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CHAP. xxix. And even where the construction which refers the deDeclaration . scription to next of kin at the period of distribution, was that next of kin shall take vested excluded by a declaration that the next of kin should interests at tes tator's decease. take vested interests at the testator's death, this was con

sidered as not affording a ground for letting in the prior legatee for life, (who was the sole next of kin at that period,) but the gift was held to apply to the persons who would have been next of kin at the testator's death, if the legatee for life had been then dead, without issue, the context appearing to aid this construction.

Thus, in the case of Bird v. Wood (x), where the bequest was to the testatrix's daughter for life, and, after her death, as she should appoint, and, in default of appointment, to her (the testatrix's) next of kin, to be considered as a vested interest from the testatrix's death, except as to any child afterwards born of her daughter. The daughter having died childless, and without making any appointment, Sir J. Leach, V. C., held, that the persons who would be next of kin at the testatrix's death, if her daughter had been then dead without children, were plainly intended. The daughter herself could not be such next of kin; for they were to take at her death.

The exception of the daughter's children seems to give

rather a special character to this case. Bequest, in de. And it seems, that if property be given to a testator's feazance of a prior gift, to the next of kin in defeazance of a prior gift in favour of perpersons who

sons, who, if they survive him, will be his next of kin at tive next of kin. :

his death, the gift is considered as pointing to next of kin at a future period.

As where (y) a testator bequeathed the residue of his personal estate, upon trust (among other things) to raise the sum of £200, and pay the same to his son J., and he

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gave the interest of the residue of the personalty to his (tes- chap. XXIX. tator's) widow for life; and, after her decease, one moiety to his son C., and the other moiety thereof to J. By a codicil he declared, that, in case his son C. should die in the lifetime of the testator's widow, and his son J. should be living, he gave to J. the share of C.; but, in case C. and J. should both die in the lifetime of the testator's wife, he directed, that, after her decease, the whole of the residue of his personal estate, after securing a certain annuity, should go to, and be divided among all and every his (the testator's) next of kin, in equal shares. C. and J. survived the testator, and died in the lifetime of the widow. Sir W. Grant, M. R., held, that, as the testator had given by express bequest to his sons, who were his next of kin living at his death, he must, when he used the term “ next of kin," have meant his next of kin at some other period than at his decease, and, therefore, that the next of kin at the death of the widow, and not at the death of the testator, were entitled.

It is to be observed, however, that the sons, even if Remark on they survived the testator, were not necessarily his sole next of kin at his death, as he might have had other children. And the circumstance, that the prior legatee, whose Effect where

such person interest, on his death without issue, or other such contin- was one of next gency, is divested in favour of the ulterior gift to the testator's next of kin, was one of such next of kin at the time of his (the testator's) death, has been deemed a sufficient ground for construing the words to import next of kin at the happening of the contingency.

Thus, in the case of Butler v. Bushnell (2) where a testator bequeathed certain shares in his residuary estate

Miller y. Eaton

of kin,

(z) 3 Myl. & Keen, 232.

OF KIN CHAP. XXIX. to his daughters for their lives, and, after their respective

deceases, to their children; and, in case there should be no child or children of his daughters respectively, who should attain twenty-one or marry, then, in trust for such person or persons who should happen to be his (the testator's) next of kin, according to the Statute of Distributions. One of the daughters, who survived the testator, died without issue; and Sir J. Leach, M. R., decided that her share devolved to the testator's next of kin at the decease of the daughter, and not to the next of kin at his own death, on the ground of the improbability that the testator should mean to include, as one of his next of kin, the person upon whose death, without issue, he had expressly

directed that the property should go over. Gift expressly Of course, if property be given upon certain events to to next of kin at a future such persons as shall then be next of kin or relations of period.

the testator, the persons standing in that relation at the period in question, whether so or not at the death of the testator, are, upon the terms of the gift, entitled (a).

It is worthy of remark, that, in all the cases in which the words “next of kin” have been held to refer to next

(a) Long v. Blackall, 3 Ves. 386. It should be observed, that the cases of Jones v. Colbeck, and Miller v. Eaton, which are here referred to special grounds, have been cited by a respectable text writer, as author ities for the position that a bequest to the next of kin after a life in terest, refers to those who answer the character at that time, 1 Rob. on Wills, 3rd Ed. 432. This is not only directly opposed to the general principles which govern the vesting

of estates*, but also to the strong line of authorities before cited in support of the contrary general rule; to which may be added Holloway v. Holloway, and other cases of the same class before mentioned. It is, moreover, inconsistent with the principle on which Sir W. Grant rested his decision in each of the first-mentioned cases themselves, as will be seen by a perusal of his judgments.

• As to which, see ante, Vol. I., p. 726.

CHAP. XXIX.

of kin at the period of distribution, the subject of gift was personal estate; and it seems somewhat doubtful how far the construction would apply to devises of real estate, seeing the stronger disinclination of the Courts, in reference to realty, to suspend the vesting. It is also observ- Whether preable, that, in every instance in which this construction has apply to devises

of real estate. prevailed, the person, on whose decease the gift over to next of kin was made to take effect, was the expectant next of kin at the date of the will; and, therefore, the cases do not necessarily decide what would be the effect where such person became next of kin through subsequent events occurring in the testator’s lifetime. These remarks are suggested by the case of Pearce v. Vincent (6), where a testator devised lands to his cousin, T. Pearce, for life, and, after his decease, to such of the testator's relations of the name of Pearce (being a male) as his cousin T. Pearce should by deed appoint, and, in default of appointment, to such of the testator's relations of the name of Pearce (being a male) as T. Pearce should adopt, if he should be living at the time of the decease of T. Pearce; and, in case T. Pearce should not have adopted any such male relation of the testator, or, in case he should have done so, and there should not be any such male relation living at the decease of T. Pearce, then the testator devised the property to the next or nearest relation or nearest of kin of himself of the name of Pearce (being a male), or the elder of such male relations, in case there should be more than one of equal degree, who should be living at the testator's decease, his heirs, executors, administrators, and assigns, for ever. The will also contained a power to T. Pearce to lease for any term not exceeding seven years. T. Pearce, the tenant for life, died without issue, and without having

(6) 1 Cromp. & Mees. 598 ; 2 Myl, & Keen, 800 ; 2 Scott, 347;

2 Bing. N. C. 328; 2 Keen, 230, S. C.

CHAP. xxix. executed the powers of appointment or adoption given by

the will. The nearest of kin of the testator, living at the time of his decease, (which occured in 1814,) were-first, his cousin T. Pearce (the devisee for life), aged sixty-seven; secondly, his cousin Richard Pearce, the son of another uncle, and who was aged sixty-six; and, thirdly, William Pearce, a younger brother of Richard. The testator had had a brother named Zachary, who, if living at his death, would have been his nearest of kin; but it appeared that he went to sea, and had not been heard of since 1795. The question was, what estate, assuming Zachary to have died without issue in the lifetime of the testator, Thomas or Richard took under the ultimate limitation? Sir John Leach, M. R., sent a case on this point to the Judges of the Court of Exchequer, who certified their opinion, that Thomas took an estate in fee in the real estate, and the absolute interest in the personalty. The M. R., being dissatisfied with the certificate, sent a case to the Common Pleas, the Judges of which were of the same opinion; and these certificates, after some argument, were confirmed by Lord Langdale, (who had in the mean time succeeded Sir J. Leach at the Rolls,) and whose judgment contains a very clear statement of the principle of the decision. “ The question is,” said his Lordship, “ whether Thomas Pearce, being devisee for life, and filling the character of the person to whom the testator has given his estates in certain events, is, because he is tenant for life, to be excluded from taking under the description in the ultimate limitation, which he afterwards filled ? It is tolerably clear, that a vested interest was given to the person who should, at the time of the testator's death, answer the description in the ultimate limitation, which vested interest might have been divested by the appointment of Thomas Pearce, or by his adoption of a male

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