verb of time. [*993] gift, entitled. But if the* gift is, not to those who will then be, but to those who will (or would) then be entitled as, next of kin by statute, the word "then" will be understood as referring to the period when they will be entitled in possession. The persons to take will be, not those who would have been entitled if the testator had then died (y), but those who would then be entitled if the testator, when he died, had died intestate (z). Moreover, "then" "Then not always an ad- has more meanings than one, each equally common:1 it may mean "at that time" or "in that case" (a); and unless the latter meaning be excluded by the context, it will be adopted rather than construe "next of kin according to the statute (the statute being expressly referred to), as meaning something different from what the statute says it means. Thus, in Cable v. Cable (b), where a testator bequeathed a fund in trust for his wife for life, and at her death to be paid to his children; but if he left no children at his decease, then to become the property of the person or persons who would then become entitled to take out administration as his personal representative or representatives, under the statute of distribution, as if he had died intestate and "unmarried." The testator left no children, and Sir J. Romilly, M. R., held that, as the word "unmarried" showed that the testator was contemplating a period before his wife's death, the word "then" should be construed as 66 thereupon," in order to make the whole consistent (c). Gifts to persons of testator's name. VIII. — Gifts to Persons of Testator's Blood or Name. Sometimes it is made part of the description or qualification of a devisee or legatee, that 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 "fam[*994] ily" or "blood." The former, as being the more natural construction, prevails in the absence of an explanatory con (y) If the case is expressly put of the propositus dying at some time other than that at which he actually died, all doubt would seem to be removed, Pinder v. Pinder, 28 Beav. 44; Chalmers v. North, id. 175; Bessant v. Noble, 26 L. J. Ch. 236, 2 Jur. N. S. 461, Clarke v. Hayne, 42 Ch. D. 529. But see Druitt v. Leaward, 31 Ch. D. 234, and Re Bradley, W. N. 1888, 83, 58 L. T. 63. (2) Bullock v. Downes, 9 H. L. Ca. 1, 19; Mortimore v. Mortimore. 4 App. Ca. 448, affirming Mortimer v. Slater, 7 Ch. D. 322; Mitchell v. Bridges, 13 W. R. 200; Re Morley's Trusts, 25 W. R. 825, W. N. 1877, p. 159, is contra, sed qu. (a) See 7 H. L. Ca 119. (b) 16 Beav. 507; see also Wheeler v. Addams, 17 Beav. 417; Lees v. Massey, 3 D. F. & J. 113, Moss v. Dunlop, Joh. 490 ("next of kin for the time being "). (c) But did not "then" refer to the period last mentioned, namely, the testator's own death without leaving children? Archer v. Jegon, 8 Sim. 446. 1 As to the word "then," see Dove v. Torr, 128 Mass. 38: Thomson v. Ludington, 104 Mass. 193; Sears v. Russell, 8 Gray, 86, Long v. Blackall, 3 Ves. 486, Heasman v. Pearse, L. R., 7 Ch. 660, Pinder v. Pinder, 28 Beav. 44; Chalmers v. North, id. 175. text; and such is most indisputably its meaning, when found in company with some other term or expression, which would be synonymous with the word "name," if otherwise construed; for no rule of construction 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 expressions to silence. To next of name, or next Thus, where a testator gives to the next of his kin or descendants of his name (d), or to the next of his name and blood (e), it is evident that he does not use the word "name as descriptive of his relations or family only, because that would be the testator's effect if the mention of the name were wholly omitted of kin of his and the gift had been simply to his next of kin or the name. 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 (ƒ), 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 Pyot v. Pyot (g), where a point of this nature underwent much discussion. A testatrix devised her estate, real and personal, to trustees, and their heirs, executors, administrators, and assigns in trust, first for her daughter Mary, and her heirs, executors, administrators, and assigns forever; 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 the Pyots, and to his or her heirs, executors, administrators, and assigns. Mary died under twenty-one, and unmarried. At the death of the testatrix there were three persons then actually of the name of Pyot, namely, the plaintiff, To the "near est relation of the name of the Pyots." * and also his two sisters who were then unmarried, but who [*995] 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. (d) Jobson's case, Cro. Eliz. 576. See Re Roberts, Repington v. Roberts-Gawen, 19 Ch. D. 520, post, p. 997. (e) Leigh v. Leigh, 15 Ves. 92. But see Bon v. Smith, Cro. El. 532, where a declaration by the testator, that, in a certain event, lands should remain to the next of his name, was considered to require that the devisee should have borne the testator's name. The point, however, did not call for adjudication, and the propriety of the dictum was (as we shall see) questioned by Lord Hardwicke, in Pyot v. Pyot, 1 Ves. 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 reasoning in the text, was properly construed as importing that the devisee should, in addition to being of the testator's family, bear his name. (g) 1 Ves. 335, Belt's ed. 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 he, "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 [*996] 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 (i), because it must be nearest relation, taking it out of the stock; from which case it also differs, as the personal is involved with 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 the other sister, not before the Court, is equally entitled to take with them; the change of name by marriage not being material, nor the continuance of the name regarded by the testatrix." 6 (h) This is not accurate; vide ante, p. 994, n. (ƒ). To be kept in the W.'s name. "Name" held to mean family. So, in Mortimer v. Hartley (k), where a testator devised lands to his son J., on condition that neither he nor his heirs should sell the same, "it being the testator's desire that they should be kept in the Westerman's name;" and if J. died without leaving lawful issue, then the testator's daughter A. to have her brother's share subject to the same restrictions, it was held that the word " name must be construed to mean "family" or "right line," for the son J. was held to take an estate tail, and the daughter was to take subject to the same restrictions, that is, an estate tail also, in which case the lands would devolve upon persons not bearing the name of Westerman. 66 To the next of It seems to have been thought in Carpenter v. Bott (1), that the word surname was more easily convertible with "family" or stock" than the word "name." T. Crump, the testator in that case, bequeathed a fund, in the event (which happened) kin of the surof his niece dying without leaving issue, "amongst his name of C. next of kin of the surname of Crump, who should be living at the decease of his niece, in like manner as if his said next of kin had become entitled thereto under the Statute of Distributions." At the death of the testator, his sole next of kin bearing the name of Crump, was a lady who afterwards married the plaintiff during the life of the niece, and Sir L. Shadwell, V.-C., thought the expression "of the surname " was to be taken in the sense attributed by Lord Hardwicke to the words "of the (name of the) Pyots," namely, "of the stock:" and therefore that Mrs. Carpenter was entitled (m). As to females losing name by marriage. * Where a gift to persons of the testator's name is held, ac- [*997] cording to the more obvious sense, to point to persons 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 (n), 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 the land? and it was held, that she should not, because she was not then of the name of the devisor. But if a person has acquired a new name by royal license or by Act of Parliament, he has not therefore lost his original name, for the license or statute is simply permissive, and leaves the person at liberty to resume his original name: so that a new name so acquired (k) 6 Exch. 47. (1) 15 Sim. 606. Name assumed by license or ment may be Act of Parlia laid aside. (m) The question whether it would have been necessary that the surname (if literally construed) should be borne at the niece's death was not decided. As to this question, see end of this Chapter. (n) Cro. El. 576. See also Bon v. Smith, id. 332; Doe d. Wright v. Plumptre, 3 B. & Ald. 474. would probably be held no obstacle to his taking by a description of which the old name was a part (o). 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 (p). In the absence of any express or implied indication to the contrary appearing in the will, a gift to such of the testator's next of kin or descendants who shall bear a particular name will not be confined to persons entitled by birth to that name, but will include a person who has assumed or obtained authority to use the name (q). To persons of testator's name and blood. In Leigh v. Leigh (r), the testator, after limiting estates to his two sisters and their issue in strict 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 determination of the estates before devised, and to the heirs of his body; Lord Eldon, with Thompson, B., and Lawrence, J., held, that a person, who answered the other parts of the description, but of another name, was not qualified, in [*998] * respect of the name, by his having, before the determina tion of the preceding estates, obtained a royal 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 limitations. At what period legatee must answer prescribed description. the point. The remaining question, applicable to the gifts under consideration, is, at what time the devisee or legatee must answer the prescribed qualification or condition in regard to the name, supposing the will to be silent on 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 (s), and Jobson's case (t), where lands were devised to A. in tail, with remain (0) See per Lord Eldon, Leigh v. Leigh, 15 Ves 100. (s) Cro El. 532. (t) Cro. El. 576. |