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 99 term "relation was nomen collectivum as much as [64] heir or kindred. "Then," continued his lordship, "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, (a) 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 a particu lar 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, because it must be nearest relation, taking it out of the stock; from which case it also differs, as the personal is involved with the 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 [65] 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."

*

Where a gift to persons of the testator's name is held, according 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, (b) 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

(a) This is not accurate; vide ante, p. 62, note (c).
(b) Cro. El. 576. See also Bon v. Smith, Id. 332.

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 had the land; and it was held, that she should not, because she was not then of the name of the devisor.

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. (a)

In the case of Leigh v. Leigh, (b) 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 [66] the estates before devised, and to the heirs of his body; Lord Eldon, with Mr. Baron Thompson, and Mr. Justice Lawrence, held, that a person, who answered the other parts of the description, but of another name, was not qualified, in respect of the name, by his having, before the determination of the preceding estates, obtained his Majesty's 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.

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 the point.

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 yested 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, (c) and Jobson's case, (d) where lands were devised to A in tail, with remainder to the next of the testator's name, or the next of kin of his name; and it was admitted, in both cases, that the testator's daughter, if she had

(a) As to the voluntary assumption of a name, ante, vol. 1, p. 848.
(b) 15 Ves. 92.

(e) Cro. El. 532.

(d) Cro. El. 576.

[67]

answered the description at the death of the testator, would have been entitled.

But in the case of Pyot v. Pyot, (a) Lord Hardwicke considered that a different rule is applicable to executory devises, which are fettered with such a condition. The devise there was (as we have seen) to A and her heirs, and, in case she should die before twenty-one or marriage, then to the testator's nearest relation of the name of the Pyots; and his lordship expressly distinguished the case before him from Jobson's case, where he said it was not a contingent limitation over upon a fee devised precedent, nor was it a contingent, but a vested remainder, and, therefore, referred to the time of making the will; [quære, the death of the testator?] whereas in the case before the Court, the description of the person must refer to the time of the contingency happening; viz. such as, at that event, should be the testator's nearest relation of the name of the Pyots. (b)

If such a construction can be sustained, it must embrace all executory gifts to persons answering a prescribed character, as to next of kin, heir, and other such persons; for it is difficult to perceive any valid reason for making the gifts under consideration the subject of any peculiar rule in this respect, and, as general doctrine, his lordship's proposition would have to contend with a large amount of authority, including those cases in which (as we have seen) the words "next of kin" have been held to designate the next of kin at the time of distribution, on other special grounds: (c) for it would have been idle to discuss the question, whether an executory gift to the next of [68] *kin applied to the person answering the description of next of kin when such gift took effect in possession, on the special ground that the prior legatee was sole next of kin, or one of the next of kin at the death of testator, if, by the general rule, an executory bequest to next of kin applied to the persons answering the description when the bequest took effect in possession. (d)

(a) 1 Ves. Sen. 335, Belt's edit.; ante, 63.

(b) See further, on this point, Gulliver v. Ashby, 4 Burr. 1940; Lowndes v. Davies, 2 Scott, 74; ante, vol. 1, 848.

(c) Ante, p. 53.

(d) A case respecting the construction of gifts to next of kin has recently been decided, which is so important, that although the more apposite place for its introduction (ante, p. 38) has been closed by the press, it has been deemed advisable to state it in this place. The case here referred to is Withy v. Mangles, (Rolls, 30th of July, 1841, 4 Jurist, 717) where the question was, as to who were entitled under the ultimate limitation in a marriage settlement in favor of "such persons or person as shall be the next of kin of E. M. at the time of her decease?" E. M. died, leaving a child, and also her father and mother, each of whom claimed one equal third share of the property as next of kin : Lord Langdale, M. R., decided, that the parents, though postponed by the Statutes of Distribution to children, were, nevertheless, entitled concurrently with the child as being of equal degree. His Lordship observed, "All writers on the law of England appear to concur in stating, that, in an ascending and

descending line, the parents and children are in an equal degree of kindred to the proposed person; and, I think, that, except for the purposes of administration and distribution in cases of intestacy, and except in cases where the simple expression may be controlled by the context, the law of England does consider them to be in equal degree of consanguinity. The law of England gives a preference to the child over the parent in distribution; but I think we cannot, therefore, conclude with respect to every distribution of property, made in words to give the same to persons equally next of kin, the parents are to be held more remote than the child."

*50

I.

II.

III.

CHAPTER XXXI.

DEVISES AND BEQUESTS TO CHILDREN. (a)

Whether Gifts to Grandchildren.
What class of Objects, as to period of birth, they compre-
hend; where, 1st, The Gift is immediate, i. e. in Posses-
sion; 2dly, There is an anterior Gift; 3dly, Possession is
postponed till a given Age; 4thly, Effect where no Object
exists at the time of its falling into Possession; 5thly,
Words "born" or "begotten," or "to be born or begot
ten," &c.; 6thly, As to Children en ventre.

Whether Children take per stirpes or per capita. IV. Children described as consisting of a specified number, which differs from the actual number.

V. Clauses substituting Children for Parents.

VI. Limitation over, as referring to having or leaving Children. VII. Gifts to younger Children.

CHILDREN, how construed.

Whether it extends to grandchildren, and when.

Where the gift otherwise never could have had an object, [p. 70.]

Suggestion for confining extended construction to such cases, [p. 71.]

Whether "grandchildren" includes great-grandchildren, [p. 72.] "Children" synonymous with issue, [p. 73.]

Children by affinity, [p. 73.]

As to class of children entitled, [p. 73.]

Immediate gifts confined to children living at death of testator, [p. 74.]

Gift to children of A living at the death of B, [p. 74, note.]

In future gifts, children born before period of distribution let in, [p. 75.]

Children take vested shares, liable to be divested pro tanto, [p. 76.]

Construction applicable to executory gifts, [p. 76.]

Mere charging of lands does not let in future children, [p. 77.]

Gift to brothers, sisters, &c., [p. 78.]

Rule where distribution is postponed to a given age, [p. 78.]

Does not clash with the preceding rules, [p. 79.]

Judicial opinions upon rule which lets in children born before eldest attains twentyone, [p. 80.]

Exception as to general legacies, [p. 81.]

Cases in which the rule has been departed from, [p. 81.]

Remark on Maddison v. Andrew, [p. 82.]

Gift to grandchildren when youngest attains twenty-one, [p. 82.]

Gift over in case parent die without issue, [p. 83.]

Remark on Mills v. Norris, [p. 84.]

Rule where no object exists at period of distribution, [p. 84.]

Where the gift is immediate, [p. 85.]

(a) The writer has labored to render this subject as clear and intelligible as possi ble; for, as scarcely a will comes into operation in which a gift to children is not con tained, it is important that the rules of construction relating to them should be familiarly known.