction to pay, so that the interests vested at birth. 
 But a direction to transfer and pay unto and amongst children 
 "in manner following, that is to say," the shares of sons to be 
 payable at twenty-one, &c., does not contain a gift distinct from 
 the time of payment. (Shum v. Hobbs, 3 Drew. 93.) 
 
 If there be a gift distinct from the direction to pay, a direction 
 to accumulate the income till the time of payment *does 
 not postpone the vesting. (Blease v. Burgh, 2 B. 221 ; L 
 Josselyn v. Josselyn, 9 Sim. 63.) 
 
 Bequest to A., to be paid on marriage {only). — It seems that 
 the rule does not apply where the payment is to be made, not on 
 attaining a given age, or marriage, but on marriage only. Thus 
 a bequest to A., to be paid on his marriage, is primd facie con- 
 tingent. (Atkins V. Hiccocks, 1 Atk. 500.) But a bequest to 
 A. to be paid on his marriage, with interest in the meantime, is 
 vested. (Vize v. Stoney, 1 D. & War. 337.)^ 
 
 Contrary intention. — But although there be a gift distinct from 
 the direction to pay, the context may show that the vesting is to 
 be postponed till the time of payment. Thus a bequest to A., 
 payable at twenty-one, if or in case he attains that age, would be 
 contingent. (Knight v. Cameron, 14 Ves. 389 ; Lister v. Brad- 
 ley, 1 Hare 12.)^ 
 
 In Judd V. Judd, 3 Sim. 525, 4 Sim. 455, a gift to children 
 to be paid on attaining twenty-five, was held upon the whole will 
 to be contingent and void for remoteness, there being a direction 
 that if but one child the whole should " become the property of" 
 such one child at twenty-five, and be transmissible to his execu- 
 tors. Sed qu. ? 
 
 1 Boone v. Sinkler, 1 Bay 369. , n ,, 
 
 ^ See Merry v. Hill, L. E. 8 Eq. 619. But in Furness v. Fox, 1 Gush. 
 
 135, it was held that a bequest to A. to he "paid to him if he attained 
 
 twenty-one" would he vested. 
 
227 HANSON V. GRAHAM. 
 
 Gift of Interest vests the Principal. 
 
 It is " an established rule of the court, that though such words 
 are used as would not have vested the legacy, yet the circum- 
 stance of giving interest is a circumstance of intention explana- 
 tory" (6 Ves. 249) : in other words that — 
 
 Rule. In bequests of personal estate, a gift of the whole 
 interim interest to or for the benefit of the legatee, primd 
 facie vests the principal. 
 
 Thus, a bequest to A. when he attains a given age, the 
 
 interest to be paid to him in the meantime, is vested : 
 
 ^ and if A. dies under that age, his *representatives 
 
 will be entitled. (Stapleton v. Cheales, Prec. Ch. 
 
 317.)^ 
 
 The rule is the same where the interest is given to 
 other persons to be applied for the benefit of the legatee. 
 
 Thus, a bequest to the children of A. when they attain 
 twenty-one, the interest to be applied for their mainte- 
 nance and education during their minorities, vests in the 
 children at birth. (Hanson v. Graham, 6 Ves. 239 ; Ham- 
 mond V. Maule, 1 Coll. 281.)^ 
 
 "Where a legacy is given by a direction to pay when the 
 legatee attains a certain age, the direction to pay may import 
 either a gift at the specified age or a present gift with a post- 
 poned payment, and if the interest is given in the meantime, it 
 
 > Burrill v. Shell, 2 l^rb. 471 ; Weyman v. Kingold, 1 Bradf. 40 ; Bay- 
 ard V. Atkyns, 10 Penn. St. 20; Provenchere's Appeal, 67 Penn. St. 466 ; 
 Hanson v. Brawner, 2 Md. 102 ; Nixon v. Bobbins, 24 Ala. 669. 
 
 ' Hardcastle v. Hardcastle, 1 Hem. & M. 405 ; Ashmore's Trust, L. R. 9 
 Eq. 99 ; Robert's Appeal, 59 Penn. St. 70; Lemonnier v. Godfroid, 6 Har. 
 & Johns. 472 ; Everett v. Mount, 22 Ga. 328. 
 
 In Roberts' Appeal an immediate severance of the legacy with a gift of 
 the income were sufficient to overcome the contingency implied by the use 
 of the words " in case ;" the gift being to A. of the principal, " in case he 
 lives to attain" twenty-one years. Roberts' Appeal, 59 Penn. St. 70, and 
 see also Boies v. Wilcox, 40 Barb. 286. 
 
DISCBETIONAKT POWER OP MAINTENANCE. 228 
 
 shows that a present gift was intended." (Per Turner, L. J., 
 Re Hart's Trusts, 3 De G. & J. 202.) 
 
 In Hanson v. Graham, 6 Ves. 239, the gift was to the chil- 
 dren of A. at twenty-one or marriage, the interest to be laid out 
 at the discretion of trustees for the benefit of the said children 
 till they should attain twenty-one or marry. Sir W. Grant said 
 (p. 249), " On the other side it was contended, that the interest 
 is not so given as to bring it within the general rule, but what is 
 given is more like maintenance. It is true, it has been held, that 
 has not the same effect as giving interest, upon this principle, 
 that nothing more than a maintenance can be called for, however 
 large the interest may be : and therefore what is not taken out of 
 the fund for maintenance must follow the fate of the principal, 
 whatever that may be. But by this will it is clear, the whole 
 interest is given. All that is left to the trustees is to determine 
 in what manner it may be best employed. It is therefore the 
 simple case of interest." 
 
 But where the gift is to suoh of the children of A. as shall 
 attain twenty-five, the interest to be applied in the meantime for 
 their benefit, the gift of interest does not *vest the princi- r^ooo 
 pal in those under twenty-five. (Southern v. Wollaston, 
 16 B. 166.) 
 
 Cfift of interest subject to a charge. — The rule applies where 
 part of the income of the fund is to be applied in payment of a 
 charge, if the whole of the remaining interest is given to the 
 legatee : the bequest being in fact of the whole interest, subject 
 to the charge. Thus if the bequest be to trustees in trust out of 
 the income to pay an annuity to A., and to apply the remaining 
 income for the benefit" of B. during his minority, and when B. 
 attains twenty-one to transfer the fund to him, B. takes an imme- 
 diate vested interest. (Jones v. Mackilwain, 1 Russ. 220 ; Potts 
 V. Atherton, 28 L. J. Ch. 486.)^ 
 
 Batsford v. Kebbell. — In some cases it has been held that a 
 gift of interim interest amounting to the income of the fund was 
 not a gift of the income of the fund itself, and therefore did not 
 
 ' Van Wyck v. Bloodgood, 1 Bradf. 175. 
 
229 CONTINGENT GIFT OP INTEREST, 
 
 vest the principal. As in Batsford v. Kebbell, 3 Ves. 362, ivhere 
 the direction was to pay to A. the dividends on 500Z. until thirty- 
 two, and then to transfer to him the principal sum of 500Z. : and 
 in Watson v. Hayes, 5 My. & Cr. 125, where the sum of 251. 
 yearly was directed to be paid for the maintenance and education 
 of A. till twenty-one or marriage, when the sum of 500?. was to 
 be paid to her : in both cases it was held that the legacy lapsed 
 by the death of A. under the specified age. But it seems pro- 
 bable that the doctrine of these cases will not be extended. (_Ee 
 Hart's Trusts, 3 De G. & J. 202.)^ 
 
 Discretionary power of maintenance. — A discretionary power 
 given to the trustees of the fund, to apply all or any part of the 
 income towards the maintenance or education or for the benefit 
 of the legatees, does not vest the principal. (Pulsford v. Hunter, 
 3 Bro. C. 0. 416 ; Leake v. Robinson, 2 Mer. 363.f 
 
 In some cases (Harrison v. Grimwood, 12 B. 192 ; Eccles v. 
 Birkett, 4 De G. & Sm. 105 ; Davies v. Fisher, 5 B. 201), direc- 
 tions as to maintenance, advancement, &c., out of the shares of 
 infant legatees (not amounting to an *absolute gift of the 
 ^ whole income) have been relied on as showing the shares 
 to be vested : but the authority of these cases is doubtful. In 
 
 ' Provenchere's Appeal, 67 Penn. St. 464. 
 
 In Fuller v. Winthrop, 3 Allen 61, it was held that a direction to pay 
 a semi-annual sum equal to the interest on the principal of the legacy was 
 substantially the same as a gift of interest. 
 
 ^ Ashmore's Trusts, L. R. 9 Eq. 99 ; Anderson v. Felton, 1 Ired. Eq. 60 ; 
 Seabrook u. Seabrook, 1 McMul. Eq. 210. A gift of a definite sum for 
 maintenance, which is less than the income of the legacy, is evidence of 
 an intention not to vest the legacy sufficient in a doubtful case to make it 
 contingent : Colt v. Hubbard, 33 Conn. 286. 
 
 In Bayard v. Atkyns, 10 Penn. St. 20, C. J. Gibson states the rule on 
 this subject somewhat differently from the English authorities. He says, 
 " If a partial maintenance be given, as for instance, an annual sum, less 
 than the whole annual interest of the principal, the child shall have no 
 more, and the executor paying that sum shall have all the rest. But if 
 maintenance be given generally so that the whole interest may be ex- 
 hausted, that shows that the testator meant the fund to carry interest for 
 the benefit of the child," and concludes that the gift will therefore be 
 vested. 
 
IMMEDIATE SEVERANCE 01' LEGACY. 230 
 
 Davies v. Fisher, 5 B. 201, the gift was to the children of A. as 
 they should attain twenty-five, the income to he applied during 
 their minorities for their maintenance. It was held that the 
 direction as to maintenance applied only till the children attained 
 twenty-one ; but nevertheless that the gift was vested. But qu. ? 
 whether the word "minority" should not be held in such a case 
 to extend to twenty-five, so that the ordinary rule would apply. 
 Contingent gift of interest.— li the gift of interest itself is 
 contingent on the legatee attaining the specified age, so that the 
 interest is to follow the fate of the principal, it of course cannot 
 have the effect of vesting the principal. As, if the gift be " I 
 bequeath to A. when he attains twenty-one the sum of lOOOJ. 
 with interest" (not, with interest in the meantime) (Knight v. 
 Knight, 2 Sim. & Stu. 490). So, in Morgan v. Morgan, 4 De 
 G. & Sm. 164, a gift of 5000Z. to A. upon marriage, "with the 
 accumulations of interest thereon from my death," was held con- 
 tingent. 
 
 Immediate severance of legacy. — But although the interest 
 be not given to the legatee till he attains the specified age, yet if 
 the subject-matter of the bequest be at once severed from the 
 rest of the testator's property, and given to trustees for the 
 legatee in trust to accumulate until the legatee attains the speci- 
 fied age, an inference in favor of immediate vesting arises. (Saun- 
 ders V. Vautier, Cr. & Ph. 240 ; Oddie v. Brown, 4 De G. & J. 
 179.)' 
 
 " Where funds are given to trustees to be held by them upon 
 trusts, direction must of course be given to the trustees as to the 
 time and manner in which they are to deal with the funds in 
 favor of the person for whose benefit they are intended. Words, 
 therefore, which in other cases might import condition or contin- 
 gency, may in such cases be used for a wholly different pur- 
 pose, — for the purpose namely of conveying the necessary direc- 
 tions *to the trustees. (Per Turner, L. J., Oddie v. p^o„^ 
 Brown, 4 De G. & J. 194.) L ^^1 
 
 ' Dundas v. Murray, 1 Hem. & M. 425 ; Weyman v. Ringold, 1 Bradf. 
 40 ; Van Dyke v. Vanderpool, 1 McCart. 206 ; Robert's Appeal, 59 Penn. 
 
 St. 72. 
 
231 SAUNDERS V. VAUTIER. 
 
 Thus, -where a sum of stock was given to trustees upon trust to 
 accumulate the interest till A. should attain the age of twenty- 
 five, and then to pay or transfer the principal, together with such 
 accumulated interest, unto the said A., his executors, administra- 
 tors or assigns, A. was held to take an immediate vested in- 
 terest. (Saunders v. Vautier, Or. & Ph. 240.)^ 
 
 So, where the testator directed that 50001. should be deposited 
 in the hands of trustees for accumulation, and placed in the Bank 
 of England in the names of trustees for the use of A., at his 
 attaining the age of thirty years, the legacy was held vested. 
 (Greet v. Greet, 5 B. 123.) 
 
 So in Branstrom v. Wilkinson, 7 Ves. 420, a gift to A. and B. 
 when they should attain twenty-one, followed by a clause in the 
 words " I aippoint 0. a trustee for them during their minority," 
 was held to confer a vested interest on A. and B. 
 
 Again, in Lister v. Bradley, 1 Hare 14, Wigram, V.-C, said, 
 " The circumstance that the testator has anxiously directed the 
 four legacies to his reputed children to be immediately severed 
 from his general estate, and put to interest on separate deeds, 
 which are to specify the names of the respective legatees, is suffi- 
 cient, in my judgment, to fix the construction of the words 
 "when or if" as being used for the convenience only of the 
 legatees themselves, and not for the purpose of making their 
 interest contingent on their attaining twenty-one years of age."^ 
 
 It has been said that the Courts especially lean in favor of 
 vesting in the bequest of a residue. (Booth v. Booth, 4 Ves. 399.)' 
 
 1 Kimball v. Crocker, 53 Me. 263. 
 
 ^ In Bowman v. Long, 23 Ga. 248, the appointment of a trustee is con- 
 sidered almost, if not quite conclusive in favor of vesting ; and certainly so in 
 a case of doubt ; and so. Collier's Will, 40 Mo. 325. A gift of slaves to A. in 
 trust for his children, he not to be accountable until the children should 
 attain twenty-one years, to use the proceeds to enable him to educate the 
 children, vras held a present gift with directions for a future payment : 
 Myers v. Williams, 5 Jones Bq. 362 ; and the same was held in a gift to a 
 trustee, with discretionary power of maintenance and directions to pay at 
 a certain age, in Felton v. Saywer, 41 N. H. 202. 
 
 = West V. West, 4 Gif. 202 ; Pearman v. Pearman, 33 Beav. 396 ; Tayloe 
 V. Mosher, 29 Md. 451. 
 
HALLIFAX V. WILSON. 231 
 
 " Vested," read " indefeasible."— 'Eyen if tlie testator expressly 
 directs that the interests of legatees shall "vest" at a given age, 
 they may upon the whole will be held to take vested interests 
 before that age, subject to be divested, the word "vested" 
 being construed as "indefeasible," or "immediately payable." 
 (Taylor v. *Frobisher, 5 De G. & Sm. 191; Berkeley v. 
 Swinburne, 16 Sim. 275.)^ C*^^^ 
 
 Sallifax v. Wilson. 
 
 A bequest to A. " from and after " his attaining twenty-one, is 
 primd facie contingent : but a bequest to A. " from and after " 
 the death of B., following a gift to B. of a life interest in the 
 fund, is vested ; for it is a general rule that — 
 
 Rule. A bequest in the form of a direction to pay, or 
 to pay and divide, at a future period, vests immediately, 
 if the payment be postponed for the convenience of the 
 estate, or to let in some other interest.^ 
 
 ' Edmondson's Estate, L. R. 5 Eq. 389 ; Thompson v. Thompson, 28 
 Barb. 436. 
 
 2 Yeaton v. Roberts, 8 Fost. 459 ; Winslow v. Goodwin, 7 Mete. 363 ; 
 Childs V. Russell, 11 Id. 16 ; White v. Curtis, 12 Gray 54 ; Tucker v. 
 Ball, 1 Barb. 94 ; Barker v. Woods, 1 Sandf. Ch. 129 ; Larocque v. Clark, 
 1 Redf. Sur. Rep. 469 ; Van Dyke v. Vanderpool, 1 M'Cart. 207 ; Howell v. 
 Green, 2 Vroom 570 ; Thomas v. Anderson, 6 C. E. Green 22 ; jM'Gill's 
 Appeal, 61 Penn. St. 47 ; Conwell v. Heavilo, 5 Harring. 296 ; Tayloe v. 
 Mosher, 29 Md. 443; Brent v. Washington, 18 Gratt. 529; Johnson 
 V. Baker, 3 Murph. 318 ; Fuller v. Fuller, 5 Jones Eq. 223 ; Falls v. 
 M'Cullough, Phill. Eq. 140; M'Ginnis v. Foster, 4 Ga. 377; Nixon v. Rob- 
 bins, 24 Ala. 670 ; Thieband v. Sebastian, 10 Ind. 454 ; Allen v. Mayfield, 20 
 Id. 293 ; Roberts v. Brinker, 4 Dana 573 ; Rawlings v. Landes, 2 Bush 
 169 ; Watkins v. Quarles, 23 Ark. 179. 
 
 "Where the enjoyment of an entire fund is given in fractional parts at 
 successive periods, which must eventually arrive, the distinction between 
 time annexed to payment and time annexed to gift becomes unimportant. 
 In such case it is well settled that all the interests vest together," per 
 Gibson, C. J., in King v. King, 1 W. & S. 207. 
 
 Where the testator orders his whole estate to be kept together for the 
 benefit of his wife and children and directs that it be divided when the 
 18 
 
232 HALLIFAX V. WILSON. 
 
 Thus, under a bequest to trustees in trust for A. during 
 his life, and after his death to pay and divide among his 
 children, the shares of children dying in the lifetime of 
 A. are vested, and pass to their representatives. (Hallifax 
 V. WUson, 16 Ves. 171; Leeming v. Sherratt, 2 Hare 14; 
 Packham v. Gregory, 4 Hare 396.) 
 
 " If there is-a gift to a person at twenty-one, or on the happen- 
 ing of any event, or a direction to pay and divide when a person 
 attains twenty-one, then the gift being to persons answering a 
 particular description, if a party cannot bring himself within it, 
 he is not entitled to take the benefit of the gift. There is no 
 gift in those cases, except in the direction to pay, or in the direc- 
 tion to pay and divide. But if, upon the whole will, it appears 
 that the future gift is only postponed to let in some other interest, 
 or, as the Court has commonly expressed it, for the greater con- 
 venience of the estate, the same reasoning has never been applied 
 to the case. The interest is vested notwithstanding, although 
 the enjoyment is postponed." (Packham v. Gregory, 4 Hare 398.) 
 
 youngest child attains twenty-one, or that each child shall be paid a certain 
 share when he attains twenty-one, it is presumed that the postponement is 
 made rather for the purpose of providing a home for the family, than of 
 postponing the vesting of the shares, and therefore all the interests will 
 vest at death : Devane v. Larkins, 3 Jones Eq. 377 ; Smith v. Wiseman, 
 6 Ired./Eq. 540 ; Everett v. Mount, 22 Ga. 323 ; M'Lemore v. M'Lemore, 8 
 Ala. 687; Scott v. James, 3 How. (Miss.) 307 ; Hancock v. Titus, 39 Miss. 
 225 ; Collier's Will, 40 Mo. 323. In like manner it has been held that 
 whenever property is given to another person until one or more of the 
 ultimate legatees shall attain a certain age, the latter will take vested 
 interests, the presumption being that the testator postponed the payment for 
 the purpose of the prior bequest : Watkins v. Quarles, 23 Ark. 179 ; Roberts 
 V. Brinker, 4 Dana 573. These cases extend the rule of Borastin's Case to 
 personal estate, which was done also in Collier's Will, 40 Mo. 287, in a case 
 of a mixed gift of realty and personalty. 
 
 In Tennessee a gift to an open class, after an estate for life is a gift to 
 the class as constituted at the death of the life tenant, and the interests 
 are therefore contingent ; but if the gift be to individuals or to all the 
 members of a class, the gift vests at the death of the testator : Harris v. 
 Alderson, 4 Sneed 250 ; Alexander v. Walch, 3 Head 493. 
 
LEEMING V. SHERRATT. 233 
 
 *Leeming v. Sherratt. [*233 
 
 Although the period appointed for actual payment does not 
 in general influence the vesting, it has this effect in the following 
 case, viz. : 
 
 Rule. A bequest to the children of A. when the t/ouncf- 
 est child attains twentt/-one, vests in all the children 
 who attain twenty-one, to the exclusion, primd facie, of 
 those dying under twenty-one. (Leeming v. Sherratt, 
 2 Hare 14 ; Parker v. Sowerby, 1 Drew. 488 ; Lloyd v, 
 Lloyd, 3 K. & J. 20 ; Cooper v. Cooper, 29 B. 229.)^ 
 
 The division is therefore among the children living when the 
 youngest attains twenty-one, and the representatives of those 
 have attained twenty-one and died before that period. 
 
 In Leeming v. Sherratt, 2 Hare 14, the bequest was to trus- 
 tees in trust to sell, "and to pay and divide the money arising 
 therefrom, so soon as my youngest child shall attain the age of 
 twenty-one, unto and equally amongst my children, share and 
 share alike." Wigram, V.-C, said (p. 23) : "The testator hav- 
 ing postponed the division of the residue until his youngest child 
 attains that age, I think no child who did not attain that age 
 could have been intended to take a share therein. But this is 
 consistent with the proposition that all who lived to that age 
 should participate in the residue, as soon as the youngest child, 
 who should attain that age, had reached it, which is the intention 
 I ascribe to the testator." 
 
 It would appear that the rule would apply although there were 
 a gift distinct from the direction to pay ; as if the bequest were 
 
 ^ In Anderson v. Felton, 1 Ired. Eq. 55, the gift was as follows : " I 
 likewise will that at the time my youngest daughter S. arrives at the age 
 of fifteen years, that all my negroes and perishable property shall be di- 
 vided between all my children, and the money likewise to be divided ;" and 
 it was held that the shares of the children were contingent until the 
 youngest daughter arrived at the age specified. There was no gift before 
 that time. " Consequently the legatees must be living at that time so as 
 to answer to the description." 
 
233 RULE IN COOPER V. COOPER. 
 
 to the children of A., to be ;paid -when the youngest child attained 
 twenty-one. 
 
 * Gift of interest does not exclude the rule. — A gift of the 
 J income of the fund to be applied for the maintenance, &c., 
 of all the children during their minorities is not inconsistent 
 with the rule. (Lloyd v. Lloyd, 3 K. & J. 20.) And, it would 
 seem, the rule is not excluded, although the interest be given to 
 be applied for the benefit of the children until the period of divi- 
 sion, i. e., expressly until the youngest child attains twenty-one. 
 (Cooper V. Cooper, 29 B. 229./ 
 
 But where the gift upon the youngest child attaining twenty- 
 one was "to the said children, that is to say to A. one-fifth, to 
 B. one-fifth, &c., the bequest not being to a class, but to the 
 children named, it was held that the rule was excluded, and that 
 the share of A. who died under twenty-one, was vested and passed 
 to his representatives. (Cooper v. Cooper, 29 B. 229.) 
 
 II. LEGACIES CHARGED ON LAND. 
 
 There is a material distinction, as regards vesting, between 
 
 '^ In Lloyd v. Lloyd the income was to be applied for the benefit of the 
 children "during their minority" and the gift was "when and so soon as 
 all such children should have attained the age of twenty-one years. 
 Wood, Y.-C, said : " No doubt the testator contemplated that all the chil- 
 dren should live to attain twenty-one. . . . It is plain that the testa- 
 tor never intended that children who died under twenty-one should have 
 such an interest, that their executors should receive the rents until all the 
 children should have attained twenty-one. There are no words to carry 
 such a gift. . . . This view of the case takes it out of the rule in Man- 
 son v. Graham" 
 
 In Grove's Trusts, 3 Gif. 575, whore the gift was to trustees "to pay the 
 rents, issues and profits to all and every the children of A. until the 
 youngest of them should have attained the age of twenty-one, and when 
 and so soon as the youngest of them should have, &c., to sell, &c., and to 
 pay and distribute, &c., among the said children of A." Stuart, V.-C, 
 held that the interests were vested. He declares that Lloyd v. Lloyd 
 turns on the fact that the language of the will excluded all children who 
 did not attain twenty-one, while in the case before him the testator had in 
 clear language made "all and every the children" the objects of his 
 bounty both as to interest and capital. 
 
LEaACIES CHARGED ON LAND. 234 
 
 legacies payable at a future time out of real estate,. and legacies 
 payable at a future time out of personalty. As regards the 
 latter, the time of payment does not in general affect the vesting ; 
 but, as regards the former, the rule is that — 
 
 Rule. Legacies charged on land do not vest before the 
 time appointed for payment, unless an intention appear 
 to the contrary. (Poulett v. Poulett, 1 Vern. 204; 
 Duke of Chandos v. Talbot, 2 P. Wms. 601 ; Remnant v. 
 Hood, 2 De G. F. & J. 396.)^ 
 
 Thus, a legacy to A. payable at twenty-one charged 
 upon land, fails by the death of A. under twenty-one. 
 
 The rule is the same although interest be given in the 
 meantime. Thus, a legacy to A. payable at twenty-one, 
 with interest from the testator's death to be applied for 
 his maintenance, charged on land *is contingent. 
 (Pearce v. Loman, 3 Ves. 135 ; Parker v. Hodgson, " 
 1 Dr. & Sm. 568.)^ 
 
 Contrary intention. — But the rule will be excluded if the con- 
 text shows that the legacy was intended to vest at an earlier 
 period.^ 
 
 Thus, where legacies were given to the children of A. to be 
 paid within twelve months after the youngest should have at- 
 tained twenty-one, but the testator directed that the devisee of 
 the land might, if he thought proper, pay the legacies to such as 
 had attained twenty-one at an earlier period, it was held that the 
 legacies vested at twenty-one. (Brown v. Wooler, 2 Y. & C. C. 
 C. 134.) 
 
 So, if the legacy be to A. to vest at the testator's death, but 
 
 ' Lyman v. Vanderspiegel, 1 Aik. 280 ; Birdsall v. Hewlitt, 1 Paige 34 ; 
 Stone V. Massey, 2 Yeates 363 ; Spenoe v. Robins, 6 Gill. & Johns. 511 ; 
 Roberts v. Malin, 5 Ind. 18. 
 
 In Willis V. Roberts, 48 Me. 257, no notice was taken of any distinction 
 between legacies charged on land and other legacies. 
 
 ^ Smith V. Wiseman, 6 Ired. Eq. 540. 
 
 ^ Stone V. Massey, 2 Yeates 363. 
 
235 KINS V. WITHBRS. 
 
 to be paid at twenty-one, the rule is excluded. (Watklns v. 
 Cheek, 2 S. & Stu. 199.) 
 
 In Murkin v. Phillipson, 3 My, & K. 257, a legacy of 50Z. to 
 each of the children of A. when the youngest should come of 
 age, out of land, was held to vest in each child who attained 
 twenty-one, there being a gift over of the legacy of a child dying 
 under twenty-one without issue to the surviving children. 
 
 Convenience of the estate. — If the payment of the legacies is 
 postponed for the convenience of the estate, and not for reasons 
 personal to the legatee, the rule in general will not apply. 
 (King V. Withers, Ca. t. Talb. 117 ; Evans v. Scott, 1 H. L. C. 
 43 ; Remnant v. Hood, 2 De G. F. & J. 396.y 
 
 Thus, if real estate be devised to A. for life, with remainder 
 to B. in fee, charged with a legacy to C. to be paid by B. within 
 twelve months after the death of A., the legacy to C. is vested. 
 (Poole V. Terry, 4 Sim. 294.) 
 
 " It is well settled, as a general rule, that legacies or portions 
 charged on real estate, and payable at a future time, do not vest 
 until the time appointed for payment of them ; but upon the 
 death of the legatee or portion er before that time, lapse and sink 
 into the inheritance. The rule, however, though general, is not 
 universal. If *the payment of the legacy or portion is post- 
 ^ poned, not from any considerations personal to the legatee 
 or portioner, but simply for the convenience of the estate, the 
 legacy or portion may vest, notwithstanding the death of the leg- 
 atee or portioner before the time appointed for payment. The 
 Court, seeing the purpose for which the payment was postponed, 
 does not consider the postponement to draw with it the conse- 
 quences which would otherwise attach upon it." (Per Turner, L. 
 J., Remnant v. Hood, 2 De G. F. & J. 410.) 
 
 But if lands be devised to A. for life, and then charged with 
 portions for his younger children to be raised on his decease, 
 
 ' Bowkeri). Bowker, 9 Cush. 520; Birdsall v. Hewlitt, 1 Paige 34; 
 Harris v. Fly, 7 Paige 421 ; Young v. Stoner, 37 Penn. St. 105 ; O'Byrne 
 V. O'Byrne, 9 Md. 512. 
 
LEGACIES PAYABLE OUT OP LAND. 236 
 
 qu. ? whether a child who dies under twenty-one, unmarried, be- 
 comes entitled to a portion. (Ib.)^ 
 
 Legacy payable out of real and personal estate.— li a legacy 
 is payable out of both real and personal estate, so far as the per- 
 sonal estate extends, the construction is governed by the rules 
 relating to the vesting of bequests of personal estate ; and so 
 far as the real estate is sought to be resorted to, the construction 
 is the same as if the legacy had been payable out of the real es- 
 tate only. (Duke of Chandos v. Talbot, 2 P. Wms. 601 ; Prowse 
 V. Abingdon, 1 Atk. 482. )2 
 
 Thus if the legacy be to A. payable at twenty-five, and A. dies 
 under twenty-five, the legacy is payable out of the personal 
 estate, but not out of the real estate. 
 
 But the assets will not be marshalled in favor of the legacy. 
 (Pearce v. Loman, 3 Ves. 135.) 
 
 Proceeds of land converted. — A legacy payable out of the 
 proceeds of land directed to be sold is governed by the rules of 
 construction relating to bequests of personal estate, and not by 
 those relating to legacies charged upon land. (Re Hart's Trusts, 
 3 De a. & J. 195.)8 
 
 A legacy charged on leaseholds for long terms is of course a 
 legacy payable out of personal estate, as regards construction., 
 (Re Hudsons, 1 Drury 6.) 
 
 *III. REAL ESTATE. [^237 
 
 In the construction of devises of real estate, " it has long been 
 an established rule for the guidance of the Court, that all estates 
 are to be holden to be vested, except estates in the devise of which 
 a condition precedent to the vesting is so clearly expressed that 
 the Courts cannot treat them as vested without deciding in direct 
 
 ' Patterson v. Hawthorn, 12 S. & E. 114. 
 
 =* Fuller V. Winthrop, 3 Allen 51 ; Patterson v. Hawthorn, 12 S. & K. 
 112. 
 * Roberts v. Brinker, 4 Dana 571. 
 
237 eoraston's case. 
 
 opposition to the terms of the will." (Per Best, C. J., Duffield 
 V. Duffield, 1 Dow & 01. 311.) To accomplish this, (1) Words 
 of seeming condition are, if possible, held to have only the effect 
 of postponing the right of possession : and (2) If the devise be 
 clearly conditional, the condition will, if possible, be construed as 
 a condition subsequent and not precedent, so as to confer an im- 
 mediately vested estate, subject to be divested on the happening 
 of the contingency. 
 
 First, where no condition it held to be involved : — 
 
 Boeaston's Case. 
 
 Etjle. If real estate be devised to A. when lie shall 
 attain a given age, and until A. attain that age the pro- 
 perty is devised to B., A. takes an immediate vested es- 
 tate, not defeasible on his death under the specified age ; 
 the gift being read as a devise to B. for a term of years, 
 Avith remainder to A. (Boraston's Case, 3 Co. 21 a., b. ; 
 Goodtitle v. Whitby, 1 Burr. 228 ; Doe v. Lea, 3 T. R. 
 41 ; Doe d. Cadogan v. Ewart, 7 Ad. & Ell. 636, E. C. L. 
 R. vol. 34.)^ 
 
 The rule is the same if the devise be to A. "at," 
 " upon," or " from and after," attaining a given age, with 
 a devise in the meantime to B. 
 
 *238] 
 
 If the devise to A., on attaining twenty-one, be in fee *or 
 in tail, and A. dies under twenty-one, the estate conse- 
 quently descends to his heir. 
 
 1 Roome v. Phillips, 24 N. Y. 465 ; Kinsey v. Lardner, 15 S. & R. 196 ; 
 Minnig v. Batdorff, 5 Penn. St. 503 ; Meyer u. Eisler, 29 Md. 32 ; Rivers v. 
 Fripp, 4 Rich. Eq. 276 ; Danforth v. Talbot, 7 B. Mon. 623 ; Allan v. Van- 
 meter, 1 Mete. (Ky.) 264 ; Collier's Will, 40 Mo. 285 ; Scott v. Logan, 23 
 Ark. 352. 
 
 In Roberts v. Brinker, 4 Dana 573 and Watkins v. Quarles, 23 Ark. 179, 
 the rule of Boraston's Case was applied to bequests of personal property, 
 and Collier's Will, 40 Mo. 287, it was held applicable to mixed gifts of 
 realty and personalty. 
 
VESTING OF REAL ESTATE. 238 
 
 "Where an absolute property is given, and a particular inte- 
 rest given in the meantime, as ' until the devisee shall come of 
 age,' &c., and when he shall come of age, &c., then to him, &c., 
 the rule is, that that shall not operate as a condition precedent, 
 but as a description of the time when the remainderman is to take 
 in possession." (Goodtitle v. Whitby, 1 Burr. 228.) 
 
 " The cases on this subject appear to be resolvable into two 
 classes ; first, those in which the Courts have relied on the circum- 
 stance that the estate, prior to the attainment of the age of 
 twenty-one, has been given to some third persons, either for the 
 benefit of the devisee himself, as in Goodtitle v. Whitby, or for 
 the benefit of some other persons, to endure during his minority, 
 as in Boraston's Case and Mansfield v. Dugard ; and, secondly, 
 those cases in which the estates are given over in the event of the 
 devisee dying under twenty-one, as in Edwards v. Hammond, 
 Bromfield v. Crowder, and Doe v. Moore. The first class of cases 
 proceeds on the ground that the estate given to the devisee on his 
 attaining twenty-one is in fact only a remainder, taking effect in 
 its natural order on the determination of the preceding estates ; 
 and that the attaining the prescribed age in such a case no more 
 imports a condition precedent than any other words indicating 
 that a remainderman is not to take until after the determination 
 of the particular estates. The second class of cases goes on the 
 principle that the subsequent gift over, in the event of the de- 
 visee dying under twenty-one, sufficiently shows the meaning of 
 the testator to have been that the first devisee should take what- 
 ever interest the party claiming under the devise over is not en- 
 titled to, which of course gives him the immediate interest, sub- 
 ject only to the chance of its being divested in a future contin- 
 gency." (Per Tindal, C. J., Phipps v. Ackers, 9 CI. k F. 591.) 
 
 The rule applies whether the devise to A. be of an estate in 
 fee, or in tail, or for life only. 
 
 Executory trusts. — The rule applies to executory trusts. Thus, 
 if the *devise be to trustees in trust to receive the rents r*239 
 until A. shall attain twenty-one, and immediately after he 
 shall attain twenty-one to convey to the use of A. for life, with 
 
239 INTERMEDIATE INTEREST. 
 
 remainder to his children in tail, the estate of A. vests on his 
 birth. (Stanley v. Stanley, 16 Ves. 491.) 
 
 Nature of intermediate estate. — The rule proceeds on the 
 ground that the -words of time, "when," "upon," &c., express 
 only that the ulterior estate is to take effect subject to and on the 
 determination of the intermediate estate; the rule, therefore, 
 applies wherever there is an intermediate estate carved out, 
 extending over the whole period ; although the beneficial interest 
 be given, not for the benefit of the ulterior devisee, but of some 
 other person, as a devise to the testator's wife, until A. shall 
 attain twenty-four. (Doe v. Lea, 3 T. R. 41; Mansfield v. 
 Dugard, 1 Eq. Ca. Abr. 195.) 
 
 And it is immaterial that the beneficial interest during the 
 intermediate period is partly undisposed of, as if the devise be to 
 trustees in trust to apply so much of the rents and profits as they 
 should think fit towards the maintenance of A. during his minority. 
 (James v. Lord Wynford, 1 Sm. & Gr. 40.) " The principle of 
 Boraston's Case is, that an intermediate interest carved out does 
 not prevent the vesting, whether it be so carved out for the benefit 
 of the devisee or of any other person, and whether it exhausts the 
 whole intermediate rents and profits, or only a part." (lb.) 
 
 Freeholds and leaseholds. — And where freeholds and lease- 
 holds were included in the same gift, and the devisee was held to 
 take a vested estate in the freeholds by virtue of the rule, it was 
 held that the leaseholds vested also, although the trust declared of 
 the intermediate income being only of so much as the trustees 
 should think fit, the gift, in the case of personal estate only would 
 not have been vested. (James v. Lord Wynford, 1 Sm. & Gr. 40.)' 
 
 Devise to A. "if" he attains twenty-one. — The principle of 
 Boraston's Case being that words which might *import a 
 -' condition are in certain cases held to denote merely the 
 time of taking effect in possession, it does not appear that the 
 rule can apply where the devise is to a person " if" he attains a 
 given age, with a devise to another until he attains it. The word 
 "if" may (as by the force of a gift over) be held to denote a 
 
 ' Collier's "Will, 40 Mo. 287. 
 
EtJLE IN EDWARDS V. HAMMOND. 240 
 
 condition subsequent only, and not precedent, as in Edwards v. 
 Hammond ; but it can scarcely be held not to import a condition 
 at all. "Had the devisor used these words, 'if M. L. shall 
 attain the age of twenty-four,' that would have made it a condi- 
 tion precedent, and no interest would have vested in him, unless 
 he had attained that age. But here the devisee's estate was to 
 take effect in possession when he should attain the age of twenty- 
 four." (Per Ashurst, J., Doe v. Lea, 3 T. E. 43.) 
 
 A devise to A. when he shall attain a given age, standing alone, 
 and unpreceded by any intermediate interest, would probably be 
 contingent. (Fearne, Posth. Op. 191).i 
 
 So, a gift in the form of a direction to trustees to convey to 
 A. at twenty-one, would primd facie be contingent. (Walker v. 
 Mower, 16 B. 365.) 
 
 Secondly, where the condition is held to be subsequent and not 
 precedent : — 
 
 Edwards v. Sammond. 
 
 Rule. If real estate be devised to A. " if," or '' when," 
 he shall attain a given age, with a limitation over in the 
 event of his dying under that age, the attainment of the 
 given age is held to be a condition subsequent and not 
 precedent, and A. takes an immediate vested estate, sub- 
 ject to be divested upon his death under the specified 
 age. (Edwards v. Hammond, 1 B. & P. N. R. 324, n. ; 
 Bromfield v. Crowder, 1 B. & P. N. R. 313; Doe d. 
 Roake v. *Nowell, 5 Dow 202 ; Phipps v. Ackers, p^o ... 
 9 CI. & F. 583.)^ •- 
 
 ' Briscoe v. Wickliffe, 6 Dana 161. 
 
 2 Roomei). Phillips, 24 N. Y. 465 ; Boies v. Cuming, 1 Redf. Sur. R. 392 ; 
 Raney v. Heath, 2 Patt. & H. 218 ; Rivers v. Fripp, 4 Rich. Eq. 276 ; Bow- 
 man V. Long, 23 Ga. 247 ; Hughes v. Hughes, 12 B. Monr. 117. 
 
 In Raney v. Heath, 2 Patt. & H. 219, and Hughes v. Hughes, 12 B. 
 Monr. 117, it is held that this rule applies also to bequests of personal 
 estate, especially where real estate and personal estate are given together 
 in the same clause. 
 
241 DEVISE TO A. IF HE ATTAINS TWENTY-ONE. 
 
 And if the devise be to A. if or when he shall attain a 
 given age, with a limitation over upon his death under 
 that age without issue, A. takes a vested estate, defeasible 
 only in the event of his death without issue under the 
 specified age. (Phipps v. Ackers, 9 CI. & F. 583.) 
 
 The rule is the same if the devise be to A. "at," 
 " upon," or " from and after" attaining a given age, with 
 the like gift over. 
 
 The rule is the same where the devise is to a class ; 
 thus under a devise to the children of A. when they 
 attain twenty-one, with a gift over in default of children 
 who should attain twenty-one, the estates of the children 
 vests at birth. (RandoU v. Doe d. Roake, 5 Dow 202.) 
 
 The rule applies to devises by way of executory trust. (Phipps 
 V. Ackers, 9 CI. & F. 583.) 
 
 " Where the devise is to a party at a given age, and the pro- 
 perty is given over if the devisee dies under that age, .... the 
 Court has discovered an intention expressed in the will, that the 
 first devisee shall take all that the testator has to give, except 
 what he has given to the devisee over ; and in order to give effect 
 to that intention, has held by force of the language of the will, 
 that the first devise was not contingent, but vested, subject to be 
 divested upon the happening of the event upon which the pro- 
 perty was given over." (Bull v. Pritchard, 5 Hare 571.) 
 
 Devise to children who shall attain twenty-one. — It has been 
 much disputed whether the rule in Edwards v. Hammond can be 
 applied, where the attainment of the given age is made part of 
 the description of the devisee : as if the devise be to all and every 
 *2491 *^® children of A. who *shall attain twenty-one, or to such 
 children of A. as shall attain twenty-one, with a gift over 
 in default of children attaining that age. Notwithstanding 
 Browne v. Browne, 3 Sm. & Gr. 568, the weight of authority 
 appears to be against the extension of the rule to such cases. 
 (Festing v. Allen, 12 M. & W. 279 ; Bull v. Pritchard, 5 Hare 
 
GIFT TO CHILDREN WHO ATTAIN TWENTY-ONE. 242 
 
 567 ; and the leading cases of Duffield v. DuflSeld, 1 Dow & CI. 
 268.) In Duffield v. Duffield, Best, C.-J., said (1 Dow & CI. 
 314), " It is impossible to say that the words of this will do not 
 import conditions precedent to the vesting these estates. The 
 estates are not given to any particular children by name, but to 
 such children as shall attain the age of twenty-one years : until 
 they have attained that age, no one completely answers the de- 
 scription which the testator has' given of those who are to be de- 
 visees under his will ; and therefore there is no person in whom 
 the estates can vest." 
 
 Devise to such child or children as shall attain twenty-one. — 
 And it appears to be settled, that a devise to " such child of A. 
 as shall attain twenty-one." (Stephens v. Stephens, Ca. t. Talb. 
 228 ; Duffield v. Duffield, 1 Dow & CI. 268), or to the children 
 of A. who shall attain twenty-one (Festing v. Allen, 12 M. & W. 
 279), is primd facie contingent, notwithstanding a gift over in 
 default of a child or children who should fulfil the required con- 
 dition. 
 
 But the context may of course qualify any words of contin- 
 gency : and may show that under a devise to such children as 
 shall attain twenty-one, the children were intended to take vested 
 estates at birth, subject to be divested. (Riley v. Garnett, 3 De 
 Gr. & Sm. 629.) • So if the devise be to such children as shall be 
 living at the decease of B. (Doe v. Hopkinson, 5 Q. B. 223, 
 E. C. L. R. vol 48.) 
 
 Devise to A ^^ provided" he attain twenty-one. — In Simmonds 
 V. Cock, 29 B. 455, a devise to A., "provided" he attain a given 
 age, was considered to be a vested estate, subject only to be 
 divested.^ 
 
 ' In Rivers v. Fripp, 4 Eich. Eq. 276, the rule is applied to a gift to the 
 issue of A. living at his death, who shall attain twenty-one years, or who, 
 dying before that time, shall leave issue to live until the time at which the 
 parents, if alive, would have reached the full age of twenty-one years. 
 The interests were held d«feasible, but vested. 
 
 Raney v. Heath, 2 Patt. & H. 218 ; Foster v. Wick, 17 Ohio 250. 
 
•=243] *CHAPTER XIX. 
 
 SUBSTITUTION, SURVIVORSHIP, ETC. 
 
 Substitution in Testator's Lifetime. 
 There is a distinction between gifts by way of substitution, 
 and successive limitations. If property be limited upon the 
 deatb of one person to another, and the first donee happens to 
 predecease the testator, the gift over would of course take effect 
 notwithstanding the failure by lapse of the prior gift. But 
 where the legacy or share of a legatee is given over by way of 
 substitution to another person, it might be contended that if the 
 prior legatee died in the testator's lifetime, there was in effect no 
 legacy to him, and therefore that nothing could go over : the rule 
 however is otherwise, and it is settled that wherever there is a 
 bequest, whether immediate or deferred, to individuals, substitu- 
 tion may take place before the testator's death, and that — 
 
 Rule. A gift over of the legacy or share of a legatee 
 dying under certain circumstances, takes effect if the 
 event happens in the testator's lifetime. (Willing v. 
 Baine, 3 P. W. 113 ; Humberstone v. Stanton, 1 V. & 
 B. 388 ; Walker v. Main, IJ. & W. 1.)^ 
 
 The rule is the same, whether the legacy be immedi- 
 ate or in remainder. 
 
 *244.i *Thus, if the bequest be to A., for life, and after 
 his death equally between B. and C. with a gift 
 over of the share of either dying in the lifetime of A., 
 and B. or C. dies in the lifetime of A. during the testa- 
 tor's lifetime, the gift over takes effect. 
 
 ' Goodall D. McLean, 2 Bradf. 309 ; Mowatt v, Carrow, 7 Paige 336. 
 
WILLING V. BAINE. 244 
 
 So if the bequest be to A., but if he die under twenty- 
 one to B. (Willing v. Baine), or to A., with a gift over 
 in case of his death before the legacy shall become paya- 
 ble (Walker v. Main), or to A., with a gift over in the 
 event of his dying without issue. (Mackinnon v. Peach, 
 2 Keen 555.) 
 
 So if the bequest be to "A, or his issue," and A. dies in the 
 testator's lifetime, the issue irill take. 
 
 So where the bequest was, " I give to my five daughters a 
 sum of 6000Z. each, which said sum of 6000Z. to each of them 
 shall be invested in real or government securities by my execu- 
 tors within seven years from my decease ; but if any of my said 
 daughters should die leaving no issue, then the s^are or portion so 
 invested shall be divided among those who have issue," the gift 
 over was held to operate on the share of a daughter who died 
 without issue in the testator's lifetime. (Varley v. Winn, 2 K. 
 &. J. 700.) 
 
 " It seems formerly to have been a question, whether a bequest 
 over in case of the death of the legatee before a certain period 
 could take effect, where he died during the testator's life, though 
 before the period specified. In the case of Willing v. Baine, 
 legacies were given to children payable at their respective ages 
 of twenty-one : and if any of them died before that age, the 
 legacy given to the person so dying to go to the survivors : one 
 having died under twenty-one in the life of the testator, it was 
 contended that his legacy lapsed, and did not go over to the sur- 
 vivors. The argument was, that the bequest over could not take 
 place, as ' there can be no legacy unless the legatee survives the 
 testator : the will not speaking till then : wherefore this must 
 only be intended where the legatee survives the testator, so that 
 the legacy vests *in him, and then he dies before his age r^o^c 
 of twenty-one. It was however held, and is now settled, 
 that in such a case the bequest over takes place. (Humberstone 
 V. Stanton, 1 V. & B. 388.) 
 
 So, if the gift be to A. for life, remainder to B. and 0. equally, 
 
245 SUBSTITUTION IN TESTATOR'S LIFETIME. 
 
 and if either die before his share should become payable without 
 issue, the share of the one so dying to go to the survivor: B. 
 dying in the testator's lifetime, C. takes the whole fund. (Hum- 
 phreys V. Howes, 1 R. & My. 689.) 
 
 Legatee dead at date of will. — And in the case of a bequest 
 to individuals, the rule will apply, and substitution take place, if 
 the legatee is dead (under the prescribed circumstances) at the 
 date of the will, the testator being presumed to have made the 
 bequest on the supposition that he was alive. (Ive v. King, 16 
 B. 46 ; Sheppard's Trusts, 1 K. & J. 269 ; Hannam v. Sims, 2 
 De G. & J. 269.) Thus if the bequest be to A. for life, with 
 remainder to B. and C. equally, with a direction that if B. or C. 
 "shall" die in the lifetime of A., or before his share should 
 become payable, or "in case of his death," his share should go 
 to his children, and B. is dead at the date of the will, his children 
 will be entitled: — and the word "shall" in such a case is not 
 considered as referring only to future time. (Re Sheppard's 
 Trusts, 1 K. & J. 269.) 
 
 " I am of opinion that the principles and reasons applicable to 
 the case of the designated legatees dying in the lifetime of the 
 testator, and which in that event give effect to the gift, apply 
 equally to the case of the legatee being, although it may be 
 unknown to the testator, dead at the date of the will." (Ive v. 
 King, 16 B. 56.)i 
 
 JExeepiion. — Grift over to the executors or administrators. — 
 But the rule does not apply where the gift over is to the execu- 
 tors or administrators of the legatee, unless the gift be imme- 
 diate. 
 
 If the share of the legatee is given over to his executors or 
 
 administrators, the presumption is, that it is simply another way 
 
 *24fi"l °^ g^™g ^ vested interest to the legatee on *the testator's 
 
 death, and therefore, if there is any other period to which 
 
 the gift over can be referred, it will not be construed to take 
 
 ' Lawrence v. Hibbard, 1 Bradf. 256 ; Wright v. Trustees, 1 Hoff. Ch. 
 211 ; State V. Lyons, 5 Barring. 196. 
 
SUBSTITUTED GIFT TO EXECUTORS. 246 
 
 effect in the case of the legatee dying in the testator's lifetime 
 (Corbyn v, French, 4 Ves. 418 ; Bone v. Cook, M'Clel. 168 • Re 
 Porter's Trust, 4 K. & J. 188.) 
 
 "Where there is a tenant for life of a fund out of which the 
 legacy is to be paid, so that there is an interval between the 
 death of the testator and the time when it is payable, and a pro- 
 vision that in case of the death of the legatee before the legacy 
 should become payable, it should go to the executors or adminis- 
 trators, the provision shall only apply to the case of the legatee 
 dying at any period between the death of the testator and that 
 of the tenant for life." (Bone v. Cook, M'Clel. 168.) 
 
 Thus if the bequest be to A. for life, and after his death to B. 
 or his representatives, the gift to B. will lapse by his death in 
 the testator's lifetime, "representatives" being equivalent to 
 "executors or administrators." (Corbyn v. French, 4 Ves. 418.) 
 
 But an immediate bequest to A. or his representatives will not 
 lapse by the death of A. in the testator's lifetime ; whether " re- 
 presentatives " retains its proper meaning, or, according to Re 
 Crawford's Trusts (2 Drew. 234, suprd, p. 109), is construed (on 
 account of the gift being immediate) to mean the persons benefi- 
 cially entitled in case of intestacy. 
 
 A bequest to A. his executors or administrators, is not substi- 
 tutional, but will lapse by his death, although the gift be immedi- 
 ate. (Elliott V. Davenport, 1 P. Wms. 8S.f 
 
 In Bone v. Cook, M'Clel. 168, the bequest was to A. for life, 
 with remainder to several as tenants in common, and with a pro- 
 viso that if any of them should die before his legacy should 
 become payable, his legacy should go to his children : and "in case 
 of such death of any of them " without children, his legacy should 
 go to his executors or administrators. It was held, notwithstanding 
 the correspondence between the two gifts over, that the gift over 
 to children would, but that the gift to executors or administrators 
 
 1 In "Ware v. Fisher, 2 Yeates 579 ; Abbott v. Jenkins, 10 S. & R. 299 ; 
 Stook's Appeal, 29 Penn. St. 349, it was held that a gift to several or 
 their representatives after a life estate was substitutional. Though in each 
 of these cases this construction was aided by the context. 
 
246 BONE V. COOK. 
 
 *^47T '"'^^^^ "o*? *^^^ effect in the case of a legatee *dying in 
 the testator's lifetime, the bequest not being immediate. 
 Bequest to A. or his heirs. — The doctrine of Bone v. Cook 
 does not apply, where the gift over is to the persons beneficially 
 entitled in case of intestacy.* Thus, if the gift be to one for life, 
 and after his decease to "A. or his heirs," the word "heirs" being 
 construed to mean the persons entitled under the Statute of Dis- 
 tributions, the gift over, although the bequest is not immediate, 
 takes effect if A. dies in the testator's lifetime. (Re Porter's 
 Trusts, 4 K. & J. 188.) " Where there is a bequest to A. for life, 
 and after his decease to B. or his executors, or to B. or his per- 
 sonal representatives, or a bequest to B. to be paid so many 
 months after the testator's decease to him or to his personal rep- 
 resentatives, it is simply another way of giving a vested interest 
 to B. upon the testator's own death, and if B. die before the tes- 
 tator, the bequest shall lapse ; but if instead of ' personal repre- 
 sentatives' the word 'heirs' is used, I apprehend that circum- 
 stance shows an intention on the part of the testator that the 
 persons he designates as ' heirs' are to take by way of substitu- 
 tion whenever B. may die, and the bequest will not lapse, 
 although B. may die in the lifetime of the testator." (Ib.)^ 
 
 ' Therefore where the gift is to A. or his representatives according to the 
 statute, the gift though not immediate will be construed as substitutional : 
 Brent v. Washington, 18 Gratt. 526. 
 
 " Finlason v. Tatlock, L. R. 9 Eq. 258 ; Whitehead v. Lassiter, 4 Jones 
 Eq. 79 ; Heyward v. Heyward, 7 Eich. Eq. 289. 
 
 But in Pennsylvania it has been held otherwise : In Patterson v. Haw- 
 thorn, 12 S. & R. 114, the gift was of the proceeds of stock to M. during her 
 life, and after her death to T. and G. or their heirs, and it was held that 
 the interests of T. and G. vested absolutely at the testator's death. 
 "What did the testator mean by the words or their heirs ? I understand , 
 it, as if he had said, to be paid to them, or such person as would be enti- 
 tled to it as their representatives by the law of the country ; that is to say, 
 it was not in case of the death of one to go to the survivor, but to be con- 
 sidered as if vested in the deceased child." Per Tilghman, C. J., (lb.) 
 and see also M'Gill's Appeal, 61 Penn. St. 50. 
 
 A gift to A. and his heirs will be construed a substitutional gift when 
 such appears from the context to have been the intention of the testator. 
 Thus, where the words ' ' and his heirs' ' are clearly used in one clause of the 
 
SUBSTITUTION IN GIFTS TO A CLASS. 247 
 
 Immediate gift, what is. — It seems that a bequest to A. to be 
 paid at the end of a year from the testator's death, or to his rep- 
 resentatives, is not an immediate gift, and therefore if A. dies in 
 the testator's lifetime, substitution will not take place. (Tidwell 
 V, Ariel, 3 Mad. 403.) "Whether the direction be that the 
 legacy shall be paid as there, a few months after the testator's 
 decease, or as here, at the death of a tenant for life, is plainly 
 immaterial." (Re Porter's Trusts, 4 K. & J. 195.) 
 
 Substitution in gifts to a class? — The rule that substitution 
 
 takes place with respect to the share of a legatee dying in the 
 
 testator's lifetime, does not apply where the bequest is to a class, 
 
 and the gift over is construed as a gift only of the shares of 
 
 members of the class. In this *case substitution cannot 
 
 r*248 
 take place until the period when the class is ascertained, L 
 
 which cannot be in the testator's lifetime. "If a testator gives 
 
 a legacy to a class of persons, such as the children of A., and 
 
 goes on to provide that in case of the death of any one of the chil- 
 
 will as creating a gift of substitution and not as words of limitation, when 
 used in another clause in the same connection they will have the same 
 meaning : Hawn v. Banks, 4 Edw. Ch. 666. 
 
 A gift to A. and to the persons beneficially entitled in case of intestacy, 
 as to " A. and his representatives under the statute," will be construed a 
 substitutional gift: Brent v. Washington, 18 Gratt. 526. 
 
 1 In Ke Porter's Trusts, Malins,V.-C., seems disposed to reject entirely the 
 distinctions which have been made on this subject by the former authori- 
 ties. He says concerning the distinction between gift's to classes and gifts 
 to individuals : " I am of opinion that there is no reasonable ground for 
 any such distinction. What substantial difference can there be between a 
 gift, for instance, to six children by name, and a gift to children simply, 
 there being six ?" In this case the gift was, after a life interest to nephews 
 and nieces ; " and in case of the death of any of my said nephews and nieces 
 leaving issue, then I direct that such issue shall take the share his, her or 
 their parent would have taken if living ;" and it was held that the issue 
 of nephews and nieces dead at the date of the will, as well as of those 
 dying before the'testator, took : Ke Porter's Trusts, L. R. 8 Eq. 52. But 
 in Re Hotchkiss's Trusts, L. R. 8 Eq. 643, James, V.-C, says that Re 
 Porter's Trusts was a case of independent gifts, coming within the rule of 
 Loring V. Thomas, and considers Christopherson v. Naylor as still good 
 authority notwithstanding the remarks of Vice-Chanoellor Malins. 
 
248 SUBSTITUTION IN GIFTS TO A CLASS. 
 
 dren before the period of distribution, the issue of such child 
 shall take their parent's share ; such issue cannot take unless the 
 parent might have taken, and consequently if a child of A. be 
 dead at the date of the will, or at the death of the testator, the 
 issue of that child cannot take anything." (Ive v. King, 16 
 B. 53.)i 
 
 " The proposition in Ive v. King is very simple and well 
 established, viz., that where there is a bequest to a class, fol- 
 lowed by a substitutional bequest in case of the death of any 
 member of the class, there to determine whether the substitu- 
 tional bequest is to take effect upon the death of any particular 
 individual, you must first inquire whether he was a member of 
 the class at all. If he was not, it is impossible to predicate 
 substitution with respect to him." (Re Porter's Trusts, 4 K. & 
 J. 191.) 
 
 Thus, whereas, under a bequest to A. for life, and after his 
 decease to B. or his issue, the issue of B. are entitled if he die in 
 the testator's lifetime or before the date of the will, on the other 
 hand, under a bequest to A. for life, and after his decease to 
 the children of B. or their issue, the issue of a child dying in the 
 testator's lifetime, or dead at the date of the will, cannot take 
 (there being no gift to a child who does not survive the testator) : 
 but only the issue of a child who survives the testator, and after- 
 
 1 See Herr's Estate, 28 Penn. St. 467. 
 
 In May's Appeal, 41 Penn. St. 512, where the question of substitution 
 in gifts to classes was discussed and the English authorities, the distinc- 
 tion made in the English cases between substitutional and independent 
 gifts is not noticed. In that case the gift was to the testator's grandchil- 
 dren, to be paid them as they should respectively arrive at the age of 
 twenty-one years, but in the event of the death of ani/ one of the said 
 grandchildren before he should arrive at the age of twenty-one years, a 
 gift over of the share of the one so dying. It was held that, one of the grand- 
 children dying during the life of the testator, the gift over took effect. 
 Cort V. Winder was mainly relied on ; but in that case the gift was to take 
 effect immediately upon the testator's death, and the gift over was upon 
 the death of any before their shares became due and payable, that is, before 
 the death of the testator. In this case it was before they should attain the 
 age of twenty-one years. Smith v. Smith, 8 Sim. 353, was also relied upon, 
 but that is a case of independent gifts. 
 
INDEPENDENT GIFTS. 24.8 
 
 wards dies leaving issue in the lifetime of A. (Congreve v. 
 Palmer, 16 B. 435.) 
 
 So in Thornhill v. Thornhill, 4 Mad. 377, the gift being, at 
 the death of A., to the testator's nephews and nieces, " the chil- 
 dren of such of them as should be then dead standing in the place 
 of their father or mother deceased," it was held that the chil- 
 dren of nephews dying in the testator's lifetime could not take. 
 
 N'ote. — Thornhill v. Thornhill is not, as has been sometimes 
 stated, inconsistent with Collins v. Johnson, 8 Sim. *356 n. rHc24Q 
 In the latter case the testator gave legacies to his nephew 
 A. and his niece B., with a gift over of the legacy of any of his 
 nephews or nieces before named who should die before the said 
 legacies should become payable, to their issue. Here the beq^uest 
 being not to a class, but to named individuals, it is obvious that 
 Walker v. Main applied, and not Ive v. King. 
 
 Independent gifts. — But the cases where there is a gift to 
 children as a class, with a gift over of the shares of members of 
 the class (only) to their issue, must be distinguished from those 
 in which the children and issue of children form two distinct 
 classes, the objects comprised in the second class, taking not 
 by way of substitution for members of the first class, but under 
 a substantive gift to them.^ 
 
 Thus under a bequest to the children of A. living at a given 
 period, and the issue of such children of A. as shall have died 
 before that period, the issue of a child of A. who may have died 
 in the testator's lifetime, or who may have been dead at the date 
 of the will, are entitled ; the gift to issue involving no condition 
 as to the time of death of the parent or ancestor. (Coulthurst 
 V. Carter, 15 B. 421 ; Rust v. Baker, 8 Sim. 443 ; Loring v. 
 Thomas, 1 Dr. & Sm. 497.)^ 
 
 ' Wheeler v. Allan, 54 Me. 233. 
 
 2 Atwood V. Alford, L. K. 2 Eq. 479 ; Lawrence u. Hebbard, 1 Bradf. 256 ; 
 Long V. Labor, 8 Penn. St. 229. 
 
 " A gift is substitutional when the share which the issue are to take is 
 by a prior clause expressed to be given to the parent of such issue ; and 
 a gift to issue is an original gift when the share which the issue are to take 
 is not by a prior clause expressed to be given to the parent of such issue :" 
 per Kindersley, V.-C, Lamphier v. Buck, 2 Dr. & Sm. 494. 
 
249 GIFTS PARTLY SUBSTITUTIONAL. 
 
 And if the gift be to the children of A., followed by a proviso 
 that if any child of A. (not any of the said children) shall die 
 before the period of distribution, the issue of such child shall be 
 entitled to the share which such child would have taken if living; 
 this form of bequest may be held to contain a substantive gift to 
 issue (not a substitutional g\it engrafted on the prior gift to a class), 
 so as to entitle the issue of a child dead at the date of the will, 
 or dying in the testator's lifetime, to share under it. (Loring v. 
 Thomas, 1 Dr. & Sm. 497; Smith v. Smith, 8 Sim. 353.) 
 
 Shall die, not emphatic. — The words ^^ shall die" or "shall 
 happen to die," do not necessarily point to a future death, so as 
 to exclude the issue of a child who may have died before the date 
 *of the will. (Loring v. Thomas, 1 Dr. & Sm. 497 ; Chris- 
 -1 topherson v. Naylor, 1 Mer. 320.) Nor does a direction 
 that the issue shall take the share which their parents or ancestor 
 would have taken, render the gift to issue substitutional only. (lb. 
 Tytherleigh v. Harbin, 6 Sim. 329.)' 
 
 In Tytherleigh v. Harbin, 6 Sim. 329, the gift was (in remainder 
 after a life interest) to the children of A. who should be living at 
 his decease, and the issue of such of them as should be then 
 dead leaving issue, such issue to take only the share which their 
 parents would have been entitled to if then living. It was held 
 that the word "them " meant only "children of A.," and did 
 not render the gift substitutional ; and that the children of a child 
 dead at the date of the will were entitled under the bequest. 
 And a similar construction was adopted in Giles v. Giles, 8 Sim. 
 360, and in Jarvis v. Pond, 9 Sim. 549.^ 
 
 Grifts 'partly substitutional. — Besides gifts to issue purely sub- 
 stitutional, engrafted on a gift to children as a class, and indepen- 
 dent gifts to children and issue of children concurrently, there is 
 a third class of cases, in which the substitution, if it can be called 
 such, takes place before the members of the primary class are as- 
 certained, but on the other hand takes place only as regards those 
 who at the date of the m'111 had the capacity of becoming members 
 
 1 Re Chapman's Will, 32 Beav. 382. 
 " Long V. Labor, 8 Penn. St. 229. 
 
GIFTS PARTLY SUBSTITUTIONAL. 250 
 
 of the class. Thus the issue of children dying in the testator's 
 lifetime are entitled, but the issue of children dead at the date of 
 the will are excluded.^ 
 
 • As in Christopherson v. Naylor, 1 Mer. 320, where the bequest 
 was to the children of A. living at the testator's decease, but if 
 any children of A. should die in the testator's lifetime, the 
 leg&cj "-herehj intended for such child or children so dying " 
 was given to their issue. It was held that the issue took only in 
 the way of substitution, and that the issue of a child dead at the 
 date of the will could show no object of substitution, and were 
 *therefore excluded. See also Gray v. Garman, 2 Hare r^r. . 
 268.2 [*251 
 
 So in Butter v. Ommaney, 4 Russ. 70, the gift being (in re- 
 mainder after a life interest) to the children of A. then living, 
 with a direction that as to such of them as should be then dead 
 leaving children, such children should stand in the place of their 
 parents ; — it was held that the children of children dead at the 
 date of the will could not take. 
 
 So if there be an immediate bequest to children as a class, 
 with a gift over of the shares of those dying before their shares 
 become payable, the gift over takes effect in the case of children 
 alive at the date of the will, and subsequently dying in the tes- 
 tator's lifetime. (Gort v. Winder, 1 Coll. 320.)' 
 
 Again in King v. Cleaveland, 4 De G. & J. 477, under a 
 bequest to A. for life, and after his decease " to his children then 
 
 I Hotchkiss's Trust, L. E. 8 Bq. 643. 
 
 ' An exception to the rule of Christopherson v. Naylor occurs when all 
 the class are dead at the date of the will, and known to the testator to be 
 so. " The general principle, that where a testator refers to a class, he 
 cannot be held to have intended to include dead persons in it, is displaced 
 in this instance by the fact that the testator must have known that his own 
 brothers were all dead. . . . Where the testator speaks of his brothers 
 and sisters at a time when he must be taken to have known that all 
 his brothers and one of his sisters were dead, the only rational inference 
 is that he named brothers and sisters for the purpose of showing how the 
 property was to be divided :" per Turner, L. J., in Gowling v. Thompson, 
 cited Barnaby v. Tassell, L. K. 11 Eq. 367 ; and see also Jordan's Trusts, 
 2 N. K. 57. 
 
 ^ Brokaw v. Peterson, 2 M'Cart. 194 ; Ritter v. Fox, 6 Whart. 99. 
 
251 POEMS OF SUBSTITUTIONAL GIFTS. 
 
 living, or their representatives," it was held that there were so 
 far two distinct classes of legatees, that the representatives of 
 children dying in the testator's lifetime, but alive at the date of 
 the will, were entitled to share. 
 
 And in Re Thompson's Trusts, 5 D. M. Gr. 280, under a 
 bequest to the testator's children living at a given period, and 
 the issue of such of " my said children" as should be then dead, 
 the same construction was adopted. 
 
 Forms of gift compared. — The different forms of gift above 
 considered, as regards the capacity of issue to take, depending on 
 the time of the death of their parent or ancestor, may be thus 
 stated : — 
 
 1. A gift to individuals, as to A. and B. or their issue. Here 
 Willing V. Baine applies, and the issue take by substitution for 
 A. or B. dying in the testator's lifetime or dead at the date of 
 the will, whether the gift be immediate or in remainder. 
 
 2. A gift to the children of A. or their issue. Here if the 
 gift be immediate, Cort v. "Winder applies, and the issue of a 
 ^orp-i child dying in the testator's lifetime take, but *not, it 
 
 would appear, the issue of a child dead at the date of 
 the will. 
 
 But if the gift be in remainder after a life interest, Ive v. Kin'g 
 applies, and, the gift being substitutional, the issue of a child who 
 does not survive the testator are excluded. 
 
 3. A gift to the children of A. living at a given period, and 
 the issue of such as shall be then dead. Here the gift to issue is 
 independent, and the issue of a child dying in the testator's life- 
 time, or dead at the date of the will, may be entitled. 
 
 Gifts to children, followed by directions that the issue of de- 
 ceased children shall take their parent's shares, are ambiguous ; 
 and it would appear that no general rules can be laid down to 
 determine when such gifts to issue are to be considered as substi- 
 tutional, and when as independent. 
 
 Two further questions arise respecting the capacity of issue to 
 take under a gift to children and issue of children concurrently 
 
ISSUE MUST SURVIVE THE STIRPS. 252 
 
 (whether the gift to issue be substitutional or independent) ; viz., 
 
 I. Whether the issue must survive the stirps, or child through 
 whom they claim ; and 2. Whether the issue must be living at 
 the period of distribution, where this condition is imposed on the 
 children, but not expressly on the issue. 
 
 Issue must survive the stirps.— Fiv&t, where the bequest is to 
 the children of A. living at a given period, and the issue of such 
 children as shall have died before that period leaving issue, it is 
 settled that issue, in order to take, must survive their own stirps. 
 (Thompson v. Clive, 23 B. 282 ; Re Wildman's Trusts, 1 Jo. & 
 
 II. 299.) 
 
 And the case would be the same, if the gift were to the chil- 
 dren of A., with a gift over of the shares of those who should 
 have died leaving issue to their issue. 
 
 Again, wherever the gift to the issue is by way of substitution 
 only, as if the gift be to A. for life with remainder to his children 
 or their issue, inasmuch as the gift to the issue of any child 
 cannot vest before the death of that child, it seems that issue who 
 predecease their own *stirps cannot be properly entitled. 
 (Crause v. Cooper, 1 Jo. & H. 207.) " In no case can t*253 
 substituted issue take vested interests during their parent's lifer 
 time." (Per Wood, V.-C, Re Bennett's Trusts, 3 K. & J. 285.) 
 
 And it has been held that even where the gift to the issue is 
 independent, the same rule applies. (Re Bennett's Trusts, 3 K. 
 & J. 285 ; Humfrey v. Humfrey, 2 Dr. & Sm. 49.) Thus where 
 the gift was to A. and B. at twenty-one, if then living, and the 
 issue of either that should be then dead (not dead leaving issue,) 
 such issue taking their parent's share, with a gift over if both 
 died under twenty-one without issue, it was held that issue of A. 
 who pre-deceased him could not take. (Humfrey v. Humfrey, 2 
 Dr. & Sm. 49.)' 
 
 ' But in Lamphier v. Buck, 2 Dr. & Sm. 498, Vice-Chancellor Kinders- 
 ley retracts the opinion he expressed in Humfrey v. Humfrey, saying he 
 had with great reluctance followed the authorities presented to him. In 
 this case, he holds that if the gift to issue be independent, it is not neces- 
 sary that they should survive the stirps. " If it be an original gift, I see 
 no more reason for imposing the condition that the child must survive its 
 
253 WHETHER ISSUE MUST SURVIVE PERIOD OF DISTRIBUTION. 
 
 Secondly, whether the contingency of being alive at the period 
 of distribution is to be imported into the gift to issue. 
 
 Where there is a bequest to the children of A. living at a given 
 period, and the issue (not the issue then living) of such as shall 
 be then dead, the preponderance of authority is against import- 
 ing the condition of being alive at the period of distribution into 
 the gift to issue. The authorities on this side are Lyon v. Cow- 
 ard, 15 Sim. 287 ; Barker v. Barker, 5 De G. & Sm. 753 ; and 
 Re Wildman's Trusts, 1 Jo. & H. 299 ; while Macgregor v. Mac- 
 gregor, 2 Coll. 192, is contra. In Penny v. Clarke, 1 Do Gr. F. 
 & J. 425, the Court were divided : Knight Bruce, L. J., say- 
 ing — " It appears to me that the context requires us to read the 
 words ' issue of such ' as equivalent to issue then living of such," 
 &c. : and Turner, L. J., saying — " I do not see why, because the 
 gift to the first member of the body is contingent, the gift to the 
 other member of the body should be contingent also : or why the 
 issue should not be held to have taken vested interests, as they 
 would have don.e had the gift been to them alone " (p. 431). The 
 ■point is still unsettled.^ 
 
 If the gift to the issue be not independent but substitutional, 
 
 as to the children of A. or the issue of any ^deceased 
 *2541 . 
 
 J child, Wood, V.-C, appeared to think that the contingency 
 
 should be imported. (Crause v. Cooper, 1 Jo. & H. 207.)* 
 
 parents, than for imposing a condition that the child must survive ' the 
 period of distribution.' In either case, the imposing such a condition 
 appears to me a violation of the plain rule of construction, which forbids 
 the Court to introduce any clause or condition not expressed by the testa- 
 tor, unless the context renders it absolutely necessary to do so." He 
 admits, however, that if the gift is substitutional the case is altogether 
 different, for " it would be absurd to talk of substituting for the parent at 
 his death, such of his children as were then already dead." 
 
 ' This question was settled in Martin v. Holgate, L. R. 1 H. L. C. 175, 
 where it was held that the children who survive their parent take vested 
 interests, although they die before the period of distribution. 
 
 The ruling of Martin v. Holgate was adopted in Brent v. "Washington, 
 18 Gratt. 535. 
 
 ' The same opinion was expressed by Romilly, M. R., in Holgate v . Jen- 
 nings, 34 Beav. 79. But in Lamphier v. Buck, 2 Dr. & Sm. 496, Vice- 
 Chancellor Kindersley was of a different opinion ; and in Re Merrick's 
 
GIFTS OVER IN CASE OP DEATH. 254 
 
 The poiiit in question may often be settled by the context : 
 thus, if the bequest to children living at the death of A. and the 
 issue of children who may be then dead be followed by a gift 
 over if there be no children or issue of children living at the death 
 of A., it is clear that the contingency is to be imported. (Re 
 Kirkman, 3 De G. & J. 558.) 
 
 Gifts to A. and " in case of his death," to B. 
 
 Where a gift of the absolute interest in property to one person 
 is followed by a gift of it to another in a particular event, the 
 disposition of the Courts is to put such a construction on the 
 gift over as will interfere as little as possible with the prior gift. 
 When death is spoken of as a contingent event, a gift over in the 
 event of death may well be considered to mean, not death at any 
 time, but death before a particular period, e. g., the period of dis- 
 tribution : and thus the gift over may be read as a gift by way 
 of substitution and not of remainder. It is consequently a rule 
 of construction that — 
 
 Rule. Where there is a bequest to one person, and 
 " in case of his death " to another, the gift over is construed 
 to take effect only in the event of the death of the prior 
 legatee before the period of payment or distribution, unless 
 an intention appear to the contrary. (Cambridge v. 
 Rous, 8 Ves. 12 ; Ommaney v. Bevan, 18 Yes. 291 ; 
 Home V. Pillans, 2 Myl. & K. 15.)^ 
 
 Trusts, L. R. 1 Eq. 557, Vice-Chancellor Wood says that he is " quite sat- 
 isfied, after considering Vice-Chancellor Kindersley's very lucid judgment 
 on the subject, that he was in error " in the opinion he expressed in Crause 
 4!. Cooper. 
 
 The doctrine of these latter cases is adopted in Brent v. "Washington 18 
 Gratt. 535. 
 
 ' Briggs V. Shaw, 9 Allen 517; Traver v. Schell, 20 N. Y. 89 ; Murphy 
 V. Harvey, 4 Edw. Ch. 131 ; Beatty v. Montgomery, 6 C. E. Green 327 ; 
 Karker's Appeal, 60 Penn. St. 150 ; Fulton v. Fulton, 2 Grant's Cases 28 ; 
 Dorsey v. Dorsey, 9 Md. 40 ; Hamilton v. Boyles, 1 Brevard 414; Sims v. 
 Conger, 39 Miss. 234. 
 
254 HOME V. PILLANS. 
 
 Thus " a bequest to A. and in case of his death to B., 
 is a gift absolute to A. unless he dies in the testator's 
 lifetime. 
 
 " A bequest to C. for life, and then to A., and in 
 ^_ „ *case of his death to B., is a gift absolute to A. 
 unless he dies during C.'s life. 
 
 " A bequest to A., when and if he attain the age of 
 twenty-one, and in case of his death to B., is a gift abso- 
 lute to A. unless he dies under age." (Home v. Pillans, 
 2 My. & K. 23.)^ 
 
 The rule is the same where the bequest is to A. and 
 " in the event of his death" to B. (Re More's Trusts, 10 
 Hare 171 ; Schenk v. Agnew, 4 K. & J. 405) : or to A. 
 and "if he die" to B. (King v. Taylor, 5 Ves. 806). 
 
 " A bequest to any person, and in case of his death to another, 
 is an absolute gift to the first legatee if he survive the testator" 
 [the bequest being immediate] : " and this, whatever be the form 
 of expression, as ' if he die,' ' should he happen to die,' ' in case 
 death should happen to him,' and so forth. The event here con- 
 templated being so inevitable that it cannot be deemed a contin- 
 gency, the Courts have held that something else must be intended 
 than merely to provide for the case of the legatee dying at some 
 time or other : . . . . and so have read those words as if they 
 had been ' in case of his death during the testator's lifetime,' in 
 which event alone they have allowed the bequest. over to take 
 effect." (Home v. Pillans, 2 My. & K. 20.) 
 
 If the bequest be in remainder after a life interest, the gift 
 over is not restricted to death in the testatoi:'s lifetime, but ope- 
 rates during the continuance of the life interest (Hervey v. 
 McLaughlin, 1 Price 264) : but, in accordance with the previous 
 rule (Willing v. Baine), it operates also in case of death during 
 the testator's lifetime.^ 
 
 ' Hughes V. Hughes, 12 B. Monr. 254. 
 
 ^ But where the bequest is of a sum of money charged on real estate, 
 
GIFT TO A. AND IN CASE OF DEATH TO B. ' 255 
 
 Bequest to A. or Ms issue.— A gift to "A. or his issue" is 
 equivalent to a gift to A., and " in case of Ms death" to his issue, 
 and takes efifect in the same manner. (Salisbury v. Petty, 3 
 Hare 86.) And if there be two bequests to "A. or his issue," 
 one immediate and the other in remainder, the substitutional 
 *gift takes effect down to the period of distribution in each ..„_ 
 case respectively. (lb.) l ^5b 
 
 . In Salisbury v. Petty a bequest to A. or his issue, to be paid 
 at the end of twelve months from the testator's death, was held 
 an immediate bequest ; and that the legatee, if he survives the 
 testator, takes absolutely. (lb. ; see decree, 3 H. 94. But see 
 ante, p. 247.) 
 
 Real estate. — The rule appears to apply to devises of real 
 estate, where the prior devise passes the fee simple. (Edwards 
 V. Edwards, 15 B. 357 ; Randfield v. Randfield, 8 H. L. C. 225.) 
 Thus a devise to A. and his heirs, and in case of his death to B., 
 is an absolute devise to A. if he survives the testator. And in a 
 will made since 1837, a devise to A. simpliciter, and in case of 
 his death to B., would, it should seem, receive the same con- 
 struction.' 
 
 "In case of death," following a life-estate only. — But if the 
 prior devise or bequest confers a life interest only, the rule does 
 not apply, and the gift over will take effect by way of remainder, 
 whenever the death of the first taker may happen. Thus, in a 
 will prior to 1838, a devise of land to A., and in case of his 
 death to B., is equivalent to a devise to A. for life, with remain- 
 der to B. (Bowen v. Scowcroft, 2 Y. & C. 640.) So if personal 
 estate be given to A. for life, with a gift over in the event of his 
 death to B. (Re More's Trusts, 10 Hare 171.) 
 
 Where there was an absolute bequest and also a bequest for 
 life in the same will, the words "in the event of death" were 
 
 and the payment is postponed merely for the convenience of the devisee of 
 the land charged, the first legatee will take an absolute interest if he sur- 
 vive the testator : Traver v. Schell, 20 N. Y. 90. 
 
 ^ Whitney v. Whitney, 45 N. H. 311 ; Briggs v. Shaw, 9 Allen 516 ; Ash 
 V. Coleman, 24 Barb. 645 ; Hill v. Hill, 5 Gill & Johns. 88. 
 
256 ■ IN CASE OP DEATH LEAVING CHILDREN. 
 
 construed differently with respect to them. (Re More's Trusts, 
 10 Hare 171.) 
 
 Gift in case of death leaving children, ^c. — A bequest to A., 
 "but if he die and leaving no children," to^B. (Edwards v, Ed- 
 wards, 15 B. 357), is within the rule, the words importing con- 
 tingency being used with reference to the event of death simply, 
 and not to that of death without leaving children. 
 
 A bequest to A., " and in case of his death leaving children," 
 
 to his children, or to A., " and in case of his *death not 
 *257"1 . 
 
 J leaving a child," to B., is ambiguous. The words "in 
 
 case of" may refer either to death simply (as though a comma 
 were inserted before the words "leaving children"), in which 
 case the rule would apply, and the gift over be restricted to the 
 period of distribution : or they may refer to death leaving or not 
 leaving children, i. e., to death under particular circumstances : 
 in which case the words importing contingency are satisfied by 
 the words being taken literally, as referring to the death of the 
 legatee at any time (whether before or after the period of distri- 
 bution), under the prescribed circumstances. The courts lean 
 rather to the former construction. 
 
 Thus in Home v. Pillans, 2 My. & K. 15, the gift was to A. 
 and B. when and if they should attain twenty-one, and " in case 
 t)f the death of either leaving children," the share of the one so 
 dying was given to her children. The gift over was held to be 
 restricted to the contingency of death under twenty-one leaving 
 children, i. e., to the period of distribution. It was said (p. 21) : 
 " The inconsistency of treating as a contingency the event of all 
 others the most certain, is not the only consideration which has 
 swayed the Courts in seeking for qualifications to restrict the 
 generality of such clauses. The leaning in favor of vesting, and 
 against a construction which would postpone the absolute enjoy- 
 ment, and indeed keep in suspense the nature of the interest be- 
 stowed, has here, as in other branches of the law, operated 
 powerfully in the Same direction " (p. 21). 
 
 So in Barker v. Cocks, 6 B. 82, where the bequest was (in re- 
 mainder after a life interest) to A., B. and C, share and share 
 
BOCTRINE IN EDWARDS V. EDWARDS. 257 
 
 alike, but in case of the death of A. without leaving issue, her 
 share was to go to the others, it was held that the gift over was 
 restricted to death before the period of distribution, the intention 
 being that each of the legatees should at that period take an 
 equal and indefeasible interest. 
 
 Doctrine of Edwards v. Edwards.— It was laid down by Rom- 
 illy, M. R., in Edwards v. Edwards, 15 B. 357, as *a ^^^.^ 
 general rule, that where there is a bequest to A., but if ^ 
 he die leaving, or without leaving issue or children, to B.,— if 
 the gift be in remainder after a life interest, the gift over will be 
 primd fade restricted to the event of death before the period of 
 distribution : but that if the gift be immediate, the gift over will 
 not be so restricted. And in Johnston v. Antrobus, 21 B. 556, 
 this rule was acted on, and under a bequest to A., his executors, 
 administrators, and assigns, " but in case he shall die leaving 
 children," then to trustees in trust for his children, the gift 
 being immediate, A. having children was held to take for life 
 only. 
 
 But this distinction appears to be scarcely tenable. A gift 
 over on death leaving or without leaving children can hardly be 
 restrained to death before the period of distribution, without some 
 appearance of intention arising from context (see Cooper v. 
 Cooper, IK. & J. 658 ; Gosling v. Townshend (on appeal), 2 W. 
 R. 23, per. Lord Cran worth) ;^ but, if the context furnishes 
 ground for the restricted construction, it does not seem to be 
 material whether the gift be immediate or in remainder.^ In 
 Johnston v. Antrobus, qu. whether the restricted construction 
 was not the right one. No general rule can be laid down to de- 
 termine where a gift over of the share of a legatee dying without 
 
 ' The doctrine of Edwards v. Edwards, is adopted in Slaney v. Slaney, 
 33 Beav. 633 ; Dean v. Handley, 2 Hen. & M. 635 ; Re Hill's Trusts, L. R. 12 
 Eq. 308 ; and in this country in Wurts v. Page, 4 C. E. Green 373, and Bir- 
 ney v. Richardson, 5 Dana 424. On the other hand that of Gosling v. Towns- 
 hend is followed in Bowers «. Bowers, L. R. 5 Ch. App. 247 ; Jessup v. 
 Smuck, 16 Penn. St. 327 ; Sims v. Conger, 39 Miss. 230. 
 
 "^ Wolfe V. Van Nostrand, 2 Comst. 436 ; Biddle's Estate, 28 Penn. St. 
 59 ; Karker's Appeal, 60 Id. 150 ; Hilliard v. Kearney, Busb. Eq. 221 ; 
 Chaplin v. Turner, 2 Rich. Eq. 136 ; McGraw v. Davenport, 6 Port. 319. 
 
258 
 
 ALTERNATE GIFTS OVER. 
 
 issue is substitutional, and where not. (Ware v. Watson, 7 D. 
 M. G. 248.) 
 
 If the gift over on the death of a legatee without issue be of 
 the share " intended for " such legateee, it is clear that the gift 
 over is by way of substitution only. (Ware v. Watson, 7 D. M. 
 G. 248.y 
 
 Alternative gifts over. — Where real or personal estate is given 
 with words of limitation implying the absolute ownership, but 
 there follow alternative gifts over in the event of the first taker 
 dying with and without issue or children, which exhaust all con- 
 tingencies, so that, if unrestricted in point of time, their com- 
 ■ bined effect is to reduce the interest of the first taker to a life 
 estate only, a ground is presented for restricting the gifts over to 
 ^qcQ-i the *period of distribution, in order to avoid an inconsis- 
 tency with the prior absolute gift.^ 
 
 Thus if real estate be devised to A. and his heirs, with a gift 
 over upon the death of A. leaving children, to his children, and 
 a gift over upon the death of A. not leaving children to B., the 
 devises over may be restrained to the death of A. before his 
 estate falls into possession, whether the devise be immediate or in 
 remainder. (Clayton v. Lowe, 5 B. & Aid. 636 (E. C. L. R. vol. 
 7) ; Gee v. Mayor of Manchester, 17 Q. B. 737 (E. C. L. R. vol. 
 79.) 
 
 So if personal estate be given to A. " for his own use and 
 benefit absolutely," with the like alternative gifts over (Galland 
 V. Leonard, 1 Sw. 161 ; Da Costa v. Keir, 3 Russ. 360) : or to 
 A., his executors, administrators, and assigns, with the like gifts 
 over (Johnston v. Antrobus, 21 B. 556).* 
 
 But if the devise or bequest be to A. simpliciter, without words 
 implying an absolute interest, the ground for this construction 
 fails, and the gifts over will in general be held to take effect 
 whenever the respective events happen. (Cooper v. Cooper, 1 K. 
 
 1 Clark V. Henry, L. R. 11 Eq. 222. 
 
 2 Gibson v. Walker, 20 N. Y. 476 ; Caldwell v. Skelton, 13 Penn. St. 
 153. 
 
 ' Umstead's Appeal, 60 Penn. St. 365. 
 
GIFT OVER TO THE SURVIVORS OP LEGATEES. 259 
 
 & J. 658 ; Gosling v. Towhshend, 17 B. 245 ; lb., on appeal, 2 
 W. R. 23.) In Gosling v. Townshend, the bequest was in trist 
 to pai/ and divide in equal shares among the legatees, with gifts 
 over if they should happen to die leaving, and without leaving, 
 issue respectively :— it was held, that the legatees took life interests 
 only. 
 
 Oift over to the " survivors" of legatees.— It is to be observed, 
 that where the bequest is to several, with a gift over, in the 
 event of any dying without issue or children, of their shares to 
 the survivors, although the contingency of death without issue can 
 not^er se be restricted to death before the period of distribution, yet 
 if the survivorship can be referred to that period, the same result 
 will be attained. As in Evans v. Evans, 25 B. 81, where the 
 gift was to several, if one died without issue his share to go to the 
 survivors : — it was held that the survivorship, and therefore the 
 gift over, was to be restricted to the *period of distribution, p^gfio 
 But qu. whether in this case the survivorship did not more 
 properly refer to the last antecedent, viz., the dying without 
 issue in the lifetime of the other legatee or legatees, upon the 
 principle of White v. Baker, 2 De G. F. & J. 55, (see next rule) : 
 which would have allowed the gift over to take effect upon the 
 death of one legatee, living any other of them.^ 
 
 Gift over restricted to death before vesting. — Similarly, the gift 
 over in case of the death of one legatee to the survivors, may be 
 restricted by the survivorship being referred to the period, not or 
 distribution, but of vesting, according to the doctrine of Crozier 
 V. Fisher, 4 Russ. 398. Thus in Bouverie v. Bouverie, 2 Phill. 
 349, where the gift was to A, for life, with remainder to her 
 children at twenty-one ; " in case one dies, the others to have 
 share and share alike; the survivor to have the whole:" — it was 
 held that children who attained twenty-one and died in the life- 
 time of A. took absolutely, and that the gift over was restricted 
 to the event of death before attaining twenty-one. 
 
 * Williamson v. Chamberlain, 2 Stockt. 373. 
 
 20 
 
260 RULE IN CRIPPS V. WOLCOTT. 
 
 CRIPPS V. WOLCOTT. 
 
 Where property is given to. those of certain persons who shall 
 be "surviving" at some period, but the exact period is not speci- 
 fied, the general leaning of the courts in favor of vesting is a 
 reason for construing the survivorship to refer to as early a 
 period as possible : and it was formerly the rule (both with regard 
 to real and personal estate) that " surviving " should, whenever 
 possible, be construed "surviving the testator," so that the objects 
 might be ascertained at the testator's death. The true rule per- 
 haps is, that suryivorship primd facie refers to the point of time 
 mentioned in the gift in nearest juxtaposition with the words : 
 and as the point of time so mentioned is generally the period at 
 which the gift is limited to take effect, it has become established 
 as a rule of construction, in opposition to the earlier authorities, 
 that — 
 
 *9.Rn *I^ULE. In bequests of personal estate, words of 
 survivorship are prima facie to be referred to the 
 period of payment or distribution, and not to the death 
 of the testator. . (Cripps v. Wolcott, 4 Mad. 11 ; Neath- 
 way V. Reed, 3 D. M. G. 18 ; Hearn v. Baker, 2 K. & J. 
 383.)^ 
 
 1 Hill V. Bank, 45 N. H. 270 ; Van Tillburgh v. HoUingshead, 1 M'Cart. 
 32 ; Holcomb v. Lake, 4 Zabr. 689 ; Biddle v. Hoyt, 1 Jones Eq. 163 ; 
 Vara v. Freeman, 3 Jones Eq. 224 ; Evans v. Godbold, 6 Kich. Eq. 26 ; 
 Schoppert v. Gillam, 6 Id. 83 ; Stinton v. Boyd, 19 Ohio St. 30 ; Hughes 
 V. Hughes, 12 B. Monr. 115 ; "Wren v. Hynes, 2 Mete. (Ky.) 129. 
 
 In Moore v. Lyons, 25 Wend. 119, the property in dispute was real 
 estate, but the court reject entirely the authority of Cripps v. Wolcott, and 
 hold that words of survivorship should be referred to the death of the tes- 
 tator. Boss V. Drake, 37 Penn. St. 373, and Johnson u. Morton, 10 Id. 
 245, are also both cases concerning devises of realty, but in them the rule of 
 Cripps V. Wolcott is rejected, and words of survivorship are referred to the 
 death of the testator. The question is perhaps doubtful in Maryland, but 
 the readiness with which the prhaseology of the will was accepted as indi- 
 cating an intention to confine the survivorship to the death of the testator, 
 and the whole opinion of the Court, in Branson v. Hill, 31 Md. 187, show a 
 strong inclination to reject the rule. In Virginia words of siirVivorship 
 
PERIOD OF DISTRIBUTION. 261 
 
 Thus, if the bequest be to A. for Hfe, and after his 
 decease to his sMrw% children, "surviving" is construed 
 to mean "Uving at the death of A." (Neathway v. Reed 
 3 D. M. G. 18.) 
 
 So if the bequest be to A. for life, and after his decease 
 to B., C, and D., or the survivors, those living at the 
 death of A. will take the whole fund. (Hearn v. Baker 
 2 K. & J. 383.) 
 
 " I consider it to be now settled, that if a legacy be given to 
 two or more, equally to be divided between tbem, or to the sur- 
 vivors or survivor of them, and there be no special intent to be 
 found in the will, that the survivorship is to be referred to the 
 period of division. If there be no previous interest given in the 
 legacy, then the period of division is the death of the testator, 
 and the survivors at his death will take the whole legacy. But 
 if a previous life estate be given, then the period of division is 
 the death of the tenant for life, and the survivors at such death 
 will take the whole legacy." (Cripps v.. Wolcott, 4 Mad. 15.) 
 
 The rule applies where the gift is to A. for life, with remainder 
 to his surviving children "when they should attain twenty-one." 
 and the survivorship is referred to the death of A. (Huffam v. 
 Hubbard, 16 B. 579.) 
 
 In Carver v. Burgess, 7 D. M. G. 96, the gift was of a legacy 
 to each of the testator's daughters for her separate use, and " if 
 she has any children the principal to be divided among them 
 after her death if they should attain twenty-one, if not, to be 
 
 are tei^rred. primd facie to the death of the testator: Martin ». Kirby, 11 
 Gratt. 67. The same was held in Drayton v. Drayton, 1 Dessaus. 324, 
 which, however, was decided before the case of Cripps v. Wolcott. In 
 Georgia also (Vickers v. Stone, 4 Ga. 461), the death of the testator is the 
 period at which the survivorship is to be determined. Hempstead v. Dick- 
 son, 20 III. 195, was a devise of realty, and the words of survivorship were 
 referred to the death of the testator. No opinion was given in regard to 
 bequest of personalty, but it is conceived that if there was a distinction it 
 would have been noticed. And the same may, perhaps, be said of Simp- 
 son V. Batterman, 5 Gush. 153. 
 
261 KEAL ESTATE. 
 
 divided among her surviving sisters :" one of the daughters hav- 
 *2fi2n ^°S ^^^^ leaving a child, *who afterwards died under 
 twenty-one, it was held that the survivorship was to he 
 referred to the death of such child (being the period of distribu- 
 tion) and not to the death of the daughters. 
 
 Where the bequest was to such persons as A. should by deed 
 or will appoint, and in default of appointment to his surviving 
 brothers and sisters, and A. died without exercising the power, 
 it was held that the brothers and sisters living at the death of A. 
 were entitled. (Davies v. Thorns, 3 De G. & Sm. 347.) 
 
 If the bequest be to A. for life, and after his death to his sur- 
 viving children, and A. dies in the testator's lifetime, the survi- 
 vorship is to be referred to the death of the testator (being the 
 period of distribution), and not to the death of A. (Spurrell v. 
 Spurrell, 11 Hare 54.) 
 
 So if the bequest be to A. for life, remainder to B. for life, and 
 after the decease of B. to his children, or the survivors, and B. 
 dies in the lifetime of A., the survivorship is to be referred to the 
 death of A., and not to that of B. (Daniell v. Daniell, 6 Ves. 
 297.)! 
 
 Real Estate. — It is not yet settled whether the rule in Cripps 
 V. Wolcott applies to real estate. (Haddelsey v. Adams, 22 B. 
 271.) The older authorities are strongly in favor of referring 
 survivorship to the testator's death. Thus under a devise to A. 
 for life, and after his death to his surviving children, the devise 
 was held to vest in the children living at the testator's death. 
 (Doe V. Priggs, 8 B. & Cr. 231, E. C. L. R. vol. 16.) But in 
 Buckle V. Fawcett, 4 Hare 536, Wigram, V.-C, was strongly 
 
 ' See also, Howard v. Collins, L. R. 5 Bq. 349. But in Drakeford v. 
 Drakeford, 33 Beav. 43, the gift was to A. for life, the remainder to B. for 
 life, "at whose death the principal is to be equally divided between his 
 surviving children." Komilly, M. R., held that the rule of Cripps v. Wol- 
 cott did not apply, because the testator had fixed another period for the 
 class to be ascertained, to wit, the death of B. ; and, therefore, though A. 
 survived B., yet the children of B., who survived their father, took vested 
 interests at his death. 
 
LAST ANTECEDENT. 262 
 
 opposed to the establishment of a distinction between real and 
 personal estate in this respect.^ 
 
 ^ Contrary intention. —Exit the rule will readily yield to indica- 
 tions of a contrary intention, where a different point of time is 
 mentioned in immediate connection with the words of survivor- 
 ship.^ 
 
 Thus where the gift was to A. for life, with remainder to B. 
 and 0. or the survivors, with a direction that if B. should not 
 survive the testator, her children should stand *in her 
 place, it was held that the survivorship referred to the 1^*^^^ 
 death of the testator. (Rogers v. Towsey, 9 Jur. 575.) In 
 Blackmore v. Snee, 1 De G. & J. 455, the testator's death was 
 adopted as the period of survivorship ; but qu. how far this case 
 is consistent with the rule. 
 
 Survivorship referred to last antecedent. — Again, if the bequest 
 be to A. for life, with remainder to B. and 0. equally, but if 
 either should die in the lifetime (or before the death) of A., the 
 whole to the survivor, the point of time mentioned in immediate 
 connection with the words of survivorship being, not the death of 
 A. but the death of B. or 0. in his lifetime, the words are held 
 to refer to the event of one of the legateees surviving the other, 
 and not to the event of one of the legatees surviving the period 
 of distribution — so that if both die in the lifetime of the tenant 
 for life, the gift vests in the representatives of the survivor. 
 (Scurfield v. Howes, 3 Bro. 0. C. 90 ; White v. Baker, 2 De G. 
 
 ' In Re Gregson's Trusts, 2 De Gr. J. & S. 437, the opinion of Turner, J., 
 was in favor of applying the rule to devises of realty. The case before him 
 really turned upon the context of the will ; but he declares that he would 
 decide it, apart from that, on general principles. And see, also, Marriott v. 
 Abell, L. R. 7 Eq. 482. 
 
 In Holcomb v. Lake, 4 Zabr. 689, it was held that the rule applies to de- 
 vises of real estate. 
 
 ^ In a gift, after a life estate, to the surviving children of A. and of B., 
 or their heirs and assigns, either the survivorship must be confined to the 
 death of the testator, or the word " or" must be read " and." Of the two 
 the former construction must be adopted, since it gives full effect to the 
 testator's language as it stands : Ee Hopkins's Trust, 2 Hem & M. 411. 
 
263 PERIOD OP VESTING. 
 
 F. & J. 55.) " Where there is a bequest to A. for life, and after 
 his death to B. and C, or the survivor of them, some meaning 
 must, of course be attached to the words 'the survivor.' They 
 may refer to any one of three events : to one of the persons 
 named surviving the other, to one of them only surviving the 
 testator, or to one of them only surviving the tenant for life ; 
 and in the absence of any indication to the contrary, they are 
 taken to refer to the latter event as being the more probable 
 one to have been referred to. But ■when, as in the present 
 case, the . bequest is to A. for life, and after his death to B. 
 and C, and in case either of them dies in the lifetime of A., the 
 vrhole to the survivor, it is plain that the words in their natural 
 import refer to the one surviving the other." (Per Turner, L. 
 J., White V. Baker, 2 De G. F. & J. 55.) 
 
 But if the gift be to A. for life, with remainder to B. and 0. 
 and in the event of the death of either in the lifetime of A., the 
 share of the one so dying to be transferred to the survivor, the 
 immediate antecedent being the period of transfer, and not the 
 death of one of the *legatees, the rule applies, and the sur- 
 -l vivorship is referred to the period of distribution. (Little- 
 john V. Household, 21 B. 29.) 
 
 Survivorship referred to period of vesting. — Where the bequest 
 is one for life, with remainder to his children with words of survi- 
 vorship, and the interests of the children are to vest at a given 
 age or marriage, the construction may be affected by the leaning 
 of the Courts against making a provision for children subject to 
 the additional contingency of surviving their parents, and the 
 words of survivorship may be referred to the period of vesting 
 and not of distribution, "surviving" being held to mean "survi- 
 ving so as to attain twenty-one." (Crozier v. Fisher, 4 Buss. 
 398 ; Weedon v. Fell, 2 Atk. 123 ; Salisbury v. Lambe, Amb. 
 383.) As in Bouverie v. Bouverie, 2 Phill. 349, where the gift 
 was to A. for life, with remainder to his children when they should 
 attain twenty-one ; " in case one dies, the others to have share and 
 share alike; the survivor to have the whole." 
 
 So if the bequest be to A. for life, with remainder to his 
 children at twenty-one or marriage, " with benefit of survivor- 
 
SURVIVORSHIP WHETHER INBEFINITE. 264 
 
 ship," the latter words are construed to refer only to the case 
 of children dying under twenty-one unmarried, and not to the 
 case of a child attaining twenty-one and afterwards dying in 
 the lifetime of A. (Tribe v. Newland, 5 De G. & Sm. 236 ; 
 Knight V. Knight, 25 B. Ill ; Berry v. Briant, 2 Dr. & Sm. l.f 
 
 So where the bequest was to trustees in trust to apply the 
 interest for the benefit of the children till the youngest attained 
 twenty-one, and then all the said children or the survivors were 
 to be let into possession of the property, it was held that the 
 interest of a child who attained twenty-one, but died before the 
 youngest attained that ' age, was not divested in favor of those 
 living when the youngest attained twenty-one. (Orozier v. Fisher, 
 4 Buss. 398.) 
 
 But where the gift was to A. for life, and on her decease the 
 interest to be applied for the use of her children till *they r^ogs 
 should attain twenty-one, and then the principal to be 
 paid to the survivors, the only gift being in the direction to pay, 
 it was held that the children who survived A. alone could take. 
 (Turing v. Turing, 15 Sim. 139.) So where the gift was a direc- 
 tion to divide among children when the youngest attained twenty- 
 one, "with benefit of survivorship." (Vorley v. Richardson, 8 
 D. M. G. 126.) So in Re Crawhall's Trust, 8 D. M. G. 480. 
 
 Survivorship, indefinite or substitutional — The rule in Cripps 
 V. Wolcott, referring words of survivorship to the period of distri- 
 bution rather than the death of the testator, applies only where 
 the gift to survivors is substitutional, and does not decide the 
 question when the survivorship is substitutional, and when it is 
 indefinite, so as to create a joint tenancy, or a tenancy in com- 
 mon with cross-remainders. 
 
 A gift to several "and the survivors or survivor," is clearly 
 substitutional, and equivalent to a gift to them "or the survivors 
 or survivor." (Cripps v. Wolcott, 4 Mad. 11; Wagstaff v. 
 Crosby, 2 Coll. 746.) So a gift to several, "and the survivors" 
 (Brown v. Bigg, 7 Ves. 279), is substitutional. 
 
 1 Cornech v. Wadman, L. R. 7 Eq. 80. 
 
265 RULE IN BROWNE V. LORD KENTON. 
 
 And it seems that a bequest of personal estate to several 
 " equally to be divided between them, and the survivors and sur- 
 vivor of them," -without a gift over, is pnmd facie substitutional, 
 and vests absolutely in those living at the period of distribution. 
 (Stringer v. Phillips, 1 Eq. Ca. Abr. 293 ; Macdonald v. Bryce, 
 16 B. 581 ; Hodson v. Micklethwaite, 2 Drew. 294.) 
 
 But a devise of real estate to A. and B. and the survivor of 
 them, their heirs and assigns, as tenants in common, creates a 
 joint tenancy for life, with several remainders in fee. (Barker 
 V. Giles, 3 Bro. P. C. Toml. 104.)> 
 
 Bequest to several, '■'■or" those living at a given period. 
 If a testator gives property to several persons or to those of 
 them who shall be alive at a particular period, *the latter 
 -■ words are generally intended, not as a fresh gift engrafted 
 on the former, but as a qualification of the original gift, so 
 as to introduce into it the condition of surviving the speci- 
 fied period. The Courts however lean so strongly in favor of 
 vesting, that the words in question are considered to import, not 
 a condition, but only a preference in favor of those living at the 
 given time : so that, failing any of those to whom preference is 
 given, the original gift to all remains unaffected : and it is a rule 
 of construction that — 
 
 Rule. A bequest to several, or to a class, " or " to 
 such of them as shall be living at a given period, is con- 
 strued as a vested gift to all, subject to be divested in 
 favor of those living at that period, if there be such ; and 
 if none are then living, all are held to take. (Browne v. 
 Lord Kenyon, 3 Mad. 410 ; Sturgess v. Pearson, 4 Mad. 
 411 ; Belk v. Slack, 1 Keen 238.)^ 
 
 Thus if the gift be to A. for life, with remainder to his 
 children, or such of them as shall he living at his decease, 
 
 1 Taaffe v. Conmee, 10 H. L. 0. 64. 
 * Re Sanders' Trusts, L. R. 1 Eq. 683. 
 
GIFT TO SEVERAL OR THE SURVIVOR. 266 
 
 and no child is living at the death of A., all the children 
 are entitled, as if the gift had been to A. for life, with 
 remainder to his children simpliciter. (Sturgess v. Pear- 
 son.) 
 
 So if the gift be to A. for life, and after his decease to 
 his children or the survivors : — the rule in Cripps v. Wal- 
 cott being applicable. (Browne v. Kenyon.)^ 
 
 " The obvious metoing is, that if one only survived the tenant 
 for life, he should take the whole. It is in expression therefore 
 a vested' gift to the two as tenants in common, subject to be 
 divested if one alone should survive the tenant for life ; but 
 which never was divested, because that event did not happen. 
 The two brothers therefore took vested interests as tenants in 
 common, and the *money is now divisible between their r+ofiT 
 representatives. It may be well doubted whether this 
 was the real intention, and whether the testator did mean that 
 either brother should take any interest without surviving the 
 tenant for life: but the force of the expression is otherwise." 
 (Browne v. Lord Kenyon, 3 Mad. 416.) 
 
 So a bequest to "A. or his issue," is a vested interest in A., 
 subject to be divested upon his death before the period of distri- 
 bution in favor of his issue, if any, then living. (Salisbury v. 
 Petty, 3 Hare 86.) 
 
 The same rule applies to substitutional gifts generally, though 
 not introduced by the word " or." 
 
 Thus if the bequest be to A. for life, with remainder to B. and 
 C. equally, " and in case of the death of either in the lifetime of 
 A., the whole to the survivors living at Ms decease :" — if B. and 
 C. both die in the lifetime of A., the representatives of both take 
 the fund equally. (Harrison v. Foreman, 5 Ves. 207.) 
 
 But if the gift over be to the survivor (not, to the survivor 
 living at the decease of A.), the survivorship would be referred 
 to the death of the legatee who died first, and the representatives 
 of the survivor would be entitled, although the survivor pre- 
 
 1 Kirsh V. Tongue, 7 Rich. Eq. 100. 
 
' 267 EX PAETB WEST. 
 
 deceased the tenant for life. ("White v. Baker, 2 De G. F. & J. 
 55.) 
 
 Again, if there is a bequest to several legatees absolutely, with 
 a direction that upon the death of any one of them before the period 
 of distribution, the share of the one so dying shall go to his chil- 
 dren or issue: the gift being vested subject to be divested in 
 favor of children or issue (if any), the representatives of those 
 dying without issue will be entitled. (Smither v. Willock, 9 Ves. 
 233 ; Hervey v. M'Laughlin, 1 Price 264 ; Gray v. Garman, 2 
 Hare 268.) 
 
 Directions to settle children's shares. — If there is a gift to 
 children or legatees, the shares being given absolutely in the first 
 instance, followed by a direction to settle the shares of some of 
 the legatees upon trusts which do not exhaust the whole inter- 
 est: — subject to the qualifying trusts, the legatees take their 
 ^208-1 shares absolutely. (Whittell *v. Dudin, 2 J. & W. 279 ; 
 Hulme V. Hulme, 9 Sim. 644 ; Mayer v. Townshend, 3 B. 
 438.) As if the shares of daughters be settled on themselves for 
 life, with remainder to their children : — the shares of those dying 
 childless pass to their representatives. 
 
 In Ware v. "Watson, 7 D. M. G. 248, shares were given to 
 children absolutely, with a clause of accruer between them, fol- 
 lowed by a direction to settle the share of each child being a 
 daughter : it was held that the direction to settle did not apply 
 to the accrued shares of daughters. 
 
 Hx parte West. 
 
 If property be given to several, with a direction that in certain 
 events the shares of one or more of them shall go over and accrue 
 to the others, it is a nice point whether that which is directed to 
 go over by the clause of accruer can be said to include that which 
 has already been operated on by the same clause : in other words, 
 whether the force of the clause of accruer is not exhausted, when 
 it has once operated on each division of the property. The dis- 
 position to hold interests once vested to be, as far as possible. 
 
ACCRUING SHARES. 268 
 
 indefeasible in tbe donees, favors this construction : and it is 
 established as a rule, in the absence of expressions indicating a 
 contrary intention, that — 
 
 Rule. A clause of accruer of the shares of devisees 
 or legatees does uoi, primd facie, operate on shares which 
 have already accrued under the clause in question. 
 
 Thus, if real or personal estate be given to A., B., and 
 C, as tenants in common, with a direction that if any of 
 them die without issue, the share of the one so dying 
 shall be divided among the survivors : — if A. and B. suc- 
 cessively die without issue, the original *share of 
 B. will accrue to C, but not the share which accrued '- 
 to B. upon the death of A. (Ex parte West, 1 Bro. C. C. 
 575; Crowder v. Stone, 3 Russ. 217; Douglas v. Andrews, 
 14 B. 347.)^ 
 
 "Where a man gives a sum, suppose of lOOOZ., to be divided 
 amongst four persons, as tenants in common ; and that if one of 
 them die before twenty-one or marriage, it shall survive to the 
 others : if one dies, and three are living, the share of that one so 
 dying will survive to the other three ; but if a second dies, noth- 
 ing will survive to the remainder but the second's original share: 
 for the accruing share is as a new legacy, and there is no further 
 survivorship." (Per Lord Hardwicke, 3 Atk. 80.) 
 
 But if A. and B. both died in the lifetime of the testator, no 
 doubt upon the testator's death the original shares of both of 
 them would accrue to 0. 
 
 The rule applies where the word "portion" is used instead of 
 
 > Hutchinson's Appeal, 34 Conn. 300 ; Bveritt v. Everitt, 29 N. Y. 39 ; 
 Masden's Estate, 4 Whart. 429 ; Hoxton v. Archer, 3 Gill & Johns. 213 ; 
 Brooke v. Croxton, 2 Gratt 507 ; Owen v. Owen, 1 Busb. Eq. 121. 
 
 In Ohio this rule is not observed in a devise to several, their heirs and 
 assigns, with a direction that " if any should die without issue the share 
 or shares of such decedent or decedents should be equally divided among 
 the survivors." It was held that the latter clause operated on accrued as 
 well as original shares : Taylor v. Foster, 17 Ohio St. 166. 
 
269 
 
 WHEN ACCRUING SHARES SURVIVE. 
 
 share. (Briglit v. Eowe, 3 My. & K. 316.) So if the word be 
 "part," as where the property was devised to three, with a 
 direction that as each died, his or her " part" should go to the 
 others then living. (Goodwin v. Finlayson, 25 B. 65.^ 
 
 In Douglas v. Andrews, 14 B. 347, it was said that if the 
 " share and interest" of the legatee was given over, the word 
 "interest" would carry the accrued share: sed qu. 
 
 Contrary intention. — But if an intention is expressed of keep- 
 ing the estate or fund in an aggregate mass, with a gift over of 
 the whole to persons in remainder, the rule is excluded, and the 
 accrued share will survive with the original shares. 
 
 As if lands be devised to several as tenants in common in tail, 
 with remainder as to the shares of those dying without issue to 
 the survivors in tail, with remainder over. (Doe v. Birkhead, 4 
 Exch. 110.) 
 
 *270"1 ^° ^^ personal estate be given to A., B., and C, with a 
 *direction that the shares of any of them dying without 
 issue shall accrue to the survivors, and in the event of all dying 
 without issue, the whole is given over to D. : — upon the death of 
 one without issue, the accruing shares will not vest absolutely in 
 the others, liable only to be divested on the death of all without 
 issue ; but on the death of each legatee the accrued share will 
 survive to the others. (Worlidge v. Churchill, 3 Bro. C. C. 465; 
 Douglas V. Andrews, 14 B. 347.) "If the intention is clearly 
 expressed of keeping the fund in one aggregate mass, the rule 
 does not apply. Observe what a;n inconsistency would arise if it 
 were otherwise. Suppose there were four or five children, one 
 of whom died without leaving issue, his share would go the sur- 
 vivors ; but if one of such surviving children afterwards died 
 without issue, his accrued share would go to his legal personal 
 representative, while his original share would go over to the sur- 
 vivors ; but suppose that afterwards they all died without issue, 
 then the legal personal representative must be divested of the 
 accrued shares, in order that the whole fund might go over in 
 
 ' But in Turner v. Withers, 23 Md. 43, the words, " the part which the 
 child BO dying shall be entitled to," were held to include accrued shares. 
 
DOUBLE CLAUSE OF ACCRUER. 270 
 
 mass to the parties entitled in that event." (Douglas v. Andrews 
 14 B. 355.)' 
 
 Again, if the clause of accruer directs the shares to go over to 
 the survivors "in manner aforesaid," or "in manner therein- 
 before directed concerning the original shares," the accrued shares 
 will be subject to the same trusts (including the clause of accruer) 
 as the origipal shares. (Milsom v. Awdry, 5 Ves. 465 ; Good- 
 man V. Goodman, 1 De G. & Sm. 695.) 
 
 Double clause of accruer.— It appears that the rule does not 
 extend to prevent a clause giving over the shares of legatees 
 dying under given circumstances, from operating on shares 
 which may have accrued to them under another clause in the 
 bequest. 
 
 Thus, if the gift be to A., B , and C, equally, with a direction 
 that the shares of any who may die without leaving children shall 
 go to the survivors equally, and that if any die leaving children, 
 his share shall go to his children : — *if A. die first without 
 leaving children, and B. afterwards die in the lifetime of L ^'^ 
 C, the children of B., if any, will take his accrued as well as 
 original share : although, if B. died without children, his original 
 share only would survive to C. (Eyre v. Marsden, 4 My. & Cr. 
 231 ; Leeming v. Sherratt, 2 Hare 14.) 
 
 Benefit of survivorship. — A gift to several, "with benefit of 
 survivorship," carries over the accrued as well as the original 
 shares. (Re Crawhall's Trust, 8 D. M. G. 480.) 
 
 ' Dutton V. Crowdy, 23 Beav. 272 ; Turner v. Withers, 23 Md. 44. So 
 if the gift be to several, and if either of them should die without issue 
 then the survivors or survivor of them to have all the said property : Spruill 
 V. Moore, 5 Ired. Eq. 284. 
 
*272] *CHAPTER XX. 
 
 CHAEGES, LIABILITY TO DEBTS, ETC. 
 
 Bower. 
 In ■wills not subject to the provisions of the Dower Act (3 & 
 4 W. 4, c. 105), all devises of land liable to dower of course 
 take effect subject to the widow's rights in that respect ; but if 
 the will indicates an intention to dispose of the lands adversely 
 to her right, the widow, if taking any benefits under the will, is 
 put to her election. Such an intention may appear in two ways : 
 
 (1) by the gift to the widow herself of an interest in the land, 
 implying that such interest is to be taken by her in lieu of dower : 
 
 (2) by the devise of the land to other persons in such a way, that 
 the disposition would be defeated by the assertion of the right to 
 dower out of it. But on both points the presumption is (in wills 
 not subject to the Dower Act) against the construction which 
 would put the widow to her election. 
 
 First, as regards the intended exclusion from dower by a gift 
 of an interest in the land to the widow herself, — the rule, prior 
 to the Dower Act, is as follows : — 
 
 Rule. In wills executed* before January 1, 1834, 
 ^ *and in other wills so far as regards the dower of 
 widows married on or before January 1, 1834. 
 
 ' The saving clause (sect. 14) of the Dower Act enacts, " That this Act 
 shall not extend to the dower of any widow who shall have been or shall 
 be married on or before January 1, 1834, and shall not give to any will, 
 deed, contract, engagement, or charge executed, entered into, or created 
 before January 1, 1834, the effect of defeating or prejudicing any right to 
 dower." 
 
 It would appear that a will executed before 1834 is not brought within 
 the Act by being republished subsequently to 1834 by codicil. 
 
LIABILITY TO DOWER. ■ 273 
 
 ^ A devise to the testator's widow of part of the land 
 liable to her dower is not primd facie, construed as a gift 
 in lieu of dower, so as to put the widow to her election 
 as regards the remaining land liable to dower. (Laurence- 
 V. Laurence, 2 Vern. 365, 3 Bro. P. C. Toml. 484; Bir- 
 mingham V. Kirwan, 2 Sch. & Lef. 444.)^ 
 
 And a gift to the widow of an annuity charged on land 
 liable to dower does not put her to election as regards 
 dower out of the land charged. (Birmingham v. Kirwan, 
 2 Sch. & Lef. 444; Hall v. Hill, 1 D. & War. 94; Holdich 
 V. Holdich, 2 Y. & C. C. C. 18.)^ 
 
 Thus, where the testator being seised of a mansion-house and 
 283 acres of land, devised that his wife should have the mansion- 
 house for her life with the ground then in hand, being about 53 
 acres ; it was held, that the widow might accept the devise, and 
 also claim dower out of the remainder of the 283 acres. (Lord 
 Dorchester v. Earl of EflSngham, Gr. Coop. 319.) 
 
 So, where a house and demesne was devised to the widow for 
 life, she paying ISs. yearly for every acre, to keep the house in 
 repair, and not to let, except in a certain manner, and the rest 
 of the estate was devised to A. for life with remainder to B., it 
 was held that the widow might claim dower out of the rest of the 
 estate. (Birmingham v. Kirwan, 2 Sch. & Lef. 444.) 
 
 "I feel bound by the present state of the authorities to say, 
 that a mere gift of an annuity to the testator's widow, although 
 
 ' Keed v. Dickerman, 12 Pick. 149 ; Lord v. Lord, 23 Conn. 331 ; Bull v. 
 Church, 5 Hill 206 ; Norris v, Clark, 2 Stockt. 54 ; Webb v. Evans, 1 Binn. 
 565 ; Douglass v. Feay, 1 W. Va. 26 ; Higginbotham v. Cornwell, 8 Gratt. 
 83 ; Bailey v. Boyce,. 4 Strobh. Eq. 90 ; M'Leod v. M'Donnel, 6 Ala. 241 ; 
 Kelly V. Stinson, 8 Blackf. 388 ; Shaw v. Shaw, 2 Dana 342 ; Yancy v. 
 Smith, 2 Mete. (Ky.) 408 ; Sully v. Nebergall, 30 Iowa 339. 
 
 ^ Douglass V. Feay, 1 W. Va. 35. A charge of " comfortable support 
 and maintenance " upon the estate is not to be considered in lieu of dower : 
 Smith V. Kniskern, 4 Johns. Ch. 10. But the contrary was held in Worther 
 V. Pearson, 33 Ga. 387, where it is also declared that a charge of an annuity 
 on land in favor of the widow, is sufficient to put her to election. 
 
273 GIFT TO WIDOW OF PART OF THE LAND. 
 
 charged on all the testator's property, is not sufficient to put her 
 to her election. I consider myself equally bound by the authori- 
 ties to say, that a mere gift to the widow of an annuity so charged, 
 -and a gift of the whole of the testator's real estate, though speci- 
 fied by name, to some other person, are not together of them- 
 *97A-\ *^^^^^^ sufficient to put the widow to her election; and 
 -■ moreover, that a gift of a portion of the real estate to the 
 widow, whether for life or during widowhood, is not sufficient as 
 to the residue of the estate to put the widow to her election in 
 respect of dower." (Holdich v. Holdich, 2 Y. & C. C. C. 18.) 
 
 Contrary intention. — In some cases, where the testator has di- 
 rected the land itself to be divided among the widow and other 
 persons in certain proportions (Chalmers v. Storil, 2 V. & B. 222; 
 Dickson v. Robinson, Jac. 503), or has given a certain proportion 
 of the rents and profits of the land to the widow, and the remainder 
 to other persons (Roberts v. Smith, 1 S. & Stu. 513), it has been 
 held that the gift to the widow of a certain share of the property, 
 implied that she was not to take more than that share, and that 
 therefore she could not claim dower out of the other shares. In 
 Reynolds v. Torin, 1 Russ. 129, where the testator gave to the 
 widow four-sevenths of the income of certain specified property, 
 including a Scotch heritable bond, and the remaining three-sevenths 
 to other persons, it was held that the testator could not intend to 
 give to the widow both four-sevenths and one- third of the interest 
 of the bond, and therefore that, although the bond did not in fact 
 pass by the will, the widow was put to her election as to her right 
 of terce in the bond.' 
 
 ' Lord V. Lord, 23 Conn. 331 ; Hickey v. Hiokey, 26 Id. 261 ; Crea- 
 craft V. Dille, 3 Yeates 79 ; Craig v. Walthall, 14 Gratt. 518 ; Bailey v. 
 Boyce, 4 Strob. Bq. 84 ; M'Leod v. M'Donnel, 6 Ala. 241. 
 
 In Hamilton v. Buckwater, 2 Yeates 389, a devise to the widow during 
 ■widowhood is deemed a bar to dower in the lands so devised ; but Bull v. 
 Church, 5 Hill 206, and Sully t>. Nebergall, 30 Iowa 339, are otherwise. 
 
 In Parker v. Parker, 13 Ohio St. 95, it is held that a devise to a widow 
 and other persons in certain proportions, is inconsistent with a declaration 
 that the devises to the widow are not in lieu of dower, and that the former 
 shall prevail. 
 
DOWER ACT. 274 
 
 But these cases of gift to the widow of a definite share of the 
 land, or m the rents and profits, must be distinguished from the 
 the case where the land is devised in trust for sale, with a gift to 
 the widow of a definite share in the proceeds of the sale. In the 
 latter *case, the sale is supposed to he subject to the charge of 
 dower, and the share of proceeds given to the widow is a share 
 of what remains after that charge is satisfied; the claim of dower 
 is therefore not inconsistent with that gift, and the widow is not 
 put to her election. (Bending v. Bending, 3 K. & J. 257.)i 
 
 Again, if the devise is to trustees in trust to pay an annuity to 
 the widow, and to pay the surplus rents and' profits to other 
 persons; this is, in fact, a devise subject *to the annuity, f.^„„^ 
 and does not put the widow to election. (Harrison v. ^ 
 Harrison, 1 Keen 765.) 
 
 Mw law.— The Dower Act reverses the rule of construction 
 just considered, and moreover, deprives the widow of the right of 
 election between her dower and the interest devised to her : viz., 
 by enacting that — 
 
 Rule. In wills executed on or after January 1, 1834, 
 as regards (only) the dower of widows married after 
 January 1, 1834 : 
 
 " Where a husband shall devise any land out of which 
 his widow would he entitled to dower if the same were 
 not so devised, or any estate or interest therein, to or for 
 the benefit of his widow, such widow shall not be entitled 
 to dower out of or in any land of her said husband, unless 
 a contrary intention shall be declared by his said will." 
 (Stat. 3 & 4 Will. 4, c. 105, s. 9.)== 
 
 ' So Fuller v. Yates, 8 Paige 329 ; but to the contrary Duncan v. Duncan, 
 2 Yeates 302. 
 
 ' Similar provision is found in the statutes of Maine (Act of 1783 : Has- 
 tings V. Clifford, 32 Me. 132) ; Massachusetts (Act of 1783, see Beed v. 
 Diokerman, 12 Pick. 146) ; New York (Kev. Stat, of 1830) ; New Jersey 
 (Act April 16, 1846) ; Pennsylvania (Act of April 8, 1833) ; Delaware 
 (Act of Feb. 16, 1816) ; Maryland (Act of 1798) ; Virginia (Ac* of I'eb. 
 21 
 
275 BEVISE OP LAND LIABLE TO DOWBK. 
 
 A devise to the Tvidow of lands not liable to dower, or a bequest 
 to ber of personal estate, is not, eitber before or since the Dower 
 Act, construed as a gift in lieu of dower. 
 
 Secondly, a devise of lands liable to dower to other persons 
 beneficially, does not necessarily import an intention on the part 
 of the testator to devise the land otherwise than subject to 
 the legal charges to which his estate therein is incident, among 
 which is (prior to the Dower Act) the widow's right to dower. 
 It is consequently the rule that — 
 
 Rule. In wills executed before January 1, 1834, and 
 in other wills so far as regards the dower of widows mar- 
 ried on or before January 1, 1834 : 
 
 Every devise of lands liable to dower is prima fade 
 
 , construed as a devise subject to the right to *dower : 
 
 *2761 ° 
 
 in order to put the widow to election, it must ap- 
 pear that her demand of dower by metes and bounds 
 would he repugnant to the disposition. (French v. Davies, 
 2 Ves. jun. 576 ; Birmingham v. Kirwan, 2 Sch. & Lef. 
 444 ; Ellis V. Lewis, 3 H. 313 ; Gibson z». Gibson, 1 Drew. 
 42.) 
 
 21, 1866) ; North Carolina (Actof April 19, 1784: Brown v. Brown, 5 Ired. 
 136) ; Alabama (Code of 1852) ; Mississippi ; Ohio (Act of Jan. 19, 1804) ; 
 Indiana (Act of 1843) ; Illinois (Act of 1829) ; Tennessee (Act of 1784) ; 
 Michigan (Rev. Stat, of Sept. 1, 1888) ; Wisconsin, Minnesota, Iowa, Mis- 
 souri (Rev. Stat. 1845) ; Arkansas (Act of March 20, 1839) ; and Kansas. 
 But under these statutes the widow may in all cases elect betweeif the 
 provision made for her, and her dower. 
 
 In Maine, Massachusetts, Pennsylvania, Virginia, North Carolina, 
 Florida, Ohio, Tennessee, Wisconsin, Minnesota, and Kansas, any pro- 
 vision whatever in a will of a husband for his widow, whether of real or 
 personal estate, is construed to be in lieu of dower, unless a contrary 
 intention appear from the will. 
 
 ' In Virginia, under a statute of 1785, in force until July 1, 1850, it could 
 be shown by parol evidence that a devise was intended to be in lieu of dower. 
 
 In Illinois it is held that the terms of their statute, " Every devise of land 
 or any estate therein," do not include a gift to the widow of the proceeds 
 of land directed to be sold : Jennings v. Smith, 29 111. 116. 
 
DEVISE OE LAND LIABLE TO DOWER. 276 
 
 Thus a devise of " the lands called A," being lands 
 liable to dower, to trustees in trust to pay the rents to 
 one for life, with remainders over, does not put the widow 
 to her election. 
 
 And a devise of the lands to trustees in trust for sale 
 does not exclude the right to dower : as the widow may 
 concur, or the sale be made subject to dower. (Ellis v. 
 Lewis, 3 H. 310 ; Gibson v. Gibson, 1 Drew. 42.) 
 
 " A distinction was at one time supposed to exist between a 
 devise of a testator's estate or interest in his lands, and a devise 
 of the lands themselves by that description ; it being considered 
 in the former case that the devise did not, in the latter that it did, 
 express an intention by force of the language itself, that the 
 devisee was to take the. lands discharged of the widow's right to 
 dower. But I take the law to be clearly settled at this day, that 
 a devise of lands eo nomine, upon trust for sale, or a devise of 
 lands, eo nomine, to a devisee beneficially, does not per se express 
 an intention to devise the land otherwise than subject to its legal 
 incidents, that of dower included." (Ellis v. Lewis, 3 Hare 313.) 
 
 " If it was impossible to sell lands subject a widow's right to 
 dower, or to sell the remaining two- thirds, after setting out by 
 metes and bounds one-third for dower, and to sell the reversion 
 of the third part thus set out, then, indeed, the assertion by the 
 widow of her right to dower would defeat the disposition made by 
 the will for sale of the estate, and then she would be put to her 
 election. But so far from any impossibility, there is in fact no 
 *difl5culty in selling an estate subject to the widow's r*277 
 dower ; and therefore there is no ground for holding that 
 a devise in trust for sale is a sufficient reason for putting the 
 widow to her election." (Gibson v. Gibson, 1 Drew. 55.) 
 
 Direction as to proceeds of sale.— Nov of course does any 
 direction as to the application of the proceeds of the sale alter 
 the case. " The devise is of land subject to dower. The trust 
 to sell is a trust to sell subject to dower, and the proceeds of the 
 sale will represent the gross value of the estate, minus the value 
 
277 NEW LAW. 
 
 of the dower. Whatever direction, therefore, for the mere dis- 
 tribution of the proceeds the will may contain, that direction 
 must leave the widow's right to dower untouched." (Ellis v. 
 Lewis, 3 Hare 313 ; Bending v. Bending, 3 K. & J. 257.) 
 
 Nor is the right to dower excluded by a direction that until 
 the sale the rents and profits shall be applied in the manner 
 directed with respect to the income of the proceeds of the sale. 
 Gibson v. Gibson, 1 Drew. 57. 
 
 Power of leasing, ^c, inconsistent with dower. — But it is 
 settled that a power of leasing extending over the whole estate 
 given to trustees, is inconsistent with the enjoyment of dower by 
 metes and bounds, and puts the widow to her election. (Hall v. 
 Hill, 1 D. & War. 94 ; Parker v. Sowerby, 4 D. M. G. 321.) 
 
 And it seems that powers of management, &c., have the same 
 efi"ect. In Parker v. Sowerby, 4 D. M. G. 321, Turner, L. J., 
 said, " The will also gives to the trustees the management of the 
 estate, and directs^them to make such repairs as they may deem 
 necessary ; this provision is also inconsistent with the existence 
 of a right to dower in the wife." 
 
 Similarly, where a farm was devised to trustees in trust to 
 carry on the business or to let the same during the minority of 
 A. as they should think best (Butcher v. Kemp, 5 Mad. 61) ; or 
 where the trustees were to take possession of, occupy, and man- 
 age the farm in question (Roadley v. Dixon, 3 Buss. 192), it has 
 been held that the disposition was inconsistent with the right to 
 dower. 
 
 ^o-To-i *In Miall v. Brain, 4 Mad. 119, and Goodfellow v. Good- 
 fellow, 18 B. 356, it was held that a gift to a particular 
 person of the ^ersowaZ occupation o?part of the property devised 
 was suflJeient to show that the whole of the property was intended 
 to be devised free from dower. 
 
 Mw law. — The Dower Act in effect abolishes the preceding 
 rule by postponing, independently of any intention on the part 
 of the testator, the widow's right to dower to every disposition 
 made by will ; the enactment being that (in will executed on or 
 
MORTGAGES. 278 
 
 after January 1, 1834, so far as regards the dower of widows 
 marned after January 1, 1834), every testamentary disposition 
 ot land includes, absolutely or pro tanto, the right to dower 
 (Stat. 3 & 4 W. 4, c. 105, ss. 4, 5.) 
 
 Section 4. " That no widow shall be entitled to dower out of 
 any land which shall have been absolutely disposed of by her 
 husband in his lifetime, or by his will." 
 
 Section 5. "That all partial estates and interests, and all 
 charges created by any disposition or will of a husband, and all 
 debts, encumbrances, contracts, and engagements to which his 
 lands shall be subject or liable, shall be valid and effectual as 
 against the right of his widow to dower." 
 
 Mortgages. 
 Previously to the Act 17 & 18 Vict. c. 113 (Locke King's 
 Act), debts created by the testator, and secured by mortgage, 
 were payable primarily out of the personal estate in the same 
 way as debts not so secured ; and the right of the devisee of the 
 mortgaged estate to exoneration out of the personalty was not 
 held to be taken away except by a clear expression of intention : 
 it being a rule of construction that — 
 
 Rule. In wills made before January 1, 1855 : 
 A devise of lands to A., subject to a mortgage, does not 
 imply an intention that the devisee should take cum onere, 
 so as to render the land devised primarily *liable. 
 (Serle v. St. Eloy, 2 P. Wms. 386 ; Bickham v. '^*^^^ 
 Cruttwell, 3 M. Y. & Cr. 763 ; Goodwin v. Lee, 1 K. & 
 J. 377.)^ 
 
 ' In America it has been held that a simple devise of lands, 'which at 
 the time of the devise are subject to a mortgage created by the testator, 
 passes to the devisee exonerated from the mortgage debt, unless a contrary 
 intention appears in the will : Hewes v. Dehon, 3 Gray 205 ; Plimpton v. 
 Fuller, 11 Allen 139 ; Gould v. Winthrop, 5 K. I. 319 ; McLenahan v. 
 McLenahan, 3 C. E. Green 101. But if the mortgage were created by a 
 previous ovs^ner the devisee is not entitled to exoneration out of the personal 
 estate, unless a different intention appears in the will, or the testator has 
 
279 DEVISE SUBJECT TO A MORTGAGE. 
 
 In Bickham v. Cruttwell, 3 Myl. & Or. 763, estate A. being 
 subject to a mortgage, the testator devised estates A. and B. 
 " the whole subject to the payment of the mortgage debt bor- 
 rowed on A." It was held that although B. was thus charged 
 with the debt, the devisee of A. did not take cum onere. It was 
 said (p. 769), " The gift is of the houses, subject to the payment 
 of the mortgage. That expression, however, it is clear, will not 
 exonerate the personal estate ; it is merely a description of the 
 state of the property, and it has often been decided that such a 
 form of expression does not amount to an exoneration of the per- 
 sonal estate. It is true, the devise subject to the charge includes 
 also other property ; that is to say, it charges other property 
 which was not before subject to the mortgage debt. But that 
 circumstance will not of itself exonerate the personal estate ; it ' 
 is merely an additional charge, giving a further security beyond 
 what the mortgagee previously had." 
 
 In Goodwin v. Lee, 1 K. & J. 377, two estates, Whiteacre and 
 Blackacre, were subject to a mortgage for 1200?. ; the testator 
 devised Whiteacre to A., subject to payment of 200?., part of the 
 mortgage debt, and Blackacre to B., subject to payment of the 
 remainder : it was held that the terms of the devise affected the 
 incidence of the charge only as between A. and B., and that the 
 descended real estate was not exonerated. 
 
 Contrary intention. — But if a particular provision be made for 
 payment of the mof tgage debt out of the estate charged, and only 
 the residue after payment of the debt is bequeathed to the de- 
 visee, the estate charged is the primary fund. (Hancox v. Abbey, 
 11 Ves. 179.) 
 
 So a devise to A., he paying the mortgage thereon, has been held 
 
 *2801 ^° render the mortgaged estate primarily liable. *(Lock- 
 
 hart V. Hardy, 9 B. 379.) And where the testator ex- 
 
 during lifetime made the debt his own : Andrews v. Bishop, 5 Allen 493 ; 
 Hoff's Appeal, 24 Penn. St. 203 ; Thompson v. Thompson, 4 Ohio St. 333. 
 If lands be devised which are held under a contract of sale and the pur- 
 chase-money is not paid, the devisee is entitled to have it paid out of the 
 personal estate of the testator : Lamport v. Beeman, 34 Barb. 239 ; 
 McCracken's Appeal, 29 Penn. St. 426. 
 
LOCKE KINa'S ACT. 280 
 
 pressly charged and made liable the estate with payment of the 
 debt, it was held that, as the estate could not be charged in favor 
 of the creditor more than it was before, it must be intended that 
 the devisee was to take cum onere. (Evans v. Cockeram, 1 Coll 
 428.) 
 
 New law.— The Act 17 & 18 Vict. c. 113, does not establish 
 on this subject a new rule of construction, but enacts that, in the 
 absence of any intention on the part of the testator appearing to 
 the contrary, evidenced either by will or by any document^ the 
 mortgaged estate shall, as between the persons claiming under the 
 testator, be primarily liable. Wills made before January 1, 1855, 
 are not within the provisions of the Act."* 
 
 What shows an intention not to devise cum onere. — It was said 
 in Woolstencroft v. "Woolstencroft, 2 De G-. F. & J. 347, that in 
 cases within Locke King's Act as strong an intention ought to be 
 required to exonerate the mortgaged estate from the mortgage 
 debt, as is required to exonerate the personal estate from debts 
 generally : but this doctrine has not been approved. It appears to 
 be settled that it is not necessary, in order to exoneration, that the 
 
 » Stat. 17 & 18 Vict. c. 113, s. 1. " "When any person shall, after the 31st 
 of December, 1854, die seised of or entitled to any estate or interest in any 
 land or other hereditaments which shall at the time of his death be charged 
 with the payment of any sum or sums of money by way of mortgage, and 
 such person shall not, by his will or deed or other document, haye signified 
 any contrary or other intention, the heir or devise to whom such land or 
 hereditaments shall descend or be devised, shall not be entitled to have the 
 mortgage debt discharged or satisfied out of the personal estate or any 
 other real estate of such person, but the land or hereditaments so charged 
 shall, as between the dififerent persons claiming through or under the de- 
 ceased person, be primarily liable to the payment of all mortgage debts 
 with which the same shall be charged 
 
 " Provided also, that nothing herein contained shall affect the rights of 
 any person claiming under or by virtue of any will, deed, or document 
 already made or to be made before January 1, 1855." 
 
 It would appear that the republication by codicil since 1855, of a will 
 made before 1855, would not bring the will, if containing a devise of the 
 mortgaged estate, within the provision of the Act. 
 
 1 The New York Revised Statutes contain a similar provision. 
 
280 MORTGAGE ESTATE EXONEBATED. 
 
 mortgage debt should be thrown by name upon any other fund, 
 *28n ^^^ ^^^* ^* ^® sufficient that the mortgaged *estate should 
 be specifically devised without mention of the mortgage, 
 and another fund, whether real or personal, designated for pay- 
 ment of debts generally. (Eno v. Tatam, 1 N. R. 529 ; Mellish 
 V. Vallins, 2 Jo. & H. 194; Stone v. Parker, 1 Dr. & Sm. 212; 
 Allen V. Allen, 30 B. 395 ; Smith v. Smith, 3 Gifi". 263.) 
 
 Thus, if the mortgaged estate be devised specifically, and the 
 testator's debts are directed to be paid out of his residuary real 
 and persona|l estate, or the residuary real and personal estate be 
 devised subject to payment of debts, the mortgaged estate is 
 exonerated. (Stond «).. Parker, 1 Dr. & Sm. 212; Allen v. 
 Allen, 80 B. 395.) 
 
 And although Romilly, M. B,., in several cases (Rawson v. 
 Harrison, 10 W. R. 705 ; Moore v. Moore, lb. 877) held that a 
 direction that debts should be paid out of the personal estate only 
 was not sufficient to exonerate a mortgaged estate specifically 
 devised, it appears to be now settled that if the mortgaged pro- 
 perty be devised to persons taking beneficially, without reference 
 to the mortgage debt, and the personal estate is bequeathed sub- 
 ject to payment of debts, or the debts are directed to be paid out 
 of it, the mortgaged estate is primd facie exonerated. (Eno v. 
 Tatam, 1 N. R. 529 ; Mellish v. Vallins, 2 Jo. & H. 194 ; Smith 
 V. Smith, 3 Giif. 263.) In Mellish v. Vallins, Wood, V.-C, 
 said (p. 203) : " The decision under the old law, that where lands 
 were devised 'subject to the mortgage thereupon,' the words 
 ' subject to the mortgage thereupon' were merely descriptive of 
 the condition of the property, and no indication that the devisee 
 was to take cum onere, was a strong decision, which could have 
 only arisen from the favor extended at that period of the law to 
 real estate. I feel thait I ought not to extend it to personal 
 estate, by holding that in this will the words ' subject to the pay- 
 ment thereout of all my just debts,' are to be treated as merely 
 descriptive, and that the will is to be read as if they were omitted. 
 The testator must be presumed to have been aware of the Act ; 
 and it appears to me that by the words in question he has taken 
 *9Q9T. paiii3 to signify his intention, that as *between the de- 
 visees of the real estate and the residuary legatee of the 
 
BESTS AND IBaAOIES. 282 
 
 personalty, the mortgage debt is to be borne by the personal 
 estate." 
 
 But if the fund designated for payment of debts includes the 
 mortgaged estate, as if the testator directs his debts to be paid 
 out of his " estate," i. e., his real and personal estate (Woolsten- 
 croft V. Woolstencroft, 2 De G. P. & J. 347), or directs his debts 
 to be paid without saying out of what fund (Pembrooke v. Friend, 
 1 Jo. & H. 132), the mortgaged property is, of course, not 
 exonerated.^ 
 
 So if the mortgaged estate were not specifically devised, or 
 were devised suiject to the mortgage, the Act would of course 
 apply. 
 
 DEBTS AND LEGACIES.^ 
 
 Implied charge of Debts. 
 
 Although lands not charged with debts are now liable to the 
 claims of all creditors, the question whether any and what lands 
 of the testator are by his will charged with debts is still of im- 
 portance ; both because a charge of debts deprives specialty 
 creditors of their priority, and also because lands charged with 
 debts are applied in order of administration before lands not 
 
 ' See also Brownson v. Lawrence, L. R. 6 Eq. 1 ; Moore v. Moore, 1 
 De G. J. & S. 602. 
 
 Where two properties are subject to a mortgage and one of them is 
 devised specifically and the other passes by, the residuary devise, the one 
 specifically devised is exonerated : Brownson v. Lawrence, L. R. 6 Bq. 6. 
 
 In New York neither a direction to pay debts out of the residuary estate, 
 or that they be paid by the executors, is sufficient to exonorate the mort. 
 gaged estate (Taylor v. Wendell, 4 Bradf. 330 ; Bepelye v. Eepelye, 27 
 Barb. 610). But a direction to pay all debts " whether on bond and mort- 
 gage or otherwise" is sufficient : Waldron v. Waldron,,4 Bradf. 144. 
 
 '■' In this country where all debts of a decedent are payable out of his 
 real estate in default of personalty, without any preference in favor of 
 specialty creditors, the only questions which arise concerning a charge of 
 debts on land by a will, are whether the lands are made li&Ue pari passu 
 with the personalty or not, or are charged in exoneration of the person- 
 alty or not. 
 
•=2831 
 -* *of 
 
 282- IMPLIED CHARGE OF DEBTS. 
 
 charged. The rule of construction relative to implied charges, 
 of debts is as follows, viz. : — 
 
 Rule. A direction by the testator that his debts shall 
 be paid, charges all his real estate therewith. (Shall- 
 cross V. Finden, 3 Ves. 737 ; Clifford v. Lewis, 6 Madd. 
 33.) 
 
 But a direction by the testator that his debts shall be 
 paid hy Ms executors, charges only the real estate, if any, 
 devised to them. (Keeling v. Brown, 5 Ves. 359 ; 
 Powell V. Robins, 7 Ves. 209.)^ 
 
 • I agree that if a testator does manifest in any part 
 his will that his debts shall be paid, they are to 
 be paid before any disposition of what he has power to dis- 
 pose of. 'After payment of his debts,' means that until his 
 debts are paid, he gives nothing ; that everything he has shall 
 be subject to his debts. To give those words any effect, they 
 must charge the real estate. I am very clearly of opinion, 
 that wherever a testator says, he wills that his debts shall be 
 paid, that will ride over every disposition, either as against his 
 heir-at-law or devisee ; and the words ' after my debts paid ' mean 
 the same thing." (Shallcross v. Finden, 3 Ves. 738.) 
 
 " The authorities determine, that where the testator gives a 
 general direction that his debts shall be paid, this amounts to a 
 charge of the debts generally on the real estate, at least in all 
 cases where the real estate is afterwards disposed of by the will. 
 But an exception obtains where the direction that the debts shall 
 be paid is coupled with a direction that they are to be paid by 
 the executor, as is the case here ; in which case it is assumed 
 that the testator meant that the debts should be paid only out of 
 the property which passes to the executor." (Cook v. Dawson, 
 29 B. 126.) 
 
 It is immaterial by what form of words the direction to pay is 
 conveyed : thus the expression " my debts being satisfied, I give, 
 &c." (Harris v. Ingledew, 3 P. W. 91) ; or, "after payment of 
 
 1 Gaw V. Huffman, 12 Gratt. 633. 
 
DEVISE TO EXECUTORS. 283 
 
 debts, I give, &c." (Shallcross v. Finden), creates a charge of 
 debts. And where the testator devised and bequeathed " all my 
 freehold, copyhold, and leasehold estates and all the residue of 
 my personal estate afterpayment of my debts," it was held that 
 the latter words applied to the real estate, as well as to the per- 
 sonal estate. (Withers v. Kennedy, 2 My. & K. 607.) 
 
 It would appear that a general direction to pay debts charges 
 all the real estate, and not only that devised by the will. In 
 Shallcross v. Finden, 3 Ves. 788, it was said : " Is there a single 
 case, in which the testator has said, ' after payment of my debts,' 
 and the Court has said, it shall not affect all the real estate, 
 whether specifically devised or not?" 
 
 * Qontrary intention. — In a few cases (Thomas v. Brit- 
 nell, 2 Ves. sen. 313 ; Palmer v. Graves, 1 Keen 545), a f^*^^^ 
 general direction to pay debts, followed by a specific appropriation 
 of particular estates for the payment, has been held not to create 
 a charge on the real estate not specifically appropriated : but the 
 doctrine of these cases is doubtful. 
 
 Lands devised to executors charged. — It was formerly doubted 
 whether a direction that debts should be paid by the executors 
 would do more than charge the property coming to their hands 
 qud executors, i. e., the personal estate. But it is settled that 
 such a direction primd facie constitutes a charge of debts on all 
 the property derived by them (jointly) under the will, whether 
 real or personal (Henwell v. Whitaker, 3 Kuss. 348 ; Dover v. 
 Gregory, 10 Sim. 393 ; Harris v. Watkins, Kay 438) : although 
 not given to them in the character of executors. 
 
 And it is immaterial whether the real estate is devised to them 
 as trustees or beneficially. (Dover v. Gregory, 10 Sim. 898 ; 
 Dormay v. Borrodaile, 10 B. 268.) " I am of opinion that 
 when a testator devises all his real estate to his executors and 
 directs them to pay his debts, that constitutes a charge on the 
 real estate, although they take no beneficial interest in it." 
 (Hartland v. Murrell, 27 B. 204.) 
 
 Effect of charge on devise to executors.— li is to be observed 
 that where the executors are directed to pay debts, and real estate 
 
284 LANDS DEVISED TO EXECUTORS. 
 
 is devised to the same persons as trustees, the effect of the charge 
 will often be to enlarge the estate of the trustees, and so to 
 extend the subject of the charge. (See ante, p. 152.) Thus if, 
 the executors being directed to pay debts, real estate be devised 
 to them in trust to pay the rents to A. for life, and after his 
 death in trust for B. indefinitely, the executors will take the legal 
 fee simple by force of the charge, and not an estate for the life 
 *2851 °^ ^' °^^^ (Spence v. Spence, 12 C. B. K S. *109, E. C. L. 
 -" R. vol. 104) ; and thus B. will (even in a will before 1838) 
 take an equitable fee simple by the rule in Challenger v. Shephard. 
 
 Again, if the testator's wife is made executrix, and directed to 
 pay debts, and real estate is devised to her, with a direction that 
 she should receive the rents beneficially for life only, and that 
 after her death the property should go to other persons, it would 
 appear that the wife should take the whole legal fee by force of 
 the charge (Finch v. Hattersley, 3 Russ. 345, n.); though in 
 Cook V. Dawson, 29 B. 123, on app. 3 De. G. F. & J. 127, this 
 construction seems not to have been adopted. 
 
 In Creaton v. Creaton, 3 Sm. & Gr. 386, it was held that a 
 mere general direction to pay debts, the trustees being also execu- 
 tors, had the same effect of vesting in them the entire legal fee : 
 but qu. as to this case. 
 
 Devise to one of several executors, Sfc. — ^But if there are several 
 executors, a direction to the executors to pay debts does not 
 charge lands devised to one of them only. (Warren v. Davies, 2 
 My. & K. 49.) 
 
 Again, in Symons v. James, 2 Y. & C. .C. C. 301), where the 
 executors were to pay debts, and the real estate was devised to 
 trustees (who were not the executors) upon trust as to a small 
 portion only for the two persons who were executors, it was held 
 that the debts were not charged on the portion devised in trust 
 for the executors beneficially. 
 
 So in Wasse v. Heslington, 3 My. & K. 495, where the bulk 
 of the real estate was devised to one only of the executors, and 
 a small portion was devised to the executors jointly in trust for 
 other persons, it was held that the latter portion was not charged : 
 but qu. how far this case and Braithwaite v. Britain, 1 Keen 206, 
 are consistent with the rule as established by Henvell v. Whitaker. 
 
DIEECTION TO PAY LEaACIES, 285 
 
 But where the bulk of the real estate was devised to the -widow, 
 the sole executrix, absolutely, and a small part was devised to her 
 for life only, with remainder over, it was held that the whole 
 interest taken by her *under the will (including the part r^oafi 
 given for life only) was subject to the charge. (Harris v. 
 Watkins, Kay 438.) 
 
 In Cloudsley v. Pelham, 1 Vern. 411, lands devised to the sole 
 executor in tail, he being directed to pay debts, were held to be 
 charged. 
 
 A direction that the debts shall be paid by the executors may 
 have the effect of charging the? real estate, though not expressly 
 devised to them, as if the testator direct his debts to be paid by 
 his executors out of his estate, i. e., real and personal estate. 
 And if the testator, after directing his debts to be paid by his 
 executors, devises the residue of his real, or real and personal, 
 estate, it may perhaps be held that, upon the principle established 
 by Greville v. Browne (see post), with respect to legacies, the 
 debts are charged on the real estate by force of the word " resi- 
 due." (Dowling V. Hudson, 17 B. 248 ; see Harris v. Watkins, 
 Kay 438.) 
 
 Direction to executors to pay legacies. — In Preston v. Preston, 
 2 Jur. N. S. 1040, it was held by Stuart, V.-C, following an old 
 case of Alcock v. Sparhawk, 2 Vern. 228, that the doctrine of 
 Henvell v. Whitaker applied to directions to pay legacies, so that 
 a direction to the executors to pay legacies would charge the 
 legacies on all the real estate devised to them either beneficially 
 or in trust for other persons. But this doctrine is directly opposed 
 to Parker v. Fearnley, 2 S. & Stu. 592 : and in the cases adduced 
 in support of it, except Alcock v. Sparhawk, the charge of lega- 
 cies on the real estate is referable to the rule in Greville v. Browne, 
 viz., where the gift of legacies is followed by a gift of the residue 
 of the real and personal estate. 
 
 Exoneration of Personalty. 
 The personal estate being the primary and natural fund for 
 payment of debts, and the real estate having formerly not, in the 
 
286 EXONERATION OF PERSONALTY. 
 
 absence of a charge, been liable to the claims of simple contract 
 
 * 
 
 287] 
 
 creditors, it became the *established rule to construe pro- 
 
 visions for payment of debts out of the real estate as in- 
 tended only to provide an auxiliary fund, and not to disturb the 
 order of legal liability ; and it is a rule of construction that — 
 
 Rule. " The charging the real estate ever so anx- 
 iously for payment of debts is not of itself sufficient to 
 exempt the personal estate." (Tait v. Lord Northwick, 
 4 Ves. 823.) In order that the personal estate may he 
 exonerated, the intention must appear not only to charge 
 •the real estate, but to discharge the personal. (lb. : Duke 
 of Ancaster v. Mayer, 1 Bro. C. C. 454 ; Watson v. Brick- 
 wood, 9 Ves. 447; Bootle v. BlundeU, 1 Mer. 193.)^ 
 
 And a direction to sell the real estate for payment of 
 debts does not alone furnish the intention of exemption, 
 (lb. : Rhodes v. Rudge, 1 Sim. 79.) 
 
 Thus, a direction by the testator that his real estate shall be 
 sold, and the proceeds applied in payment of debts and legacies 
 (Rhodes v. Rudge, 1 Sim. 79), or of funeral expenses and debts 
 (McCleland v. Shaw, 2 Sch. & Lef. 538), does not make the real 
 estate primarily liable. 
 
 "I take it to be certain, that it is not enough for the testator 
 to have charged his real estate with, or in any manner devoted 
 it to, the payment of his debts ; that the rule of construction is 
 such as aims at finding, not that the real estate is charged, but 
 that the personal estate is discharged. 
 
 " Then it comes to this — upon each particular case, as it arises, 
 the question will be, Does there appear, from the whole testa- 
 mentary disposition taken together, an intention on the part of 
 the testator, so expressed, as to convince a judicial mind that it 
 
 ' Seaver v. Lewis, 14 Mass. 83 ; Tole v. Hardy, 6 Cow. 333 ; Whitehead 
 V. Gibbons, 2 Stockt. 230; Hanna's Appeal, 31 Penn. St. 57; Robards u. 
 Wortham, 2 Dev. 179 ; Palmer v. Armstrong, 2 Id. 268 ; Marsh v. Marsh, 
 10 B. Monr. 360. 
 
SPECIFIC BEQUEST OF PERSONALTY. 287 
 
 was meant, not merely to charge the real estate, but so to charge 
 it as to exempt the personal." (Per Lord Eldon, Bootle v. Blun- 
 dell, 1 Mer. 220, 230.) 
 
 *" It has long been the settled rule of Courts of Equity, ^^288 
 that the direction of the testator to sell or mortgage his 
 real estate for the payment of his debts and legacies, is not alone 
 evidence of the intention of the testator that the personal estate 
 should be exempt from those charges, and amounts only to a 
 declaration that the real estate shall be so applied to the extent 
 in which the personal estate, which by law is the primary fund, 
 shall be insuflScient for those purposes." (Rhodes v. Rudge, 1 
 Sim. 84.) 
 
 Contrary intention. — The intention to exonerate the personal 
 estate may be inferred from a number of minute circumstances, 
 as in Bootle v. Blundell, 1 Mer. 193, where a term of 500 years 
 created to pay debts was held to be the primary fund : one of the 
 indicia being that the costs of administering the real and the 
 personal estate were charged together under the trusts of the 
 term. 
 
 Specific bequest of the personal estate. — But the cases in which 
 the rule has been held to be excluded, and the real estate to be 
 the primary fund, are chiefly where (in addition to the provision 
 made for payment out of the real estate of all those charges which 
 would primarily affect the personal estate) the whole personal 
 estate has been specifically given. 
 
 As in Greene v. Greene, 4 Madd. 148, where the testator gave 
 to his wife, for her sole and absolute use, all his ready money, 
 securities for money, goods, chattels, and other personal estate 
 whatever which he should die possessed of, and devised his real 
 estate to trustees in trust to sell, and out of the proceeds to pay 
 his debts, funeral expenses, and the expenses of proving his will, 
 and to invest the residue in trust for his wife for life, with re- 
 mainder to his children : it was held that the personal estate was 
 exonerated. And the same construction was adopted in the very 
 similar cases of Michell v. Michell, 5 Madd. 69 ; Driver v. Fer- 
 
288 
 
 LEGACIES AND ANNUITIES. 
 
 rand, 1 R. & My. 681 ; and Blount v. Hipkins, T Sim. 43 ; and 
 in Plenty v. West, 16 B. 173.^ 
 
 On the other hand, in Collis v. Rohins, 1 De G. & Sm. 131, 
 *2891 ^^^ personal estate was held not to be exonerated ; *the 
 form of gift being almost precisely equivalent, but with- 
 out provision for the discharge of the funeral and testamentary/ 
 expenses out of the real estate. 
 
 In Lance v. Aglionby, 27 B. 65, the testator gave part of his 
 personal estate to his wife specifically, and devised his real estate 
 in trust for sale and to pay thereout his debts, funeral expenses, 
 and legacies ; by a codicil he gave all his personal estate to his 
 wife. It was held that the bequest by codicil was, like that in 
 the will which it replaced, specific, and that the personal estate 
 was exonerated. 
 
 If the real estate is devised to be sold to pay debts, and the 
 residue after payment of the debts is to be added to the personal 
 estate, the real estate is of course made the primary fund. (Webb 
 V. Jones, 2 Bro. C. C. 60.) 
 
 Trust to pay a particular debt. — The rule with respect to ex- 
 oneration does not apply so strongly to the case of provision 
 being made out of the real estate to pay a particular debt, — as 
 a mortgage debt charged on other portions of the property ; in such 
 case the real estate so pointed out may be the primary fund. 
 (Hancox v. Abbey, 11 Ves. 179 ; Evans v. Cockeram, 1 Coll. 
 428.) 
 
 Liability to legacies and annuities. — Legacies and annuities 
 given generally, without reference to any particular fund, are of 
 course payable out of the personal estate, and the rule with re- 
 spect to exoneration applies to them. 
 
 But where particular legacies or annuities are given with re- 
 ference to the funds or property on which they are charged, the 
 rule is different, and the funds so pointed out may be primarily 
 or solely liable. 
 
 Thus if real estate be directed to be sold, and a sum of money 
 
 1 See also, Gilbertson v. Gilbertson, 34 Beav. 354. 
 
BLENDED REALTY AND PEKSONALTY. 289 
 
 is given out of the proceeds, this is not a general legacy, and the 
 personal estate is not liable. (Hancox v. Abbey, 11 Ves. 179 • 
 Dickin v. Edwards, 4 Hare 273.) ' ' 
 
 So if the testator gives annuities, and proceeds to charge them 
 on particular parts of his real estate, the real estate so charged 
 may be primarily liable (Creed v. Creed, 11 *C1. & F. 491 ; 
 Lomax v. Lomax, 12 B. 290 ; Ion v. Ashton, 28 B. 379); ^*^^^ 
 and so if legacies be given with the like charge. (Jones v. 
 Bruce, 11 Sim. 221 ; Lamphier v. Despard, 2 Dr. & War. 59.) 
 But if an annuity or legacy be given, charged on a particular 
 fund, and the fund in question fails, the personal estate will in 
 general be secondarily liable. (Mann v. Copland, 2 Madd. 
 223).i 
 
 Blended, Meal, and Personal Ustate. 
 
 We may distinguish three gradations in the form of disposi- 
 tion of mixed, real, and personal estate : (1) the two may be 
 given together, but retaining their several qualities : (2) the real 
 estate may be converted, and the proceeds given along with the 
 personal estate : or (3) the real estate may be converted, and the 
 proceeds declared to he part of the personal estate, and disposed 
 of as such. The first form of disposition does not affect the 
 liability to charges; the second places the real and personal 
 estate on an equality, as regards those charges to which both are 
 liable ; the third subjects the real to the charges affecting the 
 personal estate. 
 
 First, as regards the effect of conversion in destroying the 
 primary liability of the personal estate, the rule is that — 
 
 Hoherts v. Walker. 
 Rule. If real estate be directed to be sold, and the 
 personal estate and proceeds of the real estate are given 
 
 ^ In New York it is held that if legacies are expressly charged on land, 
 and the personalty is specifically disposed of, the personalty is exonerated, 
 and the land is primarily liable ; but if the personal estate is not specifi- 
 cally disposed of it is primarily liable : Hoes v. Van Hoeaon, 1 Barb. Ch, 
 400. 
 
 22 
 
290 RULE IN ROBERTS V. WALKER. 
 
 together, subject to charges, — as debts, legacies, or annu- 
 ities, — the real and personal estate are liable to the 
 chsLTges pari passu, in proportion to their respective value. 
 (Roberts v. Walker, 1 R. & My. 751 ; Salt v. Chattaway, 
 3 B. 576 ; see Simmons v. Rose, 6 D. M. G. 411.) 
 
 *But if real and personal estate be given together 
 
 subject to charges, but the real estate is not directed 
 
 to be sold, the personal estate remains primarily liable. 
 
 (Boughton V. Boughton, 1 H. L. C. 406 ; Tench v. Cheese, 
 
 6D.M. G. 453.) 
 
 Thus if the testator gives his real and personal estate to trustees 
 in trust to sell, and out of the moneys to arise to pay his debts, 
 funeral expenses, and legacies, and to hold the residue in trusts 
 for A., and A. dies in the testator's lifetime, the real and personal 
 estate are liable to debts and legacies pari passu, even as between 
 the heir-at-law and next of kin. (Roberts v. Walker.) But if 
 the testator gives his real and personal estate to trustees, in trust 
 out of the rents and profits of the real estate and the dividends 
 and interest of the personal estate to pay certain annuities and 
 legacies, and subject thereto in trust for A., the primary liability 
 of the personal estate remains notwithstanding the charge. 
 (Boughton V. Boughton.) 
 
 "When the testator creates from real estate and personal estate 
 a mixed and general fund, and directs the whole of that fund to 
 be applied for certain stated purposes, he does in effect direct 
 that the real and personal estate which have been converted into 
 that fund shall answer the stated purposes and every of therapro 
 raid, according to their respective values." (Roberts v. Walker, 
 R. & My. 752.) 
 
 " I agree in the opinion expressed by the Lord Chancellor 
 upon that point, that the case is in that respect wholly governed 
 by Boughton v. Boughton, which, as I understand it, estab- 
 lishes this distinction, that where there is a mixed fund of real 
 and personal estate, the mere fact of the real and personal 
 estate being given together does not constitute them a mixed fund 
 
BOUGHTON V. BOUGHTON. 291 
 
 for the payment of debts, legacies, or annuities ; but that in order 
 to eifect that purpose there must be a direction /or the sale of the 
 real estate, so as to throw the two funds *absolutely and i-^i^nQo 
 inevitably together to answer the common purposes of the 
 will." (Per Turner, L. J., Tench v. Cheese, 6 D. M. G. 467.) 
 
 In Falkner v. Grace, 9 Hare 282, the real and personal estate 
 being given in moieties, but with no direction for conversion, and 
 an annuity being directed to be paid out of one moiety of the 
 rents and profits of the real estate and income of the personal 
 estate, the charge was held to be apportionable ; but this case was 
 before the authority of Boughton v. Boughton was well established. 
 
 Roberts v. Walker not confined to express charges. — The doctrine 
 of Roberts v. Walker, that converted real estate given together with 
 personal estate is liable pari passu to charges, appears to apply 
 not only to those charges which are expressly directed to be paid 
 out of the mixed funds, but to all charges to which both funds 
 are liable. Thus if the trust of the personal and proceeds of 
 real estate are to pay legacies, but not debts, nevertheless debts 
 as well as legacies would, it should appear, be i>ajahle pari p)assu 
 out of the funds, whether there be or be not a general charge of 
 debts on the real estate. 
 
 And it would seem that even if no charges were expressly laid 
 on the blended funds, yet all charges to which both funds were 
 impliedly liable would be payable pan passu out of them. Thus 
 if legacies be given simpliciter, and the residue of the real and 
 personal estate be directed to be sold, and the proceeds given to 
 certain persons, the legacies being under the rule in Greville v. 
 Browne (see post) charged on the real estate, would be payable 
 out of the residuary real and personal estate pari passu — whereas, 
 if there was no direction to convert, they would be payable 
 primarily out of the personal estate. 
 
 But the rule in Roberts v. Walker does not extend to create 
 any charge on the real estate, to which it would not be otherwise 
 (although secondarily) liable: thus a *gift of personal ^293 
 estate and converted real estate together would not have 
 
293 KIDNEY V. COUSSMAKEll. 
 
 the effect of making legacies or annuities, given simplieiter, a 
 charge on the real estate.' 
 
 Secondly. If, ho^vever, the proceeds of real estate be thrown 
 into the personal estate, a charge is created : it being the rule 
 that — 
 
 Kidney v. Coussmaker. 
 
 Rule. A direction that real estate shall be sold, and 
 the proceeds form or be considered as part of the residu- 
 ary personal estate of the testator, subjects the real estate 
 to all charges affecting the personal estate. (Kidney v. 
 Coussmaker, 1 Ves. jun. 436; 2 Id. 267; Bright v. 
 Larcher, 3 De G. & J. 148 ; Field v. Peckett, 29 B. 568.) 
 
 And the real and personal estate are liable to the 
 chasges pari passu. (Simmons v. Rose, 6 D. M. G. 413.) 
 
 Thus, if real estate he directed to be sold to answer certain 
 charges, and the surplus proceeds are " to go as the residue," or 
 "be disposed of in the same manner as," or "be added to " the 
 residue oi the personal estate, legacies given simjpliciter are a 
 charge on such surplus proceeds. 
 
 " The testator has directed a fund to be set apart out of the 
 amalgamated assets to answer the annuity, and has directed the 
 fund so set apart to be disposed of as the residuary personal 
 estate had been disposed of. Now, the residuary personal estate 
 had been directed to be applied in payment of the debts, legacies, 
 and funeral and testamentary expenses, and the authorities show 
 that a direction for the disposition of the proceeds of real estate 
 in the same way as the residuary personal estate is as much a 
 direction to apply the fund to the purposes to which the residuary 
 *9Q4i estate is liable, as if those *purposes had been declared 
 with respect to the proceeds themselves. Kidney v. 
 Coussmaker is a case of great importance and authority on this 
 point In that case Lord Loughborough said : ' It is not 
 
 1 Reynolds v. Reynolds, 16 N. Y. 257. 
 
RULE IN (IREVILLE V. BROATXE. 294 
 
 going a great way too far to say, that where real estate is devised 
 to executors, and there is a declaration that they shall sell, and 
 the produce shall go as the residue of the personal estate, that it 
 shall go subject to all that would affect the residue of the per- 
 sonal estate, i. e., to debts.' Therefore, on the authorities as 
 well as on the words of this will, I think that the proceeds of the 
 real estate are charged with the legacies." (Per Turner, L. J., 
 Bright V. Larcher, 3 De G. & J. 156.) 
 
 There can be no doubt that the rule subjects the converted 
 real estate to all charges affecting the personal estate, and not 
 to those only with which it is expressly charged. 
 
 Grevillb v. Browne. 
 
 It has been said that a testator generally intends the legacies 
 given by his will to be a charge on his residuary real estate, as 
 well as on his personal estate : but (in the absence of an express 
 charge) they are held to be so only when the residuary real and 
 personal estate are given together: — it being a rule of con- 
 struction that — 
 
 Rule. If legacies are given generally, and the residue 
 of the real and personal estate is afterwards given in one 
 mass, the legacies are a charge on the residuary real as 
 well as the personal estate. (Greville v. Browne, 7 H. 
 L. C. 689; Wheeler v. Howell, 3 K. & J. 198; Gyett v. 
 WilHams, 2 Jo. & H. 429.)^ 
 
 ^ In accordance with the rule as stated in the test are Hays u. Jackson; 
 6 Mass. 149 ; Wilcox v. Wilcox, 13 Allen 252 ; Gallao;her's Appeal, 4S 
 Penn. St. 122 ; Kobinson v. Mclver, 63' F. G. 649 ; Johnson v. Farrell, 64 
 Id. 268 ; Moore v. Beckwith, 14 Ohio St. 135 ; Lewis v. Darling, 16 How. 10. 
 
 The rule seems to be rejected in Connecticut (Gridley v. Andrews, 8 
 Conn. 1). In New York it is rejected in Lupton v. Lupton, 2 Johns. Ch. 
 614 and Myers v. Eddy, 47 Barb. 264, where it is held that a gift of lega- 
 cies followed simply by a gift of " all the rest and residue, real and per- 
 sonal," will not create a charge on the realty, but if the gift be of the 
 residue "after paying debts and legacies," then the real estate will be 
 charo-ed. But in Church v. Wachter, 42 Barb. 43, a gift of a legacy of $500 
 
294 RULE IN OREVILLE V. BROWNE. 
 
 " For nearly a century and a half this rule has been kid down 
 and acted upon, that if there is a general gift of legacies, and 
 then the testator gives the rest and residue of his property, real 
 ^nqc-] and personal, the legacies *are to come out of the realty. 
 It is considered that the whole is one mass ; that part of 
 that mass is represented by legacies, and that what is afterwards 
 
 followed by a gift of the "balance of my estate," was held to create a 
 charge on the real estate. This case is distinguished from Lupton v. 
 Lupton, on the ground that in the latter case there was a previous devise 
 of real estate. The same position was taken in Suiters v. Johnson, 38 
 Barb. 80. The Court there held that the fact that the testator owned 
 large real estates and but little personalty, was a strong circumstance in 
 favor of presuming an intention to charge the realty, and one which the 
 Court would take into consideration. McLoughlin v. McLoughlin, 30 
 Barb. 459, supports this doctrine, but rests principally on the general 
 nature of the provisions of the will. And see also Tracy v. Tracy, 15 
 Barb. 503. 
 
 Where the whole personal estate is given to the wife absolutely, with 
 the exception of $1000 which are given to her for life, and the whole real 
 estate is given to her for life, and three legacies amounting in all to $3500 
 are given to be paid after the death of the wife, and " the whole remaining 
 part of" the testator's " property " is given to a charity, the legacies are 
 a charge on the real estate : Goddard v. Pomeroy, 36 Barb. 547. 
 
 In New Jersey (Van Winkle v. Van Houten, 2 Green Ch. 172; Dey v. 
 Dey, 4 C. E. Green 137) it is held that a gift of blended realty and per- 
 sonalty as residue after general legacies is not sufficient of itself to 
 create a charge, but may have that effect when combined with other 
 circumstances, such as the addition of the words " not herein otherwise 
 disposed of," the fact that the legacy is a provision for a child, that the 
 residuary devisees are the executors, or that the legacy is in considera- 
 tion of lands of the legatee which the testator has disposed of by his will 
 or otherwise. 
 
 And likewise in South Carolina it is held that such a residuary clause 
 is not of itself sufficient to charge the real estate : Laurens v. Read, 14 
 Rich. Eq. 245. 
 
 The rule is in effect adopted in North Carolina, but the statement of it 
 is somewhat modified. It is not that the legacies are a charge on the 
 lands devised ; but that the legacies must first be taken out in order to 
 determine what is devised or bequeathed by the residuary clause. There- 
 fore if at the testator's death the personal property is sufficient to pay 
 legacies, but before the estate is settled a loss occurs by which it becomes 
 insufficient, it is the loss of the legatees : Johnson v. Farrell, 64 N. C. 266, 
 
LEGACIES CHARGED ON REAL ESTATE. 295 
 
 given, is given minus what has been before given, and therefore 
 given subject to the prior gift." (Per Campbell, C, 7 H. L. C. 
 697.) 
 
 "But for the preference shown to the heir, it would be clear 
 to common sense that if a testator gives certain legacies, and 
 then gives the remainder of his real and personal estate, he must 
 contemplate the payment of these previous gifts before the rest 
 of his estate is disposed of." (Gyett v. Williams, 2 Jo. & H 
 438.) 
 
 ^ It is not, of course, essential that the real estate should be 
 directed to be sold ; nor is it essential (as has been sometimes 
 suggested) that the gift of the residue should be -to the executor 
 or executors : it is sufficient that the gift of the real estate should 
 be residuary, and that the real and personal estate should be 
 comprised in one gift, whether to trustees or to persons taking 
 beneficially. A gift of the residue of the testator's " estate" is 
 of course within the rule. 
 
 But if the residuary real estate were given separately from the 
 personal estate, although to the same person, it does not appear 
 that the legacies would be a charge on the real estate. 
 
 Previous devise of real estate. — It appears to be settled that 
 the rule in Grreville v. Browne applies, although there be a spe- 
 cific devise of part of the real estate intervening between the 
 gift of the legacies and the residuary clause. (Francis v. Ole- 
 mow, Kay 435 ; Wheeler v. Howell, 3 K. & J. 198 ; see Gre- 
 ville V. Browne, 7 H. L. C. 700, 705.) " I had some doubts 
 whether, where real estates had actually been previously devised, 
 so that the term ' residue of real estate' was strictly applicable to 
 what was subsequently" {qw. previously) "given, a charge of the 
 legacies could be effectively made by the residuary form only of 
 the devise. I think, however, that Bench v. Biles, 4 Madd. 187, 
 seems to have *gone to that length ; and I am disposed 
 to follow that authority." (Francis v. Clemow, Kay 437.) L 
 " In reading a devise of real estate to one person and of personal 
 legacies to another, and of the rest and residue of the real and 
 personal property to a third, we may see that there might be a 
 
296 CONRON V. CONRON. 
 
 mode of interpreting it reddendo singula singulis . . . . ; but 
 that is not the natural meaning of the words." (Per Lord 
 Cranworth, 7 H. L. C. 700.)' 
 
 Contrary intention. — But the rule does not extend to charge 
 on the real estate sums which are not given generally as legacies, 
 but as payments directed to be made out of a fund derived ex- 
 clusively from personal estate. (Gyett v. Williams, 2 Jo. & H. 
 429.) 
 
 Oonron v. Oonron. 
 
 While, however, the disposition of the Courts has been to sub- 
 ject residuary real estate to general legacies, the course has also 
 been to relieve specifically devised estates from the efi"ect even of 
 an express charge ; and it has been established as a rule of con- 
 struction that — 
 
 Rule. A charge of legacies on the real estate, or all 
 the real estate, of the testator, does not, prima facie, 
 charge lands specifically devised. (Spong v. Spong, 3 
 Bligh N. S. 84; Conron v. Conron, 7 H. L. C. 168.) 
 
 " The true rule which I consider to be deducible from the case of 
 Spong V. Spong is, that a mere charge of legacies on the real 
 and personal estate (and 'on all the real and personal estate' 
 must mean exactly the same thing) does not of itself create a 
 charge on any specific devise or bequest. I think that the rule 
 is a very reasonable one, and is likely to be in general con- 
 formable to the intentions of testators. When any specific thing 
 is given, it must be in general understood that the devisee 
 
 *is meant to take it in its integrity The question 
 
 -^ must always be one of intention, but the rule is, that the 
 presumption is against an intention to charge lands specifically 
 devised, and that a mere charge ' on all my lands' is not sufficient 
 
 ' Moore v. Beokwith, 14 Ohio £t 135 ; and so Hassanclever v. Tucker, 2 
 Binn. 525 ; but see Gallagher's Appeal, 48 Penn. St. 123 : and see also 
 Paxson V. P«tts, 2 Green Ch. 322. 
 
SPECIFIC DEVISES NOT CHARGED. 297 
 
 to rebut that presumption." (Per Lord Cranworth, Conron v. 
 Conron, 7 H. L. C. 190.) 
 
 In Conron v. Conron, the words were " I charge and encum- 
 ber all my estates of every description, both real and personal, 
 with the following legacies, viz.," &c., and the executors and lega- 
 tees were empowered to distrain on any part of the testator's es- 
 tate and property of every description for the interest on the 
 legacies i: — but it was held that estates specifically devised were 
 not charged. 
 
 If the specific devise failed, so that the lands fell into the resi- 
 due, they would of course be charged. 
 
 Exception. — But it has been held that if the testator charges 
 his real estate with debts and legacies, inasmuch as the debts are 
 a charge on lands specifically devised, the rule does not apply, 
 and the legacies as well as the debts are a charge on specific de- 
 vises. (Maskell v. Farrington, I N. R. 37.) 
 
•=298] ^CHAPTER XXI. 
 
 LEGACIES. 
 
 Annuities and Legacies. 
 
 Rule. The term " legacies " prima, facie comprehends 
 annuities : and " legatee " includes an annuitant. (Sibley 
 V. Perry, 7 Yes. 522 ; Bromley v. Wright, 7 Hare 334 ; 
 Heath v. Weston, 3 D. M. G. 601.)^ 
 
 Thus if legacies and annuities are given simpliciter, and 
 real estate is afterwards devised in trust to pay debts and 
 legacies, the annuities are charged on the real estate. 
 (Heath v. Weston, 3 D. M. G. 601.) 
 
 So if the residue is directed to be divided among the legatees 
 in proportion to the amount of their respective legacies, annui- 
 tants are, primd facie, entitled to share in the residue. (Bromley 
 V. Wright, 7 Hare 334; Si,bley v. Perry, 7 Ves. 522.) And 
 ■where the testator directed all his legatees to contribute one per 
 cent, on their legacies for the benefit of Mrs. W. and her family, 
 annuitants (and also the residuary legatee) -were held bound to 
 contribute. (Ward v. Grey, 26 B. 485.) 
 
 "The ■word 'legacies' is a proper •word to designate legacies 
 given in the shape of annuities as "well as those given in the shape 
 of a bequest of a sum payable at once. That being the proper 
 meaning of the word, it lies on those who say that it is not to be 
 *9g9^] so construed to *show, from the context of the will that 
 thetestatrix used it in another sense." (Per Knight Bruce, 
 L. J., 6 D. M. G. 606.) 
 
 ' The same meaning will be given to the words " pecuniary legacies," 
 unless upon the whole will it appears that the testator used the words in 
 their popular sense as meaning legacies in contradistinction to annuities. 
 Gaskin v. Eogers, L. R. 2 Eq. 291. 
 
chancey's case. 299 
 
 And notwithstanding Nannock v. Horton, 7 Ves. 391, it ap- 
 pears from Heath v. Weston, 3 D. M. G. 601, that the fact that 
 the testator sometimes speaks of " legacies and annuities " is 
 not alone sufficient to show that the term "legacies," when used 
 alone, does not comprehend annuities. 
 
 But annuities not given simpUciter, but as rent charges paya- 
 ble solely or primarily out of the real estate, do not fall under 
 the term "legacies." (Shipperdson v. Tower, 1 Y. & C. C. C. 
 441.) 
 
 Chancey's Case. 
 If a testator, being at the date of the will indebted to A. in (e. 
 g.) the sum of lOOZ., secured by bond, bequeaths to A. a legacy 
 of 100?. or of 500?. absolutely, a "presumption" of law arises 
 that the debt was intended to be satisfied by the legacy ;^ which, 
 however, being only a "presumption" and not a rule of con- 
 struction, may be rebutted by parol evidence (Wallace v. Pom- 
 fret, 11 Yes. 547).^ It may also be negatived by construction 
 upon the words of the will : for it is a rule that — 
 
 ^ The rule that a legacy of a sum equal to or greater than the amount 
 of debt shall be considered as a satisfaction of the debt has met " with 
 marks of disapprobation, and a disposition to restrain its operation, where, 
 from circumstances to be collected from the will, it might be inferred that 
 the testator had a different intention :" Strong v. Williams, 12 Mass. 392 ; 
 and in Smith v. Smith, 1 Allen 130, Chapman, J., says : " If nothing 
 were said on the subject, the modern rule of construction would be that a 
 bequest is to be regarded as a bounty and not as a payment of a debt.'' 
 
 In Williams v. Crary, 4 Wend. 449, Savage, Ch. J. says : " There are so 
 many exceptions that the rule on this subject seems to be that a legacy 
 shall not be deemed a satisfaction of a debt, unless it appears to have been 
 the intention of the testator that it should so operate." And see also Clark 
 V. Bogardus, 12 Wend. 68 ; Mulheran v. Gillespie, 12 Id. 351 ; Eaton v. 
 Benton, 2 Hill 579. 
 
 In Pennsylvania the doetrine of satisfaction is carried out in Wesco's 
 Appeal, 52 Penn. St. 195, but it is not looked upon with favor. The 
 Courts will lay hold of slight circumstances to get rid of the rule : Horner 
 V. McGaughey, 62 Penn. St. 191 ; and see also to the same effect Edelen v. 
 Dent, 2 Gill & Johns. 191, and Gilliam v. Brown, 43 Miss. 653. 
 
 The rule is reversed by statute in Delaware. 
 
 2 Fetch V. Peckham, 16 Vt. 157; Zeigler v. Eckert, 6 Penn. St. 13; Gil- 
 liam V. Brown, 43 Miss. 652. 
 
299 SATISFACTION OF DEBT BY LEGACY. 
 
 Rule. A direction by the testator that his debts and 
 legacies should be paid, is sufficient to rebut the presump- 
 tion that a debt is satisfied by a legacy. (Chancey's Case, 
 1 P. Wms. 408 ; Edmunds v. Low, 2 K. & J. 318 ; Cole 
 V. WiUard, 25 B. 568.)^ ' 
 
 " The testator, by the express words of his will, had devised 
 ' that all his debts and legacies should be paid;' and this 100?. 
 being then a debt, and the 500Z. being a legacy, it was as strong 
 as if he had directed that both the debt and legacy should be 
 paid." (Chancey's Case, 1 P. Wms. 410.) 
 
 *It is immaterial whether the debts and legacies be 
 *3001 . . . 
 
 -" directed to be paid out of a particular fund, or the resi- 
 due be given after payment of debts and legacies, or the execu- 
 tors directed to pay them, &c. 
 
 Direction to pay debts alone. — A direction to pay debts (not 
 debts and legacies) is evidently not so strong an indication of in- 
 tention, and though important in conjunction with other circum- 
 stances (Hales V. Darell, 3 B. 324 ; Rowe v. Eowe, 2 De G. & 
 Sm. 294), is not conclusive. (Edmunds v. Low, 3 K. & J. 318.) 
 
 In Edmunds v. Low, a gift in the will of the residue, after 
 payment of debts and of the legacies thereinbefore given, was 
 held not to rebut the presumption of satisfaction by a legacy 
 afterwards given by codicil. 
 
 On the other hand, in Jefferies v. Michell, 20 B. 15, where 
 the legacy in question was given expressly after payment of 
 debts, the presumption of satisfaction was held to be rebutted. 
 And in Cole v. Willard, 25 B. 568, Romilly, M. E,., was of 
 opinion that a charge of debts, standing alone, was of equal 
 force with a charge of debts and legacies.^ 
 
 1 Strong V. Williams, 12 Mass. 394 ; Fort u. Gooding, 9 Barb. 377 ; Ede- 
 len u. Dent, 2 Gill & Johns. 185; Owens v. Simpson, 5 Rich. Eq. 420; 
 Cloud V. Clinkinbeard, 8 B. Monr. 398. 
 
 In Byrne v. Byrne, 3 S. & R. 61, Yeates, J., doubts whether the pre- 
 sence of a direction to pay debts should affect the question in Pennsyl- 
 vania. 
 
 2 In Cloud V. Clinkinbeard, 8 B. Monr. 398 ; Ford v. Gooding, 9 Barb. 
 
LEGACY OF STOCK NOT SPECIFIC. 300 
 
 Parol evidence not admissible. — The inference against satisfac- 
 tion from a direction to pay debts and legacies being a rule of 
 construction and not a mere presumption, parol evidence is of 
 course not admissible to establish the contrary. (See Lee v. 
 Pain, 4 Hare 216.)i 
 
 Stock Legacy not Specific. 
 A specific legacy has some advantages, as it does not abate 
 vrith pecuniary legacies, and (if to a person in esse, and of a sub- 
 ject producing income), carries the income from the testator's 
 death ; but the risk of failure from the particular subject not 
 being found among the testator's property at his death outweighs 
 these advantages. The Courts consequently lean against con- 
 struing legacies to be specific ; and it is a rule of construction 
 that — 
 
 *K,ULE. A legacy of stock, of whatever denomi- 
 nation, is not primd facie specific, but is a general 
 legacy ; although the testator may have had stock of the 
 description mentioned sufficient to answer the bequest. 
 (Simmons v. Vallance, 4 Bro. C. C. 345 ; Purse v. Snap- 
 lin, 1 Atk. 414 ; Sibley v. Perry, 7 Ves. 523.)^ 
 
 Thus, if the testator having lOOOZ. 3 per cents, or Long An- 
 nuities, bequeaths that sum to A., the gift is not adeemed by the 
 sale of the stock in his lifetime, but operates as a direction 
 to the executor to purchase the stock for A. out of the general 
 
 assets. 
 
 The rule is the same whether the gift be of " lOOOZ. 3 per 
 cents." or of " lOOOZ. in the 3 per cents." (Webster v. Hale, 8 
 Ves. 410.) 
 
 377 ; Owens v. Simpson, 5 Rich. Bq. 420, it waa held to pay debts (only) 
 will take the case out of the rule. 
 ' Owens V. Simpson, 5 Rich. Eq. 405 ; Cloud v. Clinkinbeard, 8 B. 
 
 Monr 398 
 ^ Tifft V. Porter, 4 Seld. 516 ; Davis v. Cain, 1 Ired. Eq. 309 ; McGuire v. 
 
 Evans, Ired. 5 Eq. 269. 
 
301 EEFERENCE TO PARTICULAR STOCK. 
 
 The rule seems to extend to bequests of any description of 
 stocks, shares, &c., usually capable of being brought into the 
 market. Thus in Sleech v. Thorington, 2 Ves. Sen. 560, a be- 
 quest in the form, " I give 400Z. East' India Bonds to A. in trust 
 to pay the interest to B., &c.," was held a general legacy. 
 
 And in Robinson v. Addison, 2 B. 515, where the testator 
 having fifteen and a half canal shares, bequeathed " five and a 
 half shares in the Leeds and Liverpool Canal " to A., five to B., 
 and five to C, the bequests were held not to be specific. It 
 was said (p. 520), "It was further argued that the shares of this 
 canal were so rarely brought to market, that they could not be 
 considered as transferable or purchaseable for money, and could 
 not be considered as gifts of particular things which the execu- 
 tors could purchase out of the assets. It is, however, clear that 
 the testator, if he had meant to give only the shares which he 
 then had, might have designated them as "his;" that the mere 
 circumstance of the testator having at the date of his will a par- 
 ticular property, of equal amount to the bequests of the like pro- 
 perty which he has given without designating it as the same, is 
 not a *ground upon which the Court can conclude that 
 J the legacies are specific ; . . . and the shares, though 
 not frequently sold, are, nevertheless, occasionally bought and 
 sold, and may be had for money." 
 
 In Jeffreys v. Jeffreys, 3 Atk. 120, a gift of 2702Z. 3s. bank 
 stock, the testator having that particular sum and no more, was 
 held specific. But qu. whether even this exact coincidence in 
 amount be a reason for not construing the bequest as a general 
 legacy ; the possession of the particular sum may be the motive 
 for fixing the amount of the bequest, but yet the testator may 
 intend to give it in the form of a general legacy. 
 
 Reference to particular stock, Sfc. — But words of description 
 or reference to particular property belonging to the testator ex- 
 clude the rule. 
 
 Thus, the word " my" is sufiicient to render the legacy specific : 
 as if the bequest be of "my stock in the 3 per cents.," "my 
 shares," "stock belonging to me," &c. So if the legacy be of 
 
MONEY LEGACY OUT OF STOCK. §02 
 
 " lOOOZ. 3 per cent. Consols, or in whatever stock the same 
 shall be found invested." (Hosking v. Nicholls, 1 Y. & C. C. 
 C. 478.) So if the legacy be of lOOOZ. Consols to he sold for the 
 benefit of the legatee (Asht6n v. Ashton, 3 P. W. 384), it is to 
 be implied that the gift is of particular stock, and not of stock to 
 be purchased for him.' 
 
 Bireation to transfer.— Rxit a direction to the executor to 
 transfer the sum of lOOOZ. 3 per cent. Consols to A. within three 
 months from the testator's decease is not a specific legacy. (Sib- 
 ley V. Perry, 7 Ves. 522.) " I have no doubt in private, that 
 directing a transfer of stock he means to give what he has ; but 
 there is no case deciding that it is specific, without something 
 marking the specific thing, the very corpus." (Per Lord Eldon 
 Id. p. 528.) 
 
 In Townsend v. Martin, 7 Hare 471, a direction, following be- 
 quests of sums of stock generally, that if the testator should not 
 at his death have sufficient stock standing in Ms name to answer 
 the legacies, the executors should out of the residuary estate pur- 
 chase sufficient to *make up the deficiency, was held to r.tqna 
 render the bequests specific.^ ^ 
 
 Mone^ legacy out of stock. — A bequest of " lOOOZ. Consols 
 out of my 3 per cent. Consols " (Mullins v. Smith, 1 Dr. & S. 
 204), or of " lOOOZ. part of my 3 per cent. Consols " (Kirby v. 
 Potter, 4 Ves. 750), is a legacy of so much stock out of stock, 
 and therefore specific. 
 
 But a bequest of "1000?. out of my 3 per cent. Consols" is 
 construed as a legacy of 1000?. sterling, and is not specific but 
 demonstrative. (Kirby v. Potter, 4 Ves. 748.) " Whenever 
 there is a legacy of a given sum, there must be positive proof that 
 it does not mean sterling money, in order to make it specific." 
 (lb. p. 751.) 
 
 ^ Brainard v. Cowdrey, 16 Conn. 1 ; M'Guire v. Evans, 5 Ired. Eq. 272. 
 So a bequest of " $1000 standing in my name," Ludlam's Estate, 13 Penn. 
 St. 189, and a bequest of " all my 250 shares of stock which I hold in the 
 Union Bank" : Blackstone v. Blaokstone, 3 Watts 335. 
 
 ■' M'Guire v. Evans, 5 Ired. Eq. 269. 
 
303 REPEATED LEGACIES. 
 
 Repeated legacies. 
 
 It is not possible to determine beforehand when, a legacy being 
 given by codicil to a person taking a prior legacy by the will or 
 another codicil, the latter gift is a mere repetition of or substitu- 
 tion for the former, and when an additional benefit is intended. 
 But in the bare case of a repetition totidem verbis of a legacy, the 
 rule is (subject to indications of a contrary intention) that — 
 
 Rule. If a legacy of the same amount to the same 
 person be repeated in two separate testamentary instru- 
 ments, as a will and codicil, primd facie the legatee is 
 entitled to both legacies. (Hooly v. Hatton, see Ridges 
 V. Morrison, 1 Bro. C. C. 389 ; Hurst v. Beach, 5 Madd. 
 358.)^ 
 
 But if the repetition occurs in one and the same testa- 
 mentary instrument, ^rimd facie the legatee is entitled to 
 one legacy only. (Garth v. Meyrick, 1 Bro. C. C. 30 ; 
 Holford V. Wood, 4 Ves. 75 ; Manning v. Thesiger, 3 My. 
 & K. 29.)^ 
 
 *Thus in Holford v. Wood, 4 Ves. 75, amongst a series 
 *304 . ' o 
 
 -^ of legacies and annuities was the following : — " To Thomas 
 
 Newman I give an annuity of 30?. for his lifepayable quarterly" : — 
 
 and further on in the will, " I give to Thomas Newman the butler 
 
 30?. a-year for his life": and one annuity only was held to be 
 
 intended. But if one of the two gifts had been by will and the 
 
 other by codicil, the legatee would have taken two annuities of 
 
 the amount specified. 
 
 A legacy of a different amount by a separate instrument is, of 
 
 course, primd facie cumulative, and not a mere substitution. 
 
 (Johnstone v. Lord Harrowby, 1 De G. F. & J. 183.) 
 
 Legacies by two instruments substitutional. — But it may often 
 
 1 Dewitt V. Yates, 10 Johns. 156. 
 
 ^ Dewitt V. Yates, 10 Johns. 156 ; Jones v. Creveling, 4 Hai-r. 128 ; Creve- 
 ling I'. Jones, 1 Zabr. 573. 
 
SERIES OP LEGACIES REPEATED. §04 
 
 be the case that of two legacies given by diflferent instruments, 
 the latter, whether equal to the former or of greater amount, is 
 a repetition of or substitution for the former.' 
 
 As in Russell v. Dickson, 4 H. L. 0. 293, where the testator 
 bequeathed to his wife by will 2000Z., then by codicil 3000^.," and 
 lastly by another codicil said, " not having time to alter my will 
 I charge my whole estate in her favor with the sum of 20,000?.," 
 it was held that the latter bequest was a substitution for both the 
 former legacies. 
 
 So where the amounts are equal, but some circumstances are 
 altered :— as in Homing v. Clutterbuck, 1 Bligh N. S. 479, H. 
 L., where the testator gave 5001. per annum to his wife by will, 
 and by codicil gave to trustees for her so much as would purchase 
 500?. per annum in Long Annuities, it was held to be a mere 
 alteration in the mode of provision, and that one annuity only 
 was intended. So in Allen v. Callow, 3 Ves. 289, where the gift 
 by will was of 500?. to the children of A., subject to A.'s life 
 interest, and, A. having died, the codicil gave 500?. to her sur- 
 viving children, the latter bequest was held to be a mere substi- 
 tution on account of the altered state of the family. See also 
 Lee V. Pain, 4 Hare 201. 
 
 * Repetition of a series of legacies. — Again, where a r^onr 
 series of legacies given by one testamentary instrument 
 is repeated in another with slight variations or additions, the 
 similarity of the two sets of gifts may show that the second 
 instrument, as a whole, is intended as a substitution for, and not 
 an addition to, the first : of which case examples are — Mog- 
 gridge v. Thackwell, 1 Ves. jun. 472 ; Coote v. Boyd, 2 Bro. C. 
 C. 521 ; and Fraser v. Byng, 1 R. & My. 90.^ 
 
 On the other hand, the context may show that two legacies of 
 
 ' In Tuckey v. Henderson, 33 Beav. 174, Komilly, M. K. thought the 
 fact that the second instrument was another will, though not revoking the 
 first, a circumstance of some weight in favor of the legacies being substitu- 
 tional. " This differs from the case of a codicil, a codicil is professedly an 
 addition to the will, but this is professedly a substitution for it." Id. p. 
 276, 
 
 ^ See also Tuckey v. Henderson, 33 Bear. 174. 
 23 
 
805 RULE IN LEACROFT V. MAYNAED. 
 
 the same amount in the same instrument are cumulative, and not 
 substitutional, as if an additional reason be assigned for the 
 second legacy. 
 
 Double legacies with the same motive. — If a legacy of the 
 same amount is given to the same person in each of two testa- 
 mentary instruments, and the same motive is assigned for each, 
 a " presumption" of law is raised that it is a mere repetition, and 
 that one legacy only Tvas intended (Hurst v. Beach, 5 Madd. 
 358) ; but this being a mere presumption, and not a rule of con- 
 struction, may be rebutted by parol evidence of intention. (lb.) 
 
 But the fact of the legatee being described in each case as 
 "my servant," does not express a motive, but is descriptive 
 only. (Roch v. Callen, 6 Hare 531.) 
 
 Parol evidence. — The rule that legacies by two different instru- 
 ments zxQ primd facie cumulative, is a rule of construction, and 
 not a mere "presumption," and parol evidence is not admissible 
 to show that one legacy only was intended. (Hurst v. Beach, 5 
 Madd. 851.) 
 
 Whether parol evidence be admissible to show that legacies 
 repeated totidem verbis in the same instrument were intended to 
 be cumulative, qu. Originally the inference in this case against 
 a double legacy was a " presumption" only, adopted from the 
 Civil Law (see Hooley v. Hatton, 1 Bro. C. C. 390, n.), and 
 therefore capable of being rebutted by parol evidence. But per- 
 haps the question would now be regarded as one of construction 
 simply upon the language of the instrument, and therefore not 
 admitting of parol evidence. 
 
 *306] *Leacroft v. Maynaed. 
 
 It is a rule of construction, which is applied whether the result 
 is or is not advantageous to the legatee, that — 
 
 Rule. An added or substituted legacy is, prima facie, 
 payable out of the same funds and subject to the same 
 incidents and conditions as the original legacy. (Lea- 
 
ADDED AND SUBSTITOTED LEGACIES. 306 
 
 croft V. Maynard, 3 Bro. C. C. 232 ; Crowder v. Clowes, 
 2 Ves. jun. 449 ; Johnson v. Lord Harrowby, Johns 
 425, 1 De a. F. & J. 183.)^ 
 
 Thus, if the testator by will gives to A. 500^., free of 
 legacy duty, and by a codicil gives to A. 1000/. in lieu of, 
 or in addition to, the legacy given by the will, the be- 
 quest made by the codicil is also free of legacy duty. 
 (Cooper V. Day, 3 Mer. 154; Earl of Shaftesbury v. 
 Duke of Marlborough, 7 Sim. 237 ; Fisher v. Brierley, 
 30 B. 267.) 
 
 " Where a legacy is given expressly in addition to, or in sub- 
 stitution for, one previously given, it is subject to the same inci- 
 dents and conditions as attach to the original legacy. The 
 ground of this is, that it is assumed that where such words as 
 'in lieu of or 'in addition to' are used, the will is intended to 
 stand mutatis mutandis, merely adding or substituting another 
 amount." (Johnson v. Lord Harrowby, Johns. 427.) 
 
 A gift of a "further" sum is of course equivalent to an addi- 
 tional sum. 
 
 It is immaterial whether the incident in question is attached to 
 the original legacy particularly, or by a general clause : thus a 
 direction that all legacies given by the will shall be free of legacy 
 duty, applies to an additional legacy given by codicil. (Earl of 
 Shaftesbury v. Duke of Marlborough, 7 Sim. 237.) 
 
 Grift to separate use. — The rule applies to the incident of sep- 
 arate use : thus if a legacy be given by will to the *sepa- pgQj 
 rate use of a married woman, and by codicil a further 
 sum is given her ui addition to the legacy given by will, she 
 takes the legacy given by codicil for her separate use. (Day v. 
 Croft, 4 B. 561 ; Warwick v. Hawkins, 5 De G. & Sm. 481.) 
 
 Gift out of particular funds.— So if a legacy be given to a 
 charity, with a direction that it shall be paid out of the pure per- 
 
 > Tilden V. Tilden, 13 Gray 108 ; Pike v. Walley, 15 Gray 346 ; Condiot 
 V. King, 2 Beas. 381 ; Cordes v. Palmer, 6 Rich. Eq. 207. 
 
307 ADDED AND SUBSTITUTED LEGACIES. 
 
 sonalty, and by codicil a further or additional legacy is given to 
 the charity, the latter is also payable out of the pure personalty, 
 though not expressly so given. (Johnson v. Lord Harrowby, 
 1 De G. F. & J. 183'.) 
 
 In Johnson v. Lord Harrowby, 1 De Gr. F. & J. 183, the 
 testator by will gave out of his pure personalty the sum of 500Z. 
 to the Literary Association, &c., of Poland, free of legacy duty. 
 By codicil he gave to the Literary Association, &c., of Poland 
 1000?. It was held (but against the decision of Wood, V.-C. 
 (Johns. 425) ), that the bequest by codicil, though not expressed 
 to be in addition to the prior gift, was also payable out of the 
 pure personalty, and free of legacy duty. 
 
 Again, if a legacy were given charged on real estate, an addi- 
 tional or substituted legacy would by implication be also charged. 
 In Leacroft v. Maynard, 3 Bro. C. 0. 232, the testator by will 
 gave to a charity lOOOZ. out of the proceeds of real estate : by 
 codicil he revoked the bequest and instead thereof gave to the 
 charity 500Z. : it was held, that the latter gift was payable out of 
 the same funds as the former, and therefore void. 
 
 Gift subject to he divested. — If the original legacy be not abso- 
 lute, but contingent or defeasible, as, to the legatee if he attains 
 a given age, it appears that the rule will apply, and a legacy 
 given expressly in addition to or substitution for the former legacy 
 will be primd facie subject to the same conditions. Thus in 
 Crowder v. Clowes, 2 Ves. jun. 449, a legacy of 1000?. was given 
 by will to A. to be paid on marriage, the interest to be paid her 
 until marriage, and on her death unmarried the legacy to fall 
 into the residue: by codicil the testator gave to A. a further sum 
 of 200?. in addition to the legacy given by *the will. It 
 -* was considered that the additional legacy was defeasible 
 on the death of the legatee unmarried. 
 
 But the rule does not apply so as to give to other persons an 
 interest in the additional or substituted legacy, who may be en- 
 titled under subsequent limitations of the prior legacy. (Re 
 More's Trusts, 10 Hare 171; Mann v. Fuller, Kay 624.) 
 " Where there is a gift by will to A. for life, and after his decease 
 to B., and then another gift to A. in addition to what was before 
 
CONTRARY INTENTION. 308 
 
 given, there is no authority for carrying on the series of limita- 
 tions to the latter gift, so as to convert it into a gift to A. for 
 life, and then to the party who was named in the former gift to 
 take after A.' s death If the former gift were abso- 
 lute and free of legacy duty, the additional gift has been held to 
 have all the same incidents ; so if the former gift is to be lost on 
 a certain event, the additional gift is to be defeated on the same 
 conditions. In no case has it been held, that the latter gift is to 
 go to the parties entitled under thQ subsequent limitations of the 
 former gift." (Per Wood, V.-C, Kay 626.) 
 
 Contrary intention. — The rule appears to be subject to an ex- 
 ception in the case of substituted legacies, viz. : — where an inten- 
 tion appears to revoke the prior disposition in toto, not merely 
 altering the amount given, but sweeping away the original legacy 
 with its incidents and conditions, and substituting an entirely new 
 gift, although expressly given in lieu of the former. As in 
 Alexander v. Alexander, 5 B. 518, where the residue was by will 
 given to trustees in trust as to one-third for A., contingent on 
 his attaining the age of twenty-five, or marrying : and by codicil 
 the testator revoked so much of his said will as related to the 
 distribution of the residue of his estate, and bequeathed to A. 
 20,000Z. in lieu of his one-third share thereof. It was held that 
 A. took the latter sum absolutely. " The testator has revoked 
 so much of his will as relates to the distribution of the residue of 
 his estate. The whole of this distribution is therefore gone. 
 He says, I have given the residue subject to a contingency : 
 *I revoke the gift entirely, and in lieu I give an absolute r^gQg 
 interest in 20,000Z." (lb. 4 B. 520.) 
 
 But the use of the words "I revoke, &c." the prior gift, does 
 not prevent the substituted legacy from having the incidents of 
 the original one. (Cooper v. Day, 3 Mer. 154 ; Fisher v. Brier- 
 ley, 30 B. 267.) 
 
 In Chatteris v. Young, 2 Russ. 183, the testator by will gave 
 a legacy to his daughter, and by codicil, reciting her death, 
 instead onh& legacies bequeathed to her, gave a legacy to her Ms- 
 hand. It was held, that the latter was not a substituted legacy. 
 
309 GIFT OP A CLEAR YEARLY SUM. 
 
 SO as to come within the benefit of a clause in the will directing 
 the legacies thereby given to be free of legacy duty.^ 
 
 Bequest of a ^^ clear" yearly sum. — A bequest of " an annuity 
 or clear yearly sum," or of a " clear annuity 'or yearly sum," of 
 lOOZ. to A., is a gift of that amount free of legacy duty. 
 (Haynes v. Haynes, 3 D. M. G. 590; Pridie v. Field, 19 
 B. 497.)^ 
 
 But a bequest of so much as will produce a " clear yearly sum" 
 or " clear annuity" of 100?. to trustees in trust for several per- 
 sons in succession, as to A. for life, with remainder to her chil- 
 dren at twenty-one, has been held not free of duty ; as the rela- 
 tionship of the persons taking in succession might be different, 
 and, therefore, it could not be ascertained at once what would be 
 the total amount of duty payable. (Sanders v. Kiddell, 7 Sim. 
 536 ; Pridie v. Field, 19 B. 497.) 
 
 Legacy to Executor. 
 
 It is a rule of construction, which however is less strictly 
 observed now than formerly, that — 
 
 Rule. A legacy to a person appointed executor is 
 frimA facie conditional on his accepting the office. (Read 
 V. Devaynes, 2 Cox 285 ; Stackpoole v. Howell, 13 Ves. 
 417.)^ 
 
 *The rule applies both to general and specific 
 legacies ; but not to a bequest of the residue. 
 (Griffiths V. Pruen, 11 Sim. 202.) 
 
 1 The rule will not be applied where it would destroy the equality of the 
 distribution among the legatees, which was the leading purpose of the tes- 
 tator : Pike ». Walley, 15 Gray 346. 
 
 ■" Re Cole's Will, L. R. 8 Eq. 271. 
 
 ' In Bellingslea v. Moore, 14 Ga. 373, it is held that although the fact 
 that the law of this country allows commissions to an executor greatly 
 weakens the force of the legal presumption which is the foundation qf this 
 ' rule, yet it is not so repugnant to the rule as to repeal it. 
 
LEGACY TO EXECUTOR. 3|:q 
 
 The rule applies although the legacy be not given to the per- 
 son as executor but by name and description (Stackpoole .. 
 Howell, 13 Ves. 417) ; and although equal legacies be given to 
 the executors, and to other persons not executors. (Calvert v 
 Sebbon, 4 B. 222.) And if several legacies be given prirndfade 
 It applies to all of them. (Cockerell v. Barber,- 2 Russ. 585.) 
 
 Contrary intention.-Bni if any expressions can be found im- 
 plying an intention to benefit the person, independently of the 
 office imposed on him, the rule has been (in the latter cases) held 
 to be excluded. " The old rules on these matters were very well 
 settled ; one rule was, if A. B. was named executor and he had 
 a legacy given to him, he should not take the legacy, if he did 
 
 not take the office Now it is said that we are to 
 
 look to the whole will, in order to come to a conclusion as to the 
 effect of the gift, and that it is by comparison of the mode in 
 which the testator has given to this executor, with the mode in 
 which he has given to others, and with the expressions which he 
 applies to him and them respectively, that we are to determine 
 whether the gift to the executor in this case shall fall within the 
 rule." (Per Lord Eldon, Cockerell v. Barber, 2 Russ. 599.)' 
 
 Thus, where the legacy was given " to mj friend and partner, 
 J. P." (Cockerell v. Barber, 2 Russ. 585), or "to my friend, 
 J. S., banker's clerk and one of the executors of this my will" 
 (Re Denby, 3 De G. F. & J. 350), the legacy was held not annexed 
 to the office. So where the legacy was given to the executors, as a 
 mark of the testator's respect for them. (Burgess v. Burgess, 1 
 Coll. 367.)^ 
 
 ' In Jewis v. Lawrence, L. R. 8 Eq. 345, the testator devised certain 
 real estate to A. " one of my trustees and executors," and in another 
 clause of the will bequeathed lOOZ. to B. " one of my trustees and execu- 
 tors," and bequeathed his residuary personal estate to A. and B. upon cer- 
 tain trusts, and appointed A. and B. his executors. James, V.-C, held that 
 the inequality in the subject matter of the two gifts was sufficient to rebut 
 the presumption that the legacy to B. was annexed to his office. 
 
 '^ So where a testator gave eaoh of his executors lOOOZ. " as a remem- 
 brance," and called one of them his " friend" : Bubb v. Yelverton, L. R. 
 13 Eq. 131. 
 
310 
 
 ELCOCK V. MAPP. 
 
 And in Dix v. Eeed, 1 S. & Stu. 237, a strong case, where 
 
 the testator gave to his cousin A. 50?., and appointed him a joint 
 
 executor, although legacies of the same amount were given to the 
 
 other executors, the gift to A. was he^d *to be in virtue 
 
 -' of relationship, and not annexed to the office. 
 
 A legacy by codicil to A., " in case my son shall die in his 
 
 present malady," is of course not annexed to the office. (Wildes 
 
 V. Davies, 1 Sm. & G. 4T5.) 
 
 Elcock V. Mapp. 
 
 If a testator appoints executors, but makes no express disposi- 
 tion of the residue of his personal estate, the executors having by 
 law the property vested in them, are entitled to retain the undis- 
 posed of part of it, in the case of persons dying on or before Sep- 
 tember 1, 1830, against the persons entitled under the Statutes 
 of Distributions, and, in the case of persons dying after Septem- 
 ber 1, 1830, against the crown, though not against the persons 
 (if any) entitled under the Statutes :'■ — unless an intention appears 
 to exclude the executors from such beneficial interest. 
 
 But if the personal residue is expressly disposed of upon trusts, 
 which however fail or do not exhaust the property, the case is 
 otherwise. For (1) if the gift is to trustees, who are not the 
 executors, the title of the executors, which is a legal one only, is 
 lost by the property being given away from them : (2) if the gift 
 is to the executors, as such, in trust, an intention is shown that 
 they should not claim beneficially ; for " in the same character in 
 which they take the property, the trusts are imposed upon them " 
 (per Sir W. Grant, 15 Ves. 416) : and (3) although the gift be to 
 the executors nominatim as trustees, and not as executors, it is 
 settled, according to Lord Eldon's opinion in Dawson v. Clark, 
 18 Ves. 247, that the same rule applies. The rule of construc- 
 tion therefore is that — 
 
 Rule. If the residuary personal estate is given to trus- 
 
 „. ^-, tees, and the trustees are also executors, they *can- 
 *3121 
 
 not as executors claim any part of the residue bene- 
 
 » By the Act 11 Geo. 4 & 1 Will. 5, c. 40. 
 
EXECUTORS APPOINTED TRUSTEES. 312 
 
 ficially. (Bishop of Cloyne v. Young, 2 Ves. sen 91 • 
 Elcock V. Mapp, 3 H. L. C. 492 ; 2 PhiU. 793 ; Read v. 
 Stedman, 26 B. 495 ; Dacre v. Patrickson, 1 Dr & Sm 
 
 182.)' 
 
 " The executor claims the property as incident to the office, 
 and as vested in him by virtue of it, in the absence of any inten- 
 tion to the contrary expressed by the testator. But if the testa- 
 tor gives this same property to the same executor, or to any other 
 person, in trust for some purpose (for what purpose is immaterial) 
 other than the beneficial enjoyment by the executor, he thereby 
 shows an intention inconsistent with this incident to the office, 
 and by so doing destroys it. 
 
 But it is contended, that if the property, instead 
 
 of being left to the executors in trust, or to third persons in trust, 
 be left to the executors not as such, but in their own names, upon 
 trusts which fail or do not exhaust the property, that those trus- 
 tees, in their character of executors, are entitled to the residue 
 as incident to their office. I cannot see any principle for this 
 distinction." (Mapp v. Elcock, 2 Phill. 796.) 
 
 A devise to executors, " to and for the uses, intents, and pur- 
 poses following, &c." (Mapp v. Elcock), is of course a devise 
 upon trust. And " the circumstance that the trusts do not exhaust 
 the whole interest, does not affect the fiduciary character with 
 
 ^ See Grasser v. Eckart, 1 Binn. 584. In Barrs v. Fewkes, 2 Hem. & M. 
 60, the gift was of the residue of the real and personal estate to A. " to 
 enable him to carry into effect the purposes of this my will," and A. was 
 appointed executor. Wood, V.-C. held that the expression " to enable him to 
 carry into effect," &c., imported not the motive of the gift merely, but the 
 very object for which the gift was made, and A. therefore took the residue 
 as trustee. 
 
 And in Bird v. Harris, L. K. 9 Eq. 204, where the testator gave all his 
 real and personal estate to two persons not connected with him by relation- 
 ship, "in, for and in consideration of" paying over the yearly rents, &c., 
 to his wife, and appointed them executors of his will, James, V.-C, held 
 that the words " in, for and in consideration of" could have no other con- 
 struction put upon them than that they were equivalent to " for the pur- 
 pose of." 
 
312 PRESUMPTION FROM LEGACY. 
 
 whicli the executor has been invested. It only makes him a trus- 
 tee pro tanto for statutory instead of testamentary objects." (3 
 H. L. 0. 509.y 
 
 If some only of the executors are trustees, or if some trustees 
 only are executors, the rule applies ; for the character of trustee 
 being by construction on the will affixed to some or one of the 
 executors, all the executors are trustees. (White v. Evans, 4 
 Ves. 21.) Wherever therefore the residue is given to trustees, 
 the executors cannot claim. 
 
 But if particular funds only are given to trustees, *leav- 
 J ing the residue undisposed of, the fact of the executors 
 being described as trustees in the will does not defeat their claim. 
 (Pratt V. Sladden, 14 Ves. 198.) 
 
 Parol evidence. — The rule in Elcock v. Mapp is a rule of con- 
 struction and not a mere "presumption," and parol evidence is 
 therefore not admissible in favor of the executor. " If the will 
 contains express declarations that the executor is to be a trustee, 
 evidence cannot be received against the effect of that declaration." 
 (Gladding v. Yapp, 5 Madd. 59.) 
 
 Presumption from legacy to executor. — If a legacy be given to 
 a sole executor, or equal legacies to each of several executors, 
 a " presumption " of law is raised against their title to undis- 
 posed of residue. (Farrington v. Knightly, 1 P. W. 544.) But 
 
 ^ "Where property is given to a man subject to certain defined trusts, 
 there remains no right in any one but the donee when those trusts are 
 exhausted. Where, however, the estate is given to a man in the character 
 of trustee, without anything to indicate that a beneficial interest is intended, 
 then there is a resulting trust: per Stuart, V.-C, Clarke v. Hilton, L. R. 2 
 Eq. 815. And thus where the gift was of all the personal estate to A., who 
 was one of the executors, " subject to the payment of debts and legacies, 
 and to the trusts hereinafter named," it was held A. took beneficially the 
 surplus after discharging the trusts, although subsequently were written 
 the words, " And upon trust to stand possessed of the said trust moneys in 
 trust to pay," &o. The Vice-Chancellor said the "whole will must be 
 taken together, the words of gift give the whole property subject to the 
 trusts and not upon the trusts," and therefore held that the words " and 
 upon trust," &o. did not attach to the surplus after the trusts were satis- 
 fied. Id. 
 
PRESUMPTION FROM LEGACY. 313 
 
 this, being only a presumption, may be rebutted by parol evidence. 
 (Langham v. Sanford, 17 Ves 443.^ 
 
 But unequal legacies to each of several executors, or legacies 
 to some only, do not raise the presumption ; for the effect is only 
 a preference pro tanto. (Griffiths v. Hamilton, 12 Ves. 309.) 
 Nor does the gift of a life interest in a fund otherwise disposed of, 
 raise the presumption. (Granville v. Beaufort, 1 P. W. 114.) 
 
 But a legacy, even to one only of several executors, for Ms 
 care and trouble, excludes all from the residue by inference of 
 construction, and not mere presumption ; and parol evidence is 
 not admissible to the contrary. (White v. Evans, 4 Ves. 21.) 
 
 ^ " These three legacies must be payable out of the estate which is said 
 to be given to these three persons beneficially, so that the testator, accord- 
 ing to the appellant's contention, was at the same time giving to these three 
 persons part and the whole of the same estate. It was said that these 
 legacies may well have been given for the purpose of putting the exe- 
 cutors to that extent on the same footing as the other legatees ; but that 
 argument was urged in many cases . . . and it has not succeeded," 
 per Turner, L. J., Saltmarsh v. Barrett, 3 De G. F. & J. 286. 
 
*APPENDIX. P315 
 
 I. p. 46. 
 Income of Contingent Residuary Devise. 
 
 It appears on investigation that the important case of Hopkins v. 
 Hopkins (reported, but imperfectly, Ca. Talb. 44; 1 Atk. 580; 1 Ves. 
 sen. 268), decided that neither a specific nor a residuary devise of real 
 estate to the use of an unborn person, or to the use of trustees in trust 
 for an unborn person, carries the rents and profits accruing during the 
 suspense of vesting, but that such intermediate rents descend to the 
 heir-at-law : — thus overruling the dictum of Lord Brougham quoted in 
 the text. 
 
 By the will in Hopkins v. Hopkins (stated in the original Decree at 
 the Kolls, Reg. Lib. 1733 A. fo. 126), the testator devised a particular 
 estate to certain persons for life, and after their decease upon the trusts 
 limited touching the residtie of his real estate thereinafter devised : and 
 devised all other his real estates to trustees and their heirs to the use 
 of an unborn person, with remainders over. He also bequeathed the 
 residue of his personal estate to be laid out in lands to be settled to the 
 uses of his real estate. It was held, that the rents and profits and 
 income of the residuary real and personal estate during the contingency, 
 were neither to be accumulated by the trustees, nor went to any ulterior 
 vested remainderman, but were undisposed of and went to the heir-at- 
 law. (See Lord Talbot's decree, Reg. Lib. 1734 A. fo. Ill; and the 
 subsequent orders of Lord Hardwicke, Reg. Lib. 1738 A. fo. 367, and 
 Reg. Lib. 1748 A. fo. 644.) 
 
316 APPENDIX. 
 
 *316] *II. p. 199. 
 
 Bequest to A. and Ms GhUdren. 
 
 In Audsley v. Horn, 26 B. 195, Romilly, M. R., was of opinion that 
 according to the tendency of the later decisions, a gift of personal 
 estate to A. and her children simpliciter, is a gift to A. for life with 
 remainder to her children. And in Ward v. Grey, 26 B. 485, the 
 same judge held that a direction to pay to A. and her famih/ simpliciter, 
 operated as a gift to A. for life, with remainder to her children as she 
 should appoint, and in default equally : but this is directly opposed to 
 Re Parkinson's Trusts. (1 Sim. N. S. 242, supra, p. 90.) 
 
 It is conceived that, notwithstanding these cases, the rule as at 
 present established requires some aid from the context to convert the 
 gift to the children into a gift in remainder, and that, without such aid, 
 the force of the expressions themselves is to cause the parent and chil- 
 dren to take concurrently. The opposite rule, however, if established, 
 would no doubt be a convenient and probably beneficial rule of con- 
 struction. 
 
 WILLS ACT, 
 7 Will. 4 & 1 Vict. c. 26. 
 
 Section 24-33 (^Construction, &c.. Clauses'). 
 
 XXIV. And be it further enacted, That every will shall be con- 
 strued with reference to the real estate and personal estate comprised 
 in it, to speak and take effect as if it had been executed immediately 
 before the death of the testator, unless a contrary intention shall appear 
 by the will. 
 
 XXV. And be it further enacted, That unless a contrary intention 
 shall appear by the will, such real estate or interest therein as shall be 
 comprised or intended to be comprised in any devise in such will con- 
 ^_^_- tained, which *shall fail or be void by reason of the death of 
 
 -' the devisee in the lifetime of the testator, or by reason of such 
 devise being contrary to law or otherwise incapable of taking effect, 
 shall be included in the residuary devise (if any) contained in such 
 will. 
 
APPENDIX. 817 
 
 XXVI. And be it further enacted, That a devise of the land of the 
 testator, or of the land of the testator in any place or in the occupation 
 of any person mentioned in his will, or otherwise described in a general 
 manner, and any other general devise which would describe a custo- 
 mary, copyhold, or leasehold estate if the testator had no freehold estate 
 which could be described by it, shall be construed to include the cus- 
 tomary, copyhold, and leasehold estates of the testator, or his custo- 
 mary, copyhold, and leasehold estates, or any of them, to which such 
 description shall extend, as the case may be, as well as freehold estates, 
 unless a contrary intention shall appear by the will. 
 
 XXVII. And be it further enacted, That a general devise of the 
 real estate of the testator, or of the real estate of the testator in any 
 place or in the occupation of any person mentioned in his will, or 
 otherwise described in a general manner, shall be construed to include 
 any real estate, or any real estate to which such description shall ex- 
 tend (as the case may be), which he may have power to appoint in any 
 manner he may think proper, and shall operate as an execution of such 
 power, unless a contrary intention shall appear by the will ; and in like 
 manner a bequest of the personal estate of the testator, or any bequest 
 of personal property described in a general manner, shall be construed 
 to include any personal estate, or any personal estate to which such de- 
 scription shall extend (as the case may be), which he may have power 
 to appoint in any manner he may think proper, and shall operate as an 
 execution of such power, unless a contrary intention shall appear by 
 the will. 
 
 XXVIII. And be it further enacted. That where any real estate 
 shall be devised to any person without any words of limitation, such 
 devise shall be construed to *pass the fee simple, or other the r^^o-iQ 
 whole estate or interest which the testator had power to dis- 
 pose of by will in such real estate, unless a contrary intention shall 
 appear by the will. 
 
 XXIX. And be it further enacted. That in any devise or bequest of 
 real or personal estate the words " die without issue," or " die without 
 leaving issue," or " have no issue," or any other words which may im- 
 port either a want or failure of issue of any person in his lifetime or at 
 the time of his death, or an indefinite failure of his issue, shall be con- 
 strued to mean a want or failure of issue in the lifetime or at the time 
 of the death of such person and not an indefinite failure of his issue, 
 unless a contrary intention shall appear by the will, by reason of such 
 person having a prior estate tail, or of a preceding gift, being, without 
 
318 APPENDIX. 
 
 any implication arising from such words, a limitation of an estate tail 
 to such person or issue, or otherwise : Provided, that this Act shall not 
 extend to cases where such words as aforesaid import if no issue de- 
 scribed in a preceding gift shall be born, or if there shall be no issue 
 who shall live to attain the age or otherwise answer the description 
 required for obtaining a vested estate by a preceding gift to such issue. 
 
 XXX. And be it further enacted. That where any real estate (other 
 than or not being a presentation to a church) shall be devised to any 
 trustee or executor, such devise shall be construed to pass the fee simple 
 or other the whole estate or interest which the testator had power to 
 dispose of by will in such real estate, unless a definite term of years, 
 absolute or determinable, or an estate of freehold, shall thereby be given 
 to him expressly or by implication. 
 
 XXXI. And be it further enacted, That where any real estate shall 
 be devised to a trustee, without any express limitation of the estate to 
 be taken by such trustee, and the beneficial interest in such real estate, 
 or in the surplus rents and profits thereof, shall not be given to any 
 person for life, or such beneficial interest shall be given to any person 
 
 - QT ^°^ ^^^^> ^''^^ ^^^ purposes of *the trust may continue beyond the 
 
 ' -■ life of such person, such devise shall be construed to vest in 
 
 such trustee the fee simple, or other the whole legal estate which the 
 
 testator had power to dispose of by will is such real estate, and not an 
 
 estate determinable when the purposes of the trust shall be satisfied. 
 
 XXXII. And be it further enacted. That where any person to whom 
 any real estate shall be devised for an estate tail or an estate in quasi 
 entail shall die in the lifetime of the testator leaving issue who would be 
 inheritable under such entail, and any such issue shall be living at the 
 time of the death of the testator, such devise shall not lapse, but shall 
 take effect as if the death of such person had happened immediately 
 after the death of the testator, unless a contrary intention shall appear 
 by the will. 
 
 XXXIII. And be it further enacted, That where any person being 
 a child or other issue of the testator to whom any real or personal estate 
 shall be devised or bequeathed for any estate or intest not determinable 
 at or before the death of such person shall die in the lifetime of the testa- 
 tor leaving issue, and any such issue of such person shall be living at 
 the time of the death of the testator, such devise or bequest shall not 
 lapse, but. shall take effect as if the death of such person had happened 
 immediately after the death of the testator, unless a contrary intention 
 shall appear by the will. 
 
APPENDIX. 319 
 
 STATUTES OF DISTRIBUTIONS. 
 
 Stat. 22 & 23 Car. 2, c. 10. 
 
 Sections, 5-7. 
 
 V. Provided always, and be it enacted by the authority aforesaid, 
 That all ordinaries, and every other person who by this Act is enabled 
 to make distribution of the surplusage of the estate of any person dying 
 intestate, *shall distribute the whole surplusage of such estate 
 
 or estates in manner and form following; that is to say, one third ^ 
 part of the said surplusage to the wife of the intestate, and all the resi- 
 due by equal portions to and amongst the children of such persons 
 dying intestate, and such persons as legally represent such children, in 
 case any of the said children be then dead, other than such child or 
 children (not being heir-at-law) who shall have any estate by the settle- 
 ment of the intestate, or shall be advanced by the intestate in his life- 
 time, by portion or portions equal to the share which shall by such 
 distribution be allotted to the other children to whom such distribution 
 is to be made ; and in case any child, other than the heir-at-law, shall have 
 any estate by settlement from the said intestate, or shall be advanced by 
 the said intestate in his lifetime by portion not equal to the share which 
 will be due to the other children by such distribution as aforesaid, then 
 so much of the surplusage of the estate of such intestate to be distributed 
 to such child or children as shall have any land by settlement from the 
 .intestate, or were advanced in the lifetime of the intestate, as shall make 
 the estate of all the said children to be equal as near as can be estimated ; 
 but the heir-at-law, notwithstanding any land that he shall have by descent 
 or otherwise from the intestate, is to have an equal part in the distribution 
 with the rest of the children, without any consideration of the value of 
 the land which he hath by descent or otherwise from the intestate. 
 
 VI. And in case there be no children, nor any legal representatives 
 of them, then one moiety of the said estate to be allotted to the wife of 
 the intestate, the residue of the said estate to be distributed equally to 
 every the next of kindred of the intestate who are in equal degree, and 
 those who legally represent them. 
 
 VII. Provided, that there be no representations admitted among 
 collaterals after brothers' and sisters' children; and in case there be no 
 wife then all the said estate to be distributed equally to and amongst 
 
 24 
 
321 APPENDIX. 
 
 5^09-1-1 the *children; and in case there be no child, then to the next 
 of kindred in equal degree of or unto the intestate, and their 
 legal representatives as aforesaid, and in no other manner whatsoever. 
 
 Stat. 1 Jac. 2, cap. 17. 
 
 Sect. 7. 
 
 VII. Provided also, and it is further enacted. That if after the death 
 of a father any of his children shall die intestate, without wife or children 
 in the lifetime of the mother, every brother and sister, and the repre- 
 sentatives of them, shall have an equal share with her, anything in the 
 last mentioned Acts to the contrary notwithstanding. 
 
INDEX. 
 
 ACCUMULATION 
 
 of income of personal estate, 43, 226 ; real estate, 44 
 
 ACCRUER, 
 
 accruing share not subject to qualifying trusts, 268 
 
 devise or bequest to several with direction that shares of those 
 dying without issue shall accrue to others : clause of accruer does 
 not prima facie operate on accrued shares, 268 
 
 "portion," "part," "interest," 269 
 
 contrary intention where subject of gift is to be kept together as 
 an aggregate fund, 269 
 
 gift of accruing shares " in manner aforesaid," 270 
 
 double clause of accruer, 270 
 
 ADMINISTRATOR, 
 
 ''representative" means, 107 
 gift over to, 245 
 bequest to, 246 
 
 " ADVISE " ^ 
 
 creates precatory trust, 161 
 
 ADVOWSON, PERPETUAL, 
 
 devise of, 130 
 
 AGE. See Death under Age. 
 
 AGGREGATE FUND, 269 
 
 AMBIGUITY, 5, 9, 13, 219, 252, 257 
 
 ANCESTOR, 185, 186, 192 
 life estate in, 184 
 
 ANNUITY 
 
 does not pass as " money," 50 
 
 payable out of rents and profits, 123 
 
 when charge on corpus of estate, 123 
 
 eift of, is prima facie for life only, 125, 127 
 
 ?ule unaffected by Wills Act, 125, 127 
 
 gift of, may be perpetual, 125, 127 ^ ,„, no- 
 where gift is of produce of a fund, 12o, lH 
 to be purchased in the funds, 127 
 
 " funds " does not mean a government annuity, ist 
 to A. for life, and after his decease to B. 128 
 
 trust to pay, 1 53 
 
 gift of interest remaining after payment, AZ'd 
 
324 INDEX. 
 
 ANNUITY— continued. 
 
 gift of, does not exclude dower, 273 
 implied charge of, 289 
 gift of, charged on particular estate, 289 
 are legacies, 298 
 
 charge of legacies on real estate includes, 298 
 not given simpliciter does not fall under "legacies," 299 
 See also Debts and Legacies. 
 
 APPOINTMENTS, 
 lapsed, 41 
 
 See also Powers of Appointment. 
 
 BANKER, 
 
 " money at banker's," 50 
 
 "ready money" includes, 51 
 
 BENEFICIAL DEVISE 
 of real estate, 284 
 
 BENEFICIAL USES, 
 devise to, 37 
 
 BEQUEST, 
 
 speciiic, 44 
 
 to children, 57, 58, 60-63 
 
 to A. or B. void, 58 
 
 at discretion of C. good, 58 • 
 to several, with gift over, 209 
 absolute bequest and bequest for life in same will, 256 
 
 See also Kesiduaey Bequest. 
 to what period referable. 
 
 specific, before 1838, 17, 18 
 after 1838, 20 
 
 BLOOD RELATIONS, 110 
 
 CANAL SHARES, 
 legacy of, 301 
 
 CHANCERY, COURT OF, 
 
 carries into effect general intention in favor of class, 58 
 when distribution must be equal, 58 
 mistake in number of legatees, 62 
 general intention in favor of charity, 66 
 
 CHARGES, 
 
 devise subject to, 36, 134, 136 
 
 funeral expenses, 135 
 
 annuity, 136 
 
 of legacies, 208 
 
 of legacies on leaseholds, 236 
 
 of legacies on hand. See Vesting. 
 
 gift of interest of personal estate subject to, 229 
 
 Doioer, 272—278 
 
 See also Dower. 
 Mortgages, 278—282 
 
 See also Mortgages. 
 Debts and Legacies, 282 — 297 
 
 See also Debts and Legacies. 
 
INDEX. 325 
 
 CHARITY, 
 
 bequest of part to charitable uses, 59 
 
 trust to settle either for charitable purposes or for benefit of testa- 
 tor's sister, 60 
 -where whole rents given, increased rents go, 64 
 where whole rents not given, 65, 66 
 general intention in favor of, 66 
 
 application cypres, 66 
 not destroyed by failure of mode, 66 
 where whole rents given but not wholly to, 66, 67 
 proportionate distribution of increased rents, 67 
 
 " CHATTELS,-' 
 
 prima facie, comprises whole personal estate, 56 
 contingent reversionary interest in stock does not pass, 56 
 
 CHILDREN, 111 
 Definitions of- — 
 
 means legitimate children, 80 
 
 legitimacy a question of fact, 80 
 
 where no legitimate children at date of will, 81 
 
 gift to children of persons dead at date of will, 81 
 
 of married woman 49 years old, who has illegitimate 
 children only, 82 
 gift to " children," there being but one legitimate child, 82 
 gift to children of nephews and nieces, 82 
 how illegitimate may take, 83 
 gift to illegitimate children of living persons as persona designatce, 
 
 _83 _ _ _ _ 
 
 gifts to children, including an illegitimate child, with subsequent 
 
 gift to children simpliciter, 84 
 bequest to illegitimate children " and every other the children," 84 
 grandchildren not included in " children," 85 
 great-grandchildren not included in grandchildren, 85 
 nephews and nieces, 85, 86 
 
 by marriage, 85 
 half-blood, 86 
 
 cousins, and first and second cousins, 86, 87 
 issue includes descendants of every degree, 87 
 issue begotten by A., 87 
 "parent" restricts "issue" to children of parent, 88 
 
 except where contrary intention, 88 
 "family" in bequest of personal estate means prima facie chil- 
 dren, 89. 
 bequest to A. and family, 90 
 devise to A. and family, 90 
 where "issue" confined to, 196 
 " die without," 206 
 
 " without leaving children," read " without having children, J.U 
 See also Death without Issue. 
 
 CHILDREN, GIFTS TO _ . . . . . , ^ *u <•« 
 
 mesMS prima facie children in existence at testator s deatn, oo 
 to " all and every" the children, 68 
 additional description, 69 
 children living at testator's death, 69 
 gift to particular persons, 69 
 
326 INDEX. 
 
 CHILDREN, GIFTS rO— continued. 
 
 children born after testator's death, 69 
 
 children born or to be born ; whether after-bora children included 
 
 in, 70 
 if no children at testator's death, 71 
 gift of aggregate fund to, as class in remainder, 71 
 when not immediate, 71 
 gift for life ; children born in lifetime admitted, 72 
 powers of appointment, 72 
 
 gift in remainder, 73 
 separate legacies, 73 
 words of futurity, 73 
 
 do not extend to objects born after period of dis- 
 tribution, 74 
 reTcrsionary interests, 74 > 
 
 immediate gift of fund, partly reversionary, 75 
 gift to children at given age, 75 
 
 period of distribution, 75 
 
 payable at twenty-on«, or uod«r age, leaving issue, 
 
 76 
 in. remainder after life interest, 77 
 words of futurity, 77 
 
 gift when youngest attains twenty-one, 77 
 gift on attaining twenty-one, 76 
 rules exemplified, 78 
 children en ventre, 79 
 
 considered as living and born, 79 
 bequest to, 57, 58, 60, 61, 62, 63 
 
 See also Vesting. 
 gift to, as joint tenants, 112 
 
 per capita, 113 
 gift to A. and B., as tenants in common, for life, with remainder 
 
 to, 114 
 gifts for maintenance, 165, 166 
 where devise to, creates estate tail, 198 
 a word of limitation, 198 
 reputed, legacies to, 83 
 direction to settle shares, 267 
 
 CIIOSES IN ACTION. 
 
 "goods," "chattels," include, 56, n. 1 
 
 CIVIL LAW, 
 
 " vesting," 222 
 
 CLASS, 69, 71, 77, 182, 216. 
 
 gift to, creates joint tenancy, 111 
 
 but not where Statute of Distributions referred to. 111 
 devise to, 241 
 substitution in gifts to, 247, 250 
 
 See also Gift. 
 " CLEAR," 
 
 bequest "clear" of legacy duty, 309 
 
 CODICIL. 
 
 will speats from date of, 14 
 not revival of revoked devise, 16 
 
INDEX. 327 
 
 COTtlGlL— continued. 
 
 revocation of devise of freeholds by, 15 
 revocation by. of devise to trustees, 158 
 
 CO-HEIRS. See Heirs. 
 
 CONDITION PRECEDENT, 242 
 
 " vested," means not subject to, 223 
 
 CONDITION SUBSEQUENT, 240 
 
 " CONFIDENCE," 
 
 creates precatory trust, 162 
 
 CONTINGENT REMAINDERS, 192, 218 
 trusts to preserve, 146, 147, 185 
 devise to trustees to preserve, 157 
 alternative, 213 
 
 See also Remainder ; Vesting. 
 
 CONSTRUCTION, 
 
 General Principles — 
 meaning and intention, 1, 2 
 words to be fairly interpreted, 2 
 sense of vrords and expressions, 2, 3 
 words supplied or rejected, 3 
 technical words, 3, 4, 5 
 letter and spirit, 5-7 
 Punctuation, 7-9 
 
 parentheses, stops, &c., 7 
 punctuation in original will, 8 
 erasures, 8 
 
 Parol evidence of Intention — 
 when admissible, 9, 12, 13 
 equivocal descriptions, 9-13 
 what is not evidence, 10 
 descriptions partly inaccurate, 11 
 
 CONTRACT, 
 
 to purchase lands, 38 
 purchase money, 38 
 
 CONVERSION, 290, 291, 292 
 
 See also Debts and Legacies. 
 
 CONVEY, TRUSTS TO, 155 
 
 COPYHOLDS, 
 
 included in " lands," 30 
 devise of, 145, 146 
 
 CORPORATION, 
 
 bequest to, 65, 67 
 
 COUSINS, 86, 87 
 
 legacy to, 310 
 
 CREDITOR, 282 
 
 specialty, 282 
 
 See aha Debts. 
 
328 
 
 INDEX. 
 
 CROSS REMAINDERS, 181, 182, 193, 196, 201, 202 
 
 CUMULATIVE LEGACY, 304 
 
 See also Legacy. 
 
 CUSTOMARY LANDS, 
 heir of, 168, 169 
 
 CYPRES, DOCTRINE OF, 56, 66 
 
 See also Estate Tail. 
 
 DAUGHTERS, 
 
 devise to, 201 
 
 sliares of, direction to settle, 267 
 
 DEATH UNDER AGE, 
 gift over on, 136 
 without issue, 137, 206, 240 
 
 DEATH WITHOUT ISSUE, 
 
 Wills made before January 1, 1838. 
 " die without issue," means death and failure of issue then or at any 
 
 time afterwards, 205 
 rule applies both to real and personal estate, 206 
 " die without having issue," 206, 214, n. 2 
 " die without issue male," 206 
 " die without children," 206 
 death under given age without issue, 206 
 
 " die without issue," may be restrained by contest to mean failure 
 of issue at death, 207 
 
 devise to A. in fee, or bequest to A., with gift over if A. die 
 
 without issue, 207 
 personal estate, 207 
 gift over, subject, to payments to be made at the death, &c., 
 
 " in default of issue," and on " failure of issue," restricted to failure 
 
 of issue at death, 209 
 gift on general failure of issue, 209 
 bequest to several with gift over of the share of any dying without 
 
 issue to the survivors or survivor : " die without issue" confined 
 
 to failure of issue at death, 209 
 
 aliier in devises of real estate, 210 
 gift over for life only : " death without issue" not restricted, 210 
 failure of issue, living certain persons, 211 
 gift to issue in remainder, 212 
 
 failure of issue restrained to period of distribution, 213 
 " die without leaving issue," in devises of real estate, means indefi- 
 nite failure of issue : in bequests of personal estate, a failure of 
 
 issue at death, 213 
 to A., if he has issue to him in fee, if he die without issue over, 
 
 214, n. 2 
 die without issue who shall attain twenty-one years, 214, n. 2 
 "die without issue alive," " surviving," 214, n. 2 
 effect of American statutes abolishing estates tail, 214, n. 2 
 New Law — 
 Wills Act, sect. 29, " die without issue" means failure of issue at 
 
 the death, unless contrary intention appear, 214 
 effect of sect. 29; 215 
 
IXDEX. 329 
 
 DEATH WITHOUT ISWE— continued. 
 
 whether it applies to " in default of issue" and "on 
 failure of issue," 216 
 bequest of personal estate to children of A. at given age, with gift 
 over on death of A., without leaving children: "leaving," read 
 " having," 217 
 
 real estate, 217 
 gift over before shares are "payable," 218 
 
 provisions for children not to be read as contingent on surviving 
 the parent, unless intention be perfectly clear, 218 
 
 where no provisions inconsistent with necessity of survivor- 
 ship, rule cannot be applied, 220 
 
 See also Substitution ; Vesting. 
 
 DEBTS, 
 
 trusts for payment of, 151, 152 
 
 trust to pay, out of rents and profits, 121, 122 
 
 bequest of personal estate subject to payment of, 281 
 
 satisfaction of, by legacy, 299 
 
 direction to pay debts alone, 300 . 
 
 See also Legacies ; Mortgages. 
 
 DEBTS AND LEGACIES, 
 Implied charge of — 
 
 direction that testator's debts be paid charges all real estate, 282 
 direction that debts be paid by executors charges only real estate 
 
 devised to them, 282 
 direction to pay debts charges all real estate, 283 
 
 contrary intention, 284 
 lands devised to executors charged, 284 
 
 whether in trust or beneficially, 284 
 effect of charge on devise to executOTS, 284 
 lands devised to one of several executors only not charged, 285 
 
 where bulk of real estate devised to widow, sole executrix, 
 
 285 
 lands devised to sole executor in tail charged, 286 
 direction to exe'cutors to pay debts, followed by gift of residue ot 
 
 real and personal estate, 286 
 direction to executors to pay legacies, 286 
 
 exoneration of personalty, 286 i i ^ i, j. i~ 
 
 intention must appear not only to charge real estate, but to , 
 
 discharge the personal, 287 „ . , . , ^. , 
 
 direction to sell real estate does not furnish intention to ex- 
 empt, 287 
 intention to exonerate, 288 , , , ooo 
 
 specific bequest of personal estate, J8» 
 trust to pay particular debt, 289 
 liability to legacies and annuities, ^8J 
 
 gift of annuity charged on a particular estate, 289 
 blended real and personal estate, 290 „ , ^ . 
 
 if personaf estate and the proceeds of real estate are given 
 together, they are liable to oh&vgos pan passu, 290 
 
 but if real estate is not converted, the personal estate 
 
 is primarily liable, 291 
 rule not confined to charges evprea^hj directed to be 
 paid out of mixed funds, 292 
 
.330 INDEX. 
 
 DEBTS AND LEGACIES.— continued. 
 
 if proceeds of real estate be thrown into personal es- 
 tate, a charge is created, 293 
 real and personal estate liable to charges pari passu,293 
 rule extends to implied charges, 294 
 gift of legacies followed by sift of residue of real and personal es- 
 tate (together) : the legacies are charged on the residuary real 
 estate, 294 
 
 previous devise of real estate, 295 
 contrary intention, 296 
 charge of lands on all real estate does not charge lands specifically 
 devised, 296 
 
 if specific devise fails, and lands fall into residue, they will 
 
 be charged, 297 
 exception — charge of debts and legacies on real estate 
 charges lands specifically devised with legacies, 297 
 
 DESCENT, 185 
 
 DESCRIPTIONS, EQUIVOCAL, 9-13 
 partly inaccurate, 11 
 sufficient, 23, 24 
 
 DESCRIPTIONS OP PKOVERTY, to what period referable, 
 Wills before 1838— 
 
 devise of freeholds, 14 
 
 republished will, 14, 16 
 
 identical property, 15 
 
 codicil, 16 
 
 devise of leaseholds, 16 
 
 general personal estate, 17 
 
 specific bequests, 17, 18 
 1 Vict. C.26, s. 24— 
 
 devises and bequests, 18 
 
 powers created after date of will, 19 
 
 reference to date of will, 20 
 
 specific description, 20 
 
 " DESIRE," 
 
 creates precatory trust, 161 
 
 DETERMINABLE FEE, 149, 150 
 
 DEVISE, 
 
 to separate use of married woman, 37 
 of trust estates, 37 
 
 of rents and profits, 120. See also Rents and Profits. 
 " for ever " passes the fee, 131 
 " to A. and his executors " passes the fee, 131 
 of freeholds and leaseholds, 239 
 to class, 241 
 specific, 296, 297 
 of land subject to mortgage, 278 
 specific devise of mortgaged estates, 281 
 See also Mortgage. 
 To what period referable — 
 of freeholds before 1838 ; 14 
 of leaseholds, 16 
 general personal estate, 17 
 
INDEX. g3;j^ 
 
 DE VISE — con tinned. 
 
 specific bequests, 17, 18 
 after 1838 ; 18 
 When operating in execution of powers, 22-29 
 
 See also Powers or Appointment. 
 Of estates in trustees, 140-158 
 
 See also Trustees. 
 Without words of limitation^— 
 devise of lands, &c., simpliciter, passes estate for life only, 130 131 
 perpetual advowson, 130. 
 •'estate," 131 
 
 must be an operative word, 132 
 "effects," "property," "moiety," "share," 133, 134 
 cliarges, 134 
 
 gift over on death under age, 136 
 freely to be possessed and enjoyed, 138, n. 1 
 power to dispose of fee, 138, n. 1 
 introductory clause, 138, n. 1 
 new law — indefinite devise passes the fee, 139 
 See also Residuary Devise. 
 DISTRIBUTION, 75 
 
 per capita, 58, 61, 104 
 
 per stirpes, 59, 190 
 
 children born after period of, 73, 74 
 
 words of, 190, 193, 194, 195. 
 
 See also Estates Tail. 
 period of, 253, 254, 257, 258, 260, 261, 267 
 failure of issue restrained to period of, 213 
 period of, words of survivorship refer to, 261 
 See also Gift. 
 
 DISTRIBUTIONS, STATUTES OP, 91, 92, 95, 97, 98, 99, 103, 109, 110: 
 22 & 23 Car. II., sects. 5-7 ; 1 Jac. II., cap. 17, sect. 7, 319, 321. 
 
 DIVIDENDS. See Stock. 
 
 DOUBLE LEGACIES, 305 
 
 See also Legacies. 
 
 DOWER, 
 
 will executed before 1834 not brought within Dower Act by being 
 republished subsequently to 1834, 272, n. 
 Old Law — 
 devise to widow of part of land liable to dower does not put her to 
 election, 273 
 
 nor a gift of annuity out of land liable to dower, 273 
 contrary intention,— 
 
 gift of land to widow and other persons in definite propor- 
 tions, 274 
 every devise of land is prima facie a devise of them subject to the 
 
 right of dower, 275 
 devise of lands liable to dower to trustees in trust for sale does not 
 
 put widow to election, 276 
 dower not excluded by directions as to proceeds of sale, or as to 
 
 rents and profits till sale, 277 
 power of leasing excludes dower, 277 
 powers of management, 277 . , otq 
 
 gift of personal occupation ot part ot land devised, 27» 
 
332 
 
 INDEX. 
 
 BOW'E'R—contimted. 
 New Law — 
 
 gift to -widow of any interest in land liable to dower, 275 
 gift of personal estate not construed as gift in lieu of dower, 275 
 every disposition by will takes effect in priority to right of dower, 
 278 
 
 DYING WITHOUT ISSUE, 194 
 
 See also Death without Issue. 
 
 "EFFECTS," 
 
 does not prima facie include real estate, 55 
 passes the fee, 133 
 
 ELECTION. See Dower. 
 
 ENTIRETIES, 
 
 estate by abolished, 111, n. 1 
 
 "ENTREAT," 
 
 creates precatory trust, 161 
 
 "EQUALLY TO BE DIVIDED," 115, n. I 
 
 EQUIVOCAL DESCRIPTIONS, 9-13 
 
 ERASURES, 8 
 
 "ESTATE," 
 
 formerly confined to personal estate, 53 
 
 now includes real and personal estate, 53 
 
 where language of will applies to personal estate only, 54 
 
 devise of, passes the fee, 131 ' 
 
 must be an operative word, 132 
 
 ESTATE FOR LIFE, 174, 178 
 " occupy" passes, 119 
 devise of lands, &c., passes, only, 130 
 
 ESTATES TAIL, 174, 175, 176, 177 
 in tail male, 173, 174 
 
 devise to A. and his heirs lawfully begotten, gives, 175 
 estate tail cypres, 181 
 
 devise to, A. (an unborn person) for life, with remainder to 
 his children in strict settlement, or to his first and other sons 
 in tail male : A. takes an estate in tail or tail male, 181 
 
 rule applies to appointments under a power, 181 
 gift over not necessary, 182 
 cross remainders, 182 
 rule applied to some only of a class, 182 
 rule applies where gift to A. for life, with remainder to his 
 
 children as tenants in common in tail, 183 
 where rule will not apply, 183 
 
 where remainder to children in fee, 183 
 nor to personal estate, 183 
 words of limitation, 183 
 
 "heirs of the body" are, 184 
 
 tenancy in common among the heirs, and life estate in ances- 
 tor, rejected, 184 
 
 so devise to A. for life, with remainder to his heirs, 
 184 
 
INDEX. 033 
 
 ESTATES TAlL-continued. 
 
 words of distribution do not exclude rule, 185 
 
 words of limitation superadded, whether they exclude the rule, 185 
 aevise to A. for life, with remainder to the heirs of his bodv 
 share and share alike, and their heirs and assio-na, 186 
 
 words ot explanation exclude, the rule, 186 
 
 devise to A. and the heirs of his body " in manner aforesaid," 
 
 executory trusts, 187 
 
 direction to settle lands on A. for life, and after his decease 
 on the heirs of his body, 188 
 " heirs of the body" in relation to personal estate, 188 
 
 bequest to A. for life, with remainder to the heirs or heirs male 
 of his body, is an absolute ^ift to A., 188 
 
 so bequest to A. and the heirs male of his body, or to A. 
 for life, and after his decease to heirs male of his 
 body, 188 
 "issue," in devises of real estate, is a word of limitation, 189 
 
 devise to A and his issue, or to A. for life with remainder to 
 
 his issue, 190. 
 devise to A. for life, with remainder to his issue, with no gift 
 over, 190 
 words of distribution rejected. Devise (before 1838) to A. for life, 
 with remainder to his issue as tenants in common with gift over ; 
 A. takes estate tail, 190 
 issue taking by purchase, 191 
 
 " issue " more flexible than " heirs of the body," 191 
 devise to A. for life, remainder to the heirs of hisbody as tenants 
 in common and their heirs: the issue take by purchase, 192 
 although there be a gift over on failure of issue of A., 192 
 devise to A. for life, remainder to his issue as tenants in 
 common and their heirs male, or heirs of the body, 192 
 words of distribution alone sufficient to convert "issue" into a 
 word of purchase, if issue can take the fee, 193 
 
 prevail although there be a gift over on dying 
 
 without issue, 194 
 
 unless words of distribution can be referred to first takers, 194 
 
 wills since 1837. Devise to A. for life, with remainder to his 
 
 issue as tenants in common : issue taken by purchase, 194 
 
 words of limitation, whethei", without words of distribution exclude 
 
 rule, 195 
 
 devise to A. for life, with remainder to his issue and the heirs 
 
 of their bodies: A. takes estate tail, 195 
 so devise to A. for life, with remainder to his issue and their 
 
 heirs with a gift over on failure of issue pf A., 195 
 devise to A. for life, with remainder to his issue and their 
 heirs, without a gift over : whether issue take by pur- 
 chase, 195 
 words of explanation exclude rule, 196 
 
 where " issue " confined to children, 196 
 effect of American statutes abolishing estates tail, 195 n. 2 
 executory trusts — direction to settle lands on A. for life, and after 
 
 his decease to his issue : the issue take by purchase, 196 
 "issue " in relation to personal estate, does not apply as a word of 
 limitation, 197 
 
 bequest to A. and his issue, 197 
 children, devise to A. and his, there being none at date of will, 
 creates estate tail, 198 
 
334 
 
 INDEX. 
 
 ESTATES TAIL— continued. 
 
 rule does not apply to bequests of personal estate, 1 98 
 children a word of limitation, 198 
 so "son," "heir," 198 
 bequest to A. and his children, 199, 316 
 gift over on failure of issue, 200. 
 
 estate tail in remainder, 200 
 personal estate, 201 
 cross remainders implied, 201 
 
 express limitation of cross remainders in certain events does 
 
 not exclude rule, 201 
 cross remainders for life implied, 202 
 bequests of personal estate, 202 
 " surviving" read as " other," 202 
 " or " read as " and," 203 
 
 rule does not apply -where devise is of an estate tail, 204 
 American statutes abolishing estates tail, 204, n. 3 
 " die without issue," 205 
 
 EXECUTOK, 
 
 "representative" means, 107 
 
 devise "to A. and executors " passes the fee, 131 
 
 gift over to, 245 
 
 bequest to, 246 
 
 directions to, to pay debts and legacies, 282 
 
 See also Debts and Legacies. 
 legacy to, 309 
 
 title of executor to undisposed of residue, 311 
 executor appointed trustee of residue cannot claim it beneficially, 
 
 312 
 presumption from legacies to executors, 313 
 See also Legacy. 
 
 EXECUTORY BEQUESTS, 211, 212 
 on failure of issue at death, 207 
 
 EXECUTORY TRUSTS, 187, 196, 238 
 
 See also Estates Tail. 
 
 EXONERATION. See Mortgage, Debts and Legacies. 
 
 EXPLANATION, WORDS OE, 187, 196 
 
 See also Estates Tail. 
 
 " FAMILY," 89, 90 
 
 "FARM," 31, 130 
 
 FEE, 
 
 devise to A. or his heirs gives, 180 
 
 so devise to A. or the heirs of his body, 180 
 
 of gavelkind lands, 168 
 
 issue as purchasers, 192 
 
 devise of real estate in, 207, 208 
 
 constructive, 207, 208 
 
 legal, 284 
 
 equitable, 285 
 
 FREEHOLDS, 
 
 devise of, 239 
 
 devise of, before 1838, 16 
 
 when included in " lands," 31 
 
INDEX. 335 
 
 "FREELY TO BE POSSESSED AND ENJOYED," 138, n. 1 
 FUNERAL EXPENSES, 52, 135, 289, 291 
 
 FUTURITY, 
 
 words of, 70, 71, n. 1, 73 
 
 GAVELKIND LANDS, 
 
 devise of, to heir, 168 
 
 by way of executory trust, 168 
 devise of freeholds and leaseholds mixed, 169 
 
 GIFT 
 
 of personal estate "not hereinbefore disposed of," 41 
 of residue, except certain property, 42 
 unlimited gift of income, 123-125 
 
 See also Income. 
 absolute, 188 
 
 on general failure of issue, 209 
 to issue in remainder, 212 
 immediate gift, what is, 247 
 substitution in gifts to classes, 247 
 partly substitutional, 250 
 
 See also Substitution. 
 
 substitutional gifts introduced by the word " or," 267 
 independent, 249, 253 
 Objects of gift generally, 
 power of selection or distribution not being exercised, property 
 
 divisible among objects of power equally, 57 
 particular intention in favor of a class, 58 
 bequest to A. orB. void, 58 
 
 power to appoint to some objects " or " to others, 58 
 tenancy in common, 59 
 several sets of objects, 59 
 
 distribution ^er stirpes, 59 
 charitable uses, 59 
 
 purchase of estates in England or Scotland, 60 
 charitable purposes or benefit of testator's sister, 60 
 revocation of share, to be applied at discretion of trustees, 60 
 permission to give to certain objects, 60 
 application of income at discretion of trustees, 61 
 partial appointment: no clause of hotchpot inserted, 61 
 period for ascertaining oWects, 61 
 gift for life with power of disposition to relations, 61 
 where power not to arise till given period, 62 
 mistake in number of legatees : children, 62 
 grandchildren, servants, &c., 63 
 particular children — additional description, 63 
 where whole rents given to charitable objects, increased rents go in 
 
 same proportion, 64 
 where whole rents not given, 65, 66 
 general intention in favor of charity, 66 
 application cypres, 66 ., , , 
 
 charitable not destroyed by failure of mode, 66 
 where whole rents given but not wholly to charitable objects, 66, 67 
 proportionate distribution of increased rents, 67 
 
33G INDEX. 
 
 GIFT OVER, 182, 186, 190, 191, 192, 195, 200, 209, 210. 
 gift over by way of direct devise, 145 
 on failure of issue, 175 
 heirs, 177 
 to several including an heir, 178 
 before shares "payable," 218 
 for life, 210 
 
 by way of substitution, 258 
 alternative, 259 
 
 See also Vesting. 
 
 GIFT TO CHILDREN, 
 
 immediate, 251, 258 
 
 See also Children. 
 
 GIFTS 
 
 Without words of limitation. 
 "occupy, ' 119 
 
 See also Occupation. 
 " rents and profits," 120 
 
 See also Rents and Promts. 
 unlimited gift of income, 123 
 
 See also Income. 
 annuity, whether perpetual, 125 
 
 See also Annuity. 
 
 "GOODS," 
 
 pritna facie, comprises whole personal estate, 56 
 
 contingent reversionary interest in stock does not pass under, 56 
 
 includes choses in action, 56, n. 1 
 
 unless "goods" in a certain place, or goods to be sold, 56, n. 1 
 
 GRANDCHILDREN, 85 
 
 legacy to, 63, 68, 72, 76, 77 
 
 GRANDCHILDREN, GREAT, 85 
 
 HALF-BLOOD, 86 
 
 HEIRS, 91, 110, 112 
 
 bequest to the heirs of A., 91 
 
 in America, 92, n. 1 
 
 gift to the heirs of a living person, 92, n. 1 
 
 bequest to A. or his heirs, 91 
 
 take by substitution, 92 
 
 when ascertained, 94 
 
 gift to the heirs of A. and of B., 115, n. 1 
 
 See also Succession. 
 " heirs of the body," in relation to personalty, 188 
 "heir" as a word of limitation, 198 
 bequest to " A. or his heirs," 247 
 
 See also Estates Tail. 
 
 HEIRS, HEIRS MALE, &c. 
 
 heir of customary lands, 168 
 
 heirs male of the body, 168 
 devise to testator's heir, 169 
 Lord Coke's rule, heir male of the body to take by purchase must 
 be "very heir," 169 
 
INDEX. 337 
 
 HEIRS, HEIRS MALE, ka.— continued. 
 
 rule altered— heir male of body to take by purchase need not be 
 heir general, 170 
 
 same rule as to heirs female, 170 
 Lord Coke's rule how far abolished, 170 
 heir male of body must claim through males, 171 
 males claiming through males, 171 
 " male descendants," 172 
 '; heirs male," 172 
 
 " all the issue, male and female," 172 
 heirs male mean heirs male of the body," 173 
 
 but qu. as to " heir male," 173 
 heir male must claim through males, 173 
 devise to A. for life, with remainder to heirs male of his body, &o., 
 
 heir male of body takes as purchaser, 174 
 " heirs " restrained to mean heirs of the body, 175 
 heirs lawfully begotten, 175 
 gift Over on failure of issue, 175 
 
 wills made since 1837 ; 177 
 gift over on failure of heirs, 177 
 gift over to several, including an heir, 178 
 " necessary" implication, 178 
 gift to heir after death of A., 178 
 devise to one of several co-heirs, 179 
 heirship when to be considered, 179. 
 distributive construction, 179 
 
 devise together with other property after death of A., 179 
 devise to A. " or" his heirs, gives an estate in fee, 180 
 so devise to A. or the heirs of his body, 180 
 
 " HEREDITAMENTS," 30, 130 
 
 "HOPING" 
 
 creates precatory trust, 162 
 
 HOTCHPOT, 61 
 
 HUSBAND AND WIFE, 
 
 entireties abolished between. 111 n. 1 
 gift to take one share between them, 115 
 gift "to A., husband, and wife," 116 
 
 ILLEGITIMACY. See Children, Definitions or. 
 
 IMPLICATION, 
 
 deviseby, 158 
 
 " necessary implication," 178 
 
 of cross remainders, 201 
 
 See also Estates Tail. 
 
 " IN CASE OF DEATH," 254. See also Substitution. 
 
 .INCOME, UNLIMITED GIFT OF, _ .,..., .oo 
 gift of income of personal estate is a gift ot principal, 116 
 direction to pay dividends, &o., to separate use of married woman, 
 
 124 
 gift of interest to A. for life, with remainder to B., 124 
 gift of dividends to A. and B., and the survivor, 124 
 
 25 
 
660 INDEX. 
 
 " INDEFEASIBLE," 
 
 "vested" construed, 231 
 
 "IN MANNEE AFORESAID," 
 devise, 187 
 
 INTENTION, 88, 101, 181, 298 
 Parol evidence of, 
 when admissible, 9, 12, 13 
 what is not evidence, 10 
 
 " INTEREST," 269 
 
 gift of, vests principal, 227 
 
 subject to a charge, 229 
 contingent gift of, 230 
 
 INTERMEDIATE ESTATE, 
 nature of, 239 
 
 INTERMEDIATE INCOME, 45, 46, 315 
 general residuary bequest carries, 43 
 
 INTESTACY, 96, 98, 99, 178 
 partial, 40 
 
 INTRODUCTORY CLAUSE, 
 
 effect of, on indefinite devise, 138 n. 1 
 
 ISSUE, 80, 111 
 
 includes descendants of every degree, 87 
 
 begotten by A., 87 
 
 "parent" restricts "issue'-' to children of parent, 88 
 
 except where contrary intention, 88 
 where confined to " children," 196 
 in relation to personal estate, 197 
 "all the issue, male and female," 172 
 as a word of limitation, 197 
 in devises of real estate, a word of limitation, 189 
 
 See also Estates Tail. 
 taking by purchase, 191, 192, 194 
 more flexible than "heirs of the body," 191, 192, 194 
 " on failure of," 177 
 " in default of," 177 
 death under age without, 137 
 " die without," 176 
 gift to, 72 
 
 gift over on failure, 175-178, 200 
 See also Death without Issue ; Estates Tail ; Substitution. 
 
 JOINT TENANCY, 59, 95 
 
 gift to several or a class creates, 111 
 
 but not where Statate of Distributions referred to, 1 1 1 
 where interests vest at difiercnt times. 111 
 
 survivorship abolished in some American states. 111, n. 1 
 
 gift to children to vest at given age, not a gift in, 112 
 
 devise to two men and heirs of bodies, 112 
 their heirs and assigns, 112 
 
 gift to several " respectively," 112 
 husband and wife, 115 
 
INBEX. 339 
 
 JOINTURE, 
 
 power of, 185 
 
 LAND, 
 
 legacies charged on, 234 
 
 See also Vesting. 
 " LANDS," 
 
 What kinds of property included under, 
 copyholds, 30 
 leaseholds, 30 
 
 messuages, 31 
 
 leaseholds blended with freeholds, 31 
 " real estate " passes leaseholds as well as freeholds, 32 
 1 Vict. c. 26, s. 26," lands" includes leaseholds, 32, and n. (a) 
 " real estate," whether including leaseholds, 33 
 reversionary interests, 33 
 
 limited in part to same uses, 34 
 lands "not settled," 34 
 trust and mortgage estates, 35, 37 
 
 devise in trust for sale does not pass, 36 
 devise subject to charges, 36 
 devise to beneficial uses, 37 
 
 successive limitations, 37 
 tenants in common, 37 
 numerous and unascertained class, 37 n, 3 
 beneficial interest in mortgage, 37 
 lands contracted for, 38 
 
 purchase money of, 38 
 
 LAPSE, 180 
 
 specific devise, 44 
 
 lapsed devise. See Residuaky Devise. 
 
 legacy. See Legacy. 
 
 shares of residue, 42 
 American statutes to prevent, 68, n. 1 
 
 effect of, on gifts to classes, 68, n. 1 
 
 LEASE, 
 
 leasing, power of, 153 
 
 excludes, dower, 277 
 
 LEASES, RENEWALS OF, . . ^ «. i.,i 
 
 payment of fines and expenses of, out of rents and profits, l^l 
 
 LEASEHOLDS, 
 
 devise of, before 1838, 16 
 
 when included in " lands," 30 , ^ _ ,,, , „ ,, 
 blended with freeholds, when included m lands, 31 
 "real estate" passes, 32 , i, n, 
 
 whether including leasehold, 66 
 " lands " includes leaseholds under 1 Vict. c. 26, s. 26 ; 32, and n. (a) 
 bequest of, 189 
 devise of, 239 
 
 LEGACIES, . 
 
 annuities are legacies, /y» 
 
 char.re of, on real estate includes annuities, 298 
 
 annuities not given simpliciter do not fall under " legacies,' 
 299 
 
340 INDEX. 
 
 L^GACl^S— continued. 
 
 direction to pay dehis and legacies rebuts presumption that 
 
 debt is satisfied by legacy, 299 
 direction to pay debts alone, 300 
 parol evidence not admissible, 300 
 legacy of stock not prima facie specific, but a general legacy, 301 
 stock in Three per Cents, 301 
 East India Bonds, 301 
 canal shares, 301 
 
 whether exact coincidence in amount renders legacy specific 
 302 E= . i- 
 
 reference to particular stock, &c., 302 
 
 direction to transfer stock not specific, 302 
 money legacy out of stock, 303 
 repeated legacies, 303 
 
 repetition of legacy in two testamentary instruments, both 
 
 legacies take efiect, 303 
 repetition in same instrument, one legacy only, 303 
 legacy of difi'erent amount by separate instrument is cumu- 
 lative, 304 
 legacies by two instruments substitutional, 304 
 
 repetition of series of legacies, 305 
 double legacies with same motive, 305 
 parol evidence of intention, 305 
 
 added and substituted legacies are subject to incidents of original 
 legacy, 306 
 
 gift by will of legacy free of duty, and by a codicil of a 
 further or additional sum ; second legacy is free of duty, 
 
 gift to separate use, 306 
 
 gift out of particular fund, 307 
 
 gift subject to be divested, 307 
 
 gift to A. for life, with remainder to B. An additional 
 
 legacy to A. does not confer any interest on B., 308 
 bequest of " clear " yearly sum to A. is free of legacy duty, 
 
 bequest of " clear " yo.ii-ly sum to several in succession, not 
 free of duty, 309 
 legacy to executor is prima faeie annexed to office, 309 
 but not gift of residue, 310 
 contrary intention, 310 
 
 legacy " to my friend and partner," 310 
 " to my cousin,'' 310 
 
 " in case my son shall die in his present malady," 311 
 title of executors to undisposed of residue, 311 
 
 e;secutors appointed trustees of residue cannot claim it bene- 
 ficially, 312 
 parol evidence, 313 
 presumption from legacies to executors, 313 
 
 LEGACY, 91, 223 
 
 of stock, not execution of power, 24 
 
 whether execution of general powers of appointment, 29 
 
 lapsed and void, residuary bequest carries, 40, 41 
 
 lapsed legacy, charged on land, 47, n. 2 
 
 mistake in number of legatees, 62 
 
 See also Gift. 
 
INDEX. 341 
 
 LEGACY — continued. 
 
 separate legacies to children, 73 
 
 trust to pay out of rents and profits, 122 
 
 charge of, 208 
 
 severance of, from bulk of personal estate, 230 
 
 given as portions, 236 
 
 immediate or in remainder, 243 
 
 legatee dead at date of will, 245 
 
 See also Substitution. 
 gift over of, 243 
 
 gift over to survivor of legatees, 259 
 charged on land. See Vesting. 
 
 implied charge of: direction to executors to pay legacies, 286 
 See also Dkbts and Leg.\cies. 
 
 LEGACY DUTY, 
 
 gift free of, 306, 309 
 
 LEGITIMACY. See CniLDKBjf, Definitions of. 
 
 LETTER AND SPIRIT, 5-7 
 
 LIFE ESTATE, 
 
 bequest in remainder after life interest, 255 
 "in case of death" followed by, 256 
 
 See also Estate for Life. 
 
 LIMITATIONS, 
 
 successive, 243 
 
 devise to, 37 
 
 LIMITATION, WORDS OF, 195, 258 
 gift, &c., without, 119-129 
 devises without, 130-139 
 superadded words, 185 
 "heir," 198 
 heirs of body, 184 
 issue, 197 
 "son," 198 
 tenants in common, 184 
 
 See also Devises ; Estates Tail ; Gift. 
 
 MAINTENANCE, 
 trusts for, 165 
 
 See also Precatory Trusts. 
 
 discretionary power of, 229 , , ^ j. ooo 
 
 power to apply income of personal estate lor, /-y 
 
 MANAGEMENT, POWERS OF, 277 
 
 "MANOR," 130 
 
 ""^^^I^ilS^o^e.. 27 of Wills Act to will of, 27 n. (a) 
 
 ««P'^'^'^"''''^°'^kaZ.o Separate Use. 
 MARSHALLING ASSETS, 236 
 MEANING AND INTENTION, 1, 2 
 
342 INDEX. 
 
 MESSUAGES, 
 
 whether included in "lands," 31 
 
 MINORITY, 
 
 trusts limited to, 144 
 
 devise to apply rents during, 157 
 
 education during, 228 
 
 MIXED FUNDS, 
 
 charges on, 292 
 
 See also Debts and Legacies. 
 
 " MOIETY," 133, 134 
 
 "MONEY," 
 
 does not include stock in the funds, 49 
 annuity not "money," 50 
 money at banker's, 50 
 moneys due, 50 
 
 comprises ■whole residuary personal estate, 51 
 ^ except where bequest of "wearing apparel," "charity," 
 
 "ready money," 52, 53 
 so after payment of funeral expenses, 52 
 whether after payment of legacies, 52 
 trusts to raise, 148 
 
 " MONEY, READY," 
 
 includes cash at banker's, 51 
 unreceived dividends not, 51 
 
 "MONEY, SECURITIES FOR," 
 
 passes legal estate in mortgage, 48 
 
 moneys on mortgage, &c., whether legal estate passes by, 49 
 
 MORTGAGE, 
 
 mortgage estates included in " lands," 35 
 devise in trust for sale does not pass mortgage estate, 36 
 devise of "land" does not pass beneficial interest in, 37 * 
 
 securities for money passes legal estate in, 48 
 moneys on, whether legal estate passes by, 49 
 Old Law — 
 devise of lands subject to mortgage does not imply that devisee 
 
 should take cum onere, 278 
 devisee taking cum onere, 279 
 New Law, 17 & 18 Vict. c. 113— 
 
 in the absence of intention, the mortgaged estate is primarily 
 
 liable, 280 
 wills made before 1855, not within provisions of the Act, 280, n. (a) 
 what shows intention not to devise cum onere, 280 
 devise of mortgaged estate specifically, and bequest of personal 
 
 estate subject to payment of debts ; the mortgaged estate is 
 
 exonerated, 281 
 where fund designated for payment of debts includes mortgaged 
 
 estate ; not exonerated, 282 
 
 NEPHEWS. See Children, Definitions of. 
 
 NEXT OF KIN, 61, 91, 95, 97, 110, 111 
 ascertained at death, 101 
 
 See also Succession. 
 
INDEX. 343 
 
 NIECES. See Children, Definitions op. 
 "NOW OWNED," 
 
 whether words confining will to property owned at its date, 20 
 OBJECTS OF GIFT. See Gift. 
 OBLIGATORY TRUST, 159 
 OCCUPATION, 
 
 devise of "occupation" of house passes an estate for life, 119 
 
 occupy does not ^rma/aae mean personally occupy, 119 
 
 gift of personal occupation, 278 
 
 OPERATIVE WORDS, 
 
 "estate" must be, 132 
 "OR," 
 
 read " and," 180, 203 
 
 " OWN." See Separate Use. 
 
 OWNERSHIP 
 
 of land, 221 
 
 " PARENT," 88 
 
 PARENTHESES, 7 
 
 PAROL EVIDENCE OP INTENTION, 300, 305, 313 
 when admissible, 9, 12, 13 
 what is not evidence, 10 
 
 " PART," 269 
 
 " PAYABLE," 
 
 gift over, before shares payable, 218 
 
 PAYMENT. 
 
 gift and time of, distinct, 226 
 
 PERPETUAL ADVOWSON, 
 devise of, 130 
 
 PERPETUAL ANNUITY. See Annuity. 
 
 PERPETUITY, 181, 182 
 
 PER STIRPES, 194 
 
 distribution, 59, 190 
 
 PERSONAL ESTATE, 
 
 devise of, before 1838, 17 
 
 devise of real and personal residue blended, 45 
 
 blended real and personal estate, implied charges on, 290 
 
 See also Debts and Legacies. 
 proceeds of real estate, not, 46 
 " estate " formerly confined to, 53 
 bequest of income is gift of principal, 123 
 estate for life, 178 
 devise of, on failure of issue, 207 
 "vested," 222 
 
 See also Vesting. 
 words of survivorship in bequests of, 261 
 exoneration of, from payment of debts, 286 
 
 See also Debts and Legacies. 
 
344 
 
 INDEX. 
 
 PERSONS BESIGNATJS, 83, 93, 
 
 PORTIONS, 
 
 trust to raise, out of rents and profits, 121 
 legacies given as, 236 
 "portion," 269 
 
 POWERS OF APPOINTMENT, 
 
 effect of sect. 24 of Wills Act on execution of, 19 
 special powers created after date of will, 1 9 
 gift in default, 57 
 several sets of objects, 59 
 exercised in part, 61 
 not to arise till given period, 62 
 gifts by way of, to children, 69, 72 
 to " relations," 104 
 
 gift with power, no precatory trust, 162 
 estate tail, 181 
 Devises and bequest, when operating in execution of- — 
 devises and bequests not prima facie an execution of, 22, 25 
 direct references to power, 22, 25 
 intention to execute, 23 
 sufficient description, 23, 24 
 legacy of stock not execution of power, 24 
 identity of amount, how far material, 24 
 qualification of rule by Denn v. Roake, 25 
 rule in Denn v. Roake applies to leaseholds, 25 
 
 unaffected by Wills Act, 26 
 partial execution of power, 26 
 will of feme covert, when execution of power, 26 
 general powers under Wills Act, 27 
 
 general devises operate as execution of, 27, and n. a 
 exercise of power with reservation of power of revocation and new 
 
 appointment, 28 
 general powers, what are, 28, 29 
 powers acquired after date of will, 28 
 legacies, whether execution of general powers, 29 
 
 POWERS OF MANAGEMENT, 277 
 
 POWERS OF SALE, LEASING, &e., 153, 154 
 
 PRECATORY TRUSTS, 
 
 expression of testator's desire is prima facie imperative and creates, 
 
 159 
 examples — 
 
 recommend, 160 
 
 request, 161 
 ' desire, 161 
 
 entreat, 161 
 
 advise, 161 
 
 confidence, 162 
 
 trusting, 162 
 
 well knowing, 162 
 
 hoping, 162 
 gift with power to appoint : no precatory trust, 162 
 contrary intention, 163 
 uncertainty of amount, 164 
 
INDEX. 345 
 
 PRECATORY TRUSTS— continued. 
 trusts for maintenance, &o., 165 
 
 ^'cMdfen^'ie^S^ disposed of for the benefit of herself and 
 gift to A., to provide for her children, 166 
 gift to parent of income to be applied to the maintenance, 
 &c. of children, 166 ' 
 
 uncertainty of objects, 166 
 precatory trust raised, although object not defined, 166 
 
 PROBATE, 
 
 conclusive as to words of vrill, 8 
 
 "PROPERTY" 
 
 passes the fee, 133 
 
 PROPERTY AND TRUSTEES' RELIEF AMENDMENT ACT ''2 & 
 23 VICT. c. 35, ' " 
 
 effect of ss. 14-18, as regards the estates of trustees, 151, n. (a) 
 
 PUNCTUATION, 7-9 
 in original vfill, 8 
 
 PURCHASE MONEY, 
 
 of lands contracted to be sold, 38 
 
 PURCHASER, 
 
 heir male taking as, 169, 170, 171, 174, 178 
 issue taking as, 194, 195, 196 
 
 See also Issue. 
 
 " READY MONEY." See " Money, Ready." 
 
 REAL ESTATE, 
 
 passes leaseholds, 32 
 
 whether including leaseholds, 33 
 
 devise of, 210, 217 
 
 devise of, to pay debts, 289 
 
 direction that testator's debts be paid charges all real estate, 282 
 
 devise of real and personal residue blended, 45 
 
 blended real and personal estate, implied charges on, 290 
 
 See also Debts and Legacies. 
 proceeds of, not personal estate, 46 
 surplus proceeds of, 46 
 
 " estate" includes real and personal estate, 53 
 " effects" does not prima facie include, 55 
 
 •'RECOMMEND," 
 
 creates precatory trust, 160 
 
 RECURRING TRUSTS, 147, 148 
 RELATIONS, 96, 103, 110. See also Scccession. 
 
 REMAINDERS, 173, 174 
 gifts in, 73, 77 
 gift to children in, 114 
 in strict settlement, 181 
 to children as tenants in common in tail, 183 
 
 in fee, 183 
 meaning of '" vest" as applied to, 221 
 
346 
 
 ISfDEX. 
 
 H'EMAmBERS— continued. 
 
 remainders after an estate tail vested, 221 
 Fearne's definition, 222 
 bequest in remainder after life interest, 255 
 See also Estates Tail. 
 
 REMOTENESS, 181, 224 
 of bequest, 40 
 gift void for, 205, 215 
 
 RENEA^AL OF LEASE, 
 
 payment of expenses of, out of rents and profits, 121 
 
 RENTS, 130, 189 
 
 bequest of, to charitable purposes, 64-67 
 
 See also Charitt. 
 devise in trust to pay rents, 140 
 of net rents, 141 
 of rents for separate use, 141 
 to pay, with remainder, 157 
 devise to apply, during minority, 157 
 
 " RENTS AND PROFITS," 274, 277 
 devise of, is devise of land, 120 
 
 of an estate carries the fee, 120 
 trust to raise and pay out of " rents and profits" not confined to 
 
 annual " rents and profits," 120 
 trust to pay debts out of, 121 
 
 to raise portions, 121 
 direction to raise and pay fines and expenses attending renewals of 
 
 leases out of, 121 
 trust to pay debts and legacies, 122 
 annuity payable out of, 123 
 
 REPEATED LEGACY, 303 
 
 See also Legacy. 
 
 REPRESENTATIVES, 96, 106 
 
 bequest to A. or his representatives, 246, 247 
 See also Succession. 
 
 REPUBLISHED WILL, 14, 16 
 
 " REQUEST," 
 
 creates precatory trust, 161 
 
 RESIDUE, 
 
 title of executor to undisposed of residue, 311 
 
 RESIDUARY BEQUEST, 179, 231 
 " money" includes, 51 
 "rest of -my money" carries residue, 52 
 direction to pay debts followed by gift of residue, 286 
 
 RESIDUARY BEQUESTS AND DEVISES, 
 Bequest 
 carries lapsed and void legacies, 40 
 
 fund inefiectually appointed under sect. 27 of Wills Act, 41 
 particular property specifically given, 42 
 gift of residue, except certain property, 42 
 
INDEX. 347 
 
 RESIDUARY BEQUESTS AND D^YISS^S— continued. 
 share of residue which fails, 42 
 residue of " residue," 43 
 
 intermediate income, general residuary bequest carries, 43 
 hut not specific bequests, 44 
 Devises, 60 
 
 before 1838, lapsed devises not included, 44 
 
 devises void ab initio included, 44 
 
 by sect. 25 of Wills Act, lapsed and void legacies included, 45 
 
 intermediate income, 45 
 
 income of residuary devise alone, 46, 315 
 
 proceeds of real or personal estate converted, 46, 315 
 
 lapsed gift of proceeds of real estate, 47, n. 2 
 
 reversions and remainders, 47, n. 2 
 
 RESIDUARY ESTATE, 293, 297 
 
 direction that proceeds of real estate sold shall be part of residuary 
 
 personal estate subjects real estate to all charges, 293 y 
 gift of legacies followed by gift of residue of real and personal 
 estate (together] : legacies charged on real estate, 294 
 
 rule applies notwithstanding specific devise of real estate, 
 before residuary clause, 295 
 
 See also Debts and Legacies. 
 
 REVERSIONARY INTERESTS, 
 included in "lands," 33 
 lands " not settled," 34 
 included in residue, 47, n. 2 
 gift of, to a class, 74 
 fund partly reversionary, gift of, 75 
 
 REVOCATION, 
 
 by codicil, 15 
 
 codicil not a revival, 16 
 
 of devise to trustees by codicil, 158 
 
 execution of power of appointment with reservation of power of, 28 
 
 SALE, 
 
 powers of, 153 
 
 of lands liable to dower, directions as to, 277 
 
 direction to sell real estate does not furnish intention to exempt 
 from payment of debts and legacies, 287 
 
 SATISFACTION, 
 
 of debt by legacy, 299 
 
 " SECURITIES FOR MONEY" 
 
 passes legal estate in mortgage, 48 , .^ 
 
 moneys on mortgage, &c., whether the legal estate passes by, 49 
 stock in the funds passes under, 50 
 
 " SEPARATE USE," 60, 61, 162, 183 
 
 "sole" means, 116, sed qu. 118, n. 
 
 " own," " proper" use does not create, 117 
 
 gift "independently of any other person," creates, 118 
 
 "absolute," 118 ., ^ „ ^ ,_, 
 
 direction to pay dividends, &c., to, 1^1 
 
 devise in trust of rents for, 141 
 
 recurring trusts, 147, 148 
 
 gift of legacy to, 306 
 
348 INDEX. 
 
 SERVANTS, 
 
 legacy to, 63 
 
 " SHALL DIE," 
 
 not emphatic, 249 
 
 " SHARE," 133, 269 
 
 SHELLEY'S CASE, RULE IN, 143, 148, 185, 194 
 abolished in some American States, 184, n. 2 
 
 " SOLE." See Sepaeate Use 
 " SON," 
 
 as a word of limitation, 198 
 
 SPECIFIC BEQUEST, 44 
 
 SPECIFIC DESCRIPTION, 24 
 
 See also Description. 
 
 SPECIFIC LEGACY, 300 
 
 See also Legacy 
 
 STATUTE OF USES, 
 
 not in force in Ohio, 140, n. 1 
 
 does not apply to devises in Virginia, 140, n. 1 
 
 STATUTES cited : 
 
 22 & 23 Car. 2, c. 10 (Distribution), 98, 319 
 
 I Jac. 2, c. 17 (Distribution), 321 
 55 Geo. 3, c. 192 (Copyholds), 30 
 
 II Geo. 4 & 1 Will. 4, c. 40 (Executors, Residue), 311 
 3 & 4 Will. 4, c. 105 (Dower), 272, 275 
 
 s. 4 ; 278 
 s. 5 ; 278 
 s. 9 ; 275 
 s. 14 ; 272, n. (a) 
 3 & 4 Will. 4, c. 106 (Inheritance), 169, 177 
 7 Will. 4 & 1 Vict. c. 26 (Wills Act), 
 
 s. 24 ; 18, 19, 20, 316 
 ss. 24-33; 316 
 s. 25 ; 44, 45 
 s. 26 ; 32, 33 
 
 s. 27 ; 19, 22, 27, 28, 29, 41 
 8.28:120, 139 
 s. 29 ; 177, 214, 215, 216 
 s. 30; 142, 149, 156 
 s. 31 ; 155, 156 
 17 & 18 Vict. c. 113 (Mortgages), 278 
 
 8. 1 ; 280 
 22 & 23 Vict. c. 35 (Property and Trustee Relief Amendment Act), 
 ss. 14, 16 ; 151, n. (a) 
 
 STISFES, 194, 252 
 
 distribution per stirpes, 59, 190 
 
 STOCK, 126 
 
 legacy of, not execution of power, 24 
 
 " money " does not include, 49 
 
 passes under " securities for money," 50 
 
INBEX. 349 
 
 STOCK — continued. 
 
 contingent reversionary interest in, does not pass under " goods," 
 
 gift of produce is prima facie gift of fund, 123 
 
 direction to pay dividends, &c., to separate use of married woman, 
 
 gift of dividends to A. and B. and survivor, 124 
 gift of annuity in funds, 127 
 " funds " does not mean government annuity, 127 
 stock legacy not specific, 300 
 
 See also Legacy. 
 STOPS IN WILL, 7 
 
 SUBSTITUTED LEGACY, 304. See also Legacy. 
 SUBSTITUTION, 
 
 heirs take by, 92, 110 
 
 I' heirs" as a word of, 180 
 
 in testator's lifetime, 243 
 
 bequest to individuals with gift over of the legacy or share of 
 one dying under certain circumstances : substitution takes 
 place if the event happens in testator's lifetime, 243 
 legacy, immediate or in remainder, 243 
 legatee dead at date of will, 245 
 
 substitution takes place where gift is to individuals, although 
 legatee dead at date of will, 245 
 exceptions : — 
 where ^ift over is to executors or administrators of legatee, 
 substitution does not take place in testator's lifetime, un- 
 less gift be immediate, 246 
 bequest to A. or his representatives, 246 
 bequest to A. his executors, or administrators, 246 
 bequest to A. or his heirs : substitution takes place in testa- 
 tor's lifetime, although gift is not immediate, 247 
 immediate gift, what is, 247 
 substitution in gifts to classes, 247 
 
 bequest to A. for life, remainder to his children or their issue : 
 the issue of child dying in testator's lifetime cannot take, 
 248 
 independent gifts, 249 
 
 bequest to children of A. living at a given period, and the issue 
 
 of such children of A. as shall be then dead, 249 
 " shall die " not emphatic, 249 
 gifts partly substitutional, 250 
 
 issue of child dying in testator's lifetime admitted, but not 
 
 issue of child dead at date of will, 250 
 but otherwise where all of the class are dead at date of the 
 
 will, 251, n. 2 
 immediate gift to children with gift over of the shares of 
 those dying before their shares are payable, 251 
 gift to children then living or their representatives, 251 
 forms of gift compared — 
 
 gift to A. and B. or their issue, 251 
 
 gift to children of A. or their issue : either immediate, or in 
 
 remainder, 252 
 gift to children living at given period, and the issue of children 
 then dead, 252 
 
350 
 
 INDEX. 
 
 SUBSTITUTION— cow^iMuet^. 
 
 bequest to children of A. and issue of such as shall have died leav- 
 ing issue : no issue can take who do not survive the stirpes, 252 
 bequest to children living at a given period, and the issue of such 
 as shall be then dead ; whether the issue must survive to the 
 given period, 253 
 gift to A., and " in case of his death " to B., 254 
 
 gift over is restricted to death before period of distribu- 
 tion, 254 
 so a gift to A., and " in the event of his death ■' to B., 255 
 gift to " A. or his issue," 255 
 real estate, 256 
 
 "in case of death" following a life estate only, 256 
 absolute bequest and bequest for life in same will, 256 
 bequest to A., and "in case of his death leaving children,'' 
 
 over, 257 
 death without leaving issue restricted to the period of dis- 
 tribution in case of a deferred but not of an immediate 
 gift, 258 
 where gift over is by way of substitution only, 258 
 alternative gifts over, 259 
 gift over to " survivors " of legatees, 259 
 
 gift over restricted to death before vesting, 260 
 survivorship, indefinite or substitutional, 265 
 
 SUCCESSION TO PERSONAL ESTATE, 
 Descriptions relative to. 
 
 bequest to "A. or his heirs," 91 
 
 construed as gift by way of substitution to persons entitled 
 under Statute of Distributions, 92 
 includes widow but not husband, 92 
 heirs take as tenants in common, 92 
 heirs, when ascertained, 94 
 
 gift to persons entitled or entitled as next of kin under Statute of 
 Distributions, is gift to them in statutable- shares, 95 
 reference to intestacy, 96, 98 
 
 whether rule extends to "representatives" and " relations," 
 96 
 "next of kin," 97 
 
 does not mean " next of kin according to Statutes of Dis- 
 tribution," 97 
 according to the statute, 99 
 means next of kin at death of person whose next of kin 
 
 are spoken of, 100 
 although tenant for life be sole next of kin, 100 
 rule applies to devises to heir, 100 
 words of futurity do not exclude rule, 101 
 gift to next of kin of A. who dies in testator's lifetime, 102 
 "relations," 103 
 
 gift to, equivalent to " next of kin " according to the statute, 
 
 103 
 power to appoint to, 104 
 take per capita, 104 
 when ascertained, 105 
 "near" and "nearest" relations, 106 
 "representatives," 106 
 
 m.6a.ns prima facie executors or administrators, 107 
 
INDEX. 351 
 
 SUCCESSION TO PERSONAL ESTATE-conMnwad. 
 
 taking beneficially includes wife not husband, 108 
 gifts to share and share alike, 108 . 
 immediate gift to A. or his representatives, 109 
 whether representatives take statuable proportions, 109 
 rules compared — 
 
 heirs, representatives, 110 
 relations, next of kin, 110 
 next of kin, nearest relations, 110 
 
 SURPLUS, 293 
 
 proceeds of real estate, 46 
 surplus legal estate, disposition of, 143-158 
 See also Trustees. 
 
 SURVIVORSHIP, 124, 209, 252, 253 
 
 " surviving," read as " others," 202 
 
 bequest over to survivor or survivors of two or more persons, 210 
 
 provision for children pot to be read as contingent on surviving the 
 
 parent, unless intention be perfectly clear, 218 
 where no provision inconsistent with necessity of survivorship, rule 
 
 not applied, 220 
 words importing the necessity of survivorship, how got rid of, 219 
 gift over to " survivors" of legatees, 259 
 
 restricted to death before vesting, 260 
 words of survivorship refer, ^rma/acie to period of distribution, 261 
 
 whether rule applies to real estate, 262 
 tenant for life dying in testator's lifetime, survivorship referred to 
 testator's death, 262 
 
 contrary intention, 262 
 survivorship referred to last antecedent, 263 
 survivorship referred to period of vesting, 264 
 
 bequest to A. for life, remainder to his children at twenty- 
 one or marriage, ''with benefit of survivorship," 264 
 survivorship, indefinite or substitutional, gift to several and the sur- 
 vivors or survivor, 265 
 
 bequest, to several " equally to be divided between them, 
 and the survivors and survivor of them," 265 
 bequest to several " or " those living at a given period," 265 
 if more living at that period, all are held to take, 266 
 bequest to A. for life, remainder to his children " or the 
 
 survivors," 266 
 substitutional gifts introduced by the word " or," 267 
 directions to settle children's shares, 267 
 
 bequest to children, followed by directions to settle daughter's 
 shares ; daughters take absolutely, subject to trusts directed, 
 
 267 
 accruing share not subject to qualifying trusts, 268 
 devise or bequest to several, with direction that shares of those dying 
 
 without issue shall accrue to others ; clause of accruer does not 
 
 prima facie operate on accrued shares, 268 
 "portion," "part," "interest," 269 
 contrary intention where subject of gift is to be kept together as an 
 
 ao-gregate fund, 269 
 gift°of accruing shares "in manner aforesaid," 270 
 double clause of accruer, 270 
 
352 INDEX. 
 
 TENANTS IN COMMON, 59, 184, 185, 190, 191, 192 
 devise to, 37 
 heirs take as, 92 
 "equally," "shares," "between," "among," creates tenancy in 
 
 common, 112 
 gifts to children per capita, 113 
 
 gift to " children of A. and B." whether gift to B. or children, 113 
 gift to A. and B. as, for life, w^ith remainder to children, 114 
 gift to husband and wife, 115 
 in common in tail, 183 
 
 TENANT FOR LIFE, 100 
 
 devise to, 202 
 
 " TENEMENTS," 130 
 
 TERM or YEARS, 
 
 indefinite, 142, 149 
 
 TIME, 
 
 power not to arise till given period, 62 
 
 " TITHES," 130 
 
 TRUST, 
 
 to raise and pay, out of rents and profits, 120 
 / See also Rents and Phopits. 
 to pay debts and legacies out of rents and profits, 122 
 to pay .particular debt, 289 
 
 devise to trustees in trust for A., A. takes beneficial interest in fee, 
 138 
 
 TRUST ESTATES, 
 
 included in " lands," 35 
 
 devise of, 37 
 
 devise upon trust does not pass, 36 
 
 TRUSTEES, 
 
 to preserve, 185 
 
 charge of debts and legacies on trust estate, 284 
 See also Girr. 
 
 TRUSTEES, ESTATES OF, 
 Quantum of Estate, 
 devise in trust to pay rents, 140 
 
 to pay to, or permit and sufier, 141 
 of net rents, 141 
 of rents for separate use, 141 
 indefinite terms of years, 142 
 Disposition of Surplus Legal Estate. 
 trustees take so much of legal estate as the purposes require, 143 
 trusts for life, 144 
 trust limited to minority, 144 
 trust for life of A. and during minority of B., 144 
 estate co-extensive with trusts, 145 
 contrary intention, 145 
 devise to use of A. in trust for B., 145 
 devisp of copyholds to A. in trust for B. 145 
 gift over by way of direct devise, 145 
 
INDEX. 353 
 
 TRUSTEES, ESTATES OF— continued 
 
 trusts to preserve contingent remainders, 146 
 
 with remainder to such persons as A. should appoint, MO 
 devise to A. for life, remainder to trustees to preserve, re- 
 mainder to heirs of body of A. 147 
 recurring trusts, 147, 148 
 trusts to raise money, 148 
 
 indefinite terms of years, 149 
 determinable fee, 149-151 
 trusts for payment of debts, 151 
 
 effect of 22 & 23 Vict. c. 35, ss. 14-18, as regards the estates of 
 trustees, 151, n. (a) 
 direction to pay debts, 152 
 trust to pay annuities, 153 
 povfers of sale, leasing, &c., 153, 154 
 trusts to convey, &c., 155 
 New Law. 
 s. 31 of Wills Act, 155 
 ss. 30 & 31 compared, 156 
 effect of 31st section, 156 
 
 devise in trust to pay rents to A. for life, with remainder in trust 
 
 for B. : no alteration, 157 
 so devise to trustees to preserve contingent remainders, 157 
 devise to pay annuity, 157 
 
 devise to apply rents during minority : alteration, 157 
 devise by implication, 158 
 
 "TRUSTING" 
 
 creates preparatory trust, 162 
 
 UNAPPOINTED FUND, 60 
 
 UNCERTAINTY, 57 
 
 " VERY HEIR." See Heirs. 
 
 VESTING, 
 
 death before, 260 
 
 survivorship referred to period of, 264 
 
 meaning of " vest," 221 
 
 as applied to remainders, 221 
 
 remainders after an estate tail vested, 221 
 Fearne's definition, 222 
 personal estate " vested," in the civil law equivalent to un- 
 conditional or transmissible, 222 
 civil law sense of vested not applicable to English law, 223 
 " vested " means not subject to a condition precedent, 223 
 rules as to vesting — 
 
 Personal Estate. . . , . ^. , oo- 
 
 bequesttoA. "at" twenty-one, is ^rintas /a«e contingent, ^io 
 
 "upon," 225 
 
 "when," "as," "from," "after," 225 
 contrary intention, 225 
 
 bequest to children of A. at twenty-one, with gitt over 
 
 on death of A. without leaving children, 225 
 bequest to children at twenty-one, with gift oyer of 
 the shares of those dying under twenty one without 
 issue, 225 
 26 
 
35-4 Index. 
 
 Y'ESTmG— continued. 
 
 gift and time of payment distinct, 225, 226 
 
 gift to A. payable at twenty-one, is vested, 22() 
 
 so bequest to children of A. to be divided among them 
 
 on attaining twenty-one, 226 
 direction to accumulate the income, 226 
 bequest to A. to be paid on his marriage is contingent, 
 
 227 
 contrary intention, 227 
 gift of interest vests the principal, 227 
 gift of interest subject to a charge, 229 
 
 gift of interest remaining after payment of annuity, 
 
 229 
 gift of interest, but not interest of fund, 229 
 discretionary power of maintenance, 229 
 
 power to apply all or any part of income for mainte- 
 nance, does not vest principal, 229 
 contingent gift of interest does not vest principal, 230 
 immediate severance of legacy from bulk of estate, favors 
 
 vesting, 230 
 bequest of residue, 231 
 "vested" construed "indefeasible,'' 231 
 bequest to A. for life, and after his death to pay and divide 
 
 among his children, interests vest at birth, 232 
 bequest to children when youngest attains twenty-one, 
 children dying under twenty-one excluded, 233 
 gift of interest does not exclude the rule, 234 
 Legacies charged on land, 234 
 legacy to A. payable at twenty-one, with interest in mean- 
 time, is contingent, 234 
 contrary intention, 235 
 payment postponed for convenience of estate, 235 
 legacy to A. to be paid after death of tenant for life, vested, 
 
 235 
 legacies given as portions, 236 
 legacy payable out of real and personal estate, 236 
 legacies payable out of proceeds of land, 236 
 Meal Estate, 
 devise to B. till A. attains a given age, and when A. attains 
 that age, to him, construed as devise to B. for term of 
 years, with remainder to A., 237 
 applies to executory trusts, 238 
 intermediate estate may be given for the benefit of some 
 
 other person, 239 
 devise of freeholds and leaseholds, 239 
 devise to A. "if" he attains twenty-one, 239 
 devise to A. if he attains twenty-one, with gift over on his 
 death under twenty-one ; A. takes vested estate, 239 ( 
 so, if gift over be on death under twenty-one without issue, 241 
 so where devise is to a class, 241 
 devise to children who shall attain twenty-one, 241 
 devise to such child or children of A. as shall attain twenty-one is 
 
 contingent, 242 
 devise to A. "provided" he attain twenty-one, 242 
 
 VOID LEGACY. See Legacv. 
 
INDKX. 355 
 
 WASTE IMPEACHMENT OF, 185 
 
 "WEARING APPAREL," &g., 
 bequest of, 52 
 
 '• WELL KNOWING," 
 
 creates precatory trust, 162 
 
 AVIDOW, 92 
 
 payment of debts and legacies whore bulk of real estate devised to, 
 285 
 
 Sec also Dowek. 
 
 WILL, 
 
 republished, 14, 16 
 powers acquired after date of, 28 
 legatee dead at date of, 245 
 
 every disposition by, takes effect in priority to right of dower, 278 
 executed before 1834, not brought within the Dower Act by being 
 republished subsequently to 1838 ; 272, n. 
 
 WILLS ACT, 7 WILL. IV. & 1 VICT. c. 26 ; 18, 125, 194 
 
 reference of will to its own date, 20 
 
 specific description, 20 
 
 general powers of appointment under, 27 
 
 JFund ineffectually appointed under sect. 27 ; 41 
 
 sects. 24-32, construction, &o., clauses, 316 
 
 effect of sect. 24 on execution of powers, 19 ■ a- 
 
 by sect. 25, lapsed and void legacies included in residuary devise, 4o 
 
 sect. 29, "die without issue," 177, 214 
 effect of sect. 29 ; 215 
 
 sect. 31 ; 155 
 
 sects. 30 and 31 compared, 156 
 
 effect of sect. 31 ; 156 
 
 devise in trust to pay rents, with remainder over, Ui 
 trust to preserve contingent remainders, 157 
 devise to pay annuity, 157 
 
 to apply rents during minority, lu7 
 
 sect. 33 ; 316 
 
 See also Description. 
 
 WORDS, , ,, 
 
 to be fairly interpreted, -! 
 sense of, 2, 3 ^ 
 
 supplied or rejected, o 
 technical, 3, 4, 5 
 Descriptive of Property— 
 " securities for money, 4b 
 " money," 49 
 " ready money," ol 
 "estate," 53 
 "effects," 55 
 " goods," " chattels," 56 
 
 ^'°™b?quIst'o?you'nlest'attaini„g twenty-one, 233, 234, 235 
 
 THE KND.