all the children to be entitled; and, in a recent case, (a) a trust for the five daughters of the testator's niece, E., was held to apply to a daughter of E., (and who was the only daughter at the date of the will,) and not to sons, of whom there were five at the date of the will; it being considered, it should seem, that the mere correspondence of number was not sufficient to indicate that the word "daughters" was written by mistake for sons. The case of Harrison v. Harrison (b) presents an example of both the preceding rules; the bequest being to "the two sons and the daughter of T. L., £50 each." There were one son and five daughters living at the date of the will, all of whom were held to be entitled. Of course, if the number mentioned by the testator agree with the number existing at the date of the will, there is no ground for extending the gift to after-born children. (c) On the same principle as that which governed the preceding cases, it has been decided, that where (d) a testator bequeathed the residue of his personal estate to be divided equally among his seven children, A, B, C, D, E, and F, (naming only six,) and it turned out that he had eight children when he made his will, but from other parts of his will it appeared that the testator considered one of his children as fully provided for; the seven other children were entitled. [111] In West v. Lord Primate of Ireland, (e) a testator desired that his executor would at his (the executor's) decease bequeath 1000 guineas to Lord C. " for the use of his seventh or youngest child, in case he should not have a seventh child living." At the testator's death, Lord C. had six children living, and at the death of the executor, ten. The executor bequeathed the money in the words of the original will, and Lord Thurlow held, that the youngest child at his death was entitled. (ƒ) V. Where a gift is to the children of several persons, whether it be to the children of A and B (g) or to the children of A and the children of B, (h) they take per capita, not per stirpes.1 (a) Lord Selsey v. Lord Lake, 1 Beavan, 151. (b) 1 Russ. & Myl. 72. (c) Sherer v. Bishop, 4 B. C. C. 55 (d) Humphreys v. Humphreys, 2 Cox, 184. See also Garth v. Meyrick, 1 B. C. C. 30. (e) 2 Cox, 258; S. C. 3 B. C. C. 148. (f) But did not the language of the bequest import that the youngest was only to become entitled in case there was no seventh child at the time of ascertaining the object? (g) Weld v. Bradbury, 2 Vern. 705; Lugar v. Harmar, 1 Cox, 250. (h) Lady Lincoln v. Pelham, 10 Ves. 166. See also Barnes v. Patch, 8 Ves. 604; Walker v. Moore, 1 Beav. 607. 1Ex parte Leith, 1 Hill, Ch. 153. Where a devise is to children and grand The same rule applies, where a devise or bequest is made to a person described as standing in a certain relation to the testator, and the children of another person standing in the same relation, as to "my brother A and the children of my brother B;" (a) in which case A takes only a share equal to that of one of the children of B, though it may be conjectured that the testator had a distribution according to the statute in his case. And of course it is immaterial that the objects of gift are the testator's own children and grandchildren; as where (b) a legacy was bequeathed "equally between my son David and the children of my son Robert." But this mode of construction will yield to a very faint glimpse of a different intention in the context. Thus the mere [112] fact, that the annual income, until the distribution * of the capital, is applicable, per stirpes, has been held to constitute a sufficient ground for presuming that a like principle was to govern the gift of the capital. (c) Where (d) a testator bequeathed "his fortune" to be equally divided between any second or younger sons of his brother J. and his sister S.; and in case his said brother and sister should not leave any second or younger son, the testator gave and bequeathed his said fortune to his said brother and sister; it was held, that there being no son of J., and but one younger son of S., such younger son took the whole. Here it may be observed, that where the gift is to A and B's children, or to "my brother and sister's children," (the possessive case being confined to B and the sister,) it is read as a gift to A and the children of B, or to the brother and the children (a) Blackler v. Webb, 2 P.W. 383. (b) Williams v. Yates, 1 C. P. Coop. 177. (c) Brett v. Horton, Rolls, July 20, 1841, Rep. 4 Jur. 696. (d) Wicker v. Mitford, 3 B. P. C. (Toml. ed.) 442. And see Malcom v. Martin, 3 B. C. C. 50. children, or to brothers and sisters, and nephews and nieces, to be equally divided between them, and the devisees are individually named, they take per capita and not per stirpes. Kean v. Roe, 2 Harr. 103; Shull v. Johnson, 2 Jones Eq. (N. C.) 202. See Brewer v. Opie, 1 Call, 212. But in a case where the testator devised the residue of his estate as follows, "to be equally divided between the children of my sister B and their heirs forever, and the children of my sister C and their heirs for ever," and C survived the testator, B being dead, the latter having seven children and the former four, it was held, that the residue of the estate should be divided into two equal portions, between the children of B and C. Alder v. Beall, 11 Gill & John. 123. See Bool v. Mix, 17 Wendell, 119; Walker v. Griffin, 11 Wheat. 375; Roome v. Counter, 1 Halst. 111. So where the devise was of property to be divided as follows: "between the children of my brother J. deceased, and the children or heirs of my sister C. deceased, and my brother Jacob, or his heirs or legal representatives," it was held, that the children described took per stirpes and not per capita. Tissel's Appeal, 27 Penn. State R. 55. So a bequest of a certain fund "to the bodily heirs of my three daughters R., C., and K." passes the fund to be shared per stirpes and not per capita. Lowe v. Carter, 2 Jones Eq. (N. C.) 377. of the sister, (a) as it strictly and properly imports, and not to the respective children of both, as the expression is sometimes inaccurately used to signify. So a bequest of a residue to be divided among "the children of my late cousin A, and my cousin B, and their lawful representatives," has been held to apply to B, not to his children. (b) VI. Another subject of inquiry is, whether a gift over, in case of a prior devisee or legatee dying without children, (c) *means without having had or without leaving a child. [113] In Hughes v. Sayer, (d) a testator bequeathed personally to A and B, and upon either of them dying without children, then to the survivor; and if both should die without children, then over; and it was held to mean children living at the death. The great question in this case was, whether the word "children not used as synonymous with issue (e) indefinitely, in which case the bequest over would have been void; and the M. R. seems to have thought, that whether it meant issue or children, it referred to the period of the death. (f) was So, in the case of Thicknessse v. Liege, (g) where a testator devised the residue of his estate in trust for his daughter for life, and after her decease among her issue, the division to be when the youngest should attain twenty-one; and if any of them should be then dead, leaving lawful issue, the guardian of such issue to take his or her share. But if his daughter happened to die without any child, or the youngest of them should not arrive to twenty-one, and none of them should have left issue, then The testator's daughter at the time of his death had one child, who had four children, but they, as well as their mother, all died in the lifetime of the daughter, so that she died without leaving issue at her death; and it was held, that the devise over took effect. over. But the words without having children are construed to mean, as they obviously import, without having had a child. Thus, in the case of Weakley d. Knight v. Rugg, (h) (a) See Doe d. Hayter v. Joinville, 3 East, 172. If, however, A and B were husband and wife, (as if the bequest were to John and Mary Thomas's children,) no doubt the construction would be different; it would be held to apply to the children of both. (b) Lugar v. Harmar, 1 Cox, 250. (e) Of course this question may arise where the person, whose issue is referred to, is not the prior legatee, but it happens rarely to have presented itself in such a shape. (d) 1 P. W. 534. (e) As to which see Doe d. Smith v. Webber, 1 B. & Ald. 713, and ante, 33. (f) But see Massey v. Hudson, 2 Mer. 135. (g) 3 B. P. C. (Toml. ed.) 365. (h) 7 Durn. & E. 322. See also Maule v. Stone, 2 Simons, 490. [114] where leasehold property was bequeathed to A," and in case she die without having children," over: it was held, that the legatee's interest became indefeasible on the birth of a child. In Wall v. Tomlinson, (a) a residue, which was given to A "in case she should have legitimate children, in failure of which," over, was held to belong absolutely to A on the birth of a child, who died before the parent. "Failure" here evidently referred not to the child, but to the event of "having children." The word leaving obviously points at the period of death. Thus a gift to such children, or issue, as a person may leave, is held to refer to the children or issue who shall survive him, in exclusion of such objects as may die in his lifetime; and this construction was applied in a recent case (b) to a gift to the lawful issue of A and B and of such of them as should leave issue, the latter words being considered as explaining, that the word "issue," in the first part of the sentence, meant those who were left by the parent; the consequence of which was, that the children, who did not survive the parent, were not entitled to participate with those who did. Although, as we have seen, the word "leaving" prima facie points to the period of death, yet this term, like all others, may receive a different interpretation by force of an explanatory context. Where a gift over is to take effect in case of a prior legatee for life, whose children are made objects of gift, dying without leaving children, it is sometimes construed as meaning, in default of objects of the prior gift, even though such gift should not have been confined to children living at the death of the parent. [115] * Where the gift over is in the event of two persons, husband and wife, not leaving children, the question arises, whether the words are to be construed, in case both shall die without leaving a child living at the death of either, or in case both shall die without leaving a child, who shall survive both. As in the case of Doe d. Nesmyth v. Knowls, (c) where the devise was to William Smyth and Mary his wife, and the survivor of them, during their lives, then to Mary their daughter, or, if more children by Mary, equal between them; and, in case they leave no children, to their heirs and assigns forever; it was held, that the fee simple became vested under the last devise, when the survivor of William and Mary (namely, William) died, leaving no children of their marriage surviving him, though a child was living at the death of Mary, Mr. Justice Bayley observing"they cannot be said to leave no children till both are gone." If the several persons on whose decease, without children, the (a) 16 Ves. 413. (b) Cross v. Cross, 1 Sim. 201. gift over is to take effect be not husband and wife, the obvious construction is to read the words as signifying, "in case each or every such person shall die without leaving a child living at his or her own respective decease," supposing, of course, that the testator is not contemplating a marriage between these persons, and their having children, the offspring of such marriage; a question which can only arise when the persons are of different sexes, and not related within the prohibited degrees of consanguinity; for the law will not presume that a marriage between such persons, i. e. an illegal marriage, was in the testator's contemplation. VII. We are now to consider the construction of gifts to younger children, the peculiarity of which consists in this, that as the term younger children generally comprehends the branches not provided for of a family, (younger sons being excluded by the law of primogeniture from taking by descent,) the supposi tion that these are the objects in the testator's contemplation so far prevails, and controls the literal import of the language of the gift, that it has been held to apply to children who do not take the family estate, whether younger or not, (a) to the exclusion of a child taking the estate, whether elder or not. (b) Thus the eldest daughter, or the eldest son being unprovided for, has frequently been held to be entitled under the description of a younger child. As where a parent, having a power to dispose of the inheritance to one or more of his children, subject to a term of years for raising portions for younger children, appoints the estate to a younger son, the elder will be entitled to a portion under the trusts of the term; (c) and, by parity of reason, the appointee of the estate, though a younger son, will be excluded. But it should be observed, that where the portions are to be raised for children generally, the child taking the estate is allowed to participate. (d) [117] The rule under consideration, however, applies only to gifts by parents or persons standing in loco parentis, and not to dispositions by strangers, in which the words * younger children receive their ordinary literal interpretation. (e) Nor is there any instance of its having been applied to a devise of lands without some indication in the context (f) of an inten (a) Chadwick v. Doleman, 2 Vern. 525; Beale v. Beale, 1 P. W. 244; Butler v Duncombe, Ib. 451; Heneage v. Hunlock, 2 Atk. 456; Pierson v. Garnett, 2 B. C. C. 38. (b) Bretton v. Bretton, Freem. Eq. Ca. 158, pl. 204; 3 Ch. Rep. 1; 1 Eq. Ca. Ab. 202, pl. 18, S. C. (c) Duke v. Doidge, 2 Ves. Sen. 203. (d) Incledon v. Northcote, 3 Atk. 438. (e) See Lord Teynham v. Webb, 2 Veŝ. Sen. 197; Hall v. Hewer, Amb. 203 Lady Lincoln v. Pelham, 10 Ves. 166. (ƒ) See Hencage v. Hunlock, 2 Atk. 456. |