tor. Sir R. P. Arden, M. R., too, in Holloway v. Holloway, (a) was strongly disposed to give the same construction to the word "heirs," applied to personalty; though his opinion on another question rendered the point immaterial.1 But cases of this description must not be understood to warrant the general position that the word heirs, in relation to personal estate, imports next of kin, especially if real estate be combined with personalty in the gift; 2 which circumstance, according to the principle laid down by Lord Eldon in Wright v. Atkyns, (b) affords a ground for giving to the word, in reference to both species of property, the construction which [ 23 ] it would receive as to the real estate, if that were the sole subject of disposition. Thus, in the case of Gwynne v. Muddock, (c) where a testator gave all his real and personal estate to A for life; adding, after her death, his "nearest heir at law to enjoy the same;" Sir W. Grant, M. R., held, that the heir at law took both the real and personal estate, not the realty only, the testator having blended them in the gift. And even where the entire subject of gift is personal, the word "heir," unexplained by the context, must be taken to be used in its proper sense. Nor will the construction be varied by the circumstance, that the gift is to the heir in the singular, and there is a plurality of persons conjointly answering to the description of heir. (d) Thus, under the words "to my heir £4000," three co-heiresses of the testator were held to be entitled; Sir J. Leach, M. R., observing, "Where the word is used not to denote succession, but to describe a legatee, and there is no context to explain it otherwise, then it seems to me to be a substitution of conjecture in the place of clear expression, if I am to depart from the natural and ordinary sense of the word 'heir.'" (e) The words "heirs" and "heirs of the body," applied to personal estate, have been sometimes held to be used synonymously with "children"-a construction which, of course, requires an explanatory context.3 (a) 5 Ves. 503. (b) Coop. 111; S. C. 19 Ves. 299. See also Pyot v. Pyot, 1 Ves. Sen. (4th ed.) 335, where, however, the words of the will being applicable rather to personalty, the construction which obtains, in regard to this species of property, predominated as to both real and personal estate. (c) 14 Ves. 488. (d) See 2 Lord Raym. 829. (e) Mounsey v. Blamire, 4 Russ. 384. 1 See 4 Kent, (5th ed.) 537, note; Ricks v. Williams, 1 Badg. & Dev. Eq. 1; McCabe v. Spruil, ib. 189; Wright v. Trustees Meth. Epis. Church, 1 Hoff. Ch. 212, 213; Croom v. Herring, 4 Hawks, 393. 2 Evans v. Salt, 6 Beavan Ch. 266. 3 See Shepherd v. Nabors, 6 Alabama, 631; Pratt v. Flamer, 5 Harr. & Johns. 10. [24] As, in the case of Loveday v. Hopkins, (a) where the words were: "Item, I give to my sister Loveday's heirs £6000"—“ I give to my sister Brady's children equally £1000." At the date of the will, Mrs. Loveday had two children one of whom was a married daughter, who afterwards died in the lifetime of the testatrix, leaving three children. Mrs. Loveday was still alive, and her surviving child claimed the legacy. Sir Thomas Clarke, M. R., was clearly of opinion, that the testatrix intended to give the £6000 to the children of Mrs. Loveday, the same as in the subsequent clause to Brady's children, and had not their descendants in view; or if she had, yet as she had not expressed herself sufficiently, the Court could not construe the will so as to let them in to take. His honor, therefore, held the surviving child to be entitled to the legacy.1 (a) Amb. 273. 1 Brailsford v. Heyward, 2 Desaus. 18; Bowers v. Porter, 4 Pick. 198; Richardson r. Wheatland, 7 Metcalf, 173, 174. Under a devise to A and his heirs, and to B, who is one of the heirs of A, B takes as devisee and also as heir. Stowe v. Ward, 1 Dev. 67; S. C. 3 Hawks, 604. But where a father, by his will, gave one child a specific legacy, and added, “with which she must be contented without receiving any further dividend from my estate," and then devised his land to " my children," the words were held to be construed "the rest of my children." Hoyle v. Stowe, 2 Dev. 318. 2* 18 CHAPTER XXX. GIFTS TO FAMILY, DESCENDANTS, ISSUE, NEXT OF KIN, RELATIONS, PERSONAL REPRESENTATIVES, EXECUTORS OR ADMINISTRATORS, AND PERSONS OF TESTATOR'S BLOOD OR NAME. CONSTRUCTION of the word "family." Devises to "family," when void for uncertainty. "Family" held to denote heir, p. 28.] Lord Eldon's judgment in Wright v. Atkyns, [p. 28.] Family' "in gift of real and personal estate similarly construed as to both, [p. 29.] "Family" held to mean heir apparent, [p. 29.] Influence which the nature of the property has upon the construction, [p. 30.] Husband not included in "family," [p. 31.] Where "family" construed relations, [p. 31.] Word "descendants," how construed, [p. 32.] Gift to descendants equally, [p. 32.] Bequest to "issue," how construed, [p. 33.] Word "lawful issue" held to comprise children and grandchildren, [p. 33.] Gift to issue extended to children and grandchildren, [p. 34.] Devise of real estate to issue, [p. 34.] "To the issue of J. S." [p. 35.] Remark on Cooke v. Cooke, [p. 35.] Effect where the devise is to the issue as tenants in common in fee, [p. 35.] Effect where words "issue" and "children are used indifferently, [p. 37.] Next of kin confined to persons strictly answering to this character, [p. 38.] " Legal representatives" held to denote next of kin, [p. 39.] Personal representative" held to mean next of kin, [p. 40.] "Legal representatives" similarly construed, [p. 40.] Effect of limitation to executors or administrators in same will, [p. 40.] "Personal representatives" construed next of kin, [p. 41.] "Executors or administrators" held to mean next of kin, [p. 41.] "Executors or administrators" used as words of limitation, [p. 42.] "Legal representatives" similarly construed, [p. 42.] Limitation to executors, administrators, and assigns, [p. 43.] Whether executors or administrators are entitled for their own benefit, [p. 43.] Gifts to relatives, how construed, [p. 45.] Objects of a gift to relations determined by Statute of Distributions, [p. 46.] Distribution whether per stirpes, or per capita, [p. 46.] Shares regulated by statutory distribution, [p. 47.] Effect of words directing an equal distribution, [p. 47.] "Near" and "nearest" relations, [p. 48.] Nearest relations, " as sisters, nephews, and nieces," [p. 48.] Relations of the half-blood, [p. 48.] Relations by affinity, [p. 49.] Gifts "to poor relations," how construed, [p. 49.] Gifts to poor relations regarded as charity, [p. 50.] Remark on Mahon v. Savage, [p. 51.] At what period the next of kin are to be ascertained, [p. 52.] To next of kin of deceased person, [p. 52.] Next of kin living at a future period, [p. 53.] Prior legatee for life, himself one of the next of kin, [p. 53.] Effect where legatee for life is sole next of kin, [p. 54.] Observations on Jones v. Colbeck, [p. 55.] Effect where prior legatee for life is sole next of kin, [p. 55.] Declaration that next of kin shall take vested interests at testator's decease, [p. 56.] Bequest, in defeasance of a prior gift, to the persons who are presumptive next of kin, [p. 56.] Remark on Miller v. Eaton, [p. 57.] Effect where such person was one of next of kin, [p. 57.] Gift expressly to next of kin at a future period, [p. 58 ] Whether preceding doctrines apply to devises of real estate, [p. 59.] Gifts to persons of testator's name, [p. 61.] To next of testator's name, or next of kin of his name, [p. 62.] To "the nearest relation of the name of the Pyots," [p. 63.] As to females losing name by marriage, [p. 65.] To persons of testator's name and blood, [p. 65.1 At what period legatee must answer prescribed description, [p. 66.] Parents entitled concurrently with children under gift to next of kin, [p. 68.] THE word family has been variously construed, according to the subject-matter of the gift and the context of the will.1 Sometimes the gift has been held to be void for uncertainty. As, in Harland v. Trigg, (a) where a testator gave leasehold estates to his brother, "J. H. forever, hoping he will continue them in the family," Lord Thurlow thought it too indefinite to create a trust, as the words did not clearly demonstrate an object. The testator's brother was tenant for life in remainder, with remainder to his issue in strict settlement, of some freehold lands, and the testator had given some other leaseholds to the same uses; and it was contended that the leaseholds in question were intended to be subject to the same limitations, so far as the nature of property would admit; but his Lordship considered that this was not authorized. He said, the testator understood how to make his estates liable to those uses, and intended something different here. So, in Doe d. Hayter v. Joinville, (b) where a testator devised (a) 1 B. C. C. 142. (b) 3 East, 172. 1 The acceptation of the word "family" may be narrowed or enlarged by the context of the will, so as, in some instances, to mean children, or in others, heirs, or it may even include relations by marriage. See 2 Williams, Ex. (2d Am. ed.) 818, 819; Blackwell v. Ball, 1 Keen, 176; Woods v. Woods, 1 My. & Craig, 401; Grant v. Lyman, 4 Russ. 292; Doe v. Flemming, 2 Cr. Mees. & Ros. 638; Sugden, Powers, (4th Lond. ed.) 525; 2 Story, Eq. Jur. § 1065, b, § 1071; Harland v. Trigg, 1 Bro. C. C. (Perkins's ed.) 142-144, and notes; MacLeroth v. Bacon, 5 Ves. (Sumner's ed.) 168, and note (a). and bequeathed residuary real and personal estate [26] *to his wife for life, and, after her decease, one half to his wife's "family," and the other half to his "brother and sister's family," share and share alike; and it appeared that, at the date of the will, the testator's wife had one brother who had two children, and the testator had one brother and one sister, each of whom had children, and there were also children of another sister, who was dead. Upon these facts, it was held, that both the devises were void, from the uncertainty in each case as to who was meant by the word " family;" and in the latter case, also, from the uncertainty whether it applied to the family as well of the deceased, as of the surviving sister; and also whether it referred to the brother; which, however, the Court thought it did not. Again, in the more recent case of Robinson v. Waddelow, (a) where a testatrix, after bequeathing certain legacies, in trust for her daughters, who were married, free from the control of any husband, for life, and, after their decease, for their respective children, gave the residue of her effects, to be equally divided between her said daughters and their husbands and families; Sir L. Shadwell, V. C., after remarking, that, as, in the gift of the legacy," any" husband extended to future husbands, in the bequest of the residue, the word "husbands" must receive the same construction, declared his opinion to be, that such bequest as to the husbands and families was void for uncertainty. "The word 'family,'" said his Honor, " is an uncertain term; it may extend to grandchildren as well as children. The most reasonable construction is to reject the words 'husbands and families."" It was accordingly decreed that the daughters took the residue absolutely as tenants in common. (b) [27] 'It will be observed, that, in Harland v. Trigg, and Robinson v. Waddelow, the subject of gift was personal estate; and in Doe v. Joinville, it consisted of both real and personal property, and not of real estate exclusively-a circumstance which we shall see has been deemed material. Sometimes the word family or "house" (which is considered as synonymous) has been held to mean "heir."1 A leading authority for this construction is the often-cited proposition of Lord Hobart, in the case of Counden v. Clerke, (c) that if land be devised to a stock, or family, or house, it shall be understood of the heir principal of the house. (a) 8 Sim. 134. See also Stubbs v. Sargon, 2 Kee. 253, ante, vol. 1, p. 333. (b) No doubt the testator's real intention was to assimilate the residuary bequest to the legacies; but the V. C. seems to have considered that this hypothesis savored too much of mere conjecture. (c) Hobart's Rep. 29. 1 See 2 Story, Eq. Jur. § 1071. |