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CHAP. XXIX. determination of the estates before devised, and to the

heirs of his body; Lord Eldon, with Mr. Baron Thompson, and Mr. Justice Lawrence, held, that a person, who answered the other parts of the description, but of another name, was not qualified, in respect of the name, by his having, before the determination of the preceding estates, obtained his Majesty's license that he and his issue might use the surname of Leigh instead of his own name, and having since assumed it.

That the design of the testator, in this case, was the exclusion of the female line, and that he was not influenced solely by attachment to the name, (one of which objects he must have had in view,) appeared from his not having imposed the obligation of assuming his name upon the issue of his sisters taking under the prior limit

ations. At what period The remaining question, applicable to the gifts under legatee must answer pre consideration, is, at what time the devisee or legatee scribed descrip

must answer the prescribed qualification or condition in regard to the name, supposing the will to be silent on the point.

If the devise confers an estate in possession at the testator's decease, that obviously is the point of time to which the will refers; and even where the devisee might, in other respects, take at the testator's decease an absolutely vested estate in remainder, it should seem that the same construction prevails. Such was the unanimous opinion of the Court in the two early cases of Bon v. Smith (m), and Jobson's case (n), where lands were devised to A. in tail, with remainder to the next of the testator's name, or the next of kin of his name; and it was admitted, in both cases, that the testator's daughter, if

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she had answered the description at the death of the testa- chap. XXIX. tor, would have been entitled.

But in the case of Pyot v. Pyot (o), Lord Hardwicke considered, that a different rule is applicable to executory devises, which are fettered with such a condition. The devise there was (as we have seen) to A. and her heirs, and, in case she should die before twenty-one or marriage, then to the testator's nearest relation of the name of the Pyots; and his Lordship expressly distinguished the case before him from Jobson's case, where he said it was not a contingent limitation over upon a fee devised precedent, nor was it a contingent, but a vested remainder, and, therefore, referred to the time of making the will [quære, the death of the testator ?]; whereas, in the case before the Court, the description of the person must refer to the time of the contingency happening; viz. such as, at that event, should be the testator's nearest relation of the name of the Pyots (p). If such a construction can be sustained, it must em- Remarks upon

Lord Hard brace all executory gifts to persons answering a pre- wicke's doc

trine in Pyot scribed character, as to next of kin, heir, and other such v. Pyot. persons; for it is difficult to perceive any valid reason for making the gifts under consideration the subject of any peculiar rule in this respect; and, as general doctrine, his Lordship's proposition would have to contend with a large amount of authority, including those cases in which (as we have seen) the words “next of kin” have been held to designate the next of kin at the time of distribution, on other special grounds (9): for it would have been idle to discuss the question, whether an executory gift to next

(0) 1 Ves. sen. 335, Belt's Edit.; Lowndes v. Davies, 2 Scott, 74; ante, ante, 63.

Vol. I., p. 848. (p) See further, on this point, (9) Ante, p. 53. Gulliver v. Ashby, 4 Burr. 1940;

CHAP. XXIX.

chap. xxix. of kin applied to the person answering the description of

next of kin when such gift took effect in possession, on the special ground that the prior legatee was sole next of kin, or one of the next of kin at the death of testator, if, by the general rule, an executory bequest to next of kin applied to the persons answering the description when the bequest took effect in possession (r).

Parents entitled concurrently with children under gift to next of kin.

(r) A case respecting the construction of gifts to next of kin has recently been decided, which is so important, that, although the more apposite place for its introduction (ante, p. 38) has been closed by the press, it has been deemed advisable to state it in this place. The case here referred to is Withy v. Mangles, (Rolls, 30th of July, 1841, 4 Jurist, 717,) where the question was, as to who were entitled under the ultimate limitation in a marriage settlement in favour of “such persons or person as shall be the next of kin of E. M. at the time of her decease?” E. M. died, leaving a child, and also her father and mother, each of whom claimed one equal third share of the property as next of kin: Lord Langdale, M. R., decided, that the parents, though postponed by the Statutes of Distribution to children, were, neverthe

less, entitled concurrently with the child as being of equal degree. His Lordship observed, “ All writers on the law of England appear to concur in stating, that, in an ascending and descending line, the parents and children are in an equal degree of kindred to the proposed person ; and, I think, that, except for the purposes of administration and distribution in cases of intestacy, and except in cases where the simple expression may be controlled by the context, the law of England does consider them to be in equal degree of consanguinity. The law of England gives a preference to the child over the parent in distribution; but I think we cannot, therefore, conclude with respect to every distribution of property, made in words to give the same to persons equally next of kin, the parents are to be held more remote than the child.”

CHAPTER XXX.

DEVISES AND BEQUESTS TO CHILDREN (a).

I. Whether Gifts to Grandchildren. begotten,” fc.; 6thly, As to
II. What class of Objects, as to Children en ventre.

period of birth, they compre III. Whether Children take per stir-
hend ; where, 1st, The Gift is pes or per capita.
immediate, i. e. in Possession ; IV. Children described as consisting
2ndly, There is an anterior of a specified number, which
Gift ; 3rdly, Possession is post differs from the actual number.
poned till a given Age ; 4thly, | v. Clauses substituting Children for
Effect where no Object exists at Parents.
the time of its falling into Pos | VI. Limitation over, as referring to
session ; 5thly, Wordsbornhaving or leaving Children.
or "begotten,or to be born or VII. Gifts to younger Children.

I. The legal construction of the word children accords Children, how

construed. with its popular signification (6); namely, as designating the immediate offspring; for, in all the cases in which it has been extended to a wider range of objects, it was used synonymously with a word of larger import, as issue (c). It has sometimes been asserted, however, that a gift to Whether it ex

tends to grandchildren extends to grandchildren, where there is no children, and

when,

(a) The writer has laboured to render this subject as clear and intelligible as possible; for, as scarcely a will comes into operation in which a gift to children is not contained, it is important that the rules of construction relating to them should be familiarly known.

(6) The French word enfans receives the same construction : Duhamel v. Ardouin, 2 Ves. sen. 162.

(c) Wythe v. Blackman, 1 Ves. sen. 196 ; Gale v. Bennett, Amb. 681 ; Chandless v. Price, 3 Ves. 99; Royle v. Hamilton, 4 Ves. 437.

CHAP. XXX. child. Thus, in Crooke v. Brookeing (d), though the

claim of grandchildren to be entitled in conjunction with a surviving child under a bequest to “children,” was rejected, yet the Lords Commissioners considered, that, if there had been no child, they might have taken. Lord Alvanley, too, in the subsequent case of Reeves v. Bryer (e), laid it down, that “ children may mean grandchildren, where there can be no other construction; but not otherwise.” Sir W. Grant, also, seems rather to have assented to, than denied the doctrine, though (9) he refused to apply it to a case in which there was a gift to the children of several persons deceased equally per stirpes, and one of the persons was, at the making of the will, dead, leaving grandchildren, but no child; his Honor being of opinion, that, as there were children living of the other persons, as to whom, therefore, the gift was clearly confined to those objects, he was precluded from giving the word a different signification in the other instance. The same learned Judge, on another occasion (h), refused to let in a great-grandchild under the description of “grandchildren,” there being grandchildren ; though he admitted, that “where there is a total want of children, grandchildren have been let in, under a liberal construction of

children.'” No such a case, however, it is conceived, can be found; and the doctrine appears to rest solely on the dicta of the Lords Commissioners, who decided

Crooke v. Brookeing, Lord Alvanley and Sir W. Grant. Where the gift If the extension of gifts to children to more remote could have had descendants were confined to cases in which, but for this an object.

construction, the gift, according to the state of events at the

otherwise never

(d) 2 Vern. 106.

(e) 4 Ves. 698. See also his Lordship’s judgment in Royle v. Hamilton, 4 Ves. 439.

(9) Radcliffe v. Buckley, 10 Ves. 198.

(h) Earl of Orford v. Churchill, 3 V. & B. 59.

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