presentatives" of kin. So, in the case of Robinson v. Smith (y), where the CHAP. XXIX. bequest was to M., his executors, &c., in trust to pay "Personal rethe interest to the testator's daughter, S., wife of M., for construed next her separate use for life, and, after her decease, to pay the trust monies to such persons as S. by will should appoint, and, in default, to her personal representatives. S. died in her husband's lifetime, without having made any appointment, and her husband claimed the fund as her administrator; but Sir L. Shadwell, V. C., decided that the next of kin of the wife were beneficially entitled. administra tors" held to kin. mean next of Indeed, so strong has been the leaning sometimes in "Executors or favour of the construction which gives to words pointing at succession or representation the sense of next of kin, that even a gift to executors or administrators has been thus construed. As in the case of Palin v. Hills (z), where a testator, after bequeathing certain pecuniary legacies, declared that, in case of the death of any or either of the legatees, his or her legacy should go to his or her executors or administrators; Sir J. Leach, M. R., held, that the residuary legatee of one of the legatees, who died in the testator's lifetime, was entitled to the legacy; but his decree was reversed by Lord Brougham, C., who decided in favour of the next of kin, on the authority of the case of Bridge v. Abbot (a); his Lordship thinking, that a gift to executors or administrators was wholly undistinguishable from a gift to legal representatives. From cases of this description, however, we must care (y) 6 Sim. 47. In another case, in the same volume (Styth v. Monro, 6 Sim. 49), the word "representatives" was construed, by force of the context, as synonymous with descendants. (2) 1 Myl. & Keen. 470. But CHAP. XXIX. "Executors or administrators" used as words of limitation. "Legal repre sentatives similarly construed. fully distinguish those in which the words "executors and administrators," or "legal representatives," are used as mere words of limitation. As in the common case of a gift to A. and his executors or administrators, or to A. and his legal representatives, which will, beyond all question, vest the absolute interest in A. (a). The same construction, too, in some instances, has been applied in cases of a more doubtful complexion; as where the bequest was to A. for life, and, after his decease, to his executors or administrators (b). In the case of Price v. Strange (c), a testator devised real estate to his wife during widowhood, and, at her death or marriage, to trustees, upon trust for sale, and directed that, in case the death or second marriage of his wife should not happen until his youngest child, being a son, should have attained twenty-three, or, being a daughter, should have attained that age, or be married with consent, his trustees should, immediately after the receipt of the money arising from the said real estates, pay and divide the same among such of his children as should be then living, and the legal representative or representatives of him, her, or them, as should be then dead; and in case such death or marriage of his said wife should happen during the minority of any of his said children, then the testator directed the trustees to pay an equal proportion of the said money to such of his children as should, at that time, be entitled to receive their shares, in case he, she, or they had been then living, and, if dead, then to his, her, or their legal representatives: Sir J. Leach, V. C., was of opinion that these words operated as words (a) Lugar v. Harmar, 1 Cox, 250. (b) Co. Litt. 54. b.; Socket v. Wray, 4 B. C. C. 483. of limitation, and that a child attaining twenty-three, who died during the widowhood of the wife, took a vested interest. CHAP. XXIX. executors, ad And it should seem, that where the word "assigns" is Limitation to subjoined to "executors and administrators," they are ministrators, always read as words of limitation, and not as designating next of kin. Thus, in Grafftley v. Humpage (d), where a sum of £4000 was bequeathed by A. to trustees, in trust for his wife and daughter, and the survivor, for life, for their separate use, and, after the decease of the survivor, in trust for the daughter's children, if any, and, if none, then the testator gave one moiety of the £4000 to his brother I., and the other moiety to such persons as the daughter should, by deed or will, appoint, and, in default, to the executors, administrators, or assigns of the daughter. The daughter died in the lifetime of her husband, childless, and without having made any appointment; and the husband was, on the ground above mentioned, held to be entitled as her administrator. Supposing the words "executors" or "administrators" not to be used as words of limitation, the question arises, whether the property so given vests in the persons answering such description for their own benefit, or is to be administered as part of the personal estate of the testator or intestate. The former result, indeed, is so manifestly contrary to probable intention, that the case of Evans v. Charles (e), in which this construction prevailed, has been generally condemned; and the Judge, whose solitary approbation the decision has elicited, did not choose to follow its (d) 1 Beav. 46. See also Hames v. Hames, 2 Keen. 646. (e) 1 Anstr. 128. See also Churchill v. Dibben, Sugd. Pow. and assigns. Whether exeministrators are cutors or ad entitled for their own bene fit. CHAP. XXIX. authority (e); and such a construction would be the more palpably absurd, now that, by express enactment (g), executors are excluded from taking beneficially, by virtue of their office, even the undisposed-of personal estate of their testator. Accordingly, it seems to be established, that, unless a contrary intention appears by the context, whatever is bequeathed to the executors or administrators of a person vests in them as part of the personal estate of the testator or intestate. Whether executors or administrators are entitled for their own benefit. Thus, where (h) a testator bequeathed £500 to B. during the life of A., and if B. died in A.'s lifetime, then to such persons as B. should by will appoint, and, in default of appointment, to his executors or administrators; Lord Langdale, M. R., held, that the executor of B. was bound to apply the legacy according to the purposes of the will. It is singular that no claim was advanced by the next of kin, on the authority of the case of Palin v. Hills. If, however, the testator explicitly declares that the executors or administrators shall be entitled for their own benefit, this construction must prevail against any suggestion as to the improbability of such a mode of disposition. As, in Wallis v. Taylor (i), where a testatrix bequeathed a fund to trustees, in trust to pay the interest for the separate use of her daughter for life, and, after her decease, upon trust to transfer the principal to her executors or administrators, to and for his, her, or their use and benefit absolutely for ever; Sir L. Shadwell, V. C., held, that the husband of the daughter, on his taking (e) See Long v. Blackall, 3 Ves. 483. (g) Vide stat. 1 Wm. 4, c. 40. 325. See also Hames v. Hames, 2 Keen. 646. (i) 8 Sim. 241. out administration, was absolutely entitled for his own benefit. CHAP. XXIX. In this case, the point of contention was not so much Remark on Wallis v. Taywhether the administrator was entitled in his own right lor. beneficially, or in his representative character, (this being, in regard to a husband-administrator, a matter of no importance, unless there are creditors, as he retains the property for his own benefit,) but whether, according to the case of Palin v. Hills, the bequest was not to be construed as applying to the next of kin. The testator's intimation, that the legatees should take for their own benefit, was not only consistent with, but, perhaps, was rather favourable to this construction, as tending to shew that the testator had in his view persons who might reasonably be presumed to be intended as beneficial objects of gift. The word relations taken in its widest extent embraces Gifts to relations, how conan almost illimitable range of objects; for it comprehends strued. persons of every degree of consanguinity, however remote, and hence, unless some line were drawn, the effect would be, that every such gift would be void for uncertainty. In order to avoid this consequence, recourse is had to the Statutes of Distribution; and it has been long settled, that a bequest to relations applies to the person or persons who would, by virtue of those statutes, take the personal estate under an intestacy, either as next of kin, or by representation of next of kin (k). It was formerly doubted whether this construction extended to devises of real estate, but the affirmative was decided in the case of Doe d. Thwaites v. Over (1), (*) 3 Ch. Rep. 77; Pre. Ch. 402; Gilb. Eq. Ca. 92; 1 Atk. 469; Ca. temp. Talb. 251; 2 Eq. Ca. Ab. 368, pl. 13; Dick. 50, 380; Amb. 70; 1 Durn. & E. 435, n., 437, n.; 3 B. C. C. 234; 4 Id. 207; 8 Ves 38; 9 Ves. 319; 3 Mer. 437, 689. (7) 1 Taunt. 263. |