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time of its inception, (i. e. of the making of the will,) never chap. xxx. could have had an object, as in the case of a gift to the children of A., a person then being, to the testator's knowledge, dead, leaving grandchildren only (i), it is not denied, that a strong argument in favour of such a doctrine might be drawn from cases, in which words have been carried beyond their ordinary signification, from the want of other persons or things more nearly answering to the terms of description used (k), in order to avoid the evident absurdity of supposing the testator to have made a gift without an actual or possible object. But this reasoning Suggestion for does not apply to a case in which the gift, being to the tended con
struction to children of a person living, might in event include objects such cases. subsequently coming in esse; so that no inference, that the testator does not mean children properly so called, arises from the fact of there being no child when he makes the gift. To apply the doctrine in question to such a case, is to allow the construction to be influenced by subsequent circumstances, in opposition to a well-known rule. Besides, it denies to a testator the power of giving to children, to the exclusion of descendants of another generation, (which is certainly a possible intention,) without using words of exclusion, though he might reasonably suppose the intention to exclude them was sufficiently apparent by the mention of another class of objects, and pot of them. In the case of a gift to A., and, after his death, to his children living at his decease; and if he dies without leaving children, to B. and his children, the testator may choose to prefer A. and his children, to B.
(1) Which, as before suggested, occurred, in respect of one class of children, in Radcliffe v. Buckley. The case of Lord Woodhouselee v. Dalrymple, 2 Mer. 419, stated next chapter, would probably be considered as aiding the argument for
an extension of the bequest to grand-
(k) Day v. Trig, 1 P. W. 286,
and his children; but it does not follow that he intends the same preference to extend to the grandchildren of A. It seems probable, therefore, that the Courts at this day would not apply to grandchildren a gift to children, on account of there being in event no immediate objects, as such a construction is clearly inconsistent with sound principles of interpretation; and all the authority which can be adduced in its favour, consists of dicta, which, in some cases (l), are rather weakened by the decisions with which they stand associated (m). If a gift to children may, in the eventual absence of children, be applied to grandchildren, pari ratione, it might, in the absence of both, be extended to a more remote class, as great-grandchildren; and of course, on the same principle, a gift to grandchildren might, under similar circumstances, be extended to issue of a more distant degree. Indeed, in Hussey v. Berkeley (n), Lord Northington expressed an opinion, that the word grandchildren would, without further explanation, comprehend great-grandchildren; the term being, he thought, in common parlance used rather in opposition to children, than as confined to the next generation; but, in the case before his Lordship, the testator had explained this to be his construction, by applying in another part of his will the term “grandchild ” to a great-grandchild. And the contrary of Lord Northington's doctrine was determined by Sir W. Grant, in the case of the Earl
Whether “ grandchild. ren” includes great-grandchildren.
(l) See Radcliffe v. Buckley, 10 Ves. 195.
(m) In the case of Loveday v. Hopkins, Amb. 273, Sir T. Clarke, M. R., held, that grandchildren were not entitled under a bequest to “ heirs,” because the term appeared by the context of the will to be used in the sense of children. Sir Edward Sugden has shewn, (Pow. 6th Edit., Vol. II, 273,) that a power to
appoint among children cannot be exercised in favour of grandchildren. He does not advert to any distinction in the case of there being no children. According to the doctrine, which the present writer has endeavoured to refute, such a power would in that event extend to grandchildren.
(n) 2 Ed. 194 ; S. C. nom. Hussey v. Dillon, Amb. 603.
of Orford v. Churchill (o), in which, however, it is remark- CHAP. XXX. able, that neither his Lordship’s dictum nor decision was noticed.
It should be observed, however, that, in a considerable “ Children” class of cases (p), the word child or children has received with issue. an interpretation extending it beyond its more precise and obvious meaning, as denoting immediate offspring, and been considered to bave been employed as nomen collectivum, or as synonymous with issue or descendants; in which general sense it has often the effect, when applied to real estate, of creating an estate tail. Where this construction has prevailed, however, it has generally been aided by the context. But even if the fact were otherwise, those cases would afford no authority for extending the word “ children” to grandchildren in the cases under consideration. There it was synonymous with issue in all events; here it is to be so construed only in certain events, leaving the signification of the word, therefore, dependent on circumstances arising subsequently to the making of the will, or, it may be, to the death of the testator. The cases, therefore, are not analogous. It remains to be observed, that a gift to children does Children by
affinity. not extend to children by affinity; consequently, a grandson's widow has been held not to be entitled under a devise to grandchildren (9).
II. But the question which has been chiefly agitated As to class of
children enin devises and bequests to children is, as to the point of titled. time at which the class is to be ascertained, or, in other words, as to the period within which the objects must be born and existent; supposing the testator himself not
() 3 Ves. & Bea. 59. (P) Vide post.
(9) Flussey v. Berkeley, 2 Ed.
chap. xxx. to have expressly fixed the period of ascertaining the
objects, which, of course, takes the case out of the general rule; for example, a gift to children “ now living," applies to such as are in existence at the date of the will (r), and those only; and a gift to children living at the decease of A. will extend to children existing at the prescribed period, whether the event happens in the testator's lifetime, (supposing that they survive him), or after his decease (s). The following are the rules of construction regulating the class of objects entitled in
respect of period of birth under general gifts to children. Immediate
1st. That an immediate gift to children, (i. e. a gift to gifts confined
take effect in possession immediately on the testator's deliving at death
cease), whether it be to the children of a living (t) or a deceased person (u), and whether to children simply or to all the children (x), and whether there be a gift over
(r) James v. Richardson, 1 Vent on himself. Harvey v. Harvey, 3 334; 2 Vent. 311; Burchet v. Dur- Jurist, 949. And here it may not dant, T. Raym. 330. See also At- be amiss to observe, that a child who torney-General v. Bury, 1 Eq. Ca. is made a legatee for life, is not Ab. 201; Crosby v. Clare, 3 Swanst. thereby incapacitated from claiming 320, n.; Abney v. Miller, 2 Atk. under a bequest of the ulterior in593; Blundell v. Dunn, 1 Madd. terest to the testator's children living 433.
at his (the testator's) decease. Jen(s) Allan v. Callow, 3 Ves. 289. nings v. Newman, 3 Jur. 748. Gift to children Where a testator gave a legacy to () 2 Vern. 105; 1 Eq. Ca. Ab.
at A. his daughter for life, and after 202, pl. 20; Pre. Ch. 470; 2 Vern. the death of B.
her death to his grandson B.; and 545; 1 Ves. sen. 209; 2 Ves. sen.
in case of the decease of any of the children under age CHAP. XXX. or not (y), comprehends the children living at the testator's death (if any), and those only; notwithstanding some of the early cases, which make the date of the will the period of ascertaining the objects (z).
It is scarcely necessary to observe, that this and the succeeding rules apply to issue of every degree, as grandchildren, great-grandchildren, &c., though cases to the contrary are to be found, especially at an early period. As in Cook v. Cook (a), where under an immediate devise, (i.e. a devise in possession,) to the issue of J. S., (which was held to apply to the children and grandchildren,) a son born after the death of the testator was allowed to participate. 2ndly. That where a particular estate or interest is In future gifts,
children born carved out, with a gift over to the children of the person before period of taking that interest, or the children of any other person, in. such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution (6). Thus in the case of a devise or bequest to A. for life, and after his decease to his children, or, (which is a better illustration of the limits of the rule, since, in the case suggested, the parent being the legatee for life, all the children who can ever be born necessarily come in esse during