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decease bequeath 1000 guineas to Lord C. “ for the use chap. xxx. of his seventh or youngest child, in case he should not have a To “seventh

or youngest seventh child living.At the testator's death, Lord C. child.” had six children living, and at the death of the executor ten. The executor bequeathed the money in the words of the original will, and Lord Thurlow held, that the youngest child at his death was entitled (p).

V. Where a gift is to the children of several per- Whether chil

dren take per sons, whether it be to the children of A. and B. (9), or stirpes or per

capita. to the children of A. and the children of B. (r), they take per capita, not per stirpes. The same rule applies, where a devise or bequest is To A., and the

children of B. made to a person described as standing in a certain relation to the testator, and the children of another person standing in the same relation, as to “my brother A. and the children of my brother B.(s);” in which case A. takes only a share equal to that of one of the children of B., though it may be conjectured that the testator had a distribution according to the statute in his view. And of course it is immaterial that the objects of gift are the testator's own children and grandchildren; as where (t) a legacy was bequeathed “equally between my son David and the children of my son Robert.”

But this mode of construction will yield to a very faint glimpse of a different intention in the context. Thus the mere fact, that the annual income, until the distribution

(0) But did not the language of the bequest import that the youngest was only to become entitled in case there was no seventh child at the time of ascertaining the object?

(1) Weld v. Bradbury, 2 Vern. 705; Lugar v. Harmar, 1 Cox, 250.

(r) Lady Lincoln v. Pelham, 10

Ves. 166. See also Barnes v. Patch,
8 Ves. 604; Walker v. Moore, 1
Beav. 607.

(8) Blackler v. Webb, 2 P. W.

(t) Williams v. Yates, 1 C. P. Coop. 177.

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chap. xxx. of the capital, is applicable, per stirpes, has been held to

constitute a sufficient ground for presuming that a like

principle was to govern the gift of the capital (u). To the younger Where (x) a testator bequeathed his “ fortune ” to be S., J. having equally divided between any second or younger sons of

his brother J. and his sister S.; and in case his said brother and sister should not leave any second or younger son, the testator gave and bequeathed his said fortune to his said brother and sister; it was held, that there being no son of J., and but one younger son of S., such younger

son took the whole. Gift to A. and Here it may be observed, that where the gift is to A. B.'s children.

and B.'s children, or to “my brother and sister's children,” (the possessive case being confined to B. and the sister,) it is read as a gift to A. and the children of B., or to the brother and the children of the sister, as it strictly and properly imports, and not to the respective children of both, as the expression is sometimes inaccu

rately used to signify (y). "To the chil. So a bequest of a residue to be divided among “ the dren of my cousin A. and my children of my late cousin A., and my cousin B., and their cousin B."

lawful representatives,” has been held to apply to B., not to his children (2).

Whether dying VI. Another subject of inquiry is, whether a gift over, dren means hav. in case of a prior devisee or legatee dying without chil

without chil.

(u) Brett v. Horton, Rolls, July 20, 1841, rep. 4 Jur. 696.

(x) Wicker v. Mitford, 3 B. P. C. Toml. Ed. 442. And see Malcolm v. Martin, 3 B. C. C. 50.

(y) See Doe d. Hayter v. Join ville, 3 East, 172. If, however, A. and B. were husband and wife, (as

if the bequest were to John and Mary Thomas's children,) no doubt the construction would be different; it would be held to apply to the children of both.

(2) Lugar v. Harmar, 1 Cox, 250.


dren (a), means without having had or without leaving a chap. xxx. child.

ing or leaving a In Hughes v. Sayer (6), a testator bequeathed personally to A. and B., and upon either of them dying without children, then to the survivor; and if both should die without children, then over; and it was held to mean Upon A and B.

both dying children living at the death. The great question in this without chil.

dren. case was, whether the word “ children” was not used as synonymous with issue (c) indefinitely, in which case the bequest over would have been void; and the M. R. seems to have thought, that whether it meant issue or children, it referred to the period of the death (d).

So, in the case of Thicknesse v. Liege (e), where a testator devised the residue of his estate in trust for his daughter for life, and after her decease among her issue, the division to be when the youngest should attain twenty-one; and if any of them should be then dead, leaving lawful issue, the guardian of such issue to take his or her share. But if his daughter happened to die if A. happened

to die without without any child, or the youngest of them should not any child. arrive to twenty-one, and none of them should have left issue, then over. The testator's daughter at the time of his death bad one child, who had four children, but they, as well as their mother, all died in the lifetime of the daughter, so that she died without leaving issue at her death; and it was held, that the devise over took effect.

But the words without having children are construed to mean, as they obviously import, without having had a child.


(a) Of course this question may arise where the person, whose issue is referred to, is not the prior legatee, but it happens rarely to have presented itself in such a shape. (6) 1 P. W. 534. VOL. II.

(c) As to which see Doe d. Smith v. Webber, 1 B. & Ald. 713, and ante, 33.

(d) But see Massey v. Hudson, 2 Mer. 135.

(e) 3 B. P. C. Toml. ed. 365.




Thus, in the case of Weakley d. Knight v. Rugg (9),

where leasehold property was bequeathed to A., “and in Without having case she die without having children,” over; it was children, how

held, that the legatee's interest became indefeasible on the birth of a child.

In Wall v. Tomlinson (h), a residue, which was given to A. “in case she should have legitimate children, in failure of which,” over, was held to belong absolutely to A. on the birth of a child, who died before the parent. « Failure” here evidently referred not to the child, but to

the event of “having children.” Construction of The word leaving obviously points at the period of the word “ leav

death. Thus a gift to such children, or issue as a person may leave, is held to refer to the children or issue who shall survive him, in exclusion of such objects as may die in his lifetime; and this construction was applied in a recent case (ë) to a gift to the lawful issue of A. and B., and of such of them as should leave issue, the latter words being considered as explaining, that the word “issue,” in the first part of the sentence, meant those who were left by the parent; the consequence of which was, that the children, who did not survive the parent, were not enti

tled to participate with those who did. Word "lear. Although, as we have seen, the word “ leaving ” primâ

facie points to the period of death, yet this term, like all others, may receive a different interpretation by force of an explanatory context. Where a gift over is to take effect in case of a prior legatee for life, whose children are made objects of gift, dying without leaving children, it is sometimes construed as meaning, in default of objects of the prior gift, even though such gift should not have been confined to children living at the death of the parent.

period of death.

(9) 7 Durn. & E. 322. See also Maule v. Stone, 2 Simons, 490.

(h) 16 Ves. 413.
(i) Cross v. Cross, 1 Sim. 201.

Where the gift over is in the event of two persons, CHAP. xxx. husband and wife, not leaving children, the question In case of two

persons, hus. arises, whether the words are to be construed, in case band and wife, both shall die without leaving a child living at the death dren.

h leaving no chil. of either, or in case both shall die without leaving a child, who shall survive both.

As in the case of Doe d. Nesmyth v. Knowls (k), where the devise was to William Smyth and Mary his wife, and the survivor of them, during their lives, then to Mary their daughter, or, if more children by Mary, equal between them; and, in case they leave no children, to their heirs and assigns for ever; it was held, that the fee simple became vested under the last devise, when the survivor of William and Mary (namely William) died, leaving no children of their marriage surviving him, though a child was living at the death of Mary, Mr. Justice Bayley observing—“they cannot be said to leave no children till both are gone.”

If the several persons on whose decease, without chil- Distinction dren, the gift over is to take effect be not husband and not husband

and wife. wife, the obvious construction is to read the words as signifying, “in case each or every such person shall die without leaving a child living at his or her own respective decease,” supposing, of course, that the testator is not contemplating a marriage between these persons, and their having children, the offspring of such marriage; a question which can only arise when the persons are of different sexes, and not related within the prohibited degrees of consanguinity; for the law will not presume that a marriage between such persons, i. e. an illegal marriage, was in the testator's contemplation.

where they are

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