Chap. XXV.

When the class to take under a gift to relations is to be ascertained.

Gift to such relations as survive the

tenant for life.

Where the

tenant for life

kin at the

date of the

Of course, the testator may, by explanatory words, extend the word relations to persons not within the statute. Derisme v. Mellish, 5 Ves. 529; Hibbert v. Hibbert, 15 Eq. 372. Bennett v. Honywood, Amb. 708.

See

As to the effect of a power to the wife to appoint to her relations where she was illegitimate and childless, see In re Deakin; Starkey v. Eyres, supra.

Prima facie the class of relations to take is to be ascertained at the death of the propositus.

Therefore, where the gift is immediate or in remainder to the testator's relations, after gifts to persons who are some of the next of kin, his next of kin at his death alone take. Rayner v. Mowbray, 3 B. C. C. 234; Masters v. Hooper, 4 B. C. C. 207; Pearce v. Vincent, 1 Cr. & M. 598; 2 M. & K. 800; 2 Sc. 347; 2 Bing. N. C. 328; 2 Kee. 230; see Eagles v. Le Breton, 15 Eq. 148, where there is a discrepancy between the head-note and the judgment; see 42 L. J. Ch. 362. See Stert v. Platel, 5 Bing. N. C. 434.

If the gift is to such relations as survive the tenant for life the class is ascertained at the death of the ancestor, while those who die before the tenant for life are excluded. Bishop v. Cappel, 1 De G. & S. 411; Re Nash; Prall v. Becan, 71 L. T. 5.

The term relations, however, has not the same direct is sole next of reference to the death of the propositus as heirs or next of kin, and therefore, where there is a gift to A. either for will and death. life with remainder to her children, or to A. absolutely, followed by a gift over, if A. dies without issue, to the testator's relations, and A. is the sole next of kin at the date of the will and death, the class will be ascertained at A.'s death. Marsh v. Marsh, 1 B. C. C. 293; Jones v. Colbeck, 8 Ves. 38; Lees v. Massey, 3 D. F. & J. 113; see post, p. 310 seq.

And the testator may himself fix the time at which his relations are to be ascertained; for instance, by directing his relations to be advertised for at the death of a tenant for life, and giving the property to such of them as claim within two months after such advertisements. Tiffin v. Longman,

15 B. 275; see Re Nash; Prall v. Beran, 71 L. T. 5, where Chap. XXV. the case is doubted.

Where there is a power to appoint to relations and no When the gift in default of appointment:

class to take in default of appointment

1. If there is no life interest, and the power is a general is to be power to appoint to the testator's relations, it seems the class ascertained. to take will be ascertained at the death of the testator and not when the power expires. Cole v. Wade, 16 Ves. 27; in which case, however, the actual point did not arise, since the next of kin at the testator's death, and the time when the power expired, were the same.

2. If there is a life interest and the tenant for life has power to appoint to the testator's or his own relations, the class is to be ascertained at the death of the tenant for life, whether the power is to appoint by deed or will. Harding v. Glyn, 1 Atk. 468; Birch v. Wade, 3 V. & B. 198; In re Patterson; Dunlop v. Greer, (1899) 1 Ir. 324; see, too, Brown v. Higgs, 8 Ves. 561.

And it makes no difference whether the power is one of selection or distribution merely. Pope v. Whitcombe, 3 Mer. 689, as corrected by Lord St. Leonards on Powers, 662, and Finch v. Hollingsworth, 21 B. 112; Caplin's Will, 2 Dr. & Sm. 527; see, too, A.-G. v. Doyley, 4 Vin. Ab. 485, where the tenant for life and the donee of the power were different persons, and the class was ascertained at the death of the tenant for life.

VIII. FAMILY-FRIENDS.

The word family may have a different meaning, according Family.

to the context.

1. In the case of devises of land :

lands.

If land be devised to a stock or family or house it shall be Devise of understood of the heir principal of the house." Counden v. Clarke, Hob. 33.

This will be the case where the word is used as a quasiword of limitation, where for instance, after a devise to a person, there is a direction that the property is to remain in

Chap. XXV. his family.

Direction to secure for

family.

Bequest of personalty to family.

May mean next of kin.

his family. Chapman's Case, Dyer, 333; Doe d. Chattaway v. Smith, 5 Mau. & S. 126; Griffiths v. Evan, 5 B. 241.

A devise to A. and his family according to seniority, gives A. an estate tail. Lucas v. Goldsmid, 29 B. 657.

So, too, a devise of land to A. for life" in confidence that after her decease she will devise the property to my family," goes to the testator's heir-at-law upon A.'s death. Wright v. Atkyns, 17 Ves. 255; 19 Ves. 299.

Under a direction to secure property for the benefit of a person and his family the realty will be settled for life with successive remainders in tail, and the personalty will be settled for life with remainder to the children. White v. Briggs, 15 Sim. 17; 2 Ph. 583; Woolmore v. Burrows, 1 Sim. 512.

2. It is now settled that in a bequest of personalty or a mixed bequest of realty and personalty to the family of a person, the primary meaning of family is children. Barnes v. Patch, 8 Ves. 604; Terry's Will, 19 B. 580; Wood v. Wood, 3 Ha. 65; Parkinson's Trusts, 1 Sim. N. S. 242; Beales v. Crisford, 13 Sim. 592; Burt v. Hellyar, 14 Eq. 160; Pigg v. Clarke, 3 Ch. D. 672; In re Hutchinson & Tenant, 8 Ch. D.. 540; In re Mulqueen, 7 L. R. Ir. 127; Re Muffett; Jones v. Mason, 55 L. T. 671; In re Battersby's Trusts, (1896) 1 Ir.. 600; see Woods v. Woods, 1 M. & Cr. 401.

It has been held that the word includes an illegitimate son.. Lambe v. Eames, 10 Eq. 267; 6 Ch. 597; Humble v. Bowman,. 47 L. J. Ch. 62.

3. There is more difficulty in ascertaining the meaning if the gift is to the A. family or to the family of A., where A. is. merely a surname and there are several persons of that name. In such cases the Court will if possible ascertain who is meant, and the gift will go to his children. Gregory v. Smith, 9 Ha. 708; Commissioners of Charitable Donations v. Deey, 27 L. R. Ir. 289.

4. In order to give the word a different meaning there must. be some special circumstances.

a. Thus, if there are no children, next of kin may take. Re Maxton, 4 Jur. N. S. 407.

b. So a gift to the family of an unmarried person would

probably extend to all her relatives. Snow v. Teed, 9 Chap. XXV. Eq. 622.

c. In some cases, on the context, family has been held to mean those of a man's household, thus including a wife or husband. Macleroth v. Bacon, 5 Ves. 158; Blackwell v. Bull, 1 Kee. 176.

In the widest

sense it may

include a

husband or

includes all

d. Family has been held to include all descendants in exist- When it ence at the time of distribution; but such a construction descendants. would not be adopted without a strong context. Williams v. Williams, 1 Sim. N. S. 358.

e. It would seem that a power to appoint to a person's Power to appoint to family would be limited to his children if there are any. In family. re Hutchinson & Tenant, 8 Ch. D. 540; see Sinnott v. Walsh, 5 L. R. Ir. 27.

If there are no children the donee of the power may select relations not within the degree of next of kin. Grant v. Lynam, 4 Russ. 292.

If the power is not exercised the statutory next of kin are entitled. Crwys v. Colman, 9 Ves. 319.

5. Where it is clear that the testator has used the word family in a wider sense than any of those here mentioned, but it is uncertain who were meant to be included, the gift will be void for uncertainty. Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381; see Robinson v. Waddelow, 8 Sim. 134; In re Cullimore's Trusts, 27 L. R. Ir. 18.

When family is construed children, a simple gift to the families of A. and B. goes per capita in joint tenancy. Gregory v. Smith, 9 Ha. 708.

So, too, a gift to be divided between the families of A. and B. goes to all the children of A. and B. per capita as tenants in common. Barnes v. Patch, 8 Ves. 604; see, however, Alexander v. Douglas, Rom. N. of C. 93.

Whether a families goes

gift to several

per capita or per stirpes among them.

Under a direction that after the death of the testator's wife, Friends. to whom a life interest in lands was given, the lands should revert to the testator's friends, the heir-at-law was held entitled. Coogan v. Hayden, 4 L. R. Ir. 585.

Chap. XXVI.

Devise of Borough English and Gavelkind lands to the heir.

In what cases

the word heir refers to a persona designata.

CHAPTER XXVI.

GIFTS TO HEIRS, NEXT OF KIN, REPRESENTATIVES, AND

EXECUTORS.

WHERE Borough English or gavelkind lands are devised with other lands to the testator's heir, the common law heir is entitled. Davis v. Kirk, 2 K. & J. 391; Thorp v. Owen, 2 Sm. & G. 90; Buchanan v. Harrison, 1 J. & H. 662; Sladen v. Sladen, 2 J. & H. 369.

So where Borough English lands alone are devised to A. for life, with remainder to her sons and daughters and their heirs, and if A. dies without having such heirs, to the testator's sons and daughters then living and the heirs of those who may be deceased, the common law heir takes under the ultimate gift. Polley v. Polley, 31 B. 363.

In the same way a devise of gavelkind lands alone to the testator's right heirs goes to the common law heir. Garland v. Beverley, 9 Ch. D. 213.

The rule is that "nemo est hæres rirentis," and therefore a devise to the heirs of a living person is contingent, unless the term heirs is so qualified by express words or by the general intention of the will as to show that the testator meant by heir the heir apparent or presumptive or some other person, who will then take as persona designata.

This will be the case if the testator speaks of the heirs of the body of B. now living. Burchett v. Durdant, 2 Vent. 311; Carth. 154; see Chambers v. Taylor, 2 M. & Cr. 376.

Or the intention of the testator to use the term as designating a person may be gathered from the whole will; if, for instance, the so-called heir is directed to pay annuities to certain persons