that all the relations specified should take per capita, including the children of a living sister. He thought, however, that the testator had a distribution according to the statute in his view; at all events, that the contrary was not sufficiently clear to induce him to depart from the common rule. The children of the living sister, therefore, were excluded (h).

As relations by the half-blood are within the statute, so they are prima facie comprehended in gifts to next of kin and to relations; and a bequest to the next of kin of A. "of her own Relations of blood and family as if she had died sole, unmarried, and the half-blood. intestate," has received the same construction (i).

* A gift to next of kin or relations, of course, does not ex- [*977] tend to relations by affinity (k), unless the testator has subjoined to the gift expressions declaratory of an intention to include them. Such, obviously, is the effect of a bequest ex- Relations by pressly to relations "by blood or marriage" (1), or of a affinity. gift by a married man "to nephews and nieces on both sides" (m).

1

It is clear that a gift to next of kin or relations does not include a husband (n)2 or wife (o),3 nor is a wife included in a bequest to "my next of kin, as if I had died intestate" (p); the latter Husband or words being considered not to indicate an intention to wife.

(h) Stamp v. Cooke, 1 Cox, 234.

(i) Cotton v. Scarancke, 1 Mad. 45. The presumption may be rebutted by the context of the will, Re Reed, 36 W. R. 682.

(k) Maitland v. Adair, 3 Ves. 231; Harvey v. Harvey, 5 Beav. 134. See Craik v. Lamb, 1 Coll. 489, 494.

(1) Devisme v. Mellish, 5 Ves. 529.

(m) Frogley v. Phillips, 30 Beav. 168, 3 D. F. & J. 466. suffice to include particular relations by affinity, see post, Ch. Hibbert. L. R., 15 Eq. 372.

As to what will or will not
XXX. s. ii., and Hibbert v.

(n) Watt v. Watt, 3 Ves. 244; Anderson v. Dawson, 15 id. 537; Bailey v. Wright, 18 id. 49, 1 Sw. 39.

(a) Nicolls v. Savage, cit. 18 Ves. 53; Re Parry, Scott v. Leak, W. N. 1888 p. 179.

(p) Garrick v. Lord Camden, 14 Ves. 372. See also Davies v. Bailey, 1 Ves. 84; Worsely r. Johnson, 3 Atk. 758, Cholmondeley v. Lord Ashburton, 6 Beav. 86, Kilner v. Leech, 10 Beav. 362, Lee v. Lee, 29 L. J. Ch. 788. In Re Collins' Trusts, W. N. 1877, p. 87, the widow was upon the context held entitled to share, sed qu. In Ash v. Ash, 10 Jur. N. S. 142, the widow was admitted to a share because the will was thought to amount to a declaration of intention to die intestate. In Hawkins v. Hawkins, 7 Sim. 173, a fund belonging to the wife (who was illegitimate) was settled in default of issue in trust for her next of kin; she died without issue in her husband's lifetime, and it was held against the Crown that the settlement was exhausted, and that the husband administrator was entitled for his own benefit.

1 A step-son of the testator is not a relation of his under the Massachusetts Gen Stat. c. 92, § 28. Kimball v. Story, 108

Mass. 382.

2 A man may take as "husband" though his marriage was unlawful, and though a lawful husband be living. Hardy v. Smith, 136 Mass. 328.

33 Kent, 136; Clark v. Esty, 101 Mass. 36 Harraden v. Larrabee, 113 Mass. 430; Wetter v. Walker, 62 Ga. 142, 145; Withy v. Mangles, 4 Beav. 358; s. c 10 Clark & F. 215; Keteltas v. Keteltas, 72 N. Y. 312; Murdock v. Ward, 67 N. Y. 387; Luce v. Dun

ham. 69 N. Y. 36: Townsend v. Radcliffe, 44 III. 446, Jones v. Oliver, 3 Ired. Eq. 369; Watt v. Watt, 3 Ves. Jr. (Sumner's ed.) 244, note (a): Whitaker v. Whitaker, 6 Johns. 112; Hoskins v. Miller, 2 Dev. 360; Dennington v. Mitchell, 1 Green, Ch. 243; Byrne v. Stewart, 3 Desaus. 135; Storer v. Wheatley, 1 Penn. St. 506. See Cleaver v. Cleaver, 39 Wis. 96; Kimball v. Story, 108 Mass. 382, as to relations under the Statutes of Distribution; and compare ante, p. 934, note, as to whether the wife can take as "heir " of the husband.

give to the persons entitled under the statute at all events; i. e., whether next of kin or not. But under a bequest to the persons who under the statute would be entitled as on an intestacy (1), or to "legal" or "personal representatives" (where those words are held to mean persons entitled as upon an intestacy (r)), in either of these cases a wife is entitled to a share, for these terms do not imply consanguinity. In neither case would a husband be entitled. The reference, whether express or implied, to the statute excludes [*978] him (t); for he is not of kin and does not take his wife's estate under the Statutes of Distribution (u), but by a right paramount (x).

Gifts "to poor relations,"" how construed.

A difficulty in construing the word "relations" sometimes arises from the testator having superadded a qualification of an indefinite nature; as where the gift is to the most deserving of his relations; or to his poor or necessitous relations. In the former case, the addition is disregarded, as being too uncertain (y); and the better opinion, according to the authorities is, that the word "poor" also is inoperative to admit relations beyond the limits of the statute. Thus in Widmore v. Woodroffe (z), a testator bequeathed one-third of his property to the most necessitous of his relations by his father's and mother's side. He left a niece his sole next of kin according to the statute, and more remote relations; and it was argued for the latter that in consequence of the use of the word "necessitous" the gift ought not to be confined to those who were within the statute; but Lord Camden said "several cases have been cited, all making the statute the rule, to prevent an inquiry which would be infinite. Thus it would clearly stand upon the word 'relations' only, the word 'poor' being added makes no differ. ence. There is no distinguishing between the degrees of poverty." That is to say, unless limited by the statute, an inquiry who are poor

(q) Martin v. Glover, 1 Coll. 269; Jenkins v. Gower, 2 Coll. 537; Starr v. Newberry, 23 Beav. 436

(r) Cotton v Cotton, 2 Beav. 67, 10 Beav. 365 n; Smith v. Palmer, 7 Hare, 225; Holloway r. Radcliffe, 23 Beav. 163. Although in Booth v. Vicars, 1 Coll. 6, K. Bruce, V.-C., used the word "consanguinity," he expressly guarded himself on a subsequent occasion, Wilson v. Pilkington, 11 Jur. 537, against the supposition that he intended thereby to exclude the widow Robinson v Smith, 6 Sim. 49, proceeded on special grounds, as did Bulmer v. Jay, 4 Sim. 48, 3 My. & K. 197.

(t) King v. Cleaveland, 26 Beav. 166, 4 De G. & J. 477; and see Re Walton's Estate, 25 L. J. Ch. 569. But why should a reference to the statute be implied? Why should not the words be construed those who are entitled to the personal estate in case of intestacy? Generally those persons must be ascertained by reference to the statute; but is not that accidental? There is nothing importing consanguinity. If a woman dies leaving a husband, why should his beneficial title be worse because he is also the legal personal representative in the strict legal sense? However, the point is settled

(u) Milne v. Gilbart, 2 D. M. & G. 715, 5 D M. & G. 510. And see Watt v Watt, 3 Ve. 244.

(x) Per Lord Cranworth, L. J., Milne v. Gilbart, 2 D M. & G. 722. "It may be that he is entitled to administer under the statute of 31 Edw. 3, c. 11, but this is a different right," id. (y) Doyley v. Att.-Gen., 4 Vin. Abr. 485, pl. 16. 2 Eq Ca. Abr. 194, pl. 15.

(2) Amb. 636, citing Carr v. Bedford, 2 Ch. Rep. 146: Griffith v. Jones, id 394; and Isaac v Defriez, and Brunsden v. Woolredge, both stated below. A fortiori, if the term be " nearest relations," Goodinge v. Goodinge, 1 Ves. 231.

relations would be as "infinite 99 as the inquiry who are relations. This decision may be considered to have overruled the earlier case of Att.-Gen. v. Buckland (a), in which a gift to poor relations was extended to necessitous relations beyond the Statutes of Distribution.

In Widmore v. Woodroffe, as there was only one relation within the statute, the question whether the word "poor" had any operation in still further qualifying the word "relations" did not arise (b). But authority is not wanting to show that as between those who are within the statute the qualification is not to be disregarded. The inquiry is then not who are poor or poorest of an infinite number (which Lord Camden said there was no distinguishing), [*979] but who are comparatively so among a limited number.

In an early case (c) it was said that the word "poor" was frequently used as a term of endearment and compassion, as one often says, "my poor father," &c.; and accordingly a countess, who was "a relation as near as any to the testator," but it seems had not an estate equal to her rank, was held to be entitled to a share under a bequest to "poor relations." This, however, is no authority upon the question what is the effect of the word "poor" when it imports poverty.

In Brunsden v. Woolredge (d), where, by will dated 1734, B. bequeathed 5007. on a certain event, to be distributed among his mother's poor relations. Also W. (the brother of B.) by will dated 1757, devised real estates to A. and his heirs, in trust to sell to pay debts, and pay the overplus to such of his mother's poor relations, as A., his heirs, &c., should think objects of charity; Sir T. Sewell, M. R., held that the gift was confined to those who were within the statute; and that the true construction of both wills was, "such of my mother's 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.

In several cases gifts to poor relations seem to have been regarded as charitable (e). But in most of them the intention was to create a perpetual fund. Thus, in Isaac v. Defriez (f), where a testator bequeathed an annuity to his sister for life, and after her death to his own and his wife's poorest relations, to be distributed proportionably share and share

(a) Cited 1 Ves. 231, Amb. 71, n., Blunt's ed.

relations when

Gifts to poor regarded as charity.

(b) The Author (Vol. II. 51, 1st ed.) thought the decision regarding the will of B. in Brunsden . Woolredge irreconcilable with Widmore v. Woodroffe. But see a valuable note, Lewin, Trusts, p. 836, 8th ed.

(c) Anon, 1 P. W. 327.

(d) Amb. 507, Dick. 380, R L. 1764 A., fo. 536. See also Carr v Bedford, Griffith v. Jones, both sup.; Gower v. Mainwaring, 2 Ves. 87, 110, as to which see Lewin, Trusts, p. 836, n., 8th ed.

(e) When this is the case "poor" bears the specific meaning attached to it in charity cases, see Vol. I. p 172. That charity was not the ground of Sir T. Sewell's judgment in Brunsden . Woolredge is clear; for the subject of gift under the will of William (dated 1757) was land, or money to arise by sale of land, a gift of which to charitable uses would have been void by 9 Geo. 2, c. 36 (1736).

(f) Amb. 595, more correctly in n. by Blunt, and 17 Ves. 373 n.

alike at the discretion of his executors; he further gave the interest of his stock to his wife for life, and after her death directed all money then on any securities should so continue, and one half-year's interest he gave to one poor relation of his own, the management thereof to be at the discretion of his executors, and the other onehalf to one poor relation of his wife in like manner; it was treated as a charity, and appears not to have been restricted to relations [*980] * within the statute (g); an impracticable restriction, indeed, where the trust, as here, was to have perpetual continuance. Again, in White v. White (h), a legacy of 3,000l. "for the purpose of putting out our poor relations" apprentices, was supported as a charity. The decree directed objects who were ready to be put out, and the fund to be laid out from time to time. And in Att.-Gen. v. Price (i), where a testator by his will, dated 1581, devised land to A. and his heirs in trust that he and they should forever distribute according to his and their discretion amongst the testator's poor kinsmen and kinswomen and their issue, 207. by the year, Sir W. Grant held it to be a charity. "It is to have perpetual continuance in favor of a particular description of poor, and is not like an immediate bequest of a sum to be distributed among poor relations."

These authorities were followed by Sir J. Wickens, V.-C., in Gillam v. Taylor (k), where the trust was to invest in the names of the trustees, the interest to be from time to time given to such of the lineal descendants of testator's uncle R. as they may severally need, and the trustees were directed to make such provision as would insure the continuance of the trust at their decease.

But although the gift is of a sum in gross, the context may show that charity is intended. Thus, in Mahon v. Savage (1), a testator bequeathed to his executor 1,000l., 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, that a relation within the statute who had become rich before distribution was not entitled to a share, and that a share was not transmissible to representatives (i. e., of an object who died before distribution). He also thought that the executors had a discretionary power of distribution, and need not include all the testator's poor relations, and that poor relations beyond the statute might be admitted.

Remark on
Mahon v.
Savage.

(g) Amb. 596, n. (2).

(h) 7 Ves. 423.

(i) 17 Ves. 371: So in Hall v. Att.-Gen., Rolls, 28 July, 1829. Leach, M. R., held that a devise of real estate 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 therefore void as a gift of an interest in land.

(k) L. R., 16 Eq. 581; but as to the meaning of poor" in charity cases, see Att.-Gen. v. Duke of Northumberland, 7 Ch. D. 745.

(1) 1 Sch. & Lef. 111.

This case is clearly distinguishable from a simple gift to poor relations; for the additional words denoted that char- [*981] ity was the main object of the testator.

VIIL

Next of kin simpliciter means those living at testator's

death.

At what Period Relations, Next of Kin, &c., are to be ascertained. This question, however, which more than any other has been the subject of controversy in gifts to next of kin and relations, refers to the period at which the objects are to be ascertained; in other words, whether the person 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.1 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 (m), 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.2

In Wharton v. Barker (n) the gift (after a previous life estate and failure of children) was of one half to the persons "who shall then be considered as my next of kin " according to the statute, and of the other half to the persons "who shall then be considered as the next of kin (by statute) of my deceased wife." Sir W. P. Wood, V.-C.,

(m) Harrington v. Harte, 1 Cox, 131. See also 3 B. C. C. 234; 4 id. 207; 3 East, 278; Taml. 346; 4 Jur. N. S. 407.

(n) 4 K. & J. 483. The decision on the former half was influenced by the construction made as to the latter; without this some of the V.-C.'s remarks would seem to show more reliance on existing circumstances than is perhaps quite consistent with modern authority. See also Philps v. Evans, 4 De G. & Sm. 188. In Re Rees, Williams v. Davies, 44 Ch. D. 488, the gift was to the persons who would have become entitled to the estate of the husband of the testatrix if he had died intestate, and "without leaving any widow him surviving:" Stirling, J., considered that the concluding words of the gift took the case out of the rule in Wharton v. Barker.

1 Prima facie the next of kin at the death of the testator are meant ; and the indication should be clear to overcome the presumption Moss v. Dunlop, Johns. 490; Wharton v. Barker, 4 Kay & J. 483 (where the presump tion was overcome by the words "shall then be considered "); Long v. Blackall, 3 Ves. 486 (presumption overcome); Harrison v. Harrison, 28 Beav. 21; Pinder v. Pinder, id. 44 (presumption overcome by limitation to next of kin of wife after death of surviving husband and failure of children); Chalmers . North, 28 Beav. 175; Downes v. Bullock,

25 Beav. 54; s. c. 9 H. L. Cas. 1; Lees v. Massey, 3 De G. F. & J. 113; Martin v. Holgate, L. R., 1 H. L. 175; Heaseman v. Pearse, L R., 7 Ch. 660 ("then living"); In re Ridge's Trusts, id. 665; Penny v. Clarke, 1 De G. F. & J. 425; Dove v. Torr, 128 Mass. 38 ("then entitled " as heirs of the testator); Thompson v. Ludington, 104 Ma-s. 193 ("then living," importing contingency).

2 Jones v. Oliver, 3 Ired. Eq. 369; Wharton v. Barker, 4 Kay & J. 483; Rayner v. Mowbray, 3 Brown, Ch. 234.