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relation of the name of Pearce, but was, in default of chap. XXIX. such appointment or adoption, to take effect. If it should so happen, that Thomas Pearce, the devisee for life, should also, at the death of the testator, answer the description of the person who is to take under the ultimate limitation, ought he, because he fills the two characters, to be excluded from taking under that limitation? It is argued, that he ought, because the gift to Thomas Pearce for life, and the restrictions put upon him in his character of tenant for life, are wholly inconsistent with an intention on the part of the testator to give him the absolute power over the estate. But the testator could not have had in his view and knowledge, that the ultimate gift, which is limited to a person unascertained at the date of his will, would go to Thomas Pearce. The argument derived from intention does not apply in this case, and I am of opinion, that, upon the true construction of the will, Thomas Pearce took under the ultimate limitation, not because he was the individual person intended by the testator to take, but because he answers the description of the person to whom the estates are ultimately given.”
Sometimes (as in the last case) it is made part of the Gifts to perdescription or qualification of a devisee or legatee, that tor's name. he be of the testator's name. The word “name,” so used, admits of either of the following interpretations : First, as designating one whose name answers to that of the testator (which seems to be the more obvious sense); and, secondly, as denoting a person of the testator's family; the word “name” being, in this case, synonymous with “family” or “ blood.” The former, as being the more natural construction, prevails in the absence of an explanatory context; and such is most indisputably its meaning, when found in company with some other term or expression, which would be synonymous with the
sons of testa
CHAP. XXIX. word “name;" if otherwise construed; for no rule of con
struction is better established, or obtains a more unhesitating assent, than that where words are susceptible of several interpretations, we are to adopt that which will give effect to every expression in the context, in preference to one that would reduce some of those expres
sions to silence. To next of tes. Thus, where a testator gives to the next of kin of his tator's name, or next of kin name (c), or to the next of his name and blood (d), it is of his name,
evident that he does not use the word “name” as descriptive of his relations or family only, because that would be the effect, if the mention of the name were wholly omitted, and the gift had been simply to his next of kin or the next of his blood; and hence, according to the principle of construction just adverted to, it is held, that the testator means additionally to require that the devisee or legatee shall bear his name. Where, on the other hand, the testator gives to the next of his name (e), there is ground to presume that he intends merely to point out the persons belonging to his family or stock, without regard to the surname they actually bear. Such was the construction which prevailed in the case of Pyot v. Pyot (g), where a point of this nature underwent much
(c) Jobson's case, Cro. Eliz. 576,
(e) But see Bon v. Smith, Cro.
case of Pyot v. Pyot, 1 Ves. sen. 337, post, who seems to have included in his condemnatory strictures Jobson's case, Cro. El, 576, where the language of the will was different; the devise being “ to the next of kin of my name,” and which, therefore, according to the reasons ing in the text, was properly construed as importing that the devisee should, in addition to being of the testator's family, bear his name.
(9) 1 Ves, sen. 335, Belts' Ed.
discussion. A testatrix devised her estate, real and per- CHAP. XXIX. sonal, to trustees, and their heirs, executors, administrators, and assigns, in trust, first, for her daughter Mary, and her heirs, executors, administrators, and assigns, for ever; provided that, if she (Mary) died before twenty-one or marriage, then in trust to convey and assign all the residue of her estate to her nearest relation of the name of to the near
est relation of the Pyots, and to his or her heirs, executors, administra- the name of the tors, and assigns. Mary died under twenty-one, and "yotse unmarried. At the death of the testatrix, there were three persons then actually of the name of Pyot, namely, the plaintiff, and also his two sisters who were then unmarried, but who married before the happening of the contingency. There was also a sister, who, prior to the making of the will, was married, and, consequently, at the death of the testatrix, was not of that name. An elder brother of these persons had died before the testatrix, leaving a son also of the name of Pyot, who was her heir at law, but who, of course, was one degree more remote than the others. On behalf of the heir at law, it was insisted—First, that this devise to the “nearest relation” was void for uncertainty, because the word “relation” was not nomen collectivum; for no words were of that description, except such as had no plurals: Secondly, that, if it was not void, then the heir at law was the person meant by“ nearest relation ;” for the testatrix had in view a single person, and could not intend to give it to all her relations. But Lord Hardwicke said, that a devise was never to be construed absolutely void for uncertainty, unless from necessity; and if this necessarily related to a single person, it would be so, as there were several in equal degree of the name of Pyot. But he did not take it so: the term “ relation” was nomen collectivum as much as heir or kindred. “Then,” continued
CHAP. xxix. his Lordship, “ taking this to be nomen collectivum, as I
do, there is no ground in reason or law to say, the plaintiff should be the only person to take; because there is no ground to construe this description to refer to the actual bearing the name at that time, but to refer to the stock of the Pyots. If it refers to the name, suppose a person of nearer relation than any of those now before the Court, but originally of another name, changing it to Pyot by act of Parliament, that would not come within the description of nearest relation of the name of Pyot; for that would be contrary to the intention of the testatrix; and yet that description is answered, being of the name of Pyot, and, perhaps, nearer in blood than the rest. Then suppose a woman nearer in blood than the rest, and marrying a stranger in blood of the name of Pyot; that would not do; and yet, at the time of the contingency, she would be of the name. In Jobson's case, and in Bon v. Smith (which was a case put at the bar by Serjeant Glanville, which was often done in those times, but cannot be any authority), it is next of kin of my name (h), which is a mere designation of the name, and is expressed differently here. It may be a little nice; but, I think, the Pyots' describe a particular stock, and the name stands for the stock; but yet it does not go to the heir at law, as in the case of Dyer, because it must be nearest relation, taking it out of the stock; from which case it also differs, as the personal is involved with the real; and it was meant that both should go in the same manner; and shall the personal go to the heir at law? Then this plainly takes in the plaintiff and his two sisters unmarried at the time of making the will, although married before the contingency; and I think
(h) This is not accurate ; vide ante, p. 62, n. (e).
the other sister, not before the Court, is equally entitled chap. XXIX. to take with them; the change of name by marriage not being material, nor the continuance of the name regarded by the testatrix.” Where a gift to persons of the testator's name is held, As to females
losing name by according to the more obvious sense, to point to persons marriage. whose names answer to that of the testator, of course it does not apply to a female who was originally of that name, but has lost it by marriage. As in Jobson's case (i), often before cited, which was a devise of lands in tail, the remainder to the next of kin of the testator's name. The next of kin, at the date of the will, and also at the death of the testator, was his brother's daughter, who was then married to J. S.; and, on the death of the tenant in tail, without issue, the question was, whether she should have had the land ? and it was held, that she should not, because she was not then of the name of the devisor.
Another question is, whether gifts of this nature apply in cases the converse of the last, i. e. to a person who, being originally of another name, has subsequently acquired the prescribed name by marriage, or by voluntary assumption, either under the authority of a royal license, or the still more solemn sanction of an act of Parliament, or without any such authority (k).
In the case of Leigh v. Leigh (?), the testator, after To persons of limiting estates to his two sisters and their issue in strict and blood." settlement, devised the property, on failure of those estates, to the first and nearest of his kindred, being male and of his name and blood, that should be living at the
tion of a name, ante, Vol. I., p. 848.
(1) 15 Ves. 92.
(1) Cro. El. 576. See also Bon 1. Smith, Id. 332. (1) As to the voluntary assumpVOL. II.