construction of both wills was, "such of my mother's CHAP. XXIX. relations as are poor and proper objects." He said the difference was, that the latter gave a discretionary power

to the executor, and the former did not.

Again in the case of White v. White (k), a legacy of £3000 for the purpose of putting out poor relations apprentices was supported as a charity.

In the case of Mahon v. Savage (1), a testator bequeathed to his executor £1000, to be distributed among his (the testator's) poor relations, or such other objects of charity as should be mentioned in his private instructions. He left no instructions; and it was held by Lord Redesdale that the testator's design was to give to them as objects of charity, and not merely as relations. His Lordship thought that the executors had a discretionary power of distribution, and need not include all the testator's poor relations.

Mahon v. Sa

This case is clearly distinguishable from a simple gift Remark on to poor relations; for the additional words denoted that vage. charity was the main object of the testator. The same remark applies to the will of W. in Brunsden v. Woolredge; which decision in regard to the will of B., is not reconcileable with Widmore v. Woodroffe; but the Court probably allowed itself to be influenced by the terms of the other will.

In a subsequent case (m), Sir J. Leach, M. R., held that a devise of real estates to trustees "in trust to pay the rents to such of my poor relations as my trustees shall think most deserving," was a charitable trust, and consequently was void as a gift of an interest in land.

The question, however, which more than any other has

(k) 7 Ves. 423; see Attorney-General v. Price, 17 Ves. 371.

(m) Hall v. Attorney-General, Rolls, 28 July, 1829.

() 1 Sch. & Lef. 111.

CHAP. XXIX. been the subject of controversy in gifts to next of kin At what period and relations, refers to the period at which the objects are to be ascer- are to be ascertained; in other words, whether the person

the next of kin

tained.

To next of kin

of deceased per

son.

or persons who happen to answer the description at the testator's death, or those to whom it applies at a future period, are intended. Where a devise or bequest is simply to the testator's own next of kin, it necessarily applies to those who sustain the character at his death. It is equally clear that where a testator gives real or personal estate to A. (a stranger) during his life, or for any other limited interest, and afterwards to his own next of kin, those who stand in that relation at the death of the testator will be entitled, whether living or not at the period of distribution (n); there being nothing in the mere circumstance of the gift to the next of kin being preceded by a life or other limited interest to vary the construction; the result in fact being the same as if the gift had been "to my next of kin, subject to a life interest in A.” The death of A. is the period, not when the objects are to be ascertained, but when the gift takes effect in possession.

Where the gift is to the next of kin of a person then actually dead, or who happens to die before the testator, the entire property (at least, if there be no words severing the joint tenancy,) vests in such of the objects as survive the testator (o). If it be to the next of kin or relations of a person who outlives the testator, of course the description cannot apply to any individual or individuals at his (the testator's) decease, or at any other period during the life of the person, whose next of kin are the objects of

(n) Harrington v. Harte, 1 Cox, 131. See also 3 B. C. C. 284; 4 Id. 207; 3 East, 278; 3 Mer. 689.

(0) Vaux v. Henderson, 1 Jac. & Walk. 388, n. There being no words

of severance, the question, whether the gift could be read as applying to such of the next of kin as survive the testator, did not arise, as they were entitled quâcunque.

gift (p). The vesting must await his death, and will apply to those who first answer the description, without regard to the fact whether by the terms of the will the distribution is to take place then or at a subsequent period (q).

The rule of construction, which makes the death of the testator the period of ascertaining the next of kin, is adhered to, notwithstanding the terms of the will confine the gift to next of kin living at the period of distribution ; for this merely adds another ingredient to the qualification of the objects, and makes no farther change in the construction. Indeed, it rather affords an argument the other way.

Thus, where (r) a testator directed personal estate, and the produce of real estate, to be laid out for accumulation for ten years, and then a certain part thereof divided among such of the next of kin and personal representatives of B., as should be then living, Lord Thurlow held, that the next of kin at the testator's death, surviving the specified period, were entitled; for it was plain that the testator meant some class of persons, of whom it was doubtful whether they would live ten years.

The same construction prevails, though the tenant for life, at whose death the distribution is to be made, is himself one of the next of kin. As where (s) a testator bequeathed £5000 in trust for his daughter for life, and after her decease for her children living at her decease, in such shares as she should appoint; and in case she should leave no child, then as to £1000 part thereof in trust for the executors, administrators, and assigns of the daughter; and as to £4000, the remainder, in trust for

CHAP. XXIX. the person or persons who should be his heir or heirs at law. The daughter died without leaving children. She and two other daughters were the testator's heirs at law. Sir R. P. Arden, M. R., held, the heirs at the time of the testator's death to be entitled, from the absence of expression, shewing that these words were necessarily confined to another period, which, he said, required something very special. He thought the word "heirs" was to be construed as next of kin, but this it was unnecessary to determine, the daughters being entitled quâcunque viâ.

Effect where legatee for life is sole next of

kin.

But it should seem that if there is a gift to a person for life, with remainder to the testator's relations, and the person taking the life interest is the sole next of kin at the death of the testator, the gift will be considered as referring to the person answering the description at the death of the tenant for life.

Thus in the case of Jones v. Colbeck (t), where a testator devised the residue of his estate to the children of his daughter M., and until she should have children, or if she should survive them, then to the separate use of M. during her life; and after the decease of his said daughter and her children, in case they should all die under twenty-one, that the residuum should go and be distributed among his relations in a due course of administration. The daughter was the only next of kin at the testator's death. Sir W. Grant, M. R., thought it was clear that the testator intended to speak of relations not at the time of his own death, but at that of his daughter, or her issue under twenty-one; his Honor deeming it impossible that the testator could mean that the relations who were to take in that event, were the daughter herself, who the testator evidently thought would survive him.

(t) 8 Ves. 38.

CHAP. XXIX.

on Jones v.

But might not the testator, instead of giving to the daughter nominatim, choose to give to her by a description, which, if she died in his lifetime would carry his bounty to other objects? Sir R. P. Arden's principle was, that where a testator has constituted his devisees by a Observations general description, these words must be considered as Colbeck. referring to the death of the testator, "unless by the context, or by the express words, they plainly appear to be intended otherwise;" but this principle seems to have been somewhat relaxed in the last case, and perhaps still more so in those remaining to be stated, in which a strong disposition is manifested to adhere to the doctrine of the case of Jones v. Colbeck. Thus in Briden v. Hewlett (u), where a testator bequeathed all his personalty in trust for his mother for life, and after her decease, unto such persons as she by will should appoint; and in case his mother should die without a will, then to such person or persons as would be entitled to the same by virtue of the Statute of Distributions. The mother was the testator's sole next of kin at his death; and Sir J. Leach, M. R., held that she was not entitled absolutely in this character, and that the property devolved to the testator's next of kin at the time of the decease of the mother. "It is impossible," said his Honor, "to contend that this testator meant to give the property in question absolutely and entirely to his mother, because he gives it to her for life, with a power of appointment. In case of her death without a will, the testator gives his property to such person or persons as would be entitled to it by virtue of the Statute of Distributions. Entitled at what time? The word 'would' imports that the testator intended his next of kin at the death of his mother."

(u) 2 Myl. & Keen, 90. But see Harvey v. Harvey, post, 74, n.

Effect where prior legatee for

life was sole

next of kin.