A TREATISE ON THE LAW OF WILLS, rNCLUDINa THEIB EXECUTION, REYOOATIO:^", ETC.; ALSO A FULL DISCUSSION OF THE RULES AND PRINCIPLES OF THEIR CONSTRUCTION, TOGETHER WITH A CONSIDERATION OF THOSE RULES OF THE LAW OF REAL PROPERTY ANT^ OF THE DOCTRINES OF EQUITY WHICH RE MOST FREQUENTLY APPLICABLE TO TESTAjMENTARY DISPOSI- TIONS OF PROPERTY, ^axH FULL REFERENCES TO THE LATEST AMERICAN AND ENGLISH DECISIONS. BY H. C. UNDERHILL, LL. B., OF THE NEW YORK i^AR, AuTHOB OF A "Treatise on the Law of Evidenxe," and A "Tkkatise on the Law of Criminal Evidencb." IN TWO VOLUMEa YOL. II. CHICAGO: T. ir. FLOOD AN I) (OMI'AXY. llMMt. T \^00 Copyright, 1900, BY HARRY C. UNDERHILU STATE JOURNAL PRINTINO COMPANY, Pklnters and Stereotypebs, madison, wis. TABLE OF CONTENTS. VOLUME II. CHAPTEE XXIV. THE CREATION OF TENANCY IN COMMON AND JOINT TENANCY BY WILL. Sec. Page. 532. Devises in joint tenancy and tenancy in common distinguished 699 533. The creation of joint tenancy at common law .... 700 534 Language creating tenancy in common at common law . . 701 535. American doctrine — Tenancy in common implied from words of division or partition ........ 703 536. When two or more devisees of an estate tail are tenants in com- mon ........... 704 537. Tenancy in common by a devise of the sjxme land to two or more in fee 70-t 538. Gifts in remainder to classes as joint tenants .... 704 539. Statutes regulating the subject of joint tenancy . . . 705 540. The constitutionality of statutes abolishmg joint tenancy . 706 541. The characteristics of an estate by tlie entirety . . . 707 542. The creation of estates by the entirety in wills .... 707 543. Devises to husband and wife as tenants in common with others 709 544 The effect of statutes abolishing joint tenancy on estates by the entirety 709 545, The effect of statutes regulating the property status of married women on estates by the entirety 710 CHAPTER XXV. GIFTS BY WILL TO CHILDREN AS PURCHASERS. 546. Wliethf-r '•c-liil(lren " is a word of purchase or of limitation . 711 517. ilxten.sion of the meaning of the word "children " . . . 713 548. Bequests and devi.se8 to "children" a.s purcha.sers — Primary meaning of tho word ........ 714 549. The word "children" does not pre8umj)tively include Bteivchil- drea 716 G(;V433 iv TAHLE OK CONTENTS. Pago. 717 718 r" >■).■> 1 :;;;> Sec. fijO. The status of an ailoptod ihilil — When it inherits as heir or issue .....•••••• f).")!. Cifts to children iiichi.lt' those of different marriages 552. (lifts to childrtMi living at the execution of the will . . . 720 553. When the class is to be ascertained in the case of immediate gifts to children "^'^^ 5.14. Devises to children where distribution is to be at majority 555. Construction of aclaase directing distrilmtion wlicn (he young- est child shall attain the age of twenty-one .... 5.">r>. Testimony to prove the age of a legatee 727 557. The ojieration of the words " living," "then living." and "sur- viving," in determining when class of children is to be ascer- tained "28 558. When c-hildren as a class are to be ascertained in the case of a remainder .......... 731 559. Gifts to children born or to be born 734 560. Distribution amongst children, when to be per eaj)/7a . . 736 501. Direction for an equality of division favors distribution per cap- ita "i' 502. Whether the distribution amongst the children of several per- sons sliall be per stirpes or per capita 737 503. Where children take by substitution the distribution will be i)er stirjics ''^^ 504. Mode of distribution where the devise is to individuals and the children of another 740 505. Erroneous statement of the number of children . . . 742 500. Construction of provision for a devise over in case legatee dies without children 744 507. Children en ventre sa mere 740 508. Presumption of legitimacy — Character of proof of illegitimacy of legatee ......... 749 509. Competency of husband or wife to prove legitimacy . . 750 CHAPTER XXVI. GIFTS TO ILLEGITIMATE CHILDREN. 570. By a devi.se to "children," legitimate children only are meant 752 571. When a gift to "ciiildren" generally will include illegitimate children where there are no others ..... 753 572. Parol evidence to show that the testator meant illegitimate children 755 .573. The identification of the children by name .... 757 574. The recognition of illegitimate children by the testator . . 759 575. Wiien illegitimate children may take with legitimate children as a class .......... 702 576. Testamentary provisions for unljorn illegitimate children . 703 577. Provisions for illegitimate children en ventre sa mere . . 705 578. The effect of judicial decree legitimatizing illegitimate children 767 TABLE OF CONTENTS. V CHAPTER XXVII. WHEN "CHILDREN" IS A WORD OF LIMITATION — THE RULE IN WILD'S CASE. Sec. Page. 579. The word " children " when used as a word of limitation . . 769 080. The rule in Wild's Case 770 581. When children must be living . . . . . . .771 582. Immediate devise to the parent and children when the children are living .......... 773 583. Whether gift to " A. and his children " is immediate or in re- mainder to the children ........ 774 584 Whetlier the rule in Wild's Case is applicable to personal prop- erty 776 CHAPTER XXVIII. GIFTS TO FAMILIES AND RELATIONS AS PURCHASERS. .585. Definition of the word ''family '' — Gifts to families, when void for uncertainty ......... 778 586. The word "famih'" may be equivalent to "heir" . . . 779 587. The word " family " may be equivalent to "children" — When the liead of tlie family is included .... . 780 588. The word " family " may mean relations or next of kin . . 782 589. Definition of the word " relations " as statutory next of kin . 784 590. " Relations " presumed to mean those by consanguinity — Hus- band and wife, when included among relations or next of kin 785 591. Gifts to relation in the singular — When illegitimate relations are included 787 592. Provisions made for the poor or needy relations of the testator 788 593. Powers of distribution among relations 789 594. Distribution among relations as a class is usually per ca^9«7a . 790 CHAPTER XXIX. GIFTS TO NEPHEWS AND NIECES. BROTHERS AND SISTERS, DAUGHTERS, COUSINS. HUSBAND OR WIFE. TO SERVANTS. AND TO PERSONS OF THE TESTATOR'S NAME, AS PURCHAS- EliS. 595. " Nephews"and "nieces " mean primarily tho.so l)y consanguinity 792 596. When a provision for nephews and nieces will include great- nephews and great-nieces ....... 794 597. Presumption that legitimate nephews and nieces are meant . 796 598. Children of a nephew or niece may take parent's share . . 79(1 599. Gifts to brothers and si.sters ....... 799 600. Gifts to daughter or daughters — Number incorrectly staled . 799 001. Gifts to liiisl)aiid or wife — When chiiniiMl l)y a person wiio is not a lawful huslKind or wife ....... M)l <»02. From what time a will sjM'aks as respects a o. Papo. (ifM. Terms in whir-h " lioirs " or '" lioirs of the body " may be described S><*.) •5»W. The rule is not api>lii-able to reinainch'rs to children . . .891 GIKJ. The rule iu Slielley's case as applied in etjuity .... bl)l! (\M. Trusts executory and executed defined and distinguished . 89G «>fi5. Executory trusts in wills 89(5 ♦560. The rule in Shelley's case in the United States .... 903 (5G7. StJitutes abolishini; the rule in the United States . . . 90.") G08. The rule in Shelley's case applied to personal property . . 90(» 008u, The gent'ral ellect and the practical operation of the rule in Shelley's case 900 CHAPTER XXXIV. THE WORD "ISSUE" AS A TF.RAI OF PURCHASE AND OF LBI- ITATION. CG9. "Whether the word " issue " is a word of limitation or a word of purchase ........... 909 G70. A devise to " A. and his issue " crciites an estate tail . . . 91(» G71. The effect of added words of inheritance in modifying a gift of a remainder to issue ........ 912 G72. The addition of words of distribution to a devise to issue — Issue maj' take as tenants in common . . . . . .913 G73. A devise to " A. for life, and then to his issue," converted into a fee tail by tlie rule in Slielley's case ..... 917 G74. Definition and construction of the word " issue " when it is a word of purchase 918 075. The restriction of the word " issue " to children as purchasers 920 676. Mode of distribution among issue as purchasers . . . 924 677. Meaning of the word '• descendant " ...... 925 678. Mode of distribution among descendants 927 CHAPTER XXXY. THE CREATION OF ESTATES IN FEE WITH AND WITHOUT WORDS OF INHERITANCE OR PERPETUITY. G79. A devise of land in indefinite language creates a life estate only at common law ......... 929 680. The effect of an introductory clause purporting to dispose of the whole estate 931 G><1. Tlie operation of the word "estate" in conveying the fee . . 933 682. An express devise for life is not enlarged into a fee by a gift of the estate 934 083. Fee simple in the beneficial interest created by a devise in trust 935 684. Words of inheritance, when not necessary to create a fee at com- mon law ........... 935 685. A direction to the devisee of land to pay debts and legacies may enlar;^e his estate to a fee 936 686. A power of disjKjsjvl may raise a fee by implication ... 938 TABLE OF CONTENTS. IX l^ec. Page. 687. A life estate with a power of sale for support .... 940 688. A life estate with power of appointment by will . , . 943 689. A devise of the fee simple not cut down by a devise of " what remains" 945 690. The effect of a devise over on death during minority in creating a fee 947 691. Gifts for life of consumable articles 949 692. A bequest of the rents and profits of land carries the land . 949 693. Statutory changes in England of tlie rule which required words of inheritance to pass the fee . 951 694 Statutory regulations in the United States .... 952 CHAPTER XXXYL THE DOCTRINE OF EQUITABLE CONVERSION IN RELATION WILLS. 695. The definition and origin of equitable conversion . . 696. The intention of the testator to effect a conversion . 697. A power of sale in will alone does not convert — The direction to sell must be imperative ...... Direction to sell land for the purpose of paying debts — When it converts .......... Conversion without the creation of an express trust to sell A discretion as to the time and the place of sale does not pre- vent a constructive conversion ..... Conversion where no express power of sale is conferred . The date at whicli a constructive conversion takes place . The sale of land after tlie death of the tenant for life 04. Blending ])roceeds of land with personal property — The effects of O.J. Conversion depending upon a contingency, or upon the consent or request of a legatee A direction to sell at a fixed price ..... The effect of an option to purchase given to a beneficiary Conversion in the case of land contracted to be sold by the tes- tator .......... 709. Conversion in the case of land contracted to be bought by the testator .......... 710. Lands devised and subject to an option to purchase . 711. Conversion in the case of land taken for public use . 712. Conversion by an order of court of land belonging to an infant or a lunatic 713. The effects of a constructive conversion .... 714. Dowffr and curt«'sy in property converted . . . 715. The failiire of tin; purpr)se of a conversion — Reconversion 710. Resulting trust for tlie benefit of the; next of kin 710a. Tlie nature of the iirojierty in which a reconversion is liad f the Ijcnefit of the heir ....... 717. Conflict of laws in relation to eiiuitable conversion . 718. Double conversion dednt-d ....... 44» 698. 699. 700. 701. 702. 703. 700. 707. 708. TO 954 957 957 9G0 901 963 964 965 966 967 969 971 971 973 974 976 978 980 983 985 \m\ 989 9Si» 9'.»0 994 996 X TAliLK OF CONTENTS. Sec. Pago. 719. Election to take the property unconverted . . . • 991 7~0. Who may elect to tivke tlie property unconverted . , . 993 701. All i)ers(>ns at interest must concur in electing .... 993 722. When an election must be made 994 723. What acts constitute an election to take property unconverted 724 Election by remaindermen to take property unconverted . . 725. When tl»e tenant in tail may elect 997 72oa. No constructive conversion when money is at home ... 997 CHAPTER XXXVII. THE DOCTRINE OF EQUITABLE ELECTION AS RELATING TO WILLS. 720. Definition and general doctrine of election . . • . 1000 727. The origin of the doctrine of election • • • • • 1001 728. The foundation of the doctrine of election .... 1003 729. The effect of the election — Whether based on compensation or forfeiture 100 1 730. Presumption against the necessity for an election — The testator must intend to dispose of the property of another . . . 1003 731. Finality of an election — Its revocation when made by mistake or procured by fraud or bad faith 1013 732. A case for an election does not arise where the will is invalid . 1017 733. A party taking title indirectly is not put to his election by a gift under the will 1021 733a. The period within which the election must be made . . 1023 734. Whether parol evidence is receivable to show an intention to require an election 1023 735. What acts constitute an election to take under the will . . 1023 736. Not material that the testator supposes he owns the property devised 1026 737. Election by infants and incompetent persons .... 1026 738. The doctrine of election in relation to the claims of creditors . 1028 739. Election between gifts by the same will 1028 740. Election in the case of a wall devising land in different states . 1029 741. Cases of election under powers of appointment . . . 1033 742. Election among tenants in common, and between the life ten- ant and remaindermen 10o3 713. The riglit of election does not inure to heir . . • . 1034 744 The doctrine of election in its application to dower . . . 1036 745. A general devise of land to the widow or a devise of land in trvist to sell does not bar dower 1040 746. Presumption of an election by the widow from an equality of division 1043 747. The effect of an election by the widow to take under the will . 1045 748. Compensation to widow wlien devise taken in lieu of dower fails lOoO 749. Statutory provisions regulating the widow's election . . 1051 750. Election in relation to devises of community property . . 1054 751. Election in the case of a devise of the homestead . . . 105G TABLE OF CONTEXTS. XI Sec. raga. 753. Election in the case of a bequost of the proceeds of a policy of insurance 10.38 753. The husband's right to elect as respects his curtesy , , . 1059 754. Curtesy in laud in separate-use trust 1061 CHAPTER XXXYIII. DONATIONS MORTIS CAUSA, 755. Donation mortis causa defined, and the origin of the doctrine investigated . . 1063 756. The necessity for the existence of an immediate apprehension of death 1067 757. The necessity for delivery, actual or constructive — The revo- cable character of the donation 1068 758. The character and mode of the delivery 1068 759. Gifts causa mortis of savings bank books, checks and negotiable insti'uments 1070 760. Gifts causa mortis in trast 1074 761. The character and burden of proof to establish a gift causa mortis 1075 CHAPTER XXXIX. ANNUITIES. 763. Annuities defined and distinguished from rent charges and leg- acies 1078 763. An annuity in general terras presumed to be given for life only 1080 764. Language by which an annuity in fee is created — Rules regu- lating the descent of perpetual annuities .... 1081 705. The circumstances under which the annuity may be com- muted — The effect of the death of an annuitant where pay- ment is postponed , . 1083 766. The apportionment of annuities ....,, 1083 767. When annuities are payable 1084 768. Circumstances under which the corpus of a fund may be em- ployed to pay an annuity — The payment of arrears from sur- plus income » , . 1086 709. Abatement of annuities ........ 1089 770. Annuities payable wliile the annuitant remains unmarried or while she is living separate from her husband • • • 1089 CHAPTER XL. TESTAMENTARY USES. TRUST ESTATES AND TOWERS. 771. The origin and early employment of uses 109'3 772. The ex(;«'[)tioiis to the English htutute of uses — Statute does not apply to chattels loit.l 773. Active uses aro not executed by the slat uto .... l(i'.»<> TCll TAni.E OF C(^N'TENT3. 774. Uses for the benefit of inarriod women are not exeoutod by the statute .......... 77."). A use upon a use is not executctl hy the statute 776. The statute of uses in the United States .... 777. Future and executory uses 778. Shifting, springing and contingent uses .... 779. Tlie law of modern trusts 780. Statutes reguhiting trusts in the United States 781. Language b}' which a trust may bo created — The duration of thp estate taken by the trustee ..... 783. Trusts to sell land — When i)ower of sale only is created . 78y. Tlio power of an executor to sell lands .... ^84. The execution of a power of sale by surviving executors . 785. The acceptance of the trust 786. The power of equity to appoint a trustee .... 787. The removal of trustees . 788. Tlie merger of the equitable and the legal estates 781). The protection and preservation of the trust proj^erty by the trustee — The degree of cai-e required .... 789a. A trustee cannot purchase the trust property — The remedy of the cestui qne trust ........ 700. The liability of trustees for investment of personal property in trust 791. The liability of a purchaser for the application of the trust prop- erty 792. Definition of a precatory trust 793. Particular exami)les of language which is testamentary, and not l)recatory merely ........ 794. Tiie modern rule as to the creation of precatory trusts . 79."). The relations between the trustee and the testator . 790. Where the discretion is absolute no trust is created . 797. Precatory words in a devise to a person for himself and children 798. Powers of ap|)ointment defined and classified . . . 799. Language necessary to be used to create a power . 800. The mode of the execution of the power .... ■801. The execution of a power of appointment by Avill by a general devise .......... €02. Etjuitable remedies for the non-execution of powers . ^03. Tlie fraudulent and improper and excessive execution of powers 804. The illusory execution of powers . . • . , 80.1. The extinguishment of powers ...... ■80(5. Wlio may he the donee of a power ..... 807. Powers when void for remoteness ..... Page. CHAPTER XLI. THE RULES REGULATING CHARITABLE GIFTS BY WILL. •80.S. Charity defined 1186 •809. The law of charitable gifts in England prior to the passage of the statute of Elizabeth 1186 TABLE OF CONTEXTS. Xlll Sec. Page. 810. The force and operation of the statute of Eh'zabeth in the states of the American Union 1191 811. The charity must be a public one ...... 1195 812. The validit}' of bequests for religious purposes .... 119J> 813. The validity of bequests for masses in England and America . 1203 814. Gifts for educational purposes, to establish schools, pay teachers, etc 1204 815. Gifts for scientific purposes 1206 816. Testamentary provisions for the i)oor — Validity of . . . 1207 817. Definition and classification of the poor 1208 818. Gifts to orphan asylums and for the benefit of orphans and wid- ows 1211 819. The validity of testamentary gifts to the national or state gov- ernment 1213 820. Charitable gifts for the purpose of effecting a change in existing laws 1214 821. Gifts for general benevolence or for benevolent purposes . . 1217 822. Miscellaneous cases of charitable gifts 121i) 823. Testamentary provisions for the erection and care of monuments 1221 824. The doctrine of e.vpres as applied to charitable gifts by will . 1224 82.1. Tiie status of the c//p?'(?s doctrine in the United States . . 1226 826. Uncertainty and indefiniteness as regards charitable gifts . 1233 827. The indefiniteness of the beneficiaries of the charity . . 1233 828. The jurisdiction of the court of equity to appoint trustees of a charitable trust 1236 829. Charitable gifts to institutions which are to be incorporated in the future 1238 830. The validity of charitable gifts to unincorporated and voluntary societies 1241 831. Misnomer in the case of gifts to charitable institutions . . 1243 832. Charitable gifts to executors or trustees with delegation of the power to select the institutions or objects which are to be benefited 124& 833. The validity and performance of conditions which are attached to charitable gifts ......... 1253 834 The effect of tiie consolidation, division or dissolution of a cor- r)oration which is the donee of a charitable gift . . 1254 835. Definition of the words pointing out the area within which the chariUible funds are to Im3 distributed ..... 125."» 8;}6. Procurement of charital)lo bo(iuest by unfair means, fraud or umlue influence ......... 1356 837. Tlie Knglish statutes of sujjerstitious uses ..... 1258 H'-iH. The validity of bctjui'sts for the supjtort of tlus lioinan Catholic churcli in Hngland ......... 1259 S39. The AiiH-ricaii view of thi- doctriiw ()(' su|)<"rstitious uses . . 1251> HIO. The Kngli.sh statutes of mortmain 12(51 811. SUitutory liinitati<»ns ujion tiie valui' of piitpfit y which can l»e owtu'il by churitaMc c 843. Tlie law of testamentary charitahlc gifts in New York . . 1206 XiV TABLE OF CONTENTS. CHAPTER XLII. THE CONSTRUCTION AND MEANING OF GIFTS OVER ON DEATH AVITIIOUT ISSUE, St'c. Pago- 844 "What constitutes an indefinite failure of issue .... 1269 845. A conditional or determinable fee is created where the failure of issue is a definite failure — Conditional fees distinguished from estates in fee tail 1273 846. The estate of the primary devisee where the failure of issue is a definite failure 1274 847. The invalidity for remoteness of an executory devise of the fee on an indefinite failure of issue after a devise of the fee simple 1276 848. The failure of the testator's issue means a definite failure of issue 1277 849. Definite failure of issue is meant by a devise over on death with- out issue under majority ....... 1277 6"i0. A definite failure of issue is meant by a devise over to persons then surviving ......... 1278 Sol. Tlie meaning of the failure of issue at or after the death of a primary taker of the fee . ...... 1279 852. Presumption in favor of strict construction in case of personal property . 1281 853. Cross-remainders by implication after the failure of issue — De- vises in fee and devises in tail distinguished . • • • 1281 CHAPTER XLIII. THE VESTING OF FUTURE DEVISES AND LEGACIES. 854. Definition, classification and characteristics of contingent re- mainders ........... 1285 855. The peri^etuity created by a contingent remainder ... 1287 856. The happening of the contingent events 1289 857. The character of remainders to heirs 1291 858. Conditional limitations and remainders which are dependent \i\)on the remarriage of a tenant for life ..... 1293 859. Remainders dependent upon the death of a life tenant without surviving issue or cliildren • . 1295 860. Vested remainders defined • • . 1297 861. An early vesting is favored by the law 1299 862. The judicial lean ing in favor of vested gifts where the testament- ary disposition is residuary ....... 1300 863. Examples of remainders which have been held to be vested . 1301 864. When remainders to classes are vested 1302 865. Contingent remainders to classes ...... 1304 S66. Vested interests may be created by directions for the future di- vision of land or of money, or for the future payment of a leg- acy 1307 867. Vested remainders which are subject to be divested by some future event .......... 1311 868. The effect of a power of disposal on a vested remainder . . 1313 869. The vesting of devises and legacies at majority . , . 1315 TABLE OF CONTENTS. XV Sec. Papo. 870. Contingent legacies which vest only at majority in a legatee . 1318 871. The effect of a limitation over on death during minority in vest- ing a legacy 1321 872. The effect of the gift of the intermediate income on the vesting of a legacy 1323 873. The vesting of pecuniary legacies, and particularly of those charged upon the rents and proceeds of land .... 1327 874. The definition and classification of executory devises . . 1329 875. Executory devises are not affected by the acts of the holder of the precedent estate 1330 876. The effect of the failure of an executory devise ... 1331 877. The transfer of future vested estates ...... 1333 878. The acceleration of future estates ....*. 1334 CHAPTER XLIT. THE LAW OF PERPETUITIES AND REMOTENESS OF VESTING. 879. The definition of a perpetuity 1337 880. The law of perpetuities — General considerations . . . 1339 881. The rule of remoteness in the vesting of contingent remainders 1340 882. The origin of executory devises and of the modern rule of per- petuity 1343 883. The possibility of the happening of the future event . . . 1347 884. The validity of future limitations to unborn persons . . . 1349 885. The rule of remoteness of vesting and of perpetuities in relation to contingent gifts to grandchildren as a class . . . 1351 8S6. The invalidity of the suspension of the power of alienation for a period which is indefinite or which is not measured by lives 1353 887. The period is to begin at the death of the testator . . . 1355 888. Vested estates are not within the rule of perpetuities . . 1356 889. The effect of a power of sale to prevent the operation of the rule of perpetuities 1357 890. The rule of perpetuities in relation to charitable gifts . . 1359 891. Devises for charitable purposes may offend the rule when made to non-existent corporations ....... 13G1 892. Devise over on the termination of a charity — When void for re- moteness ........... 1362 893. The suspension of the power of alienation during minorities . 1364 894. Tlie separation of gifts to classes — When not permitted . . 1365 895. The circumstances under which class gifts may be separated . 1368 896. The effect of tlie invalidity of a devise on the next expectant limitation following it ....... . 1370 897. The stiitutory regulations of the rule of peri)etuity in the United States 1373 898. Tlie rule of poriK'tuities in Connecticut ..... 1373 899. Cases illu.stratinK the New York rule of perpetuities . . . 1374 900. The Htatutory rule of perpetuities in Wisconsin .... 1377 901. The su.sjH'n.Hion of alit-iiation for the iMirposo of accumulating income ........... 1378 002. The validity of aicuiiuilation.s for cliarity . . . 1381 XVi TABLE or CONTENTS. CHAPTER XLY. THE UNCERTAINTY OF THE LANGUAGE AND THE ADMISSI- BILITY OF PAROL EVIDENCE. See. I'^g^- 903. Tlie uncertainty of testamentary dispositions — The degree of certainty retiuired I'j^i 901. Tlie invalidity of a bequest or a devise of an indefinite amount or quantity ^^^^ 90."). Gifts whu'ii are void because of an uncertainty of the bene- Ik'iary 1389 90G. "When a gift of what may remain after a void gift is invalid for luicertainty of amount 1393 907. Construction of gifts to be enjoyed by several in succession . 1394 908. Parol evidence of the actual intention of the testator not con- tained in tiie will is inadmissible if introduced solely for the purpose of influencing the construction of the testator's lan- guage .....•••.•• 1395 909. Parol evidence to show the circumstances of the testator . . 1396 910. Patent and latent ambiguities defined — The admissibility of l)arol evidence to explain latent ambiguities .... 1398 911. The admissibility of parol evidence to identify the subject-matter of a legacy ...,....•• 1101 912. Parol evidence to show mistakes and supply omissions . . 1401: 913. Parol evidence to explain the meaning of words . . . 1406 914. The uncertainty of terms descriptive of real property . . 140O THE LAW OF WILLS. THE LAW or WILLS. CHAPTEPt XXIY. THE CREATION OF TENANCY IN COMMON AND JOINT TENANCY BY WILL. § 532. Devises in joint tenancy and tenancy in common dis- tinguished. 533. The creation of joint tenancy at common law. 534. Language creating tenancy in common at common law. 535. American doctrine — Tenancy in common implied from words of division or parti- tion. 536. When two or more devisees of an estate tail are tenants in common. 537. Tenancy in common by a de- vise of the same land to two or more in fee. 538. Gifts in remainder to classes as joint tenants. § 539. Statutes regulating the sub- ject of joint tenancy. 540. The constitutionality of stat- utes abolishing joint ten- ancy. 541. The characteristics of an es- tate by the entirety. 542. The creation of estates by the entirety in wills. 543. Devises to husband and wife as tenants in common with others. 544 The effect of statutes abolish- ing joint tenancy on es- tates by the entirety. 545. The effect of statutes regulat- ing the property status of ^ married women on estates by the entirety. § 532. Devises in joint tenancy and tenancy in common distingnisluMl. — Before proceeding to consider what language in a Avill will create a joint tenancy and what will create a ten- ancy in common, it is necessary to distinguish tiiese two species of tenure from one another. " Tenants in common," says Chan- cellor Kent, '*arc those who enjoy unity of possession; while they may hold by separate and distinct titles, or by one title derived at the same time under the same will or descent. Each lias an entire and distinct interest which he may convey as if s^Mzed of the .same in severalty."/ But of the sc^veral character- istics of tenure, namely, po.ssession, interest, title, and time; in »4 Kent, pp. 307, 371; 2 Black. Com., p. lUi. 700 LAW 01<- WILLS. [§ 533. respect to tcnaiu-v in coimiion, there is a unity among the ten- ants of possession alone, witli a unity of title in case of a devise, so far ;is the lu^^innini;- of the tenancy is coneei-ned. In the case of a tcnaiicv in I'onuiion, created otherwise than by will, one tenant may hold by descent, as from A., his father, and an- other may hold by purchase from A., or both may hold from dilferent *xrantors. Again, in the case of a tenancy in common uniK'r a will, one tenant may hold for life and another in fee- si mjile or fee-tail.^ Neither one of the tenants can say of any particular portion of the estate, " this is mine; " for the [X)sses- sion of all is the possession of each. ^'either can one bring ejectment against the otlicrs, nor dis- seize the others. At common law, ])artition among tenants in common could not be compelled.- Jt might be voluntarily matle by the execution of mutual deeds of conveyance ; but at the present time, by statute, partition may be had by compulsory })roceedings brought in a court of competent jurisdiction. As there is no survivorship in tenancy in common, any tenant may dispose of his interest either by deed or Avill.' Tenancies in common may be created either by descent or by purchase. Joint tenancy is invariably the result of the act of the parties them- selves; never of the application of any principle of law. The joint tenants enjoy the four unities, as they are called ; that is, unity of interest, title, time and possession.* In other words, they have one and the same interest, accruing in one and the same manner, commencing at one and the same time, and held by one and the same undivided possession. Upon the death of one tenant his share does not go to his heirs or next of kin, nor can he dispose of it by w'ill,-^ but to the surviving joint tenants. In this respect it will be seen the estate differs widely from ten- ancy in common. § 533. The creation of joint tenancy at common law. — At the common law it is a Avell-settled rule that land devised to two or more persons simply, without any exclusive, restrictive or ex})lanatory language by which they arc made tenants in 1 2 Black. Com . p. 101. 4 2 Black. Com., p. 189. •^ By statute 31 Hen. VIII, e. 1, and » Wilkins v. Young, j44 lud. 1, 41 32 Hen. VIII, c. :{2, it may. N. E. R GS. ^Snnmons v. Spratt, 26 Fla. 44'J, 8 S. Rep. 123. § 534.] TEXAXCY IN COMMON AND JOINT TENANCY. TOl common^ shall vest in them as joint tenants, whether to them individually or as members of a class.' Thus, where a devise is to A. and B. and their heirs, or to A. and B. for their lives, and after their death to their heirs, A. and B. take as joint tenants, and, on the death of either, the property goes to the other for life; but not until the death of both does it go to the heirs. The tendency of the earlier authorities, for feudal rea- sons, was to favor the creation of joint tenancies,- and the same rule Avhich was applied to a devise was applied to gifts of chattels to several persons simpliciter^ or to a money leg- acy. But an exception to this rule was always made in the case of a devise to two persons who are husband and wife, who were regarded by the law not as distinct persons, but as one, and who hence took as tenants by the entirety.'* § 534. Language creating tenancy in common at common law. — Independently of statute, it usuail}^ requires clear ex- pressions by the testator to show that he intended that devisees shall take as tenants in common and not as joint tenants. If, therefore, he inserts words of severance, or indicates an intention to divide equally, or to partition, or uses language which expressly or by necessary implication shows that he intends a tenancy in common, the presumption in favor of joint tenancy would be removed. Thus, where the devise was given, equally to be divided,^ or in etiual moieties to A. and B., with remainder over,^ a money legacy was given to A. and B., each 80 m?^c7i," or a sum is to be divided " ^^n^fo and among'''* several persons,*^ or "between" two or more,** or to be ])aid 1 Parsons v. Boyd, 20 Ala. (18.J2), < Freestone v. Parrot, 5 T. R. 053; 112; Phelps v. Jepson, 1 Root (Conn., Back v. Andrew, 2 Vern. 120; Earle 1789), 48; Haniian v. Towers, 3 Har. v. Wood, 8 Cush. 430, 445; Simpson & J. (Md., 1810), 147, 149; Webster v. v. Batterman, 5 Cusli. 153, loCi; Til- Vandeventer, Gray (Mass.), 428, 431 ; lingliast v. Cook, 9 Met. 143, 147. llardenljerf^li v. Ilardenberf^li, 10 N. *2 Black. Com., jj. 192. J. L. (1828), 42; Purdy v. llayt, 92 « Harrison v. Foreman, 5 Vos. 200, N. Y. (1HH3), 440, 4.53; Lorillard v. 209. Coster, T) Paige (N. Y.), 228. 14 Wend. ' Eales v. Earl of Cardi-uii, >. Litt.. ,^ 298. toriicy-Conorul v. Fletcher, 1^ It. 13 'Shc^ro V. BilliiiK'sIey, 1 Vern. 482; Eq. 128, 130. Willing V. Baine, 3 I'. W. 113, 111. 702 LAW OF MILLS. [§ 535. " equally," ' or to several persons respectively,^ or to be paid to each of the rcspoctive heirs of the persons mentioned,' a tenanc'V in coiiinion was created. And modern cases decided sinri' the middle of the eighteenth century, even in the absence of statute, have favored the creation of a tenancy in common rather than a joint tenancy. § 535. Aiiiericsin doctrine — Tenancy in common implied from wonis of division or partition. — In America the courts, htui^- prior to the adoption of statutes abolishing survivorship, ])ronounced against estates in joint tenancy. The policy of the common law by Avhich joint tenancy was favored, in the absence of express language creating tenancy in common, Avas based upon the fact that the division of the tenure I)y multi- plying those who rendered feudal sei'viccs, and dividing the rents and services, tended to weaken the ellicacy of the feudal system.^ JJut when feudal tenures were abolished, the reason for the existence of survivorship ceased. And Lord Ilardwicke remarked in Ilaiocs v. JIaives, 1 "Wils. 1G5, that, in his opinion, even the courts of law no longer favored joint tenancy, and so far as the policy of equity was concerned it had never been favored. As early as the time of Chancellor Kent,^ statutes had been passed in many of the states of the American Union by which estates in joint tenancy were abolished unless ex- pressly created by deed or will. In Connecticut the odious and unjust doctrine of survivorship, as it was termed, had been repudiated before this.*^ And generally it may be safely said that while an estate in jointtenancy may be created by express language in a will, yet the creation of such estates is at present tliscouraged by the law,'' Irrespective of statute it is the mod- ern rule of construction that any language in a will, showing an intention on the part of the testator that there shall be a division hi equal shcwes^ will create a tenancy in common. Thus, where the testator gave land equalhj to he dimded^^ or to 1 "Walker v. Dewing, 8 Pick. (Mass.) cpji^lps v. Jepson, 1 Root (Conn.), 519. 4."): Whittelsey v. Fuller, 11 Conn. :340. • Torrent v. Fnimpton, Styles. 434; " Simons v. McLain, 51 Kan. \h?j, IGO. Folke,s V. Western, 9 Ves. 456, 4G0. SGrigwold v. Johnson, 5 Conn. ' Gordon v. Atkinson, 1 De Gex & (1824), 363; West v. Rassman, 34 N. E. Sniale, 478. R. 991, 135 Ind. 278, 203; Bowen v. < Fi.sher v. Wign;. 1 Salk. 391, 392. Swander, 121 Ind. 164. 170, 23 N. E. R. 5 4 Kent, Com. 357; 1 Perry, Trusts, 725; Briscoe v. McKee. 2 J. J. Marsli. § 136. (25 Ky., 1829), 370 ; Simmons v. Spratt, §§ 536, 537.] TENANCY IN COMMON AND JOINT TENANCY. 703 be divided " share and share aWke^"^ ^ or where land is to be dis- tributed as a common stocl^- a tenancy in common is created. In England it has been held that the addition of words of survivorship to a gift to several as tenants in common does not of necessity make it a joint tenancy. Thus, a gift to sev- eral " share and share alike," but if one die then to the sur- vivor, was held to mean death during the life-time of the testator.' An annuity given to A. and B., each so much, does not become a joint tenancy because it is stated to be for their lives and the life of the survivor.* § 536. ^Vlieu two or more devisees of an estate tail are tenants in common. — The rule by which a devise to A. and B. in fee creates in them a joint tenancy in the absence of stat- ute does not apply to a devise to A. and B. and the heirs of their bodies, where A. and B. are not husband and wife and cannot become such, either because they are of the same sex, or, being of opposite sexes, because they are within the prohib- ited degrees. In such case they are joint tenants for life, but tenants in common by necessity in respect to the estate tail.^ § 537. Tenancy in common by a devise of the same land to two or more in fee. — At common law a devise in one portion 26 Fla. 449 (1890', 8 S. R 123; Spencer V. Chick, 76 Me. 347, 349; In re Brown, 86 Me. 572, 578; Stetson v. Eastman, 84 Me. 369; Partridge v. Colgate, 3 Harr. & McH. (Md.,1793), 339; Walker V. Dewing, 8 Pick. (25 Mass.) 519, 520; Bigelow V. Clapp, 106 Mass. 88,91; Emerson v. Cutler, 14 Pick. (31 ]\rass.) 108; Farmer v. Kimball, 46 N. H. 435; Bud J v. Haines, 29 Atl. R. 170, 52 N. J. Eq. 488, 489; Hill v. Spruill, 3 Jone-s' Eq. (56 N. C, 1857), 490; Culp V. Lee. 14 S. E. R. 74 (1891), 109 N. C. 675; McMaster v. McMaster, 10 flratt. (Viu, lb53), 275; Warner v. Hone, 1 Va{. Ca-s. Abr. 290, pi. 10. •Watts V. Ciardy, 3 Fla. (1848), 869; Lombard v. Boydcn, 5 Allen, 249, 251; Holl)rook v. Finny, 4 Mass. (1808), 507; Nye v. Drake. 9 I'ick. (Mass.) 87; Mi.lgett v. Midgett, 117 N. C. 8. 10, 23 H. E. R. 37; Culp v. I^KKJ, 109 N. C. 075, 677; Ham ill on v. lioyle, 1 Brev. (H. C. 1801). 411. 419; Bunch V. Hurst, 3 Des. (S. C, 1811), Eq. 288; Witmer v. Ebersole, 5 Pa, St. (1846), 458; Irwin v. Dunwoody, 13 S. Sc R. (Pa.) 61; Heath v. Heath, 2 Atk. 122; Perry v. Woods, 3 Ves. 204, 208, n.; Barker v. Giles (1725), 3 P. W. 280, 283. 2 Dickson v. Dickson, 70 N. C. 487. 3 Biudon v. Earl of Suirolk, 1 P. W. 90, 97. And so of a gift to A. and B. with a limitation to the survivor in case either dies without issue. Ryves V. Ryves, L. R. 11 Eq. 539, 541; Perry V. Woods, 3 Ves. 204; Ash ford v. Haines, 21 L. J. Ch. 496; anti\ § 342. 4 Jones V. Randall. 1 J. & W. 100; Eales V. Earl of Cardigan, 9 Sim. 384. A direction that C. should par- ticipate in a gift of the residue to A. jind B. makes them all tenants in common, not joint tenants. Robert- son V. Eraser. L. R. 6 Ch. 09(5. »Co. Litt. 184rj; Litt. 283; 2 Black. Com., p. 191; Huntley's Case, Dyer, :!20«. Ttl-i LAW OF WILLS. [§ 538. of a "will of a foe in land to A., and in a subsequent clause a de- vise of the fee in the same land to B., gave A. and 13, the land as joint tenants in fee, for in no other way could these two clauses be reconciled. But by force of the existing American statutes such a disposition of the fee-simple of land to two dif- ferent persons in separate clauses of a will gives them the land as tenants in common, each taking an undivided half.^ § 5.*JS. Gifts in remainder to classes as joint tenants. — The general rule of the common law, that a gift to several makes them joint tenants, is applicable to gifts to classes as well as to gifts to individuals.- Thus, where the matter is not regulated by statute, and where there arc no words indicating a severance among the devisees, in the case of a bequest to chil- dren as a class in remainder, or an executory devise after a life estate, the devisees will take as joint tenants.' This is the rule irrespective of the fact that the interests of the children vest in them at different periods, while at common law the interests of joint tenants must vest in them at one and the same time.* Tor in the case of a future estate devised to children as a class after a life estate, it is a well-known rule that the property will vest in such of the children as are living at the death of the testator, and that after-born children born during the existence of the life estate will, on their birth, acquire a vested right to share with the others in the remainder.-^ And Avhere a provis- ion of a future estate for children as a class is for those only who survive the life tenant, those who predecease him are ex- cluded. At common law the limitation of a future estate on. such conditions would have made all the children tenants in common.^ But under the rules of equity such a testamentary disposition of property w^as placed upon the basis of a convey- ance in trust. The presumed intent of the creator of a trust and of the testator to create a joint tenancy was permitted to overcome the rule of the common law. Thus, where land was devised to A. for life, remainder to B. and to her children and 1 Day V. Wallace, 144 HI. 256, 33 N. (Del.. 183G), 103; Withy v. Mangles, 4 R R. 18.1. The cases are fully cited Beav. 358; Wood v. Wood, 3 Hare, 65; ante, § 360. Gregory v. Smith, 9 Hare, 708. 2Kuhn V. Webster, 12 Gray. 316; 3 Pos^,g 553. Gulp V. Lee, 14 S. K R. 74, 109 N. C. * 2 Black. Com., p. 18L 675; West v. Rassman, 135 lud. 278, ^ Post, ^ 558. 34 N. E. R. 991; Kean v. Roe, 2 Har. 6 Co. Litt. 188a. § 539.] TEXA>-CY IX COMMON AND JOINT TENANCY. 705 their heirs, the court held that B. and her children on the death of the testator took an estate in joint tenancy in fee, including all children of B. born during A.'s life, and the objection that the estate would commence at different times was ignored.^ § 539. Statutes regulating the subject of joint tenancy. — In many of the states statutes exist which provide that every estate given by will or conveyance to two or more persons shall be construed an estate in common, unless it is expressed therein that the devisees or grantees shall take as joint tenants, or by some similar language. In other states, the statutes, while not formulating a rule of construction, expressly abol- ish the right of survivorship among joint tenants, and declare that joint tenancy shall assimilate to tenancy in common.^ These statutes reverse the rule or presumption of the common law that a devise or a bequest to two or more persons without explanatory words creates a joint tenancy. Under these stat- utes it is the rule that a bequest to two or more without re- strictive or explanatory language is to be construed as a tenancy in common, unless a different intention on the j><-trt of the testator is indicated hy the will. If the will is altogether silent, the stat- ute speaks and declares that such a gift creates a tenancy in common.' 1 Gates d. Hatterley v. Jackson, 2 Ga, 40; McRea v. Button, 95 Ga, 267, Stra. 1172; Kansas City L. Co. v. 22 S. E. R. 149; Wright v. Harris, 116 Hill, 3 Pickle (Tenn.), 589, 596, 11 S. N. C. 462, 21 S. E. R. 914; Johnson v. W. R797. Johnson, 128 Ind. 93. 96; Heller v. 2 Hampton v. Wheeler, 99 N. C. 222 Heller, 35 N. E. R. 798. 147 111. 621; (1888), 6 S. E. R. 266; Bishop v. Mo- Barclay v. Piatt, 170 111. 384, 387, 48 Clellands Ex'rs, 44 N. J. L. 450 (1882), N. E. R 972; Harrison v. Botts, 4 Bibb 16 AtL R. 1; In re Kimberley, 150 (7 Ky., 1815), 420; Simons v. McLain, N. Y. 90, 44 N. K R. 945; Dana v. 51 Kan. 153, 32 Pac. R. 919; Proctor Murray, 122 N. Y. (1890), 6(J4; Braze- v. Smith, 8 Bush (71 Ky., 1871), 81,84; more v. Davis, 55 Ga. (1875), 504; Mil- Annable v. Patch, 3 Pick. 160; Ham- ler V. !Miller, 16 ilass. 59; Simons v. ilton v. Pitcher, 53 Mo. 334; Russell McLain, 51 Kan. 153, 32 Pac. R. 919; v. Russell, 122 Mo. Sup. 235, 26 S. W. Harvey v. Harvey, 72 N. C. 570; Burj?- R. 677; Rodney v. Landreau, 104 Mo. hart V. Turner. 12 Pick. (29 Mass., 251; Jones v. Jones, 13 N. J. Eq. 236. 1832), 534: Youn'g v. De Bruld, 11 238; Vrecland v. Van Riper, 17 N. J. Rich. (S. C. 1856). L. 638; Joluisou v. Eci. 133; Bishop v. ,AIcCIelIand. 37 Harris, 5 Hayw. (6 Terui.) 113. N. J. ?:<(. k;;}; Maxwell v. Ui^gins, •Utz's Estat*', 43 Cai. (1872), 200, 38 Neb. 671, 57 N. W. R. 388; Coster 204; Ijctnl v. Moore. 20 Conn. (1849), v. I><)riilard. 14 Wend. (N. Y., 1835). 122, 126; Morris v. Bolles, 31 Atl. R. 342; MofFilt v. Elmeiidorf. 152 N. Y. 638,05 Conn. 45; iioylo v. Jones, 30 475, 16 .N. 11 lu 815; In ro Muiiler'.s 45 Too LAW OF WILLS. [§ 540. But an estate may be devised in joint tenancy. Xor is it necessary that the testator should use the words " joint ten- ancy," if he shall employ language clearly expressing an in- tention to create a joint tenancy.^ Thus, in the case of a devise to A., B. anil C, and to the survivor and the heirs of the sur- vivor,- or to A. and B. and the longest liver of them,^ a joint tenancy is created.* ij 540. Constitutionality of statutes abolishinc: joint ton- aiK'.V. — The guai'autees which have Ijeen inserted in the con- stitutions of the various states, protecting vested property rights from legislative encroachment, ami the prohibition of the passage of statutes which shall have a retroactive opera- tion, are a]>plicable to statutes which have been passed in the various states abolishing joint tenancy, or changing it into a tenancy in common. Upon general principles it would seem that such a statute passed after an estate has vested on the death of the testator could legally have no reti'oactive effect upon any interest in such jiroperty. But in Massachusetts a contrary view has been held. The courts of that state have determined that these statutes, so far as they abolish the right of survi- vorship attached to a joint tenancy, may be applied to vested estates, as they give the tenant who dies a more beneficial interest than he enjoyed at the common law. And, on the Will, 44 X. Y. S. GOo; Tompkins v. trust for several children to continue Verplanck. 42 N. Y. S. 412: Purdy v. until the death of all of them makes Hayt. 'J2 N. Y. 446. 454: Dana v. Mur- them tenants in common, and on the ray, 122 X. Y. 604, Glo; In re Kimbex'- death of one of them during the trust ley's Estate, 100 X. Y. 90. 44 X. E. R. his share .goes to his estate. Morris 94o, OS X. Y. S. 399; Hampton v. t. BoUes, 31 Atl. R. 538, 65 Conn. 45. Wlieeler, 99 X. C. 222, 6 S. E. R. 230; -iHannon v. Christopher, 34 N. J. Silliman v. AVhitaker, 119 X. C. 89. 93; Eq. 459, 462. Sarjeant v. Steinberger. 2 Ohio (1825), * Pierce v. Baker, 58 X. H. 531. 305; Penn v. Cox, 16 Ohio (1847), 30; *And in one case it was held that WiLson V. Fleming. 13 id. 68: Sturm whei-e articles of little intrinsic V. Sawyer, 2 Pa. Super. Ct. 254, 38 W. value were given to several by name X. C. 536; Cliurch v. Church, 23 Atl. in words which would ordinarily cre- R. 302, 15 R. I. 38; Cannon v. Apper- ate a tenancy in common, with an son, 14 Lea (82 Tenn.), 553. evident intention to keep them in 1 Coster v. Lorillard, 14 Wend, the family, a joint tenancy would (X. Y.) 340. Tiie use of negative be implied. Gilbert v. Richards, 7 words showing an intention not to Vt. 203; Decamp v. Hall, 42 Vt. 83. create a tenancy in common is not See also Anderson v. Parsons, 4 ]^Ie. necessary. Coudert v. Earl. 45 X. J. 480. Eq. 654, 18 AtL R. 220. A deWse in §§ 541, 542.] TENA2s"CY IN co:sniox and joint tenancy. TOT other hand, they do not deprive the survivor of any interest, for he may defeat the joint tenancy in his life-tiine by convey- ing to a stranger, or suing in partition.^ .^ 541. The characteristics of an estate hy the entirety. — Tenure by the entirety is sui generis. It is based solely upon the common-la^v unity of husband and wife. In theory there is but one owner of the estate. jBoth jmrties to the marriage relation are proprietors of the whole estate and of every part and parcel of it. During the joint lives of the husband and wife it is wholly in the control of the former, who may claim its profits. But he cannot dispose of or incumber it without the consent of the wife,- and it is always subject to the restriction that, on the death of either, the whole estate goes to the other. This is of necessity ; for, as the estate is incapable of partition hv either the husband or the wife, nothing can descend to the heirs of either. On the death of either, his or her title is ex- tinguished, but no new title is created. Both enjoy the legal title, and the survivor does not take the estate from the one who dies as a new acquisition, but continues to hold under the instrument creating the estate. The interest which he has is simply a continuation of that which he formerly enjoyed, augmented l)y the interest of his deceased joint tenant; or perhaps we may say more correctly, free from the incuml)rance of it. On the death of the survivor, his or her heirs will take the fee of the whole estate, to the exclusion of the heii's of the other tenant who died first.* As has been noted, unless a stat- ute permits partition at common law an estate by the entirety cannot be partitioned.^ § 54'2. The creation of estates by the entirety in wiils. — "Where the testator gives an estate inland in fee to a man and liis wife, they will take as tenants by the entirety at common law. For, l)ecaus(? of the comnnju-law unit}' of husband and wife, they cannot take either as joint tenants or tenants in 1 Miller v. Miller. 10 Mass. (1H19), Cordis. 4 Allen (80 :M!Is.s.. 1802), 400. 69,61. See alsrj Willies V. Van Voor- 47."). C/. Stilphen v. Stilplien. 0.") N. H. his, l.-jGray (SI Mass.). i:«>, 147; Burg- 1'20. 2:j Atl. H. 79; Dowling v. Salli- hardt v. Turner. 12 I'itk. (29 Mass.) otte. S:} :\Iieli. 181, 47 N. W. R. 225. 5:J4, r,39; Annahle v. Patch, -i Pick. -2 Black. Com., p. 181. (20 Mass.) :JOt), ■W.i; Holbrook v. Fin- M.itt.. J5 00.".; Co. Litt. 1S7; 3 Vern. ney, 4 Mass. (180H|. r»00. .VH; Dunn v. 12i); 2 Lev. ;«>. Sargcaut, 101 Mass. 'Mii, 8 lU; Clark v. * See cases cited in uoto 2, p. 70S. ros LAW OF -SVILLS. [§ 542. common. AVhcre they take an estate by the entirety, neither is seized of the moiety of the estate, but both are seized of the entirety ^v/' tout, and not per nv/; ^ and the consequence of this tenure is, that neither the liusband nor the wife can dispose of or incumber i)art of the estate by his or her sejiarate convey- ance without the consent of the other; and on the death of either the husband or the wife all the estate devolves upon the survivor.- It is not necessary that the will should in terms describe the persons to whom the estate is given as husband and wife.^ If the will does not mention the marriage relation as existin<>- between them, the fact that it does exist may bo proved by parol evidence.* 12 Black. Com., p. 181. 2 Robinson v. Eagle, 29 Ark. (1874), 202; Beggs v. Boggs, 54 Ga. 95, 97; Ahnond v. Bonnell, 76 111. 530, 540; Riggin V. Love, 72 III. 553; Lxix v. HofT, 47 111. (1868), 425, 428; Hulett v. Inlow, 57 Ind. (1870). 412. 414; Arnold V. Arnold. 30 Ind. (1868). 305, 306; Davis V. Clark, 26 Ind. (1866). 424, 428; Jones V. Chandler, 40 Ind. 588; Simp- son V. Pearson, 31 Ind. (1869), 1 ; Thorn- burg V. Wiggins. 34 N. E. R. 399. 135 Ind. 178, 181; Carver v. Smith, 90 Ind. 215. 222; McConnell v. Martin. 52 Ind. 434. 436; Hoffman v. Stigers, 28 Iowa (1869), 302, 307; Moore v. Moore, 12 B. Mon. (Ky.) 651; Babbitt v. Scrog- gin, 1 Duv. (62 Ky., 1863), 272; Hard- ing V. Springer, 14 Me. 407, 408; Robinson's Appeal, 88 Me. 17, 21; Greenlaw v. Greenlaw, 13 Me. (1837), 182, 186; Wales v. Coffin, 13 Allen (95 :Mass.), 213, 215. 217; Shaw v. Hearsay, 5 Mass. (1809), 521, 523 ; Fox v. Fletcher, 8 Mass. 274; Abbott v. Abbott. 97 Mass. 136; Craft v. Wilcox, 4 Gill (Md.), 504: Marburg v. Cole, 49 Md. 402, 413; Flading v. Ross. 58 Md. 13, 24: Jacobs v. Miller, 50 Mich. 119; Fisher v. Provin. 25 Mich. (1872), 347; Wait V. Bovee, 35 Mich. (1877). 425, 428; Thornton v. Exchange, 17 Mo. (1851), 221 ; Kip v. Kip, 33 N. J. Eq. 213; Lee v. Zabriskie. 28 N. J. Eq. (1877), 422, 42S; Thomas v. De Baum, 14 N. J. Eq. 37, 78, 80: Den v. Gard- ner, 20 N. J. Law, 556, 562; Allen v, Tate, 58 iMiss. 585; Oglesby v. Bing- ham, 13 S. E. R 852, 69 Miss. 795; Noblitt V. Beebe, 35 Pac. R. 248, 23 Oreg. 4; In re Young's Estate, 3 Pa. Dist. R. 443; French v. Mehan, 56 Fn. St. 286, 288; In re Bramberry's Es- tate, 27 Atl. R. 405, 156 Pa. St. 628, 632, 33 W. N. C. 92; Den v. Branson, 5 Ired. (N. C.) L. 426; Hunter v. Wiieeler, 99 N. C. 222, 225; Phillips V. Hodges, 109 N. C. 248: Rogers v. Benton. 5 Johns. Ch. (N. Y.) 431 Wright v. Sadler, 20 N. Y. 320, 324 Torrey v. Torrey, 14 N. Y. 430, 432 Jackson v. Stevens, 16 Johns. (N. Y.) 110; Ward v. Krumm, 54 How. Pr. (N. Y.) 95; Stuckey v. Keefe, 26 Pa, St. 397, 401; Georgia C. & N. Ry. Co. V. Scott, 30 S. C. 34, 40, 16 S. K R. 185; id. 839; McLeod v. Tarrant, 39 S. C. 271, 280, 17 S. E. R.773; 2 Bl. Com., p. 182; 2 Kent, Com. 132; Brownson v. Hull, 16 Vt. 309, 312; Corinth v. Emery, 63 Vt. 505, 22 Atl. R. 618; Chambers v. Chambers, 23 S. W. R. 67, 92 Tenn. 707; Berrigan v. Flem- ing, 2 B. J. Lea (Tenn.), 271 ; Ketchum v. Walsworth, 5 Wis. 95, 102. ^Thornburg v. Wiggins, 135 Ind. 178, 181. See cases cited in note 2. * The law does not annex a condi- tion to an estate by the entirety that each of the grantees shall remain §§ 543, 54:4-.] TEXAN'CY IX Co.MMoX AND JOINT TENANCY. 709 § 'A'i. Devises to liiisl)aii(l and wife as tenants in eonnnon with others. — As a result of the rule of construction above explained,^ by which a devise to husband and wife makes them tenants by entirety, it follows that, where a devise is to them concurrently with others, they Avill take one share hetivecn them? In other words, if land is devisfxl to A, and B., who are hus- band and wife, concurrently with C, a third person, one-half will go to A. and B. as tenants by the entirety, and the other half to C.^ Xor is it material that the gift is to the husband and wife and the other person as tenants in common,^ though this circumstance in some cases has been regarded as showins: an intention on the part of the testator that all shall take as tenants in common in equal shares.^ § 541. The effect of statntes abolishing joint tenancy on estates by the entirety. — It is generally held that the com- mon-law rules of construction above explained, reo-ardino- de- vises to husband and wife,^ are not abrogated by the statutes which have abolished survivorship in joint tenancy, or which have turned joint tenancy into tenancy in common, or which expressly provide that a grant or devise to two or more per- son>, without an express direction that they shall take as joint tenants, shall create a tenancy in common.^ But both at com- mon law, and now of course undoubtedly under the various statutes, an estate may be created in the husband and wife bv express words, or by necessary implication, which shall not be an estate by the entirety, but which shall be an estate either in tenancy in common or in joint tenancy.* faithful to the obligations of the •'See§o43. viarriage state, or»that the violation ^ Hoffman v. Stigers, 28 Iowa (18G9), of sucli condition, judicially deter- 302, 300; Marburg v. Cole, 49 Md. mined in divorce proceedings, shall (1878), 402: Nonuuu v. Abbot, 12 Mass. vest the wljole estate in the innocent (1815). 474; Shaw v. Hearsay, 5 ^lass. party. Steltz v. Slireck, 28 N. E. K. 521; Dowling v. Salliotte, 83 Mich. 510, 128 N. Y. 203. (1890), 131, 134; Jackson v. Stevens, 1 See .^ r,4-,>. 1(5 Jolms. (N. Y.) 11.",; Phillips v. 2Hulett v. InloNv. 57 Iiid. 412, 414. Hodges, 13 S. E. R 709. 109 N. C. 248; 'Ltiwin V. Cox, Moore "iriS. pi. 759; Branil)erry's Estate, 150 Pa. St. 028, Co. Lit. 17«; Litt.. ,^5 291; Bricker v. 032; Stuckey v.Keefe.20Pa.St. (1850), ^VIlatl.•y, 1 Vern. 233. 307; Thomas v. De Baum. 3 Lea (70 « W arington v. Warington, 2 Han;, Tcnn.), 271. See cases cited in note 2, 54. p. 7 ns. *Le\vin v. C«jx. Mriore, 558; Paine n'<»>|M'r v. Cooper, 70 111. (1875), 57, V. Wagner, 12 SiuL 18-L 01; Bardun v. Uvermeyur, 134 hid. 71 •> LAW OF WILLS. [§ 545. >^ 7A7). KtlVct of statutes reu;ulatiiii!: the proixM'ty status of luarrii'd women on estates by entirety. — As ivgaids the etFect of the statutorv leg'isUition, by which tlie wife is now secured in the enjoyment of the legal interest in her property without the intervention of trustees, and without the creation of a separate use or trust, free from the control or interference of the liusband. on estates by the entirety, two views are Iield. In most cases, in the absence of any provision to the contrary, such statutes are not regarded as destroying the unity of hus- band and wife, under the rule that a devise to them siiall create an estate by the entirety.^ But other authorities hold that, in so far as the sole reason for the existence of such a description of tenure was the assumed unity of husband and wife at the common law, when such unity may be assumed to be abolished by the modern statutes, which secure the legal identity and property rights of a married woman to her as though she were a single woman, that the estate by the entirety ought to be regarded as abolished. Viewing this estate as based upon an irrational and al.)surd legal fiction Avhicli no longer exists, and as the outgrowth of social conditions which have long since disappeared, these authorities, even if the statute is silent, have considered this species of tenure as abolished. In such states, therefore, a devise to a husband and wife will be taken as a tenancy in common, unless the testator shall manifest an inten- tion that they shall take as tenants by the entirety .'- (1S93), 660, 34 N. E. R. 439; Thornburg • Stilplien v. Stilplien, 23 Atl. R. 79, T. Wiggins, 135 Ind. 178, 34 N. E. R. Go N. H. 126; Bowling v. Salliotte, 47 999: Phelps V. Simons, 34 N. E. R. 657 N. W, R. 225, 83 Mich. 131: In re (1893), 159 Mass. 415: Bertlesv.Nunan, Brambeny's Estate, 27 AtL R. 405, 92 N. Y. 152. followed in Jooss v. Fey, 156 Pa. St 628, 33 W. N. C. 92; Jooss 29 N. E. R. 136. 129 N. Y. 17. Thus, it v. Fey, 129 N. Y. 17. 29 N. E. R. 136; has been held in New York that a Hiles v. Fisher. 67 Hun, 229; Thorn- devise to the son of the testator and burg v. AViggins, 135 Ind. 178, 180. liis wife of the use of a farn\ for their -Whittlesey v. Fuller, 11 Conn, benefit and support, during their (1836), 337; Cooper v. Cooper, 76 111. natural lives, creates in them an es- 57; Hoffman v. Stigers, 28 Iowa (1870), tate in common, since otherwise the 302; Clark v. Clark, 56 N. H. 105; evident intention of the testator to Wilson v. Fleming, 13 Ohio (1844), 68; provide for the support of the wife Robinson's Appeal, 88 Me. 17, 24. would Ije in danger of defeat. Miner V. Brown. 31 N. E. R. 24, 133 X. Y. 308. CHAPTER XXY. GIFTS BY WILL TO CHILDREN AS PURCHASERS. 546. "Whether " children " is a word of purchase or of limitation. 547. Extension of the meaning of the word "children." 548. Bequests and devises to "chil- dren " as purchasers. — Pri- mary meaning of the word. 549. The word '• children " does not presumptively include step- children. 550. The status of an adopted child. "When it inherits as heir or issue. 551. Gifts to children include those of different marriages. 552. Gifts to children living at the execution of the will. 553. "When the class is to be ascer- tained in the case of imme- diate gifts to children. 554. Devises to children where dis- tribution is to be at majority. 555. Construction of a clause di- recting distribution when the j'oungest child shall at- tain the age of twenty-one. 556. Testimony to prove the age of a legatee. 557. The operation of the words ••living,"' "then living," and "sui*\'iving."' in determining when class of children is to be ascertained. 558. "When children as a class are to be ascertained in the case of a remainder. 559. Gifts to children born or to be born. 560. Distribution amongst chil- dren, when to be jjer capita. 501. Direction for an equality of division favors distribution 2wr capita. 502. "Wiiether the distribution amongst the children of sev- eral persons shall be per stirpes ov per capita. 563. "Where children take by sub- stitution the distribution will be per stirp>es. 564. Mode of distribution where the devise is to individuals and the children of another. 565. Erroneous statement of the number of cliildren. 566. Consfructiou of provision for a devise over in case legatee dies without children. 567. Children en t'eutre sa mere. 508. Presumption of legitimacy — Character of proof of illegit- imacy of legatee. 569. Comi)etency of husband or wife to prove legitimacy. § 54G. ^Vliotlicr *' childnir* is ;i word of imrcluiso or of liiiiitiitioii. — Tlio word "cliildren," wluii it is used in its nat- ural Sfiisc in a will, is ecjuivalcn^t to imnicdiate issue, exclusivo of grandchildr«'n or other remote issue, ;ind it is then usually a word of jturchase, and not of liinilation.' A coinuion exam- ple of tliis is to lie louneul, bO Pa. St. (1878), 83, II S. W. R. 424. C/. yost, § 803. 14 LAW OF WILLS. [§ 54S. § 54S. Beciucsts ami devises to children as purchasers — Priiiiary nieaiiiiii!: ol' the word. — Tlie word "children" in its priiuai'V iiifaninn' is limitiHl lo ck'scendants in the iirst degree, i. e., the iimiiediate issue or offspring of the parent. This is the teehnieal anil legal signilication of the term, agreeing with its ordinarv sense, and, in the absence of a clear indication of a contrary intention in the context, it must be taken in this sense and not as including grandchildren.^ And it will require exj^ress words, or very strong and necessary implication aris- ing from the will itself, to show that the testator intended to include grandchildren in a gift to children sinqfllcitei'} In- 1 Ante. % 547. 2McGuive v. "Westnioreland, 36 Ala. 594; Willis v. Jenkins, 30 Ga. 107, IGl); Walker v. Williamson, 25 G;u 549; White v. Rowland, 67 Ga. 554; Pugh v. Pugh. 105 Ind. 552, 555: West V. Passman, 135 Ind. 278, 296; Yeates v. Gill, 9 B. Mon. (4y Ky., 1848), 203; Churchill v. Churchill, 3 Mete. (59 Ky., 1859), 466; Sheets v. Grubbs, 4 Mete. (61 Ky.) 339.340; Phillips v. Beall, 9 Dana (39 Kj'., 1839), 14; Wharton v. Silliman. 22 La. Ann. 343; McLeod v. Dell, 9 Fla, 443; Osgood v. Lovering, 33 Me. 464. 469; Demill v. Reid, 71 Md. 175, 17 Atl. R. 1014; Taylor v. Watson, 35 Md. 519, 523; Houghton V. Kendall, 7 Allen, 72, 77; Thomson V. Ludington, 104 Mass. 193; Ward v. Cooper, 69 3Iiss. 789, 13 S. R. 827; Edgerly v. Barker, 66 N. H. 434, 450, 31 Atl. R. 900; P'eit's Exr v. Vanatta, 21 N. J. Eq. 84. 85; Jackson v. Staats, 11 Johns. (N. Y.) 337; Mowatt v. Carow, 7 Paige (N. Y.), 328, 329; Law- rence v. Hebbard, 1 Bradf. 252; Stires v. Van Rensselaer, 2 Bradf. 172; Hone V. Van Schaick, 3 N. Y. (1850), 538; Low v. Harmony, 72 N. Y. 408. 413; Marsh v. Hague, 1 Edw; Ch. (N. Y., 1831), 174, 186: In re Logan's Es- tate, 30 N. E. R. 485, 131 N. Y. 456, 460; Tier v. Pennell, 1 Edw. Ch. 354; Shannon v. Pickell, 8 N. Y. S. 584, 55 Hun, 127; In re Potters Estate. 24 N. Y. S. 586, 71 Hun, 77; Gregory v. Beasley, 1 Ired. (36 N. C, 1841), Eq. 25; Denny v. Closse, 4 Ired. Eq. (39 N. C.) 102: Ward v. Sutton, 5 Ired. Eq. (40 N. C.) 421; IMordecal v. Boy- Ian, 6 Jones Eq. (55 N. C, 1854), 365; Sinton v. Boyd, 19 Ohio St. 30; Hough V. Hough. 4' Rawle (Pa.), 363; Dick- inson V. Lee, 4 Watts (Pa., 1835). 82; Hallowell v. Phipps, 2 Whart. (Pa., 1837), 376. 380; Gross' Estate, 10 Pa. St. 361; Herr's Estate, 26 Pa. St. 467; Gable's Appeals, 40 Pa. St. 231. 236; jMcKeehan v. Wilson, 53 Pa. St. 74, 77; Castner's Appeal, 88 Pa. St. 478, 484; Tillinghast v. D'Wolf. 8 R. L (1865), 69, 72; In re Reynolds, 39 Atl. R. 896 (R. L, 1898); Ruff v. Rutherford. 1 Bailey Eq. (S. C, 1830), 7; Shanks v. Mills, 25 S. C. 358; Brabham v. Cros- land, 25 S. C. 525; Smith v. Smith, 24 S. C. 304; Snoddy v. Snoddy. 1 Strobh. Eq. (S. C, 1846), 84, 87: Izard V. Izard, 2 Des. Eq. (S. C.) 303, 308; Morton v. Morton, 2 Swan (32 Tenn., 1853), 318, 320; Booker v. Booker, 5 Humiih. (24 Tenn.. 1844), 505; Turner v. Ivie. 5 Heisk. (52 Tenn., 1871). 222, 230; Tebbs v. Duval, 17 Gratt. (Va.. 1867), 349; :Moon v. Stone, 19 Gratt. (Va., 1870), 130; Hudson v. Hudson, 6 Munf. (Va., 1818), 352; Morris v. Owen, 2 Call (Va., 1801), 520; Graham v. Graham, 4 W. Va. 323; Loring v. Thomas, 2 Dr. & Sm. 497: Holland v. Wood, L. R. 11 Eq. 01, 96; In re Kirk, 52 L. T. (N. S.J § o4S.] GIFTS TO CHILDREN AS PUECHASERS. 715 deed it would se(Mn from some of the authorities that grand- chiidreu will only be permitted to take under a gift to children where some of the provisioi^s of the will would otherwise be in- operative.' The circumstance that the testator has employed the words ''children" and "grandchildren'' in the same clause shows that he does not intend to include grandchildren in a devise to children.- The general rule is applicable to a devise to chil- dren a^ a dass, their heirs and assigns, equalli/, for these added Avords are merely words of limitation, and do not give an estate to the grandchildren.* Xor does the fact that all the children are named in connection with a devise to children living at a future date extend the meaning of the word so as to include the issue of any children who have died before the time of distribution. The word '"grandchildren '' in its pri- mary meaning signilies the children of children, that is, lineal descendants in the second degree, and it usually will not be construed to include great-grandchildren, unless an express or implied intention to that effect shall appear from the "will.* If, however, the testator has used the word " grandchildren " in any portion of his will to indicate a great-grandchild, it may be 540; Powell v. Powell, 28 L. T. (N. S.) 7:^0: Radcliflfe v. Buckley, 10 Yes. 15J.J, 108; Moor v. Raisbecic. 12 Sim. 123; Earl of Oxford v. Churchill, 3 Ves. & B. 59; In re Ortons Trusts, 10 L. T. (N. S.) 140, L. R. 3 Eq. 375: Reeves v. Brymer, 4 Ves. 092; Bowen V. Lewis, L. R. 9 App. .890: Crooke V. Brookeing, 2 Vern. 100; Hussey v. Dillon, Amb. 003, 2 Eden. 194. The ileclarations of tlie testator are not receivable to sliow tliat by the word "children" he meant grandchildren or otlier is.sue, or that he meant to inclu?'/y«^i/t/c/e presumed to be intendinl, step-chiUlren are not entitled under a devise to chil- dren.-' I'liis presumption is greatly strengthened if the tes- tator gives a legacy to his st^'j^cJiihh'eii as such} But it may aj)i)('ar from the language of the will itself, or from the evi- dence of the surrounding circumstances, that the testator meant to include his step-children in a provision for his children sim- ■pllcitcr. If, at the date of the execution of the will, he has no c/tilih'en of his ow?iy while his wife the)i has several living chil- dren hj/ her former marriage^ whom he had treated as his own, it may be conclusivel}'' presumed that he intended to benefit tliem by a provision for '" his children."^ This construction will be favored where the testator has been married some time with- out having children, and his wife is beyond the period of pos- sible child-bearing, so that future children could not have been in mind. It is clear that where the testator designates legatees as his stejy-children, or his cldhlren hy marriage, or Avhere he dis- tinguishes between his step-children and his own children, dividing his estate equally between them as classes, the former are precluded from claiming as of the latter class.* 1 Hussey v. Berkeley, 2 Eden, 194, 3 Lawrence v. Hebbard, 1 Bradf. Amb. GO'-?. A provision lor the dis- (N. Y.) 252, 255. tribution of a fund among the grand- •• In re Jeans, Upton v. Jeans, 72 children of the testator living at a L. T. 835, 13 Rep. G27. certain date does not include great- ^ in re Kurtz's Estate, 23 Atl. R. grandchildren, though at the time 322, 145 Pa. St. 637. Prima facie a of the making of the will the testa- son-in-law or a daughter-in-law of tor had no grandchildren. Smith v. the testator is not permitted to take Lansing, 53 N. Y. S. 633, 24 Misc. R. under a devise to his children as a 566. class, or to his sons or daughters as a -Blankenbaker v. Snyder (Ky., class. But the facts and circum- 1897), 36 S. W. R 1124; Fouke v. stances of the family life of the par- Kemp, 5 Harr. & J. (Md.. 1820). 135; ties concerned are, upon the princi- Cutter V. Doughty, 23 "Wend. (N. Y., pies discussed in the te.xt, admissible 1840), 513, 520; In re Hallet, 8 Paige to show, not that the testator meant (N. Y.), 375; Sydnor v. Palmer, 29 to give a legacy where the will gives Wis. 226, 244; Siielley v. Bryer. Jac. none, but to explain the meaning of 207. See also Thornburg v. Am. Str. the terms emj^loyed. Co., 141 lud. 443. § 550.] GIFTS TO CHILDREN AS PUKCHASEKS. 717 § 550. The status of an adopted child — IVheii it inherits as heir or issue. — "Whether an adopted chikl of the testator or of another person shall be included under a gift to the children, heirs, issue, next of kin, or other relatives of that person, as a class, depends,^;?;'.*?/, upon the statutory regulations by which the \egai status of the adopted child is determined; and secondli/, and principally, upon the expressed intention of the testator regarding him or her. The adoption of children was not rec- ognized by the common law. It was common in the days of the Eoman empire, and the principles which regulate it in the United States are based upon the rules of the Roman civil law, and are also wholly of statutory origin. Many of the statutes provide that the adopted child may not only assume the name of the person adopting him or her, but that he or she shall have all the Tights of a child and heir of that person} If, therefore, the statute confers upon him all the rights of an heir or of a child, he will be permitted to take under a devise to the heirs of the person adopting him,- or under a gift to the children or the next of kin of that person. In the absence of an express statutory provision that the adopted child shall have all the rights of an heir or child of the person adopting him, a devise to the " children " of A.,'' or to the " nearest and lawful heirs of A.," * will not include an adopted child of A. And, in any event, after a decree of adoption is judicially revoked, upon the application of the parent, a child cannot take under a de- vise to the lawful heirs of the adopting parent contained in the will of the adopting parent.^ It is elsewhere explained that the word " issue " and the word " descendants " are synonymous in their meaning.® Hence where, by statute, the legal status of a descendant has been conferred upon an adopted child, he may take under a de- vise to "issue." And he is entitled, under a statute of this 1 Apr)o.il of Kowan, 19 Atl. R. 82, 340; Eckford v. Knox, 07 Tex. (1886), 132 Pa. St. 2'Ji); Vi.lal v. ComrnaKero 200. 203. (18.j8), 13 L:l Ann. 510; IVwhuiK' v. aKussoll v. Russell, 8t Ala. 48, 3 li^iRers, 114 Mo. 122 (1H'J2). 21 S. W. It. S. R. HOO. 84; Moran V.Stewart (M«.), 20. S.W. R. Micin.lers v. Koppleman, 94 Mo. 902: filos V. Sjinki'v. 30 N. R It. 028. 388. 7 S. W. R. 2SM. 148 111.530; Siiniuons v. Burroll, 28 ^In ro Stsssions, 70 Mich. 207, 38 N. Y. S. 625. 8 Misc. R. 8H8. N. W. R. 240. ■i Jolm-ion's Ai)i>cai, 87 1'u. St (1878), « See g OO'J. 718 LAW OF WILLS. [§ 551. charactor, to take a>; a nMnaiiidt'i'inaii the estate in Avliich the adoptimj- mother liad a life interest, with a remainder in fee expressly given to her latrful iasue} But statutes of this de- seription, being in derogation of the rules of the common law, are always to be strietly construed, and an adopted child would not thereby be enabled to take untler a devise to the heirs of the boily; as these words are words of procreation, and not, in their common-law sense, co-extensive in meaning with "de- scendants."- An adopted child takes under a provision devis- ing an estate in real proi)erty in renuiinder to such ])ersons as would take by the intestate laws if the testator had died in- testate.^ ii 551. Gifts to children iuclude those of different mar- ritii^es. — "Where the testator gives property to the children of A., he will be presumed, until a contrary intention is proved, to mean the children of A. hj several marriages} So, where he gave a legacy to his wife, with a provision for " our minor children^'''' he w^as presumed to include children by his first marriage and minor children by the second marriage, Avhere it was shown that the first set of children was very young at the time the second marriage was contracted, and that they had been reared by the second wife.'^ In order that the chil- dren of several marriages may be included under a provision for the children of A., who at the date of the will had onhj been married once^ it was not necessary to show that the tes- tator had the future marriage of A. in view.® So, where the 1 Hartwell v. Tefft. 19 R. I. (1896), The court in this case held that the 644. 647, 35 Atl. R. 882; Warren v. words "issue," "descendants" and Prescott, 84 Me. (1892), 483, 17 L. R. "heir-at-law" are equivalent to A. 435; Sewall v. Roberts, 115 Mass. "children," as used in the statute 262. preventing lapse. -Sewall V. Roberts, 115 Mass. (1874), 3. Johnson's Appeal, 88 Pa. St. 346, 262: McGunnigle v. McKee, 77 Pa. 354. Compare the cases cited in §264. St. 81. An adopted child was, by a on "the revocation of a will by the statute, presumed to be included in adoption of a child." a devise by the testator to his ■* Andrews v. Andrews, K R. 15 Ir. "children," but not in a devise to 199. the children or issue of another per- 5 Crosson v. Dwyer, 9 Tex. Civ. App. son. It was held that a child adopted 482, 489, 30 S. W. R 929; Wami> by the wife of the testator was not ler's Estate, 23 Pitts. L. J. 451, con- entitled to share in a bequest of the struing the words "all our children." residue of his estate to the heirs at •» Barrington v. Tristram, 6 Ves. law of his wife. Wyeth v. Stone, 144 345. 34y; Isaac v. Hughes, L. R 9 Eq. Mass. (1881), 441, 11 N. E. R. 729. (1870), 191, 198. § 551.] GIFTS TO CHILDREN AS rUECIIASEKS. 719 testator provided for his daughter's children, and her husband, Avho was living- at the (Uite of the will, was still living' at the death of the testator, thougli he subsequently died, and the daughter remarried and left several children by a second hus- band, it was held that children born of the marriage contracted after the death of the testator took equally with the children of the first marriage.^ The testator may by express language show that he intends to prefer some children of the parent designated to others; and if this is the case, his intention will be respected. So Avhere he gave property to the '■^children of his daughter hj her hus- hand Tr.," it was held that the gift was confined to her children by that person, and it could not be extended to her children by a second marriage after the death of AY.^ And where a tes- tator gave property to four children by a former wife who were specifically named, and two children by his present wife also specifically named, and also ''to such child or children as may he living,''^ the action of the testator in expressly naming and enumerating the children excluded all children of the first mar- riage not named, though living at the execution and also at his death.' "Where the testator devises property to his widow, and after her death "^o her children^'' he Avill be presumed to mean not only tliose of ivhom he is the father, in which case the wortl " her " will be exactly synonymous with " our," but also those who may he horn to her hy a sidjsequent niarriag(\ when "her" will have its proper meaning. The conti-ary, however, has been held in Louisiana on the grounds that a legacy cannot, by the peculiar law of that state, be given to a child not conceived at the death of the testator.* 1 Critdiett v. Taynton, 1 Ry. &, My. 3 Stavers v. Barnar.l. 2 Y. & C. C. C. (18:30), 541, TAT); Jones' Appeal, 48 539. C/. Van Voorhis v. Brintnall, 23 Conn. 08. A Rift to the cliildren of Hun (N. Y.), SCO. A-, " whetluT \>y hrr ]/nsritt or any * Sevier v. Douglass. 44 La. Ann. future hunhanh:' where A., at the CO."). 10 S. R. 804. The testator in date of th." will, had children then Co{,'an v. MeCabe, 52 N. Y. S. 48, 23 livin(;, lH'j^<»tt<'n hy a deceasi-il lius- Misc. R. 739, gave a reinaiixler for band, and had ni> other at th(» death the support of the wife and children of tlie testator, will go to tlu'se chil- of A. (his son) until the youngest dren. In re l'ickuj», 1 .Jo. & Hen>. 3h9. child should attain his majority, 2Stoi)ford V. Uliawortli, 8 Beuv. 331, when the cliildren were to receive 837; autr, -i. (J2. the prim-ipiil. The wife ami child of 720 LAW OF WILLS. [§55 § 55*,*. Gifts to {liildreii living at tho execution of the will. — The general rule that a will speaks as of tho death of the testator ' is subjeet to the (jualilicatioii that, when a testa- tor expressly refers to a condition of things as existing at the time of the execution, it will speak as of its date.- Under this exception, if the testator devises property to children as a class whom he describes as now living, meaning at the execution of the will, only those who are living at that date will be entitled to take, to the exclusion of the heirs of those who have died before tlie execution, and of children who are born subsequently thereto.^ And, a fortiori, a devise to children who are specific- ally named 1% a devise to them as individuals and not as a fluct- uatiuiT class. Those who are alive at the date of the will corresponding to the names, if they survive the testator, will take, but no others, and the shares of those who ])redecease him will lapse in the absence of a statute preventing lapse.* But a gift to children who are named and to others '■'■hereafter to he horn'''' is a gift to a class, and not to children as individ- uals, and is to be divided among the members of the class, including those who are specifically named, who survive the A., living at the date of the will, died before the testator and K. re- man-ied and had four children be- fore the period of distribution. The second wife and her children were permitted to take. See post, § 602, and § 14, as to what time a will speaks when a husband or wife is mentioned. 1 Ante, %% 14, 15. -Ante, % 15. 3 Watson V. Watson CMc), 19 S. W. R 543; Rowland's Estate, 24 Atl. R. 1091, 150 Pa. St. 25; Whitehead v. Lassiter, 4 Jones (57 N. C, 1859), Eq. 79: Wigden v. Mello, L. R. 23 Ch. D. 737, 52 L. J. Ch. D. 767. 49 L. T. {N. S.) 585; Habergham v. Ridehalgh, L. R. 9 Eq. 395, 400; Moffat v. Burnie, 18 Beav. 211; FuUford v. Fiillford. 16 Beav. 565; James v. Richardson, 1 Yentris, 334, 2 Ventris, 311; Cln-is- topherson t. Naylor, 1 Mer. 320; Leach v. Leacli. 2 Younge & C. C. C. 495; Ramsay v. Shelmerdine, L. R 1 Eq. 129: Fitzroy v. Duke of Rich- mond. 27 Beav. 186; Burchet v. Dur- dant, T. Raym. 320; Soteldo v. Clem- ent, 29 Wkly. L. B. 384. But a gift to a class consisting of two or more generations may be made in such terms that all take as original mem- bers of the one class. Thus, where the devise is to children as a class, the issue of deceased children to take the share their parent would have taken if living, the children of a child dead at the date of the will take their parent's share which he would take at the period of distribu- tion. In re Parsons, 8 Reports, 430; Blaber v. Parsons, id. Compare ante, §354. 4 Petway v. Powell, 2 Dev. & Bat. (N. C.) Eq. 308; Rowland's Estate, 141 Pa. St. 553, 21 AtL R 735; Brewer V. Opie, 1 Call (Va,), 184; Bain v. Lesclier, 11 Sim. 397; Threadgill v. Ingram, 1 Ired. Law (23 N. C, 1841), 577. Cy. § 337. § ^^3-] GIFTS TO CIIILDREX AS TURCHASERS. 721 testator.^ Again, a gift to cliililreii who are enuiiicrated, as, for example, "to the five chiklren of A.," is not usually a gift to them as a class, but to those who are in existence at the date of the will as individuals; and in case any of them die suijsequently during the life-time of the testator, his legacy wnll lapse for the benefit of the residuary legatee or the next of kin.2 § 553. When the class is to be ascertained in tlie case of immediate gifts to children. — Where a gilt is to children as a class in general terms, and no period is mentioned by the testator for the vesting of the legacy, the gift will be imme- diate. That is to say, the gift will vest in title and possession at the death of the testator. Accordingly it is a general rule in these cases that only the children who have been born or begotten prior to that date, and who are in esse, including a child en ventre sa mere^ at that time, will be entitled to a share in the distribution.'* It is not material whether the parent of ticularly where it appears that the testator meant that each child should take an equal portion, the descend- ants of any child who died after the execution of the will and during the life of the testator will take the cliild's share. Jones v. Hunt, 9G Teun. (1S9G), 369, 371, 34 S. W. R. 693; In re Sib- ley's Trusts, L. R. 5 Cli. D. 494. 3 ^ 567. * Ingram v. Girard, 1 Houst. (Del, IS.").-)), 286; Wood v. McGuire, 15 Ga. (1854), 202; Springer v. Congleton, 30 Ga. 977; Lockerinan v. ]\lcBlair, G Gill (Md.), 177; Young v, Robertson, 11 Gill & J. (Md., 1839), 328, 341; Winslow V. Goodwin, 7 Met. (48 Mass., 1844), 363, 375; Merriam v. Si- monds, 121 Mass. 198, 202; Dixon v. Picket, 10 Pick. 517, 518; Yeaton V. Roberts, 28 N. 11. 459; Cessna v. Cessna, 4 Bush (Ky.), 510; Post v. Herbert, 27 N. J. Ya\. 540; Chasniar V. PiicUin, 37 N. J. Kcj. 415; Stirea V. Van Rensselaer, 2 IJradf. (N, Y.) 172; Jenkins v. Froyor, 4 Puigo Cli. (N. Y., 1833), 47. 53; I^mllard v. Cos- ier, 5 Paige Ch. (N. Y., 1830), 172; Mowalt V. Curow, 7 Puigo Ch. (N. Y., 1 Shiers v. Ash worth, L. R. 25 Ch. D. 162, 53 L. J. Ch. 180, 50 L. T. (N. S.) 18; Downes v. Long, 79 Md. 382, 29 AtL R 827. It would seem that the testator need not name the children in order that a gift shall be to them as individuals. For where the de- vise was "to the surviving children of A," who was dead at the date of the execution, the testator stating that he did not know their names, the court held that he would have named them if he could, and hence the gift was to the children of A. as individuals living at the date of the will, to the conclusion of the heirs of those who had died and children subsequently born. !Morse v. Mason, 11 Allen (Mass.), 30, 37. ^ In re Smith's Trusts, L. R. 9 Ch. D. 119; In ro Stanlield, I^ It 13 Ch. D. 84, 49 L. J. Clu D. 750, 43 L. T. (N. S.) 310; Siierer v. HislK)|), 4 Pro. C. C. 55. A devise to the children of A., "now Uviiiff at M." is not a gift to them a.H a cIjuhh which is to Im; as- certained a.s of tin: dintlt of the testa- tor, but to all tlio children wlio are living at M. as individuals, and par- 40 722 LAW OF WILLS. [§ 554. the children who arc mentioned is then living or not, for the rule applies both to a devise to the children ol' a living person^ and to a devise to the children of a person who is deceased.'- § 554. Devises to cliildren where distrihiitiou is to be at majority. — Testamentary gifts to children, to bo paid to or distributed among them when they shall attain majority, or when they shall marry, are very common. The principles and rules of construction appertaining to such gifts are somewhat inharmonious, and it may, perhaps, with safety be said that each case, where distribution is postponed until the attainment of majority or marriage, depends on its own facts, and on tho 1839), 328, 329; Tucker v. Bishop, IG N. Y. 402, 404; Downing v. Marshall, 23 N, Y. 3GG; Sliinn v. Motley, 3 Jones Eq. (N. C.) 490; Simpson v. Spence, 5 Jones Eq. (N. C.) 208, 210; Myers v. IVIyers, 2 McCord (S. C, 1837), Eq. 236; Gross' Estate, 10 Pa. St. 361; post, § 610. 1 Aspinwall v. Duckworth, 35 Beav. 307; Garbrand v. Mayot, 2 Vern. 105; Singleton v. Gilbert, 1 Cox, 68; Viner V. Francis, 2 Cox, 190, 192; Devisme V. Mello, 1 Bro. Ch. R. 537; Coleman V. Jarrom, L. R. 4 Ch. D. 1G5, 170, 25 W. R 137, 35 L. T. (N. S.) 614; Shaw V. McMahon, 4 Dr. & Smale, 431, 438, 440, 35 L. T. (N. S.) 614; Fell v. Bid- dolph, L. R. 10 Com. Pleas, 701, 709; Young V. Davies, 2 Dr. & Smale, 167, l-i. 2 Loring v. Thomas, 2 Dr. & Smale, 497: Viner V. Francis, 2 Cox. 190, 193. " Where a gift is to a class of indi- viduals in general terms, as to the children of A., and no period is fixed for the distribution of the legacy, the time for distribution will be the deiith of the testator; and hence, only cliildren born or begotten prior to and in esse at that time will be entitled to share in the distribution. But where distribution is, by the terms of the will, to be made at some time subsequent to the deatli of the testator, the gift will embrace not only all children living at the death of tho testator, but also all those wlio shall subsequently come into exist- ence before the period of distribu- tion; and, if the befjuost is a present bequest, the beneficiaries who are in esse at the death of the testator will take vested interests in the fund, but subject to open and let in after-born cliildren, wlio shall come into being and belong to the class at the time ap- pointed for tlie distribution. Where the period of distribution is post- poned until the attainment of a given age by tlie children, the gift will api^ly only to those wlio are liv- ing at the death of the testator and who shall have come into existence before the first child attains tlie age named, being the period when the fund is first distributable in respect to any one object or member of the class. Where the members of a class take vested interests in a legacy dis- tributable at a period subsequent to tiie death of the testator, but subject to open and let in after-born chil- dren, they take their vested shares subject to the distribution of those shares as the number of the members of the class is increased by future births ; and on the death of any of the children previous to the period for distribution, their shares will go to their respective representatives." By Paige, J., in Tucker v. Bishop, 16 N. Y. 402, 404. § 55i.] GIFTS TO CIIILDKEN AS PrECHASEKS. 723 peculiar language of the Avill. Where the gift is simpl}^ to the children of the testator, or to the children of A., and it is not preceded by a prior life estate, but is stated in general terms to be payable when the beneficiaries attain twenty-one years of age, such children only will take who are in 'being at the death of the testator^ or who come into existence before the eldest child who is also living at the death of the testator shall attain twenty-one years of age, including in each case a child en ventre sa mere, and the issue of a child deceased between the death of the testator and the date of distribution.^ Where the gift is a remainder to the children after a life es- tate, and is distributable as they attain twenty-one years of age, it will, in the absence of a contrary' intention, vest in all those who compose the class of children alive at the death of the tes- tator, and all those who shall come into existence during the life- time of the jprior life tenant, and shall also survive until the eldest 1 Handberry v. Doolittle, 38 111. 206; Hubbard v. Lloyd, 6 Cush. (Mass.) 523, 524; Security Co. v. Hartford, 64 Conn. 579: Emerson v. Cutler, 14 Pick. 108, 113: Drake v. Pell, 3 Edw. Ch. (N. Y.) 251: Fleetwood v. Fleet- wood, 2 Dev. Eq. (N. C, 1832), 222; Simpson t. Spence, 5 Jones' Eq. (N. C.) 208, 210; Vanhook v. Rogers' Ex'r. 3 Murphey, L. & Eq. (N. C.) 178, 180; Heisse v. Markland, 2 Rawle (Pa.), 274, 275; De Veaux v. De Veaux, 1 Strobh. Eq. (S. C.) 283; Richardson v. Sinkler, 2 Desaus. 127; Andrews v. Partington, 3 Bro. C. C. 401; Evans v. Harris, 5 Beav. 45, 47; Gimblett v. Purton, L. R 12 Eq. 427, 4.30 (condemning Bate- man V. Gray, L. R. 6 Eq. 215); Gar- ratt V. Weeks, L. R. 20 Eq. C47, 049; Dean v. Dean (1891), 3 Ch. 150; Daw- son V. Oliver-Massay, L. R. 2 Ch. D. 753; Robley V. Ridings, 11 Jur. 813; Gillman v. Daunt, 3 Kay «fe J. 48; Ringrose v. Bramham, 3 Cox Ch. It. :}84, ;i87; Peyton v. Uuglics, 7 Jurist, 311: Storrs v. B after the eldest child attains majority are excluded may be- noted. If the support and maintenance of all the children are provided for until they shall severally attain majority, which of course Avould extend the final distribution until after the eldest had attained his majority, all the children, including those born after this event, will be included in the class.^ But the mere fact that trustees are permitted to advance a portion of his share to any child, or that on a child's death his share goes to the survivor or survivors, does not vary the rule.^ So, even though the gift may be void for remoteness of vesting, as it would be in the case of a gift to the children of A., who is alive at the testator's death, to vest in them whcm the youngest shall attain the age of twenty-two, the rule would still apply.' § 555. Construction of a clause directing distribution when the youngest child shall attain the age of twenty-one, — "Where the distribution of an immediate gift among the chil- dren of the testator, or among the children of another person, is directed in express terms when the youngest of such children shall attain the age of twenty-one, the question at once arises whether the testator refers to the majority of the youngest one of those children who are living at the date of his death, or whether he means the youngest child of all who may he horn^ wlcether hefore or after his death. Where the testator is speak- ing of the youngest of his ovjn children, he, of necessity, will be presumed to mean that one who is the youngest of the class at 1 Iredell v. Iredell, 25 Beav. 485, 491, is a son of A., but if he (B.) shall die 492; Bateman V. Gray, L. R. Eq. 215. nnder the age of twenty-one, then to A devise to nephews and nieces, or A.^s other children arriving at such to any other class of relations, after age, all the other children living at a life estate, to be paid to them at the death of the testator, or born be- majority or on marriage, will include fore the eldest child then living shall all those coming into being during attiiin his majority, are entitled, the life estate. Balm v. Balm, ;J Sim. wlietlier born before or after the 492, 49:}; Sliuttleworth v. Grieves, 4 death of B. Ifaugliton v. Harrison, My.& Gr. :j5; Cort v. Winder, 1 Colly. 2 Atk. 329, So win 10 there is a re- 320,321. maindcr over to tlio children of A., 2Titcomb V. Butler, 3 Sim. 417: after a life estate in one of them, on Balm V, Balm, 3 Sim. 492; Matdiwick his death unmarried all the cliiltlren V. (Vx>k, 3 Ves. 009, Oil, will take, whether born before or •»I^'akev, Robinson, 2 Mer. 303, 383; after the death of the life tenant. Arnold v, Congreve, 1 IL & My. 209; Ellison v, Airey, I Ves. Ill; Stanley ComjKjrt V. Austen, 12 Sim. 218, v, Wi.se, 1 Cox, Ch. R 432. Wht-'re a legacy was gi\en to B., h7 are surviving at the death of the testator,^ The children of the testator who are living at his death take a remainder, which vests in them at once ; and, in case of the death of any of them before the death of the life tenant, his or her share descends to his or her heirs or personal representatives, and is also de- visable. The same rule applies to the word " surviving " where it is employed in a devise to the " surviving " or " living " chil- dren of A., whether the gift is immediate or whether it is only to be distributed after the termination of a prior life estate.- Thus, where a devise was to A. for life, with remainder to the " surviving " children of A., to be equally divided between them, the remainder vested only in the children of A. who were liv- ing at the death of the testator, and was not subject to open and let in after-born children of A.* The testator may, by apt words, clearly show that he intends bv the use of the Avord " survivin": " or " livinof " to refer to the termination of a prior estate created by him.* Ko particular form of language on his part is necessary to show that he means to postpone the vesting in the children as a class to those only w^ho survive the termination of the prior estate. Where he gives property to A. "for his life, with a remainder to his chil- dren who are ^^living at his death^""^ or to his children '■'■then living^""^ or to the children '■Hhen surviving,''''^ or uses other language which clearly shows that he intends only those ta 1 Grimmer v. Friedrich, 4.'5 N. E. R Spann, 26 S. C. 5G1, 5G4 (1881), 2 S. E. 498, 1G4 111. 245; Union Mut. Ass'n v. R 412. Montgomerj', 70 Mich. 587, 59.1; For- * Ante, §349. ter V. Porter, 50 id. 4-56; Smith v. *Tlius, to ilhistrate. Wliere the re- Black, 29 Ohio St. 488, 498; Anderson maindt-r was to the five ciiildren of V. Smoot, Si^eer (S. C), Eq. (1844), 312; C. and to those she may hereafter I^liard V. Connors, 10 Rich. Eq. (S. C, have, who may be then lirintj, that is, 18.59), .389. 392; Swinton v. Legare, 2 at her death, it is contingent, and the McCord E(i. (S. C, 1822), 440; Frier- children living at her death take all. son V. Van Buren, 7 Yerg. (15 Tenn.) to the exclusion of the diildren of 606, 613; Satterfield v. Mayes, 11 a child who died during C.'s life. Humi)h.(30Tenn.).58. 60; Wornockv. Shanks v. Mills, 25 S. C. 358, 362; Smith, 11 Humph. (Tenn.) 47H; In re Ringipiist v. Young, 112 Mo. 25, 20 S. Hubberfs Estate, 6 Pa. Dist. It. 96. \V. R 1.59. Cf. Smith v. Secor, 157 N. -Stone V. Lewis' Adm'r, 84 Va. 474, Y. 402, 52 N. E. U. 179. 5 .S. E. R 282; Elx-rts v. Eberts, 42 eihuskins v. Tate, 25 Pa. St. (1855), Mo. 401. 249. M»tiibard V. Willis, 117 Muss. 13 "Wood v. Ihdiard. 25 N. E. H. 67, (18b8), 16 N. E. R 737; Itejims v. 151 Mass. ;{24. Holcomb v. Uiko, 24 N. .1. I,. C.Mi;, (IH!). 730 LAW OF WILLS. [§ 557. take who are living at the death of the life tenant, those in existence at that date will form the class of children among Avhom the property is to go, to the exclusion of the heirs of those children who have died in the interval between the death of the testator and the death of the life tenant whose shares go to the survivors. This is true whether the limitation is to the children of the life tenant,^ or to the children of the testa- tor.- But the testator may, in providing for those children who survive the termination of the life estate, also expressly direct that the issue or heirs of any children who may die during the ■existence of the life estate shall take their parent's share.' But 1 Bethea v. Bethea (Ala., 1897). 22 S. R. 501; Willielm v. Caldwell (Iowa, 1807), 71 N. W. R. 2U; Hempstead v. Dickson, 20 111. (18G1), 193, lOo; Spear V. Fogg, 87 Me. 132, 139; Olney v. Hull, 21 Pick. (38 Mass.) 311; Tliomp- son V. Ludington, 104 Mass. 193; How- land V. Howland, 11 Gray (77 Mass.), 469; Hill v. Rockingham, 45 N. H. 270; Van Tilburgh v, HoUinshead, 14 N. J. Eq. (18G1), 32, 85; Slack v. Bird, 23 N. J. Eq. 238; Williams v. Chamberlain, ION. J. Eq. 373; Paget v. Melcher, 156 N. Y. 399; In re Allen, 151 N. Y. 243, 45 N. K R 554; Smith v. Black, 29 Ohio St. 488, 498; Haskius v. Tate, 25 Pa. St. 249; Durant v. Nash, 30 S. C. 184, 9 S. E. R. 474; Kansas C. L. Co. V. Hill, 3 Pickle, 589; Schoppert V. Gillman, 6 Rich. (S. C.) Eq. 83; Dwight V. Eastman, 63 Vt 398, 20 Atl. R 398. -Ringquist v. Young, 112 Mo. 25, 34, 20 S. W. R 159; Coveny v. Mc- Laughlin, 20 N. E. R 165. 148 Mass. 576. 577; Den v. Sayre, 2 N. J. L. 598; Seddel V. Wills. 20 N. J. L. 223; Ays- cough V. Savage, 13 W. R. 373, 374; Drew V. Drew, 22 W. R 314; Wellock V. Ostle, 21 W. R 118, 27 L. T. (N. S.) 481; Harvey v. Harvey, 3 Jur. 949; Hetlierington v. Oakman, 2 Y. & C. C. C. 299; Gill v. Barrett, 29 Beav. 372, 375. 3 Scott V. Guernsey. 48 N. Y. 106. A remainder to " children now living, or who may be living at the decease of the life tenant,'" is vested in those who are alive at the death of the testator. Rood v. Hovey, 50 Mich. (1883), 595. A remainder to the cliil- dren of A. and B., and " in the event of their death to the cliildren living at the time of their death," vests only on the death of both A. and B. and in children then in esse. Appeal of Commonwealth Title, Ins. & T. Co., 24 W. N. C. 35, 126 Pa. St. 223 (1889). Where one of the conditions of a re- mainder to children is that they shall survive the life tenant, who is their parent, the remainder is not only contingent, but is non-transferable, and a purchaser of the remainder under execution takes no title. Rovmdtree v. Roundtree, 26 S. C. 450 (1887), 2 S. E. R. 474; Haward v. Pea- vey, 128 111. 430, 21 N. E. R. 503; Put- nam V. Story, 132 Mass. 207, 211; Nash V. Nash, 12 Allen (Mass.), 345; Dunn V. Sargent, 101 Mass. 336; Rob- inson V. Palmer (Mass.), 38 Atl. R 10; Rosenau v. Childress, 111 Ala. 214, 20 S. R 95. Where the reiuainder is to children who are alive at the death of the life tenant, with a proviso that the issue of a deceased child shall take the parent's share, the issue take as purchasers and not by descent from their parent. Dunlai) v. Fant, 74 Miss. 197, 20 S. R 874. § 558.] GIFTS TO CHILDREN AS rUKCHASERS. 731 a provision for the children of the testator equally, who may then be living, that is to say, at the termination of the life estate, and to their heirs and assigns forever, does not include the heirs or personal representatives of those who die during the life estate, for the words " heirs " and " assigns " are not words of substitution, but point to the character of the estate which the surviving children shall take.^ So where the devise was expressly to the children of B. at the death of A., or to the issue of deceased children as shall then be living, only children living at the death of the life tenant were permitted to take to the exclusion of the issue of those who died during the life estate.- § 558. When children as a class arc to he ascertained in the case of a remainder. — Where the distribution to or among children is to come after a prior life estate, a different rule is applicable than where it is immediate; for if the distribution or the possession of the property devised in remainder to chil- dren is not to be made or enjoyed until a period has elapsed subsequent to the death of the testator, a gift to children as a class will embrace not only all children who are living at the testator's death, and compose the class at that time, but also all who are born before the period of distribution arrives. The rule as thus stated is applicable to a remainder to the chikh'en of some person other than the testator himself. Thus, suppose the testator shall give property to A. for his life, and after his death to the children of A., in remainder; all the children of A. who are living at the death of the testator, and all of A.'s children who are born during his life, will constitute the class at the period of distribution. And the same rule would apply where the gift is of a remainder to the children of B. at tlio death of A., or the children of tlie testator after a prior life estate to be enjoyed by his widow. If the gift of tlie remainder 1 Patchen v. Patchen, 121 N. Y. 432, to those, irrespective of the fact that 24 N. E. I^ GO."!; Hills v. liarnard, 2."} the death occurs duriiiK tlie hfo-tinio N. E. R 90, \r,2 ^lass. 07; CM. Cf. post, Vcs. 2HU; ] Mass v. Helms, '.»;{ IViiii. gOOO. 100, 2;] 8. W. It. 100; WaiiiwriKlit v. i Brown v. "Williams, r, li. I, (ISoT), Sawyer, l.'.o Mass. lOH. 22 N. K. It. 885; 309, :j1H; Harv<-y v. Harvey. .'J Jur. Smith v. Secor, 157 N. Y. 402, 52 N. R 919. A i W. K. 401 ; Clarke's Estate. 3 Do(Je.x, J. «& S. 1 1 1 ; Stewart v. Shenield, 13 l-:a.st, 526; Fuulding's Truhts, 20 lieu v. 203; 3Ioore V. Bailey, 43 L. T. (N. S.) 730, 29 W. R 171; Comberbach v. Perryn, 3 T. R 484; Shortbridge v. Creber, 5 Barn. & Cress. 866, 8 Dow. & R3'. 718; Walker v. Shore, 15 Ves. 122, 124; In re Hiscoe, Hiscoe v. Waite, 48 L. T. (N. S.) 510; Turner v. Hudson, 10 Beav. 222, 224; Viner v. Francis, 3 Bro. C. C. 658; Hill v. Chapman, 1 Ves. 405; Doe v. Martin, 4 T. R 39; Osbury v. Bury, 1 Ball & Beat. 53; Middleton v. Messenger, 5 Ves. 136; Oppenheim v. Henry, 10 Hare, 441; Baldwin v. Rogers, 3 D. M. & G. 649; Locke V. Lambe, L. R 4Eq. 372; Gim- blett V. Purton, L. R 13 Eq. 427; Clarke v. Clarke, 8 Sim. 59; White- bread V. Lord St. John, 10 Ves. 152. Where a testator devises a remainder among the children of his son, share and share alike, and the son has four children at the death of the testator, they will take a vested share in the remainder, though only two survive the son. Adams v. Wool man, 26 Atl. R 451, 50 N. J. Eq. 516. A de- vise to A. for life, then to B. for life, and a remainder to B.'s children, cre- ates a remainder in B.'s children liv- ing at the death of the testator, which is vested and may bo assigned at any time during tlie lives of the two life tenants. Loring v. Carne.s, 19 N. E. R 343, 148 Mass. 223. A i)ro- vision by whicli land is to bo divided among children after the decease of tho life tenant creates a vested re- mainder in the children. In ro llurlbutt's Estate, 40 N. E. R 220. 145 N. Y. 535. A remainder to living children or their heirs has been hi'ld to create a vested remainder which can bo dovisod or a.ssigiied. Ramsjiy v. De Romor, 20 N. Y. S. M.!, (15 Hun, 212; Coto v. Von Boniihorst, 41 I'a. 734: LAW OF WILLS. [§ 550. time of A., l)ut not to include any of the children of B. born after the death of the life tenant.' A gift to all the children A. may now have, or may hereafter have, to be distributed to them after the death of B., will include all of A.'s children who are living at the testator's death, and those who are born during the life-time of the life tenant, but not those born afterwards.- And generally, a child of the testator who is himself a legatee for his life has the right to claim as one of a class under a devise of the residue to the children of the tes- tator.' And his issue may claim as purchasers where a re- mainder in the same property in which he had a life estate is devised to the testator's children and the issue of deceased children.* The rule that a future gift to children Avill include all who compose the class at the death of the testator, and also those who come into existence during the prior estate, applies to an estate which is to vest after a determinate period,* and to one which is to terminate upon the bankruptcy of the life tenant.® The fact that there is a gift over upon the decease of any of the children who are named as remainderman, under his or her majority, does not alter the application of the rule.^ And where the life tenant has the power to appoint to his children at the termination of the life estate, he may include all those living at the death of the testator and those coming into being during his life.^ § 551). Gifts to chiklren "born" or "to be born."— Chil- dren born after the making of the will are usually presumed to be included, where the gift is payable immediately to the children St (1861), 243; Hovey v. Nellis, 57 < Bell v. Sraalley, 18 AtL R 70, 45 N. W. R. 255, 98 Mich. (1893), 374; X. J. Eq. 478. Licht V. Licht, id.; Cooper v. Hep- 5 Ballard v. Ballard, 18 Pick. (35 burn, 15 Gratt. (Va.) 551. 558. Mas?.) 41 ; Bailey v. Wagner, 2 Strobli. lAyton V. Ayton, 1 Cox, Ch. R. (S. C, 1848),Eq. 1; Meyer v. Eisler,2» 327; Nodine v. Greenfield, 7 Paige Md. 28. Ch. (N. Y., 1839), 544, 548; Paul v. ^ in re Smith, 2 John. & Hem. 594, Compton, 8 Ves. 375, 380. GOO; In re Ayhvin's Trusts, L. R IG 2 Pickett V, Southerland, 1 Winst. Eq. 585, 590. (60 N. C, 1SG4), G7; Ward v. Cooper, "Berkeley v. Swinburne, 16 Sim. 69 Miss. 789, 794, 13 S. R 827: Sbinn 275, 286, L. R. 13 Ch. D. 489, 491, 492; V. Motley, 3 Jones' Eq. (N. C.) 490, Davidson v. Dallas, 14 Ves. 576; Kev- 494 ern v. Williams. 5 Sim. 171. 3 Jennings v. Newman, 10 Sim. sjiarvey v. Stracey, 1 Drewry, 73, 219. 122. § 559.] GIFTS TO CHILDREN AS rCKCHASERS. T35 of A. This presumption is applicable where the testator gives to his own children simj)liciter} Sometimes a testator qualifies a devise to children by the words " born," or " to be born," or " begotten " or " to be be- gotten." The meaning of these words depends upon the char- acter of the devise. AVhere the gift vests immediately at the testator's death, and there are no children then in existence, it will go to children who may be born at any time thereafter be- fore final distribution.- And where there are children living at that date, a provision for children " Jor;?," or '■^to he horn" will include all children, whether born he/ore or after the death of the testator, provided they shall be born prior to the time when the estate is to vest in possession or to be distributed.^ But none born after the period of distribution or vesting has arrived will be permitted to take as " children born or to be born," unless the will provides for such children " as shall here- after be born during the life of their parents," when the devise will include all children who answer this description, whether born before or after the period of distribution.^ In the absence of anything in the will to the contrary, the words " to be born," " to be begotten," " which shall be born," or " which he shall have," are 7iot presumed to refer exclusively to children that are born after the date of the will, but will in- clude as well all those who answer to the description of chil- dren at the date of the execution of the will.* Accordingly, where there was a devise of a remainder to the "children of A* and B. lavfulbj to he heffotte?i" all chiklren living at tlie date of the will, with those afterwards begotten, were per- mitted to take, for the words "lawfully to be begotten," or "to be born," have ordinarily a more direct reference to the root of descent, and to the legitiraac}'^ of birth, than to the time, 'Matchwick v. Cock, 3 Ves. GOO, Eddowcs v. Eddowes, 30 Boav. G03; 611; Freemantle v. Taylor, 15 Vea Wliitbread v. Lord St. Jolin, 10 Ves. 363; Butler V. Ix>we, 10 Sim. 317. 152; Ileisse v. Markland, 3 Rawle ^HotalitiK V. Marsh, 132 N. Y. 29, (Pa.). 275. C/. Ringroso v. BrauiliuTii, 30 N. R It 2J9; Weld v. BralluT past or fuliuv, at wliirli the birth is to take ph\cc.^ Hut tlic context of the will may clearly show that a provision for children '' that may be born," or " to be born," is exclusively aj)})licable to future-born children, to the exclusion of those who may be in existence at the date of the execution of the will.- So, where the legacy was to the children " that hereafter may he horn to ^1.," the rule that all children born to A., wliethcr born bc^fore or after the death of the testator, are included, may not apply, for it was the intention of the testator, evidently, to ctmline the expression to such as may be born to A. prior to the death of the testator. Under a power to B. to appoint anioni^- the children of A. "«5 may hereafter he horn" B. is con- lined in his selection to the children of A. born after the execu- tion of the will, and in his (B.'s) own life-time. B. cannot execute the power in favor of children of A. who are born after B.'s death.* § 500. Distribution amongst children, when to be per capita. — In the case of a legacy to the children of the testa- tor as a class, or to the children of A. as a class, simpliciter, whether the vesting is immediate or remote, they will take per capita} So, also, in the case of a devise to surviving chil- dren and their issue, the distribution will be j)^^ capita, the children and the issue of deceased children who are living at the period of distribution forming together one class.* And the same rule as to distribution has been held applicable to the 1 Almack v. Horn, 1 Hemm. & M. twenty-one, but if A. should become 630; Co. Lit. 206. insolvent tlien his interest was to 2 Early v. Benbow, 2 Coll. 342; cease as if he were dead," it was lield Early v. Midilleton, 14: Beav. 453; tliat, as the interests in the children affirmed in Townsend v. Early, 1 were not contingent remainders, but De Gex. Fislier & Jo. 1, 28 Beav. 428. executoiy devises, they took effect, ^ Paul V. Compton, 8 Ves. 375. But upon forfeiture by bankruptcy, not a provision for the children of A. that only in favor of children who might he " noic lias or may hereafter have," then be alive, but in favor of all born to be paid to them respectively as during his life, though subsequent to each attains majority, includes those the forfeiture. Blackman v. Fysh who A. has born to him both before (1892), 3 Ch. 209. and after the death of the testator * Burnet's Ex'r v. Burnet, 30 N. J. during his life. Haggerty v. Hocken- Eq. (1897), 595; Benedict v. Ball, 38 berry, 52 N. J. Eq. 354, 30 Atl. R. 88. N. J. Eq. 48. "Where property was to go to A. for 5 in re Fox's Will, 35 Beav. 163, 13 life and then to his children "horn W. R. 1013. or to he horn who should attain §§ 561, 562.] GIFTS TO CUILDEEX AS rUKCHASERS. To7 case of a power of appointment among children and the issue of children at the termination of a life estate in the donee.^ But a remainder after a life estate in A., to her ^'■children ivho may le the heirs of her lody^^ at her death, will be divided j'>d/' stirpes by reason of the force of the word " heirs," referring to children who are alive at the death of the life tenant.^ § 561. Direction for aii equality of division favors distri- bution per capita. — AVhere the testator devises property to one or more individuals and to the children of another,^ or to the children of A. and B., with an express direction that the division shall be "??j/ eq^ual shares^'' '•'' equally ^'' or ^'' share and share alike" he will Ije presumed to have intended that the distribution among all the legatees, both named and as classes, shall be ^;(?;' cajjita.* Thus, where there is a residue directed to be equally divided by A. and B. and the children of C, in equal portions, share and share alike;* a remainder to the tes- tator's three nieces and their children, to be e'qualJy divided among them, share and share alike ;'^ or to A., B. and C, equally to be divided, and to the heirs of those who are dead,'' the division will he j^er capital % 50*^. Whetlier the distribution amongst the childreu of several persons sliall be per stirpes or per capita. — Whether, in the case of a devise to the children of two or more persons named, the distribution shall ho, per capita ov per stirpes among all the children living at the date of distribution, has been a much litigated question, and one upon which the cases are not ■wholly harmonious. The decision of this question, of course, 1 In r« "White's Trast, John (Eng- Sliinn v, :Motle}% 3 Jones' Eq. (50 N. C.) lish;, O.-jG. 4'JU; Patterson v. Patterson, ;j i.l. 208; -Houghton V. Kendall, 7 Allen McMaster v. McMaster, 10 (iratt. (Mass.), 7y. See i)Ost, ^ 023 et seq., as (Va.) 27.3; Emerson v. Cutler, 14 Pick, to the mode of distribution among 108; Perdrian v. Wells, 5 Rich. (S. C.) heirs. Eci. 20; Barksdale v. Macbeth, 7 Rich. 3 Stevenson v. Leslie, 70 X. Y. r)12. (S. C.) Eq. i;i2. *Keanv.I{oe,2IIarring. lO:}; West ^Culp v. Lee. 14 S. E. R. 74, 100 V. Rassiiian, III N. R R. 001. i;r> ind. N. C. (1801). UT."). ;i78; Hig'.-low V. Clapp, 100 Mass. 88, t^ Kuhn v. Wchster, 13 Gray 01; Farmer v. Kiml»all, 40 N. II. WiTt; (Mass.). W. Iiudtv' capita. On the other hand, if the devise is to the children of persons bear- ing different degrees of relationship to him, or to his own chil- dren, and also the children of a stranger, it may be presumed that he made this disposition having in mind the law of de- scent and the rules regulating the distril)Ution of the estates of deceased persons who die intestate. Where the intention of the testator is in doubt upon the question of the mode of division amongst children of persons named, the American cases favor a distribution j^^?/* .f^/;y?t'5, while the English cases favor a distribution per capita. If the testator shall provide that the distribution among the children shall be share and share alilce^ or in eqiial shares, or equally, etc., his language is conclusive. But, in the absence of such express directions, we must resort to the general rules as deduced from the cases. "Where there was a provision of property /b?' the children of A. and for the children of J?., it was held that the distribution should \)Q per capita amongst all the children.^ A devise in the following language, " I give my property to be divided hetween the children of A. and B. share and share alike," will generally be construed to require a division 2)er capita among all the children of the persons named. The courts will substitute the word " among " for " hetween^'' and the division will not be hetween the different stocks represented by the persons named, but among tJce children of all the indi- viduals named as forming one class.^ 1 Macknet v. Macknet, 2-t N. J. Eq. Beav. 638; Amson v. Harris, 19 Beav. 293; Brown v. Brown, 6 Bush (Ky.), 210. The fact that there is a limita- 648, 651 ; Nichols v. Denny, 37 !Miss. tion over to the survivor of the chil- 59, 64; Weld v. Bradley, 2 Vt. 705; dren, in the case of a devise to the Lockhart v. Lockhart, 3 Jones' (N. C.) children of A. and the children of B., Eq. 20j; Roper v. Roper, 5 Jones' is not material in this connection. (N. C.) Eq. 16, 17; Dugdale v. Dug- Hill v. Bowers, 120 Mass. 135. dale, 11 Beav. 402; Dowding v. Smith, 2 Walker v. Moore, 1 Beav. 607; 3 Beav. 541; Pattison v. Pattisou, 19 Armitage v. Williams, 27 Beav. 346 j § 5G2.] GIFTS TO CUILDREX AS FUKCnASF.ES. 739 In the case of a deviso of real property or a legac}" to A. and B. for their joint llve^, in which case they will take as joint tenants, or in a case where they take as tenants in common, if there is inserted an express direction creating a survivorship, as where there is a remainder over to either of them upon the death of the other, with a provision that, on the death of the survivor of the several life tenants, the remainder shall go to or be distributed among the children of the life tenants, all those children living at the death of the testator, too-ether with those born during the joint life tenancy, with the issue of children deceased, will constitute the class of children who are to take at the death of the survivor, and, being thus a class, the children and issue will take jyer capita} On the other hand, where the gift is to A. and B. equally for their respect- ive lives, or as tenants in common, with a remainder to the children of each, though with no express direction in what pro- portion these children are to take, the children of A. or B. will tAkesper stirpes at once on his death, though there is a direction that the property is to be equally divided among the children.- The share of either life tenant on his death will go to all his children who may be then living; and, if the remainder was vested, to the issue or heirs of deceased children, irrespective Lugar V. Harmon, 1 Cox, 250; Weld A. and the children of B., neither of V. Bradbury, 2 Vernon, 70."i; Barnes whom would have inherited from V. Patch, 8 Ves. G04: Lady Lincoln the testator, requires a distvihution V. Pelham, 10 Ves. IGG; Brown v. per stirpes. In re Ihrie's Estate, 29 Brown, 7 Gill (Md., 1848), 347; Wel> Atl. R 750, 162 Pa. St. 309. See also ster V. Foster, 7 Met. (4-8 Alass.) 97; 11 L. R. A. 305. Stokes V. Tilly, 9 N. J. Eq. 130. The » Smith v. Streat field, 1 Mer. 358, case of Alder v. Beale, 11 Gill & J. 361; Stevenson v. Gullan, 18 Beav. (Md.) 123, in wliich the devise was to 590, 592; Malcolm v. Martin, 3 Bro. the children of my sister A. and their C. C. 50, 57; Swabey v. Goldie, L. R. heirs, and tlie children of my sister 1 Ch. D. 380, 384; Parker v. Clarke, (i B. and their heirs; and Mayer v. De Gex, M. & G. lOt, 110; Bi'j,'ley v. Hover, 81 Giu 308. 7 S. E. R. 5(i2. Ce divided llember, L. R. 4 E(i. 443; Taalfo v. between the diildren of II. and M. Conmcf, 10 II. L. Cas. 64; Waltera "sliare ami Hliitri'. alih'," iirn coittnt; v. Crutclicr, 15 B. Moii. (Ky.) 2; but the latter case was dearly do- (.'heeves v. Bl'II, lJones(N. C.) E?o of S. li. 5(il; Rliod<« Island llos. Tr. Cu the will were too Hp(!fial to make it v. I'cckham (li. 1.). 38 Atl. H. 1001. a precedent. A din^rtion to divide -Flinn v. Jenkins, I ColL 305. the residue between the chiliircii uf T40 LAW OF WILLS. [§§ 563, 5G4. of the niunlxM' of cliildivn the other life tenant may have had, or may have livinu' at that dato, or may leave him surviving at bis sul.)se(|uent (h'atli.^ § 5(W{. AVhere chihlroii take by substitution the distribu- tiou >vill be per stirpes. — Where the gift to chiklren is not an oriii-inal "ift, but is substitutional to a class in its character, as it would bo in the case of a gift to A. and B., and, in the event of the death of either of them, to their children, the dis- tribution will be^^ erty is devised to A. and B. and their children, or to a class of persons, as sisters and brothers and their chil- dren, all will take concurrently and the distribution will be per capita; parents anil children being included as members of the same class. Cun- ningham V. Murray, 1 De Ge.\ & Smale, 300; Abbay v. Howe, 1 Do Gex & S. 470; Northcy v. Strange, 1 P. W. 340; Law v. Tliori), 4 Jur. (N. S.) 447. 27 L. J. Ch. 049, and cases cited ante, p. 741. note 1. In Pennsyl- vania this rule was a])pli(>d to a de- vise to individuals and their childrrn, when' it was evident that thf word '•(•hildn-n " was a word of piuchasu and not a word of limitat ion. and not employed to jtoint out the (]ualily or V42 LAW OF -WILLS. [§ 5G5. § 505. Erroneous statoinciit of the mniiber of cliildren. — If the testator, in providing for the cliildrcn of anotlier, and even where the gift is to his own children, states the number of cliihlren he wishes to benefit, and the number which is thus stated is less t/iini the actual numher of child reti, the court has power to correct his mistake. Where the number is under- stated, all the children will take the gift, upon the very reason- able presumption that the understatement was unintentional and inadvertent, and that it did not indicate an intention to discriminate among the children.' If this construction and cor- rection are not resorted to and permitted, the provision for children incorrectly enumerated will be void for uncertainty. And the presumption of a mistake is recognized as readily where the gift is to the children of the testator as where it is to the children of another; for, though a man is more likely to Ivuow how many children he has than he is to be acquainted with the size of another's family, still he may make a mistake in enumerating them as well in the one case as in the other. Where the testator gave a specific legacy to "each of his four children" where he had five,^ to each of the " three children of his sister," ^ to the " two daughters of T. in equal shares, and if either should die, then over," * to each of the daughters of T., and if hoth or either should die, by which language the testator clearly indicated that he believed that T. had onlv two daugh- ters,'^ and in each case the person mentioned as the parent had one more child or daughter than was stated in the will, all were permitted to take.*^ quantity of the estate that the parent Odell, 1 Ba. & Be. 449, 3 Dow. 61; is to take. In re Mcintosh's Estate, Overton v. Bannister, 4 Beav. 205. 27 Atl. R. 1044, 158 Pa. St. 528: Ap- i Cf. ante, ^i 475, 476. peal of Mclntosli, 27 Atl. R. 1047, 158 2 Procter's Estate, 2 Pa. Co. Ct. R. Pa. St. 528; Appeal of Robert G. 3Ic- 474. Intosh, id. ; In re Mcintosh's Estate, ^Xomkins v. Tomkins, 2 Ves. 564; 27 Atl. R. 1048, 158 Pa. St. 528; Ai> Garvey v. Hibbert, 19 Ves. 125; Per- peal of John S. Mclntosli, id. But kins v. Fladgate, 41 L. J. Cli. 681, L. the general rule under which the dis- R. 14 Eq. 54, 20 W. R. 589. tribution is to be per capita will not ^Stebbing v. Walkey, 2 Bro. C. C. be applied to a devise to A. and the 85; 1 Cox, Ch. 250; Spencer v. Ward, children of B., where the testator ex- L. R. 9 Eq. 509, 18 W. R. 358, 22 L. T. pressly provides that, until distri- (N. S.) 702. bution. the income is to be divided 5 Scott v. Fenoulhett, 1 Cox, Ch. 79. among the children per sh'?7)cs. Brett •'See also Mathews v. Foulshaw, 13 V. HortoD, 4 Beav. 239; Crone v. W. R. 1141, where a testator having I 565.] GITTS TO CHILDREN AS PUKCHASEES. 743 "Where the testator directs a fund to be divided among sev- eral children, the number of whom he incorrectly overstates, the incorrect number will be wholly rejected and the fund will be divided among or between the actual number of children.* Thus, where a gross sum was given to the five daughters of A., who had only one daughter at the date of the execution of the will and also at the death of the testator, she was permitted to take all, though A. had four sons at both periods.- The fact that the testator knows the exact number of the children of A. at the date of the will does not seem to be ma- terial, or to be sufficient to prevent a division among those who are actually the children, where the numbers disagree. So where the testator bequeaths a legacy to each of the t/wee children of A., knowing that A. had nine children, it was held that all the children were entitled.' Whether the testator, knowing that at the date of the will a person has a specilied number of children, to which number, described as ^^7ioio liv- ing,^ he gives a fund, will include children born after the date of the will, has been variously determined.* If, however, from the context it can be ascertained wJiich of the children the tes- tator intended to henefit, where he has given property to chil- dren of persons, iinderstating their nuinher, the rule will not be applied. It is only applied where the devise would be void for uncertainty. Accordingly where a testator gave a legacy to the two grandchildren ol' A., who had three grandchildren, adding that they lived at X., and only tuoo of them lived at ten grandcliildren gave property to but onlj' disposed of seven shares, his nine grandchildrea. The divLsioii into eight siiaros was 'Lawton v. Hunt, 4 Strobh. Eq. disregarded, and a division into sovea (S. C, 18.j0), 1. The same rule would shares decreed. Berkeley v. Pulling, seem to be applicable wiiere there is 1 Kass. 490. But an incorrect enu- pecuniary legacy to each child. nieration of a class will not be re- 2 Lord Selsey v. Lord Lake, 1 Beav. jecteil unless it appears to be the in- 15, See al.so Carthcw v. Enraght, 20 tention of the testator to benefit the Week. R 74;}; Thoin()Son v. Young, wiiole class. In ro Stej)henson (18'J7), 2.1 Md (1860), 4."iO; Shepard v. Wright, 1 Ch. 7.1 C Jones' (5U X. C.) Eq. 22. A di- 3i)a„ieU v. Dani.'ll, 3 Dedcx & vision of a fund into eight cfpial Sin. '.\.Vl. fihares was nunlo by the testator, ■• Yeats v. Yeats, 10 Iit«av. 170; iiut who then dis|M)sed of thfin unmng see ro/(/r'/. Smith's Trusts, L. K. it C'lu the children of A. atnl li. Tosonielio 1). 117; Sheror v. Bishop, 4 Bro. C gave two shares, and to others one, C 'j"!. 741 LAW OF WILLS. [§ 5CG. the place montionod, his bounty was confined to these two.' A simihxr rule of construction would ap])ly where the provision was for my four nephews and niece," — namely, A., B,, C. and 1).; or for (.-hildrcn of a certain person, naiit■>(). A reniainiier over iu -2 Jurinan on "Wills, p. 200. tlio case of the deatii of tiie life ten- »In re llarulctt, I^ K. :}m C'li. D. 183, ant, "leuviiuj no lairs of the body," M Ij. T. (N. S.) 014, 30 W. H. r,0!l. relates, of course, to him leaving no * Wingravo V. Palgrave, 1 P. W. 401, heirs of that character at the date 402; Kimherley v. Tew, 4 Drewry & of his death. Read v. Snell, 2 Atk. War. 13J), l.")0; In re Watson's Trusts, 042. 047; post, g 844 et seq. L. R. 10 Kq. :{'{; Sheflleld v. Kennett, 6SIm*(Iii'I<1 v. Kennett, 4 De Gex & 4 iJe (m'X & Jo. .VJ3, .V.M; Hythewa Jo. .VJ3. T)!) I ; Williams v. Haythorno, V. Pythesea, 23 L, J. Ch. 1001; Jeyes L. R Cli. .\i.i). 7«2. 710 LAW OF WILLS. [§ 507. sequence, if any die leaving cliildrcn, tlic grantlcliiklren will take.' § 5G7. Children on ventre sa mere. — In the case of a gen- eral devise to children, and perliaps also in case of gifts to relations, next of kin, etc.,- it is a rule that a child oi ventre sa mere will, by a fiction of the law, be recognized as in esse, at least where his being in esse is for the benefit of the unborn child.' A distinction was made by some of the early English cases, in the ap})lication of this rule, between a devise to chil- dren generally and a devise to children " who may be living " at a particular date.* Subsequently, however, this distinction 1 Ex parte Hooper, 1 Drew. 2Gi, 2G8; In re Tlionipson's Trusts, 5 De Gex & Sin. GGT, 071; Kenneily v. Sedgwick, 3 Kay & J. 540; Maitland v. Challie, G Madd. 243; ]Marsliall v. Hill, 2 Maule 6 Sel. COS; White v, Higlit, L. K. 13 Ch. D, 751 ; White v. Hill, L. R. 4 Eq. 2G5, 2G9, 272; Bryden v. Willett, L. R. 7 Eq. 472, 47G; Treharne v. Lay ton, L. R. 10 Q. B. 459, 4G4 (1875); Weak- ley d. Knight v. Rugg, 7 T. R. 322; Jamison v. McWliarter, 7 Houst. (Del., 1885). 242, 253, 31 Atl. R. 517; Schaefer v. Schaefer, 141 111. 337, 344, 31 N. K R 13G. Where the testator bequeathed a legacy to A., but over to B. in case A. " should die leaving no child or children," and A. married and had six children, it was held that the woi"d " leaving " was to be taken as equivalent in meaning with the words " having had," and that at its birth each cliild took an interest, which, at its death before payment, passed to its personal representative. ]\Iale V. Williams, 48 N. J. Eq. 33, 21 Atl. R. 854. Construing a legacy to A. in case she should have legitimate children, and on failure of such, then over, and she had one child, who died before her, it was held she took abso- lutely on the birth of the one child. Wall V. Tomlinson, IG Ves. 413, 41G. Wliere a devise is to " A. and his bodily heirs, and if he die childless, tlien over," it is clear that tlie plain intent of tlio testator to confer an es- tate on A. and his posterity would be defeated if the devise over is to go into elTect when A. shall die leaving no child or children surviving, but only r/randeJiildren, the issue of de- ceased children. Barney v. Arnold, 15 R. I. 78, 23 Atl. R. 45; McLeod v. Dill, 9 Fla. 427. 2 Gardner's Estate, L. R. 20 Eq. G47. 3 Pet way v. Powell, 2 Dev. & Bat, (N. C, 1837), Law, 308, 312; Groce v. Rittenberry, 14 Ga. (1853), 234; Riggs V. McCarty, 8G Ind. 352, 3G7; Hall v. Hancock, 15 Pick. (32 Mass.) 255. 258; Harper v. Archer, 4 Sniedes & M. (12 Miss., 1845), 99, 108; Marsellis v. Tlial- himer, 2 Paige Ch. (N. Y.) 35, 39; Jenkins v. Fryer, 4 Paige Ch. 47, 53; Shinn v. Motley, 3 Jones' Eq. (N. C.) 490, 493; Swift v. Duffield. 5 S. & R. (Pa.) 38, 40; McKnight v. Read, 1 Wliart. (Pa., 1835), 220; Gross' Estate, 10 Pa. St. 361; 1 Black. Com., p. 130. " It is the general rule that a cliild ni ventre sa mere comes witliin the ex- pression 'child or children,' and is included in a trust in favor of chil- dren, whether described as children in esse, living at the death, begotten and to be begotten, begotten and born, or in any otiier similar way." Remarks of Hall, V. C, in Crook v. Hill. L. R. 3 Ch. D. 773. iNorthey v. Strange, 1 P. W. 341. § 56T.] GIFTS TO CHILDKEX AS PUKCIIASEKS. m was repudiated in chancery, and the principle laid down, which has ever since been strictl}' adhered to both in Engkmd and in the United States, that the same rule shall apply to a gift to children of A. living at his death or at any other date.^ Thus, a child who, at the death of A., his father, is still en ventre sa mere, will be included under a gift to the children of A. " horn in his life-time^ - And in a recent case the English courts have decided that a child en ventre sa mere will take under a devise to " issue living at the death," upon the argu- ment that the word '" issue,^' to the same extent as the word " child," does not of necessity imply a birth.' The rule as to the capacity of children en venire sa mere to take is recognized where a power to appoint among children has been created,* and, of course, where the testator gives prop- erty to tlie children of another as well as to his own children; * and in the case of a gift of a remainder, vested or contingent, or of an executory devise, to children.** So also the existence of a child en ventre sa mere at the ter- 1 Clarke v. Blake, 2 Bro. C. C. 321, 2 Ves. 673, in which Peirson v. Gar- nett, 2 Bro. C. C. 47, and Freemantle V. Freemantle, 1 Cox Ch. C. 248, are overruled. See also note -, supra. A devise to grandchildren as a class, '• to be divided equally as they attain ticenty-five years of age," includes a grandchild en ventre sa mere at the death of the testator, though one of the grandchildren was twentj'-five 3-ears old at that time. Cowles v. Cowles (Conn.), 13 Atl. R. 414. See also Pearce v. Carrington, L. R. 8 Cli. App. 060; To\vns.-iid v. Early, 3 De Gex. F. & J. 1; Miller v. Turner, 1 Ves. 8.j; Davidson v. Dallas, 14 Ves. 570; Scott v. Ihjward. 5 Mad. 332; Heath v. Heath, 2 Atk. 121; 1 Free- man, 244, 2'J3. 2Trower v. Butts. 1 Sim. & Stu. 181. " I have no doubt on any view of this case. It is plain from the words of the will that the testator xneJint all the fjiildn-n that his brother sliould li-avu Ix-liiiid him hhould bo beneliled; but, independ- ent of that intention, I hold that an infant en ventre sa mere, who bj- the order and course of natui'e is living, comes clearly within the description of children living at the time of his decease." By Eyre, J., in Doe v. Clark, 2 H. Bl. 399. 3 In re Burrows, 13 Rep. 689,091, 05 L. J. Ch. 52 (1895), 2 Ch. 497, 73 L. T. 148, 43 W. R 683; Thelluson v. Woodford, 1 Wils. 105. See also Culp V. Lee, 109 N. C. 675, 14 S. E. R. 74; Riiwlins V. Rawlins, 2 Cox, 425. * In re Farncombe's Trusts, L. R. 9 Ch. D. 052; Beale v. Beale, 1 P. AV. (1713), 244. 8 Swift V. Duffield, 5 Serg. & R. (Pa., 1819), 38,40. « Barker v. Pearce. 30 Pa. St. (1.S5S), 173. 175; Picot v. Armistead, 2 Ired. Eq. (37 N. C, 1842', 220, 231; Stedfast v. Nicoll. 3 Johns. Cas. (N. Y.. 1817), 18; Swift V. Dullteld, sujn-a. By Stat. 12 Car. H, c. 21, ;in infant nt voitre sa virrc may have a guardian aj*- ]Miiiiti-d for him. 1 Black. Com., p. rj9. 74t5 LAW OF -WILLS. [§ 507. mination of a prior pstato may be suflicicnt to defeat a devise over. Thus, Avherc the testator gives property to A. for life, remainr'nna facie ])restuned, from the ordinary course of nature, to have been con- ceived nine months before his birth. The courts will take ju- dicial notice of the physiological data attending the conception and the birth of a child, though they have the right to con- firm and refresh their knowledge in doubtful cases by the evi- dence of physicians and other experts.- The presumption that a child is conceived nine months before its birth is not con- clusive. So also if the child is born dead, or in such an early stage of pregnancy as to be incapable of living, he will be re- garded as though he were never born at all, and the estate will not vest in him.^ The fiction of law which treats a child en ventre sa mere as actually born is usually said to be indulged in onh^ for the purpose of enabling the child to take a benefit himself, and in any other case the word "born" or "living" will have its natural signification;* for the presumption of the birth of the unborn infant is a fiction to protect his rights in the hope and expecta- tion that he will be born alive and capable of enjoying them. They are thus preserved for him and not for others in antici- pation.* Thus, a child en ventre sa mere will not take under a iPearce v. Carrington, L. R. 8 Ch. circumstances of the case. The child 969; Laird's Appeal, 85 Pa. St. 339. en ventre sa mere is by the fiction of -Hall V. Hancock, 15 Pick. (Mass.) law presumed to be born at the date 255, 257. of vesting. If his mother is theyi un- ^Marsellis v. Thalhimer, 2 Paige married he is illegitimate, though Ch. (N. Y., 1830), 85, 39. In the civil she afterwards marries before his law a child born within six months actual birth, so that when he conies of conc-eption was conclusively re- into the world he is legitimate. In garded as though not born. 2 Inst, re Corlass, L. R 1 Ch. Div. 460. 483. But, at the present day, in view ■* Blasson v. Blasson, 10 Jur. (X. S.) of the methods by which the life of a 113, 34 L. J. Ch. 18, 11 L. T. (N. S.) prematurely-born child may be pre- 353, 13 W. R. 112, 2 D. J. «fe S. 665. served by the employment of incu- ^ Marsellis v. Thalhimer, 2 Paige bators. the presumption woulil be one (N. Y.), 35, 39. of fact to be determined upon tlio § 56S.] GIFTS TO CIIILDEEN AS PURCHASEKS. r49 devise to the cliildron of the testator, Avliere the statute pro- vides that a chihl born subsequent to the execution of the will, and for whom no provision is made in the will, shall take the sliare a child would have taken in case the father had died in- testate. The courts have held that a provision for "children" will not take the case of a posthumous child out of tlie statute.^ § 568. Presumption of legitiiiiaey — Character of proof of illegitimacy of loi^atee. — In the absence of all proof, a person claiming- under a will as the child of the testator will, upon his showing that he was born of a woman whom the testator called his wife, be prima facie presumed to be a legitimate cliild.- The same presumption of legitimacy is of course recognized in the case of one who claims a gift " to the child of x\." In conse- Cjuence of the existence of this presumption of legitimacy, the party who denies that the claimant is a legitimate child will have the burden upon him of proving illegitimacy. This he must do bv verv strono-, cogent and eonviiicin"' evidence. It was the rule at the early common law that a child born during coverture was conclusively presumed to be legitimate, if at that time the husband was within the four seas, i. e testator. ]»rovidiii;^ that in case his wife should at liis dfath he ewt'inie, devised proiwrty to such ciiild or childrrn, a child ixjrn aj'tiv th(i e.xccution of the will, but durin;? tiio life of th(j testator, was pcrniit- t«id to take, U|K)n the K>°ounds that tliiH child would othcrwi.san Miller's Appeal, .52 Pa. St. 113; Flora v. Anderson, 67 Fed. R. 182. 2 Worts v. Cubitt, 10 Boa v. 421. § -1-] GIFTS TO ILLEGITIMATE CHILDREN". (03 shall take that no doubt shall remain that the testator intended them to take as children.^ § 571. IVlieii a 2:ift to ^^ children" generally will include illegitimate cliildren where there are no others. — The cir- cumstances that no legitimate children are in esse at the date of 1 Shearman v. Angel, 1 Bailey Eq. 351, 356; In re Haseldine, Grange V. Sturdy, 54 L. T. (N. S.) 322; L. R. 31 Ch, D. 511, 517; In re Harrison (1894). L. R 1 Ch. 561, 63 L. J. Ch. 385, 70 L. J. 868. 869; Wilkinson v. Adam, 1 Yes, & B. 422. 462; Smith v. Jobson, 59 L. T. 397. 399. " I reject the notion of there being a rule, that illegitimate children cannot, under any circumstances, participate with legitimate children in the benefit of a gift or bequest to children gener- ally. I agree that tliere is no invaria- ble rule of that sort, but that in each case the question is one which de- pends upon the language of the will; and that if. from the whole context of the will, it appears that illegiti- mate children are to be included •with legitimate children in the ben- efit intended, illegitimate children may take. Still, prima facie, the word "children" means legitimate children, and is to be read as though * legitimate ' were annexed to it." Lord Crans worth in Owen v. Bryant, 2 De Gex, :\I. & G. 697, on page 701. As to the presumption that legiti- mate children only are included un- der the word "children " when it is used in a will, see Hicks v. Smith, 94 Ga. 809; Kent v. Barker, 2 Gray (Ma.ss.), 535, 536; Adams v. Adams, 154 JIass. 290, 292; Gardner v. Ileyer, 2 Paige (N. Y.), 11; Collins v. Hoxie (1829), 9 Paige (X. Y.), 80. 88; Cromer V. Pincknr-y, 3 liarb. Ch. (N. Y.) 406: Heater v. Vanaukcn, 14 N. J. Eq. 159, 167; Kirkpatrick v. Pogors, Ircd. (N. C.) Eri. 130. 136; GilS, 027; Woodhoiiselee v. tlien sixty-seven years of age, her Dalryniple, 2 Mer. 419; Leigli v. lawful husband dead, and .she had no Hynjn. 29 Beav. 2;j;J; Lepine v. Bean, li-^^itiniate children. //(/(/, that this L. It. 10 E will, is not Ui bo presuiiK'd. In re chililren married the mother of tlio H«jrbort's Trusts, 1 Jo. & Hem. 121. former, and nuule a will devising The daughter of tlie testat«jr was, projM'rty to Jtis childnii, th(< devise with hin knowlt.'dgf, living with a failed where he, at his death, had no man whom she aft^rwanls marri(Ml. legitimate children. Shu liad a hou by him who was living 756 LAW OF WILLS. [§ 572. dren "" must nppoar from tlio will itself. Tlio prosuin))li(»n is that he uses the word "child," "son," "issue," etc., in the or- dinary sense, to mean a legitimate child, or son, or legitimate issue. The question to what extent extrinsic evidence may be received to show that illegitimate children were intended to be includetl is involved in controversy. It is however settled that the declarations of the testator, no matter when made, to the effect that he intended a certain illegitimate child to take lis a legitimate child, are never relevant. But parol evidence of the circumstances of the testator's family, where /.> aa illegitimate daughtiT was aihnittud to the benefit of a provision "for alt vnj (hunjittcrs," coming after a de- vise " to mif nittiintl daughter A. and to my olliir ddiK/lilrrs.'' Worts v, (-'ill. ill, I'J Hcav. V:i. 758 LAW OF WILLS. [§ 573. and the enumeration and mention of the children, porniitted the illegitimate children of the testator by his then wife to take under the devise to his said children.^ A gift to four chil- dren of A. l)y an enumeration of names, being preceded by the word "namely," is a valid gift to individuals, not to a class, and all those named may take, though three out of the four are the illegitimate chihlren of A.- Jt has also been held that the circumstance that the testator ffives a letiaev to some of his illefiitimate sons lni nkenof thef/f/i'f//*- 35 W. R. 7'.(7. See also cusch jxist, //'r/» of his late cousin in the pliinil; ^VJH. \nit the illejfitiinate sons were ex- •'SlR'aniian v. AnKt'II. 1 Mailey Kci- <:iuded. as tlie t<*rnis of the provision (N. C) 351. 350; /lost. ^ 5JM(. for the sons c-ouhi Ikj satisfied willi- ••Arnold v. I'n-ston, IS Ves. 288. out including Iheuu ^ Post, ^ OUi. 760 LAW KF AVII.LS. [§ 574, ing between the parties is very material. If he IcUeves that she is in hwv, as well as in fact, the wife of the person mentioned, then it is but reasonable to assume that by a devise to her chil- dren, or the cliihhvn of a person mentioned as /nr /ni.shaiK?, he means onhj JKjit'nnate cJi'ddrcni and it lias been therefore held that the mere description of the daughter of the testator as the "■2c//l' of J. II." will not be enough to comprise her illegitimate children by J. II. under a devise generally to her cliildren, where she Avas not, in fact, the wife of J. II., wliich fact the testator knew.^ On the other hand, if he knew that she was not a legal wife of A., it is very clear that he used the expres- sion, " wife of A.," simply as a term of courtesy, and that, know- ing that her children by A. were all illeyitunate, he intended to give them property SiS persona designata. Evidence of the knowledge by the testator of the circum- stances of the case is always admissible to explain the mean- ing he attaches to any word. This rule applies where he uses the word " husband " or " wife." The question is. Did ho mean a lawful wife, or a wife by reputation? And if it is shown that he meant the latter, nothing then exists to prevent Jeer illegitimate children from taking, as this reference to her distinctly points them out. It is absurd to suppose that the testator meant that the parties might at some future time legally marry, and that she who is now merely a wife Ijy reputation might become A.'s wife in law, and, as such, have legitimate children by him.^ These considerations, pointed out as influencing the construc- tion of a gift to the children of another, are of much greater pertinency, where the gift is to the children of a testator who has loth legitimate and illegitimate children. In the absence of statute no rule of law prevents the testator from disposing iln re Ayles' Trusts, L. R. 1 Ch. as his "daughter," Avho was not D. 282. legitimate. Tliis case seems to hold - In re Horner, L. R. 37 Cli. Div. 695, that wliere the testator knows of the 70.3; In re Harrison, 63 L. J. Ch. 385, illegitimacy of the relations of the 70 L. T. 868, 870. Under a gift to parents, he will be presumed to have "the issue of A.," an illegitimate referred to illegitimate children. child, A."s daughter by M., wlio was Hill v. Crook, 42 L. J. Ch. 702, L. R. the liusband of her deceased sister, 6 H. L. Cas. 205; In re Walker, 06- was admitted on the grounds, inter L. J. Ch. 622 (1897;, 2 Ch. 238, 77 L. alia, that the testator had described T. 94 JL as the " husband " of A., and G. § 574.] GIFTS TO ILLEGTTDIATE CHILDEEJT. T'31 of his property in favor of his illegitimate children, to the total or partial exclusion of those who are legitimate. It is altogether a question of intention, and, despite the presumption that the "word "children," simjyliciter^ means those who are legitimate, if it appears that he intends to benefit only his illegitimate children, the court will respect his intention. Thus, where a man, having abandoned his wife and children abroad, had, during the life-time of his wife, married a woman in America, by whom he had four children, and had made a will in which he designated her as his wife, appointed her a trustee of his property, and devised it all to his childi'en, it was conclusively presumed that he intended the illegitimate children, only to take to the exclusion of his legitimate off- spring. This would be a just and fair construction, where the legitimate children were able to care for themselves, while the illegitimate children were all minors, and particularly where the second wife was not at fault, and had no knowl- edge of the existence of a prior marriage.^ But it has also been held that the circumstance that the testator describes A. as the eldest daughter of S., in a gift to her, and also speaks of S. having daughters, when he knew she had but one legitimate daughter, may indicate tliat A., who was an illegitimate child of S., should be included in a gift to the children of S.- But generally the mere fact that the testator, in one clause of hi& will, gives a legacy to his sons John and James by name, who are illegitimate, will not of itself enable them to take under a devise to children generally, where there arc legitimate chil- dren who can take.' On this point of recognition by a parent the cases are not harmonious.'* In a late case it has been held that an illegitimate child described by the testator as " my son,"* or as "my daughter," and wiio is also described as the wife of a person whom the testator calls his son-in-law,'^ would be entitled to take under a residuary clause directing a divis- ion of the estate among the testator's children.^ 1 Elliott V. Elliott, 117 In.I. 380,885, *Ante, % 573, 20 N. E. R 204; tielstoii v. Shields, » Dickisou v. Dickison, 30 III. Ai)p, 78 N. Y. 275. SO.i. ^Smitli V. Milli.lKf, 10 I.. T. 59. « Wiilsli v. Urown. 02 I^ T. S'.KK ^llf'Jit'T V. \'aii .Xukcii, 11 N. J. \\i\, ''"'riit! woitls used mi* tliciiisi'lvos 107; lijiKley ^"^ -'^' ""'■"■< I. 1 Uii.ss.&My. KiKiiiliraiit — -all t lie "» I. b(jily.' At lliu tiniu tlicsu wmils 7('»2 LAW or WILLS. [§ 575. § r)7."). M'\\n\ illoiiritimate cliihlreii may tako with Ici^iti- inate children as a class.— Jii the cases whicli have been con- sulored where iUef^itiinate cliiUlren are incliuletl under a devise to children, by reason of naming them, it will be found on consideration that /// viy beloved ^Metliani v. Duko of Devon, 1 P. wife, and a remainder tn precedent to the vesting and ])ayment of the legacy.' While the birth of a cliild whose mother is the \vonian mentioned, within such a period subsequent to the exe- cution of the will as to establish conclusively that she was enre'nite at that date, is a matter comparatively easy of proof, being now^ customarily matter of record, to prove the paternity of such a child is nuitter of great dilticulty. A natural child is at common law 7>r/?/^/7y*rtl"/r'J^7/^^s null ii(.s, and can only ac([uire a name by reiHitation.-' The issue of paternity is one which the law cannot t/ien incpiirc into. If the testator describes the natural child of which the woman is enceinte as his own, the gift is void; for, as the only motive of his bounty is the fact that he assumes himself to be its father, and as this fact cannot be ascertained or in any manner inquired into, the gift must fail altogether. If the paternity of the child is an implied con- dition of the testator's bounty, without which the legacy would not have been given, the gift is void. But the cases show con- clusively that the intention to make the paternity of the child an essential element of its character as a legatee must appear in language of unmistakable clearness. Accordingly Avliere a testator, after reciting that he had two natural children and that the mother was supposed to be now carrying a third, added, "1 bequeath the whole of my property — that is to say, if an- other child is born to the mother of the other two, such child to have one-third," the third child of which the woman men- tioned Avas pregnant was permitted to take with the other natural children, upon the ground that the language contained in the will neither referred to such child as his, nor asserted that he was its father, nor showed that he gave it a legacy solely ' " A man cannot provide for the we could make out from this will illegitimate children, either of him- that the testator meant that all chil- self or of another, by anj' reference di-en of the woman iMirn during his that involves an inquiry as to their coliabitation with her sliould be con- paternity. Tlie law allows no crite- sidered or reputed to be his. tliey rionof paternity but marriage. . . . miglit take."' In re Bolton. Brown It is true that although the fact of v. Bolton. L. R, .31 Ch. Div. r,42. .jo^. piternity cannot be inquired into, - 1 Black. Com. 4.j9; 6 Co. 08; 1 the reptitation of paternity may. Inst. 'db. The law does not forbid that ; and if § 578.] GIFTS TO ILLEGITIMATE CIIILDKEN. 707 as /t/'s e/iihl} But if the testator gives a legac}' to a natural cliilcl of A. of Avbich she is ^^ noia enceinte hj me,''' or "as she may Jnq^j^en io he enceinte Juj me,'' the gift will be void.- § 5TS. Effect of judicial decree legitimatizing illegitiniute cliildreu. — In Georgia a judicial decree by which a child is legitinuited under a statutory provision giving the court juris- diction to grant a decree on proper application, while it may enable a child to take b}^ descent from its putative father, will not enable him to take as a purchaser under a will by which his father is tenant for life, with a remainder to his children.' The converse of this rule is recognized in Pennsylvania,'* where it is held that a judicial legitimation of an illegitimate child will enal)le her to take under a limitation to lawful issue in a will; and the children of an illegitimate marriage, entered into before she was thus legitimatized, are also lawful issue. In view of the irreconcilable character of these decisions no rule can be laid down. The statute in each instance must be con- sulted to ascertain how far a judicial legitimation will render illegitimate children competent to take as purchasers under a Avill. Aside from express statutory rules, we have every right to assume that the testator, in the absence of an express or implied provision for illegitimate children, intended tliose only shall take who are in fact legitimate, to the exclusion of those whom the law makes legitinuite. More particularly, where he ])rovides for his own issue, it is extremely improbable that he intends that the illegitimate children of his son or daughter should take as issue, though made legitimate by statute, to the 1 Evans v. Massey, 8 Price, 22. scription, non constat that the gift * E;irle v. Wilson, 17 Ves. 528. In would ever have been made." tills case Sir W. Grant said: "Su\>- ^ Hicks v. Smith, 94 (Ja. 80i). 810. f)ose the words 'as she may happen •» Miller's Appeal, 52 Pa. St. 11^, 115. to 1x5 t'Hfaning of the diflic-ulty; yet if the rule of law does phrase "dying without an heir." Mc- not a<;kno\vle overthrown.' ^ 5s*^. Innnediate devise to tlie parent and children when chihlren are living. — While one clause of the rule in Wild's Case sustains the principle that, where lands are devised to a person and his children simply, and he has no children at the date of the devise, or at the date of the will, who can take as purchasers, he shall take an estate in fee-tail, another portion of it lays down the rule that in the case of a devise in those terms, if there he children at the death of the tentator, the par- ent and the children will take together as purchasers 2^^ joint tenants, according to the nature of the estate.'-' If the devise to A. and his children is in indeterminate language, no words of inheritance being used, they will, with the parent, take at common law a joint estate for their lives ;^ though, under the modern statutes, the parent and the children would take, usu- ally as tenants in common, all the interest of the testator in the land disposed of, in the absence of a contrary expression of intention in the will.* 1 Buffar V. Bradford, 2 Atk. 220. such words shall be taken as words - Gates V. Jackson, 2 Stra. 1172. of limitation." 6 Rep. 17. It is also The language of Lord Coke in Wild's stated " that if a man devise land to Case is as follows, referring first to A. and his children or issue, and he the construction by whicli an estate then have issvie of his body, there tail is created: "The intent of the his express intent may take effect testator is manifest and certain that according to the rule of the common his children (or issue) should take, law, and no manifest and certain and as immediate devisees they can- intent appears in the will to the con- not take, because tiiey are not in trary; and therefore, in such case, rerum natura; and by way of re- they shall have but a joint estate for mamder they cannot take, for that life." was not his (the devisor's) intent, for 3 gge cases in next note, the gift is immediate; therefore < Dunn v. Bank, 2 Ala. (1841), 152, § ^S'2.] AVIIKX "•CIIILDREX" A WORD OF LIMITATION. 773 For, of course, in those states where joint tenancy is by stat- ute expressly abolished, such a limitation would result in cre- ating a tenancy in common in the parent and the children liv- ins: at the death of the testator.^ In this class of cases the question frequently arises whether the testator intends to create an estate in joint tenancy among the parent and children, or whether he intends to give the parent a life estate with a remainder to the children. In either case the word " children " is a word of purchase under the sec- ond half of the rule in Wild's Case. But in the one instance the srift to the children is alwavs immediate and vested, and all take concurrently; while in the other instance it is always executory, and parent and children take in succession. So in some instances it may be contingent on the children surviving the parent.- If the gift is to the parent, either expressl}''/^/' Vfe^ or at common law Avithout ^wrr/s of limitation, a,nd the gift to the children is to them atul their heirs, or in any terms which would convey the fee to the children, it is evident that the testator could not have meant them to take as joint ten- ants. He must have intended a life estate in the parent and a remainder in fee in the children as purchasers. This would be the case where the gift was to the parent for the benefit of herself, and after her death to go to her children? 156; Utz's Estate. 4.3 Cal. (1872), 200, 73, 75; Hampton v. Wheeler, 99 204; Lord v. Moore. 20 Conn. (1849), N. C. 222, 6 S. E. R. 236; Silliman v. 122. 120: Hoyle v. Jones, 30 Ga. 40; Whitaker. 119 N. C. (1896), 89, 93; McCor.J V. Whitehead (Ga.), 25 S. E. Cressler\s Estate, 149 Pa. St. 427, 434; R 767: McRea V. Button. 95 Ga. 267. Graham v. Flower, 13 Serg. «& R. 22 S. E R. 149: Barclay v. Piatt, 48 (Piu) 439: McKeelian v. Wilson. 53 N. E. R 972. 171) 111. 3^4, 387: Moore Pa. St. (186G). 74; Shirlock v. Shir- V. Gary. 48 N. E. R. 630. 149 Ind. 51, lock, 5 Pa. St. (1846), 367; Cannon v. 53; Noble v. Temple (Kan.), 49 Pac. Ai)person, 14 Lea (Tenn.), 553; In re R 598: Proctor v. Smith, 8 Bush Mcintosh's Estate, 27 Atl. R. 1044. (Ky.), 81, 84; Weaver v. Weaver's 158 Pa. St. 528, 27 Atl. R. 1047. 158 Ex'rs (Ky.). 18 S. W. R 228; Annable Pa. St. 528, 27 Atl. R 1048, 158 Pa. St. V. Patch. 3 Pick. 360; Allen v. Hoyt, 528. 5 Met. (Mass.) 324; Stevens v. Bar- > .l»^f. ^ .539. row (Ky.. 1>S9>>), 46 S. W. H. 6H6; -i Compare a«f«', gjj 5.53, 554 Hamilton v. Pitcher, 53 Mo. 334; '.Jaffrey v. Himywood. 4 Mad. 398; Jone« v. .Jones, 13 N. .1. E<|. 23; Lewis v. Citizens' Bank, 95 Ky. 79. (iraves v. Graves, 55 Hun, 5M. H N. Y. 23 S. W. R. 667. A residuary gift to S. 2><4; M'Kjre v. Leiuh, 5 ,Joiies' (5H tlie daughter of the testatrix, in kcu- N. C. 1860) Eq. ►W; (Jay v. Riker. 5 era! language, for the «(»/*' use i>f lur- icL :M4; Hunt v. Sntterwlmit, h5 N. C. xilf iiml rliililrni, gives the daughter 774 LAW OF WILLS. [§ 583. § 583. IVliethor ijift '^^to A..in(l his cliiljlreii " is iinnuMliuto or ill rcniiiiiidcr to the cliildreu. — AVlu'thcr l>y a devise which is ex|)i\'ssly and in trrnis to A. and his or her chihlren, or for tho licnofit of A. and his or her chihlren, tlie testator intends an immediate g-ift to the parent and the chihlren to be enjo3'ed concnrrently, or whether he intends to give a life estate to the parent with a remainder to the children, has been referred to in the last section. It is a qncstion of the intention of the tes- tator, to be determined on the language of the will; and, as no two wills are exactly alike in language, the question pre- sents great difficulty. If the estate is devised expressly for the benefit of the par- ent and her children, no express reference being made to the postponement of the possession of the children until after the death of the parent, it would seem reasonable to assume that the testator intended that all should take concurrently. • This is the ordinary construction where children are living at the death of the testator, and there is nothing in the will to indi- cate that they and the parent should take otherwise than con- currently and as joint tenants. It is supported by the English and American cases.- But the courts have also held that by a devise to A. for the benefit of himself and his children, the testator intended that A. should take a life estate with a re- mainder in fee to the children.* the fee-simple, and the words men- dren, would create an estate to be tioned do not make the children ten- taken concurrently, not in succes- ants in common with her, nor vest sion. But where the object of the in them a remainder at her death, testator is to provide for the support Small V. Field, 1-i S. W. R. 815, 103 of A. during his or her life, it has JIo. 104. been generally held that A. will take iPyne v. Franklm, r> Sim. 458; a life estate with a remainder to the Newill V. Newill, L. K. 7 Ch. 253, L. R. children. This construction would 12 Eq. 432. be favored wliere the devise is to the - See § 582. widow of the testator " for the bene- SFurlow V. Merrell. 23 Ala. (1852), fit of herself and her children:" for 705, 716; Crawford v. Forrest, 77 Fed. if all take concurrentl}', any child R.534; InreSavmders,4Paige(N. Y.), might demand partition when he 293; Rich v. Rogers, 14 Gray (Mass.), or she became of age, which would 174, 178; Goss v. Eberhart. 29 Ga. result in depriving the widow of the (1859), 545; Faribault v. Taylor, 5 testator of the support for the re- Jones' Eq. (N. C.) 219, 220. It would mainder of her life, which he evi- seem at first glance that a devise to dently meant to give her. So, too, -.4. and In's children, or to A. for the it has been considered that the cir- henefit of himself or herself and cliil- cumstajice that the devise is in trust § 5S3.] WHEN "children" a word of limitation. 775 And such a construction will be materially aided if a devise over is inserted, to talre effect in the event that the parent shall leave no children him surviving} The testator may, of course, by express language avoid the operation of the rule that a de- vise to A. and his children shall make them joint tenants, and that they shall take concurrently, by language which, either expressly or by implication, points out that he intends them to take in succession. The strongest indication of such language would be where, after giving an estate to A. and his children, he provides that it shall be enjoyed by the parent during his life, and that it shall go after his or her death to the children.- In all these cases the word " children •' will be construed as a word of pur- chase, irrespective of the fact that the parent had or had not children at the time of the maldng of the will? Very slight circumstances are usually permitted to rebut the for the wife of the testator and her children may indicate that he in- tended she should take a life estate; that is to say, the income of the whole property for her life to be paid by the trustees, with a vested re- mainder in the capital at her death for the children. Rich v. Rogers, 14 Gray (Mass.), 174, 178; Weaver v. Weaver, 93 Ky. 491; Chusnet v. Meares, 3 Jones' (N. C.) Eq. 416. 419. The cases distinguish between a de- vise to " A. and her children, if site shall have any" and a devise to A. and her children at her death. In the first class of cases the testator means, if the parent shall have any children living at his death or at any time during her life, that parent and children shall take as joint tenants or tenants in common. In the sec- ond class of cases he means to give the parent a life estate, with a re- mainder to her children who are living at her death. (jillt*s|iie v. Sherman, 02 Gn. 2^; Silliman v. WhiUiker, 119 N. C. H9, 9',. >S<-haefer v. Soliaefcr, 141 111. U37 (1893), 31 N. E R i:J(S. 2McCroan v. Pope (1850), 17 Ala. 612, 616; Furlow v. Merrell, 23 Ala. 705, 716; Goss v. Eberhart, 29 Ga. 545; Kelly V. Gonce, 49 111. App. 82; Peck- ham V. Lego, 57 Conn. 558, 19 Atl. R 392; Moores v. Hare (Ind., 1896), 43 N. E. R 870; Mercantile Bank v. Bal- lard's Assignee, 83 Ky. (1885), 481; Demill v. Reid, 71 Md. (1889), 175, 192, 17 AtL R 1014; Dodd v. Winship, 144 Mass. 461, 464, 11 N. R R 588; Hub- bard V. Selser, 44 Miss. (1870), 704, 712; Rhodes v. Shaw (N. J.), 11 AtL R 116; Huber v. Donohue, 49 N. J. Eq. 125 (1891), 23 Atl. R. 495; Budd v. Haines, 52 N. J. Eq. 488 (1894), 29 AtL R 170; Losey v. Stanley, 147 N. Y. 560, 43 N. E, R 8: Perry V. Lowber, 49 Pa. St. 483 (1802); Cote v. Von Bonnhorst, 41 Pa. St. (1861). 243; Harris v. McEl- roy, 45 Pa. St. 216; Springer v. Arun- del. 64 Pa. St. 214; Christie v. Phyfe. 19 N. Y. 344, 354; Barker's Estate, 159 Pa- St. 518, 28 Atl, R 308; Reeder V. S|K.'arman, 6 Rich. (S. C.) Eq. 88. 2 In re Saunders, 4 I'aijje Cli. (N. Y.) 293, 297. 776 LAW OK WILLS. [§ 58-i, presumption tliat the testator, in a devise "to A. and his chil- dren *' siuipl V, uslhI the word as a woril of purchase, indicating an intention that they shall take concurrently with the parents; particularly in the case of a devise of personal ])roperty, as, for exani])le, of money for the use and henelit of the parent and his children. If, in a bequest of personal property, the testa- tor provides that the legacy to A. and liis children shall be secured for their use,' or where the children are to take in unecpial shares with the parent,- or where a trustee is ap- pointed for the parent and the children,'' the ])erson named as tht» parent will enjoy the income of the legacy for life, and at his death the capital Avill go to his cliihlren as remaindermen. And generally, in a gift of personal property, where the testa- tor directs that after the death of the parent it shall be paid over to the children, the parent will take a life estate, unless it is clearly to be seen from the context that the testator in- tended him or her to have an absolute interest.^ ^ oS+. ^Vliether the rule in AVild's Case is applicable to personal property. — The earlier cases decided in the English courts of chancery refused to apply the first clause of the rule in Wild's Case to gifts of personal property. If the gift of money, leaseholds, etc., was made to A. and his children, and he had none at the death of the testator, the application of the rule would give him an absolute title to the personal property; for it is a rule of common law that language which creates a fee-tail in real property will give the absolute title to personal property.'^ And the result of construing the w^ord " children " as a word of limitation w^ould be that the parent Avould have the whole interest and could alienate without the consent of the children.^ Whether the rule is applicable to personal prop- erty is not of paramount im})ortance ; for, if it be not applicable, still the absolute interest in the personal property will pass Avithout words of limitation, both at common law^ and now^ par- * Vauf^han v. ^larquis of Headfort, ■• Huglies v. Drovers & Mechanics* 10 Sim. 039; Combe v. Hughes, L. R Nat. Bank (Md.), 38 Atl. R. 936. 14 Eq. 41.-,. 5 3 Black., p. 398. 2 Armstrong V. Armstrong, L. R. 7 «Buffar v. Bradford, 2 Atk. 220; Eq. 522. Audsley v. Horn, 1 D. F. & J. 226, 2G 3 Morse v. Morse, 2 Sim. 485. See Beav. 195; Heron v. Stokes, 2 Drew, also note 2, p. 775. & W. 89. § 5S4.] WHEX "children" a -word of LIMITATION". TT7 ticularly, under the various statutes existing in England and America. An exception to this rule occurs in the case of an annuity, which, if given without words of inheritance or limita- tion, is conclusively presumed to be for the life of the annui- tant.' And under the rule that an estate in tail cannot be cre- ated in an annuity, the limitation of an annuity to A. and her children would simply create a conditional fee in the annuity.'- 1 Savery v. Dyer. Amb. 139; Yates 2 Stafford v. Buckley, 2 Ves. 170. V. Maddan, 3 M. & G. 333. CHAPTER XXVIII. GIFTS TO FAMILIES AND RELATIONS AS PURCHASERS. S 585. Definition of the word " fam- ily" — Gifts to f.amilies, when void for uncertainty. 586. The word " family " may be equivalent to "heir." The word "family" may be equivalent to ''children" — "When the head of the fam- ily is included. The word " family " may mean relations or next of kin. 589. Definition of the word "rela- tions " as statutory next of kin. 590. "Relations" presumed to mean 587. 588. those by consanguinity — llusband and wife, when in- cluded among relations or next of kin. g 591. Gifts to relation in the singu- lar — When illegitimate re- lations are included. 592. Provisions made for the poor or needy relations of the tes- tator. 593. Powers of distribution among relations. 594. Distribution among relations as a class is usually p^r capita. § 585. Definition of the word ^^ family " — Gifts to fam- ilies, when Yoid for nncertainty. — The meaning of the word " family " is always to be gathered from the whole will, read in the light of the circumstances surrounding its execution. It is a word of very flexible meaning, depending upon the inten- tion of the testator. It is often difficult to determine what per- sons he intends to be included under the term. The word has several ordinary, and, we may say, primary meanings. It may mean those who live under the same roof with the pater familias;^ that is, hi-e household, his wife, chil- dren and servants. This is not its ordinary meaning as used in wills.'^ It may also mean a man's wife and children, and this is a very common meaning in wills. Again, the Avord is often used, particularly where a person, whose family is spoken of, V. Railroad Co., 154 Mass. 1 Dodge 299. 2 "A mere aggregation of individ- uals under one common roof or within the same curtilage, although devoting their attention to a com- mon object, the promotion of their mutual interest and social happiness, as the inmates of a boarding-hoxise or persons employed in the capacity of servants, does not of itself consti- tute a family." Roco v. Green, 50 Tex. (1878), 483, 490: Putnam v. South- ern Pac. R Co., 27 Pac R. 1033, 21 Oreg. 230. § oSC] GIFTS TO KELATIONS AS PrKCHASERS. 779 has no wife or children^ to indicate his or her brothers and sis- ters, or his statutory next of kin; and sometimes, in a very "wide sense, to indicate the family stock; that is, those persons of the same name who are descended from a common though remote ancestor.^ Under some circumstances a gift of personal property to the family of the testator, or to the family of some other person, may be void for uncertainty as to whom the testator intends.- Thus, "where the testator gave a remainder in personal prop- erty to be divided among her daughters and " their husbands and families,''^ ^ where the gifts were " to T. H. forever, hoping he will continue them ifi the family,'''' * where the gift was one- half to i\iQ family of the testator^s wife and one-half to his broth- ers^ and sisters'' family equally to be divided,* the gift is void for uncertainty. The cases in which a provision for a family has been held void for uncertainty are not numerous, and the courts, in modern times particularly, strain after a construc- tion which will make a gift to a family effectual.^ p 586. The word ^^ family " may be equivalent to ^'heir." In England, from the time of Lord Ilobart, it has been a rule 1 '• The word ' family ' may mean a 3 Robinson v. Waddelow, 8 Sim. 134. man's household, consisting of him- "The word 'family' is an uncertain self, his wife, children and servants; term; it may extend to grandchil- it may mean his wife and children, dren as well as children. The most or his children excluding his wife; reasonable construction is to reject or, in the absence of wife and chil- the words 'husbands and families.'" dren, it may mean his brothers and By the court on page 137. sisters or next of kin; or it may * Harland v. Trigg, 1 Bro. C. C. 142, mean the genealogical stock from 144. which he may have sprung." 2 Story, ^ Doe d. Ilayter v. Joinville, 3 East, Eq. Jur., § 10656. "The general mean- 172. The testator had two sisters, ing of a term in question ol)tains of one of whom died before him, leav- course in wills only where it is not ing children, and the other survived interpreted by tlie context." O'Uara him and had children, ami lie had on Int. of Wills, 317. also one brother surviving who had 2 Li ley V. Hey. 1 Hare, 500; T>ambe six children; the gift was void be- V. Eame.s, L. R 10 Eroperiy, whether in possession or in remainder, shall be conclusively understood to mean the heir. This construction is due, in \\\Q,fii'iit place, to a great desire to avoid intestacy, and secondly^ to the favor with which the Knuiish courts regard the lieir-at-law.^ Thus, a devise of all the testator's real estate to A., "m the fullest confidence that she woidd devise the property to hisfam- ■ih/r is certain and valid, and a precatory trust arises' for the benelit of the testator's heirs.' !So a gift of land for the pur- pose of aiding any member of my family wfu) may he in distress is certain and valid.* AV^'here a testator speaks of his family under circumstances where it is s3'nonymous with his heir, he will be presumed to mean the person who is his heir at his death.' But when he speaks of the family of another, he may mean, not the heir of that person, but the heir apparent at the date of the execution of tJie wilU % 5S7. The word "family" maybe equivalent to children wheu the head of the family is included. — In most cases the court will construe the word "family" to mean children. If the testator, being married, and leaving a wife and children, gives his wife a sum of money for the benefit of his family, he may mean his children only ; for when a married man men- tions his family, he usually means his children alone.'' So, a provision for the support of the family of the testator Avas held 1 Chapman's Case, Dyer, 3336. If Griffith v. Evans, 5 Beav. 241; Ward land be devised to the stock, or fani- v. Peloubet, 10 N. J. Eq. (1855), 304; ily, or house of A., it shall be under- Lutte v. Bennett, 5 Jones' Eq. (N. C.) stood of the lieir principal of the per- 156; Poor v. Insurance Co., 125 Mass. son. Counden v. Clerke. Hob. 29, 274, 277. 33rt. "The term ' family ' primarily * Hill v. Bowman, 7 Leigh (Va., means children as regards bequests. 1836), 650. In devises of realty, ' family ' means ^ See §610. lieirs, or heirs of the body. The word ^ Doe d. Chattaway v. Smith, 5 * family,' however, will often be con- Maule & Sel. 126. A devise to " A. strued to mean relatives rather than and B., and to their respective fam- children. The general meaning of a ilies by way of seniority," gives an term obtains, of course, in wills only estate in fee-tail to A.'s sons, accord- where the term in question is not in- ing to seniority, at the death of the terj)reted l)v the context." O'Hara testator. Lucas v. Goldsmid, 29 on Int. of Wills, 317. Beav. 657, OCO. -Post, t 792 et seci. 'In re Hutchinson, L. R. 8 Ch. Div. 3 Wright V. Atkyns, 17 Ves. 255; 540. § 5S7.] GIFTS TO KELATIOXS AS rUECHASERS. 781 to be for the benefit of bis widow and bis children, or tbeir immediate descendants, so long as they reside together in one household.^ If some of the children are self-supporting, while others are minors living with tbeir mother, it will be presumed that he did not intend to include those who could support themselves.- The word " family " will be construed to mean children, where a testator gives property to the family of another, if from the context, and because of the fact of the property being personal, it is apparent that the testator did not mean heirs. "Where a testator gave the proceeds of his property " to the families of Cyrus and John Grijjin, cJiildren in equal j)roj)0/'- tio7i,^'^ or to be divided between his ''^ brother A.'^s family and B.,^-* to the families of my brother A.-s four children, and to the children of my sister B.i^ " to be divided among my cousins and their respective families^'' ^ or for the support of "^. and her family i^'' "' \l was held that he meant children of the persons named, who for that reason take per stirpes. A direction to divide money "among all of the testator's family who shoidd J» »o/i A. and liin family," the other half for the benefit "of the children of my deceased daughter B." The testator directed his executors that in the expenditure of the iucome they should " keep in view the education and maintenance of my grandchil- dren on a scale comporting with tlieir condition in life." The court held that the surplus should be in- vested for the benefit of A. and his family and the children of B. By the " family of A." the testator meant his children, but A. should partici- Iiate. The share for A. and his fam- ily should be eijually divided, one- half to A. and the other Iialf equally divideil among liis children. The expression, "if he shall get married and have a family," as a condition precedent to an increase in the amount of an annuity, means to take a wife and to have i.ssue by her. It d(jes not mean marriage alone with- out children iM'ing Ixirn. SjKjncer v. SiKiueer, 11 Taige (N. Y.), 109, 100. TS-t LAW OF WILLS. [§ 5S0. ily at the time of the execution of the will. "Where A. at that time had livin^^ two dauiihtors, one of whom had four children, and A. had also <;randchildren by two deceased sons, a provis- ion of a remainder given " to the younger branches of his fam- ily and their heirs " was held void for uncertainty.^ But where the provision was that the devise should be subject to such leg- acies as a son of the testator might bequeath (in case he died without issue) "ifo aiiy youn(jer hranches of the family ^''^ and the testator had one daughter, who at the date of the will had five chiUlren, it was presumed that, by the term "younger branches of the family," he meant those children of the daughter who would not inlierit in the case of the son's death witliout issue.-' §580. Delinitioii of tlie word "relations'* as statutory next of kin. — In its broadest sense the word " relations " of A. includes persons who are related to A. in every degree. But the word " relations " primarily implies consanguinity. It means related by blood; and if some line were not drawn be- tween those nearly and those remotely related, every gift to relations would be void for uncertainty. It is like the term " family," though more vague and uncertain of significance. As it is employed in wills it is construed to mean those per- sons Avho Avould, by virtue of the statute, take the personal property of an intestate as his next of kin.* It was at one time 1 Smith V. Fleming, 2 Cromp., Mee. tives"); Jones v. Roberts. 84 Wis. & Ros. 638. 465, 471; McNeilledge v. Barclay, 11 2 Doe d. King v. Frost, 3 Bar. & Aid. Sen & R. (Pa., 1824), 103; McNeilledge 546. An exception of property which v. Galbraith, 8 S. & R. (Pa.) 43; Hul- I may have derived from A. or any ing v. Fenner, 9 R. L 411: Alexander of her family includes property de- v. Wallace, 8 Lea (76 Tenn., 1881), rived from A."s father. James v. 569: Storer v. Wlieatlej', 1 Pa. St Lord Wynford. 2 Sm. & Gif. 350, 352. (1845;, 506; Thomas v. Hole, 1 Dick- 3 4 Kent, Com., p. 339; Sugden on son, 50; 2 Eq. Gas. Ab. 332, 368, pi. 13; Powers, 514, 515; Ross v. Ross. 25 Green v. Howard, 1 Bro. C. C. 31, 33; Can. S. C. R 307; Hall v. Wiggin Edge v. Salisbury (1749), Amb. 70; (N. H., 1896), 29 Atl. R. 671; Hoey Rayner v. Mo\vbray (1790), 3 Bro. C. T. Kenny. 25 Barb. (N. Y.) 396; Gal- C. 234; Masters v. Hooper (1793), 4 lagher v. Crooks, 132 N. Y. (1892), Bro. C. C. 207. 210; Lees v. Massey, 3 338, 30 N. E. R. 746; Drew v. Wake- De Gex & Jo. 113, 120; Re Caplin's field. 54 Me. (1865), 291, 299; Esty v. Will. 2 Dr. & Smale, 527, 530; Walter Clarke, 101 Mass. 38. 39: Cummings v. Maunde, 19 Ves. 423, 426; Cruwys V. Cummings. 146 Mass. 501. 16 X. E. v. Colman, 9 Ves. 319, 323; Jones v. R. 401 ; Darcy v. Kelly. 153 Mass. 431, Colbeck, 8 Ves. 38; Widmore v. Wood- 437; Handley v. Wrightson, 60 Md. ruff. Amb. 636; Brunson v. Wool- (1883), 198, 206 (construing 'Tela- redge, Amb. 507; Brown v. Higgs, 4 § 590.] GIFTS TO KELATIONS AS PUKCHASERS. VS5 regarded as doubtful ■whether the next of kin or the heir was entitled to come in, in a gift of real jpropertij to relations. This question is now settled in favor of the distributees under the statute as against the heir,^ The presumption that the testator, in a gift to his relations, intended to comprise only those ■who would have taken personal property had he died intes- tate, is not conclusive, though it is very strong. The court may go outside of the class of relations indicated by reference to the statute, and give to those who are not distributees under it. Thus, where a testator gave property " to be divided among her relations, that is, the Greenwoods, Everetts and the Dows," the Greenwoods, though not within the statutory degrees, were allowed to take jointly with the Dows and the Evere.tts, M'ho were, as the testator had thus expressly enlarged the meaning of the term.- "Where a limitation was to the " near- est relations " of my sisters, nephews and nieces, the children of a sister who was alive were permitted to take concurrently with their parent, and with the children of sisters who were deceased.^ § 590. Relations presumed to mean those by consanguin- ity — Husband and wife, when included among relations or next of kin. — If there is nothing to indicate that the testator intended to include his relations by affinity, they will not take under a gift to relations simjplioiter} This rule is not only ap- plied to a class of relations generally, but to a specific class, as " cousins," " nephews," etc.^ The testator may, by proper lan- guage, include his relations or next of kin by affinity; as by a gift to " my relations hy Mood or marriage; " * " to my nephews Ves. 718, 719; Salisbury v. Denton, the definition of tlio term to surviv- 3 Kay & Jolm. 529, 5:}9; Ilu.skisson ing brothers, sisters, nephews and V. Bridge, 4 De Gex & Sin. 215; In re nieces whose parents are living. Holmes, 02 Law Times, 383; Fielder Stamp v. Cooke, 1 Cox Ch. R. 234, V. Ashworth, L. R, 20 Eq. 410, 412; 23(5: Marsli v. Marsh, 1 Bro. C. C. 293; Richardson v. Richardson, 14 Sim. Smith v. Campbell, 19 Ves. 404: Locke 52C. V. Locke, 45 N. J. Eq. 97; Prall v. ' Walter v. Maunde. 19 Ves. 423; Bevan, 71 Law Times, 5. Doe d. Thwaites V. Over, 1 Taunton, '.i7; Starr v. owes her i)rovision under the statute N»'\vlx'rry, 23 Ii<;av. 436. of distriliution, nf)t to the supposi- 'Sfie cases, note 0, p. 786. tion tiiat she is one of her husband's < Ksty V. Clarke, 101 Mass. 30. 3!(; kiiiilre tlio fund among those who wouUl take as distributees under tlio statute, as of the death of the testator, and tliey will take i^er caj)lta} § 504. Distribution among relations as a class is usually per capita. — It would seem that where reference is made to the statute in order to ascertain the meaning of the word " re- lations," the statute would also be employed in order to ascer- tain the mode and proportion of distribution. But it was very early held that relations would take ^xv capita; ^ and this rule has been adhered to, pai'ticularly where the testator has added limiting or enlarging phraseology to the word "rela- tions; " as where, in one case, the testatrix, dying without leav- ing issue, devised her property to her relations, and " to such only as claim within two months," and directed that the executors should advertise for them.' In these cases, where relations are designated as members of a class, only those per- sons who ansioer to tJie description of relations at the death of the testatrix are permitted to take,* even where they are not to take until after the expiration of a prior life estate.-^ If the testator has devised his property to his nearest relations and. A..^ the division will be per stirpes; as in the case of a similar provision for the next of kin or children in connection with a stranger.^ Though the addition of the word " near " to rela- tions will not exclude any who would take by representation under the statute, the effect of a devise to " nearest relations " 1 Attorney-General v. Doyley, 2 Eq. •* See also Rayner v. Mowbray, 3 Ca.Ab. 194: Darcyv.Kelle}-, 153 Mass. Bro. C. C. 234; Masters v. Hooper, 4 431, 437, 26 N. E.R. lllorMeldon v. Bro. C. C. 207. A gift to relations, Devlin, 53 N. Y. S. 172, 31 App. Div. -wlio are to claim within a year, is 146, also holding tliat the next of undoubtedly valid. Honeywood's kin take a vested right to and inter- Will, Amb. 708. est in the property, subject to dimi- 5 in re Nash, 71 Law T. (N. S.) 15; nation or defeat by the appointment Prall v. Bevan, id. That nearest re- under the power. lations may include a sister-in-law, •J Thomas v. Hole, 1 Dickins, 50; see Hall v. Wiggin (N. H.), 29 Atl. R Green v. Howard. 1 Bro. C. C. 31. 671. 3 Tiffin V. Longman, 15 Beav. 275, 6 Young's Appeal, 83 Pa. St. (1896), 276. So, also, where a testatrix 'di- 59: McNeilledge v. Galbraith, 8 Serg. rected that the property should pass & R. (Pa.) 43; McNeilledge v. Barclay, to her relations "in America." Eagles 11 Serg. & R. (Pa.) 103. V. Le Breton, 42 L. J. Ch. 362, L. R. 15 Eq. 148. § 594.] GIFTS TO KELATIOXS AS PUKCHASEKS. Y91 of A. is that the surviving brothers and sisters of A. will take to the exclusion of the children of those deceased who would take by representation in place of their parent.^ 1 Locke V. Locke, 45 N. J. Ec[. 97, C. C. 293: Davenport v. HasselI,Busb. «8; Cox V. Wills, 49 N. J. Eq. 130, Eq. 29: Enuis v. Pentz, 3 Bradf. Sur, 135; Hall v. Wiggin (N. H.), 29 Atl (N. Y.) 383. R 573, 671; Marsh v. Marsh, 1 Bro. CHAPTER XXIX. GIFTS TO NEPHEWS AND NIECES, BROTHERS AND SISTERS, DAUGHTERS, COUSINS, HUSBAND OR WIFE, TO SERVANTS, AND TO PERSONS OF THE TESTATOR'S NAME, AS PURCHAS- ERS. ^ 595, 696. "Nephews" and "nieces" mean primarily those by consan- guinity. When a provision for neph- ews and nieces will include great-nepliews and great- nieces, 597. Pi'esumption tliat legitimate nephews and nieces are meant. Children of a nephew or niece may take parent's shara Gifts to brothers and sisters. Gifts to daughter or daugh- 598. 599, 600, ters — Number incorrectly stated. § 601. Gifts to husband or wife — When claimed by a person who is not a lawful husband or wife. 602. From what time a will speaks as respects a devise to the husband or wife. 603. Gifts to cousins — When class is ascertained. 604 Gifts to servants. 605. Gifts to persons of a particu- lar name. §595. ^^ Nephews" and *^ nieces" mean primarily those by consanguinity. — The words " nephews " and " nieces," when used in a will, in a provision for the nephews and the nieces of the testator himself, in the absence of a controlling context, have the primary meaning of his own nepheios and nieces^ i. e., the children of his brothers and sisters,^ including the children of his brothers and sisters of the half blood. For when a man speaks of his brothers and sisters, he means those persons who form a class and who stand in the same relationship either to one or to both of his parents that he does himself.^ But it is possible that the testator may have intended to refer to his nephews and nieces by marriage — that is to say, he may have 1 Green's Appeal, 42 Pa. St. 25, 30; Wells V. Wells, L. R. 18 Eq. 504. See also 9 L. R. A. 200; post, % 596. A niece by affinity or a great-niece is not permitted to take a share in a residuary gift "to nephews and nieces of every description mentioned in the will" though a niece by mar- riage has been mentioned in the will as a niece simpliciter. Lewis v. Fisher, 2 Yeates (Pa., 1797), 196. The propriety of the decision may well be doubted. 2 Lewis V. Fisher, 2 Yeates (Pa.), 199; Shelley v. Bryer, Jac. 207; Grieves v. Rawley, 10 Hare, 63, 65, 66. § 595.] GIFTS TO KELATIOXS AXD OTHERS. T93 meant his wife's nephews and nieces, — and to include them in a devise to nephews and nieces as classes, and generally parol evidence is admissible to show that he did refer to such per- sons.^ Thus, where the testator and his wife cacJi had a nephew by the name of Joseph Grant, who was living at the date of the will, parol evidence, consisting of the declarations of the testator, and also of evidence to prove his treatment of his wife's nephew as his own nephew, was received to show that the testator intended that person to take under a devise to " my nephew^'' Joseph Grant.^ If at the date of the execution of the will the testator has no nepliew or niece of his own liv- ing, and, either because he has no brothers or sisters then liv- ing, or because those who are living are not likely to have children subsequently born to them, it is apparent that he can- not mean his own niece or nephew, a niece or nephew of his wife may with propriety be included under a devise to " my nephews or nieces." But it must appear that he was cognizant of the state of facts as above detailed.' The same rule would apply where he has only one niece by consanguinity^ and a for- tiori if there be no possibility of more, and where he has in the will given all his nephews and nieces, in the plural, legacies as such.* Where a testator gave property to A. and A.'s wife, calling them his nephew and his niece, and A. was his wife's nephew, and the testator also gave legacies to his own neph- ews and nieces, and furthermore ordered his residuary estate to be divided among his nephews and his nieces, by name in- cluding the nephew and the niece to whom " I have given leg- acies aforesaid," some of whom were also nephews and nieces of the testator's wife, it was held tliat the wife's nieces took under the residuary bequest, and that A. and his wife each took an equal share in the residue as a nephew and a niece, though in 1 Green's Appeal, 42 Pa. St. 2r). nO; R. 5 C. P. 380, 727. Contra, In re Merrill v. Morton, 43 Law Times, 7')0; Root (Pa. St., 1897), 40 Atl. R. 818. SlM-rljiirne v. Siw-ho, 14:} Mass. 43'J. 9 ^Sherratt v. Mouutford, L. R, 15 N. E. R. 797; Hogg v. Cook, 32 lieav. E(i. 30.j, L. R, 8 Ch. 928; Hogg v. 6U; Grant v. firant, I^ R 2 P. & 1). Clark, 32 Beav. 041. 8, 18 W. R 230. In a very recent sof Atl. I{. 173: In re Hunt's Rstatc 131 the testator when- none lia. •i In re Davis (H. I., 1897), 35 All. i:. l.eil v. LiousUell, 2? lieav. 325. 329. 796 LAW OF WILLS. [§§ 597, 598. of the testator" includes those who were widows at the death of tlie testator as well as those Avho had never been married.' § 597. The presuiiiptioii that legitimate nephews and nieces are meant. — It will be presumed, until the contrary is shown, that the testator, in mentioning nephews and nieces of himself or of another person, had in -mind legitimate nephews and nieces only.- The illegitimate children of his brothers or sisters do not take under a devise to his nephews and nieces as a class, though, by a statute, such children would, by reason of the marriage of their parents, be enabled to inherit from their father and from his collateral kindred.' It may, how- ever, be shown by parol, as evidence that the testator meant to benefit illegitimate nephews and nieces, that he was in the habit of describing the illegitimate children of his brother as his nephews and nieces.^ § 598. Children of a nephew or niece may take the par- ent's share. — If the testator, in providing for his nephews and nieces, directs that in case of the death of any one or more of them the issue of those deceased shall receive their parent's share by substitution, the issue of nephews and nieces who died hefore the %oill was made * will take the shares which their parents would have received.^ AVhere a testator, giving leg- acies to his nephews and nieces, and expressly to A. and B., the children of a deceased niece, by name, adds that, in case any of his nephews or nieces shall die, the issue of those de- ceased will take their share, A. and B. are to take ^^cr stirpes and not jper capita? Generally, where it appears to be the in- tention of the testator to give legacies to nephews and nieces as to classes, they will take j?^?/' capita and \io\jper stirpes. The 1 In re Conway's Estate (Pa. St.), 37 ers A., B. and C," refers to those who Atl. R. 204, 5 Pa, Dist. R. 333. are nephews at the death of the tes- 2^47?fe, §g 570, 591. tator. It does not include a child 3 Lyon V. Lyon, 88 Me. (1896), 395, born to A. after the death of the tes- 400, 34 Atl. R. 180 (construing Pub. tator, though A. had never had chii- Law, 1887. ch. 14). See also Bolton dren born to him prior to that tinu'. V. Bolton, 73 Me. 299, 309; Kent v. Worcester v. Worcester, 101 IMass, Barker, 2 Gray (Mass., 1854), 535, 53G; 128, 133. Brown V. Brown, 37 W. R 472, 58 L. 5 g 595. J. Ch. 420. « Hayward v. Barker, 21 N. E. R. * In re Ashton (1892),1 Ch. 83,87. An 143, 113 N. Y. 366. C/. § 342. immediate devise to " my nephews "^ Geery v. Skelding, 27 Atl. R. 77, and nieces, the children of my broth- 62 Conn. 499. § 598.] GIFTS TO KELATIOXS AND OTHEKS. 797 mere fact that the parents of the nephews and nieces are named is not sufficient to divide them into families or sub- ckisses, nor does the naming of the several parents indicate an. intention that the nephews and nieces are to take in distinct classes jper stirpes} The statutes which have been passed in many states, designed to prevent a lapse in the case of the death of a legatee before the testator, are usually applicable to gifts to classes. But the decisions are not harmonious. In the state of Maine the courts liave held that, under a bequest to nieces as a class in equal shares, the children of those nieces who had died in the life- time of the testator, but after the execution of the will, took the parent's share, where a statute expressly provided that there should be no lapse in the case of the death of any legatee before the testator leaving descendants or relatives.^ An ex- actly contrary decision has been rendered by the courts of the state of Xew Hampshire in the case of a class gift to nephews and nieces.' A direction to divide " equally among nephews and nieces, and the children of said nephews and nieces who may then be living, so that each of the said nephews, nieces, grand- nephews and grand-nieces shall receive an equal share," means by the term " vjho shall then he living,''^ living at the death of the life tenant. A grand-niece or a grand-nephew whose par- ent had died before the death of the life tenant would not take, any more than a grand-nephew or a grand-niece who sur- vived him ; a statute providing for the taking by children of the parent's interest to prevent lapse having no application, it being evident that the testator intended his nephews and nieces and their children to take as one class.* An express provision tliat, in case of the death of a nephew or niece to whom lega- cies are given in the lile-time of a testator witliout issue, his or her share shall go to all nej)he\vs and nieces, means all iir-phews and niec('S wlio survive the testator, and not merely those of the particular subdivision or I'amily in which the de- ceased was included."' It has also been held that, in the case iMerriam v. Simonds. 121 Mass. 3 ('iimi)l)('ll v. Clark, 04 N. II. :328, lUH; CiiinpUjll v. Clark, iW N. II. ^•iH, 10 ALl. \i. 702. S.'f nntf, {5 IWS. 10 Atl. It. 702. * liiKolow v. Clapj) (.Mass., 18»«), 43 -'Mos4..i V. Allen, 17 Atl. li. «(5, 81 N. V.. K. 10:{7. Me. 208. 5 In ro Fulincstook's Estate (I'u., 'Ti'S LAW OF WILLS. [§ 599. of a devise in equal shares to the nieces of the testatrix and to the nieces of lier husband, a person who is ri^^litfuUy in both chisses of nieces cannot claim a share as a member of eacli chiss.' § 500. (lifts to brothers and sisters. — Where the testator emphn's the word hrothcr or .s/.s-A/- in his Avill, lie Avili be pre- sumed prima facie to mean his In-otlier or sister of the whole blood. But tliis presumption is not conclusive, and may Ije re- butted by inference from the context showing that he meant a half-brother or a half-sister.'^ The rules of construction which are applicable to gifts to children, heirs and next of kin as purchasers are applicable to devises to brothers, cousins, etc. Thus, a gift to A. for life, remainder to his brothers, will vest in the brothers of A. who are living at the death of the testa- tor, subject to open and let in other brothers who are born durinfj; the life of A.' It has been held, in construing: a residu- ary clause by which property is divided among the brothers and the .sisters of the testator, that he means prinuiril}'" those who arc alive at his death. Though under a statute abolisliing the common-law rule of lapse, the issue of a brother or sister who died during the life-time of the testator and after the execution of the will may take their parent's share, it is the rule that the issue of brothers and sisters of the testator who were deceased at the date of the execution of the will cannot take by represen- tation with brothers and sisters who were alive at that date.^ This was so held where the devise was to " brothers and sisters for life, and remainder to their children." '" So, also, the chil- dren, or other issue of a deceased brother, cannot be permitted to take their parent's share where the testamentary provision is expressly for the brothers of the testator, or of A., who may be surviving at the death of a tenant for life.^ 1896). 23 Atl. R 573; 10 Pa. Co. Ct. R. * John's Estate, 11 Phila. 144; Fiil- 199, affirmed. ler v. Martin, 96 Ky. 500, 29 S. W. R. 1 Campbell v. Clark, 64 X. H. 328, 315. 10 Atl. R. 702. 5 Walsh v. Blayney, L. R. 21 Jr. 2 Wood V. Mitchell, 92 N. Y. 379, 61 140; Cowling v. Thompson, L. R. 11 How. Pr. (N. Y.) 48; Leake v. Robin- Eq. 366; Barneby v. Van Tassell, L. son, 2 Mer. 363. Compare Luce v. R 11 Eq. 363. Contra, Win^Held v. Harris, 79 Pa. St. 432. AVingfield, L. R 9 Ch. Div. 658, 666. SDevisme v. Mello, 1 B. C. C. 537; <* Mullarkey v. Sullivan, 136 N. Y. Doe d. Steart v. Sheffield, 13 East, 227, 32 N. E. R 762. But in Huntress 526. V. Place, 137 Mass. 409, a devise to § 600.] GIFTS TO EELATIOisS AXD OTHERS. T9{> It is to be presumed, in the absence of indications to the con- trary, that the testator, in mentioning brothers and si:ters, means those who are leizitimatelv brothers and sisters. But the fact that a person claiming as a brother of the testator is the illegitimate son of the mother of the testator, if the fad of illtgitimaey was nnhnoicii to the testator, does not disqualify him from taking a devise to the brother of the testator, if it is other- wise apparent that the testator intended him to do so.' In conclusion it may be remarked that a statute providing that if a relative of the testator ^ to whom a devise or legacy is given shall die before the testator, leaving issue, the issue shall take the estate of the ancestor, applies to a testamentary provision for the brothers and sisters of the testator, and to the brothers and sisters of the wife of the testator.^ §600. (lifts to daugliter or daughters — Numbers incor- rectly stated by the testator. — Tlie word '"daughter" signi- fies prima facie a legitimate female descendant in the first degree from the projxjsitus, unless it clearly appears from the context and from the family relations of the testator that he meant an illegitimate child. Hence, where a testator has no legitimate daughters, but his wife had three illegitimate daugh- ters who were born before his marriage to her, and who were suljsequently acknowledged by him as his own daughters, it was held that they were entitled under a bequest to " my daugh- ters." * So, too, where a testator specifically bequeaths property to each of his illegitimate children, designating them as "my son-" and " my daughter," and their mother as " my wife," they will also take under a residuary clause directing the residue of the estate to be divided between " my children." ^ A gift to the sons and the daughters of the testator as such may, in case the common-law rule of lapse has been abolished by statute, in- clude the descendants of such as are dead at the making of the " my brothers and their lieirs " was tate, .% W. X. C. 71, 1 Pa. Dist. Ct. R. fonstru<'d to include the heirs of V.i. br Scott V. Fenoulhout, 1 Cox Ch. Mass. 85, 87, 44 N. E. R. 3 10. In this R 79. case the tostator, having desortoil liis •'Stebhing V. Walkoy, 1 Cox Ch. 11. lawful wife, inanioil M. iind lived 2.*A 2 Bro. C. C. 80. with her thirty-live years, holding 'Harrison v. HarriKon, 1 Russ. & her out to tho world a.s his wifo. In My. 72. See also ante, § 50.1. his will ho referred to a daughter of *\n Gof>ds of Howe, 3:{ W. R 48, M., by a former husband, as "my 48 LP. 74;j; Pasteuo v. Bonini, 100 bteiKiaughter," and gavo "itrovisiou 01 802 LAW OF WILLS. [§ COl. A devise to a woman who is described as the wife of the tes- tator maybe void if she liad a previous husband living, and this fact was known to /ler, thougli not to the testator, she having deceived him in that respect, w'lierc tlie property is given to her because she is his wife.^ But where a testator gave property to "his loife,'*'' who was not legally a wife, as when she married the testator she had a husband living, whose whereabouts were unknown to her and from whom she had not heard in nineteen years, it was held that, having acted in perfect good faith in contracting the marriage, having reasonable grounds for sup- posing that her husband was dead, she was entitled to receive the legacy as though she were the lawful wife of the testator.- So also a provision that a bequest to " my said wife A. shall not be considered to be in lieu of dower," but that she shall bo entitled under the law as " my widow" gives A., though she was not in fact the testator's lawful wife and hence cannot be his widoAV, the same interest in his real estate as she would have had if she were.^ These rules and principles do not apply where a person claiming a devise to the hushand or wife of the testator or testatrix has deliberately deceived him or her as to his or her right to enter into a marriage; for, where a legacy is given to a person because he is presumed to possess a particu- lar character which he has falsely assumed, and this particular character is the sole motive of the testator's bounty, the legacy and consumable stores," and the resi- See also Pratt v. Matliew, 23 Beav.334, due in tmst for the benefit of " my 338, 340. The evidence which is pro- wife " for her life, with remainder to duced to show that a testator in- two persons named who were the tended to provide for a woman with children of his lawful wife, describ- whom A. had maintained illicit rela- ing them "as my only children by tions, and by wliom he had cliildren my first wife." Held, that by "my (A. having a wife living at tiie date wife " the testator meant M., though of the will), under a gift " to the wife the will stated that the provisions and children of A.," must be clear, for her are made in lieu of " her law- convincing and cogent. Miller v. ful rights." Hardy v. Smith, 136 Miller, 30 N. Y. Supp. 116, 79 Hun, Mass. 328, 331. In the last case the 197; Giles v. Giles, 1 Kee, 085, 093. testatrix, having a husband living at And cf. Lepine v. Bean, L. R. 10 Eq. the date of the will, left a will de- 100. scribing herself as " the wife of P.," i Wilkinson v. Joughin, L. R. 3 Eq. who was not her husband, but with 319, 322. whom she had been unlawfully co- 2in ^q Petts (1859), 27 Beav. 576, habiting. She also devised property 578. to "7H?/ husband," which P. was per- ^Dicke v. Wagner, 95 Wis. 200, 70 mitted to receive as her "husband." N. W. R 159. § 602.] GIFTS TO RELATIOXS AND OTHERS. 803 is void, as the law will not permit a fraud to be perpetrated. Accordingly, where a married woman executed a power of ap- pointment in favor of a man who was by her supposed to be her husband, but who was not lawfully such, she having been deceived by his statement that he was an unmarried man, made at the time of the marriage to him, though he had another wife living, the execution of the power was declared void.^ Again, where a man devised money to a woman to whom at the date of the will he was engaged to be married, designating her as " my wife," and died before the marriage was consummated, she was entitled to receive her legacy, Avhere it conclusively appeared that the gift was not upon a condition that she should marry him.- § 60'2. From what date the will speaks as respects a devise to a Inisband or wife. — -Under the rule that where a testator refers to an existing state of things, or speaks of an existing relationship between persons, the will speaks as of its date and not as of his death,' a devise to A., and "at or after his death to his icife^'' * or " to the widow of my son -4.," the son being then alive,' is presumed to refer to the woman who is the wife of A. at the date of the execution of the will.^ This is always the rule in the construction of a gift to the wife of A., where that person has a wife who is alive at the date of tlie execution of the will, though at the death of the testator tho husband is dead and she has become the Avife of another dur- ing the life of the testator. If the person to whose wife a dc- 1 Kennell v. Abbott, 4 Ves. 802,804, vivinp; her," he should receive a life ~-ij9. income, the testator meant only tlioso - Schloss V. Stiebel. G Sim. 1, 5. See persons wlio at tiie date^ of the exe- alsfj Rishton v. Cobb, 5 Myl. & Cr. cution of the will were the hus- \\T); Doe d. Gaius v. Rouse, 5 Coui. bands of his dauj^hters. Johnson v. liench, 422. Webber, 33 Atl. \l, 50(5, 65 Conn. 501. * Ante. ^ 15. The phrase, " leaving a husband sur- * Van Syckel V. Van Syckel, 51 N. viving," refers to the husband wl»o J. Eq. 104, 20 Atl. R. 15G; Anschutz i.s living at the date of tiie will, v. Miller, bl Pa. St. 212. Humphrey v.AVinsliip.28 Hun (N. Y.), »Ii«-«-rs v. Narramore, CI Coim. l.J, :}:!. And cf. 10 MoJ. 371; 8 Vin. Al>. 22 Atl. R \m\. 30i), tit. Dev., pi. 2; I'h.wden, 344. A.; * Where the t<»stator gave land to Nablock v. Garrett, 1 Rush. & My. his marrii'd daughters, and in a sub- (J'iW, (i30 (a devise "to ?»// wife'^); M-quont clauM! provided that if either Hryan's Trusts, 2 Sim. (N. S.) 103; ■ f tho daughters (naming them) Franks v. Booker, 27 Bcav. 035. ohould die " leaving u husband sur- SOi LAW OF WILLS. [§ G02. vise is given has no wife at the date of tlic execution of the will, the legacy will go to her Avho may be his wife at the death of the testator, in the absence of a clearly expressed intention to the contrary. If the person whoso wife is referred to has no wife either at the date of the will or at the death of the testator, a devise to his wife may go to tiiat Avoman who shall, after the death of the testator, become his wife. A devise "to my son and his wife," and, on the death of the " widow of my son," then over, means the son's wife at the date of the execu- tion of the will, though they were divorced in the life-time of the testator and the son married another.^ But where the will directs that, if A.'s wife shall survive him, she shall be paid an annuity during her widowhood, and A. and his wife are di- vorced, the annuity to the wife fails; for, as the latter can never he Ah luidow, she cannot take the annuity.^ For the same reason a provision for A., if she shall become a widow, is void where A. at the testator's death is not a lawful wife, which, it may be assumed, she must then be in order to fulfill the con- dition mentioned,'' The same rule is applied to a gift of an annuity during widow^hood to the wife of the testator, when his marriage was annulled, after execution, upon the grounds of the impotency of the testator.* But it seems that a life in- terest given to " any husband xoiih lohoni A. mirjht intermarry, ifhs should survive ^.," may be claimed by one who was her husband at the date of execution, though he was divorced from A. before the death of the testator.^ A legacy given abso- lutely to a woman whom the testator describes as the widow of A. is not void merely because the woman, though she is a widow at the date of the execution of the will, subsequently 1 Davis V. Kerr, 38 N. Y. S. 387, 3 BuUmore v. Wynter, id. Disapproved App. Div. 322. iu Hitcliins v. Morrieson, L. R. 40 Ch. 2Peppiii V. Bickford, 3 Ves. 570; D. 30. A womau who lias procured Radford v. "Willis, L. R. 7 Ch. 7; Frank a divorce from her husband is " sole V. Frank, 3 Maule & Sel. 25, 8 Taunton, and unmarried " in the sense of these 468; In re Lyne's Trusts, L. R. 8 Eq. words as they are used in a direction 65; Longwortii v. Bellamy, 40 L. J. to pay "to A if she be then sole and Ch. 513. unmarried." Lessingham's Trusts, s In re Lowe, Gl L. J. Ch. 415, 416. L. R. 24 Ch. D. 703, 49 L. T. 235, 33 *ln re Boddington, L, R. 22 Ch. D. W. R. 116. See §§ 506-508 for cases :597, 52 L. J. Ch. 239, 48 L. T. 110, 31 illustrating estates during widow- W. R. 449, W. N. 1884, 12. hood. 5 In re Bullmore, 52 L, J, Ch, D, 456; § 603.] GIFTS TO KELATIOXS AND OTHERS. 805- marries, and at the death of the testator she is the wife or even the widow of B. The incorrect portion of the description will be rejected if she can be identified from what remains. But a legac}^ to the widow of A., " so long as she shall remain a widow," or his widow, is forfeited if she marries in the life- time of the testator, and if she is the wife of B. at the death of the testator. §603. Gifts to cousins — When class is ascertained. — A gift to the cousins of the testator, in the absence of a controlling context, includes only his first cousins, i. e., the children of his uncle or his aunt ; ^ and a gift to fit'st cousins expressly means those who are such at the date of the will,- excluding the issue of any first cousins who were dead at that time, whether the testator knew of their death or not." It has been held that first cousins once removed may share in a provision for the second cousins of the testator if there are no second cousins at the date of the will.* The testator may, by the j^cculiarity of his lan- guage, put a particular definition on the word "cousins." So, where he gave property to " my cousins living at my death, and the children of my cousins then dead," but expressly excluded from taking under his will the only persons who were or could, in the ordinary course of events, have been his cousins, the chil- dren of those excluded persons could not take under the pro- vision for children of deceased cousins.'* So, too, a gift to the first and second cousins of the testator as classes will comprise all persons who are within the sixth degree of relationshi)> to him, as are second cousins, and the gift will comprehend groat- nieces and first cousins once and twic.e removed.^ ' Stephenson V. Abingdon, 31 Boav. ins at the date of the will witli tlie oOo; Caldecott V. Harrison, U .Simons, issue of first cousins dying hvtu-ccn 407. See also In re Taylor. L. li. \ii tiie execution of the will and tlie Cli. D. 2.",, TjO L. J. Ch. 17:J. deatli of the testator. I lowland v. ^Rowland v, Shide, 153 Mass. 41.j, Slade, 155 Mass. 415, 410, 2'J N. E. R. 410. c;ji. 3 White V. Mass. Institution, 50 N. ^Slade v. Fooks. OSini. 380. Coutra, H R. 512 (Mjisa, 1897); Sandursrjn v. Corporation of Bridgonortli v. Col- Bayley, 4 My. & Cr. 50; Sto Townshend v. Windliam, 2 Vern. quitted the house of the testator in 546. the performance of his duty. Herbert "' Armstrong v. Clavering, 27 Beav. V. Reid, 16 Ves. 481. 226. 2 Metcalf V. Sweeney, 17 R. I. 213, 8 Marcus v. Marcus. 56 L. J. Ch. 830, 21 Atl. R. 364. So, also, of a coach- 57 L. T, 399. This condition will be man hired with a team. Chilcot v. strictly construed. In re Benyon, 53 Bromley, 12 Ves. 114. L. J. Ch. 1165. 3 Ogle V. Morgan, 1 De Gex, M. & » Darlow v. Edwards, 1 H. & C. 547. G. 359; In re Drax, Savile v. Yeat- man, 57 L. T. 475. § 605.] GIFTS TO RELATIONS AND OTHERS. 807 servant who had been dismissed by an imauthorizod person, where the testator, being a lunatic, had to give up house-keep- ing, Avill lose her legacy,^ ^ 605. Gifts to persons of a particular name. — A gift to a person of the name of A., whether the name be that of the testator or of some one else, is a gift upon a condition that the person is of that name.- Such a condition as this, being a con- dition precedent, means that the person's surname must cor- respond precisely with the name designated by the will. This is the primary meaning of the phrase " of the name of A.," but these words have a secondary meaning. To be of the name of A. may signify in its secondary'- sense to be of the family, or blood, or stock of A. Thus, a woman whose maiden sur- name is A. is of the name of A. in the latter sense, though, upon her marriage, her surname has ipso facto become B. "Where a testator adds the qualification of name to a gift to his next of kin, or to his relations, requiring that they should be of his own name, it is obvious that he has restricted the meaning of the term "next of kin" or "relations," and that the word "name" is nsed in its primary sense as signifying those persons whose cognomen or surname is identical with that of the testator.^ In a case which was decided by Lord llard- wicke, the secondary meaning was applied to the term. In that case the testatrix gave her estate to " her nearest relations of the name of Pyots," in fee. AVhen she died, three persons act- ually possessed the surname who were equally related to the testatrix, and there was another equally related to her and married, and who, at the death of the testatrix, was not of the name of Pyot. The heir at law of the testatrix was her nephew of the name of P^'ot, though he was not related as nearly as the other claimants. He contended that either the devise was void altogether, or that he, being the heir at law of the name Pyot, had been designated by the testatrix as her " nearest re- lations" of that name. The court, in holding his chiim un- ' In n; Hartley's Trust, W. N., 4 ily of the testiitor. Bootli v. Dean. 1 May. IHIH, lOJ; In re Sliarland Myl. & K. ."idU; Jilackwtll v. rciiiiaMt, (Kemp V. Uosey. IHUf!), 1 Cli. 517. A ilare, 511. tfift of one ycar'a wmjiH ^^ocs to serv- ^ j; 5HJ. fintH hired !>}/ tJid year iiiilif, iiui\ not 3,j,,i,s()n's Caso, Cro. Kliz. 57(U to thoHO who were hircil l)y the week, Lei^h v. l.ei;,'h, 15 V'cs. \)2; Uoii v. an'l wlio <]«» n'>f re^-iMc uiih lln' fam- Smith, Cro. Eliz. 5!J2. 808 LAW OF WILLS. [§ G05. founded, determined that the expression " the Pyots " described a particular stock or family, but not the whole family, for the words ''nearest relations" limited it, and, the property dis- posed of being personal property, " relations " could not mean lieir. The brothers and sisters of the testatrix, married and unmarried, should take equally among them, the change of name by marriage not being material.^ This case was fol- lowed in a later case,^ where the provision was that the estates of the testator should be kept in the Westcrman's name, and in another case' where the provision was that, in the event of the life tenant dying without issue, the property should be di- vided amongst all the next of kin of the surname of Crum]), and a lady of that family was permitted to take, though not of the surname of Crump, But a woman who was originally of the name of A., but has assumed her husband's surname upon her marriage, has no claim under a devise to persons of the name of A., if that term is to be taken in its primary sense; and the same rule would seem to apply where the person who claims a legacy has changed his name by legislative enactment. The whole matter depends upon the intention of the testator. On principle, whether a person who has his name altered, either by judicial proceedings or by legislative enactment, to correspond with the name designated, would be entitled to a legacy, may well be doubted. Where a devise was to the nearest himlred, heing male and of the name and Tjlood of the testator, it was held that a man of the family and blood of the testator, but not of his name, had no title, though he had ob- tained a license from the king permitting him and his issue to assume the name in question.'* 1 Pyot V. Pj-ot, 1 Ves. 335. » Carpenter v. Bott, 15 Sim. GOG. 2 Mortimer v. Hartley, G Excb- 47. * Leigh v. Leigh, 15 Ves. 93. CHAPTER XXX. GIFTS TO THE HEIRS AND THE NEXT OF KIN AS PURCHASERS. 606. "Words of limitation and words of purchase distinguished. 607. Definition of the word "heirs" wlien used as a word of purchase. 608. The inadmissibility of parol evidence to vary the mean- ing of the word " heirs." 609. An heir takes as a purchaser land devised to him by his ancestor. 610. The period at which class is to be ascertained wliere the gift is vested. 611. Remainder to heirs after a life estate in one who is an heir at the death of the testator. 012. Gifts to heirs of living per- son — Heirs apparent or pre- sumptive — Recognition of ancestor as living. 613. Devises to heirs peculiarly de- scribed — Heirs of a partic- ular nama 614. The construction of a devise to the "lieir"' in the singular. CM The meaning of the term "right heirs." CIG. Circumstances under which the word " heirs " is etjuiva- lent to the word "children." 617. Heirs may mean children in a devise in d'o, and, if tlie devisee die "witliout lieirs," then over. 618. When the word "heirs"' means devis4'<'s or lfg:it«*<'.s. GIO. The won! "lieirs " in gifts of I>erwjii!il pro[>erty iiiciins next of kin. § 620. Gifts of personalty to the heir or heirs asj^ersona clcsignata. 621. Personal and real property blended in a gift to the heirs. 622. Whether a husband or wife is included in the word "heirs." 623. "Whether heirs, when purchas- ers, take per stirjyes or per capita. 624. "When a distribution per stir- pes is favored. 625. Statutory modification of the laws of descent. 626. "Next of kin" simpUciter in- cludes only nearest blood relations. 627. Construction of the words "next of kin" when the statute of distribution is re- ferred to. 628. Next of kin specifically de- scribed as of a particular name or sex — Gifts to wortliy next of kin. 629. When the next of kin are to be ascertained as a class iu case of immedijvte gifts. 630. Wlien ascertainable as a class if the vesting is postponed. 631. Ascertainment of the class when a life estate is given to one of the next of kin. 633. Immediate gifts to tlio next of kin of other persons tlian tlio testator, 633. rrcsumption that testator iiH'ans legitimate next of kin. 810 I.AW OF WILLS. [§ 606. § GOG. Words of limitation and words of pnrcliase distin- i^uisluMl. — In a gift to the "heir" or " lieirs," cither of the testator or of some other person, the word "heir" may be a word of limitation or a word of purchase. If the heir takes as a purchaser under a will, he takes an interest in his own right; that is to say, he takes not through or by descent from his an- cestor. The heir takes under the will, without any reference to any previous existing estate in his ancestor. Thus, in the case of a limitation to A. for life, and after his death to his then living heir or heirs, the heir takes a separate and distinct estate under the will as a purchaser, and not by descent from his ancestor.^ AYhere these words are words of purchase, the ancestor has no power of alienation which will affect the inter- est of the heirs; nor can he charge or incumber any estate •which they are to take under the will. On the other hand, if the w^ord "heirs" in such a disposition is to be construed as a word of limitation and not as a word of purchase, the heirs take by descent from their ancestor, and their right and interest may be defeated or incumbered by his conveyance of the fee-simple. In the one case they are orig- inal and primary beneficiaries under the will, taking an interest which, whether contingent or vested, is alienable by them. In the other case their interest is mediate and secondary, and neither vested nor contingent; being in the latter case a mere expectation of inheriting from their ancestor, which is wholly subjected to be defeated by his conveyance of the fee-simple.- 1 But see § Go5 ct seq. as give the estate limited by the term 2 The explanation of Mr. Preston in 'to the heirs' originally in their 1 Preston's Estates, 3G, is so lucid and oicn right and as the persons answer- satisfactory that it is Inserted at ing that description, and not through length. "The expression 'words of the medium of, or by descent from, limitation' is always used in contra- any ancestor; so that these heirs are distinction to the expression 'words the purchasers under the appellation of purchase.' By the former expres- of heirs, and are to take without any sion it must be understood that the reference to a previous right in their interest limited by these words is ancestor, in whom the estate to pass not originally given to the heirs, but by the limitation to the heirs cannot to their ancestor, either mediately, vest in any possible event. A con- immediately or eventually, so as to sequence is tiiat the ix)wer of aliena- create in him an estate or interest of tion commences in the heirs and not inheritance descendible to his heirs in the ancestor; and tlie heirs, un- of the given description. By the lat- less their interest shall be defeated ter expression is meant such words under the rules applicable to con- § GOT.] GIFTS TO HEIRS AND NEXT OF KIN. 811 §607. Definition of the uonl "heirs" when used as a ■word of purchase. — Gifts of property, both real and personal, to the heir or heirs, either of the testator or of some other per- son, he being either living or dead, are of frequent occurrence in wills, particularly in those which are written without pro- fessional assistance. In the majority of cases of this descri^v tion, the word "heir" or "heirs" is used in the most Tasue and general sense. The difficulty of construing the word is very frequently increased by the fact that the testator, in pen- ning his Avill, has added to the word other terms or phrases, with the intention of mal'ing his meaning clearer or more ap- jxrrcnt, but which only tend to obscure it. Under the general rule that technical words are to be taken in their ordinary sense, in the absence of language showing that they are used in any other, the word " heirs " will be taken to mean the per- son or persons upon whom, according to law, real estate de- scends in case the person who is mentioned as the ancestor had died intestate. Where the word "heir" or "heirs" is used as a word of purchase, and not as a word of limitation (which distinction has been explained in the last section),' its meaning is liable to be controlled, enlarged or limited by the words of the context.^ tingent remainders, ■will not be liable to the charges or bound by the con- veyance of tlie persons who in point of fact and in reference to other l)roperty may be their ancestors.'' 1 Ante, i 600. -Leake v. Watson, GO Conn. 498, riOT; Gold V. Judson, 21 Conn. 016; liand V. Butler, 48 Conn. 293. 298; Jacksfjn v. Alsop, 34 Atl. R 1101, 07 Conn. 2.J9; Ruggles v. Rmdall. 38 Atl. R. 887, 70 Conn. 44; liawson v. Kaw- i^>Xi, .Oi 111. 02: RicJiards v. Miller, 02 111. 417; Blan1: PeacfKjk v. A I bin, 39 Ind. 2.'); Davis V. Taul. Dana, ."il, 52: P'urenes V. Severtsen (Iowa, \hmh^, 71 N. W. li. 19«; Ixjrd V. liourne, 03 Ma 308 (" .stat- utory heirs"); SynuneH v. Moulton, 120 MuHs. 313, 3U; Hal.y v. Moston, 108 Ma.H.s. 577; Miiiot v. llarrJH, 132 Jlass. 528. 529; Fa bens v. Fabens, 141 Mass. 395, 400; Lincoln v. Aldricli, 21 N. E. R. 671, 149 Mass. 368; Proc- tor T. Clark, 154 Mass. 45, 48: Lincoln V. Perry, 149 Mass. (1889), 368, 373; Lawrence v. Crane, 158 Mass. (1893), 392, 33 N. E. R 605; Smith v. Har- rington, 4 Allen (Mass.), 566; Clark V. Cordis, 4 Allen (86 Mass.), 466,480; Loring v. Thorndike, 5 Allen (87 Mass.), 257, 209; Lombard v. Boyden, 5 Allen, 249; Richardson v. Martin, 55 N. II. 45; Wood v. Keyes, 8 Paige (X. Y.. IHIO), 305: Campbell v. Haw- don, 18 N. Y. 412. reversing 19 Barb. 494; Cushman v. llorton, 59 N. Y. 149, 151; In ro Allen. 151 N. Y. 243. 45 N. E. R 554; Tillman v. Davis, 95 N. Y. 17, 25-30: Piatt v. Mickle, 32 N. K R 1070. 137 N. Y. 100; Johnson V. Brasinglon. sc, Hun. 100. 109; Rog- ers v. Birckhouse, 5 Jones' Eq. (58 812 LAW OF WILLS. [§§ COS, 009. §608. Tlie iiiadiiiissihility ofpsirol evidence to vary the meaninp: of the word "heirs." — To justify the court in con- struing the word " heirs " in any other than its strict, ordinary and toclinical sense, the intention of tlie testator to that effect must chMrly nj^iioar.^ The intention t(^ depart from the tech- nical meaning of the word must be a]iparent from the context of the will, for parol evidence is never received to vary the meaning of the word." Thus, it cannot be shown by parol evi- dence that the testator wished to include the husband of a dev- isee in a devise to the heirs of said devisee,^ and the strict meaning of the word "heirs" will l)o adhered to, though the testator or other person whose heirs are mentioned had in fact but one heir."* But parol evidence of the circumstances of the family of the person wdio is the ancestor may ahvays be re- ceived where it is a question of identifying those who claim the testamentary provision for heirs as a class. § 609. An heir takes as a purchaser land devised to liim hy his ancestor. — In the absence of a statute repealing the rule, it is a rule that, where an estate in land which is devised by a man to his heir or heirs is precisely the same in its char- acter and amount as the heir or heirs would have taken by descent, the devise, as such, is void. The heir or heirs will then take that estate by descent, and not as purchasers under the will of the ancestor.^ This ancient and w^ell settled rule N. C, I860), 304; Porter's Appeal, 45 -Love v. Buchanan, 40 Miss. 748; Pa. St. 201: Eby's Appeal, 50 Pa. St. Aspden's Estate, 2 Wall. Jr. C. C. 3G8; 311; Clark v. Scott, 67 Pa, St. 446; O'llara on Cons. ofWills, 297. Surges V. Tiiompson, 13 R. I. 712; 3 Lincoln v. Aldricli, 21 N, E. R Evans v. Ilarllee, 9 Rich. (S. C.) 501; 671. 149 Mass. 368. Roclielle v. Tonikins, 1 Strobh. (S. C, * Rand v. Butler, 48 Conn. 293. 29S. 1846), Eq. 114; Seabrook v. Seabrook. 5o Black., p. 242; Co. Lit. 22 B.; McMuUen's (S. C, 1841) Eq. 206; Ayd- 4 Kent, 507; 1 Powell, 414, 427; Raw- lett V. Swope (Tenn.), 17 S. W. R. 208; son v. Rawson, 52 111. 62; Cribben v. Aspden's Estate, 2 Wall. Jr. (C. C.) Cribben, 136 111. 609. 613; Ellis v. 368; Boraan v. Boman. 49 Fed. R. 329, Page, 7 Cush. (Jlass.) 161, 163: How- 1 C. C. A. 274; Gittings v. McDer- ard v. Howard, 19 Conn. 313, 318; niott, 2 My. & K 69; De Bouvoir v. Whitney v. Whitney, 14 Mass. 88.90; De Bouvoir, 3 H. L. Cas. 524; In re Parsons v. Winslow, 6 Mass. (1810), Rootes. 1 Dr. & Sm. 228. 12 Lawy. Rep. 178; Sedgwick v. ]\[inot, 6 Allen (88 Ann. 721, 13 Lawy. Rep. Ann. 46; 4 Mass., 1863), 171, 173; Seabrook v. Sea- Kent, 222. brook, 10 Rich. (S. C.) Eq. 495, 508; 1 Gold V. Judson, 21 Conn. (1852), Williman v. Holmes, 4 Rich. Eq. (S. 616; Rand v. Butler 48 Conn. (1881), C, 1850), 475; In re Root, 81 Wis. 263. 293, 298. 266; Barnitz v. Casey, 7 Cranch, 456; § 009.] GIFTS TO DEIRS AND NEXT OF KIN. 813 of the common law is applied, in the absence of a statute, to all devises by the testator to his heir or heirs, whether he shall designate such person or persons by his or their names, or whether the provision is for them simply as his "heirs," "his right heirs," or " legal heirs ; " and also where he in his will orders his lands to be distributed as though he had died in- testate.^ The rule is based upon the theory that a title by descent is of more advantage to the heir than is a title by purchase ; for by the former title the right of entry is cut off from any one who may have claimed it, and an heir who takes by descent may claim the benefit of a warrant v contained in a conveyance to his ancestor. It is immaterial that the testator shall, after creating one or more intermediate estates, give to his heirs a so-called remainder in fee after a life estate in a stranger, or on the termination of an estate tail, or an executory devise on a fee defeasible on a definite failure of the issue of the prior taker, or an estate after any future interest or executory de- vise.^ Kor is it material that, after an estate in fee given by will to his heir, the testator provides that it shall go over to another upon the happening of a contingency, as, for example, on the death of the heir during his minority.' The fact that the property which is devised to the heir of the testator is charged with the payment of the debts of the testator, or with legacies* or annuities,'^ does not affect the ap- plication of the rule that the heir shall take by descent.^ But in order that it shall apply, it must be shown that the testator has given to his heir, by the devise, an estate in his land of pre- cisely the same tenure, quality and quantity as the heir would have taken by descent had not the will been made.^ In l^ng- land^ and in some states the rule of the common huv, that an Smith V. TrigKS, 1 Str. 487; Scott v. < Clarke v. Smith, Lutch. 792, 1 Scott, Amb. (1759), asa Salk. 241, Cro. Eiiz. S:V.l. ' 2 Preston on Estates, 17. * Emerson v. Inchbird, 1 Ld. R;iy. 2 Ellis V. PaKe, 7 Ciwh. (Ma.s.s., 1851). 728. 101, Hy.i; Manbrid^e v. Plummer, 2 "Bioderiiian v. Seymour, 3 I^-av. My. & K- 93; Prebton v. Holmes, 308, 371; Ciiaplin v. Leroux, 5 ]\I. & Styles, 148. Sel. 1J3. 3I)oo V. Timins, 1 Bar. & Aid. 530, Mollis v. Pa^'O, 7 Cush. (01 Mass., 5J9; llindo v. Lyon, Dyer, 124, 2 1851). 101. 104; Parsons v. Winslow, Leon. 11, 3 id, 70. Mass. 109, 177. »3&4\Vm. IV, c. 100, ij 3. 8U LAW OF WILLS. [§ CIO. heir takes land devised as by descent, is modified by statute. Thus, in the state of New York, a direction that the real and pei*sonal property which is devised shall, at the termination of 11 life estate in it, be divided according* to the statutes govern- ing the descent of such property, gives the heirs of the testator vested remainders in fee.^ § ()10. The period at which class is to he ascertained Tvlicre the gift is vested. — In the absence of a clear indication of a contrary intention, it is the rule that the words " heir," " next of kin," or " relations," in a devise by the testator to his " heirs," " next of kin," etc., mean those who are such at his death. This is usually the rule if the devise to the heirs is vested, though an intermediate estate is given which postpones the possession. Their interest vests at once, though the testa- tor has given a life estate to another.'- ]f a gift by the testator is in remainder to the heirs of another, the testator will be pre- sumed to mean those who are the heirs of that person at the time of his death, and the remainder is therefore contingent durinir the life of the ancestor.' 1 Hersee v. Simpson, 48 N. E. R. 890, 154 N. Y. 49G, 4G N. Y. S. 7o5; Lawtou V. Corlies, 127 N. Y. 100, 107. 2 Bunting v. Speek, 41 Kan.'424, 21 Pac. R. 288 (1889); Abbott v. Brad- street, 3 Allen (Mass.), 587,589; Pink- liam V. Blair, 57 N. J. Eq. (1897), 226, 232, 1 Am. Prob. R 114, 120, 123; Mc- Daniel v. Allen, 64 Miss. 417. 1 S. R. 356; Smith v. Harrington, 4 Allen, 566; Miuot v. Harris, 132 Mass. 528, 529: Childs v. Russell, 11 Met. 16; Knight V. Knight. 3 Jones (N. C), 167, 169; Aspden's Estate, 2 Wall. Jr. C. C. 368; In re Tucker's Will, 6-3 Vt. 104, 21 Atl. R. 272; Doe v. Lawson, 3 East, 278; Bird v. Luckie, 8 Hare, 301; Philps v. Evans, 4 De Gex & S. 188; Doe d. Pilkington v. Spratt, 5 Har. & Ad. 731 ; In re Ford, 72 L. T. 5; Johnson v. Webber, 33 Atl. R. .506, 65 Conn. 501; Rand v. Butler, 48 Conn. 293, 299 (for life to A., re- mainder to lawful heirs of testator); Ingraham v. Ingraham, 48 N. E. R. 561 (111.); Childs v. Russell, 11 Met. (52 Mass., 1846), 16, 23; Brown v. Law- rence, 3 Cush. (57 Mass., 1849), 396, 397; Buzby's Appeal, 61 Pa. St. 114; Wood's Appeal, 18 Pa. St. 478; Rein- ders V. Koppelman, 68 Md. 482; Her- see V. Simpson, 154 N. Y. 496. 48 N. E. R. 890; Walker v. Donohue, 38 Pa. St. 439. *Rogei*s V. Ogbourne, 37 Ala. 178; Healy v. Healy, 70 Conn. 467, 39 Atl. R. 97; Vinson v. Vinson, 33 Ga. 454; Read v. Fogg, 60 Me. 479; Preston v. Brant, 96 Mo. 552, 10 S. W. R. 78; Ryan v. Monaghan, 99 Tenn. 338, 42 S. W. R. 144; Reinders v. Koppel- man, 68 Mo. 482; Persons v. Snooks, 40 Barb. (N. Y.) 144; Knight v. Weatherwax, 7 Paige (N. Y.), 182. Thus, a gift to A. and her husband for their joint lives, but at her death to be divided amongst her heirs, mean.s, where she survives her hus- band, her heirs at tliat time. Rich- ardson v. Wheatland, 7 Met. (Mass.) 169. The rules of the text regulating the construction of the word " heirs " §611.] GIFTS TO HEIRS AND NEXT OF KIN. 815 § 611. Keiiiainder to heirs after a life estate in one who is an heir at the death of testator. — Under some circum- stances, where a life estate precedes a gift in a will to the heirs or next of kin of the testator, it may appear that the testator intended to include among his heirs such persons only as would answer to that description at the termination of the life estate. This question frequently arises Avhere a testator gives a life estate to A., who^ at the death of the former^ is his sole heir or nearest of kin, and a remainder in fee to his heirs or next of kin, to vest in possession at the termination of the life estate. It would seem that the facts that the first taker was sole heir of the testator at the time of the testator'' s death, and that he gave a remainder to his heirs, would indicate that he meant such persons to take as heirs who would have been his heirs had he (the testator) survived the life tenant. This has been held in man}' cases.^ Thus, where a testator gave his daughter a life estate with a remainder at his death, " as though I died intes- are based upon the general principle sion. If A. is alive at the death of that the law favors an early vesting, the testator, a devise to his heir or If, from the context, it is plainly ap- heirs is an executory devise and will parent that tlie testator meant to vest in those who may be liis heirs give an immediate vested gift to his at his death in the future. But where own heirs, tlie estate given will vest a life estate is given to anotlier and in those persons who, at the death of remainder to A.'s heirs, it is a contin- the testator, form the class heirs, in gent remainder which vests in the spite of the fact that their posses- heirs of A. upon A.'s death during sion may have been postponed. The the prior life estate. A devise of an remainder to the heir or heirs, hav- estate "for the use, benefit and be- mg vested, is descendiljle and de- hoof of my daughter . . . during visable, and cannot be defeated by her natural life, and for tlie use of tlie fact tliat tlie person or persons the heirs of my said daugliter after who are the heir or heirs of the tes- the death of my said daugiitcr," cre- tator at the termination of tlio life ates a contingent remainder in the heirs of tlie daugliter, which does not become vested until her death; it appearing that the will was drawn by one wlio clearly understood the meaning of the terms employed, iind there being nothing to indicate that tiio won! "heirs" was not used in its technical sense. Wallace v. I\Iiii(ir, m Viu r).-.o, 10 s. i<:. li. viw. '.Jones v. Colbeck, 8 V«'S, Jr. :H: Lfuig v. Hlaclv-all, \i Ve.s. 18(5; Hutlcr V. Hiishw(-ll. :{ .My. it K. 'iWi. i'f. IJiideii V. Hewlett, 'i, My. & K. W. estate are not the same as those who occufiy that relation to him at his d«5ith. Wliere tiie devise is to tiio heir of another, as to the heir of A., that person shall take it who is the heir of A. at A.'s deatlu If A. shall die during the lifetime of the testa- tor, the [MTsfjn who is then his heir and wlio aisfj survives the treH'-iit vested int'Test, which al.so vf«ts in [K>ss(r>iHion unless the; t^'stator ha« expressly iKjst{MJiied the jK^sse*- S16 LAW OF WILLS. [§ Gil. tate," it was held that he meant as though he died intestate after the (huighter, and consequently that liis lieirs at that time wouUl take. His daughter, the life tenant, who was his sole heir at his death, was therefore excluded.' But where the tes- tator devised land in trust for his son D. " for and during the term of his natural life," and on the death of the son the tes- tator gave the said property to "wy {the testato)'''s) own right /leif's" the court held that at once, at the death of the testator, the remainder vested in the then living heirs of the testator. The son and life tenant was the sole heir of the testator at his death, and when he subsequently died intestate and childless, the property went to his heirs rather than to the heirs of the testator living at the death of the son.- But the cases are by no means harmonious on this point, and several hold that the fact that the previous estate is given ex- pressly to the heir, to \vhom is also given the remainder, does not prevent the operation of the general rule that the word will be construed as meaning those ' who are heirs at the death of the testator.* "Where the testator, in the year 1830, gave See also Donohue v. McNichol, 61 Pa. St. 73; Heartl v. Read, 169 Mass. 216, 47 N. E. R. 778; and cf. contra, § 631. 1 Welch V. Brimmer, 47 N. E. R. 699, 169 :Mass. 204; Pierce v. Hubbard, 152 Piu St. 18, 31 W. N. C. 185; Heard V. Read, 47 N. E. R. 778, 169 Mass. 216; Forrest v. Porch, 100 Tenn. 391, 45 S. W. R. 676. 2 In re Kenyon, 17 R. I. 149, 20 AtL R 294. 3 Tlie principle of construction which was applied in Jones v. Col- beck, 8 Ves. Jr. 38, where the devise was to a daughter of tlie testator for life, and upon tlie decease of the said daughter the fund was to be dis- tributed "among the relatives" of the testator, may be applied to a gift to the heir or heirs of the testator after a life estate in one who is his sole heir at his death. The court in that case excluded the personal rep- resentative of the daughter and as- certained the class "relatives" as it existed at her death- In another case (Briden v. Hewlett, 2 My. & K 90), where the testator, giving a life estate to his mother with a power of appointment of the fee by will, and a devise in default of appointment " to such person or persons as would be entitled to the same by the statute of distribution," and the mother was the sole next of kin at the death of the testator, the court observed: " It is impossible to contend that this testator meant to give the property absolutely to his motliei*. because he gives it to her for life with a power of appointment. In case of her death without a will, the testator gives his property to such person or persons who would be entitled to it by virtue of the statute of distribution. En- titled at what time? The word ' would ' imports that the testator in- tended his next of kin at the death of the mother." ^ In the English case of Wrightson V. Macauly, 14 Mee. & "Wei. 214, a life estate was by the testator given § 612.] GIFTS TO HEIKS AND NEXT OF KIX. 817 land to his daughter and her husband, but, if the daughter should die without issue surviving, the land to go to the heirs of the testator, and the daughter died in 1884 without having had and without leaving issue, the court held that the testator meant those who were his licirs at the time of his death. Hence, as the daughter was sole heir of the testator, she took the fee in either event.^ So, too, where the testator says, " I give my prop- erty to my legal heirs, in the same proportion as they would have inherited if I had survived my wife," giving her in the will a life estate, he will be conclusively presumed to mean those who would have been his heirs if he had died immediately after his wife.- And Avhere the testator devises land to his wife for her life, and after her death to be equally divided among his and her heirs, he means the estate to vest in those of his heirs who survive the wife.' § 012. Gifts to heirs of living person —Heirs apparent or presumptive — Recognition of ancestor as living. — In strict- ness of language, no one is the heir of a living person, under the well-known maxim '■'■Nemo est hares vlveyitis.^'' Hence, if the testator shall devise land to the heir or heirs of A., who is living at the execution of the will, and is mentioned in the will as living, the devise, if we take the word " heirs '' in its strict and technical sense, will be void.* In such cases it may appear from the context of the Avill that the testator did not mean to use the word in its technical sense, but that he meant it in to his son, who was his sole heir. The conveyance of the property should testator then, after several int«r- be made to the daughter at the deatli mediate estates in remainder, gave of the testator. Boydell v. Golight- the foe to "his own rUjht heirs, and ley, 14 Sim. 327. his, her and their heirs and assigns ' Stokes v. Van Wyck, 3 S. K R, forever." When it became necessary 337 (iyH7), 83 Va. 724; In re Kenvoii, to construe this will, after the de- 17 R. 1. 149 (IWJO). 20 Atl. R. 2!»4; Doe termination of the several remain- v. Goodfn, (5 Iloust. (Del.) o!»7. ders, the court held thata remainder ^pe^k v. Carlton. 154 Mass. 231. 234. in fee vestfd in the son of the testator ^Bisson v. West R Co.. 38 N. K R. at the death of the latter. S<», t«x». in 104 (1894). 143 N. Y. 125: IJardy v. Kawlinson v. Wans, 9 Hare. 673, Gage. 60 N. H. 582 (1891). Contra, when- property was given intrust for Walker v. Dunsljee, 88 Pa. St. 439 the daughter of the Uistator, who was (IMdl). See also cases cited />o.sf, his wjle lieir, and rrmaindfr as she ,^ 631. should api>oirit, and in dcrauit to the M'hallonrr v. liowycr, 2 Ix.'on. 70, heirs ami aHsigns of tlw U'stator, Dyer, 99 h., |il. (il, 1 I'okf, 06. equity decreed tliat an immediate 53 SIS LAW OF WILLS. [§ G12. some otiior secondary signification. lie may have meant by "heirs of A.," whom he mentions as alive, the heirs apparent of such person, — that is to say, those who would be his heirs if he were dead.' Some of the authorities hold that, in order that the word " heirs " shall be construed to mean " heirs apparent " or "heirs presumptive," it must appear from the face of the will itself that the testator knew the ancestor was alive at the date of its ex- ecution. Parol evidence extrinsic to the will is not admissible to vary the meaning of the word "heirs." The knowledge by the testator of the existence of the ancestor is evidenced only by language in the will recognizing his existence. Such lan- guage need not, of course, be an express statement that the testator knows the ancestor is living. He may recognize him as alive by a legacy to him, as by providing a fund, the inter- est of which is to support him during his life;^ by his manner of speaking of the heirs, as when he devises property to those Avho are now the heirs of A., and he has given A. something by that name in another clause of the will;^ by a devise to the heirs of B., " who lives in the town of C. ; " * by a devise to the heirs of B. '•^now living j^"*^ or by devises to the heirs of A. and B., who, the testator states, are deceased, and the heirs of C, 1 Bacon v. Fitch, 1 Root (Conn., Goodright v. White, 2 "Wm. Black. 1790), 181; Leake V. Watson, 60 Conn. 1010; Doe v. Perratt, 5 B. & Cr, 48; 498. 510, 21 Atl. R. 1075; Strain v. Loveday v. Hopkins, Arab. 273. A Sweeney, 45 N. E. R. 20, 163 111. 603; devise to the heir of A., and in de- Durbin v. Redman, 140 Mass. 694; /aii?i o/ si<)si' of creating an estate: tail in the lin^t taker, and not OS creating an estate tail in the |M'r- Bon answering the description of heir. If the word would per se give an es- tate of inheritance to the party an- swering the description, there would be no reason for any distinction whether words of limitation or in- heritance were or were not super- added. These cases therefore prove that the daughters would not have taken estates of iniieritance as pur- chasers under the will; and it is not ])retended that their parents took more than estates for life." By Lord Cottenham in Chambers v. Taylor, 2 My. & Cr. 37G. A devise to the person or persons "who at my death shall be the heir or heirs at law of A." was held to convey a life estate. Doe d. Sums v. Garlick, 14 M. ct W. 09S. >1 Waslil). on Real rrojH'rty. 72; In re McCn-a's Kstatc, 180 I'a. St. 81, 36 Atl. R. 412. auvoir. 15 Sim. 163, 3 H. L. Cos. 524. See al.s.. 822 LAW OF WILLS. [§ 61C. gift was " to my own right heirs of the name of II. I.," the words were hold to mean the " heir at law." ' § Gl(). CirciiinstjnK'es under which tlie word "heirs " is equivalent to the word ** children." — It may appear from the context tliat the testator has used the words " heir " and "heirs," not in their strict and primar}^ sense, but in a limited sense, and as synonymous with the words "child" or "chil- dren." Cases of this sort are extremely numerous, and they may be illustrated by the following example: A testator, hav- ing several children alive at his death, devises property to them as a class in equal shares, to be enjoyed by each of them during his or her natural life, and on his or her death the share of each to go to his or her " heirs." From the equality of division which the testator has made among his children, it may well be presumed that he did not use the Avord " heirs " in its pri- mary sense, for, if he did, the share of one of his children avIio died without leaving a child would go to his brothers and sis- ters, who, in such event, w^ould be his heirs.- On the other hand, if we assume that the testator, by the w^ord " heirs," meant children, we have a remainder vested in the children of each devisee as a class, which is subject to open and let in all after-born children.* If this be so, then any of Thorpe v. Thorpe, 8 Jur. (N, S.) 871, the testator directed that the share 32 L. J. Exch. 79, 10 W. R. 778. of any beneficiary dying should " be iln re Ford, 73 L. T. 5. sold and divided among his heirs." 2 In the early case of Loveday v. the court, construing the word Hopkins, reported in Ambler, 278, "heirs" to mean children, said: '•! the testator first gave a pecuniary am at a loss to conceive why he legacy to " my sister Loveday s should direct the property to be sold heirs," and then another sum to be except for the purpose of division equally divided among the children amongst a larger class than the ten- of anotlier sister. The former, at the ants for life. He does not think that date of the will, had two children, six persons are too many to hold one of whom married and prede- and enjoy it in common, but he does ceased the testator, leaving three think it necessary to direct that children who claimed as heirs. The after their deaths it shall be sold for court held that the two legacies as- the purpose of division. Where there similated, and that the child of Mrs. is a gift of personal property to one Loveday, who survived the testator, for life, and after his death amongst took the legacy to Mrs. Love, 560: Tinder V. Tinder. 131 Ind. 381, 388; William- son V. Williamson, 18 B. Mon. (57 Ky.) 329; Turinan v. White, 14 B. Mon. (53 Ky.) 560: Hughes v. Clark (Ky.), 26 S. \V. R. 187; Morton v. Bar- rett. 22 Me. 257, 267; Bovvers v. Por- ter, 4 Pick. 19H; Ellis v. Essex Bridge Co., 2 Pick. (Mass.) 243; King v. Lit- tle, 1 Cusli. (Mass.) 430, 412; Haley V. Boston, 108 Mas.s. 579; Maguire v. Moore (Mo. Sup.), 18 S. W. IL 897; Wiggin V. Perkins. 5 Atl. R. 904. 64 N. H. 36. 38; l)<-n v. I^-iqucar. 4 N. J. Ix 301. 305; Norris v. Bi'yca. 13 N. Y. 273, 280; Taggart v. Murray. 53 N. Y. 233. 238: In re Ix)gan'K KsUiU: 30 N. R K. 4H.-,, i;n N. Y. 456. 160; Kldiidge V. Eldridge, 41 N. J. Ivj. 89, 91 ; Davis V. Davis. 39 X. J. Eq. 13; Ballentine v. Wood. 42 N. J. Eq. 552, 9 Atl. R 582; Johnson v. Brasington, 86 Hun. 104; Stewart v. Powers. 9 Ohio Cir. Ct. R. 143; Id.. 2 Ohio Dec. 219; Vannors- dall V. Vandeventer. 51 Barb. (N. Y., 1868), 137; Hard v. Ashley. 117 N. Y. 606, 614; Scott v. Guernsey, 48 N. Y. 106; Kiah v. Grenier, 56 N. Y. 220, 225; Knight v. Kniglit. 3 Jones' Eq. (56 N. C, 1856), 167; Ward v. Stow, 2 Dev. Eq. (N. C.) 509; Harris v. Phil- pot, 5 Ired. Eq (40 N. C, 1848), 324; King V. Beck, 15 Ohio (1846), 559; Bunnell v. Evans. 26 Ohio St. 409, 410; Jones v. Lloyd, 33 Ohio St. 572, 578, 580; Findlay v. Riddle, 3 Binn. (Pa., 18101. 139: Eby v. Eby. 5 Pa. St. 461; Urich's Appeal. 86 Pa. St. 386, 391, 2 W. N. C. 550; Titzell v. Coch- ran (Pa., 1887), 10 Atl. R. 9; Haver- steck's Aiipeal, 103 Pa. St. 394; Bras- ington v. Hanson (Piu Sup.). 24 Atl. R. 344; Drum v. Miller, 18 Pa. Co. Ct R 318: Holeman v. Fort. 3 Strobh. (S. C.) Eersons wim are men- ers V. Bishop, 122 ImL (1889), 51f5. 520; tionod in tiie will and who are ri/.so Fisk V. Keene, 35 Me. 349, 355; In re the heirs of the testator. It is very Moore's Estate. 33 N. Y. S. 419, 11 likely that the word "mentioned"' Misc. R 430; Mfxire v. Lewi.s, 4 Ohio by imi>lir-ation means given a benrjit. Cir. Ct 284; Kniglit v. Knight, 3 An express mention of an heir in Jones' F^[. (50 N. C, 1850), 109; New- disinheriting him would hardly con- kirk v. Huwes, 5 Jones' Kq. (50 N. C.) Htitute such a int-ntion of iiim as to 2()7; Gilison v. Gibson, 1 .Ion<'s' L. bring iiim wilhin tlie chujs of "heirs (49 N. C; 425; Vudeu v. Ilance, 1 heretofore na-nlionod." 826 LAW OF WILLS. [§619. court said, were such legatees only before mentioned as would have been heirs of the testator if the will had not been made.^ In. this case the residue of the personal property was directed to be equally divided among " the whole of ray heirs named in this my last wiW' Where this distinction is recognized, the word " heirs," used in referring to another part of the will, will not, of course, include a corporation which is a legatee.* So, too, a U'erty was f^iven to the the will was to convert real and |>er- heirs of a person slian- and share Winal pro[HTty and to invest a share alike. Kiven therein for the henehtofa le^- -(Jwynne v. Murdock, 14 Ves. 488, utw! until he should attain the a^e 4HU; Tetlow v. .XshldU. 'JO L. J. Ch. of thirty, when he was to receive M, 15 .lur. 'Jl.'f. half of it, t') employ it in husiness, ^Do It^-iiuvoir v. Ih- Hcauvoir, 15 JLL and u[»on his de.-ith the whole share L. Can. 524, 557, 502, 15 bini. 103. to bo w^ually divided auioug his heirs. 830 I.AW OF WILLS. [§ 021. ^v:r death her heirs were sixteen in number, representing three Farris. 21 III App. 49; Follansbee v. 1899), 50 Pac. R. 520; Walker v. Web- Follansljee, 7 App. D. C. 282; Dukes stor, 93 Va. 277, 28 S. E. R. 570. V. Faulk, 37 S. C. 255, 10 S. E. R. 122; i In re Hock's Estate, 20 Atl. R. Barton v. Tuttle, 62 N. H. 558, 500; CIO, 154 Pa. St. 417, 32 W. N. C. 270. Boiline V. Brown, 42 N. Y. S. 202; -'Fields v. Fields, 93 Ky. 019, 20 Bur^in v. Patten, 5 Jones' Eq. (N. C, S. W. R. 1042. IHtW , 420; Ward v. Stow, '^ Dev. * See In re Asliliurncr's Estate, 14 (N. C.) I":q. 509; Harris v. Philpot, 5 Pa. Co. Ct. R. 59. 2 Pa. Dist. M. H2S. 23 Ired. Eq. (40 N. C, 184S), 324, 328; Le- W. N. C. 251; allirnied in 2« Atl. R. macks v. Glover, 1 Rich. Eq. (S. C.) 801, 159 Va. St. 545. Ill; Allen v. Allen, 13 S. C. 512; Mlod^fs v. Phelps, 05 Vt. 302, 20 OrltH Appeal), 35 Pa. St. 207; Free- Atl. R. 025; Ward v. Stow, 2 Dev. man v. Knif,'iit, 2 Ired. Eq. (37 N. C, Eq. (10 N. C, 1830), 509; Harris' Es- 1HJ2;. 170; Tuttle v. Puitt, 08 N. C. tate, 74 I'a. St. 152; C<»Kan v. Mo 5J3; Rams5iy v. Stepiien.son (Oroy., Cabo, 52 N. Y. S. 48, 23 Misc. R 739. 53 834 LAW OF WILLS. [§ 024. stocks, ami his heirs then living were fonrtoen, representing four stocks, the heirs of both the testator and of his widow were taken together as one class, and the distrilnition was made among the thirty heirs per capita} The fact that the testator mentions the various stocks or ancestors from which the heirs are derived respectively does not overcome the pre- sumption of an equality of division arising from a direction to divide among heirs sliare and sliare alike? §624. When a distribution per stirpes is favored. — In very many cases, where the will is silent as to the mode of di- vision, heirs will take as a class ^^c;' st'upes. This is usually the case where the ancestor is deceased, and the word " heirs " is used by the testator in its primary and technical sense. This rule is al\va3''s recognized in the case of a devise to the heirs of the testator, in the absence of an express direction requiring an equality of division,^ and sometimes even where there is such a direction.'* Thus, in a case decided in Massachusetts,* the testator ordered that the residue of his estate should " be equally divided among those persons who shall be my legal heirs at the time of my decease; and, in the distribution, I di- rect that the children of my sisters A. and B. shall share the same equally numerically." The testator had one sister A., who was alive and had seven cliildren, and another sister B., who was deceased, leaving two children. The court directed a division among the heirs j9er stiypes; and this presumption is favored by the fact that the testator had given life estates re- spectively to the ancestors who are named, with a remainder to their respective heirs.^ A similar rule requiring a division jyer stirpes may be invoked where the property is devised to be divided among the children of the testator or their heirs; " or between the widow of the testator and the heirs of his mother;* between the heirs of A. and the heirs of my brother and sister;^ to the heirs of "wy /«?;(?" husband and my own heirs equally;^ to A., B. and C. and the heirs of D. equally ;'' to the legal heirs of the testator, excepting his son, who is specifically named ;^ to A. and B. for life, respectively, and, on iThus, in the case of a gift of 1834), L. 430; Taylor v, Fauver (Va., money, to be divided between A. and 1H97), 28 S. E. R. 817; Millers Appeal, the heirs of R at the death of the 32 Pa. St. (18.")9). 323. testator, and A. is living, he will take * Perkins v. Stearns. 1G3 Mass. 247, one-half, and the other half will \vd 39 N. E. R lOIG. divided pi:r cjipHa amongst the heirs * Holbrook v. Harrington (H2 Mass., of B., [irovided they are descended 1800), 16 Gray, 102. 104; Burgin v. from V>. in tlie same degre(!, hwt "per Patt* Rand v. Sangi-r, ll.i Ma.ss. (1874), 'iJrJtUjn V. Johnson, 2 Hill (S. C, 121, 128. 83G LAW OF WILLS. [§§ G25, 626. the (loath of cither of tliem, liis or licr share to bo divided among- liis or her lieirs.' § 6*J5. Statutory inodifiojition of the laws of descout. — Tho interest or estate which a devisee takes under the will, if it is immediate and vested, and if he answers to the descriptioji of an heir, at the death of the testator, is vested in him at and hj the death of the testator^ and his title is merely conih-med and strengthened by probate of the will. Hence, as a vested right or interest, his title is entirely beyond legislative control, and may not be diminished or abrogated or in any wise impaired by statutory enactment. For this reason no subsequent change in the law of descent which is the result of statutory enactment will prevent those persons wdio, at the date of the death of the testator, answer to the description of heirs, from taking their estates, where the devise vests immediately. And where at the time of the death of the testator his w^ife is not an heir ac- cording to the then existing statute, she will not take as such, though by a subsequent statute she is made an heir.^ § 6*26. Next of liiii siinpliclter includes only nearest blood relations. — Much divergence of opinion existed in the early cases as to the construction of the words "next of kin." If the testator, in a gift to the next of kin, refers expressly or by im- plication to the statute of distribution, he will be conclusively presumed to mean, by next of kin, those persons only who take personal property under that statute. On the other hand, where the gift is simjyhj to the next of kin, without any reference to the statute, the rule now is that the testator means his nearest iKing V. Savage, 121 Mass. (1876), of the testator to "his heirs" Z. and 303, 306; Daggett v. Slack, 8 Met. R., and the remaining half to the (Mass.) 450, 453; Tillinghast v. Cook, "heirs of T." and her deceased hus- 9 Met. (Mass.) 143, 147; Forrest v. band, namely, "M., S. and D.," re- Porch, 45 S. W. R. 671, 100 Tenn. 391; quires a division per stirpes, and on Bassett v. Granger, 100 Mass. (1868), only one of tho heirs of the husband 348,349. In a case wliere the word who were named having survived the " heirs " is used as an equivalent of testator, he took all. Swallow v. next of kin in a gift of personal prop- Swallow (Mass., 1896), 44 N. E. R. 133. erty, the next of kin will take jjcr.s'^8r- sjn i-e Sweuson's Estate, 55 Minn. W's. according to the statute of distri- 300, 56 N. W. R. 1115; Lincoln v. i>ution. Woodward v. James, 23 N. E. Aldrich, 21 N. E. R. 671, 149 Mass. R. 150 a889), 115 N. Y. 43, 46. But 368. So also Wood's Appeal, 18 Pa. see contra, In re Ashton, 19 Atl. R. St. 478; Aspdeu's Estate, 2 Wall Jr. 699, 26 W. N. C. 41 (1890), 134 Pa. St. , C. C. 368. 390. A devise of half of the estate § C2G.] GIFTS TO HEIES AXD NEXT OF KIN. S3T relations. He means those persons who are most nearly re- lated to him by consanguinity.^ Thus, suppose a testator shall leave him surviving two brothers, and the children of another brother who is deceased. The question arises, who are to take under these circumstances as next of kin? The rule of the civil law is employed in determining who are the next of kin, and this law traces descent from the testator as the proj)osit us, and not from the common ancestor.* The brothers are equally re- lated to the testator in the first degree, the nephews and nieces in the second ; and the former take as nearest of kin, where no reference is made to the statute, while the latter are excluded.'' Where several persons answer to the description " next of kin," and are related to the testator or other proj)ositus in equal degrees, they take, at common law, as joint tenants. This was so decided where a gift to the next of kin was construed to go 1 See, generally, 5 L. R. A. GOO. 15 L. R A. 300. 2 Cooper V. Denison. 13 Sim. 290. 3 Svvasey v. Jacques, 144 Mass. 137, 138, 4 N. E. R. 135; Harraden v. Larrabee, 113 Mass. 431; Leonard v. Haworth (Mass., 1898), 15 N. E. R. 7; Wetter v. Walker, G2 Ga. 145; Fargo V. Miller, 22 N. E. R 1003, 150 JIass. 225; Keniston v. Mayhew, 169 Mass. 160. 47 N. E. R 612; Jones v. Oliver. 3 Ired. Eq. 369, 371; Simmons v. (Jooding, 5 Ired. Eq. (10 N. C, 1848), 382, 390; Richmond v. Burroughs, 63 N.C. (18691, 242, 245, 646; Harrison v. Ward, 5 Jones' Eq. (N. C.) 236, 240. Tlie English cases in wliich the term "next of kin" was construetl to mean statutory next of kin are Phillips V. Garth, 3 Bro. C. C. 64; Stamp V. Cooke, 1 Cox Cli. R 234; Hinckley v. Manlarens, 1 My. & K. 'J7, 31. The question usually arose Ijftween the living hrotlu-rs and sis- ters of the testat(jr ami tlio i-hildrcn of brotlu-rs and sisters \vlu> were de- i-viist'A. The statute 22 and 23 Car. II, < h. 10, and 29 Car. II, ch. 30, gave the children of a deceased hrotluT or sister of an intestiite the ri^ht to t;ik«- iMTsonul ijrojHsrty hy repp-^'"' i- tion. In Elmsley v. Young, 2 Mylnes & K. 82, 870, a trust was created for the benefit of such persons who should be the next of kin of A. at his death. It was claimed by a brother and a nephew of A. The court, ex- cluding the nephew, gave the whole fund to the brotiier. This construc- tion has been followed in Withy v. Mangles, 4 Beav. 358, 10 CI. & Fin. 215, 8 Jurist, 69; Baker v. Gibson, 12 Beav. 101; Dugdale v. Dugdale, 11 Beav. 402; Garrick v. Lord Camden, 14 Ves. 372; Smith v. Campbell, George Cooper, 275; Lucas v. Brantl- reth. 28 Beav. 274, 278; In re McVicar, 17 W. R. 832, L. R. 1 P. & D. r)7 1,673; Boys v. Bradley, 10 Hare, 389. 396; Halton V. Foster, L. R 3 Ch. 505, 507, 16 W. R. 645, 683; Avison v. Simi>- son, Joh. 43, 7 W. R. 277; Wimbles v. Pitclier (1.S06), 12 Ves. 433 (where a gift to " next of kin in ecpial degree " was construed to exclude representa- tives claiming under the statute). See, also sustaining (h»! K'-neral rulo of construction, Richardson v. liich- ardsoii. 14 Sim. 520, 611; Brandon v. liraiiilon. 3 Sw. 312. 31H, :j My. A: K. HV!; llarriH v. Newton, 25 \V. R 22H, :!6 1^ T. (N. S.) 173, 16 L. .1. Ch. 1). 268. 83S LAW OF ■WILLS. [§ 627. to the father and the children of the testator, wlio were his next of kin at the civil law.^ As a consequence of this rule of construction, by which the term "next of kin" shnjdlciter is not regarded as synonymous with distributees under the stat- ute of distribution, all Avho are eijually related to a common j)/'oj)osf'fuft will take, thoui^h sotne of them could not take under the statute. Thus, where the testamentary provision is for the next of kin shnj}?!/, and the jn^oposltus has died leaving a father, a mother and also a child, all of Avhom are of course related to him in equal degrees of consanguinity, they will share equally; though, under the statute, the child would have taken all as a sole distributee.- § 627. Construction of the words " next of kin " when the statute of distribution is referred to. — The effect of a gift to the next of kin simjMciter, and a gift to the next of kin witii some reference to the statute of distribution, is very different. In the former case, as we have seen,'' those av!io are related by blood in equal decrees take to the exclusion of those who claim solely by representation ; but in the latter case it is well set- tled that all those take who would take jyersonal projyerty under 1 With}' V. Mangles, 4 Beav. 358, 10 CI. & Fin. 215, 8 Jurist, 69. In New York and New Hampshire the Eng- lish rule that a gift to next of kin simpUciter means the nearest of blood, and not distributees, has been repudiated. Slosson v. Lynch, 28 How. Pr. (N. Y., 1864), 417; Murdock V. Ward, 67 N. Y. (1876), 387, 391; Keteltas v. Keteltas. 72 N. Y. (1878), 312; Tillman v. Sullivan. 63 How. Pr. (N. Y.) 361. 95 N. Y. 27; Pinkham V. Blair, 57 N. H. 226, 244; Varrell v. Wendell, 20 N. H. 431. nVithy V. :Mangles, 4 Beav. 358. In this case the court said: "All writers on the law of England ap- pear to concur in stating that, in an ascending and descending line, the parents and children are in 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 tlie simple ex- pression may be controlled by the context, the law of England does consider them to be in an equal de- gree 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 dis- tribution of property, made in the words ' to give the same to persons equally next of kin,' the parents are to be held moi'e remote than the child." As the relationship is deter- mined by the rules of 'the civil law. relatives of the half-blood are next of kin to the same extent as those of full blood. Thus, all a man's brothers and sisters are his next of kin, though they may not have had the same parents. Coiton v. Schrancke, 1 Mad- dock (1815), 45; Grieves v. Rawley, 10 Hare, 63. KAnte, § 626. § 027.] GIFTS TO HEIRS AND NEXT OF KIN. 839 the statute of distrihutlon in case of an intestacy. This may in- clude some persons who would take as blood relations and ex- clude others. It is sometimes important to determine what words shall constitute a reference to the statute. It has been held that where the testator speaks of his next of kin as " if he had died intestate," or as " in case of intestacy," or according *• to the statute of distribution," he means the next of kin under the statute. AVhere he thus describes them, and does not at the same time expressly indicate that they are to take in equal shares, the reference to the statute will not only determine who are to take, but how and in what proportions they are to take. In such event the statutory next of kin will take as in intestacy; that \^,per stirpes^ by representation and as tenants in common.* If there is no reference to the statute, the next of kin will take as joint tenants.^ "Where an equal division among statu- tory next of kin is expressly directed, they will take j?^;* capita, and not per stirpes as under the statute.' If the gift is to tho next of kin according to the statute, equally in shares, the per- sons answering that description will take^^^;' capita} 1 In re Thompson s Trust, L. R. 9 Cb. D. 607; Jacobs v. Jacobs, 16 Beav. ooT, .jGO: Lewis v. Morris, 19 Beav. 34, 37: Ranking's Settlement. L. R 6 Eq. 601 : Mattison v. Tanfield. 3 Beav. 131, 132; Markbam v. Ivatt, 20 Beav. 579; AVutt v. Watt, 3 Ves. 244; Bailey v. AVri^'lit. 18 Ves. 49: Hinckley v. Mac- Larens, 1 Mylne & K. 27, 31; White V. Springett. L. R. 4 Ch, 300; Hougii- ton V. Kendall, 7 Allen (Mass.), 72, 77; Horn V. Coleman, 1 Smale & Gif. 169; Martin v. Glover, 1 Collyer. 269. 272; Bo«jth v. Vicars, 1 Coll. 0; Phillips v. Garth, 3 Bro. C C. 64; Coo|)er v. Can- non, 1 Fliil. Eq. (N. C, 1867), 83, 84; Jones V. Oliver. 3 Ired. Eq. (38 N. C, 1844;. 369. 371; Rook v. Attorney-Gen- enil, 31 Beav. 313 (1862); Redmond v. BurrougLs, 63 N. C. 212, 24."*; Sim- mons v. Gofjding, Iru from the class of her next of kin. 642. 644. Day V. Barnard, 1 Dr. & Sm. 351; ^gay v. Creed, 5 Hare, 580; Gundry Halton V. Foster, L. R. 3 Ch. App. v. Pinniger (1851), 14 Beav. 94, 99, 1 505; Clarke v. Colls, 9 H. L. Cases, De Gex, Mac. & G. 502. 651: In re Webber, 17 Sim. 221. The < Carpenter v. Bott, 15 Sim. 609. statutes 22 and 23 Car. II, c. 30, 29 See also Pyot v. Pyot, 1 Ves. 335; Car. II, c. 30, provided that the estate Leigh v. Leigh, 15 Ves, 92; Doe v. of an intestate shall go one-third to Plumptre, 3 Barn. & Aid. 474: ante, his widow and the balance equally g 605. In Boys v. Bradley, 10 Hare, to his children, or, if dead, to their 389, 414, 4 D, M, & Cr. 58, 5 II. L. Cas. representatives, i. e., their descend- 873, 892, 900, 25 L. J. Ch. 593, a very ants; if no children, then one-half to peculiar question arose. A devise the widow and the other to the next was " to the then nearest kin in the of kin in equal degrees; if no widow, male line in ^'reference to the female then all to the children equally; if line," after a term of twenty-one no widow or children, then among years for accumulation. The testator the next of kin in equal degrees or died a bachelor, leaving one sister their representatives, but no repre- and several nephews who were tJiw sentation is allowed among collater- sons of a deceased sister, and also a als farther than the children of tlie remote male relation. He provided brothers and sisters of the intestate, that the legatee should take tlie name 1 See gg 592, 593. of Sayers. The court held, first, that § 620.] GIFTS TO HEIRS AXD NEXT OF KIN. 841 of kin of my paternal line " includes all the descendants of the ancestor; that is, the brother as well as the grand-chiklrcn of the testator.^ A direction to distribute money among the next of kin of the testator on the father and mother's side requires a distribution among all the next of kin per capita, and does not justify a division into two funds and a distribution per stiipes? A provision for the heirs or next of kin of A., but in no case to go to B.j where B. is, at the death of A., his sole heir or sole next of kin, is susceptible of two constructions. On the one hand the legacy may be void for contradiction and uncertainty, for it is equivalent to a gift to a class with a provision that re- vokes the class gift if B. is the sole member of the class. Or it may be construed as a gift to the heirs or next of kin of A., provided B. had predeceased A. The latter construction would probably be preferred to avoid an intestacy.^ § 029. ^Vheii the next of kin as a class are to be ascertained iu case of an immediate gift. — So far as the ascertainment of the class which is designated by the term " next of kin " is concerned, two lines of cases are to be found. The first class of cases comprises those in which the devise is to the next of kin of the testator; the other class of cases comprises those in which the devise is to the next of kin of soyne other person than the testator. Where the bequest is to the next of kin of the testator, the question arises whether those are to take as next of kin who answer to that description at the date of his death, or whether those persons are to take as next of kin who would answer that description had he died at some future period. In all cases of immediate gifts to the testator's next of kin, i. e.y where the title is to vest at the death of the testator, it is tlio rule that tliose persons who are his next of kin at his death take a vested interest, though their possession is postponed tlio wonls "nearest of kin in tiie nearest relation c.rj)(u7r';>((^r»(/, ?.^., iiuile line" did not moan tlie nearest some deseendant from tlie father of of kin hcinff a male or males, ex- the testator, not from liis mother, o'lisive of females, hut excluded only As the sister of the testator answered lhoHrry, '.';{ Long V. Blackall, :J Ves. 4Hi\. Hi'iiv. 4:i(5, 4:58; (Jundiy v. Pinni;.;er. 1 1- n.jisljury V. Newix)rt. U licav. ;iT<>; Hi'.iv. U4, 9!); limdley v. Harlow, ."i Holloway v. RiidclilTc. ',':i Heav. H5:i; Hare, 58!), 5!>4; In leRees. I^ K. 44 Jenkins v. Cower, 2 Coll. .WT; Doe d. Cli. Div. 484; In re Ford, 72 L. T. "); (lanier v. I>Jiwsf.n, li Kast, 278, 2'.)0: Uahle v. Cable, 10 Lkrav. 507, 501); Masters V. Hoo|M'r. 4 lirr). C. C. 207; «////*•.?■ (5l 1. Harrink'ton v. Harte, 1 Co.v, Ch. H. -Mones v. C..lli.ck, M Ves. H8; Hiid.ii i:!l: H<.iloway v. Holloway, 5 Ves. v. l!<-wle(t. 2 My. & K. i»0; Hutler v. yuy, 401; Wharton v. iJarker, 4 Kay Uushnell, y My. & Cr. 2U2. 841 LAW OF WILLS. [§ G32. as of the death of the testator, even when the life tenant is himself the sole next of kin at the testator's death.' An ex- press provision that the property shall go to such persons as sliall, after a life estate, tluii be considered as "?»?/ next <>f l-in. according to statute,''^ and shall then be considered the next of kin of '•'■my deceased wife,''^ by the effect of the word "M^v?," means those who are the next of kin of the testator and of his wife in case they had died immediately at the termination of the life estate.^ The fact that a direction is inserted that upon the death, unmarried, under majority, or without issue, of a person to Avhom property is devised, the said property is to go to the next of kin of the testator according to the statute, where the primary taker is one of the next of kin at the death of the testator, indicates very strongly that the testator means those persons who would be his next of kin if he had died immedi- ately after the death of the primary taker. Under such a con- dition of affairs it is very improbable that the testator intended that person to take as one of his next of kin upon whose death "without issue he has expressly directed the property should go to others.' § 63'2. Immediate gifts to the next of kin of other persons than the testator. — A gift to the next of kin of A., which is to vest in them at the death of the testator, may be either to the next of kin of a person who is dead at the date of the will, or at the death of the testator, or to a person who is living at the death of the testator. AVhere the gilt is to the next of kin of a person who has died before the date of the will, or after that and before the death of the testator, it means the next of kin of that person living at his death, who also survive tJve tes- tator} In a case where the gift is to the next of kin of a per- iSay V. Creed, 5 Hare, 580, 587; Dove v. Tore, 128 Mass. (1880), 38; Jenkins v. Gower, 2 Coll. 537; Pearce Minot v. Harris, 132 Mass. 328: Whall V. Vincent, 1 Cr. & M. 598, 2 Mj^ & v. Converse, 146 Mass. 345, 5 N. E. R. Cr. 800; Seifferth v. Badham, 9 Beav. 823; Pinkbam v. Blair. 57 N. H. 227, 370, 374, 10 Jur. 892; Ehnsley v. 242. Contra, Leonard v. Ha wort 1 1 Young, 2 My. & K 82, 780; Miller v. (Mass., 1898), 51 N. E. R 7. Eaton, Sir G. Coop, 272; Minter v. - Wharton v. Barker, 4 K. & J. 48:5. "Wraith, 13 Sim. 52, 63; Booth v. Vic- 3 Butler v. Bushnell, 3 3Iy. & K. 232. ars. 1 Coll. 6, 12; Bullock v. bownes, 4 Hobgen v. Neale, L. R. 11 Eq. 48; 9 H. L. C. 1, 18; Fargo v. Miller, 150 Vaux v. Henderson, 1 Jac. & WaL Mass. 225 (1889), 5 L. R A. 690, 692; 388. Minot V. Tappan, 122 Mass. (1877), 536; § G33.] GIFTS TO HEIES AND XEXT OF KIN. 845 son \7ho is living at the death of the testator, it will not vest in those persons who would be next of kin if he should die im- mediately after the testator, but in those who may be such at his death, whenever that event may take place. And this is the case even though the distribution may be expressly post- poned until long subsequent to the death of the person whose next of kin are to benefit.^ g 633. Presumption that testator means legitimate next of kill. — AVhere a testator uses the words " next of kin," whether with or without a reference to the statute, it will be presumed that he means those who are legitimately such.- Thus, where he gives money to his illegitimate child by name, with a re- mainder to his own next of kin under the statute, who were his brothers and sisters, and who were also illegitimate, the latter did not take.' But where the testator, in making provision for statutory next of kin, expressly provides that A. shall, for the purposes of his will, be deemed the lawful child of B., A., though an illegitimate daughter of B., is entitled to take as one of the next of kin of B.* 1 Dan vers v. Earl of Clarendon, 1 death of the testator will take vested Vern. 35; Cruwys v. Coleman, 9 Ves. interests in remainder. Stert v. Pla- 319; Gundry v. Pinniger, 1-4 Beav. 94, tel, 5 Bing. N. C. 431 99, 1 De Gex, iMac. & G. 502; Smith 2 Harraden v. Larrabee, 113 Mass. V. Palmer, 7 Hare, 235; Walker v. 430, 431; In re Turner's Estate, 5 Pa. >Iarquis of Camden, IG Sim. 329. And Dist. Court, 360. where the gilt is to a person for his sgtandley's Estate, L. R. 5 Eq. 303, life, with a remainder in fee to the 310. next of kin of that person, the ex- * Wilson v. Atkinson, 4 De Gex, J. pectant next of kin living at the & S. 455. CIIA.PTEII XXXI. GIFTS TO PERSONAL REPRESENTATIVES AND EXECUTORS AS PURCHASERS AND BY REPRESENTATION. ^ C34. Tlie priniiary meaning of the words '• legal " or '' personal representatives." 635. Legal or jiersonal representa- tives may mean "next of kin." 636. Expressions favoring the next of kin as personal represent- atives — Division per stirj^es or j)cr capita. Mode of distribution among personal representatives. Gifts of real property to legal or personal representatives. 63" 638. § 039. AVhen executors and adniinis- tratoi's take by limitation, and not as pui'chasers. 010. AVhetheran executor takes in trust or beneficially. 041. Language whicli may indicate that tlie executor is to take in trust. 612. Bequests to executors for their own benefit. 643. Beneficial gifts to executors or trustees by name — When conditional upon the accept- ance of the office. §634. The primary moaning of the words *Me;L?al " or ^'^ personal representatives." — The ordinary meaning of the "words " legal representative " or " personal representative " is " executor " or " administrator," i. e., one who represents the deceased as to his personal property. Usually these words are words of limitation, creating an absolute interest in the de- ceased person. The executor represents the estate of his tes- tator more actually, says Lord Coke,' than the heir represents his ancestor. The addition of the word " personal " to the word " repre- sentative " does not favor the meaning " next of kin," as that word implies only that the representative has to do exclusively with the personal estate of the decedent whom he represents, while the term " legal " signifies that he is recognized by the law, and does not extend the meaning of the word. And, on the other hand, the next of kin can hardly claim to represent the testator as kindred of his blood, for the class of next of kin, as indicated by the statute of distribution, includes persons re- lated to the deceased in different degrees of blood relationship, 1 Co. Litt. 209a. § 631.] GIFTS TO PERSONAL KEPRESENTATIVES, ETC. SiT and may include the wife^ loJio is not a relation hy Mood at all. Xor have the creditors any claim against the next of kin as representatives of the deceased, for they must resort to his ex- ecutor or administrator. For these reasons the words "legal representatives" will, in the absence of anything in the context to indicate that they have a different signification, be presumed to mean executors or administrators, and it will require more than merely slight indications or hints of a contrary intention to extend the mean- ing of the term so as to include the next of kin.^ Accordingly it seems that in a direction to divide a fund among children and the personal 7rj)resenfatives of deceased children^'- to divide among several by name, and in the case of the death of any of them, then to his personal representatives; ^ in a gift to A. or his "proper representatives" after a life estate;* a gift to the "personal representatives of A." on A.'s death without issue; ^ or a gift to be divided amongst cousins now existing or their representatives^ the word in each case means the executor or administrator who takes, not beneficially for himself, but by representation and substitution for the benefit of the estate of the decedent. The presumption is that these words are used in their tech- nical sense, and they should be construed as words of limitation, meaning an executor or administrator, and not of purchase, unless that is the intention of the testator apparent in the will. Thus, in a gift to A. and his personal or legal rep>resentativcs, or a gift to A. or his p>ersonal or legal representatives^ the word means prima facie executor or administrator, and gives A. an abso- lute interest if he survive the testator;' and the fact that the ' Halspy V. Patf'rsf)n. 87 N. J. Eq. ton v. Skccis, t Hass. & :sryl. 587, 589; 445; Livennorev.SorntTsfN. J., 18H»), Gryll's Trust, L. R. (J Kq. 589. 1« Atl. K 5i:{; Cuinl«'rl('Ke v. Cum- 2I'ric») v. Strange, (', Madd. 159. »HTlct,'.-Wan', L. R 15 Cli. D. 2(;9, 1'78, :' lliii.-lilKrL' v. Wcstwooil, 2 De CJex 5« L. J. Ch. 717, .{8 W. K. 707; In ro &. S. 21(5. Tuninr, 2 J)r. & Sin. 5()1, .508; Cotton *Corl)yn v. FivikU, I Vi's. 418. 433. V. C«itton, 2 Beav. (i7; HridKO v. .Ahbot, •'• In ru Wymlliams Trust, Ij. II. 290, W liro. C. C. 224; BriRgs v, U|>lon. Lit2. I^ It. 7 Ch. :J7(J; In re Cruwfonl, 2 "^In ro ( lawlonl, 2 Dnwry, 2;t(), iJn-wry, 2W, 2:55, 215; Dixon v. Dixon 2:i5. (18.57), 24 W'iw. 129, \'.\'.\, 1:15: In n; 'Cox v. (iirwi'ii, 118 Mn8.s. (1875), IILT- S. 575, II S^y. Div. 127; Nurwooa v. 8-18 LAW OF WILLS. [§ G35. gift to A. anil his personal representatives conios after a life estate in another is not material to vary tliis construction.^ So generally a betjuest to a personal representative, where the word is phiinly a word of limitation, will not be for his benefit indi- vidually, but for the purpose for Avhich he holds tiie personal estate of the individual whom he re])rescnts.- § 035. Legal or personal represeatatives means next of kin. — The question frequently arises, in the case of a gift to personal or legal representatives, whether it is direct to them or in substitution on the death of another person. Does the testator mean executors or administrators, which the words signify in their primary sense, or has he used them in a secondary sense to indicate some other class of persons? AVherc the tes- tator gives personal property in absolute terms to his own per- sonal representative, strong reasons exist against construing the term to mean the executor, because of the fiduciary character which the executor holds to the testator.' The executor is re- munerated by the law, allowing him a commission. It is wholly uncertain during the life of the testator who will be his repre- sentative, for the person nominated may not survive the tes- tator; while, if he does survive and qualify, he may become insolvent or extravagant; may dissipate the estate, and be re- moved. For tliese reasons it is the rule that slight indications of the intention of the testator to use the words otherwise than to designate his executor will justify construing them as syn- onymous with next of kin under the statute of distribution. Many of the reasons before stated are also applicable where Mills. 1 Ohio X. p. 314; Hill v. Ever- Div. 269; Lugar v. Harman, L. R. 8 son, 2 Ohio N. P. 42, 3 Ohio Dec. 133; Eq. 139. See also 5 L. R. A. 96. Ware V. Fisher, 2 Yeates (Pa., 1795), iJn re Turner, 2 Sra. & G. 501; .578; In re Rankin's Estate. 13 Pa. Co. Crawford's Trust, 2 Drew. 230; Cum- Ct. R. 617; Williams v. Knight, 18 berlege v. Cumberlege-Ware, L. R. 45 R. I. 177 (1893), 27 Atl. R. 210: Ather- Ch. Div. 269, 278, 59 L. J. Ch. 717, 38 ton V. Crowther, 19 Beav. 448, 451; W. R. 767. Wing V. Wing, 34 L. T. (X. S.) 941. 24 2 Smith v. Barneby, 2 CoUyer, 728, W. R. 878; Price v. Strange, 6 Madd. 737. And see cases in note 1, p. 849. 159, 163; In re Turner, 2 Smale & Gif. A legacy of the income of money in 501; Chapman v. Chapman, 33 Beav. trust to a woman for her life, and on 556; Halloway v. Clavkson, 2 Hare, her death to be paid to her personal 523; Taylor v. Beverley, 1 Colh-. 108, representative, gives her an absolute 116; Saberton v. Skeels, 1 Russ. & M. interest in the fund. Alger v. Par- 587, 589; In re Ware, L. R. 45 Ch. rott, L. R. 3 Eq. 328. ^Ante,%G3i. I 635.] GIFTS TO PERSONAL KEPKESEXTATIVES, ETC, S49 the testator has given projierty to a third person and his per- sonal rejiresentativcs. If that person is alive at the date of the tj.'tcution of the will, the testator cannot know whether he will die testate or intestate, or who will be his executor or admin- istrator; or, if he shall die testate, who will be his residuary legatee. But he does know, or may readily ascertain, what l^ei-sons would be his next of kin under the statute of distribu- tion, and who, to that extent, would represent liiiu. For these reasons the words " legal or personal representatives " are very frequently construed to mean the next of kin by the statute.^ If the gift is to the legal representatives of the testator him- self, the time at which they are to be ascertained is material in determining what persons are meant. The fact that the gift is an immediate one to the testator's legal representative may indicate that by representative he means his executor, who will, as a ^wa.sZ-trustee, take for the benefit of the residuary legatee. But, on the other hand, if the vesting of the gift is postponed, so that the date of ascertaining who is the legal representative comes after the end of a prior life estate, by which time, in all probability, the executor of the testator will have been discharged, the inference will be that he means his next of kin.- The same reasoning will apply to a gift of personal property to another person for his life with a power of ap- ' The leading case is Bridge v. Smith v. Pahner, 7 Hare, 225. 227; Abbot, 3 Bro. C. C. 224, 227, and this Booth's Estate, Week. Notes (1877^ has Vx:en repeatedly affirmed and fol- p. 129; Tarrant v. Backus, 63 Conn, lowed. Kilner v. Leech, 10 Beav.3G;5; 277, 28 Atl. R. 46; Jones v. Tainter, Oryll's Trust. L. R. 6 Eq. 589,593; 15 Minn. 517 (1870); Davies v. Davies, Stockdale v. Nicholson, L. R. 4 Eq. 55 Conn. 319, 11 Atl. R. 500; War- 359; In re Horner, L. R 37 Ch. D. necke v. LtMiiljca, 71 III. 92 (1873); ()95. 57 I^ J. Ch. 211, 58 L. T. 103, 36 lirokaw v. Hudson, 27 N. J. E(i. 135; W. R. 348; In re Knowles, 59 L. T. Pliyfo v. Pliyfe, 3 Bradf. (N. Y.)45; 359; Robinson V. Evans, 29 L.T.(N. 8.) Drake v. Pell. 3 Edw. Ch. (N. Y., 715, 22 W. R. 199; Miine v. Cilbart, 2 1.S38), 251, 270; Potter's Estate, 13 Pa. lieav. 67, 69; Bwth v. Vicars, 1 Coll. St. 318; In re Hall, 2 Dem. (N. Y.) <5, 12; Cotton v. Cotton, 1 Mad. 45; 112; Lee v. Dill, 39 Barb. 520; i\\\> Alger V. Parrott, L. R. 3 E.i. 828; bons v. Eairlamb.26 Pa. St. 217 (IH.50); I>jrig V. lilac-kail, 1 Anut 128. 3 Ves. I^)dg(f v. Weld, 139 Mass. (1W5). 504; 4H(5; Horw'iKjol V. Wats(); Abluilt v. Jenkins, 10 V. Monro. 6 Sim. 19; Briggs v. U|)ton, Scrg. & R. (I'iu) 290. 21 W. li. :J0, I.. R 7 (;ii. 376. 3H2: UnW -' Nicholson v. Wilson. II Sim. 5 19, inwjri V. Smith. 6 Sim. IT. IH; Halli>- .551; Walker v. Camden, 16 Sim. 329. way V. ItidclilFe, 23 Beav. 163, 169; M SoO LAW OF WILXS. [§ 636. pointment in him of the fee by vrill, and a limitation, in default of such an appointment, to the personal or legal representa- tives of the donee.' The next of kin of the donee will take in default of an execution of the power. So where a provision was made for the distribution of the residue among the testator's grand-children and the represt-nta- iire^ of his deceased tjTand-children/ or amoncr several indi- Tiduals named, and, in case of the d^aiA of any of Ihim heford the U^afoT, to prevent a lapse to his or her legal representatives,' the word '* representatives " will be construed to mean the next of kin under the statute, who will take as purchasers under the TsilL So, too, this word will be construed to be synonymous with "descendants"^ or "isne," where, upon death, in default of representatives, there is a limitation over to the next of kin.* § 6-3(3. Expressions favoring the next of kin as personal representatives — Division per stirpes or per capita. — Any reference by the testator to the statute of distribution, made in connection with a gift to "legal or personal representatives," will imply a construction in favor of the next of kin taking as representatives, TT-- - % r : -">•.. r. 'or those persons who should be '^A.'s rt\ ^na to the statute cf distribictlon^^ * or : _ _ : an appoint- ment by A. "f ' ' :^ . -: . : - . . . .. of admmi^ tratkon^'''^ may . -by this reference to the statutory mode of division, that the testator meant the next of kin of A., and not his executor. So, also, the fact that the testator has pro- vided for a division j3^r stirpes, and not^r capita, among per- sonal representatives is a Tery strong circumstance favoring next of kin, for such a direction is quite inapplicable and un- meaning if an executor alone is meantJ 1 BobinsoQ r. Smith. 6 Sim. 47. (N. Y., lS4o). 417; Brent v. "Washing- ' In re Bates, 159 Mas&, ^52, 259, St ton, IS Gratt. lTa-> 52^ N. E. R 26& «Briggs v. Upton, 26 L. T. >'. S.> » Bridge V. Abbot, 3 Bra C C. 224, 376, 3S2; Wflsom t. Pitkington. 11 227; Brent v. Washington, IS Gratt. Jut. 537; Jennings t. Galiimore, 3 (Ta.) 526L VesL 14«. *Athertcai t. Crowther, 19 Beav. 'Atherton v. Crowther tl?.>4>. 19 44S- The addition ofthe word -next" Beav. 44S; Phillip v. Evans. 4 DeGex maj define p ei sc M aal representative & Smale, IS"?. In Atherton v. Crow- as next of Idn. Booth v. Yicars, 1 therthere ■was a gift in remainder to CoIIver. 6. H. children of A as a class, bxit if any * Watson T, Bonnev, 2 SandL Ch. of the said children should die in A, 's § 637.] Girrs to peesoxal eepeesextatttes, etc. S51 Whether a direction that the property which is devised shall be divided ^hare and >;hare alike, or equally, between or among the personal representatives, defines the word as the next of kin or not, may not be positively determined- It has been held that such a direction,^ and also a direction to pay " to or amongst" the personal representatives of A.,- are inconsistent ■with an intention that the executor of A. should take; but the contrary has also been held.' The fact that the testator in a will which in one clause gives property to personal or legal representatives uses the word "' executor " or " administrator " in another part of the will, with a correct knowledge of its purport and technical meaning, is almost conclusive as an in- dication that he uses the words •• personal representatives " to mean the next of kin; * while on the other hand, if he uses the words " personal representatives "' in one part of his will as meaning executors, that meaning may easily attach to the words throughout the will.^ §637. Mode of distribution among personal representa- tives. — In cases where the words *' personal representatives *' are to be construed as synonymous with next of kin under the statute, the property will be distributed between or among them per stirj/es according to the statute and as tenants in common.' And where the gift is to A. and B., " share and share alike,*' or "their personal representatives,*' the direction life-time, then for the personal repre- Colly. 108, 116; Chapman v. Chap- sentatives of such child or children man. 33 Beav. 556, 557. to take per*/ 1 rpe« and not />ercqpi7a, * Booth v. Vicars. 1 CoUyer, 6, 12; and the words "personal represent- Walter v. Makin, 6 Sim. 148. 151; atives " was held to signify descend- Walker r. Camden, 16 Sim. 329, 332. ants. ^ Dixon t. Dixon, 24 Beav. 129. ' Smith V. Palmer, 7 Hare (1S48), And s«e In re Crawford's Tnists. 3 225,228. -To A.,if heshoxildbethen Drewry, 230. 246; Hiuchcliffe v. living; but if he should then be dead, Westwood, 2 De Gex & S. 216: Cliap- to his legal representative, or repre- man v. Chapman, 33 Beav. 556, 557. sentatives, if more than one, sliare * Booth v. Vicars, 1 Colly. 6. 12; arul share alike," See also Crawford's Rowland v. Gors^uclt, 2 Cox Ch. R. Trusts, 2 Drewry, 2:3(), 240. 246; King 1S7, IScS: Alker v. Barton, 12 L J. V. Cleaveland. 26 Beav. 26, 27, 4 De Ch. 16; Walker v. Camden, 16 Sim. Gex & Ja 477. 329; Stockdale v. Nicholson, L. R 4 »Baine8 v. Ottey, 1 MyL & K. 46^1 Eq. 359; Stocks Appeal 20 Pa. St. »Wing V. Wing, 34 ll T. 941, 942, 349; Ualloway v. RadcliiTe, 23 Beav. 24 W. IL 878; Taylor v. Beverley, I 1C3, 17L 852 LAW OF WILLS. [§§ G38, 639. for ecjualitv of division applies to A. and 15. alone.' So Avhero there was a direction for division among the representatives of such children of the testator as should have children^ the word was construed to mean children, and distribution was di- rected per stirpes!' % G:?S. (lifts of real property to lou:al or personal repre- sentatives. — The word "representative," used in reference to a, devise of real property, means the h(>ir.^ Thus, in a direc- tion to divide real property ecjually among the children of the testator or " their legal representatives," the word means heirs, and is a Avord of limitation, not of purchase, and the children take a vested estate in fee at once on the death of the testator.* The word "representatives," in most cases of this sort, is em- ployed as a Avord of substitution solely to prevent a lapse. § 631). AVlien exeentors and administrators take by limita- tion, and not as pnrchasers.— Ordinarily the words "execu- tors " and " administrators " are words of limitation, and not of purchase; as, for example, in a bequest of personal property to A. and his executors and administrators, or to A. and his per- sonal representatives. In a case of this sort the w^ords indicate merely that A. takes an absolute interest in the personal prop- erty if he survive, and then, his personal representatives derive their title, not under the will, hut from him. The presumption that the words mentioned are used as words of limitation is recognized not only where a gift is to the executors and admin- istrators ly representation when the decedent has an absolute title, but also where a bequest is to a person for life, and after his death to his executors and administrators or to his personal representatives. This is a very common construction in mar- riage settlements in England, where personal property is given to trustees to pay the income thereof to the husband for his life, with a remainder to the wife for her life, and with a power of appointment in her by deed or will, and, in default of an ap- 1 Booth V. Vicai-s, 1 CoUj-er, 6, 12; 737; Ewing v. Jones, 130 Ind. 247, 29 Abbott V. Jenkins, 10 S. & R. (Pa.) N. E. R. 1057. 296. * Chasy v. Gowdry, 43 N. J. Eq. 95 2 Merrill v. Curtis, 39 Atl. R. 973 (1887), 9 Atl. R. 580; Tarrant v. (N. H., 1898). Backus, 63 Conn. 277, 28 Atl. R. 46, 'Chapman v. Chapman, 33 Beav. construing "legal representatives 556; Smith v. Barneby, 2 ColL 728, and their lieirs." See also Ketchum V. Corse, 65 Conn. 85, 31 AtL R. 486. § 639.] GIFTS TO PEKSOXAL KEPKESEX'TATIVES, ETC. 853 pointraent, to her personal t^tpresentatit'es, executors or assigns. If the power of appointment is executed, all estates after the life estate of the wife are defeated. But, on the other hand, as it is clearly the intention of the settlor to benefit the wife in the case of her death before her husband, the words " personal representative" are given their technical meaning; and where she dies without exercising the power and without issue, the property vests in her executor or administrator, as the case may be, for the benefit of her residuary legatee or next of kin.^ In some cases, even the word " executor " has been lield to> mean the next of kin. The context would have to be ver;y strong in their favor to justify this construction. Where the' provision was that, i?i case of the death of any oj" the legatees, his or her legacy should go to his or her executor or administrator, it was held that the next of kin should take as purchasers under the original will as ao-ainst the executor of a deceased leiratee.- But a limitation to "executors, administrators and assigns," in default of the exercise of a power of appointment, will receive its technical construction, and the property will go to the per- sonal representatives for the benefit of the estate of the dece- dent.' The word " executor," or " administrator," may be a word of limitation even where a gift is directly to them, either ap- parently by substitution for a deceased person, or without any legacy or implication of a legacy to the person he represents. AVe are here speaking of the personal representative, not of the testator, but of a third person. In all these cases the personal representative will take for the benefit of the estate of the per- son he represents; and the party \\ii(jm he represents will have a disposing power over that property, notwithstanding the pe- culiar manner in which it is aecjuired.^ •Smitli V, Dudley, 9 Sim. IL'"). VV-i; Wyn.lliam's Trusts, L. R. 1 Etj. :."J0,. PuK'e V. Sf>iK.'r. 1 1 Iliire, :{21, :i:> 4; Mer- l".):.'; Buliaer v. Jiiy, 3 Myl. & K. '204, you v.Collctt, « Ik'av.yHO,:JX'; Allen 4 Siui. 4«, M; Stocks v. Dodsley. 1 V. Thorp. 7 lifjjiv. 12, 75; l).-vull v. Keen, iJS",, ;j2H. DickenH, 'J .iur. TmO; Sabcrton v, - I'alin v. Hills, (5 Sim. 17, 1 Myl. & Sk.-el.s, 1 Hu.ss. & My. .'jHT; Collier K. 470, 4«rj. V. .Sjuire, -i Hush. 407, 475; Wellman ^(jrufrtey v, Ilumpage, 1 Heav. U\, V. UowrinK, 2 Ku.sh. ;i74, :i7», :{h<), r,2. 3 Sim. :J21; Daniel v. Du.lley. 1 I'hil. *Tretlie\vy v. Helyar. L. R 4 Clu 1; Best's Tru-sts, L. K. l'^ K<1. (]S(],«;'JO; D. .V.>, 57; Seymours Truhts (,185U), 354 LAW OF WILLS. [§ 040. § 040. "Wliotlier an executor or juliuiiiistrator takes iii trust or benelieially. — At common law, before the ])assage of the statutes 11 Geo. TV, and 1 AVm. IV, ch. 40, where a man died after making a will which contained no I'csiducD'ij 'bequest, but appointing an executor, the executor would take the resi- due as his own in the absence of a legacy to him or of a clear expression ' of a contrary intention.- The rule since the stat- ute is otherwise. An executor no longer takes beneficially the residue of personal property which is not disposed of by the will. This rule is applied also to a devise to the exec- utor of the testator as well as to a devise to the executor of another person. The presumption is that the executor takes as a trustee. Thus, where the testator gives property to his executors expressly for a purpose, either to pay debts or lega- ■cies, or to devote it to a charitable enterprise,^ and the carry- ing out of the purpose does not exhaust the fund, they do not take the surplus beneficially, but they hold it for the benelit •of the residuary legatee; or, A. it is a gift of the residue which fails, as ^'wasi-trustees for the benefit of the next of kin.* Accord- ingly, where there was a devise of property to A. and B., who were also appointed executors, " in and for consideration of their paying " the income to the lolfe of the testator for life, leaving the fee undisposed of,' or where a bequest of a legacy and also of everything to A. to pay a debt due him, with an appointment of him as executor, and a surplus remained in his hands ;^ or a gift of the residue to the executors in trust in general terms, but without the purpose being stated,'^ and the executors were also given specific legacies.^ Where the gift was to the ex- ecutors of the testator and there was no residuary clause what- Johnson, 472, 479; HoUoway v. Clark- 185; Read v. Stedman, 26 Beav. 495; son, 2 Hare, 521; Long v. Watkinson, Travers v. Travers, L. R. 14 Eq. 275, 17 Beav. 471, 474. See cases cited 277; Dixon v. Dixon (1857), 24 Beav. ante, % 6.34, and also the chapter ante 129, 1.34; In re Henderson, 28 Beav. on Lapse and Substitution. 650; Andrew v. Andrew, 1 Collyer, 1 2 Black., p. 514. 686, 689. •■i Williams v. Arkle, L. R. 7 H. L. & Bird v. Harris, L. R. 9 Eq. 204. G 606. 6 Wright v. Revell, 27 L. T. (N. S.) 3 Dacre v. Patrickson, 1 Dr. & Sm. 439. 182, 185. "' Buckle v. Bristow, 13 W. R. 08. * Barrs v. Fewkes, 12 Week. R. 666; 8 Chester v. Chester, 12 L. R. Eq. Seymour's Trusts, Johnson, 472, 479; (1871), 444, 451. Dacre v. Patrickson, 1 Dr. & Sm. 182, § lUl.] GIFTS TO PEKSOXAL KEPKESENTATIVES, ETC. 855 ever,' or wliere there was a gift to the executors on trusts which were held to be void,'- the court refused to permit the executors to take beneficially, but decreed that they should take for the purpose of the will.^ § 641. Language whicli may indicate that the executor is to take in trust. — The use of the words " m trusf'' in a irift to an executor is not conclusive upon the question whether he shall take beneficially or not, for that fact is to be determined upon the whole will.^ But it has been contended that where the residue is left to executors in their oivn names as individ- uals in trust for a particular purpose, which trust does not ex- haust the fund, thev beinof trustees as well as executors, thouirli not entitled to the unexpended fund as individuals, are enti- tled to it as executors, i. e., if they qualify as executors. But the distinction is without value. The mere fact that a man is appointed both a trustee and an executor by the same will does not permit him to take beneficially as an individual, for the two capacities are as distinct as though different persons were appointed. If the private and official character of these persons is to be distinguished, the point raised has no value whatever.' And it is immaterial, in this connection, whether the gift is to the executors in the plural, or in the singular, or to " executor and administrator." ^ So where a gift of personal property was to B. on the death of A., with a power in B. to appoint by his will, and, in default of his appointment, to his executor or administrator, it was held that the executor of B. took the legacy solely for the purpose of B.'s will.'^ And the same rule was invoked though the legatee has died in the life- time of the testator, and even where he is dead at the date of the will, and is applicable where the gift is to the personal or hgal representatives, a those words are construed to be synony- 'Trethewy v. IIely:ir, L. R. 1 Ch. 40.1, 502; Mopp v. Elcock. 15 Sim. 508, I). M, 57. 2 I'liil. 7!»7: Dawson v. Clark, 15 Vcs. •^ Neo V. Nf'O, L. IC. (5 P. C. :!«!. Am; Soiitliouso v. Hate, ^ Vcs. tt lit-ji. 3 IJarrs v. Fewkc^s, 12 W. 1{. (500. aUO; Bottle v. Kiiockor, 40 i^ J. Clu ♦Harre v. Fewkfs, 12 W. K. 000; D. 159, 102. Saltrnarsh v. Burnett, 29 Bi-av. 474, 3 "Truvers v. Travcrs, L. 11. 14 Eq. \if. Gex, F. & J. 279; IIukIk's v. 275, 277. KvanH, 13 Sim. 90. " Colli.-r v. Squire, 3 Rush. 407, 475; 6R«;a tator had been provided, the resiilue W. R. (1807), ii.Vi, Wa, and 7>o.s/, ■;; 043. wa.s given to the e.xeciit«)rs. In a * liothmahler v. Cohen, 4 Ues. (S. C.) codicil a jiarcel of real jtropcrty was F.([. 21'i; Kirkland v. Narramore, lO.j devised to tlicm in trust for the tes- MuHH. 31, 32; In re (Jardncr, 01 I^ T. tator's cliildrcn. Th«( court lield they (N. S.) .'».'i2; Romans v. .Mitclicll, 1.") to. I{. 8 Ffj. Fuge. 27 1- K. Ir. .'>9. mr,, 319: H.irrix v. Harris iKv.. 1H99., S5S LAW OF WILLS. [§ 643. And {\w iMvsumiitidn that a legacy to one who is also nomi- nated as an executor is conditional on his acceptance of the of- iice is strengthened, if not rendered conclusive, by the fact that in the will the testator states that it is to remunerate him, or that it is in lieu of his commissions or statutory compensation, or that it is for his care and trouble ^ in performing the duties of his oiiice." But the presumption which arises where the will is silent maj" be rebutted. It is therefore important to deter- mine what language employed by the testator will be sufficient to rebut this presumption, and to show that the legacy to the executor was not upon a condition that he should qualify and act as executor. It would seem that giving the legacy to tho executor wdiere he is named, not as an executor^ but as an indi- vidual^ would be conclusive proof of an intention that he shall take in any event as an individual.' So, also, if the legatee, though an executor, is described as the friend of the testator, or if the gift is given expressly as a token of regard, so that it ap- pears that the motive of the gift was friendship and affection towards the legatee rather than remuneration for services to be rendered by him as an executor, the mere fact that a legatee is also an executor will not make the legacy to him conditional upon his acceptance of the office. So a legacy given by the testator to his friend A., who w^as also appointed an executor,* or to " my friend A., of the town of M., a banker's clerk and also my executor," ^ will, by the implication that the motive prompt- ing the legacy was friendship, cause the legatee to receive the legacy, even though he may not qualify as the executor.^ Other circumstances sufficient to rebut the presumption that a legacy is conditional upon acceptance of the office by the executor are that it w'as given among other legacies,'' or that it was to be given to an executor after the death of a tenant for life,^ or the 1 Hawkins' Trust, 33 Beav. 570. ^ See also Read v. Devaynes, 3 Bra 2 Morris v. Kent, 2 Edw. Ch. (N. Y.) C. C. 95; In re Mainwaring, L. R 43 174. Ch. D. 643, 59 L. J. Ch. C3, 38 W. R sStackpole v. Howell, 13 Ves. 417; 412. Chassaing v. Duraud, 85 Md. 420, 37 ^ Calvert v. Sebbon, 4 Beav. 422. Atl. R. 362. 8 In re Reeve. 46 L. J. Ch. 412, 36 L. 4Bubb V. Yelverton, L. R. 13 Eq. T. (N. S.) 906; Jewis v. Lawrence, L. 131. R. 8 Eq. 345, 347. 5 In re Denby, 3 De Gex, F. & Jo. 350. §§ 645,646.] GIFTS TO PERSONAL EErKESEXTATIYES, ETC. 859 circumstance that unequal gifts are made to two or more exec- utors.^ Assuming that the gift is upon the implied condition that the legatee shall qualify and act as an executor, it is impor- tant, in the event of his death before the payment of the leg- acy, to determine what acts on his part sufhce to constitute a sufficient performance of the condition. He must give un- equivocal evidence of an intention to act as executor before his representatives can claim on his death. An application for the probate of the will by the legatee is conclusive proof of his intention to qualify as an executor. If, having insti- tuted proceedings to procure letters testamentary, the legatee dies before they are granted, his representatives are entitled to the legacy.- ^ Jewis V. Lawrence, L. R 8 Eq. condition that he shall act as execu- 345, 347. tor will draw Interest from the date • Scofield V. St. John, 65 How. Pr. upon which he qualifies. In re Gar J- (N. y.) 292; Harrison v. Eowley, 4 ner, 61 L. T. (N. S.) 552; Long v. Gard- Ves. 212; Lewis v. Mathews, L. R. 8 ner, Id. Eq. 277. A legacy to a person on CHAPTER XXXII. TESTAMENTARY ESTATES IN FEE TAIL — THE CONSTRUCTION OF "HEIRS OF THE BODY" AS WORDS OF LIMITATION. § 644. Estates tail at the common law. 04.1 Language by which an estate tail may be created. G4G. An estate in fee tail may be created by informal words. G47. The words " male heirs " cre- ate an estate tail. 648. Limitations in special fee tail. 649. The word " son " as a word of limitation. 650. Estates tail by implication. § 051. Words directing an equality of division among lieirs of the body. AVords of limitation and in- lieritance added to "heirs of the body." Estates tail in the United States. 654. Statutory regulations of es- tates tail in the United States. 052. 053. § 644. Estates tail at the common law. — It is impossible in this work to treat at full length of the rules regulating es- tates in fee tail. They will be found fully treated in those treatises which have for their object the discussion of the ele- ments of the law of real property.^ It is sufficient here to say that estates tail owe their ori<^in to the Statute of Westmins- ter II, 15 Edw. I, c. 1, commonly called the statute de donis. Prior to the passage of this statute a limitation of a fee to A. and to the heirs of his body was regarded as creating a fee- simple conditional, i. c, a fee on condition. If A. died with- out issue the lands reverted to the grantor, but as soon as he had issue the condition on which he held the fee was per- formed, and he had a fee simple absolutely, which he could alienate or charge and so bar his issue, and over which the grantor had no control.'^ This statute in terms provided that the estate granted to A. should be protected to his issue, and at the same time it deprived the first grantee of all power to alienate the fee of the estate. Its main object was to reserve in the grantor and his heirs the reversion of the fee simple. 1 4 Kent, Com., pp. 12, 18; 2 Black- Com., p. 114. 2 2 Black. Com., p. 111. § 046.] TESTAMEXTAKY ESTATES IX FEE TAIL. SGI The fee was in abeyance until an indefinite failure of issue took place, when it reverted to the grantor or his heirs. ^ The perpetuity thus established Avas, as well may be be- lieved, injurious to the commerce in land; but though numer- ous attempts were made in parliament to repeal the statute, it was not until the twelfth year of Edward IV that common recoveries were invented, by means of which the estate tail could be aliened. This method of conveying an estate tail, which was the only method down to the beginning of the pres- ent century, in England, conveys a fee simple absolutely." § 645. Language by which an estate tail may be created. — A devise to a person and the heirs of his body creates an es- tate tail general. If the devise is to a person and the heirs of his body by a particular marriage, an estate tail special is cre- ated, and descends to the heirs of his body by that marriage. And, also, an estate in tail, general or special, may be limited either to the heirs male or female.^ § 646. An estate in fee tail may be created by informal words. — The proper and technical language required to create an estate tail is a limitation to the heirs of the body, and this i.See Willion v. Berkely, Plowd. 233. 23.5, 247. 2Taltarum's Case, 5 Co. Lit. 19 B.; Portington's Case, 5 Co. 35. In con- struing the statute tlie courts held that the donee no longer had a con- ditional fee which became absolute as so(jn as issue was born, but that he had a new estate called a fee tail, with an interest in the lieirs of his body which he could not alfect, and a reversion in fee on an indefinite failure of his issue in the donor. 2 Inst. 33r>. 'Smith V. Greer, r, S. U. 1)11. ss Ala. 414; Flinn v. Davis, IH Ala. 132, 134; Fellows V. Tann. 9 Ala. (1HI«). 1003: Mfxxly V. Walker. 3 Ark. (isn), 147; Myar v. Snow, 4!» Ark. 12.">, 4 S. W. It 381; Johnsfjn v. Joiinsfjn, 2 Met. (Ky.) 331; Penningtfin v. P(»nning- t^jn. 17 Atl. R 329. 70 Md. 4IH; I'rcs- cott V. Prcwotts Heirs, 10 ]i. Moii. (40Ky.).'W; Lachland'alJeirs v.D«.wn- ing. 11 B. :Mon. (Ky.) 33; McMeekin V. Smith (Ky. 1893), 21 S. W. R. 353; Riggs v. Sallj'. 15 Me. (3 Shep., 18391, 408; Fisk v. Keene, 35 Me. 349; Spencer v. Chick, 70 Me. 347; Stans- bury v. liubner, 20 Atl. R. 904, 73 Md. 228; Wells v. Beall, 2 Gill & J. (Md.) 458; Brown v. Addison Gilbert Hospital, 155 Mass. 323, 29 N. E. R 625; Williams v. Hichborn, 4 Mass. 189; Brown v. Rodgers (Mo.), 28 S. W. R G30; Doty v. Teller. 54 N. J. L. 1(53, 23 Atl. R 944; Kcnnc.ly v. Keii- noily, 29 N. J. Law. ISO; Woudell v. Crandaii, 1 N. Y. 491; Shalters v. Ladd. 141 Pa. St. 349. 21 Atl. R 59(;. 28 W. N. C. 33; Linn v. Alexander. 59 Pa. St. 43; Cooper v. Coursey. 3 Coldw, (43 Tenn., 1807), 41(5; Man- chester V. Durfee, 5 R I. (1857), 549; In re Kelsf)'s I-:Htate. 09 Vt. 272. 274, 37 Atl. It. 717; Sydnor v. Sydnor. 2 Muuf. (Va.. 1811;, 203; 2 Black. Com.. I). 111. 802 LAW OF WILLS. [§ 647. estate cannot be created without words of procreation in a deed at the common law. But in construing wills the rule is other- "wise. Thus, a limitation to A. and his offsjrnng,^ or to A. and his family, according to seniority,- to A. et aemlni suo^ to A. and his heirs of the third generation,* to A. and his bodily heirs,' to A. and his heir (in the singular) lawfully hcgotten^' or to A. and his " legal heirs," "^ or to A. and the heir of the body of A. who may he living at his death^ or to A. and the heir of his body, in the singular,^ gives A. an estate in tail. So, also, Avhere the word " issue " is used as a word of limitation, meaning simply the "heirs of the body," as to A. and his issue, they take by descent, and it will be an estate in tail in A,^° And the same rule of construction is applied to a limitation to children,'^ where it clearly appears that the testator has used the word " children " as equivalent to " heirs of the body," taking in the "whole line of lineal desccndants.'- § 647. The words " male heirs " create an estate in tail. A devise to the " male heirs " of the testator,^' to A. and his 7n.ale heirs^^ to A. and his heirs male who attain the age oftwenty- ' Young V. Davis, 2 Dr. & Smale, 167. See also Barber v. Railroad Co., 166 U. S. 8S, 89; Allen v. Markle, 36 Pa. St. 117. 2 Lucas V. Goldsmid, 29 Beav. 6.j7. 3 Co. Lit. 9 b; 2 Black. Com., p. 114. < Naylor v. Loomis, 9 Ohio Cii-. Ct. R 96, 2 Ohio Dec. 114; Mortimer v. Hanley, 6 Ex. 47, 3 De Gex & Smale, 316. 5 Barret v. Beckford, 1 Ves. 521. « Hall V. Vandegrift, 3 Binn. (Pa., 1811), 374; Dubber v. Trollope, Amb. 4.53, 8 Vin. 233, pi. 13; Whiting v. Wil- son, 1 Buls. 219. So held in Church v. Myatt, jMoore, 637, Co. Lit. 20b, 9, 27. See also Nanfan v. Legh, 2 Marsh. 107, 7 Taunt. 85, where the limitation was et hceredibus suis legitime pro- creatis. 7 Perry v. Kline, 12 Gush. (Mass.) 123, 125. But see contra, Mathews v. Gardner, 17 Beav. 254; Simpson v. Ashworth, 6 Beav. 412, where the words " lawful heirs " are used. 8 Richards v. Lady Abergaveny, 2 Vernon, 32. i'Pawsey v. Lowdall, Styles, 249, 273. 10 See pos#, §670. ^^Ante, §580. i-iSeibert v. Wise, 70 Pa. St. 147, 149; Knoderer v. Merriman (Pa., 1887), 7 Atl. R. 152; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. R. 796; Wheat- land V. Dodge, 10 Met. (IMass.) 502; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Haldeman v, Haldeman, 40 Pa. St. 29; Merry man v. Merry- man, 5 Munf. (Va.) 440. 13 Ford V. Lord Ossulton, 11 Mod. 189; 1 Wash. R. P. 110. 14 Dawes v. Ferers, 2 P. W. 1 ; Ba- ker V. Wall, 1 Lord Ray. 185; Doe d. Lindsey v. Col year, 11 East, 548, 563; Hamilton v. Hampstead, 3 Day (Conn.. 1808S 332; Eraser v. Chene, 3 Mich. (1852), 81.91; Cooper v. Cooper, 6 R. L 201: Brownell v. Brownell, 10 R L 509, 513, 514; 8 Vin. Ab., A., pL 13; § G47.] TESTAMENTAKY ESTATES IN FEE TAIL. 803 one^ to A. and his heir male, ia the singular," or to A. and his oldest heir male,^ creates an estate tail male in A,, though words of procreation are not employed. The same rule will apply to a limitation to A. and his heirs female. If the devise is to A. for life, and after his death to his heirs male or heirs female in fee. the first taker will take a fee tail special by the operation of the rule in Shelky's case.^ In all such cases the words " of the body " will be inserted by implication. This construction is strengthened by a devise over upon an indefi- nite failure of issue or upon an indefinite failure of an heir male.^ Whether a limitation to the next heir male will enable him to take by descent or purchase depends upon nice distinctions of language. If the devise is to A. for life, remainder to his next heir male, simply,^ or to A. and to \i\& first male heir"' or to A. and his wife for life, remainder to the next male heir of their bodies,^ A. takes an estate in fee tail special by the operation of the rule in Shelley's case. But if the testator, after a life estate in the ancestor, has added words in a devise to the next heir male, indicating that he intends that person to be a new stock of in- heritance, he who is the next heir male at the death of the first taker will take as persona designata. So where the land is de- vised to A. for life, and after his death to his next heir male, and to the heirs male of the hodij of such heir male, the person thus designated as next heir male will take a contingent reuuiinder by purchase, which is defeated by his death before his ances- tor, in which event he can never be an heir, but vesting in him absolutely on the death of the ancestor." And the same rule I Preston on Estates, 213,314, 530; Wells, 1 Lord Raymoiul, IS,"): South- Hawkins on Wills, p. 173; 3 Black, coto v. Stewell, 1 Modern, 2'H), ^'37; Com., p. ll.j; Co. Lit. 27a. Wrif,'lit v. Vernon, 4 Jur. (N. S.) 113, > Doe d. Tremewen v. Permewen, 2 Drewry, 449, 431. 7 IL L. C. 3."); AlU II AdoL & Ellis, 431. Rood v. Blake, L. R. 7 E.x. 3(53; Asli- 2 Oslxjrne v. Slirieve, 3 Mason, C. C. enhurst's Case, Hob. 34. (182.'i), 3'Jl; Brounell v. Brownell, 10 » Osborne v. Shrievo, 3 Mason. C. C. It. L rm, 513; Canedy v. llaskins, 13 391; Malcolm v. Malcolm, 3 Cusli. (57 Met. (Mass.) 3M'.), 402; ]{la<-kl>urn v. iMass., \H\\)), 472; Duo d. Winter v. Stabl.ts, 3 Ves. & B. 307, 30'J; Lisle v. Penatt, 5 Barn. & Cress. O.j, 3 iM. «fc Puliin. .Stran-e, 729, 731. Sc. OO."), »Cuiro V. Milk, 10 .Met. (.',1 Mass.) «> Hurley's Case. 1 Vent. 230; 10 306, :W)\ Canedy v. Haskins, Hiipm. Viner, .\l)r. (II.). pi. 4, n. * DcK'd. Lindsjiy v. C\vnell v. Brownell, 10 » Kdberts on (iavelkind, 122. K. L 509, 513. See uIbo Baker v. » Archer's Case, 1 Uep. 00. 804 LAW OF WILLS. [§ G48. a])pli(\s if the added limitation is to tlic heirs general of the next heir male.* g G48. Liinitsitions in special fee tail. — A devise to A. and ?u's /airs hy h/'s j^rcscnt wife creates an estate tail special in A. from Avhich the wife is excluded, and only the issue engen- y his first, sec- held that a statute converting the ^ B3-field's Case, citing King v. Mel- "fee tail general into a fee simple ling, 1 Vent. 225, 231; Milliner v. Rob- estiite has no application to a fee tail inson, 1 Moore, GH2, jil. UoO; Kobiii- si)ecial." Pennington v. Pennington, son v. l^jbinson, 1 Burr. IJS, ;j B. P. C. 17 Atl. R :i29, 70 Md. 41H. The con- Toinl. IHO; (Jarrod v. (Jarrod, 2 B. & traryLs held where the statute simply A. H7; Andrew v. Andrew, L. li, I has reference to an estate in tad. Cii. D. 410. Welliverv. Jones, 160 111. 80, 46 N.E. « Mellish v. Mcllish, 2 Barn. & R 712. Cress w. r)20. r)2;{-r»2r), y Dow. & Ky. 'Gfwsage V. Taylor, Styles, .'{25; and HOI. Where the devise was to " A. com|»ftre Ii^)l)ins<)n v. Wharrey, 11 and her son, but, if she Iiad morn Wils. 125, 111, \viii(;h is contni to tlie than one dauglitcr. to tiic eldrst ; but text. if no cliiidrcii at her death." tlu'n 2AI[«iss V. Watkins, H T. H. 51(;. over, A. ti>ok an estate in tail male. The ilistinctif>ti iM-twjM'ii heirs on the * Walker's Adm'r v. Lewis, DO Va, Ixxly and heirs o/ the Ijody is lino 57K, IDS. E. R 20b. aud eludes th<.- ordinary intelle(,'t. 05 SGO LAW OF WILLS. [§ 649. oml, third, etc., so?is, gives A. an estate for life, and his sons take as purchasers.^ The same question that has arisen as to the meaning and effect of the word " sons " has also arisen in construine: the words " eldest so7i." If these latter words are words of lim- itation, they are synonymous with " male heir of the body," and the father will take an estate in special fee tail male. If they are words of purchase they simply designate a person who, at the death of the father, should be the eldest son then living,' and he will take a vested estate in fee simple as a pur- chaser. It was at one time held that in a devise to A. for life, with remainder to his ^^ eldest son" and a devise over on A.'s death lolthoutlaicful issue, that A. took an estate tail male, the words "eldest son" being words of limitation, and the rule in Shelley's case being applied.'^ This early case has been sub- sequently followed.* The case in which the words "eldest son " were construed as words of limitation fixed a meaning so contrary to the general and primary sense of the words that in a subsequent consideration of the same will at considerable length in the House of Lords nearly a century later, the earlier rule was condemned. It was then determined that the words *' eldest son," or " first " or " other sons," were not primarily "words of limitation, but that they designated the person who should take as purchaser in remainder, and that he took as a purchaser.' Xor will the fact that the testator, after devising land to A. for life with a remainder to his eldest son, provides for an indefinite failure of issue, alter this construction under existing rules to make the estate a tail male, as it would be ordinarily where there is a devise over on an indefinite fail- ure of issue of the first taker.^ And in a case of a devise to 1 Law V. Davis, Strange. 849. * Lewis v. Puxley, 16 Mee. & WeL - Gardiner v. Guild, 106 Mass. 25, 28. 733, 7-10 (18-17) ; and Forsbrook v. Fors- 3 Cliorlton V. Craven, 3 Dow. & Ry. brook, L. R. 3 Ch. App. 93, 98 (1867), 808, and Simpers v. Simpers, 15 Md. where the limitation was to the 160. And a devise, prior to the stat- eldest sons of two life tenants, who ute abolishing the rule in Shelley's should take for their lives, and " so case, to A- for life, " and at his death on the eldest sons of the two families to descend to the eldest male heir of forever.'' his body, and on failure thereof to hi« ^ Parker v. Tootal, 11 H. L. Cas. 143. heirs general,'' is within the rule. ^ Doe d. Burrin v. Charlton, 1 Scott Goodrich v. Lambert, 10 Conn. (1835), N. R 290, 302-308, 1 M & Gr. 429. 449. See also cases post, % 661. § 050.] TESTAMENTARY ESTATES IN FEE TAIL. 867 the eldest son, with a limitation over ^'■vyiihout having a son,''^ this will not alter the construction, because it is simply equiva- lent to death without leaving such eldest son, since, if the fatlier die without any son, there can of course be no eldest son surviving him.' § 650. Estates tail by implication on an indefinite failure of issue. — If the testator devise an estate to A. and his heirs, and couple this with a devise over of the property on the first taker's death without issue, or equivalent words, the hrst taker takes an estate in fee tail. This is of course assuming that the testator has used the words " dying without issue " as meaning an indefinite failure of issue." In all cases where there is a devise over after the devise in fee, upon the failure of issue or death without issue of the first devisee, the word " heirs " will be construed to mean " heirs of the body," and the first taker will take an estate tail, with a contingent remainder over to take effect upon a total extinction of his issue at any time. This has been the rule in England for centuries,' and is also the rule in the United States.* 1 Bennett v. Bennett, 2 Dr. & Sm. 266; Andrew v. Andrew, L. R. 1 Cli. D. 410, 412. 2 In the absence of statute, as is elsewhere explained in this work, a limitation over in case of the death of the first taker without issue means an indefinite failure of is.sue. though this presumption is never conclasive. and may be rebutted by language in the context indicating that the testator used the words to denote a definite failure of issue, i. e., a failure of issue siirvivivfj the pri- mary devisee. Post, % >i^A et seij. a Sunday's Case, 9 Co. 127 B. ; Robin- son's Case, 1 Ventris, 2;{i); Clark's Case, 1 Rolle's Abr.8:39. pl.4.Mo; St. John v. Dann. 66 Conn. 401, 84 Atl. R. 110, 112; Hud- son v. Wadsworth, 8 Conn. (1881), 348, 360; Main waring v. Taber, 1 Root (Conn., 1789), 79; Blair v. Vanblar- cum, 71 111. 290; Summers v. Smith, 21 N. E. R. 191, 127 111. 645; Fisk v. Keene, 35 Me. 349, 355; Pratt v. Flamer, 5 Harr. & J. (Md., 1822). 10; Chew v. Chew. 1 Md. (1851), 163: Hax- ton V. Archer, 3 Gill & J. {:\Id.) 199; Hurl hurt v. f'merson, 16 Mass. 241; Albee v. Carpenter, 12 Cush. (66 Mass.) 382; Parker v. Parker, 5 Met. (^Mass.) l-U 139; Ide v. Ide, 5 Mass. (1809), 500; Hall v. Priest, 6 Gray, 18, 20; Ilawley v. Nortliamjiton, 8 Masa 3; Nightingale v. Burrell(1833), 15 Pick. 104, 114; Gilford v. Choate, 100 Ma.ss. 343, 345; Allen v. Trustoo.s, 102 Mas-s. 262, 261; Brown v. Hospital, 155 Mas,s. 323, 326; Gmxiell v. Hibbard. 32 Mich. 47. 51; Wilson v. Wilson. 19 AtL R. 132, 46 N. J. Eq. 321; Chet- 868 LAW OF WILLS. [§ G50. The same rule generally is applicable where the devise is to A. and his heirs, and then over on default of heirs. If the dev- isee over is himself the heir of the lirst taker, and Avould take the fee from him by descent in case he should die without issue surviving him, then the limitation over on "dying Avithout heirs" will be construed as equivalent to death without heirs of the botly indelinitely, or without issue, and the primary devisee will take an estate in fee tail.^ Thus, where the devise was to- A. and B. and their heirs, and if either should die without heirs, then to the other,- or to A., and if she should die with- out heirs, then, to her brother,' an estate tail was held to have been created in the first taker. Whether a devise creates an estate tail w^here it is expressly for the life of A., and in default of issue over, has been much discussed. The application of the rule to such a case w^as de- nied in England. As the testator very clearly intended that A. was to take a life estate, the court could not contradict the intention and by implication give hira an estate in fee tail. But in other cases where the devise was to A. for his natural life, remainder to the heirs of h is hody, with a devise over on his death without issue, it was held that he took an estate in tail, wood V. Winston, 40 N. J. L. 337; Moore v. Rake, 26 N. J. L. 574; Fos- dick V. Cornell, 1 Johns. (N. Y., 1806), 440; Ross v. Toms, 4 Dev. (12 N. C.) L. 377; Saunders v. Hyatt, 1 Hawks (8 N. C 1831), 247; Pax'son v. Lefferts. 3 Rawle (Pa.), 59; Duer v. Boyd, 1 Serg. & R. (Pa., 1814). 203; Heffner v. Knapper, 6 Watts, 18; Eichelberger V. Barnitz, 9 Watts (Pa., 1837), 447; Wynn v. Story, 38 Pa. St. 166: Pien;e V. Hakes, 83 Pa. St. 231; Russell v. Hubbell, 24 Pa. St. 244; Moody v. Snell, 81 Pa. St. 359; Hackney v. Tracy, 137 Pa. St. 53, 20 Atl. R. 560; Ray V. Alexander, 23 Atl. R 383, 29 W. N. C. 241, 146 Pa. St. 242; In re Hofif, 147 Pa. St. 636, 23 Atl. R. 890; Adams v. Chaplin. 1 Hill, Eq. (S. C, 1833), 265; Thomason v. Anderson, 4 Leigh (Va.), 118; Bells v. Gillespie, 5 Rand. (Va.) 273; Williamson v. Dan- iel, 12 Wheat. (U. S.) 508; Parkman V. Bowdoin. 1 Sumn. C. C. 359; Os- borne V. Shrieve, 3 Mason, C. C. 391. If the contingency of death without issue or heirs is coupled with another event, as. for example, death without heirs in the life-time of A., tlie failure of issue is definite, and the first dev- isee takes a conditional fee with an executory devise over. Pells v. Brown. Cro. Jac. 590: Denn v. Kemeys, 9 East, 366; Doe v. ChafTey, 16 M. & Welsby, 656. See cases note supra. 1 Chesebro v. Palmer, 68 Conn. 207, 36 Atl. R. 42; Doe v. Lampleugh, 3 Houst. (Del., 1867), 469; Seybert v. Hibbert, 5 Pa. Super. Ct. 537, 41 W. N. C. 85; Cochran v. Cochran, 127 Pa. St. 486, 17 Atl. R 981; Titzell v. Cochrane, 10 Atl. R. 9. 2 Hawley v. Northampton, 8 Mass. 3. 3 Lee V. Craigen, 8 Leigh (Va., 1837), 449. ^^ 050.] TESTAMENTARY ESTATES IN FEE TAIL. 8C9 under tlie rule in Shelley's case, provided, of course, that the failure of issue intended by the testator was an indefinite fail- ure of issue. And even where the estate was for A.'s life, with a remainder to another i)erson (B.), and if A. should die without issue, then over to C, it was held that this limitation gave him a fee tail.^ A different rule has been laid down in the United States, wherever by statute the failure of issue is presumed to mean a failure of issue living at the death of the testator. If, therefore, land shall be devised to A. for life, the remainder in fee not being expressly disposed of, but on A.'s death without issue, then to others, the limitation on death without issue will not enlarffe the life estate in A. to a fee tail.^ A devise to a person m indeterminate language^ or to him and his heirs, and in case he dies leaving no child or children, or if he dies with- out children, then over to others, gives the devisee named an estate in tail by implication, and a remainder in fee limited over thereon is valid, and will vest if A. dies without leaving children survivinir at his death. ^ iBamfield v. Popham (1702). 1 P. ■\Vm.s. 54, 57; Blackborn v. Edgeley, 1 P. Wms. 605; Langley v. Baldwin, 1 P. Wins. 759; Stanley v. Leonard, 1 Eden. 87 : Attorney-General v. Sutton, 1 P. Wnis. 754. .3 Bro. P. C. 75; Par v. Swindels, 4 Russ. 2:38; Key v. Key, 4 D., :il. & G. 73; Machell v. Weeding, « Sim. 4. 2Flinn v. Davis, 18 Ala. (1850). 1:32, l:!4; Stone v. Franklin. 89 Ga. 195. 15 S. E. R. 47; Thomas v. Miller. IGl 111. m, 4:3 N. E. R. 848; Wilson v. O'Con- nell, 147 Mass. 17. 10 N. E. R. 57H; Eldred v. Shuw (Mich.), 70 N. W. R. 545; Curtis v. Longstreth, 44 Pa. St. 297; Walker v. Miliigan, 45 Pa. St. 178: Ix?e v. I^iw (Va.). 19 S. E. R. 255. A will provided as follows: "To my daughter M.. I direct my e.\ecutors to jKiy her the interest arising from the two-lifths of my estate during lier natural life, and at her death the princi|iiil, lj-fifths of my estate, is to Ix* eipially divideil Im'- twe^'n Iwr chililn-ii, slian- and shan* alike; hut, if my siiid daiigiitf-r .M. should die without leaving issue, then the said interest hereby devised to her shall revert to my estate."' Held, that the daughter took an es- tate tail, wliich. under act April 27, 1855, becomes an estate in fee simple. In re Robinsons Estate. 140 Pa. St. 418 (Pa. Sup.), 24 Atl. R 297; Appeal of Bowie, id. 3 Matthews v. Hudson, 81 Ga. 120, 7 S. E. R. 280; Richardson v. Richard- son, 80 Me. 585, 10 Atl. R. 250; East v. Garrett, 84 Va. 523, 9 S. p:. R. 1112: Ilolden V. Wells, 18 R. I. 802, 31 Atl. R. 205; Ralston v. Truesdell, 178 Pa. St. 429, 35 Atl. R. 813; In re Mot>r- head's Estate, 180 Pa. St. 119, ;{0 Atl. R. 047; Moore v. (iary. 149 Ind. 51. 48 N. E. R. 0:30; Raggett v. Beaty, 2 M. & P. 512. 5 Bing. 243. To A., and if he have a chiUl, then for such child after the parent's decejise, but if n(» (rhild, then over, where A. hud no child, either at the death of the te.s- tator nor date of will, gave her an es- tati" tail. Doe d. Jones v. Davi.s, 4 B. & Aid. v.). To A. lor ins life, and t«> 870 LAW OF -WILLS. [§ 651. The doctrine of the creation of an estate tail by implication, above explained, lias no application whatever where an estate is a fee simple, with a limitation over upon failure of issue, and it appears either from the will itself, or where the common-law rule is niodilied by statute, that the failure of issue referred to is the failure of issue living at the death of the first taker. If the primary devisee has an estate in fee which is defeasible upon a definite failure, i. e., of issue living at his death, it be- comes indefeasible in him on his having issue who sm^vive him, and he may provide for such issue by devising the fee to them. "When the testator limits an estate to some person upon the death of his heir at law without issue, the heir at law will take an estate by implication, providing the failure of issue referred to is an indefinite failure, and there is a devise over of the fee, either expressly or by necessary implication.^ § 651. Words directing equality of division among heirs of the body. — The presumption that the words " heir of the body " or "heirs of the body " are used in a technical sense, though it obtains in the large majority of cases, is not always conclusive. The law of construction that the intention of the testator, how- ever expressed, must prevail, will be enough to vary the meaning of these words, if it is apparent that the testator, though using the technical words, has used them in a non-technical sense. Elsewhere it is explained that the rule in Shelley's case is never applied to a devise to A. for life, remainder in fee to his children;- and if the testator, though using the words "heir of the body " or " heirs of the body " in the creation of a re- mainder, evidently intended those words to describe the chil- dren of the life tenant, the rule will not apply ;^ for it is imma- terial what words the testator uses if we ascertain whom he meant. his son, if he have any, and to the which case the devise was if R die eldest son of that son, if he have one; before he hatli any issue, so that the but if no son of A., or no eldest son, lands descend to G. And see Doe d. then to B., gives X. an estate tail Cape v. Walker, 2 M. & G. 113, where male. Doe d. GaiTod v. Garrod, 26 tlie language was, " if it shall happen B. & A. 87; ante, ^ 649. my son B. and my two daughters die 1 Goodridge v. Goodridge, 7 Mod. without issue of tlieir bodies," law- 453, 455, in which the devise was to fully begotten, then my lands go to A- for life, and if G, the heir at law, D. and his heirs, shall die without heirs, then D. shall 2 post, % 662. enjoy the land. See also Newton v. 3 Ante, g 616. Barnardine, Moore, 127, Owen, 29, in § 051.] TESTAMENTARY ESTATES IN FEE TAIL. S71 Here we must consider the effect of the words indicating equality of division in affixing the meaning " children " to the term " heirs of the body." Thus, for example, suppose there shall be a devise to A. for his natural life, remainder to the heirs of his body, '■^ share and share alike^'' or " to take equally,''^ or ^Hn eqrial parts,^^ or '^to he equally divided among them." or with similar words indicating an intention that the heirs shall take concurrently and equally. Under such circumstances we will have to choose between two alternatives. For, assuming that the words " heirs of the body " are used in a technical sense as words of descent, the direction for an equal division is, in most instances, absolutely repugnant to them. If the testator intended that all the heirs of the body shall take in succession, as they will by descent, they can never take equally where they happen to be related in unequal degrees to the an- cestor. The English cases, arguing that the general intent manifest from the whole will shall overrule a particular in- tent manifested in any portion of it, have taken the words used in a technical sense, and have rejected as irreconcilably repug- nant to them the words indicating a particular intention that the heirs of the body should take concurrently and distribu- tively. Accordingly, where the devise was to A. for his life, and to the heirs of his body as tenants in corariion^ or to A. and the heirs of his body, whether sons or daughters^ as tenants in common,^ or to A. for life, and to the heirs of his body " in such shares, manner or form as A. should by the will appoint,"^ the rule in Shelley's case was applied, and A. took an estate in fee tail. As respects the influence of a direction that heirs shall take as tenants in common on the rule in Siielley's case, the law is firiidy settled in England. The words "as tenants in common" are usually rejected; and, though it has been said that the testator may, hy proper languaye^ show that by "heirs of the Ijody " he means children, yet ho must do so in words which are very clear in their iiwaninfj. Where the testator used the word "child" or "children" in connection with a re- maindcT limited to heirs of the body, the court in England > iJfM! d. Chaiiiller V. SiiiiUi. 7 T. li. - Picrson v. Vickfrs. f) R-ist. r»l8; 532; Ik-nriott v. Earl of Tankerville, liosnnll v. Harvey. 4 H. eal, 30 Pa. St. 172; Taylor V. Taylor, 63 Pa. St, 486; Guthrie's Appeal, 37 Pa. St 9. < Wight V. Thayer, 1 Gray (67 Masa, 1854), 2«4, 286; Buxton v. Uxbridge, 1 Met (42 Mass., 1840). 87; Davis v, IL'iyden, 9 Mass. 514; Weld v. Will- iarn.s, 13 M(!t (Mass.) 486; Nightingale v. Burndl, 15 Pi<;k. 104. 116. *In Pennsylvania a d<*viw! to A., and in the event of Ikt "(lying im- nuirried, or, if married, dying witli- out ofTspring by her liusbaml, then theso lotH aro to bo Hold, uud tho pro- ceeds to be equally divided among the heirs of J.," creates an estate in tail in A. Barber v, Pittsburgh, F. W, & C. Ry. Co., 166 U. S, 83, 99, 17 S. Ct 488, 6R. S. 1867, § 1570; R S. 1876, § 2179; Code, § 1825; Smith v. Greer, 88 Ala. 414, 6 S. R 911. 7 Code, ^,^5 763. 764 8 Act of 1784, Gen, St, ch. 89, 8§ 4, 8; ch, 90, § 36; Allen v. Trustees, 102 Mass. 262, 264. 9 Code 1872, p. 507, § 27. 10 Thompson's Dig., tit 2, ch. 1, § 4, 11 Code 1873, p. 391, § 2250; Robert V, West, 15 Ga, 122, 145; Pownel v. Harris, 29 Giu 736; Ford v. Cook, 73 Ga, 215; Craig v, Ambrose, 80 Ga. 134, 4 S. K R. 1; Wilkerson v. Clark, 80 Ga. 367, 7 S. K R. 319. 12 Gen, St 1873. p, 585; Gen, St, ch- 63, art 1, § 8; Daniel v, Thompson, 14 B, Mon, (Ky„ 1854). 662; Deboe v. T^)\von, 8 B. Mon. (Ky., 1848). 616; Priiilt V, Holland, 92 Ky, 641, 18 S. W. K. «H3: Sanders v. Wale.* The common-law courts, with their adherence to precedent and their devotion to technicalities, fol- lowed it implicitly. It was a recognized rule of the cDinmon law for centuries, applicable equally to deeds and to wills; and ' In Pfrrin v. Bl.ik»». lisliod in En;,'I;iini,anil that for many 'It in futilo to discuss tlio question r«»nt»ni In Perrin v. Blake, supra, the tes- Bl. 672. See also Hargraves, L. T. 489. tator devised his estate to liis son W., ^Post, chapter on Remainders. and the infant of which his wife was § 656.] APPLICATION OF RULE IX SHELLEY's CASE. SSI applicable where the limitation to the heirs is by way of a con- tingent remainder. An executory devise to heirs, or a shifting or a springing use to the heirs of a person who himself takes a previous estate of freehold, vests in the heirs as purchasers and not by descent.^ § 656. The life estate in the ancestor and the remainder must be created by the same instrument. — In order that the rule in Shelley's case shall be applicable to a limitation to one for his life, and remainder to his heirs, it is indispensable that hoth interests shall he given hy the same instrument. A will and any paper which is incorporated with it by reference - are re- garded as one instrument for this purpose.' So, for the same purpose, a will and the various codicils added to it are one paper, whether attached or not. But where a parent by a marriage settlement conveys land to his child for life, and by his subsequent will devises a fee in remainder in the same to the issue of the marriage, the issue take as pur- chasers, and not by descent,* for the estates are not created by the same instrument. The question has been asked whether the rule in Shelley's case applies where a freehold estate is created by an instru- ment which also confers a power to appoint the remainder hy another instrument, as a devise to A. for life with a power of appointment in him by deed or will among his heirs or the heirs of his body. Some authorities, relying on the rule that the objects of the exercise of the power take under the first pregnant, for the term of tlieir nat- he took an estate in fee tail. For ural lives, with a remainder to G. and other English authorities on the rule his heirs for the life of said son W. in Shelley's case, see Whiting v. AVil- and the infant, with the remainder kins, 1 Bulstrode, 211); Lloyd v. to the ht.'irs of the body of said son Carew, Pre. Ch. 72, Show. 1:57; Rim- and said infant; and various remain- dale v. Eley, Carthew. 170; Ihough- ders over for life and in fee. The ton v. Langley, 2 Lord Kaymond, .s7;{, widow proved not to be enceinte. 2 Salkeld. 07S(; Lisle v. ( i ray. Sir Th. The cpiestion was whether A. took Jones, 11-1, 2 Levin/,. 22;{, Toilcx. .W3. an estate for life with a remaiiuler • Lloyd v. Carew, I're. (Jlu 72. to the heirs of his iiotly, «»r whether ■'Seo ^,^ 271J-2y 1. lie tofjk a. fe<3 tail. On the lirst trial 'Hayes d. Foord v. Foordo, 2 W. of this f-a-se I»rd Mansfield, with Ash- W. «i»H. ton and Willes, licld that he took an <.Ms^.rj-in v. Blake, 4 Burr. 2579. that the ancestor shall have only a SS4r LAW OF WILLS. [§ G58. the words as to what perKons are to tako, l)iit in icJiat cnjmcity they are to tako. "When we enih-avor to ascertain whom the testator meant by "heirs" or "heirs of the body," and have ascertained that he meant those who would take hind by descent on the death of the life tenant, the question arises, how shall they take? That is to say, shall they take by de- scent from their ancestor, or shall they take as purchasers, as a new stock of inheritance ? If he used the words in their strict jind primary sense, the rule in Shelley's case applies, and they will take by descent. The burden of proof is upon him who claims that heirs arc to take as purchasers; and while, if it appears that the words "heirs" or "heirs of the body" are used in their technical and legal sense as -words of descent, an inconsistent expi'cssion of intention, that the ancestor shall take a life estate Avill not be permitted to overcome the technical meaning,' yet a secondary meaning may be attached to the words. If it shall appear from the will itself that the testator used the words "heirs" or " heirs of the body " in the sense of sons, daughters or chil- dren, as words of purchase, the rule will not apply ;^ for the question in construing wills is not, "What words has the testa- tor used ? but, What meaning did he attach to them ? And in those cases which permit the rule to be overcome by an expression of intention, there is always something besides the mere express limitation " to A. and his heirs," which gives a signification to the word " heirs " other than its primary and 1 Baker v. Scott, 63 111. (1871), 88; 2:\rcMahon v. Newcomer, 83 Ind. Van Olinda v. Carpenter. 137 III. 43, 565, 568; Millett v. Ford, 109 Ind, 159, 19 N. K R 868; Thomas v. Higgins, 164; Conger v. Lowe, 134 Ind. 368, 47 Md. (1877), 439: Warner v. Spiegg, 374; Jackson v. Jackson, 137 Ind. 346, 62 Md. 14; Hileman v. Bouslagh, 13 349; Earnliart v. Earnliart, 36 N. R Pa. St. (1849), 344, 351; Cockin's Ap- R 895, 137 Ind. 397; McCrary v. Lipp, peal. 111 Pa. St. 36; List v. Rodney, 35 Ind. 116, 131; Zavitz v. Preston, 96 83 Pa. St. (1877), 483. 491; Kleppner Iowa, 53, 53; Slemmer v. Crampton, V. Laverty, 70 Pa, St. 70, 73; Crockett 50 Iowa, 303, 304; Pierson v. Lane, 60 V. Roljdnson, 46 N. H. 461 (1866); Polk Iowa, 60, 14 N. W. R. 90; Kiene v. V. Paris, 9 Yerg. (Tenn.) 309, 336. The Gniehle, 85 Iowa, 87, 89; De Vaughn rule in Shelley's case is applicable, v. Hutchinson, 17 S. Ct. 401, 166 U. S. -without regard to the intention of 566,570; Crawford v. Wearn, 30 S. E. "the testator, whenever the situation R. 734, 115 N. C. 540; Gerbardt's Es- is created that is pertinent to it. tate, 160 Pa. St. 353, 38 Atl. R. 684; Xippincott V. Davis (N, J.), 38 Atl, R, Little's Appeal, 117 Pa. St. 14, 11 Atl. $87. R. 530; Smith v. Hastings, 37 Vt. 475. § G5S.] APrLICATIOX OF ELLE IX SHELLEY S CASE. 8S5 technical one; but the intention to use the words "heirs" or- " heirs of the body " in any other than in a strict and legal sense must be unequivocally sho^Yn, This intention must ap- l^ear so plainly that no one can misunderstand it.^ It has been so laid down where the testator said he intended his son to have a life estate and nothing more{ or where he gave him the income for life, but that he should have no jpower to disjpose of the same for a term longer than his I'fe? If it appear that the word " heirs " is used in its legal sense, the expressed intention that the ancestor shall have a life es- tate alone will be disreo-arded.* 1 Guthrie's Appeal, 37 Pa. St. (1860), 9,13. 2 Robinson v. Robinson, 1 Burr. 38, 2 Ves. 225: Perrin v. Blake, 4 Burr. 2r)79; Thong v. Bedford, 1 Bro. C. C. 313. 3Wescott V. Binford (Iowa, 1898), 74 N. W. R. 18; Bedford v. Jenkins, 96 N. C. 2.54, 2 S. E. R. 522. * Van Olinda v. Carpenter, 127 111. 42, 19 N. E. R, 868; Lippincott v. Davis (N. J., 1897), 28 Atl. R 587; Ewing V. Barnes, 156 111. 61, 40 N. R R 61. Parol evidence of state- ments that the testator meant to give a life estate is, of course, in- admissible. Brown v. Bryant (Tex., 1898). 44 S. W. R. 399: McCrary v. Lipp, 35 InfL 116, 121. In a recent Iowa decision upon a devise of land to one, "to hold the same during the term of his natiu-al life," and giving him the use, rents and profits of it during such time, but providing tiiat he should "have no power to convey or dispose of the sjimo " for a jteriod longer than his life, anint of intention it mayap|H>jir tiiut the grantor meant that tlu> lirst taker Hliould have a life estat«* only, if it further appearc(l that l»y tho use of the terms " heirs of the lM)dy.' ' issue," 'bons,' 'cliildren.'i-tc., In* meant 8SG LAW OF AVILLS. [§ GoO. § 050. Eiiirlisli cases in wliicli an explanatory context ex- fhulestlie operation ol'tlie rule. — Tliou<^li ;i strong presump- tion exists that " heirs of the body " are to be taken, as words of limitation, it is not alwaj's conclusive. If the testator shows by the context that by " heirs of the body " he clearly means " children " or some other class who are to take as purchasers, the rule will not apply.^ Thus, for example, wiiere, after a re- mainder '■'■to the heirs male of the hochj of A.,'''' the testator pro- vides that " such sons shall take in order of seniority of age and priority of birth," ^ the elder of such sons to be preferred, or •where the remainder is given to " male heirs " in succession, and, in default of such male cJi'ddren, to the female children^ or to the heirs of the body of husband and wife, and, if more children than one, tiien to all,"* or to the heirs of the body, and, on the death of the parent, " to divide equallij among the children; " and if but one child, then to such only child,^ or to the male heirs in such proportion as their father 5A«7^ appoint," it will be pre- sumed that the testator meant children or sons only, by the words "heirs of the body,"'^ and they will take by purchase. But the intention to use the word " heirs," or " heirs of the bod}^," in the sense of words of purchase must be clearly ap- parent, for the presumption is in favor of their being words of limitation, and this presumption will be recognized "except •where the intention of the testator to the contrary is so plain that no one can misunderstand it."^ A direction that an es- the descendants of the first taker ^Goodtitle d. Sweet v. Herring, 1 should take in their character of East, 264, 273. heirs a descendible estate of inherit- ^ Ginger v. Wiiite, Willes, 348, 359. ance, exhausting the lineal stock of * North v. Martin, G Sim. 2G6. The the first taker. ... It matters words if "more children " interpret not liow strongly or how clearly the the words " heirs of the body." grantor may intend that the instru- ^ Gummoe v. Howes (185G), 23 Beav. nient shall not be controlled by the 184, 186, 190. rule of law, yet if the proper con- <> Jordan v. Adams, 6 Com. Bench, struction of the terms which he has 748, 9 id. 483. used in the entire instrument bring ^ Qf^ ante, §§ 651, 652. it within the operation of the rule of 8 By Lord Alvanley, in Poole t. law, the rule of law and not his in- Poole (1804), 3 Bos. & PuUen, G2(J. tention mast have effect." Reese, J., p. 627. For cases in which "issue" in Polk V. Paris (1836), 9 Yerg. (Ten n.) has been construed "children," see 209. on p. 236. post, § 675. 1 For cases in which " heirs " means "children," see § 616. § OGO.] AFPLICATION OF RULE IX SHELLEy's CASE. 887 tate shall not be sold by the life tenant, but that she shall have only the use of it^ and on her death to go to her heirs, does not exclude the rule.^ Xor will a direction that the life estate shall be without impeachment of waste prevent the rule from oper- ating.- § 660. The meaning which may attach to "heirs of the body " from the context. — The rule in Shelley's case is always applied where the testator has used the words "heirs of the body " in a technical sense to indicate persons who take by descent, and the prima facie presumption alwa^'S is that he has used these words in that sense. But this presumption is not conclusive, and if it shall appear from the will that he has used these words in a different sense, they will not be taken as words of limitation, but as words of purchase, and the rule in Shelley's case will not be applied. To what extent a limitation to the general heirs, coming after a devise of a remainder in fee to the heirs of the body of the life tenant, shall be permitted to modify the latter words, is a question upon which the cases are not harmonious.^ The English cases have decided that the circumstances tliat the fee was limited to the heirs general of the heirs of the hotly does not make the words ^^ heirs of the hody" words of purchase^ but that the rule in Shelley's case still applied, and the life tenant took an estate in fee tail.* The American cases in which this 1 Bishop V. Selleck, 1 Day (Conn., issue of tlie life tenant, whether a 1804), 299; Carradine v. Carradine, 33 definite or an indefinite faihire of Miss. 698, 727; 1 Preston, 36.3, 306; issue is intended, does not alone pre- Hayes V. Foorde, 2 W. BL 698; Fearne, vent the application of the rule in Cont. R. 17-1. Shelley's case. Kinch v. Ward (182r)), "-! Aurnan v. Auman, 21 Pa. St. 34.3, 2 S. & St. 411, 417; ]Measure v. (See 847; 6 Cruise, 353; Roberts on Gavel- (1822), r, Barn. & Alderson, 910; King kind, 96. v. King, 12 Ohio, 390, 472; Conzjilos 'Cy. ante, § C."i2. v. Barton, 45 Ind. 29.5, 296. Where *Goodright d. Lisle v. Pullin, 2 Ld. laiwl was devi.sed to A., and afti;r Ids Raym. 1437, Stnu 729; Wright v. dr-jith to liis lieirs, and on his death Pwirson (1758), 1 Eden, 119, 12.5, Amb. without heirs of the Itody then over, 8.58, 363 (heirs rnalej. See also Fearno th« devisi; over was rejcclt'd, ami on C erty to J. for life, " with remainder over to the heirs of her body, if she should have any, but, in case she should die without such heirs, then the said remainder to C," vests the property absolutely in J., though from the clause quoted and another provision the testator's intention to give J. only a life estate is manifest; as tlie rule in Shelley's case applies as well to leasehold as to freehold property. Hughes v. Nicklas (Md.), 17 Atl. R. 398, 70 Md. 484. iLillibridge v. Ross, 81 Ga. 730, where the language of the will was, "to descend to the heirs of lier l)oih% share and share alike, and to their heirs and assigns forever." Canedy V. Haskins, 13 Met. (Mass.) 389. 402, 403, where the limitation was to A. for life "and to his eldest male heir,, and after his death to said male heirs and assigns forever." And also Le- macks v. Glover, 1 Rich. Eq. (S. C.) 141; Wilson v. Wilcox, 7 R. I. 515, 517; Tanner v. Livingston, 12 Wend. (N. Y.) 83. 2 Brown v. Lyon, 6 X. Y. (1852), 419, 431 ; Brant v. Gelston, 2 Johns. Cas. (N. Y.) 384; Schoonmaker v. Sheely, 3 Denio (N. Y., 1846), 485; Carter v. Mc:Michael, 10 Serg. & R. (Pa.) 429; Paxson V. Lefferts, 3 Rawle (Pa.), 59; 75 (issue); George v. ^Morgan, IG Pa. St. 95, 105; Powell v. Board, 49 Pa. St. 46, 55. 3 Brown v. Lyon, 6 N. Y. (1852), 419, 421. * Criswell's Appeal, 41 Pa. St. 288. 661.] ArrLICATION OF KULE IX SEELLEY S CASE. 8S!> raainder is to the heirs with simihu" added words, the courts have refused to apply the rule.^ If the added words are merely a repetition of the previous words of limitation to the heirs, they will be rejected as surplusage;- as, for example, where the language of the testator was to the heirs male of the bod}^, and the heirs male of such issue male. If, however, the added words create a new course of descent, as, for example, in the case of a devise to A. for life, remainder to his heirs, and to the heirs female of their hodies, the word " heirs " becomes a word of purchase.^ § 661. Terms in which "heirs" or "heirs of the hody " may be described. — The simplest and most common form of a devise which is within the rule in Shelley's case is that where land is given "to A. for life, remainder to his heirs," or "re- mainder to the heirs of his body." In the former case the primary taker takes an estate in fee simple by the operation of the rule; in the latter he takes an estate in fee tail, if real }iroperty is given ; and in either case he takes an absolute in- terest in personalty. But it is not necessar}", in order that the rule shall apph^, that the testator shall have designated the heirs by technical Avords; for if the testator in fact means ta give a remainder to " heirs," or " heirs of the body," as such, the language he employs is not material. Thus, in the case of a devise to A. for. life, and after his death remainder to his 'A remainfler to "heirs bef^otten of their bodies, and to tlieir lieirs and assif^ns forever," or a remainder to "}ieir.s of tlie bodj', share and share alike, eiiually to be divided, and to tlieir heirs and tvssif^s forever," does not fall under the rule in Slielly's riise, De Vaughn v. De Vaughn, IGO L'. S. 560, 570. 2 George v, ^forgan, 10 Pa. St. ft",; (',i\mm V. McNeely, 11 Ohio St. 131; Hurnet v, Coby, 1 13arn. R K. :5G7. 'And sec also rases rited under Ji O.VJ, njitr. Thesupn'Mic foiirt of the United States lias n-cf-ntly held that under the law of r<'al jtroixTty pre- vailing in th<; District of ( 'oluiiibiit, U8 declared by the courts of .Maryland and of the District, though the rule in Shelley's case is recognized as one of property, yet, if there are explana- tory and (lualifying e.\])ressions from which it appears that the import of the technical language is contrary to the clear and plain intent of the tes- tator, the former must yield, and the latter will prevail; and where there is u devise to a person for life, with remainder to the heirs begotten of his body, and tlieir licirs ititil (issiiins fiinvcr, the first taker has an estate for life, and his children take jin es- tate in fee by purchase, 1 )e Vaughn v. Hutchinson, 17 S. Ct. 401, 100 U. S. 500, 57 U. 800 LAW OF WILLS. [§ OGl. ISSiU '/ ' or to A. for life and to descend to his son or eldest son; ^ or to liis eldest male heir,^ the rule applies, for these words are read as equivalent to, and synonymous with, "heirs of the body." A devise to A., and to descend to A.'s youngest son, and to the eldest male heir of said youngest son; * a devise to A. and her descendants;^ and to A. and her offspring;^ to A. and such persons as would be entitled 'if he died intestate;'' to A. and his legal heirs, or heirs horn in wedlock; ^ to A. and his lauful heirs; ^ or to x\. for life, and after his death to be divided itmong his heirs as the law may direct,'" are within the rule. Though the rule does not apply to a remainder to children,'^ %vith a life estate in the parent, yet if it appears that the tes- tator has used the word '■'■ children'''' as equivalent to '-'• heirs of the hodij,''^ and as a word of limitation to take in the whole line of descendants, the rule will be applied, and the parent will take an estate in tail.'^ 1 Jones V. Jones, 3 N. J. Eq. 236, 239; Gibson v. McNeely, 11 Ohio St. 131, 139; Paxson v. Leflferts, 3 Rawle (Pa.), 59, 75; James' Claim, 1 Dall. 47; Kay V. Scates, 37 Pa. St. 31, 39; Angle v. Brosius, 43 Pa. St. 187, 189 ("legal issue or heirs at his death"): Powell V. Board of Dom. Miss., 49 Pa. St. 46, 55; Kleppner v. Laverty, 70 Pa. St. 70, 72. Tlie American cases in which it has been held that a remainder to issue after a life estate in the ances- tor does not create a fee tail in the parent were mostly decided after the rule in Shelley's case had been abol- ished. Daniel v. Wliartenby, 17 Wall. (84 U. S.. 1873), 639, 645; Lyles v. Digges, 6 Harr. & J. (Md., 1825), 364; Goldsborough v. Martin, 41 Md. 488 (1874); Chelton v. Henderson, 9 Gill (Md.), 432(1850); Myers v. Anderson, 1 Strobh. (S. C.) Eq. 346; Hancock v. Butler, 21 Tex. (1858), 804 For other cases upon the applicability of the rule in Shelley's case to remainders to issue, see notes under §§ 670, 673. 2 Simpers v. Simpers, 15 Md. 100; Mellish V. ^Mellish, 3 Earn. & Cress. 520, 523, 533, 3 Dow. & Ry. 804: Rob- inson V. Robinson, 1 Burr. 38 ; Harvey V. Towell, 7 Hare, 231, 12 Jur. 242; Tate V. Clark, 1 Beav. 100; Lewis v. Puxley, 16 IMees. & Welsby, 733, 740; Forsbrook v. Forsbrook, L. R 3 Ch. App. 93, 98. Cf. ante, § 049. 3 Goodrich v. Lambert, 10 Conn. (1834), 449; Eraser v. Chene, 2 Mich. (1851), 91; Brownell v. Brownell, 10 R. I. 509. 4 Dennett v. Dennett, 43 N. H. (1861), 499. 5 Powell V. Brandon, 24 Miss. (1852), 343. 6 Allen V. Markle, 36 Pa. St. (1859), 117; Bramble v. Billups, 4 Leigh (Va.), 90. 'Yarnall's Appeal, 70 Pa. St. 335, 342. »King V. Rock, 12 Ohio, 390. 9 Crockett v. Robinson, 46 N. H. 454. 10 Kennedy v. Kennedy, 29 N. J. L. (1860), 185. 11 § 662. i2Stires v. Van Rensselaer, 2 Bradf. (N. Y.) 172; Haldeman v. Haldeman, 40 Pa. St. (1861), 29, 35: Sheeley v. Neidhammer, 182 Pa. St. 163, 167, 37 Atl. R. 939; McLure v. Young, 3 RicK (S. C.) Eq. 559; Merryman v. Merry- § 002.] APPLICATION OF KULE IN SHELLEy's CASE. 891 On the other band, if the testator has used the words " heirs " or "heirs of the body " as "words of purchase,^ and as synony- mous -with " children," the rule will not apply."-' Such would also be the case where the remainder is limited to the heirs of the life tenant or to the heirs of his body living at his death} So. too, a remainder to the heirs and assigns of the life tenant as thouffh she had not been married was held sufiicient to take a case out of the rule. The exception which excluded lineal descendants from taking as heirs was certainl}^ sufficient to show that the testator meant the other heirs to take as pur- chasers.* § 66'2. The rnle is not applicable to remainders to chil- dren. — The word "children" is presumptively a word of ])ur- chase, not a word of limitation.^ In the case of a devise to A. for life, with a devise of a remainder in fee to his children, the word " children," if employed in its ordinary sense, will be a word of purchase, and the rule in Shelley's case Avill be ex- cluded.^ The parent will take a life estate, and the children will take a vested remainder in fee as a class as purchasers. Tills rule of law and construction is so clear that in most cases its existence is assumed ; and though instances of such devises are very numerous, the question whether the rule is applicable to them has seldom arisen.^ So also, though the testator has man, 5 Munf. (Va.) 440; Parkman v. ^ Ante, § 546. Ik)wdoin, 1 Suran. C. C. (1833), 359. « Ante, %% 579, 584. 1 See cases cited under g 659. "McCroan v Pope, 17 Ala. 612; ■^ King V. Beck, 15 Ohio (1846), 559, Van Zant v. Morris, 25 Ala. 285; Diid- 562; Bunnell v. Evans. 20 Oliio St. ley v. Mallery, 4 Ga. 52; Goss v. Eber- (1^'75), 409, 410. liart, 29 Ga, (1859), 545; Beacroft v. 3Dott V. Cunnin-ton, 1 Bay (S. C, Strawn. 67 111. (1873), 28; Baker v. 1795), 453, 455: Warners v. Mason, 5 Scott, 62 111. 86; Doe v. Jacknian Munf. (Va.) 242. See also ante, g 616. (1854), 5 Ind. 283, 284; Rid^eway v. A devLse to A. "for life, and on his Lanphear, 99 Ind. (1884), 251, 257; death, if lie shall die leaving lawful Helm v. Frisbie, 59 Ind. 526; An- Jssue,"tothesaid lawful issue; if one, drews v. Spurlin, 35 Ind. 262, 267; to liim or to her, his or her heirs and M'Nair v. Hawkins, 4 Biljb (Ky., assigns forever; but if more than 1816), 390; In re Sanders. 4 Paigo one, to be ecjually divided among (N. Y.), 293. 297; Turner v. Patterson, them, their heirs and assigns forever, 5 Dana, 292; Wiglit v. Baury, 7 C'usii. pives A. an estatf; tail une named to take as a class or de- nomination of persons in succession from generation to generation, and by way of remainder, or at least so that the estate to arise from the lim- itation to the heirs and the estate of freehold in the ancestor shall both owe their effect to the same deed, will or writing; and that the several limitations shall give interests of the name qu:ility. Ijoth legal and eciuitu- bla 1 Preston on Estates, 266. . . . That this rule was j)art of tlie com- mon law of England, and an estalv lislied maxim in the law of real i»rui)- erty in that realm, for nwirly livo liundrcd years, is not, and cannot bo, denied." The court tlien proceeds to Hhow how tho rule in Shelley'H case had Ix^'Cdine a part of tlm law of tlu) comiiiotiwcallh b}' IIk* ()|H*ratioii of a M|(iTifn'il statut<', adding: " Hen' is an umphatiu declaration of the (teo ple, speaking through their repre- sentatives in the general assembly, that * the common law of England, so far as the same is applicable, shall be the rule of decision, and shall be considered in full force until re- pealed by legislative authority.' . . . The only question, then, must be. Is this rule, which is ailmitted to be a rule of property of the common law, ap[)licable to our condition. — to the genius and spirit of our institutions? It is said by some courts of great re- spectability that the rule was estab- lished by the courts of England in subserviency to the feudal policy prevailing at that time, and to the interest of the lords, whose feudal rights of relief, wardship, marriage, etc., would not attach upon a trans- mission by purchase. ... It has become a rule of property, and is, we believe, in harmony with the genius of our institutions and with the lil)- eral and commercial spu-it of our age, which alike abhor the locking up and rendering inalienable real estate, and has challenged and re- ceived the willing obedience and support of the most able minds of England and the United States. How many estates may bo d( spend- ing in this state upon this rule we can only conjecture; that there are very many there can be no dmiht. which an arbitrary declaration by this court of the inapplicability of the rule to our institutions would unsettle and destroy. Tho courts of every state of (his great Union in which the conuuon law has been ado|»ted liavr without exception U|>- In-ld tlu^ ride and guided their de- cisions by it." By tlit^al estate n;- mained in the trustees throughout, ami that the rule in Shelley's case is apjilirablo to thfs legal and to the <-<|uitable interest as well. ' Appeal of |{/«iding Trust Ox. KJ3 I'.i. Kt. ;JJ2 i\H'JO), 19 Atl. It. 5.>2, 20 W. N. (;. y. ' Kdmondson v. Dystin, 2 Cm, (1817), 307, 320; Ward v. Saunders, 3 Sneed (Tenn.), 391. 3 Settle V. Settle, 10 Humph. (29 Tenn.) 474. * Bennett v. Bennett, 00 111. App. 28. 5 Ware v. Riciiardson. 3 Md. (1852), 505; Gadsden v. Desportes, 39 S. C. 131, 17 S. E. R 706. « Williams' Appeal, 83 Pa. St. 377. See also Ward v. Amory. 1 Curt. C. C. (1853). 419. The rule in Shelley's case has no application to a bequest to a trustee of a fund to be held by him until the cestui que trust reaches a specified age. and, in case of the hit- ter's death before reaching .such age, the fund to bo paid to his heirs. Bennett v. Bennett, 06 111. App. 2M. The rule in Shelley's case could not ap|>ly to a devi.so to a daughter for her natural life, and at her death to the issue of her body who may tlien bo living, because the estate given to the is.sue was a legal estate, and that to the daughter an ocpiitabh^ e.stat*'; the devise further jiroviding that her life estate should Ih« for her sole iiiid Beparat(! u.se, and appointing trustees S96 LAW OF ■WILLS. [§ CG4. § 604. Trusts executory aud executed defiued aud distin- guished. — Before considering the application of the rule in Shellcv's case to executory trusts, we must define executory trusts and distinguish them from trusts executed. All active trusts are, in one sense, executory, for something remains in every case for the trustee to do. He must cj-ecute the duties of his trust. But in the present instance the distinction is one ■which arises out of the action and the language of the creator of the trust. If a testator limits an estate in trust in such terms that the trust in its original form is a complete and final expression of the intention of the testator,^ and nothing remains for the trustee who is thus appointed by the testator to do, except to carry into effect the express directions given him, the trust is executed.- An example of an executory trust is one expressly limited in the will for the payment of the income to a desig- nated person for a particular purpose, as for his support and maintenance. If the testator has named a trustee who is to take the legal title, and who is to apply the income of the fund to preserve it. Gadsden v. Desportes, 39 S. C. 131. 17 S. E. R. 706. Testator devised property in trust to pay the income to liis daugliter for life, and after her decease " in trust to and for the only proper use, benefit and behoof of such person or persons as would be entitled to the same " by the laws of the state, " if my said daughter had survived her mother and husband, . . . and died in- testate, seized and possessed of the said premises, and for sucli estate and estates as sucli person or persons would in such case be entitled to by the laws aforesaid." It was lield that, because of the exclusion of the hus- band and mother, the rule in Shel- ley's case did not apply, and the de- vise created a valid trust in favor of those entitled in remainder, and it was immaterial that the husband and mother died before the daugh- ter. In re Dorney's Estate, 20 Atl. R. 645; Appeal of Kuntzleman,id.; 186 Pa. St. 142, 26 W. N. C. 445. ' For other definitions of executed and executory trusts see Lewin on Trusts, pp. Ill et seq. 2 The distinction between trusts executed and trusts executory was established in 1705 in Leonard v. Sus- sex, 2 Vern. 526, and affirmed in Lord Glenorchy v. Bosville, Gas. Temp. Talb. 3, in 1733. See also Lit- tle v. Wilcox, 119 Pa. St. 439, 13 Atl. R. 468; Mullany v. MuUauy, 4 N. J. Eq. 16, 28; Price v. Sisson, 13 N. J. Eq. 168; Gushing v. Blake, 30 N. J. Eq. 689, 699; Garradine v. Gurradine, 33 Miss. 698, 729; Saunders v. Edwards, 2 Jones' (N. G.) Eq. 134, 137; Wiley v. Smith, 3 Ga. 551, 559; Wood v. Stubbs, 29 S. E. R. 119 (Ga,, 1897); Living- stone v. Murray, 67 Barb. (N. Y.) 214, 220; Wagstaife v. Lowery, 23 Barb. (N. Y.) 209, 221; Wood v. Burnham, 6 Paige. 513, 26 Wend. (N. Y.) 20; Garrigan v. Drake, 36 S. C. 354. § CG4:.] APrLICATIOX OF KULE IN SHELLEy's CASE. 897 in a particular mode pointed out by him, and the trustee is left no discretion as to the mode or amount of income to be applied, the trust is executed. And it is well settled from the very earliest times that the rule in Shelley's case is to be applied to such trusts to the same extent as it is to legal estates.' A trust is said to be executory or directory where the bene- ficiaries do not take their equitable interests dlredlij under the will appointing the trustee, but where something is to be done in the way of a conveyance or transfer of the legal title by the trustee in order that the disposition shall 'be complete.- In the case of an executed trust, the testator, having clearly in mind what he intends to do, and how he intends to benefit the <'e.stuiqii€ trust, has conveyed the legal and equitable interests in terms which are perfect, final and complete.* His intention is expressed in formal language. The trust is, in consequence, beyond the control of the court, and cannot be moulded or fashioned in any way. In the case of an executory trust, where a plan is to be arranged b}'' the person who is named as a trustee to carry out the intention of the donor, courts of equity do not regard themselves as strictly bound by the rules of the common law, as in the case of an executed trust. In the latter case equity will follow the law. But where the tes- 1 Carradine v. Carradine, 33 ]\Iiss. 305. "A trast executed is wliere the 69.":i, 729: Tallinan v. Wood, 26 Wend, party lias given complete directions n (1758;, 1 Eden, 125. trust are complete, does not ulono -"A trust is executory when it is make the trust an executory trust, to Ixj i>erlected, at a future period, Kgcrton v. Lord Brownlow, 4 II. I* C by a conveyance or settlement, as in 1210; Gushing v. Blake, 30 N. J. E} convey to C. It is executed either (1876). 818; Phipps v. Ackers, 9 CI. & when the legal estate pass»,'s. as in a Fin. 5H3, .591, 599, 601 ; Earl Stamford • onveyance to B. in trust or for tlio v. IIr)iiart. 3 B. P. C Toml. 31; Wliito use of ('., or when only the elo v. Cartrr, 2 Eden, 366, .Amldt r, 670; title (jHH-ses, as in the casi; of a <'oii- Hoherts v. Di.vwi-il, 1 Atk. 607. vi-yanco to B. to the us5. Executory trusts iu wills. — Although a court of equity may presume, in the case of a marriage settlement, that iln Blackburn v. Stables, 3 V. & creeing a strict settlement. Atesta- B. (1814), :J67, on page 3C9 the court tor gives arbitrarily what estate he Kiid: "I know of no difference be- thinks fit. There is no presumption tween an executory trust in marriage that he means one quantity of inter- articles and in a will, except that tiie est rather than another, — an estate object and purpose of the former fur- for life rather than in tail or in fee. nish an indication of intention which The subject being mere bounty, the must be w;inting in the latter. When intended extent of that Ixninty can the object is to make a ])rovision by bo known only from the words in the settlement of an estate for the which it is given; but, if it is clearly issue of a marriage, it is not to bo to be ascertained from anything in presumed that tlu parties meant to the will that the testator diil not put it in the power ui the father to mean to use the ex|ircssions, whicii deffe'it that purjKise and to appropri- he has employed, in their strict, ate the estate for himself. If, there- proper, technical .sense, tlio court in fore, the agreement is to limit an decreeing such settlement as he lian ♦isUito for lifi', with remainder to tlio directed will depart from his words IieirH of tlio iKjdy, tlie court < I e< Tees in order to execute liis intention; u strict Hetllement in conformity to but the court must necessarily fol- iho preKiimable int(;ntion; but if a lf)\v his words unh'Rs he has himself will directs a limit.iliorj for life, with shown that lie diii not mean to uso remaindenter, 127 IlL 42, 19 N. E. R. 808. 'Small V. llowland, 14 Ind. 592; Hull V, Beals, 25 Iiid. 25; Andrews V. Spurlin, 35 Itid. 202.204; Stilwell V. Kuopper, 09 liid. 558, I Am. Pro. R 211; PerkinH v. Mc-Coiinell, 130 Ind. 3M. .30 N. E. R. 121; Mcllhinny V. Mrllhiniiy, 137 IikI. 411; Lane v. i;t/. (Iiirl., 1H97), 29 N. K. R 772. The rule is in force an law iu tliiH «tule, though it will not be allowed to overcome the intention of the tes- tator clearly expressed. Ridgeway V. Lanphear, 99 Ind. 251. 255: Allen V. Craft, 109 Ind. 476, 479, 9 N. E. R. 919; Earnhardt v. Earnhardt. 127 Ind. 397, 398, 20 N. E. R. 895. Where a remainder is given on the death of the life tenant without heirs of the body (Granger v. Granger (Ind., 1890), 44 N. E. R. 189), or where the testator expressly provides that the property shall go to such persons as w-ould have taken the same had tlie life tenant owned it in fee simple, but that the devise shall only vest in him a life estate and notliing more, the rule does not apply. Earnhardt V. Earnhardt, 20 N. E. R. 895, 127 Ind. 397, 398. * Kiene v. Gmehle, 85 Iowa, 313,316, 52 N. W. R. 233; Pierson v. Lane, 14 N. W. R. 90, 60 Iowa, 60. Subject to an expression of a contrary intention on the part of tlie testator. Kiene v. Gmelde, 85 Iowa, 87. 89; Hambel v. Hambel, 75 N. W. R. 673 (Iowa, 1898); Zavitz v. Preston, 96 Iowa. 52, 64 N, W. R, 608; Wescott v. Binford, 74 N. W. R 18. s\Varo V. Richardson, 3 Md. 505; Griflith v. Plummer, 33 Md. 74; Thomas v. Higgins, 47 Md. 439. In this state it has been expresslj' held that the rule applies to leaseliold property. Home v. Lyeth, 4 H. & J. (Md.)431; Seeger v, Leakin, 70 Md. 500,25 All. R. 802; Hughes v. Nick- las, 17 Atl. K. 3!ts. 79 Md. 4s|. M''iiidhiy v. Rid. Ik-. 3 Biiin. (Pa.) l:i9, 159 et s»' with- out lineal heirs. Lippiiicott v. Davis (N. J.), 2fS At I. R 587; Gushing v. Blake. 30 .N. J. Ivj. (5S'.(. (U»7; Diui v. lijildwin, 21 N. J. L. 395, I tO. ^06 LAW OF WILLS. [§§ GG8, 6G8a. Yo!-k,^ Xorth Carolina,- Ohio,' Ilhode Island/ Tonnossec,* Yir- ginia,*^ Washington,' West Virginia ^ and Wisconsin.'-' § 6GS. The rule in Shelley's case applied to personal prop- erty. — The rule is as applicable to personal property as it is to real property. If the testator bequeaths chattels real, as an estate for years, to A, for life, remainder to his heirs or heirs of his bod}'','" or personal property of any description upon similar limitations,'^ A. will take an absolute interest by the o[)eration of the rule, whether the limitation in remainder was to his heirs or the heirs of his bod}'-. The principle of the rule also applies where an estate in a term of years is given to A, for life and to his executors. He takes the full term abso- lutely for an executor bears the same relation to his testator in respect to the personal property as the heir does to his an- cestor in respect to real property. '- § 668a. The general ettect and the practical operation of the rule in Shelley's ease. — Where the rule in Shelley's case is recognized to be in force as a part of the law of real prop- E. S. 725. § 28; Moore v. Littell, 41 N. Y. 66; Clirystie v. Phyfe, 19 N. Y. 344, 353. •^Code, § 1829; Bedford v. Jenkins, 96 N. C. 254. 2 S. E. R. 522; Leathers V. Gray, 101 N. C. 162, 7 S. E. R. 657; 96 N. C. 548, 23 S. E. R. 455; Craw- ford V. Wearn, 115 N. C. 540, 20 S. E. R. 724: Chaiublee v. Broughton, 120 N. C. 170, 27 S. E. R. 111. 3R. S. 1854, ch. 122, § 5968; Carter V. Reddish, 32 Ohio St. 1; King v. King, 12 Ohio, 390, 472; Armstrong V. Zane, 12 Ohio, 287, 299. •*Lippitt V. Huston, 8 R. L 415; Pub. St. R. L, ch- 182, § 2, in 1798-90; Andrews v. Lothrop, 17 R. L 60, 20 Atl. R. 97; Bucklin v. Creighton, 18 R. L 325, 27 Atl. R. 221; Petition of Browning, 16 R. L 441, 16 AtL R. 717; Boutelle v. City Sav. Bank, 18 R. L 177, 26 AtL R. 53; Cooper v. Cooper, € R. I. 261. 5 Code 1858, § 2008; Mill. & Bert. Code, § 2514; Hurst v. Wilson, 89 Tenn. 270, 4 S. W. R 778; Polk v. Faris, 9 Yerg. (Tenn.) 209, 241. «Code, § 2423; Roy v. Garnett, 3 Wash. (Va.) 9; Moore v. Brooks, 12 Gratt. (Va.) 135. " As to wills only. Hill, Ann. Code, § 1473, p. 514. 8 Code 1891, ch. 71, § 11. 9R. S., ch. 95, §2052. 10 4 Kent, 223; Home v. Lyeth, 4 H. & J. (Md.) 431; Seeger v. Leakin, 76 Md. 500, 25 Atl. R. 862; Hughes v. Nicklas, 17 Atl. R. 398, 70 Md. 484. 11 Powell V. Brandon, 24 Miss. 343, 361 ; Hampton v. Rather, 30 Miss. 193, 203; Kay v. Kay, 4 N. J. Eq. 495. 502; Dott V. Cunuington, 1 Bay (S. C), 453; Polk v. Faris, 9 Yerg. (Tenn.) 209, 241; Atkinson v. Atkinson, 3 P. W. 258; Fearne, C. R. 463; Daw v. Lord Chatham, 1 Madd. 488; Chandos V. Price, 3 Ves. Jr. 99. J^Co. Lit. 54 B; Kirkpatrick v. Capel,Sugden on Powers, p. 75; Hollo- way V. Clarkson, 2 Hare, 521. 526 (money legacy); Page v. Soper, 11 Hare, 321, 324; Devall v. Dickens, 9 Jur. 550. § 66Sa.] APPLICATION OF KULE IN SHELLEY's CASE. 907 erty, those persons who, at the death of the tenant for life, are Ms heirs, take the fee by descent from him, and not as pur- chasers under the will by which the life interest is given. The person or persons who thus take the fee as heirs by descent take it subject to the dower of the widow of the ancestor, un- less she has relinquished her dower therein. And where the ancestor was a woman, her heirs who take by descent from her under the rule in Shelley's case take subject to her husband's right of curtesy. These rules giving the widow her dower, and the husband his curtesy, are applicable whether the estate in the ancestor was legal or equitable.^ "Where the heirs or the heirs of the body of the primary dev- isee take by descent from their ancester under the rule, and not as purchasers under the will, and the ancestor dies in the life-time of the testator, his heirs or the heirs of his body take nothing, though they survive the testator. They cannot, by reason of the rule, take as purchasers under the will in which an estate is given their ancestor, and they cannot take by de- scent from their ancestor, as, independently of statute, the devise to their ancestor has lapsed by his death before that of the testator has taken place.^ But where the rule in Shel- ley's case has been abolished, the death of the ancestor to whom the life estate, remainder to his heirs, has been given does not affect the interest which his heirs will take if they survive the testator. When the ancestor survives the testator, the remainder to his heirs is contingent until his death; but when the ancestor dies in the life-time of the testator, the re- mainder to them is accelerated, and becomes a vested interest in those of his heirs who survive the testator, and they take as purchasers an immediate estate under the will. Again, in those jurisdictions where the rule in Shelley's case is recognized as law, and where, by its operation, the primary devisee takes tlie fee, he has the absolute power of alienating it by sale, mort- gage or otherwise. Ilis heirs, taking by descent and not by purcliase, are estopped to assert their rights as against his con- veyance of the fee ; or rather, as netno est hains vivcntU-, thoy have no rights until his death; and, if he is then not in posses- sion of the fee simple, there is nothing t(j which their rights as 1 Post, 8 714. 2 Ante, § 324 et soq. 90S LAAv OF T\-ii.i.s. [§ GCSa. heirs taking by dcscc.Tit can attach; Tvhile on the other liand. if tho heirs take a remaincU'r in foe as purchasers aftei" a life estate in the ancestor, no act of tlie latter can affect the heirs, except so far as a forfeiture of the life estate would at common law, independently of the statute, destroy the contingent re- mainder. As regards the effect of the rules upon estates tail, it need only be said here that, where by its operation the first taker is created a tenant in fee tail, he may, independently of statute, alien the fee tail by suffering a common recovery, which will bar the heirs of his body, and will destroy all con- tincjent remainders limited after the estate taiL CHAPTER XXXIT. THE WORD " ISSUE " AS A TERM OF PURCHASE AND OF LIM- ITATION. 6G9. "Whether the word "issue" is a word of limitation or a word of purchase. 670. A devise to " A. and his issue" creates an estate tail C71. The effect of added words of inheritance in modifj-ing a gift of a remainder to issue. 672. The addition of words of dis- tribution to a devise to issue — Issue may take as tenants in common. 673. A devise to " A. for life, and then to his issue," converted into a fee tail by the rule in Shelley's casa 674. Definition and construction of the word " issue " when it is a word of purchase. 675. The restriction of the word " issue " to children as pur- chasers. 676. Mode of distribution among issue as purchasers. 677. ]\Ieaning of the word "de- scendant." 678. Mode of distribution among descendants. § 669. Whether the word ^^ issue " is a word of limitation or a word of purchase. — The character of the word "issue," whether it shall be regarded as a word of limitation, describ- ing the quantity of an estate which is given, or whether it shall be taken as a word of purchase, creating independent interests under the will, has been the subject of much discus- sion. In a case decided by him Lord Kenyon • said : " In a will, 'issue' is either a word of purchase or of limitation, as will Ijost suit the intention of the devisor; though in the case of a deed, it is universall}' a word of purchase." Though some of the cases state that primarily the word '• issue " signifies " heirs of the Ijodij^'' anv and hiH iKsue, the won! ' issue ' will are the only w«)rds which the testa- bc conHtrued U.S u word of limitation, tri.. has used explanatory of the do- <)12 LAW OF WILLS. [§ G71. ^671. The oflfoct of added words of inherittincc in modi- fyiiiir a ixift of a reinaiiidor to issue. — yrequontly the word *' issue " is a word ol" limitation and is synonymous with "heirs of the body," creating an estate in the ancestor in fee tail. Though this is its ordinary meaning which will attract tlio operation of the rule in Shelley's case,' yet the word occur- ring in a devise of a remainder may be taken as a term of ])urehase and not of limitation, if such is the intention of the testator.- The fact that after a devise to A. for life, and on his death to his issue, the fee is devised to the heirs male of the issue, does not prevent A. from taking an estate tail." "Whether a limitation to the " heirs general,'^ or to the " hei?'s them is of t'(|uiv(Hal Illl•atlin<,^^ And it must b(! noticed, as alTcctin;,' tin; ])rincipl('S of construction just e-\j)lain<'d, that " issue," unlike " heirs <»f th(> liody," is not ay en jjrimafa/jie ii tecluiicai woid of liniitalinii. it is an ordi- »King V. Burchell, 1 EJcn, 421, .\ri»l). :!7'J. '^Antv, ^ 05L 58 914 LAW OF WILLS. [§ G72. nary word, and hence it is liable to be diverted from its sense as a word of limitation by a context which would have no ef- fect at all in that respect upon the words " heirs of the body." The Enoflish cases in which the word " issue " has been construed are inharmonious upon this particular point. In some of the English cases where the devise was expressly to A. for life, "with remainder to his issue after his death, and to their heirs as tenants in common^ or where a remainder was to go to issue of A., to be equally divided among t/w/n, or share and share alike as tenants in common^ the word " issue " was, by the effect of this context, construed to be a word of purchase, and in consequence the court refused to apply the rule in Shelley's case.^ This construction is of course materially strengthened where the words directing a distribution among the issue are coupled with words of limitation sufficient to carry the fee to them, as to the "heirs and assigns" of the issue, and also by the fact that there is no gift over on a failure of issue.* The conferring of a power of appointment to be exercised by the tenant for life in favor of the issue of himself is a very material indica- tion that the testator intended the issue to take as purchasers under his will in case the life tenant does not exercise the power of appointment. Thus, according to the English cases, it may be stated as a general rule of construction as regards devises in remainder to issue that a devise to one for life, with a remainder to his issue and their heirs in such shares and pro- portions as the life tenant shall by deed or will appoint, and if the life tenant should not marry and have issue, or if he should not have issue who shall attain full age, then over, gives the issue the fee simple in remainder as tenants in common. The rule in Shelley's case does not apply. The parent does not take an estate tail.^ The power in the parent to appoint among the issue raises 1 Slater v. Dangerfield, 16 Mee. & * See remarks of Langdale, J., in Wei. 263. 273. Greenwood v. Rothwell, 6 Beav. 492. 2 HuUer v. Ironmonger, 2 East, 383; & Lees v. Mosley, 1 Y. & C. 589. To Greenwood v. Rothwell, 5 ]iL & G. the same effect is Hockley v. Maw- 638, 6 Beav. 492. bey, 1 Ves. Jr. 143, loO; Crozier v. 3 See ante, % Gol, as to the effect of Crozier. 3 Drewry & War. 373, where words directing an equality of divis- the devise was in remainder to issue, ion among heirs of the body. to be divided among them as the life tenant should appoint. § 672.] ISSUE AS TERM OF PURCHASE OR LIMITATION, 915 by implication an interest in them as beneficiaries in default of the execution of the power. For this power is both special and imperative, and a neglect to exercise it, or an exercise of it outside of the limits of the class which has been pointed out by the testator, will be corrected by a court of equity. If the appointor shall exercise the power, his issue then take under the original instrument creating the power; while, if he shall fail to exercise the power, the issue still take under the original will in default of a valid appointment to them by their ancestor.^ 1 In the case of Lees v. !Mosley, 1 Y. & C. 589, the court, after distinguish- ing between the words " heirs of the body," which are 2:»'ima facie tech- nical words of limitation, and "is- sue." which is a non-technical word, stated that the word " issue " was used in the statute dedonis as ajnony- ino\i.< witli children and descendants of every degree, and further said as follows: "The testator begins by de- vLsing an express estate for life to his son. He then devises a remainder to his (the son's) lawful issue. If he stopped there, it would be an estate tail in the son. For tlie word 'issue ' might include ail descendants, and, all being unborn, no assignal)le rea- son could exist for distinguishing be- tween any of them. And then tlie rule in Slielley's case would ai)ply, and would convert tiie estate for life previously given into an estate tail. But the testator then adds, 'and their respective heirs in such shares as he, tlui said son, shall by irill or dteed aj>p<>int.'' Now, according to Iloc-kley v. MawJjey, 1 W-s. Jr. 14:J, IW, tlie eir<;(t of this clause would bo to give th<; objects of tliu jviwcjr an interest in an equal distrilnitivo share, in case the |Knvcr was nf>t executed. Tin; clauw. tln-n-forc, is equivalent to a declaniti(»ii by tln^ teHtator that the Ikhuo and their reH{Kji;tive heirs Hhall take equal atiarcH, but that the son should havo a'power of distributing amongst them the estate in unequal shares if he thought tit. Now, if ' issue ' be taken as a word of limitation, the word 'heirs' would be first restrained to heirs of the body, and tlien alto- gether rejected as luinecessary. The word ' respective ' would have no par- ticular meaning annexed to it; and tlie apparent intention of the testa- tor to give his son, and afterwards to distribute his property in shares among his issue, would be frustrated. On the other hand, if ' issue ' be taken as a word of purchase, designating either the immediate issue or those living at the death of the son, the ajjparent intention will be effectu- ated, and all these words will be given their peculiar and ordinary ac- ceptation. If then the will stopped here it would seem clear that the court ouglit to read ' Lssue ' as a word of purchase. Then comes the devise over. . . . Now the effect of such a clause, if superadded to a remainder to children, would be to show an in- tention to give a fee to the cliiMreu on their attaining the age of twenty- one. And if by the fornu^r j)art of the will the same estat; .James" K,Htat««. 1 Dull. (Pa.) nil. 47; Allele v. BroHius. A'.\ I'a. St. (IWW). 'For otlior rasi's illu.-.tralm;; tin; 1S7, IMU (where tlio devise wa« to text, we /kW, |5 (J7L " lejjal issue or }ieirs"); T'axson v. < yl «/«■.:;«.').") el seq. L.-lfrrts, :! Kawie (Pa.. IMl), M, 7:> 918 LAW OF WILLS. [§ 074. §674. Definition and construction of tlie word " issue," when it is ji Avord of purcliJise. — The word "issue" may be presumed to bo used as a word of purchase in the absence of any indication of a contrary intention. The testator may indi- cate that he has employed it as synonymous with " heirs of the body," when it will be a w^ord of limitation, and will create an estate in tail.^ The distinction is as follows: If the testator gives land to A. for his life, and after his death to his issue, meaning thereby his descendants, he will be presumed to have ineant that those persons who answer the description of descend- ants shall take as purchasers, and they take, independently of statute, as joint tenants. If, on the other hand, he has used the word " issue " as meaning heirs of the body, it will be presumed that he intended the issue to take by descent, and the w^ords will create an estate tail,- which the statute in. America Avill turn into an estate in fee simple. The primary sense of the word " issue," w^hen used as a word of purchase and not controlled by the context, has been held from the earliest times to be descendants of every degree of re- lationship. It is not to be restricted to children. It will include descendants, i. e., offspring of every description and every de- gree of relationship to the jpropositus? So a power to appoint (to "A. for life, and, if he shall leave v. Barnard, 152 Mass. (1890), 67, 73; lawful issue, to them, their heirs and Bigelow v. Morong, 103 Mass. (1869), assigns"); Den v. Emans, 2 N. J. L. 287, 288; Price v. Sisson, 15 N. J. Ya\. 967; Gibson v. McNeely, 11 Ohio St. 168,177; Weehawken Ferry v. Sisson, 131; Powell v. Board of Domestic 17 N. J. Eq. 475, 484, 486: United Missions, 49 Pa. St. 46, 55; King v. States Tr. Co. v. Tobias. 21 Abb. N. C. Melling, 1 Vent. 225, 232, 3 Levinz, 392: Tierv. Pennell, 1 Edw. Ch. (N. Y., 58, 61; Taylor V. Saver, Cro. Eliz. 742; 1832), 354; Palmer 'v. Horn, 84 N. Y. Shaw V. Weigh. 2 Strange, 798. 1 Eq. 516, 519; Drake v. Drake, 134 N. Y. Ab. Cas. 184, pL 28; Haddesley v. 220, 224; Soper v. Brown, 136 N. Y. Adams, 22 Beav. 266. But the case (1892), 244, 248, 32 N. E. R 768; Chwar of Henderson v. Henderson. 64 Md. tal v. Schreiner, 43 N. R R 166, 148 185, holds that the rule is not appli- N. Y. 683, 687; Gest v. Way, 2 Whart. cable to a devise to A. and his issue. (Pa.) 45; In re Birely's Estate, 7 Pa. Gadsden v. Desportes, 39 S. C. 131, 17 Dist. R 95; Neo v. Ramsay, 26 AtL S. E. R 706. See also ante, § 661. R 770, 155 Pa. St. 628: Grimes v. iSee ante, % 672. Shirk, 32 Atl. R. 113, 169 Pa. St. 74; 2 Ante, § 673. Shatters v. Ladd, 21 AtL R 596, 28 W. 3 Edwards v. Bibb, 43 Ala. (1869), N. C. 33, 141 Pa, St. 349; Robbins v. 666, 672: Jackson v. Jackson. 153 Quinliven, 79 Pa, St. 333, 335; Appeal Mass. 374, 376, 26 N. K R 112; Hough- of Bowie, 24 Atl. R 297, 149 Pa. St ton v. Kendall, 7 Allen, 72, 76; Hills 418; Taylor v. Taylor, 63 Pa. St. 484; § G74.] "issue"' as term of purchase or limitation. 919 among the. issue of a person is validly executed by an appoint- ment which takes in the grandchildren, as well as the children of that person; and if the power is discretionary, it may be exercised in favor of any issue, irrespective of the fact that the parents of the persons selected are excluded.^ And where a fee-simple w^as limited over, upon default of an appointment by will, to the issue of A., who had died, leaving several children living, some of whom had children, the court decreed a division among children and grandchildren alike per capita^ and t^o\j per stirpes? "Where issue are to take as purchasers and by substitution the shares of their respective ancestors who die before the date of vesting, with a limitation over to the survivors of the shares of those who die w^ithout issue, living at their death, the issue who survive takejper capita^ where the direction is to divide among them equally. But this primary sense of the word "issue" is never conclusive, and the meaning of the term may be restricted to a particular class of offspring, if this appears to have been the intention of the testator.* Gammell v. Ernst, 19 R L 293, 295, 33 Atl. R. 222: Pearce v. Rickard. 18 R. I. 142, 26 AtL R 38; Beckam v. De Saus- sure. 9 Riclu L. (S. C.) 531; Corbett v. Laurens. 5 Rick (S. C.) L. 301; Ingra- ham V. Meade. 3 Wall. C. C. fU. S., 1834), Jr. 42: Adams v. Law, 17 How. (58 U. S.. 1854), 421; Weldon v. Hoy- land, 4 De (iex. F. & J. 564: Penny v. Clarke, 1 De Oex, F. & J. 425. 431: Roddy V. Fitzgerald, 6 H. L. C. 823. 881, 882: Kavana^h's Will. L R 13 Ir. Ch. 120; South v. Searle. 2 Jur. (N. S.) 390; Hobgen v. Neale. L. R 11 Eq. 48, 51 ; In re Corlaas, L. R 1 Ch. D. 460. 45 L J. Ch. 119; In re .Jones' Tru.sts, 23 lieav. 242; Maddorsc|K)ol V. WatHon, 3 Vet*. :{S3, 384: WytJMr v. ThurlHt<^)n, Anib. 555; Davf-nport v. Hanbury, 3 Vch. 258; Mitchiwjn v. Buckton. 23 Week. R 480. See also case cited under § 672. The rule in the text is applied to both real and personal property. 1 Drake v. Drake, 134 N. Y. 220, 56 Hun. 590; ipost, %% 800, 803. ^See cases cited in note 3, p. 918. 3 The word " offspring " is precisely synonymous with " issue," and may be a word of limitation, creating an estate tail or of ]iurchase, in wliich case the rules and principles laid down in the jireceding sections as ap- plicable to " issue " may with safety be resorted to. Barber v. Railroad Co., 166 U. S. 83, 101. 165 Piu St 640, 650; Allen v. Markle. 36 Piu St 117; Thompson v. Beasley, 3 Drcwry, 7; Young V. Davies, 2 Drew. & Smale. 167, whf'ro the word was a word of limitation. Sonn-t imes the meaning of (iif tiTiii may be restricted by tho contfxt to children. Libtur v. Tidd, 29 Bcavan, 618. 920 LAW OF WILLS. [§ 675. §675. Tl:o restriction of the word " issue " to children as jMirehasers. — The tendency of the English cases clown to recent times has been strongly in favor of the broad con- struction of the word "issue" when it is employed as a word of purchase, by which it includes all descendants. Doubtless this construction of the word has often overthrown the true intention by diverting the testator's gift beyond his children. In a late English case it has been remarked that the popular sense of the word "issue " is children;' and we find Chancel- lor Kent, in his Commentaries, stating that, while " issue " may be a word of limitation or a word of purchase, yet it is gen- erally used by the testator as synonymous with " children." ^ !More recently still, Mr. Redlield, in his valuable Treatise on AVills,' has inserted several strong observations on the injustice of construing the word " issue " as synonymous with descend- ants of every degree. These suggestions and observations on the rule have had the effect of causing the courts in recent times, particularly in America, to restrict the meaning of the term so that it shall take in children only. They will seek for indications of an intention on the part of the testator in this direction, and this intention, though ascertained from slight hints and suggestions, will prevail. The question is not as to the popular meaning of the word, but what the testator meant by using it.* Its technical mean- ing must prevail where the testator does not show that he in- tended that it should have another meaning. If it appears from the context that the testator intended to restrict the mean- ing of the word " issue " to children only, it should be so con- strued. But in the absence of indications of that intention, its technical and primary meaning must prevail. We will consider cases in which the testator has used the word " issue " in its restricted meaning. Thus, where it is pro- vided, in connection with a devise either to persons or to a class, that the issue of any dying before the time of distribu- tion shall take their parenfs share, the word " issue " w^ill be held to mean "children." The use of the ^\ov(^. par e7it very clearly indicates that the idea of the relation ol parent and 1 Ralph V. Carrick, L. R 11 Cb. D. 3 Part 2, p. 363. 882, 885. •• For cases in which " heirs " has 2 4 Kent, Com. 278. been construed " children," see § 616. § 675.] "issue" as term of puechase ok limitation. 921 child ^ and not that of ancestor and descendant, was in the mind of the testator.^ A direction that a gift of land as a remainder is to go to issue of the life tenant, with an added direction, "if only one child (/. «?., of the life tenant), then to such only child," does not of necessity interpret the word " issue " as synonymous Avith "children;" for here, though the testator may mean that, if the issue consist of only one child, that child shall take, he does not mean to exclude other issue if there be more than the one child.- An onlv child, consistent with the lanffuai^e of the will, may take by descent, and all the issue of the first taker may take through him. But when the property disposed of is personalty, which is distributed and does not descend, the use of the word "issue" as equivalent to "heirs of the body" is improper, so that if one gives personal property to "issue," and if " one child, then to that child," the inference is conclu- sive that children, and not more remote issue, were meant by the word, and al.so that " issue " is a word of purchase, not of limitation.' So, also, where the devise was for the issue of A. laxofully begotten hy hira of his hody; * or where there is a devise to children in remainder after the death of the parent who is the life tenant, and "*';i default of issue ^^^ then over;' or where the gift in the first instance is to issue for life^ and 1 Sibley v. Perry, 7 Ves. 522; Ross point, Caulfield v. MacGuire, 2 Jo. & V. Ross, 20 Beav. 645; Bryden v. Wil- Lat. 162, 176; Evans v. Jone.s. 2 Coll- lett, L, R 7 Eq. 472, 475; Lanphier v. yer, 516, 524-526; Haydou v. Wilsliere, Buck, 2 Drew. & Smale, 484, 493; 3 T. R 372, wliicli holds that the Parkhurst v. Harrower, 142 Pa. St. phrase "lawfully begotten" is not 432. 21 AtL R 826; Palmer v. Horn, .sufiicient to limit the meaning of the 84 N. Y. 516; Mc-Pherson v. Snowdeti, term to children. 19 Md. 197, 203; King v. Savage, 121 ^Jn a devise to A. for life, remain- Mass. 303, 306; McJJregor v. Me- der to his children, and a devise over Oregor, 1 De Gex. Fisher & Jo. 63. on the death of A. without issue, tl>e For ca.ses in which the words "lieirs meaning of tiie w(jrd "issue" will he of the Ixjdy " have Ixjen coiistnit'd its coiifiiH-il to tfucli issue as would take "chililren "and a« words of purchase, under tlie former limitation. In re see ante, g 659. Wyndham's Tru-st.s, K R 1 Kq. 290; 2 Rjddy V. Fitzgenild. I^ R 6 IL U Pride v. F.wkH, 3 De Gex & Jo. 252. CaHe«, K2:{. 280; IIo«lges v. Harpur. 3 Do Gex & ' Burl»^>n V. B«.\vman, 1 Rich. Hq. Jo. 129; In re Crawford's Trust. 2 111; f'art«'r v. Ii«Mit.-vll. 2 Ii«'av. 551; Drewry, 231; Chapman v. Chapnum, H..pkin.H' Trusts. I^ R 9 Ch. Div. 131. 33 It«'av. 556; Dixon v. Dixon, 24 Heuv. ♦Daniol v. Whart«>nhy. 17 Wall. 129. (W U. S.) 039; but bee, conlnt, on thia 922 LAW OF WILLS. [§ G75. 'upon their death to their issxie,^ the word " issue " will be con- strued in a restricted sense as meaning children. So often, in a devise to a person for life, with a remainder to his issue, the ■word " issue " will be regarded as signi lying his children alone, particularly if the property is devised over on a dejinite failure of isft}ie.- So in a case where land was given to A. for life, and on his death to his lawful issue male, and the lawful issue of such heirs, the eldest of such sons to he preferred hefo-re the oth- ers,^ the court held that A. did not take a fee tail, but a life estate, with a remainder to his sons in order of priority of birth. A provision that, on the death of the life tenant, a fund is to » be divided among her then living issue, " provided such child, or children shall attain the age of twenty-one,'''' and for want of such issue then over, indicates very conclusively that the testator, by the word " issue," meant children alone.'* The fact that in one portion of his will the testator uses the word "issue" as clearly and plainly synonymous with children may indicate that he wishes it to have that meaning when used in another part of his will. But the fact that the testator in one clause employs the word " issue " in its restricted sense is not always conclusive that he wishes it to have that sense wher- iPope V. Pope, 14 Beav. 593; Fair- sail v. York, 5 Jur. (N. S.) 1237; Mar- field v. Bushel, 32 Beav. 158; Williams tin v. Holgate, L. R 1 H. L. C. 175; V. Teale, 6 Hare, 239, Heasman v. Pearse, L. R 7 Cli. 275; 2 Hill V. Hill, 74 Pa. St. (1873), 173; Brj-den t. Willett, L. R 7 Eq. 472, Way V. Gest, 14 Serg. & R (Pa,, 1825), 475; Wjmdliam's Trusts, L. R 1 Eq. 40; Burleson v. Bowman, 1 Rich, Eq. 290; Sander's Trusts, L. R 1 Eq. (S. C„ 1845), 111; Arnold V, Alden, 50 675; Crozier v, Crozier, 3 Drew, & N, E, R 704, 173 111. 229; Horn v. War. 386; Lanphierv. Buck,2Drewry Lyeth, 4 Har. & J. (Md.) 437; Thomas & Smale, 484, 493; Rulgway v. Mun- V. Levering. 73 Md. 451, 458, 21 AtL kittrick, 1 Drew. & War. 84; Mc- R 367: McPherson v. Snowden, 19 Gregor t. ^IcGregor, 1 De Gex, F. & Md. (1862j, 197; King v. Savage, 121 Jo. 63; Bradley v. Cartwright, L. R Mass. 303, 306; Lee v. Gay, 155 Mass. 2 C. P. 511; Buckle v. Fawcett, 4 Hare, (1892), 423, 29 N. E. R 632; Howland 536,544; Livesay v. Walpole.23 Week. V. Slade, 155 Mass. 415, 29 N. K R R 825; Bradshaw v. Melling. 19 Beav. 631; Bigelow v. Morong. 103 Mass. 417; Machell v. Weeding, 8 Sim. 4: (1809), 287, 289; Neo v. Eamsey, 155 Rhodes v. Rhodes, 27 Beav. 305: Mar- Pa. St. 628, 26 Atl. R 770; In re Wells, shall v. Baker, 31 Beav. 608; Fairfield 3 Dem. (N. Y.) 86; Palmer v. Dun- v. Bushell, 32 Beav. 158. ham, 125 N. Y. 68, 25 N. R R lOsi; SMandeville v. Lackey, 3 Ridg. P. Shaker v. Ladd, 8 Pa. Co. Ct. R 528; C. 352. Wistar v. Scott, 105 Pa. St. 200. 213; * Ryan v. Crowley, 1 LL & G. 7. Bruen v. Osborne, 11 Sim. 132; Bird- § 675.] "issue" as tekm of pukchase or limitation. 923 ever it is used.^ Thus, where the testator conferred a power of appointing a fund among A., B. and C. and their issue upon D., and in case of the death of either A., B. or C, during D.'s life, the issue was to take the parent's share, though by the hitter words issue was restricted to children^ the power of the donee was not restricted to an appointment among children.- On the other hand, where property was placed in trust for A., and after his death, should he have issxie^ then to maintain and educate the issue '''■share and share al'ike^'' and on their majority to trans- fer to them, and if only one then to that one, and the testator followed this up with a provision for the children of A., to be employed in such manner "«« he had already directed as to his funded property^'''' the court held that the word " issue " as used was by the context precisely synonymous with children.' The ascertainment of the meaning of the word " issue " is important, where there is a devise of a life estate to A., with a remainder to his issue, and, in default of issue, remainder to his heirs. As- suming that the failure of issue pointed out is a definite failure of issue, the question arises whether issue, in the limitation of a remainder to the issue of A., means his children to the ex- clusion of other descendants, and whether his death without leaving children, but leaving other issue, as grandchildren, sur- viving, will defeat the remainder over. The general rule in such cases is that the gift over will be defeated if there are a)(y issue, whether children, grandchildren or more remote ; and that this being the meaning of the term "issue" in the latter part of this disposition, it should also be its meaning in the former part. Ilcnce, even where the immediate gift of a remainder to the issue is coupled with a ])rovision that issue shall take their parent's share, the word "issue" will not always be con- strued children of the life tenant, but will be construed descend- ants, becau.se of the meaning attached to it in the latter i>art of the clause.* ' CaulfioM V. ^r.-if,-uire. 2 Jo. & T-it. » Ellis v. Selby. 7 Sim. 3r)2. 176; Head v. li;in.Jull, 2 Y. «& C. C. C. * li^ilpli v. ("arrick, L. R 5 Cli. D. 2:J1; Cjirtor V. IJ^-nUill, 2 \V-i\\. 5r,l; 981; HofK-r v. Hrown. IMfl N. Y. 244. CurH»iJini V. Ncnv lurid, 2 Hin^. N. C. .'W N. E. It. TtiH. In I'alincr v. IKirii. "iH, 'I Sii paKr r,ll», tlio cotirt by Hi \S . 101; IhjdK'JH V. Hari)iir, {> 15us Wx\\\. It may iiu^in ^ Dniko V. I)rakc;, ;J2 N. M \L 111, di-'-cciidaiits, ^cinTaliy, t N. Y. 220, ihililrcii; and wlu-tliur in a wdl it 92-1: LAW OF WILLS. [§ 676. § GTO. Mode of distribution among issue as purcliasers. — The mode of distribution lunong issue, when they take as pur- chasers, depends wholly upon the intention of the testator as it is expressed in, or im[)lied from, the language of the will. A gift of personal estate to issue simply, where the testator has evidently used the word to include all descendants, will be di- vided ^;t7* cnjylta among them as a class, though the issue may stand related in different degrees to their ancestor.* Often, however, a distribution jt^t/- sth'j^es has been decreed among issue Avho were in different degrees of relationship to a common an- cestor, particularly if some reference is made to a taking by rep- resentation or sul)stitution.- A direction that a fund is to be divided lefwee/i the issue of A. and the issue of B. equally will indicate a distribution of an equal share ;per stirpes among the issue of A. and B. respect- ively, and the children, grandchildren and remoter issue of the persons named will take by representation.' And Avhile a de- vise to the issue of a person, in case he shall be deceased before distribution, shrqMcikr^ may not be enough alone to indicate a division j^^^' stirpes among that issue, and all the descendants of the deceased person may take ^>^?' capita,* yet it has been held in an American case that a direction that in case of the death of the legatee his issue shall stand in the parent's place ^ sliall be held to mean the one or the Riley L. (S. C.) 282, 284; Hogben v. other depends upon the intention of Neale, L, R. 11 Eq. 48 (1870); Daven- the testator as derived from the con- port v. Hanbury, 3 Ves. 257; Jones' text or the entire will, or such ex- Trusts. 23 Beav. 242, 243; Mitchison trinsic circumstances as may be v. Buckton, 23 W. R. 480 (1875); considered. In England, at an early Leigh v. Norbury, 13 Ves. 340; date, it was held, in its primary sense, Weldon v. Hoyland, 4 De Gex, F. «fe when not restrained by the context, Jo. 564; Freeman v. Parsley, 3 Ves. to be co-extensive and synonymous 421,423; Ridley v. McPherson (Teun., with descendants, comprehending 1897), 43 S. W. R. 772; Pearce v. objects of every degree. But it came Rickard, 18 R. L (1893), 142, 26 Atl. to be apparent to judges there that R 38. And see further cases cited such a sense given to the term would, under § 674 in most cases, defeat the intention of ^ Dexter v. Inches, 147 Mass. 324 the testator, and hence in the later (1888), 17 N. E. R. 551. cases there Ls a strong tendency, un- =* Brett v. Horton, 4 Beav. 239. less restrained by the context, to * Weldon v. Hoyland, 4 De Gex, F. hold tliat it has the meaning of & Jo. 504; Birdsall v. York, 5 Jur. cliildren." (N. S.) 1237. 1 Corbett v. Laurens, 5 Rich. Eq. 5 Lock wood's Appeal, 55 Conn. 157, (S. C, 1853), 301; Purcell v. Purcell, 10 AtL R. 517. § 077.] "issue" as term of tukchase ok LniixATiox. 025 Avould require a distribution among the issue j9<'/' sti/'j^es through every degree of remoteness of descent.^ AVhere the direction Tvas to divide a residue equally hefwccn my two sisters and the lawful issue of my two deceased sisters in equal shares if more than one of such respective issue,- a distribution j?c^/' stirpes was ordered.^ ^ 6<7. Meaning: of the word ^^ descendant." — This word is in no wise ambiguous. Its primary meaning is precisely syn- onymous with issue, heirs of the body, i. e., posterity of every degree of relationship.'* Xo necessity exists that the word should be construed as equivalent in meaning to next of kin or relations, nor that any collateral relations should be included under the term. Hence, the word "descendants "" of A. does not include brothers and sisters of A.* The word, unlike re- lations and next of kin, has a fixed and definite meaning.^ No reference to any statutes, whose phraseology differs in different states, is necessary to ascertain its ordinary signification, for its technical and its ordinary meaning are the same, i. e., in- dividuals who are branches of the same common stock. Thus, the descendants of A. not only include his children but his grandchildren, great-grandchildren, etc.' The context may 1 In Cushney v. Henry, 4 Paige ^ " Descendants, those who have (N. Y.), 345, 854, the devise was to the issued from an individual, and in- issue of several persons named A., B. dude his children, grandchildren, and C, and to their issue, "one share and their children to the remotest to the issue of each, to take as ten- degree. The descendants form what ants in common," and a division per is called the direct descending line. stirpes was directed. Tiie term is opposed to ascendants." 2 Davis V. Bennett, 4 De Gex, F. & Jewell v. Jewell, -'S Cal. (1SG5), 23a Jo. 327, ;J29. "Atherton v. Crowther. 19 Beav. 'The cases wiiich are cited under 418, 451; Pierson v. tJarrett. 2 Bro. section G7H, jtost, as examples of the C. C. 38, 44; In re Flower, 02 L. T. mode of distributing pro{)eity de- 210. 220 (No. 1); Weldon v. Ilyland, 4 vised to descendants are also appli. De (iex, F.& J. 504: ^lercantile Bank cable when the (juestion is as to the v. Ballard, 85 Ky. 481 : Baker v. Baker, prop-r mode of i less the court were guided by the him, he evidently meant descent statute of distribution in ascertain- with him from a common ancestor, ing the legatees,the disposition would and that, therefore, cousins and other be void from the generality and un- coUaterals might be included. Craik certainty of the term; but when the V. Lamb, 1 ColL 489. word ' descendants ' is used, there is 2 Crossly v. Clare, Amb. 397, 3 no necessity for resorting to the stat- § 67S.] "issue'" as term of pleciiase or limitation. 927 §678. Mode of distribution aiuoiis; descendants. — Under a devise to descendants simply, they will take^^r caj){ta unless the testator expressly indicates that he wishes them to take otherwise. "Where a provision is for descendants tyjuaUy^^ all take j?^;' capita and nol per stirpes? On the other hand, if the testator in providing for his own descendants, or for the de- scendants of another, refers to the statute as providing a mode of distribution, the descendants will take by representation ; and the same is true where he gives property to the descend- ants of certain persons whom he refers to.' TTliere the de- scendants are expressly directed to take^^-r stirpes^ the rule of taking by representation will be strictly applied to the de- scendants in all degrees; children in each gradation to the common propositus will not take concurrently with the de- scendants of the nearer grade to him, but by representation. So where the gift was to the descendants of the brothers and sisters of the testator living at his deaths the fund was divided into as many equal parts as there were brothers and sisters liv- ing at the death of the testator, and each of these parts was divided into as many shares as each brother and sister had liv- ing children, or children who had died before the testator leav- ing children op descendants, and each of these shares was again to be subdivided in the same manner, but in no case was a child or descendant to take concurrently with the ancestor.* Doubtless the same mode of division ought to be adopted in case of a devise to issue, they to take as purchasers. The term " eldest male lineal descendant " signifies not only a descend- ant who is a male, but a descendant who claims through a male descendant as well. The use of the word ^'■lineal" in connec- tion with descendant seems at first glance mere repetition and not as adding much to the meaning of the latter word. Jlut ute to fix or limit the objects of tlie 192; Soutliaiu v. Blake. 2 W, R 440; bequest, as the natural import of the Rhode L T. Co. v. Harris (R I., 18U8), term is Hunifiont to incluilo every 39 Atl. R 7.")0; Crossly v. Clare, 3 in'liviiiual iir Oddie V. Woodford, 3 Myl. & Cr. dren" meant children claiming 584; and compare Bernal v. Bernal, throngli males only. 3 MyL & Cr. 559, where " male chil- 2 wistar v. Scott, 105 Pa. St. 200. CHAPTEK XXXY. THE CREATION OF ESTATES IN FEE WITH AND WITHOUT WORDS OF INHERITANCE OR PERPETUITY. g 679. A devise of land in indefinite language creates a life estate only at common law. 680. The effect of an introductory- clause purporting to dis- pose of the whole estate. €81. The operation of the word " estate " in conveying the fee. 682. An express devise for life is not enlarged into a fee by a gift of the estate. 683. Fee simple in the beneficial interest created by a devise in trust. 684 Words of inheritance, when not necessary to create a fee at common law. 685. A direction to the devisee of land to pay debts and leg- acies may enlarge his es- tate to a fea § 686, 688. 689. A power of disposal may raise a fee by implication. 687. A life estate with a power of sale for support. A life estate with power of appointment by will. A devise of the fee simple not cut down by a devise of " what remains." 690. The effect of a devise over on death during minority in creating a fee. 691. Gifts for life of consumable articles. 692. A bequest of the rents and profits of land carries the land. 693. Statutory changes in England of the rule which recjuired words of inheritance to pass the fee. 694 Statutory regulations in the United States. § 679. A devise of land in indefinite langnage creates a life estate only at common law. — At the common law, that is to say, indopcndently of tlio statutes cnactinf^ that a deviso of land shall carry all tho interest therein which the testator possesses at his death, in tho absence of an express con da ry intention," it is tlie rule that under a devise of land couched in . B. 571. tutor u-ses general wonls he means ''Charter v. Otis, 41 I?urb. (N. \.) to diHi^MO of everything lie has." 523,529; Jarkson v. .Merrill, Johns. Palmer v. Kiehard, 3 T<;rm R 350. (N. Y., IHlO), lUl. -I)81. The operation of the word "estate" in conveying the fee. — The word " estate," when it is employed in a will in reference to real property, may express either the quantity of the interest in the real property "which is devised or the iJiing wJcich is devised. In some cases it may express both, and the sense in which it is used in any case must always be determined by the language of the will. Thus, for illustration, the testa- tor may employ the word to describe the subject of the devise, as where he devises " my estate at A." or " my estate called A." The word means then that parcel of land which is owned or leased by the testator, and which is located at A., or which is called A. On the other hand, the testator may have employed the word "estate" to describe his interest in real property without reference to its location, as where he devises all his real and jx^rsonal estate of whatsoever nature, and wheresoever located, or where, in the introductory clause of his Avill, he under such a clause was charged man, 1 H;irr. & McH. Old.) 452; with the payments of debts or lega- Goodrich v. Harding, 3 Rand. (Va.) cies, a fee would undoubtedly pass 280. Tlie introductory clause of a by these words. Lovacres d. Mudge will recited: "Touching such worldly V. Blight, Cowp. 352. estate wherewith it hath pleased 1 See cases cited in next note. God to bless me. ... I give and - Franklin v. Harter, 7 Blackf. (Ind., dispose of in tlie following manner." 1844), 488, 490; Stevenson v. Druley, Tlien followed a number of legacies A Ind- (1853), 519; Pattisou v. Doe, 7 to each of the testator's children Ind. 282, 289; Charter v. Otis, 41 and heirs at law except his son, S., Barb. (N. Y.) 523, 529; Cassell v. each bequest ending with the words Cooke, 8 Serg. & R (Pa.) 268, 288; "and no more." Lastly, a devise to Shriver v. Myer, 19 Pa. St. 89; Eei- S. of all his realty, witliout words of mer's Estate, 159 Pa. St. 212, 220; limitation, and omitting the clause' Hupp V. Eberly, 79 Pa, St. 141, 145; "and no more." Held, that S. took Busby V. Busby, 1 Dall. (Pa.) 226; a fee. Saulsbury, Ch., dissenting. "Waring v. Middleton, 3 Des. (S. C.) Doe v. Patten (Del, 1895), IG Atl. R. Eq. 249, 252; Davies v. Miller. 1 Call 558. (Va., 1797), 127; Winchester v. Tilgh- § GSl.] CEEATION OF ESTATES IN FEE. 93a states it to be his purpose to dispose oi iill 7i is worldhj esfafe- by his wilL In the absence of any statute creating a presump- tion that the testator, by general words, intended to devise all the interest which he owned, it has long been an established rule of construction that a devise of the testator's estate sren- erally, without any words of inheritance, succession or limita- tion, would carry a fee simple in land.^ And it is immaterial whether the word "estate " is employed in the dispositive portion of the Avill or in a clause disposing of land, or whether it is inserted in the introductory clause in the form of a statement that the Avill is to dispose of the testator's whole worldly estate. The English cases hold that the word " estate " will pass the fee, even though it is accompanied by words which refer to and indicate the locality and the situa- tion of the estate, as " my estate at A." or " in A." ^ Thus in England, prior to the passage of the statute 1 Yict., ch. 26, which enacted that, where real estate is devised to any person •Hungerford v. Anderson, 4 Day (Conn., 1809), 368, 373; Warner v. Williams, 54 Conn. 470, 473, 9 Atl. R 136; Den v. Bowne, 3 Harr. (Del., 1840). 210, 213; Donovan v. Donovan, 4 Harr. (Del.) 177, 178; Doe v. Kinney, 3 Ind. (1851), 50, 51; Doe v. Ilarter, 7 Blackf. (Ind.) 488; Howard v. How- ard, 4 Bush (Ky.), 494, 497; Deering v. Tucker, 55 Me. (1867), 284, 287; Chamberlain v. Owings. 30 Md. (1868), 447, 455; Kellogg v. Blair, 6 Met. (Maas.) 322, 325; Godfrey v. Humph- rey, 18 Pick. (35 Mass. I 537, 539; Tracy V. Kilburn, 3 Cash. (57 ^[ass., 1819), 557, 558; Brown v. Wofjd, 17 Mass. 08; Forsaitii v. Clark, 21 N. H. 423; Fogg V. Clark, 1 N. U. (181N). 163; McAffee v. Cilmore, 4 N. 11. 391; Leavitt v. Wwjster, 14 N. 11. 550, 563; HerlK'rt v. Smith, 1 N. J. Eq. 141, 146; Norris v. Clark, 10 N. J. h>i. 51, 57; Wliittak<-r v. Wliittakcr, 40 N. J. I-^l. 33. 37; ( *art«-r v. (Jray (N. .1.. 1H{)!)). 43 Atl. 1{. 711; .Jafkwiii v, .M.-rrill, 6 JolinK. (.\. Y.) 1H5. 191; .hukson v. I)« I^iiriccy. 1! .Johns. (.\. V.) :{65, 373, 13 id. 537; Jackson v. I{al)chiulo & S<'l. .300; Bailis V. (.'ale, 2 Ves. 4H; Ho,, d. Child V. WriKht, 7 East. 259; Whito v. Coram, 3 Kay iV; .loliii. 052; (Janhufr V. Harding, 3 J. B. .Mooro, 505. "93J: LAAV 01.- WILLS. [§ G82. ■without words of limitation, such devise shall be construed to pass the fee simple, or the whole estate or interest which tiic testator had ])ower to (lis[)ose of by will in such estate, unless a contrary intention shall appear by the will, a devise of " my freehold estate, consisting of thirty acres of land, situated at , in the county of , now in the occupation of A,"' or a devise of " all my estate, lands, etc., called and known by the name of Coal Yard, in the Parish of St. Giles, London,"^ or a statement " I give Horsecroft my estate that I now live on," ' carried the fee simple in the lands thus described and not merely a life interest. In each of these cases and in others which nuiy be found in the notes, though the testator used the word " es- tate " as referring to a particular })iece of land, it was also his intention to include under it all the interest which he holds in such parcel of land. § 682. All express devise for life is not enlarged by a gift of estate. — If the testator devises lands in terms expressly for life, the fact that he also, in the same clause, employs the words " my estate and interest in the land " does not raise the devise of the life interest in that property to a fee simple.* But gen- erally the word " estate " may be limited in its meaning by the context, so that the devisee of the estate wall not take the fee simple. Thus, where a testator gave all of his estate to A., with a limitation over in case A. should die under twenty-one^ ■and where he devised property to A. for life, and at his death he gave the estate to B./ it w^as held that the w^ord " estate " did not convey the fee simple. Independently of statute it is a, rule that a devise of the remainder ' or of the reversion ^ of the estate, or of the lands of the testator, would pass the fee simple in those lands, provided he owned it. But, on the other hand, it seems to have been the rule at common law that the terms "residue" and "remainder," constituting a residuary clause, will not convey the fee, but that the residuary devisee 1 Gardner v. Harding, 3 J. B. !Moore, * Bruce v. Bainbridge, 5 J. B. Moore, 565. 1, 2 Br. & Bing. 12.3. 2 Roe d. Childs v. Wright, 7 East, « Key v. Key, 4 De Gex, M. & G. 73. 259. "Norton v. Ladd, 1 Lutw3-cli, 755; 3 Doe d. Potter v. Frieker, 6 Ex. 510. Baker v. Wall, 1 Ld. Raym. 1«7. * Bowes V. Blanket, Cowp. 235: Nor- » Bailis v. Gale, 2 Ves. 48. ris V. Tucker, 2 Barn. & AdoL 473. §§ 6S3, 6S4.] CKEATION OF ESTATES IN FEE. 935 Avill take a life estate only in the lands comprised in the resid- uary clause. § 6S3. Fee simple in tlie bonoflcial interest created by de- vise in trnst. — It is a well settled principle of construction both at law and in equity, that under a devise to trustees of a legal estate in fee for the henefit of A., or for the benefit of a class of persons, the testator will be presumed to intend that the beneficiaries shall take an equitable interest in the property of precisely the same extent as the legal interest which is expresslj'' vested in the trustees. This rule is recognized where the testa- tor has neglected to point out the character and extent of the equitable interest of the beneficiaries, in the absence of an ex- pression of a contrary intention showing that he intendetl them to take less than a fee.^ § 684. Words of inheritance not necessary to create a fee at common law. — So far as devises were concerned, it was never necessary, independently of statute, to carry the fee that the testator should employ words of inheritance or succession in a devise of his land.- If the language of the testator used in the will was sufficient to show clearly that he intended to convey the whole estate or property which he owned, the fee would pass.' Thus a devise to A. "in fee simple,"* to A. and "his successors,"* or a direction that A. "shall have my inherit- ance,"^ or to "A. yb;Y'y "i'p<'tuitii 1 Newlund v. Slicppanl, 2 P. W. 191, St. 480, 488; Boutelle v. Bank. ',' J All. 2 Eq. Ca-s. Ab. 32«J; Knight v. Selby, R. 838, 17 R. I. 781. :{ Man. & Grander, 92; Hodwjn v. Bail, * Baker v. Kayinoinl, 8 Viii. Ab. 200, 14 Him. 5.")8; Mrxjre v. CleKhorii, 10 j.l. 8. B<-av. 427; Yarrow v. KniKbtly. I^ R. ^ 1 Rollc, :i90. N CIl 7:50; Beat v. Powell, Aiiib. :W7. 6 Widlake v. IlanliriK'. ll-.bart 2, 2r». '/. poxt, 1, 781. ''Co. Lit. 9/»,- N Yin. Ab. '^'Ofi, pi. «; 2 2 BI;u;k. Com., p. 108. Cliamlx'rlaiii v. Turner, Cro. Car. 12U. 3 Kaitman v. lU-al. 14 III. 244; l^enk- «C(.. l.il. «.»/.. t'XX, V. Jaefjby. 'MJ If)wa, 27:5, 27"); \m\- "Spark v. Purm-ll, lloliiirt, 7'i'/. ••oln V. Lincoln. 107 Miuhs, .V.M), .V.»1; "M.nnar v. lianlii-s. 1 Leon. 2h:J. Swwt V. Cbaw'. 2 N. Y. 7:{. 71»; Bar- "( •|iapmanh« 'a.s<'. Dyer. ;{:i; WriKbt Imyflt V. Rirbeylt, 20 \Ven,'ed to a fee by a trust to iiuinn,\Vill«;s, i:W;Loveiicres V. IJliKlit, pay the debts of tlie testator or to (Jowj). o.'iO; D(X5 V. Hieliards, U T. R pay a legacy, or to support a li'f^ateo. .TiC; Stevens v. SnellJiiK. •"» l-'st, 87; (i?: Pickering v. Liingdon, 22 Me. 413: Shaw v. Hussey, 41 Me. 495, 498 ; .Swope V. Swope, o Gill (Md., 1847), 22.j: Lyon v. Marsh, 116 Mass. 232, 233: Rubey v. Barnett, 12 Mo. (1848), 3; Hazel V. Hagan. 47 Mo. 277, 281 ; Gaven V. Allen. 100 Mo. 293. 13 S. W. R 501; Den V. Young. 23 N. J. L. 478, 481 ; Bor- den V. Downey, 35 N. J. L. 74, 36 N. J. I^ 400, 407; Lienau v. Summer- ley, 51 Fed. R. 122, 2 C. C, A. 118, 4 U. S. App. 580. Under a will giving to testator's wife all Ids property " during her natural life, and at lier death slie can dispose of the projierty as slie wants to," she has an unlim- ited power of disposition, and can dispose of the property by deed be- fore her death. Moseley v. Stewart, 52 S. W. R. 071; Burney v. Mose- ley, id. 1 Patty V. Goolsby (Ark.), 9 S. W. R. 840, 51 Ark. 01; MorlTew v. San Fran- cisco R. R. Co., 107 Gal. 587, 596, 40 tield, 41 N. J. Eq. 381; Den v. Humph- Pac. R. 810; Hall v. Culver, 34 Conn. reys. 10 N. J. L. (1837), 25; Cordry v. Adams, 1 Harr. (Del.) 439. 441; Ban- zer v. Banzer, 51 N. E. R. 291, 150 N. Y. 429; Doe v. Howland, « Cow. (N. Y.) 277, 285; McLean v. Macdonald, 2 liarb. (N. Y.) 534: Bradstreet v. <"larke, 12 Wend. (N. Y., 1834), 002; Macdonald v. Walgrove, 1 Sandf. Cli. lH;rts|M»He of any 044 LAW OF WILLS. [§ 688. § G88. A life estate witli power of appoiiitineut by will. — A devise of a life interest in express terms, cou})lcd with a power in tlie life tenant to dispose of the fee sim})lo in the property by his will, either absolutel}' and at his full discretion among a class of objects to bo selected by him, or among a class of objects pointed out by the testator, gives the first taker a life estate only, but with a power to appoint the fee simple by his will.^ portion of it " for her benefit, so far asslie may deem necessary," she was the al)sohite judge of the necessity; but this power of disposal must, be- cause of the provision in the will, be exercised during the enjoyment of the life estate, except to the extent of the payment of debts owing by the life tenant at the time of her death, and her funeral expenses. Small V. Thompson, 43 Atl. R. 509, 93 Me. 539. Wliere the devisee is per- mitted to use as much of tiie princi- pal as may be necessarj' for his ex- penses, he may use the entire amount if in his judgment it becomes neces- sary. McCarty v. Fish, 87 Midi. 48, 49 N. W. R. 513. And if the power of disposal is merely a general power, not evincing an intention to confer the power to use the proceeds of the sale for support, the life tenant has the power of disposal by sale or pledge, and of re-investing the pro- ceeds in new securities. Glover v. Stillson, 56 Conn. 316, 15 Atl. R. 752; Trimble's Ex'x v. Lebus, 94 Ky. 304, 22 S. W. R. 329. 1 Clu-isty V. Ogle, 33 III. (1864), 295; Wood v. Robinson, 113 Ind. 323, 324; Crew V. Dixon, 129 Ind. 85, 89; Mor- gan V. Halsey, 97 Ky. 789, 31 S. W. R. 866; Degman v. Degman (Ky., 1896), 34 S. W. R. 523: Payne v. Johnson Heirs, 95 Ky. 165 (1894), 24 S. W. R. 238, id. 609; Ernest v. Foster (Kan., 1897), 49 Pac. R. 527; Albert v. Albert, 68 Md. 352 (1887), 12 Atl. R. 11 : Franke T. Auerbach, 72 Md. (1890), 580. 29 Atl. E. 129; Collins v. Wick wire, 38 N. E. R. 365, 163 Mass. 145; Todd v. Sawyer, 147 Mass. 570, 17 N. E. R. 527; Plielps V. Plielps. 143 I\Iass. 570. 10 N. E. R. 452; Senfert v. Ilensler, 52 N. J. Eq. 754, 29 Atl. R. 202; In re Gardner, 140 N. Y. 123, 35 N. E. R 439, 23 N. Y. Supp. 429; Forsythe v. Forsythe, 108 Pa. St. 129; Dillon v. Faloon, 158 Pa. St. 468, 27 Atl. R. 1082; In re Levy's Estate. 25 Atl. R. 1068, 153 Pa. St. 174, 31 W. N. C. 539; Long v. Waldraven, 18 S. E. R. 251, 113 N. O. 337; Sires v. Sires, 43 S. C. 266, 21 S. E. R. 115; Hood v. Haddon, 82 Va. 588. The tes- tator devised his farm to his wife, during her life, for a home for her and children, and provided that if she should die before tlie youngest child readied its majority it sliould not be sold until then, and that it then be sold and the proceeds divided equally between the children. Held, tliat the widow took a life estate which she might alienate, and which estate was not conditioned on her oc- cupancy of the farm as her home. Talbott V. Schneider, 52 S. W. R. 203. A devise in these words: " I give and devise unto my wife" certain de- scribed land, "to hold, to her and her assigns, for and during her natu- ral life, she paying the taxes thereof and keeping the buildings in repair; the aforesaid land to be disposed of at the pleasure of my beloved wife at her death," — gives the wife the power to devise the fee. Forsythe v. Forsytlie, 108 Pa. St. 129, followed. Dillon V. Faloon, 27 AtL R. 1083, 158 Pa. St. 468. § 6S9.] CKEATIOX OF ESTATES IX FEE. 0-15 The power to appoint by will must be executed in accord- ance with the directions of the testator. It does not, in the absence of statute, enlarge a life estate given in express terms to an estate in fee simple. The life tenant having a power to devise has no power thereby to convey by instrument inter vivos; ^ nor will the heirs or next of kin of the life tenant, hav- ing a power of appointment by will, take by descent or by devolution from their ancestor in case he shall have died with- out having executed the power. The power to appoint by will must be executed among the class of objects selected by the first testator, and in default of a valid appointment the fee will pass to the residuary devisee; or if, as is usually the case, the donee of the power is also the residuary devisee, then the fee will pass to the heirs of the testator,- or to the persons to whom it has been devised by him in fault of an appointment.' § 680. A devise in fee simple not cut down by a devise over of '^ wliat remains." — It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or di- minished by any subsequent vague and general expressions.* This rule is applied where a fee is given either ex})ressly by words of limitation, as to a person and his he//:,', or bj' implica- tion by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the tes- tator that the devisee shall own the fee simj>le, his subsequent ' See poHt, § 800. him tlie absolute power of disposal '•^Seiifert v. Hensler, 52 N. J. Eq. and to create in him a fee siinplo 754, 29 Atl. R. 202. wJiich descends to his Iieirs on his 'Crew V. Dixon, 129 Ind. 85, 89; death intestate. In re Moohring, 48 Payno v. Jolinson's Iloirs, 95 Ky. 105, N. E. R 818, 154 N. Y. 42.'J; Dcegan 24 8. \V. I{. 009; Mcjrgan v. IIalscy,97 v. Wade, 39 N. E. R. 092. 144 N. Y. Ky. 789, :jl S. W. H. 800; Collins v. 57:5, 20 N. Y. Supp. 898. 75 liun. :i9. Wickwire, 102 Mass. 143, 38 N. K. K. .S<-o/w.s/, § 798. In Ahibania (hy the 305; In ro (Jardiicr, 35 N. R R 439, Code, § 1852). an absolute jM^wer of 110 N. Y. 122; Kibler v. Iluver, 10 disposal given to the owner of an es- N. Y. Supp. 375; Log v. Waldrave, 18 tato, unaccompanied by any trust or 8. E. U. 251, 113 N. C. 337; Sires v. a power to devise tlio iniu'ritance, Sires. 21 S. H R. 115, 43 S. C. 200; will give him tiie fee. Hood v. Hram- Rusk V. Zuck (Ind., 1H!)7), 40 N. E. \{. lett, 105 Ala. 000, 17 S. It. 105. Sco 074. iJy hUtute in New York (1 R. S., also (Jilford v. Choale, 100 Mass. 343, p. 733, i 34), it is pnjvidcd that a gen- 310. ower to devise, given to a life * See g 358. tenant, sliall Ije deemed to convey to 60 040 LAW OF WILLS. [§ GS9. language directing that what remains of the property at the death of that devisee shall devolve upon a particular person, or class of persons, will not cut doAvn the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and gen- eral character which are absolutely repugnant ^ to the estate granted.- Thus, a gift absolutely to A. " with all the power and rights that the testator enjoyed," with a direction that he should make a will leaving what remains of the property at his death to certain persons named,' or a direction that certain legacies are to be paid, after the death of the devisee^ out of the proceeds of the land, which is devised absolutely ; '* that cer- tain property absolutely bequeathed should on the death of the devisee go to his children ; ^ or a gift to A. \\\i\\ fall power to alienate, convert or dispose of, and upon his death as much of it as remains to his children,^ does not diminish the estate given in fee to a life estate.^ While it is true that a gift over of " what remains " unex- pended, coming after a gift of the fee created in clear lan- guage, will not reduce the devise of the fee to a life estate, and will be rejected from the will, yet the testator is not prevented from making a valid gift of what remains after use by the 1 Ante. % 361. * Hovey v. Walbank, 34 Pac. R. 2 Browning v. Southworth (Conn., 650. 100 Cal. 192. 1898), 41 Atl. R. 768: Trustees v. Har- » Hall v. Palmer, 87 Va. 354, 12 S. ris, 62 Conn. 93,26 Atl. R. 456; Halla- E. R. 618; Judevine's Ex'rs v. Jude- day V. Strickler, 43 N. W. R. 228, 78 vine, 61 Vt. 587, 18 Atl. R. 778. A Iowa (1889), 388; Jones v. Bacon, 68 devise to the children of the testa- Me. 34; Stuart v. Walker, 72 Me. 145; tor, coming after a gift of land to Mitchell V. Reed, 77 Me. 423, 425, 1 his wife and her heirs, is void as a AtL R 141 ; Taylor v. Brown, 88 Me. remainder because of the preceding 56. 57; Foster v. Smith. 31 N. E. R. fee: and as an executory devise, be 291, 156 Mass. (1892), 379; Veeder v. cause it is repugnant to the unlim Meader, 157 Mass. 413, 32 N. E. R 358; ited power of disposal. Wolfer v. Benz V. Fabian (N. J. Eq., 1897), 35 Hemmer, 144 IlL 554, 33 N. E. R 751 AtL R 760; In re Haskeirs Estate, e McClellan v. Larchar, 16 Atl. R 43 N. Y. Supp. 1144; Myers v. Bentz, 269, 45 N. J. Eq. 17. 127 Pa. St. 222 (1889), 17 Atl. R. 899; 'A devise to A. and his heirs con- Boyle V. Boyle, 25 Atl. R 494, 152 Pa. fers an absolute estate upon A.; and St. 108, 31 W. N. C. 453; Bibbens v. an executory devise over on his not Potter, L. R 10 Ch. D. 733. disposing of the same by will is void. 3 Good V. Miller, 22 AtL R 1032 Combs v. Combs, 67 Md. 11. 8 Atl. R. (1891), 144 Pa. St. 287. 757; Rea v. Bell, 147 Pa. St. 118. § GOO.] CREATION OF ESTATES IN FEE. 9.1:7 first taker.^ If from the will it clearly appears that the tes- tator intended that the fii'st taker is to have a fee simple, with a full power of disposition, in any and every event and for all jyurposes, to the same extent as he would have himself, a de- vise over of " what remains " is invalid. If, however, the devise to the first taker is a life estate in express words, with a power of disposing of the fee for a particidar pwpose only, as for the siq?port and maintenance of the life tenant, or for the care and education of his children, a devise over of " what re- mains " after his death is valid, though it is liable to be dis- appointed by the exercise of the power of sale by the life tenant, and the application of the proceeds to the purposes indicated. Here the power of sale for a particular purpose attached to a life estate does not of necessity enlarge it to a fee simple, and consequently there is no repugnancy in giving what remains to others in fee.- § GOO. The effect of a devise over on death during minority in creating a fee. — AVhere an estate is given to a person in indeterminate language, with a gift over in the case of his death under the age of twenty-one years,'' and the fee is not expressly disposed of in the event of his attaining majority, the testator will be presumed to have intended to give him a fee simple in the event of his surviving to that age.* So, also, is this the case where the devise is to a person, and if he shall die under age and without leaving issue living at his decease, then to another person in fee. Even where the devise over which is to take effect u{)on the death of a ])ri()r devisee is of an estate i'or life only, the same rule has been ap])lied,' by which on the attainiiit;nt of ma jority a fee simple is vested, though oln'iously the a|)|)li('ation of tlio ruh) to such a limita- tion is not so appari'iit as in the case of a gift over of the foe. ' See ante. % 687. of llif rcsidiio at Iwr decease l)y tlio 2P«'lli/,z;irro v. Rcppcrt, 8.'J Iowa, tt'stator i.s Vdiil IVir ic|m;^iiaiicy. 4»7, 50 N. \V. R. v.): Jidwze v. Bar- 'Sch oases f »/(/«•. |^ KIT. ber, 25) S. C. UUi, 7 S. E. \i. H17; Hia T(«x. Biirkn v. Aiiiiis. 11 Haiv, 2:52; llani- 227, fi H. \V. K. 112. A dovis*) to A. son's Kstatc, L. 1{. oCh. loM; Maldiiav. for liff. tnistiiiK that sho will give SchwiiiK (Ky., 1H1)7), :ilt S. W. I{. r»2:{. the nrsidu*' to certain p<'rsoiiH, Rives '"^ Fri)^jmersonal projierty. particularly that which is of a perishable nature, such as cattle, food, farming implements, furniture, etc. Ilunce when a tes- tator shall lj<>queath the ase of per- Honul pro|K,'rly to one for life, witli a provisifni tiiat whatever romains at the death of tin; lif(! t«'nant shall go over, it is reasonable U> sup|M)sc that, knowing the charar (m-x & J. -iKd; .Maiinox V. (Jrue- Kay V. I^.xon, 1 Jiru. (J. (J. 70. inT, I^ It. 11 K^. -I.'jO. 952 LAW OF -WILLS. [§ 694. ho (lid so intond, and if he cannot do this, tlic devise will carry all the interest of the testator. The courts are not inclined to favor the restricted construction by which a life estate is cre- ated, and there would have to be a very plain indication of an intention to that effect. The mere fact that the testator, in another part of the will, creates a fee by proper language,^ is not enough alone to show that he intends to create a life estate by indefinite language. §694. Statutory regulations in the Ilnitecl States. — In very many states of the American Union statutes similar in their character to the English statute above mentioned have been enacted. The general phraseology of these statutes is that in all devises where the word " heirs,'' or other words of inheritance, are omitted, the whole estate of the testator in the premises devised shall pass, unless it clearly shall appear in the will itself, by limitation over or otherwise, that the testator in- tended to devise a less estate than a fee. This is the rule in Alabama,^ Illinois,^ Georgia,* Indiana,^ lowa,^ Maryland,^ Massa- chusetts,^ Minnesota,^ Michigan,^'' Missouri,'^ Mississippi,^'- Xe- 1 Wisden v. Wisden, 2 Sm. & Gif. 896. 'i Code, § 2178. 3 Coth. Ann. Stat. 310, § 13; McCon- nell V. Smith, 23 IlL 611; Giles v. Anslow, 21 X. E. R. 225, 128 IlL 187. *Code. §§ 2248. 2249. 5R S. 187G. p. 864, § 14; Smith v. Meiser, 51 Ind. 419; Mills v. Franklin, 128 Ind. 4-14; McMahan v. Newcomer, 82 Ind. 565, 568; Mulvane v. Rude, 45 N. E. R 659, 146 Ind. 476. Thus, a devise to a wife of " all my property, personal and real, after paying my debts," gives the fee. Ross v. Ross, 135 Ind. 367, 35 K E. R. 9. « Code, art. 93, i;,^ 305, 314. 7 Newton v. Griffith. 1 Harr. & G. Ill, 138. By a devise that " I give and bequeath to my son . . all my property, . . . and, in case he should die without heir, then" to testators brothers and sisters, the son took an estate in fee simple. Benson v. Linthicum, 75 Md. 141, 23 Atl. R. 133; Pennington v. Penning- ton, 17 Atl. R. 329, 70 Md. 418. 8 Pub. St., ch. 127, § 24. 9 Stat, at Large, ch. 35, § 2. 10 How. Stat., § 5786. Where the first clause of a will devises an estate in fee, without words of limitation, and the other clauses burden the es- tate so devised with a trust in favor of testator's children, the devisee does not take a life estate, but the fee, subject to the trust imposed on the estate devised; How. St., ^ 5786, providing that any devise shall be construed to convey all the estate unless it shall clearly appear that there was an intention to convey a less estate. Forbes v. Darling, 54 N. W. R. 385, 94 Mich. 621; Speirs v. Roberts, 73 Mich. 666, 41 N. W. R. 841. n R. S. 4004; Cook v. Couch, 13 S. W. R. 80, 100 Mo. 29. 1-' Code, § 2285. § 694.] CREATION OF ESTATES IX FEE. 953 braska,^ Xew Hampshire,- Xow Jersey,' Xew York,^ Xortb Carolina,' Pennsylvania,^ Ehode Island,^ South Carolina,^ Ten- nessee,^ Texas,^" Yermont," Yirginia'^ and Wisconsin.^' Hence, it follows where these statutes are in force that the word " heirs " or similar words of limitation or inheritance are not necessary to convey an absolute title to the lands when devised in a will.^^ 1 At common law a devise of real estate, in order to convey the fee, must contain words of inheritance or perpetuity; but under the Ne- braska statutes such words are not necessary, and every devise of land is to be construed to convey all of the estate of the devisor tlierein, unless it shall clearly appear by the will that the devisor intended to convey a less estate. Little v. Giles, 41 N. W. R. 18G, 25 Xeb. 813. 2 Burke v. Stiles, 65 N. H. 163, 18 Atl. R, 657; Cressy v. Wallace, 66 N. H. 566, 29 Atl. R. 842. 3 VoL 2, Rev. (1877), p. 300, g 13. MRS., art. 748, § 1. 5R S., ch. 119, g45. 6 Act Pa. April 8, 1833, § 9, Pur- don's D., p. 1475; Lloyd v. Mitchell, 130 Pa. St. 205. Tims, a devise " share and share alike" simply (White v. Commonwealth, 1 Atl. R. 33, 110 Pa St. 90); or of one-half tlie land I pos- sess (Mclntyre v. 31clntyre, 123 Pa. St 323, 23 W. N. C. 41, 16 Atl. R. 783); or she shall have all the personal proi>erty for her own (Snider v. Baer, 22 .Atl. R 897, 144 Pa. St. 278. 2.S W. N. C. 460j; or the lands shall be di- vided in erpial parts (Coles v. Ayres, 27 Atl. R 375. 150 P;i. St. 197); or Kirnilar lanj^uaj^e (Schuldt v. Iler- birie, 3 Pa. Sui»er. Ct. 05, 39 W. N. C. 290). A do\ is*' to t«-Ktator's wife, " in lieu of dower," of " my ijroscnt resi- dence, with the lands and improve- inentH," fuiHses to the wife a fee him- pie, where there is no (levi.se over or words of limitation, und the will iniikeM other iM^pn-sts to the wife and to testator's childn*n, and \tr; and whom he has distributed it by his whether the money I«j actually de- will take it in its new character." p. (.Md.; m-, Siiiithers v. UfK>\>|wal, 13 Pa. St. 260; .Stoner V. Zimiiierinan, 21 Pa. .St. .'191; Ivlwardh' Aj.iM.al, 47 Pa. St. Ml, 153; 960 LAW OF WILLS. [§ 698. If the conversion of tlio proport}^ is relegated to tlie jiulg- ment or the discretion of tlie trustee, or to that of any other person, no constructive conversion will take place, for the rea- son that the actual intention of the testator is not ascertainable. Conversion is only decreed where an intention to convert is clearly proved to have existed in the mind of the testator. If lie leaves it wholly to the discretion of liis trustee to convert or not, it is very apparent that lie had no fixed intention in liis mind to convert the property. If he had desired to do that, he would have given mandatory directions for tliat purpose. Thus, for example, we will suppose that tlie testator shall direct liis executor to invest a sum of money in good j^'^rsonal securities, or to purchase with it a piece of land, as he may see Jit and proper, for the benefit pf A., who dies while the property is still personalty in the hands of the executor. As the testator appears to have been indifferent wiiether the executor shall purchase land or not, no reason exists after the death of the person for Avhose benefit the executor was to act, and who alone had the right to elect to take the property unconverted, to de- cree a constructive conversion. AVhere the power to convert is wholly discretionary, the representatives of the absolute owner take the property as it is found at his death. If the trustee has dela^^ed conversion of the money into land, as he has the power to do, it goes to the next of kin. If the money has been con- verted by the exercise of the trustee's discretion, it is land, and descends as such to the heir, subject to th-j dower of the widow of the absolute owner. § 608. Direction to sell land for the purpose of paying Ante, § 374. (S. C, 1837), 212, 217; Cruse v. Barley, 2 ajm[.are ante. § 379. 3 P. W. 22. *JackHon v. Jackson, 6 Johns. 73; < In re Hubert's Estate, 181 Piu St. Perkins v. Coujchlan, 148 .Mass. 301. 18 551, 37 Atl. It 57«. N. E. R 600; .Shari»8teen v. Tillou, 3 ^ Post, % 701. Cow. (N. Y.) 651; IIawlf«y v. James, « Phelps v. Pliolps, 28 Parb. (N. Y., 7 Paige, 213 (N. Y.. 1838j; \Vhit. E. R 303, 116 N. Y. 144, tate, 75 Pa. St. H7: McHiigh v. Mt^ 154; McCarty V.Terry, 7 I«'ins.(.\.Y.) C;<»le. 07 Wis. Kit!. 72 .\. W. R 631; 231, 2.38; North v. Valk, Dud. Erj. Cowley v. IlartMirme, 1 Dow. 361. ' .M()6; Marsh v. Wlieeler, 2 Edw. the int«Test anrl ujns;iH would 22 N. E. U. 395, 110 N, Y. 144; Eraser l>e ontitleil to the l.ind." Iviiloin v. v. Trustees. 124 N. Y. 479. 26 N. E. li. Saunders, Amb. 211. 1034; Powell v. I'owell. 6 lred.(N. C) Uligh v. Warley, 33 Ahu 196; ¥.<{. 50; rarkinsoifs Appe.il, :!2 I'ji. 064 LAW OF WILLS. [§ YOl. indicates that real property must, at nil co< nfx and in any case, be converted into money, though he has not fixed any particu- lar time when the sale is to take phice, the land will be re- garded as converted as of the date of his death. For if land is to be sold " as soon as the trustee should see it is necessary for the beneficiaries' advantage," ^ " with all convenient speed," - "in such manner as the executor shall deem best,"' " when and in the best manner possible," * "as soon as practical and proper, but within a year,"* "to best advantage, in the sound discre- tion of the trustee,"^ "with all speed as soon as possible,"^ "in such manner and at such times as they think proper,"^ " as soon as convenient, consistent with a fair price to be ob- tained,"^ or "in a reasonable time, with all possible diligence,"^" the conversion will not depend upon the caprice, negligence or procrastination of the trustee in delaying a sale, but will be regarded as having taken place at the death of the testator. § 701. Conversion where no express power of sale is con- ferred. — It is not necessary, in order that land devised shall be constructively converted, that the testator shall, in express words, confer the power to sell it upon any particular person. If the testator intends that the land shall be sold, though he does not state by whom it is to be sold, a power of sale will be implied in the person who is to distribute the proceeds of the land when sold. Thus, if land is directed to be sold, and the proceeds are to be distributed in legacies by the executor, a power of sale by implication will be conferred upon him, and the land will be regarded and treated as constructively con- verted from the death of the testator, always provided the direction to sell is imperative.'^ St. 455; McClure's Appeal, 72 Pa, St. 5 ingrem v. Mackey, 5 Redf. Sur. 414; Bell v. Bell, 25 S. C. 149; Taze- (N. Y.) 357, 359. well V. Smith, 1 Rand. (Va.) 313; 6 Martin v. Sherman, 2 Sandf. (N. T.) Rinehart v. Harrison, 1 Bald. C. C. 341. 177; Chandler's Appeal, 34 Wis. 505; ''Johnson v. Bennett, 39 Barb. Smith V. Claxton, 4 Mad. 484; (N. Y., 1863). 237, 241. Doughty V. Bull, 2 P. W. 320; Deg 8 Walker v. Shore, 9 Ves. 386. V. Deg, 2 P. W. 412, 415. See also ^ Irish v. Huested, 39 Barb. (N. Y.) cases, § 702. 411, 417. 1 Doughty V. Bull, 2 P. W. 320. J" Hutchin v. Mannington, 1 Ves. 2 Fitzgerald v. Jervoise, 5 Mad. 257. Jr. 366. 3 Carr v. Brand, 85 Va. 597. " Winston v. Jones, 6 Ala. 550, 556, « Arnold v. Gilbert, 5 Barb. (N. Y.) 557; Rankin v. Rankin, 36 111. (1865), 190, 197. 293; Trustees v. Fibher, 30 Me. 523, § T02.] EQUITARLE CONVERSION. 965 ^ 70'2. The date at wliicli constructive conversion takes place. — The constructive conversion of land into money, or vice versa, when no time is mentioned for a sale or purchase, usually takes place as of tlie date of the death of the testator, where the legacy of the proceeds of the sale vests at that date. This is so when the actual sale is to be made whenever the trustee shall deem it advantageous,^ or where the time of the actual sale is left whollv to the discretion of the trustee.- But 527: Morton V. Barrett, 22 Me. 257; Going V. Emery, 16 Pick. (Mass.) 107; Lippincott v. Lippiucott, 19 N. J. Eq. 121. 122; Hollman v. Tigges. 42 N. J. Eq. 127, 130; Bentham v. Wiltshine, 4 MaJd. 44; Patton v. Randall. 1 J. & W. 189; Tylden v, Hyde, 2 Sim. & St. 238; Sugdea on Powers, p. 134; Forbes v. Peacook, 11 Sim. 152, 12 Sim. 528, 11 Mees. & Welsby, 630; Robinson v. Lowater, 17 Beav. 592, 5 De Gex. M. & G. 272. For other cases in which a power of sale is raised by implication in the execu- tor, see j->sf, Jig 782, 783. 1 Robinson v. Robin.son, 19 Beav. 495. See ante, § 700. 2 Cunningham v. Moody, 1 Ves. 176; Crabtree v. Bramble, 3 Atk. 680,687; High V. Worley, 33 Ala. 196; Loftis V. Gla.ss, 15 Ark. 680; Stevenson's Es- tate, 2 Del. ClL 197: Hooker v. Gen- try. 3 Mete. (Ky.) 463, 473; Arnold v. Arnold, 11 li. .Mori. (Ky., 1850), 81. 88; Gedges v. Inst, 13 id. 530, 537; Nevitt V. Woodburn (III., 1898). 51 N. E. R. 593: Perkins v. Coughlin, 148 Mass. 30; Brink v. I^iyton. 2 Re, 2 Hare, 35; Bjirkt^r v. May, 9 Barn. iS: Crossw. 4H!(: Giiibrt V. Angi.'r. 12 Ve.s. 413; .SmiUi v. Claxtoii. I Ma.j. IS|. 9GG LAW OF WILLS. [§ 703. generally where the beneficiary of a trust for sale has no power, according to the terms of the will, to compel the trustee to exe- cute his power of sale, the power is not imperative, and it does not therefore w^ork a conversion. Thus, where the testator di- rects his executors to lay a sum of money out at interest for a benefiiciary, or at their oj)tion to invest it in land for his use, no conversion takes place until the land is actually purchased ; ^ for the legatee cannot compel the investment of the fund in land. If lands are directed to be sold, in language which works a conversion as of the date of the death of the testator, and the time of the sale is postponed or is left to the discretion of the trustee, or is dependent on the request or consent of the bene- ficiary, the rents issuing out of the lands until the sale belong to him who is to take the proceeds of the lands when sold, and they will go to him w^ith the proceeds, or they may be paid to him in the interim.- § 703. The sale of land after the death of the tenant for life. — The fact that land is not to be sold until after the expi- ration of a life estate in it, created by the will, does not prevent a constructive conversion from taking place as of the death of the testator. Thus, if the testator gives the income of land to 1 In re Becker's Estate, 150 Pa. St. cept tliat which is implied in every 524, 24 Atl. R. 687. case of this character, that, at the ^Harcum v. Hudnall, 14 Gratt. death of the testator, the purposes (Va.) 369, 381; Pearson v. Lane, 17 for which the conversion was di- Ves. 101; Casamajor v. Strode, 19 rected liave not failed, but still re- Ves. 390; Miller v. Miller, L. K 13 Eq. quire that the j)Ower should be exer- 263; Burges v. Lamb, 16 Ves. 190; cised. In all cases where conversion Cruikshank v. Chase, 113 N. Y. 337, takes place, it is because the purposes 21 N. E. R. 64. So, for illustration, if of the will require it. The conver- land is devised upon trust for sale sion may be entire, embracing the and to pay the interest of the pro- whole estate, or partial, extending ceeds to A. for his life, A. will be en- only so far as is necessary to satisfy titled to receive the rent from the special purposes indicated in the will, date of the death of the testator. The matter to be considered is the '• The direction that tlie executor intention of the testator. The con- should sell all his (the testator's) real version, whether absolute to all in- estate operated as a conversion of tents, or partial only, is the one or the the real estate into personalty from other because the purpose of the wil^ the time of his death. Tiie direction %. e., the intention of the testator, was is unqualified and peremptory. It that the conversion should be gen- leaves no discretion to the executor, eral or partial, for all purjjoses or for except ;is to the time and manner of limited purposes only." Andrews, J., sale. The exercise of the power of in Fisher v. Banta, 66 N. Y. 468, 476. sale is subject to no condition ex- § 704.] EQUITABLE CONVERSION. 967 his Trido\v for life, directing it to be sold at her death, and then bequeaths legacies to be paid out of the proceeds when sold, which legacies by the terms of the will vest at his death, the shares of the legatees wlio may die during the life of the widow will pass as money to their next of kin and not as land to their heirs.^ But it must be noted that the rule that land is con- verted as of the date of the death of the testator is based upon a presumption of an intention where the will is silent as to the time of sale. It yields to a clear expression of a contrary intention fixing the time of sale in the future. If the testator expressly directs the sale to take place at a particular future time, as so many years after his death, or after a life estate, or if he has made it to depend upon the request or consent of oth- ers, no conversion takes place until the date arrives which is indicated by the will when it ought to be sold. "When the time appointed by the testator for the sale actually arrives, the land will be converted as of that date whether the property is at that time sold or not.^ And a sale of the land may be made at any time during the life-time of the life tenant, with his consent.^ § 704. Blending proceeds of land with personal property — The effects of. — The blending of the proceeds of land which is directed to be sold with the personal property of the testator, while it may be a circumstance conclusive of an intention to convert the land, is not conclusive of an intention to convert it " out and out," but only for the purposes of the will.* If these purposes fail, the proceeds of the land must be separated from the personal estate. They may be constructively reconverted and will then go to the heir-at-law, though the testator has by his will given them as personal property to a legatee. And Avhere the proceeds of land are comprised in a residuum and the re- » AlW-n V. Watts. 98 Ala. 381; Rum- 63 N. Y. 052; Richey v. Johnson. 30 Bey V. Durliuni. 5 Ind. 71; lii'ia v. Ohio St 28H. 292; Meuhan v. Bren- Strite, 54 M<1. 29H; McClurc's Apjx'Hl, nan, 10 App. IJ. 395. 45 N. Y. S. 57; 72 Pa. St 414, 417; Thornrii.in'H Hstate, Brothers v. Cartwrij^ht, 2 Jones' Eq. 161 I'a. St 444. 44H; Hopp v. Minor, (N. ('.) 113; Mr( 'lure's Ap|>eal. 72 Pa. 33 Omtt (Vju) 97; Keinhart v. Har- St 414, 417. Ar- i see casos in not<5 2, rimn, 1 Maid. C. C. 177. 1H7. jkikc IHi:.. 2 Savage v. Huriiharii. 17 N. Y. 501, •' Hamlin v. Thomas. 120 Pa. St 20. 509; Monr-rief v. H<«h. .50 N. Y. 130; eal (Pa., 1889), 17 Atl. R. v. Ziuiinerman, 21 Pa. St. 394, 402. «; Fletcher v. Ashburner, 1 Bro. C. Cf. PorterfieKl v. Porterfield, 85 Md, C. 497; Durour v. Motteax, 1 Ves. 320; 633. Stagg V. Jackson, 1 N. Y. 206; Burr An option in trustees to sell with V. Sim, 1 Whart (Pa.) 252; Hill v. the consent of the testator's widow Bean, 29 AtL R 980, 86 Me. 200. does not effect a conversion, thougli - Hobson V. Hale, 95 N. Y. 5m:}; it Ls followed by an ini|)erative diroc- Hale V. Hale^ 125 IlL 399: Clarke's tion to divider the estate e(|ually Apixial, 70 Conn. 195, 483, 39 Atl. R. ainoii;; certain persons. InreWintle, 155, 162; In re Bingham, 127 N. Y. Tucker v. Wintlo (1896), 2 Ch. 711. 296; Lindley's Ap[)eal, 102 Pa. St. 235. See also De Beivuvoir v. Beauvoir, 3 » Keller V. HariH*r.64Md.74;NaKle'8 IL L. Cas. 524; Lucas v. Brandreth, Appeal, 13 Pa. St. 260, 263; Miller's 28 Beav, 273. Api)pal. m Pa. St. 401. 107; Irvin v. < GrcMiough v. Small, 137 Pa. St. I'at^dien, 30 Atl. R 4:J6. 164 I'a. St. 12M, 'JO Atl. R 128. M, 6.5, 35 W. N. C. 341; In re Mache- »In re Pyott's Estate. 160 P:u St. iner'H Estalo. 130 Pa. St. 514, 21 Atl. 411. 28 Atl. R. 915.921. R 411; Neely v. Grantham. 58 I'ji. oAnewalfs Appeal, 42 Pa. St 414. 070 JAW OF WILLS. [§ 705. place. So where a sale is to be made witli the ^\Joint conseiit and ap2>7'ol>ation of a liusband and his wife, and not without," no conversion takes place unless both consent. And not only does no constructive conversion take place until consent is given, but if the consent or the request of a third person is an (ibsohite 2'>r<'r<'quisite to an actual conversion of land or money, actual conversion without his consent or request is, as to him^ null and void. The property in its changed form will be con- structively reconverted into its original condition so far as he is concerned.^ But where the direction to sell land or to in- vest money is positive and imperative, or where the general scheme of the will requires a constructive conversion, and the provision requiring the consent or the request of another is de- signed merely to enforce the trust and obligation to convert and to protect the beneficiary, the property will be construct- ively converted, though he refuse or fail to request or to con- sent.2 And it has been held that, where the limitations of the property in trust are only applicable to real property, a direc- tion to invest money in real estate, on the request of certain persons, could be executed without request, for this direction to invest on request was evidently intended to give the bene- ficiary the power to enforce the direction and not to prevent it from being carried out.' The person who is to make the re- quest for an actual conversion will not be permitted to refuse or to delay making the request to the prejudice of others' in- terests.* And if he shall do so, or if he shall die witliout hav- ing made the request or given his consent, equity will regard it as having been done or given^ and will decree a sale or a purchase of land as may be required, with a constructive con- version as of the date of the death of the testator.^ The death 1 Davis V. Goodhue, 6 Sim. 585; lu diction to decree a sale where the re Taylor's Trust, 9 Hare, 596: Sykes consent which is required is unrea- V. Sheard, 33 Beav. 114. souably withheld, and the court has '^ Mellon T. Reed, 123 Pa. St. 1, 15 also the power to determine what is Atl. R 906: Lechmere v. Carlisle. 3 a reasonable time within which con- P. W. 211, 219, 223; Pulteney v. Dar- sent should be given. In re Free- hngton, 1 Bro. C. C. 228, 238; Thorn- man's Estate, 181 Pa. St. 405. 409, 37 ton V. Hawley, 10 Ves. 129; Symons Atl. R. 591; Act April 18, 1853. V. Rutter, 2 Vern. 227. ■■■ In re Tweedie & ^^liles, L. R. 22 'Thornton v. Hawley, 10 Ves. 129; Ch. D. 284. 27 Ch. D. 315: Lord v. Triquet v. Tliornton, 13 Ves. 345. Wight wick, 4 De Gex, Mac. & G. * Often by statute equity has juris- 803, 6 H. L. Cases, 217. §§ 706, TOT.] EQUITABLE COXTERSION. 9T1 of the person who is to give his consent or to make a request may prevent the actual conversion where conversion is ahso- lutely dependent vpon consent or request} So where a testator directs the sale of his land to be made, but only upon the re- quest of a majority of persons named, a majority of the whole number previously named is required, though some have since died.2 And finally it may be said that, where a power to sell lands or to invest money in lands is discretionary, or is to be executed on request or with consent, and the power is partially executed, but fails of a complete execution either by reason of the death of the trustee or of the person who is to give con- sent, the persons absolutely entitled and the heirs must take the land in its partially converted condition, they taking land or money as it is.^ § 706. A direction to sell at a fixed price. — Whether a direc- tion to sell land, providing a certain price can be obtained for it, shall operate as a constructive conversion of the land, de- pends upon the intention of the testator, to be gathered from the whole will. If a sale is positively forbidden unless the par- ticular price can ha obtained, no conversion takes place until the sale is in fact made. But if a sale is directed to take phice as soon as a price, which is specified, can be obtained, or as near that price as may be possible, it has been held that a con- structive conversion takes place, the limitation in price being advisory and not mandatory.* § 707. The effect of an option to purchase given to a bene- ficiary. — The fact that the testator gives a devisee of land which is devised either to him or to others, in trust for sale, ^In re Taylor's Trust, 9 Ilaro, 59G; certain persons, the land not being Gulifik V. GriswoUi, 14 App. Div. ^5. actually devised to any one, creates -Crane v. Bort Waterworks v. Sisson, 18 R. I. 411, 412, 28 AtL R 336; Craig v. Les- lie, 3 Wheat. (U. S.) 563; Haughwout V. Murphy, 22 N. J. Eq. 541, 536; Liv- ingston V. Newkirk, 3 Johns. Ch. (N. Y.) 312; Williams v. Haddock, 145 N. Y. 144, 150, 157. Cf. Hunttjr V. Mills, 29 S. C. 72. Contra by stat- ute in Chad wick v. Tatom, 9 Mont. 354, 23 Pac. R 729; and compare Tay- lor V. Hargrfxjve. 101 N. C. 145, 7 8. E. R 617; In r(3 Lefebvre's Estiite (Wis., 1898), 75 N. W. R 971. After the exocution of a (contract for the Hale of land the vendee ih the ec^ui- table owner, and the interest of the vemlor is converted into iKjrsoiialty; and hence, on his death, the pur- cliAsr; jirico beioriKH to his residuary legatees and not to the iKjrsons to whom he has specifically devised the land, though they will be compelled to execute a deed to the vendee. Newport Waterworks v. Sisson, 28 Atl. R 336. 2 Attorney-General v. Day, 1 Yes. Sr. 218, 220. Though a contract for the sale of land provided that, on the vendee's failure to pay the price at the stipulated time, all his interests thereunder shall cease, tiie interest of the vendor, on his deatii before the time named for payment, is to be treated as personalty, there being no default by the vendee. Williams V. Haddock, 39 N. E. R 825, 145 N. Y. 144. " It is very clear that if a maa seized of real estate contract to sell it, and die before the contract is carried into execution, it is personal linj|>erty of iiiiji. . . It seems to me to make no distinction at all. Sujipose a man should bargain for tJie sale of timber provided the buyer shouhl give proper security for the payment of the money; this, when cut down, would bo part of the personal <'state, although it de- jMjnds upon the buyer whi-ther ho gives the seoirity or not When the I)arty wJio has the jnjwer of making 974 I'AW OF WILLS. [§ TOO. § 709. Conversion in the case of lands contracted to be l)0ui::ht by the testator. — In the absence of statute creating the power to devise after-acquired hinds, a devise inchided only lands to which the testator had the legal title at the date of the will.^ Hence, if at the execution of the will he was under contract to purchase lands, the legal title to which he had not taken at his death, the legal title did not pass by a general de- vise. The equitable title of the testator in the contract passed to the residuary devisee, while the legal title at his death passed to his heirs,^ whom equity would treat as a trustee for the dev- isee. He would be compelled to pay the purchase-money to the devisee. Modern statutes conferring power to devise land acquired subsequently to the execution of a will have obviated the necessity for the interference of equity in such a case. If at the date of his death the testator is under a binding and valid contract to purchase land, but he has not taken title, his general or residuary devisee may claim the land under the con- tract.' The personal property of the testator, which would have paid for the land had he survived, is regarded as constructively con- verted into land as of the date of the contract,* and the heir or the devisee may call upon the executor or administrator of the vendee to pay the purchase-money out of the personal estate.'* the election has elected, the whole is ing assented to the devise, the legal refeiTed back to the original agree- title to the land became at once ment, and tlie only difference is that vested in him and the other devisee, the real estate is converted into per- and the executor of the vendor could sonal at a future period." Lawes v. not enforce the contract against him. Bennett, 1 Cox, 167, on p. 171 (1758). Taylor v. Hargrove, 101 N. C. 145, 7 The right of the testator to sue for a S. E. R. 647. breach of a contract to sell land, ^ Ante, §§ 21, 61-64 vvliich is pending at his decease, de- ^ Greenhill v. Greenhill, Pre. Clu vulves upon his executoi-, and not 320; Green v. Smith, 1 Atkyns (1783), upon his devisee of the hind. Irwin 572, 573; Acherley v. Vernon, 9 Mod. v. Hamilton, 6 Serg. & R (Pa.) 208. 68, 78. A. entered into a contract to pur- ^ Williams v. Hassel, 73 N. C. (1875), chase land of the testator. Before 174, 177. the conveyance had been executed, * Whittaker v. Whittaker, 4 Bro. C. or the purchase-mone}' paid, the tes- C. 30. tator died, having devised the land * Broome v. Monck, 10 Ves.597, 612, to A as tenant in common with an- 615; Garnett v. Acton, 28 Beav. 333; other. Tlie court held that A. might Langford v. Pett, 2 P. W. 629, G32; elect to lake under the will and he O'Shea v. Howley, 1 Jo. & Lat 398. might repudiate the contract. Hav- § 709.] EQUITABLE CONVERSION. 975 So where an owner of laud bad engaged a builder to erect a house upon it, and pending the erection of the house the owner died, the court of chancery held tbat not only was the heir en- titled to the house completed, but that he might call upon the administrator of the ancestor to pay for it.^ And if the devisee has to pay it out of his own pocket, he may call upon the executor to reimburse him. But at the present time by statute in Eng- land,- and in many of the states of the American Union, the right of the heir or a devisee to call for the exoneration out of the personal estate of land which descends or which is devised is absolutely abolished. While these statutes relieve the per- sonal estate from its primary burden of paying the purchase- money, they do not affect the principle of conversion, and the property contracted for passes as land under the will. As a result of the conversion of personal property into real, which takes place as soon as one has purchased real estate though he has not completed the payment for it, the money is regarded as land, irrespective of intention. It would pass under a general devise of land, and if the devisee is an alien w^ho is incompetent to take real property the devise would fail, though the alien was competent to take it if it had remained personal property,' But it must always be proved, in order that the personal rep- resentative of the testator shall be compelled to pay for the land, that the testator at his death was liable to an action on the part of the vendor to enforce the contract. For if the Vendor had a bad title, or if the contract was not binding upon the vendee, or if it would have been set aside in a court of equity,* no conversion of money into land takes place, as be- tween the executor of the vendee and tiie devisee of the vendee. X(jr can the court inquire by means of parol evidencu; into the circumstances to ascertain wiiether the testator in fact intended to complete or to rescind the contract for the purchas(^ of th(5 land; for the fact that it was binding at his deatli is conclusive, •Coo|)er V. Jarnian, L. R. 3 E, who may enforce thenuif^ainst '^ In ro UniveH* Minor, 15 Ir. Ch. li. the heir or dovisoo of the lessor. In .'357. ro Adams, K II. 27 Cli. I). ;J1I4. 402. 'Townloy v. Hodwoll, 14 Ven. 591; A ground rent wliicli is ruiU'(*malilo und comimrc Collingwooil v. How, 'i at any time, at tliu option of tlio teu- 02 97S LAW OF WILLS. [§ TIL ^ 711. Conversion in the case of land talien for pnblie use* "NVlicru hmd is taken by a I'ailroad or other corporation by virtue of the riylit of eminent domain wliich lias been delegated to it by the legislature, it becomes important to determine at what date the land is converted, in order to ascertain what disposition shall be made of the proceeds where the owner dies before the money is actually paid to him. In England it has been both held ^ and denied^ that a notice to treat for land given by a railroad company converts it, and creates the relation of vendor and vendee between the parties. The negative of this proposition would seem more reasonable than the affirmative, for no contract can exist between the parties until an agree- ment as to the price and subject-matter is reached; nor can the land be considered as actually appropriated until an actual entrance is made upon it by the company. Other cases have held, therefore, that the conversion takes place, under these circumstances, only when the value of the land is fixed in proper legal proceedings.^ ant, is realty and will pass as such until it is actually redeemed. In re Wliite's Estate, 1G7 Pa. St. 206, 31 Atl. R 569. Cf. In re Hirst's Estate, 147 Pa. St. 319. But it has also been held that no conversion of a gi'ound rent takes place wlien it is paid off to trustees without choice on their part tliough they had a power of sale. In re Ingersoll's Estate, 167 Pa. St. 536, 36 W. N. C. 251, 31 Atl. R 860. In Ed- wards V. West, L. R. 7 Ch. D. 858, the court, while affirming Lawes v. Ben- nett, refused to extend its applica- tion. The conversion which is made under an option will not be taken to extend by retrospection, prior to the date of the option. In this case a lessee had an option to purchase, in a fixed time, for £15,200, and the land- lord had agreed to insure for £14,000. After the premises had been burned and the insurance money paid to the landlord, tlie lessee exercised his oj)- tion and claimed the insurance money upon the ground that the conversion related back to the date of the option, and that, though the property had been actually converted into money by the action of the land- lord in receiving the money from the company, as to him the insurance money ought to be constructively reconverted into land. The court, in deciding against liim, distinguished this from a case arising between real and personal representatives of a de- ceased person. See also Reynard v. Arnold, L. R. 10 Ch. App. 386, where tlie disposition of insurance money on property which the lessee had an option to purcliase is discussed. 1 Regent's Canal Co. v. Ware, 23 Beav. 573, 575, 582; Stone v. Black- wall, 4 Myl. & Cr. 122; Ex parte Hawkins. 13 Sim. 569. 579; Walker v. Railway Co., 6 Hare. 594. 2 Railway Co. v. Woodhouse, 11 Jur. (N. S.) 296; Haynes v. Haynes, 1 Dr. & Smale, 426, 430, 446; Richmond v. Railroad Co., L. R. 3 Ch. App. 679, L. R. 5 Eq. 352, 358. Cf. Ex parte Arnold, 32 Beav. 591. 3 Harding v. Railroad Co., L. Pu 7 § Til.] EQUITABLE CONVEKSIOX. 979 If the company and the owner waive all judicial proceedings looking to a condemnation of the land, and agree upon a price for the land, the contract is then complete, and the land is con- Terted from the date of the agreement as in the case of an ordinary contract of sale.^ So, in a case where the land-owner, having devised the land, agreed with a railroad company to sell it, and then died hrfore receiving the inirchase-vioney^ but with- out altering his Avill, the devise is adeemed and the executor is entitled to receive the purchase-money from the company.'- In the United States the cases seem to turn upon the question whether or not the land, or any interest in the land, has been actually taken, irrespective of whether the money has been paid for it or not. If the land has been actually taken it will be regarded as converted into personal property as of the (kite of the taking, and if the owner dies and the money is paid, the pro- ceeds will pass as personalty.' If the owner of the land de- vises it, and, suljsequent to the execution of the will, it is taken in condemnation proceedings, and the testator dies before re- ceiving the money, the devise will be adeemed, and the proceeds, though not in his possession, will, when paid, go to his executor.* An order of a court of competent jurisdiction directing that; land shall be sold amounts to a constructive conversion of the land as of its date, though the actual sale does not take place until long subsequently thereto.'^ After the entry of the order, the rights of all the parties and of all persons ckiiming under or through them are determined upon the assumption that; the land has actually heen fiold, unless it is clearly apparent that. some one will he inequitaljly treated hy this asstDiiptiun. This CIl App. ir,4: Watts v. Watts, L. It l)orouKli. etc. Co.. 4 Cusli. (Mass.) 407: 17 Va{. 217; Ilaynes v. Ilaynes, 1 D, Iltjtclikiss v. Auburn 11. K. Co., 3(> & Sni. 420, A:VX Bail). (N. Y.) 600. • P]x parte Ilaukins, 1.3 Sim. "iflO, TilH; Na.sli v. Coinmissioncrs, 1 Jur. viscil in trust, the inroino only to bo (N. .S.)!i7o; Kx partu Ariiolil,."!2 Hcav. i>ai actual condition at that period. But in England it is expressly provided by statute,^ that, in the case of a sale, mortgage, change or other disposition of a lunatic's land, after answering the purpose for which the change has been directed, the sur- plus is to be taken as of the same nature and character as the estate sold or otherwise disposed of. The proceeds of the sale of the real estate of the lunatic are to be held as real property by his committee, and on his death, unless he shall recover and elect to take the property converted, the money realized from a sale of his real property will devolve as land upon his heir.^ In the United States, so far as the matter is not expressly regulated by statutes which are similar in their provisions and operation to the English enactment mentioned, land or per- sonal property actually converted by judicial order during the existence of the incapacity will retain the new character im- pressed upon it, and will devolve as such upon the successors of the lunatic. A devise of land by the lunatic in a will exe- cuted before the appointment of a committee, or even after- wards, where it is shown that he possessed testamentary capac- ity,' will be annulled ij?so facto by a sale of the land under an order of the court, and the proceeds will pass as personal ])rop- erty.* J Lunacy Regul. Act, 1853, IG and to the heirs at hiw of the infant. 17 Vict., c. 70, 119. Wetlierili v. Ilougli, 52 N. J. Eci. 083, 2 In re Stewart, 1 Sra. & Gif. ?>-l, 39: CsS, 29 Atl. R. 592. In re Ba^ot, 31 L. J. Ch. 772; In re 3 See gi; 97, 98. 3Iary Siaitli, L. R. 10 Ch. App. 79, 84; * A testator who was cntitldl to a In re liarker, L. It. 11 Ch. D. 241; In ground rent devised it to several, one re Sko;^;,'s, 2 De Gex, J. & S. 533 ; Dixie of wlioni was a lunatic. The legatees V. Wrij^lit. 32 IJeav. 0(52; Kelland v. released it to tlie testator's grantee Fulford.L. R6Ch. D.491: In re Whar- under a covenant by him to do so, ton, 5 De 0«'X, M. & G. 33; Sinitli v. tlie coininittet! of tiio lunatic having lijiyright, 34 X. J. Ivj. 421; Jacdhiis i)r«)cuied tlie iM-rniissioii of the court V. Jji«-ohiis, 30 N. J. Ivj. 2IH. When t<» join therein, //r/f/, that the luna- the real estate of an infant is con- ti<-'s share was jx-rsonal property and verted into money hy onler fjf f«)urt, w( Horton v. McCoy, 47 N. Y. 21, 27; ^Green v. Johnson, 4 Bush (Ky.), and compare Wetherill v. Hough, 52 104; R^iwlinj? v. Lamles, 2 Bush N. J. K\»'i\ 1 In-d. (N. C. INKO. Kq. 1 1;{. 3 Fidh-r V. Iliggins, 21 N. J. Va\. i;J8; 147; >k-( 'hire's Appeal. 72 Pa. St. 114. Snowliill V. Snowliill. '.\ N. J. Kq. 20; Tliis is tlie rule, tliougli tlie proceeds Shuinxvay v. (,"rsonal ♦ B«'arh v. Simmons, 55 Atk. 1H5, pro|M'rty. Bi'uImiw v. Moore, 19 S. F. 18 s. W. R 9:w. li. i:>(\, 114 N. c. '^^y,l 984: LAW OF WILLS. [§ ns. Personal property constructively converted under a will by a direction that it shall be invested in land does not pass by a bequest of personal property, general or residuary.^ Cut money which is thus constructively converted will pass under a general or residuary devise of land, or of my land, or of real estate, in the will of him to whom it is devised.^ On the other hand, where the land is converted constructively into money, with a direction to pay all or a part of the proceeds to a lega- tee, he may bequeath it by a will disposing of his personal property. The share of the proceeds given to him will pass imder a general or residuary bequest of his personal property ; * while if he shall die intestate it w^ill go to his administrator for the benefit of the next of kin.* Eeal property which has been constructively converted into personal property by a con- tract to sell or by an imperative direction to sell will pass as personal property under the will of an infant who is entitled to share in it, though the infant is incompetent to make a will disposing of bis lands.^ It was held at a very early date that J Edwards v. Countess of "Warwick, 2 P. "Wms. 171; Gillies v. Longlands, 4 DeGex & Sm. 372; Chandler v. Po- cock, L. R l.j Cb. D. 491; Cookson v. Cookson, 12 CI. & Fin. 121. If it is described as the vioney left me by- will, or as certain money directed to be invested in land, it will pass as money. 2Lingen v. Sowray, 1 Peere Will- iams (1710), 172; Hickman v. Bacon, 4 Bro. C. C. 833; In re Scarth, L. R 10 Ch. D. 499; Chandler v. Pocock, L. R 15 Ch. D. 491, 499; Lechmere v. Earl of Carlisle, 3 P. W. 311; Guidot V. Guidot, 3 Atk. 254, 256; Rashleigh V. Master, 1 Ves. Jur. 201, note p. 205; Wall V. Colsbead. 2 De Gex & Jo. 683; Biddulph V. Biddulph, 12 Ves. 161; Green v. Stephens, 17 id. 64, 77, 12 Ves. 419; Green v. Johnson, 4 Bush (Ky.), 164; Gott v. Cook, 7 Paige (N. Y.), 521, 524; Hawley v. James, 5 Paige (N. Y.), 318. 443. Moneys impressed with a trust to invest in land will pass under a devise of land; but •where the money may be invested anywhere in the country, it will not pass under a devise of land in a cer- tain place. In re Duke of Cleve- land's Estates (1893). 3 Ch. 244. 3 Allen v. Watts, 98 Ala. 384: Elliott V. Fisher, 12 Sim. 505, 506; Stead v. Newdigate, 2 Mer. 521; Spencer v. Wilson, L. R 16 Eq. 501; Gover v. Davis, 29 Beav. 222, 225. 4Loftis V. Glass, 15 Ark. 680; Mad- dox V. Dent, 4 Md. Ch. 543; Smithers V. nooper, 23 Md. 273; Wurts v. Page, 19 N. J. Eq. 365; Fisher v. Banta. 66 N. Y. 468, 476; Hood v. Hood, 85 N. Y. 561 ; Van Vechten v. Keator, 63 N. Y. 52; Moncrief v. Eoss, 50 N. Y. 431; Jones V. Caldwell, 97 Pa. St. 43. 46; Eby's Appeal, 84 Pa. St. 241; Wilkins V. Taylor, 8 Rich. Eq. (S. C.) 291; Ashby V. Palmer, 1 Mer. 296; Burton v. Hodsoll (1827), 2 Sim. 24, 32: Briggs V. Andrews, 5 Sim. 424,430; Griffiths V. Ricketts, 7 Hare, 299; Hardey v. Hawkshaw, 12 Beav. 252. 5 Horton v. McCoy, 47 N. Y. 21. 27; Harcum v. Hudnall, 14 Gratt. (Va.) 369, 374; Allen v. Watts, 98 Ala. 384, § T14.] EQUITABLE CONVERSION. 985 money which had been directed to be invested in land for the benefit of A. in fee would, upon A.'s death, descend to her heirs, and that her husband was entitled to an estate by cur- tesy therein.^ But, as the widow is not entitled to dower in equitable estates, in the absence of a statute, she could not, until the passage of the Statute 3 and 4 Wra. lY, c. 105, claim her dower in money which was directed to be converted into an estate in lands in fee simple.- Land which is converted by a direction to sell, and to pay the proceeds over to legatees, cannot be sold as land under lien of an execution obtained against a legatee^ either before or after the actual conversion.^ § 714. Dower aud curtesy in property eouverted. — The English courts of equity very early decided that a husband was entitled to an estate by the curtesy in money directed to be laid out in land prior to the actual conversion. In an early case money was directed to be laid out in land by a father, and settled to the use of his daughter. She married and had a child, but before the land could be purchased she died. The chan- cellor permitted the husband to have an estate for his life in the money.* This decision was subsequently followed and af- firmed in chancery as a well recognized rule.^ Although the 11 S. R. 646; Tazewell v. Smith, 1 Rand. (Va., 1823), 313; Pratt v. Talia- ferro, 3 Leigh (Va., 1832). 419. The will of an infant, though it may be valid to carry personal property, is not valid to carry money wliich has been directed to be laid out in land. Earlom v. Sanders, Amb. 241; Carr V. Ellison, 2 Kro. C. C. 56. See also J; 712, anto. The beneficiaries of a devise of land wliich has been con- structively converted into money as of the death of the testator may, in their dealings among tluMnsclves, convey it without the formalities which are requisite in conveying land under the statute of frauds. Howell V. Mellon (Pa. St, 18y8), 42 Atl. R 0. ' Swdy, I V.w. Sr. 171; Dodwjn v. Hay, 3 Uro. (;. c. 401. 2Seei50.sf. §714 =• Baker v. Copenbarger, 15 111. 103; Willing V. Peters, 7 Pa. St (1847), 287, 290; Jones v. Caldwell, 97 Pa, St. (1881), 43, 46; Roland v. Miller. 100 Pa. St 47, 51; Hunter v. Anderson, 152 Pa. St. 386, 390; Evans' Appeal, 63 Pa. St 183. 187; Paisley v. Ilolzshu, 83 Md. 325. 330; Brolaskey v. Oally. 51 .'Pa. St 509; Allison v. Wilson, 13 S. & R. (Pa.) 333: ^Morrow v. Breni- zer, 2 Rawie (Pa., 1833), 185: Stuck v. I^fackey, 4 Watts & S. (Pa.. 1S42). 496. Contni, Sayles v. Best, 35 N. E. R. 636, 140 N. Y. 368, construing a stat- ute providing that expectant estates are alienable. * Sweetai)plo v. Bindon. 2 Vern. 586. 6 Olway v. Hudson, 2 Vern. 383, 385; Fletcher V. Asliburner, 1 Bro. C C 497, 49H; Cuniiiiigham v. IMoody, 1 Ves. Sr. 174, 176; Dods^n v. Hay. 3 Bro. <'.('. IIM; lt.iiiisdeii v. ljii:gli«y, 0S6 LAW OF WILLS. [§ 715. general principle that a wife might be endowed of equitable interests was repeatedly recognized, the courts of equity were slow to permit her to enforce her right of dower in money which was to be laid out in land for the benefit of her husband, and which had not actually been converted. No decision is to be found in the English reports in which the wife's right to dower in the money is sustained. On the contrary, it was expressly repudiated by equity in every case where the question arose.' At length the matter was settled by statute 3 and 4: William IV, c. 105, which provided that if any husband who died ben- eficially entitled to any land to the extent that, if it were a legal interest, his wife could claim dower at law, she shall have her dower in his interest. Under this statute, and under sim- ilar statutes in the various states of the Union, the widow of the beneficiary of money converted into land is entitled to her dowser therein. The converse case, w^here land is to be con- structively converted into money, is clear. As soon as the con- structive conversion occurs, the money is free from the dower of the widow of the beneficiary.- So, it may be remarked in conclusion, to further illustrate the statements of the text, that the widow of a person who has entered into an absolute and binding contract to purchase land is entitled to dower therein on the death of her husband, though he has died before the legal title to the land has vested in him by the delivery of the deed.'' § 715. The failure of the purpose of a conversion — Re- conversion. — "Where a testator directs land to be converted by a sale, it will be presumed, in the absence of all proof of a contrary intention, that he intended the conversion solely to carry out his testamentary purpose, and if for any reason that purpose fails, so that the money w^ill not pass under the will, 2 Ves. 536; Follett v. Tyrer, 14 Sim. Eq. 37; Cook v. Cook, 20 N. J. Eq. 375; 125. Willing v. Peters, 7 Pa. St. 287, 290; 1 Crabtree v. Bramble (1747), 3 Atk. Hunter v. Anderson, 152 Pa. St. 380, 680, 687 ; Cunningham v. Moody (1748), 390. 1 Ves. Sr. 174; Fletcher v. Ashburner 3 Robinson v. Miller, 1 B. Mon. (Ky.) <1779), 1 Bro. C. C. 497; Park on Dower, 93; Reed v. Whitney, 7 Gray (Mass.), 136; 1 Roper on Husband and Wife, 533; Lobdell v. Hayes, 4 Allen (Mass.), 356; Leigh & Dalziel on Equity Conv, 187; Young v. Young, 45 X. J. Eq. 27; 62; 1 Fonbl. Eq. 420; 1 Scribner on Church v. Church, 3 Sandf. Ch. (N. Y.) Dower, 453. 434; Smiley v. Wright, 2 Ohio, 512. - Berrien v. Berrien (1834), 3 N. J. § n5.] EQUITABLE CONVERSION. os: a constructive reconversion Avill take place in equity; the pro- ceeds of the Land sokl will be regarded as land, and the exec- utor cr trustee will hold them in trust for the heir of the tes- tator, if it was disposed of in a residuary clause, or for the residuary devisee, if otherwise.^ 1 Johnson v. Hilfield, 82 Ala. 127, 128: Crerar v. Williams, 1-15 111. 62-3, 34 N. E. R. 407; Haggard v. Rout, 6 B. Mon. (Ky.. 1845), 24-5, 249: Went- worth T. Read, 166 IlL 139, 46 N. E. R 777; Trippe v. Frazier, 4 Har. & J. Old., 1819). 446: Lusk v. Lewis, 32 Miss. (1856), 297; Drew v. Wakefield, 54 Me. 291 ; Holland v. Cruft, 3 Gray (Mass.), 162, 180; Oberle v. Lercli, 18 X. J. Eq. 346, affd 575; Smith v. First Church. 26 N. J. Eq. 132; Cook v. Cook, 20 X. J. Eq. 375, 377; :Moore v. Robbins, 53 N. J. Eq. (1894), 137: Hand V. Marcy, 28 N. J. Eq. 59, 65; Roy v. Monroe.' 20 Atl. R. 481, 47 N. J. Eq. (1890), 3.56: Smith v. Kearney. 2 Barb. Ch. (N. Y.) 533: Wood v. Keyes, 8 Paige (N. Y.), 365, 369, 370: McCarty V. Terry, 7 Lans. (X. Y.) 236: Bogert v. Hertell, 4 Hill (X. Y.). 492, 495. 500; Jackson v. Jansen, 6 Jolms. (1810). 73, 81: Hawley V, James, 5 Paige, 213, 318, 444. 4.%; Arnold v. Gilb-rt, 5 Barb. (X. Y.) 190, 195; Giraud v. Giraud, 58 How. Pr. 175, 182: Betts V. Betts, 4 Abb. X. C. (1876), 317, 419; Gott V. Cook, 7 Paige (X. Y.), 532, 542: Marsh V. Wheeler. 2 Edwards, 156, IVJ; Dei)eyst«r v. Clendining, 8 Paige 4; Wilsrjn v. Hamilton. OS^-rt'. & H. (Pju, 1H23). 424; Burr v. Sim, 1 Wliart. (Pa.) 2.52. 262; App.-ii of Wf-ntz, 17 Atl. li 875. l20 Pa. St. r.41, 24 W. X. (J. 201; In re Worsloy's KHtate.4 Pa. Dist. It. 177. 36 W. X. C. 247; Monnx! v. Joriiv*. H It. I, .526; North V. Valk. Dud. (.S. C.) Eq. 212; liewolf V. I^iw.Hon. 61 Wis. 477, 47H (1SS4); Rinehart v. Harrison, 1 Bald. C. C. 177; Craig v. Leslie, 3 Wheat. (16 U. S.) 562. 563, 582; Collins v. Wakeman, 3 Ves. Jr. 683; Williams v. Williams, 5 L. J. (X. S.) Ch. 84: Roberts v. Walker, 1 R. & My. 752; Amphlett v. Park, 2 R. & My. 221; Johnson v. Woods, 2 Beav. 409; Shall- cross V. Wright. 12 Beav. 505; Hop kinson v. Ellis, 10 Beav. 169; Gordon V. Atkinson, 1 De G. & S. 478; Tay- lor V. Taylor. 3 De Gex, i\I. & G. 190; City of London v. Garway (1706), 3 Vern. 571; Levet v, Xeedham (1690), 2 Vern. 138; Hewitt v. Wriglit, 1 Bro. C. C. 86, 90, note; Robinson v. Taylor, 2 Bro. C. C. 589, 595; Ackroyd V. Smithson, 1 Bro. C. C. 503; Cruse T. Barley. 3 P. W. 20; Yates v. Comp- ton, 2 P. W. 308: Star key v. Brooks. I P. W. 390; Robinson v. Taylor, 1 Ves. 44, 2 Bro. C. C. 589; Collins v. AVakeman, 2 Ves. Jr. mi 687; Eyro v. Marsden, 2 Keen, 564 ; Barley v. Eveh-n, 16 Sim. 290; Buchanan v. Harrison. 1 J. & H. 662; Williams v. Coade, 10 Ves. 500, 505; Chitty v. Parks (1793), 3 Ves. 271. 4 Bro. C. C. 411; Halliday v. Hudson (1796), 3 Ves. 210; Ripley v. Waterworth, 7 Ves. 425, 435, note; Marsh v. Smith, 17 Ves. 29, 32; Berry v. Usher (1SU5). II Ves. H7. 91; Stanley v. Stanley. 16 Ves. 491; Watson v. Hayes, 5 My. & Cr. 125; Clark v. Franklyn, 4 K «& J." 257; Jessopp v. Watson, 1 My. & K. 6(»5; Tregonwell v. Sydenliain, 3 Dow. 196; Sit't v. ("hattaway,:! Ht-av. 570; Ik'ciive v. Hodgson, 10 11. L. C 6.50. " When'," sjiifl l^)rd EMon, in 1H1:j. ill Hill V. ('ose. to cori- viTl Ills real cslalr! into |MTsoiiaI, if 9S8 LAW OF WILLS. [§ 715. The principle of reconversion is apj)lio(l in tlio case of a sale of land wliicli has been directed for an unhiwful purpose; as, for example, where a sale is directed, and the proceeds are to be paid to a charitable institution which is incapable of taking, either because of its own character or because the devise is Toid by reason of the testator's (loath occurring within a month after the execution of the will.' So, too, where the testator orders his land to be sold and the proceeds to be devoted to a purpose, the execution of which does not exhaust the proceeds, the balance will be constructively reconverted and result to the heir.- So the principle bringing aliout a constructive re- conversion is also applicable with like force to a case in which the testator has directed that lands devised in trust shall be sold and the income of the fund, which is the result of the sale, shall be paid to his widow during her life for her support, but the testator has omitted to dispose of the proceeds of the sale after the death of his widow. He is intestate as to it, though it does not devolve upon the testator's next of kin. Though it has been sold, yet the money is land so far as the heir is concerned, and continues to be regarded as such in equity from the date of the death of the testator.^ Thus, where that purpose cannot be servefl, the 503, decided by Lord Chancellor court will not infer an intention to Thurlow in the j^ear 1780. In that convert the estate for any other pur case a residue of real and personal pose not expressed." property was left in trust for sale iln re Fox, 63 Barb. (N. Y.) 157, and to pay in legacies. Some of 160; Burr v. Sim, 1 Whart. (Pa.) 252, the legacies lapsed by the death 262: Read v. Williams, 26 N. E. R. of the legatees. Prior to that case, 730, 125 N. Y. 560; Appeal of LetT- if land was sold under an explicit berry, 17 Atl. R. 447, 125 Pa. St. 513; direction for its sale and the pur- Hovey v, Adams (Mass.), 27 N. E. R. pose of the sale failed, the money 659; Attorney-General v. Lord Wey- resulting from the sale of the land mouth, Amb. 20; Jones v. Mitchell, was personal property and went to 1 Siui. & St. 294; Hopkinson v. Ellis, the next of kin or the residuary leg- 10 Beav. 169; Hamilton v. Foot, 6 Ir. atee. Under the rule laid down in R. Eq. 572, that case, when a conversion of land -Moore v. Robbins, 32 Atl. R, 379, into money is necessary and a por- 53 N. J. Eq. 472. tion of the object fails, the part of 3 Wilson V. Major, 11 Ves. 205. The the money unexpended is regarded rule of a resulting trust in favor of as constructively reconverted unless the heir, and a constructive recon- it is clearly apparent that the inten- version of land directed to be sold, tion of the testator was to convert ■was first established in the case of the land out and out. Ackroyd v. Smithson, 1 Bro. C. C. §§ 710, TlGa.] EQUITABLE COXTEKSIOJS". 9S9 the testator directed that land sh.oukl be sold for the support of his widow aud family, and it turned out that the personal property was sufficient for the purpose, the proceeds of the land, when sold, went to the lieir.^ § 716. Resulting trust for the benefit of the next of kin. The rule of resulting trusts is applicable to money which is di- rected by the testator to be invested in land and the devise fails. AVhere the purpose of the investment in land fails, whether partially or wholly, a resulting trust will arise in the land itself, if it has been purchased, and it will go as money, not to the heir, but to the next of kin of the testator. Some of the early cases in the English courts of equity favored a dis- tinction between land directed to be sold and money directed to be invested in land, and would permit a resulting trust for the heir in the former on the failure of the testator's purpose, though not for the benefit of the next of kin in the latter; but the distinction was usually expressed as mere dieta, and at length it was absolutely repudiated by Lord Cottenham- as a distinction which was not supported by reason, and which, being unjust to the next of kin, would not be permitted to exist. In such case it has been held that, where the will contains a residuary bequest, the money directed to be laid out in land for a purpose which fails or is void shall go to the residuary lega- tee; ' and where the next of kin become entitled to the land in which the personal property of the testator has been in- vested, they, take it as real estate, and it goes to their heirs or devisees. Their next of kin cannot, after their deatii, have it constructively reconverted.* § 71Cii. The nature ol tlie property in wliith a reconver- sion is had for the benefit of the Iieir. — The question may arise betwec-n the heir and the personal re[)resentatives ol" :ni heir in wlioso favor a reconversion is had, as to the loini in which the property shall devolve upon them, and u liicli ol' them shall be entithid to it. If, in ])nrsiian('(' olan imperative jj^n V. SUfVftns. 1 n<'!iv. 483, < Curtoi.s v. WoriiiaM, 10 L. li. CIi. 483, .-i L. J. (N. 8.) Ch. 17. Div. ITZ. ' Hereford v. Itiivenliill, "j lieu v. ."il; 900 LAW OF WILLS. [§§ 717, 718. is a jxu'f/'d fiiilin'o of tlie tostaiiicntary purpose to carry out which the sale was necessary, a trust results to the heir in the money arising from the sale of the land which he takes as inon, 48:3, Attorney-General v, Lomas, L. It, 9 39 Atl. R. Vyy, Ford v. Ford, 80 Mich. Exch. 29. 42, 44 N. W. R. 188. •19.] EQUITABLE CONVEKSIOIf. OKI land, and will devolve as such.^ If the power to sell the land and to reinvest the proceeds is to be exercised only in case there shall be an opportunity to sell at a price named, or to buy particular propert}', or upon any other contingency, the doctrine of doable conversion does not appl3^- §719. Election to take the property unconverted. — The power of the testator to enforce a new character upon land or personal property by a direction to sell or to invest gives rise to a constructive conversion; but, on the other hand, this con- structive conversion may be determined by the person or per- sons wJio actually oicn ahsolutdy ^ or are 'beneficially entitled absolutely, to the jjroperty . The ultimate and absolute owner, if sui juris, by electing to take the property in its existing state before it has been actually sold if it was land, or invested in land if personalty, may put an end to the constructive conver- sion. As equity will do nothing in vain, the court will not com- pel the trustee to sell or to invest, for the beneficiary who is absolutely entitled may immediately reconvert the property.* 1 Sperling v. Toll, 1 Ves. 70; Pear- son V. Lane, 17 Ves. 101; Haggard v. Rout, 6 B. :Mon. 247, 249 (184o); Ford V. Ford, 80 :\Iich. 42, 44 N. W. R. 1057; Dewolf V. Lawson, 61 Wis. 477, 478. ^ Ford V. Ford. SU Mich. 42, 44 N. W. R 10.")7. Tiie prociH'ds of laud which has LM.*en sold, and which are await- ing reinvestment in land, will not pa.ss under a devise of all the testa- tor's land where a part only of the lands has been sold, but the land which has not been sold will pass. In re Pedder. 5 D. :^L & G. 890. ' In re Cotton's Trust, L. R. 19 Ch. D. 024, 028; (;roi)l.-y v. Cooper. 7 D. C. 220: aflinned, 19 Wall. (U. S.) 107; Brfx.riif V. Curry, 19 Ala. 80.", (1H."»1); \hi Vaughan v. Mcr>er«»y, H2 (jia. 0H7, 10 S. K. R. 211; Man.llebauiii v. Mc- Donnell. 29 Mich. (1H74), 78, H7; Peo- ple V. I>iase, 71 111. Apj). ;{H0. :{9:j; (ji'si V. FlfK;k, 2 N. J. K(i. (18:W), 21; Iliilnr v. iJonoghue, 49 N. J. Va\. 125, 2:j AtL R. 49.'); Reed v. Undcrhill. 12 Barb. (N. Y.) li:J; (^uin v. Skinn-r. 49 Barb. (N. Y., 1807), 1132; Aniihtrong V. McKelvey, 104 N. Y. 179; Tazewell V. Smith, 1 Rand. (Va.) 313 (1823); Laird's Appeal, 85 Pa. St. 329; Ross V. Drake, 37 Pa. St. 373; In re Cun- ningham, 20 Atl. R. 714. 137 Pa. St. 021, 27 W. N. C. 05; Battersby v. Castor, 37 Atl. R. 572, 181 Pa. St. 555; Kirknian v. Miles, 13 Ves. 338. The power of sale is forever terminated by the election of the beneliciaries to take the land as land. McDonald v. O'Hara. 34 N. Y. S. 092, 13 Misc. R. 527; Smith v. Farmer Tyj)e Co.. 17 Misc. R 311. 41 N. Y. S. 788, 40 X. Y. S. 350. "The principle upon which the whole of this doctrine is fouiith^d is, that a court of ecpiity. regarding Iho sul»stance and not th(5 mere forms and (Mrcumstances of agreements and other instruments, considi-rs things directed or agreeil to 1h) dono as having been actually performed, where nothing has intervetuMl which ought to prevent u performance. This qualification (,f the mon^ coii- <-is<( iitid gener.il rul»> that equity considi IS that tVlio may elect to take the property iiiicon verted. The person who is to take property unconverted must be sui jui'i^} An infant cannot elect unless upon clue judicial in- tpiiry and under the direction of the court, and only when it is ascertained that an election will be for his benefit.'^ Neither can a lunatic himself elect, nor his committee elect for him.' In the absence of an enabling statute, a married woman was clearly incompetent to elect by deed to take land or money unconverted.* Bat by coming in equity and being properly examined, the court of equity had power to elect for her in respect to the property settled to her separate use. But this agreed to be done will comprehend, the cases which come under this head, of equity." "Thus, where the whole beneficial interest in the money in the one case, or in the land in the other, belonj^s to the person for whose use it is given, a court of equity will not compel the trustee to execute the triLst against the wishes of the cestui que tnist, but will permit him to take the money or the land, if he elect to do so, be- fore the conversion has actually been made; and this election he may make as well by acts or declarations, clearly indicating a determination to that efifect, as by application to a court of equity. It is this election, and not the mere rigiit to make it, which changes the character of the estate so as to make it real or per- sonal, at the will of the ]>erson en- titled to the beneficial interest. If this election is not made in time to stamp the property with a character different from that which the will or other instrument gives it, the latter accompanies it, with all its legal con- sequences, into tiie bands of those entitled to it in that character. So that in case of the death of the cestui que trust without having determined his election, the property will pass to his heirs, in the same manner as it would have done had the trust been executed and the conversion actu- ally made in his life-time." By the court in Craig v. Leslie, 3 Wheat. (16 U. S.) 563, on page 578, by Wash- ington, J. 1 Craig v. Leslie, 3 Wiieat. (16 U. S.) 568, 578; Beadle v. Beadle, 3 McCrary, C. C. (U. S., 1881), 586; Emens v. St. John, 79 Hun, 101; Fluke v. Fluke, 16 K J. Eq. (1863), 478, 481; Osgood V. Franklin, 2 John. Ch. (N. Y.) 21; Reed v. Underbill, 13 Barb. (N. Y.) 113; Hetzel v. Barber, 69 N. Y. 1, 14; Holt V. Lamb, 17 Ohio St. (1867), 874; Story, Eq., § 793; Turner v. Davidson, 80 Va. 841, 849. 2 Carr v. Branch, 85 Va. 597 (1889), 8 S. E. R. 476; Hetzel v. Barber, supra; Burr v. Sim, 1 Whart. (Pa.) 252, 263; Carr v. Ellison (1785), 2 Bro. C. C. 56, 2 Dick. 790; In re Harrop, 3 Drew. 726, 734; Van v. Barnett, 19 Ves. 102; Robinson v. Robinson, 19 Beav. 494, 496. 3 In re Wharton, 5 De Gex, M. & J. 33; In re Barber, L. R. 17 CIl Div. 241 ; Ashby v. Palmer, 1 Mer. 296. * Cunningham v. Moody, 1 Ves. 174; Sharp V, St. Sauveur, L. R. 7 Ch. App. 343; In re Davidson, L. R. 11 Ch. D, 341; Oldham v. Hughes, 2 Atk. 452, 453; Frank v. Frank, 3 My. & Cr. 171; Forbes v. Adams, 9 Sim. 462; Spen- cer V. Harrison, L. R 5 Com. PL Div. 97. m.-] EQUITABLE CONVERSION. 903 election was not by deed, but by a decree of the court.' But now, both in England and in the United States, by virtue of the statutes conferring the power upon a married woman to control the disposition of her property, real or personal, she may elect by deed.^ § 7'21. All persons at interest ninst concur in electing. — "Where land is notionally converted by a direction to sell and to divide the proceeds among several persons, there can be no election to take the land as such unless all agree. Some can- not take the land as land, and others have a portion sold and the money paid to them ; for to permit this would inevitably result in depreciating the value of the land to be sold, and in reducing the shares of those who elect to take in money.' These objections do not apply in the case of money given to be invested in land for several persons as tenants in common, and iiny one of the legatees may take his share in money without the concurrence of the others; for the balance of the fund may 1 Oldham v. Hughes, 2 Atk. (1743), 412, 433; In re Davidson, 11 Ch. Div. 341; Pratt v. Taliaferro (1«32). 3 Leigh (Va.), 419, 424; McClanachan V. Siter, 2 Gratt. (Va.) 280; Turner v. Dawson, 80 Va. 841, 849. Cf. Walker ■ V. Denne, 2 Ves. Jr. 170, 182. - Briggs V. Chamberlain. 11 Hare <18.j3), 69; May v. Roper, 4 Sim. 300: Forhe.s v. Adams, 9 Sim. 462: Bowj-er V. W(X)dnian. L. R. 3 Eq. 313; Baker V. Coix^nhargor, 15 111. 103, lO."); Rice V. Baxter, 1 Watts & Serg. (Pa.) 4.'i5. 3Rin«ihart v. Harrison, I Bald. C. C. (L'. S.. 1830), 177, 1H«: Craig v. Leslie, y. Wh.iat. (10 U. S.) .'377. M.".; High v. AV(^rley, 33 Ala. (1858 1, 190, 199; Swann V. Currett. 71 Oil 'm, 509, 570; Do Vaughn v. McLeroy, 82 (Ja, 0H7, 095 ( 1889); H(?lsf;t V. Helset. 8 111. Api». 22; Baker v. CoiM-nbarger. 15 111. (1H5.3), 103, 105; Baldwin v. Vrecland, 43 N. .1. Ivj. 440; Fluke v. Kliik.-. 1*5 N. J. Iv[. 478; Knicns v. St. .John. 79 Hun dulhu'ss of the n-al estabi luarkt't. .McDonald v. G'llara, 30 N. V. S. 545, 9 Misc. R. OHfJ, 39 N. K. k. 012. Hi X. V. 500. .Sco also cases cited iliilr, "; 719. 994 LAW OF WILLS. [§§ Y22, Y23- be invested in land as advantageously as the whole fund, and, said Lord Cooper, " it is in vain to lay out this money in land for one, when the next moment he may turn it into money; and equity, it is said, like nature, will do nothing in vain." ^ § 723. IVIieii an election must be made. — The person who has a right to elect must exercise his right lefore the actual sale has been made. He cannot, after land has been sold and turned into money, constructively reconvert it into land, where his action will prejudice others. Thus a judgment creditor, who is also a legatee of a portion of the proceeds of land di- rected to be sold, cannot, after it has been sold, enforce the lien of his judgment upon the share of another legatee as land;^ and where a legatee, who has a right to elect, has elected to take land instead of money, the executors and trustees under his will cannot elect to reconvert the land into money.^ § 723. What acts constitute an election to take property unconverted. — The evidence of an election on the part of persons entitled to property to take it in an uncontroverted condition must be clear, satisfactory and unequivocal. Elec- tion depends on intention, and the proof must leave no doubt of the intention.* An express declaration of an intention to elect, made by parol, is sufficient.'^ Devising land directed to be sold in language which can only be applicable to the dis- position of real property by will,^ giving a mortgage on it,'' paying off charges on it,^ selling it and giving a deed for it as land,^ leasing it to a new tenant from year to year ^" for a num- iSeeley v. Jago, 1 P. Wms. 389; 236; Pulteney v. Lord Darlington, 1 Walker v. Denne, 2 Ves. Jr. 170, 182; Bro. P. C. 530; Edwards v. Countess High V. Worley, 33 Ala. 196. of Warwick, 2 P. Wms. (1763), 173, ^Osgood V. Franklin, 2 Johns. Ch. 174,2 Eq. Cas. Ab. 42; Dixon v. Gaj- (N. Y.) 1; Allison v. Wilson, 13 Serg. fere, 17 Beav. 433. & R. (Pa.) 330; Reed v. Mellor, 122 «Meek v. Devenish, L. R. 6 Ch. D. Pa. St. 63.3, 6r)2. 566, 573, 578; Sharp v. St. Sauveur, 3 Howell V. Craft (N. J. Eq.), 27 Atl. L. R. 7 Ch. App. 343. E. 485. 7 Gest v. Flock, 2 N. J. Eq. (1838), 4 Bailey v. Alleglianey Bank, 104 108. 115. Pa. St. (1883), 425; Evans' Appeal, 63 scaston v. Caston, 2 Rich. (S. C.) id. (1869), 183, 187; Jones v. Caldwell, Eq. 1 ; Fulton v. Moore, 25 Pa. St. 408; 97 id. 442; Hall v. Hall, 2 McCord Clay v. Hart, 7 Dana, 1. (S. C, 1827), Eq. 269, 306; Stead v. sEmens v. St. John, 79 Hun, 101; Newdigate, 2 Mer. 531; Harcum v. Major's Estate, 11 Pa. Co. Ct. R. 359; Hudnall, 14 Gratt. (Va.) 369, 375; Will- Prentice v. Jansen, 79 N. Y. 478, 485. ing V. Peters. 7 Pa. St. 287. loin re Gordon, L. R. 6 Ch. D. 531^ 6 Wheldale v. Partridge, 8 Ves. 227, 537, 538. § 723.] EQUITABLE COXYEKSIOX. 995 ber of years by a lease binding upon the heirs of the lessor,^ an actual partition of the land,'- filing- a bill asking for its sale,^ taking possession of it and occupying it,* or taking the title deeds into possession ^ where their possession is necessary to a sale, is strong and usually conclusive evidence of an election to take as land. If occupation is accompanied by circum- stances indicating an intention to enjoy the property perma- nently as land, as erecting buildings or otherwise improving it,® the presumption would be conclusive. But possession of and leasing the lands are always to be considered in connection with all the circumstances. A short possession by tenants in common leasing and receiving rents'^ is inconclusive, though Avhere it appeared that one of them wished to retain his share as land, and the other acquiesced, the court held that both had elected to take the land.^ The act of a person who is absolutely entitled to money which has been directed or agreed to be laid out in land, in re- ceiving the TTioney from tJie trustees in its original sTiajye^ is con- clusive of an intention to take it as money," though his receipt and expenditure of the income pending an investment arc not an indication of such an intention.^" So, also, it has been held that the intention to elect to take money which has been di- rected to be laid out in land is conclusively shown by hegueath- ing the money as personal projperty^^ or by the execution of a deed by and among the persons who are absolutely entitled, descrihing it as money which they are entitled to receive^- or by the parties calling for a re-investment of the money in new 1 Mutlow V. Biggs, L. R. 1 Ch. D. Vos. 338; Brown v. Brown, 33 Beav. 883, 385, 393. 399. iSfu (ii'x & N. Y. 179. SniJilo, 372; Pedder's Settleniunt, 5 'Grie.sbiich v, FnMnaiitif!, 17 Beav. 1)<^ (Jcx, Mac. «& G. 890. 814; Daviea V. Ashford, 15Sim. (1845), " I'lilttMioy v. Lord Darlington, 1 447. Bro. C. C. 235, 230. *Mijtlow v. Biggs, Hiijirn. •'-'('ookKon v. Rcay, 5 Beav. 23; Bid- 7 M.-il.-n V. M.-ll.Ti. 139 .\. Y. 210, 3J duli.l. v. Biddulpli," 12 V.-s. 1(11. 1(10. N. E. \L 925; Kirkinan v, .MJl<-s, 13 990 LAW OF WILLS. [§ 724 securities of a personal characteiV or by one of them including it in an inventory of his personal estate as sucli.^ And when the devisees of land directed to be sold have elected to take it unconverted, it is land for all purposes; and if, disregarding the election, the land is sold, equity will nevertheless consider the money resulting from the sale as land, and it will descend as land to the heir.' Where there is imminent danger of the trustees disregarding the election of beneficiaries to take the property unconverted, equity will by an injunction restrain the sale of the land or the investment of the money.* And finally, all parties being sui juris and agreeing to take the land unconverted, it is most safely done by all joining in an appli- cation to a court of equity for a decree declaring the trust terminated, instructing the trustees to make proper convey- ances, and authorizmg a partition according to the terms of the will. § 724. Election Iby remaiiidormeii to take land uncon- verted. — A remainderman may elect to take land unconverted during the life of the tenant for life, where the power of sale is to be exercised at the death of the latter. The cases in which such an election has been made are where the remainder was vested,'' and the general rule is that no one can elect to take property unconverted unless he is absolutely entitled.'' But there seems to be no good reason why a person who is only contingently entitled may not elect, pending the life estate, and when the event shall happen on which he becomes abso- lutely entitled, this election shall operate; while if the event never happens, his election, being unnecessary, shall fall with it.'' The remainderman may elect after the death of the life iLingen v. Sowray, 1 P. W. 172. Harcourt v. Seymour, 15 Jur. 740; - Harcourt v. Seymour, 2 Sim. (N. S.) lu re Stewart, 16 Jur. 1063 ; Daruford 12, 47. Compare Skegg's Settlement, v. Darnford, 10 L. J. (N. S., 1841), Cli. 2 De Gex & Smale, 533, 535. 341, 342; Meek v. Devenish, L. R. 6 3 In re Gardner's Trust, L. R. 1 Eq. Ch. Div. 566; Howell v. Tompkins, 42 57: Mutlow v. Biggs, L. R. 1 Ch. D. N. J. Eq. 305, 11 AtL R. 333; Devon v. 383, 385. McLeroy, 82 Ga. 687, 695; Harper v. •« Meek v. Devenish, L. R. 6 Ch. D. Bank, 17 Misc. R. 228. 571. « Sisson v. Giles, 32 L. J. (N. S.) Ch. 5 Short v. Wood, 1 P. Wms. (1718), 606, 3 De Gex, J. & S. 614. 470, 471 : Crabtree v. Bramble, 3 Atk. " 3Ieek v. Devenish, L, R. 6 Ch. Div. 680: Roberts v. Gordon, 37 L. J. (N. S.) 559, 506, 571, 573. 627; Meredith v. Vick, 23 Beav. 059; §§ 7'2o, 725a.] EQUITABLE COXYEESION. 99T tenant and before actual conversion; ^ but lie cannot wait until after the sale, and by an election to take the proceeds as land prejudice the rights of others. It is obvious that the election of a remainderman who has no right to an actual possession, or even to a receipt of income, during the prior estate, cannot be evidenced by the same acts as in the case of an estate vested in possession; proof of a direction on his part to the trustee not to sell,- or a conveyance by him of his future interest, in language solely applicable to land, is the usual mode of election. § 725. When the tenant in tail may elect. — The English cases are not wholly harmonious upon the power of a tenant in tail of money directed to be laid out in land to elect to take it unconverted. It depends upon the character of his interest. If he, being himself sui juris, could by a fine bar the entail and acquire an absolute interest, he ma}'' elect to take the money unconverted, otherwise not. He may levy the fine if he is tenant in tail with remainder to himself in fee simple ; but if the remainder is in some other person, that person must join in a recovery, and the tenant in tail cannot elect without his consent.^ § 7*25a. No constructive conversion when money is at home. The English cases refuse to countenance am' constructive con- version of money directed or agreed to be laid out in land where the money to which the direction or agreement was applicable is at home. This peculiar expression may be thus explained. Where the obligation to invest the money in land and the right to call for its investment unite in the same per- son, the money is said to be at home; and, as the necessity for a conversion is past, none will be construed to have taken place as regards the heirs or next of kin of the person in whose hands the money is at home. Thus, where a man agrees to invest money in land to be settled on his son for life, remainder to the son's children, remainder to himself and his heirs, and the Bon dies without issue bc.'fore the money is actiiallv invested, ' Do V;iuKlm v. McLeroy, 82 Ca. Warw iCk v. Ivlwar.ls. 1 \Wn. \\ C 687. OJr,. L'(i7, :.' J'. W. 17:!; Doriifonl v. I),.ni- 2 Meredith v. Vick, 2:j I',.-av. .V.II. fonl, lU 1.. J. (N. S.) ("Ii. JMI, :{!..'; Ik-ii- *»«.■). 507. Hon V. Hensoii, 1 P. W. i:((), l.'Jl; Short •HJollot V. Collet (17:]7), 1 Atk. II; v. Wood, 1 P. W. 470, 471; Aml.T v. Traironi v. Boehm, 3 Atk. 440, 447; Aiiiler, :j Yes, Jr. 58.3. 90S LAW or WILLS. [§ 725a. so that the money remains in the hands of the person who ao-reed to make a settlement, no constructive conversion takes phice, and the money is money as between the representatives of the settlor. If he dies, the money agreed to be invested will pass as personal property to his executor. The general tendency of the English decisions is to hold that the heirs of the person agreeing to make the settlement have no equity to claim the money as land against the executor or next of kin of the ancestor, though if he had actually carried out the agree- ment, and had invested the money as he had covenanted to do, they would have inherited it from him as land actually pur- chased under the agreement to make a settlement upon his son and the issue of the marriage. The principles upon which the doctrine of the money being at home is based are similar to those elsewhere explained,^ by virtue of which a person in whom the beneficial interest is ab- solutely vested may, if he be sui juris, elect to take the money or land unconverted. The person in whose hands the money is at home may elect to invest it in land, and if he does so his heirs will take it as such ; but if he elect to retain it without an actual conversion into land, no constructive conversion will be made in favor of his heirs, for as soon as the money is in his hand it is free from the terms of the trust. He is the ab- solute owner of it, though it is money, as he would also be if it had been invested, in land. In the latter case he might alien- ate it and alter it into money, for he has the absolute right to it in either form.^ 1 § 719. more v. Scudamore, Pre. Cli. 544: 2 See Chichester v. Bickerstaffe, 2 Bowes v. Earl of Shrewsbury, 5 Bro. Vern. 295; Pulteney v. Darlington, 1 P. C. 144; Ptich v. "NVliitfield, L. R 2 Bro. C. C. 223; Edwards v. Countess Eq. 583. of Warwick, 2 P. Wms. 176; Scuda- CHAPTEK XXXYIl. THE DOCTRINE OF EQUITABLE ELECTION AS RELATING TO WILLS. 728. 729. § 726. Definition and general doc- trine of election. The origin of the doctrine of election. The foundation of the doc- trine of election. The effect of the election — Whether based on com- pensation or forfeiture. 730. Presumption against the ne- cessity for an election — The testator must intend to dispose of the property of another. 731. Finality of an election — Its revocation when made by mistake or procured by fraud or bad faith. 733. A case for an election does not arise where the will is invalid. 733. A party taking title indi- rectly is not put to his election by a gift under the will. 73.3a. The period within which the election must be made. 734 Whether parol evidence is receivable to show an in- tention to require an elec- tion. 733. What acts constitute an election to take under tlie will. 736. Not miiterial that the testa- tor BupiKJses ho owns tho prop«'rty dovi8«3d. 737. Election by infants and iii- c()licy of insuranco. 75;!. The luLsliand's rigiit to elect as n'sjH'cts his curtesy. 751. Ciirh'sy in land ia seimrate- a^e trust. 1000 LAW OF WILLS. [§ 720. § 7:;i6. Definition and general doctrine of election. — Elec- tion has been very neatly defined by Mr. Story as " The obli- gation imposed upon a party to choose between two inconsist- ent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both." ^ The doctrine of election is of comparatively recent origin in equity, and is applicable both to wills and to deeds. It is proposed in this chapter to discuss the subject only so far as it is applicable to wills. TVhether the true foundation of the doctrine be the intention of the tes- tator, actual or presumed, that the party shall not take incon- sistent benefits, or whether its foundation be the ecjuitable principle that " he who seeks equity must do equity," - is not very important; for the doctrine itself is so reasonable, and it commends itself so forcibly to one's sense of justice, that it is sure to find a place in any well-regulated system of jurispru- dence. The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform to all its provisions. He cannot accept a benefit given by the testa- mentary instrument and evade its burdens. He must either conform to the will or wholly reject and repudiate it. JSTo per- son is under any legal obligation to accept the bounty of the testator; but, if he accepts what the testator confers upon him bv his will, he must adhere to that will throughout all its dis- positions. If he shall take a beneficial interest in the estate imder the will, equity will hold him to his choice, and it will be conclusively presumed that he intends thereby to ratify and conform to every part of it. This presumption of a ratifica- tion of the will on his part is applicable though the testator has attempted to give away property belonging to him. He cannot accept the instrument so far as it bencxlts him and re- ject it so far as it gives away his property, for it is against equity and good conscience that a person should hold property giv^en or devised by virtue of the will Avhich he could not do Avithout it, and at the same time defeat some of its provisions by asserting his paramount claim to that which, by the will, was intended to benefit others. He must therefore either 1 Story, Eq. Jur., § 1075. 2 See post, g 729. § 727.] DOCTRINE OF EQUITABLE ELECTION. 1001 wholly comply with the will or wholly repudiate it and adhere to his paramount claim.^ § 727. The origin of tlie doctrine of election. — It is un- doubtedly true, as pointed out by the authorities, that the doc- trine of election had its origin in the Eoman law. In that system of jurisprudence a person by his testament appointed an heir, who was simply the successor of the testator. The person thus appointed had a period of time granted him to enable him to determine whether he would accept the nomination as 1i<^res. If he accepted, in other words, if he elected to take under the testamcntum^ he was bound to fulfill all its provisions, to pay the debts of the testator and the legacies ffiven in the will. So, too, according to the rules of the Eoman law, the testator might not only give his own property' as a legac\", but he might also give the property of the person whom he appointed as heir, or he might give the property of a third person. Thus he might b}^ his testament give a house to A. which belonged to B., and the heir, electing to take the succession, was bound by his election either to purchase the house from B. and tc^ convey it to A., or to give A. the full value of the house in money. But this rule of the lioman law was only applicable where the testator, in giving the property of another as a leg- acy, haew that he was bequeathing property which did not belong to him; for, if he gave away the property of another person under the belief that it was his own, the gift was void. J Morrison v. Bowman. 29 Cal. lin. 1 Edw. (N. Y.) 200; Stevenson v. (1%'i), 347; Kinsey a'. Woodward, 3 lirown. 4 N. J. Eq. 5U3, ."304; Kinnaird Harr. (Del) 4.'54,40(J; 3IadLson v. Lar- v. Williams, 8 Leigli (Va., 1830), 400, mon (IIL, 1893), 4« X. E. R o-'iG: Less- 400. " A valid gift, in terms absolute, ley V. Lessley, 44 111. (1807), .527,529; is qualified by reference to a dis- "Wilbanks v. Wilbanks, 18 IIL 17, 19; tiuct clause, which, tiiough inopeni- Haydon v. Ewing, 1 B. Mon. (40 Ky., tive as a conveyance, airunls authen- 1H41), lit, 114; George v. Bussing, l.j tic evidence of intention. Tlie inten- iiL .'i.'>8, 50;J. .'iO.i; Goro v. St«vens, 1 tion being assunu'nscieuce I>ansi (31 Ky.). 201, 204; Smart v. of the doni20; Smith v. Smith, H plii,*d, which is anne.xed to tliu bene- Gray iMuss.), .")32, .')33; Hyde v. Bald- fit jnoposcil to him. For the doniH) win, 17 I'i'k. (Mass., 18:J."i), 30.J, 30N; to acii-pt the beiicHt while lie do- IIupgtMxl V. IIought«*n, 22 Pick, dines the burden is to defraud the (.Mawi.) 4H0; .Smith v. (Juilil, 34 Me. design of the donor." 2 Story, Ya\. (18->2), 443, 417; Ix.'onard v. Cromme- Jur., g 1077. 1002 LAW OK WILLS. [§ T28. This, as will bo soon, is the opposite of the rule of English equity, where the doctrine of election is applicable irrespective of the fact that the testator erroneously supposed that ho owned the article which he has dis])osed of.^ §7:28. The fouiKlatiou of tlie doctrine of election. — The cases in which the doctrine of election was created, and in Avhich the rules that govern it were formulated, proceeded u})()n the theory of a presumptive intention upon the part of the tes- tator, or the donor, that the person was not to take a double benefit. The courts reasoned that if a man, by his will, gave property of his own to A., and by the same will gave property 1 Jiistinian's Institutes, lib. II, tit. XX, sec. 4 The doctrines of equity, unlike the rules of tlie common law, may readily be traced to their or- igin. We are able to say with ?V)so- lute certainty when and by what chancellor almost every principle of equity jurisprudence had its origin. The rule of the common law that land should descend to the eldest son as heir must have had its oi-igin at some particular point of time. There must have been some adjudication in which that fundamental rule of the common law was formulated for the first time, though it is absolutely impossible at the ])resent time to as- certain when or how tlie rule arose. But with equity the case is quite otherwise. We can, for example, point to the case of Noys v. Mor- daunt, reported 2 Vernon, 581; Eq. Ca. Ab. 273, pi. 3; Prec. Ch. 265, and decided by Lord Chancellor Thurlow, in the year 170G, as the occasion for tlie creation of the equitable doctrine of election. In that case a man hav- ing two daughters made a will in 1(586 in which lie devised to one of them (B.) lands which he owned in fee simple, and to the other (C.) lands which had been settled upon liim in fee tail, as follows: "To the testator for life, then to his wife for life as jointure, then to the sons of the testator on their majority in order of birth, and in default of male issue, then to the heirs of the body." The daugliter (B.) to whom the fee-simple lands had been devised claimed a share in the settled lands as one of the heirs of the body, there being no sons of the marriage. She claimed to take a moiety of the lands in fee tail, all of which had been devised to C. The court, in rejecting her claim, remarked that in all cases where a man, disposing of lands among liis children, gives to one fee-simple lands, and to another lands entailed upon the one to whom the fee-simple lands are given, or upon such one jointly with the other, it is upon an implied condition that each party acquit and release the other, particu- larly where the intention of the tes- tator is evidently to dispose of his whole estate. This case was soon followed by Hearne v. Hearne, 3 Vern. 55, and Cowper v. Cotton, 3 P. Wms. 123, decided in 1731, where, in the case of a freeman of London, de- vising his estate to raise a fund for his daughters, it was held that they must choose between what they would take under the will and what they take by the custom of London. A few years later in 1735 in Streat- field v. Streatiield, Cas. Temp. Talbot, 176, the whole matter was re-exam- ined by Lord Chancellor Talbot and the principle of election afllrmed and restated with great particularity. § 728.] DOCTRINE OF EQUITABLE ELECTION". 1003 which belonged to A. to B., he "vvas presumed to intend that A. should not claim the property given him under the will and also assert his right to his own property given to B., and the court of equity implied a tacit condition to that effect, which was supposed to be annexed to the gift to A. The court implied an intention, or created a presumption of an intention, that the person should elect, where the actual intention was not ascertainable from the language of the will. For, if tho testator knew that the property which he attempted in his will to give away helonged to some person other than himself, it is extremely reasonable to presume an intention on his part that the devisee should elect. For, if he gives away property which he knows belongs to some other person, and at the same time gives that person something under his will, he must have relied upon the benefits that he conferred upon the latter to induce him to relinquish his property given to some one else. Under such circumstances an intention to require an election may reasonably be presumed. But where a testator supposes the property of the third per- son which he gives away is in fact his own, any presumption of an intention to put such person to an election is merely a fic- tion of law, as the testator undoxihtedhj helieves he is disposinr/ of his own propjerty. Although the cases almost unanimously base the doctrine of election upon an intention on the part of the testator, it is clear that tho rule of ek^ction in tlie Latter case stands upon a different basis. The doctrine of election is not arbitrary and unreasonal:)le, nor is it based on technical grounds. It is designed to carry into effect the intention of the testator, which must in every case be ascertained from tho will. Evidence outside of the will is not admissil)le to show ;in intcntir)!! on tho part of the testator that the party shouhl elect. And where the will shows no intention either way, it ur(^h v. llavin;^ eleetod to retain the land Tiiorndike, 28 N, E. It. 57'). lUiJ Mas.s. under the deed, //« could uot irs/r /'or lo2; In re I3alli'Utine'H K>tale, 2.'i a jxtrtilion uf the rcin(tiiiihi;inill\m Pitthb. Lei?. J. IIO; Lilly v. .Menke, sliare which ho would have njceived !.'♦» -Mo. lUO, 28 S. NV. It. «i:j; Collins therein hu. 25 N. K. It. would Ih.» He(|uestered to eornpensiito 701. The t«Mtsitor devis«-d land to ]1. and ( '. llrown v. Brown, 12 .Minn. .\., P. and < '., a [K^rtion of which he 27'), 1 1 N. \V. K. 250. See ulHo.as ."sus- liad previously conveyed to A. The tainin;? the rules htated in the text, 1000 LAAV OF WILLS. [§ 729. The fact that a devisee refuses to take under a will and elects to take against it has no eifect upon the will except so far as tlie share of some other legatee may be diminished by his elec- tion. The person who loses by the election has the right, in equity, to have the property which has been relinquished se- questered for him to make good his loss. And this ancient and Avell recognized and reasonable doctrine of compensation is so consistent with the principles of equity and fairness that it has been invariably applied to the case of a widow who elects to take her dower against the will and under the law, and to forego the benefit of a provision made for her in tlie will in lieu of dower. Thus a devisee of land, upon which the dower of the wndow becomes a charge by reason of her election to take against the will, is entitled to compensation out of the property, whether real or personal, w'hich the will gave but which has been rejected by her.^ So where the testator disposed of land Avhich was owned by himself and some of his children as part- ners, giving it to his widow and some of his children, and the children who were partners declined to take under the will and established their rights by suit, it was held that the liquidated interest of the testator in the partnership was not distrilnitaljle as intestate property, but that it went to the devisees who had been compelled to relinquish their devises by the election of the partners.- Granting that the doctrine of election is based upon the princi- ple of compensation and not upon that of forfeiture, and assum- ing also that the property which is relinquished by the person Avho makes the election against the will is to be held in trust Cauff man v. Cauffman, 17 S. & R. legacies. Howells v. Jenkins, 1 De G., (Pa.) 16. 2-}-, Boyles v. Murphy, 55 111. Jo. & Sm. 617. (1870), 236; In re Rawlings' Estate, ^Sarles v, Sarles, 19 Abb. N. C. (N. bl Iowa, 701 (1891), 47 N. W. R. Y.)322; In re Frist's Estate, 6 Dem. 992; Devecmon v. Shaw, 70 Md. 219, 431, 1 N. Y. S. 640; Tehan v. Tehan, 16 Atl. R 645; Weeks v. Patten, 18 83 Hun, 368, 31 N. Y. S. 961; In re Ma (1841), 42; Morris v. Morris, 119 Lyon's Estate, 3 Pa. Dist. Co. R. 739; Ind. 341, 21 N. E. R 918; In re Ba- Marriott v. Badger, 5 Md. 300 (l':<54); tione's Estate, 136 Pa. St. 307, 27 W. Key v. Griffin, 1 Rich. Eq. (S. C.) 67; N. C. 1, 20 AtL R. 572. Property Sawyer v. Freeman, 161 Mass. 54-3. which is sequestered by a court as See also note 1, p. 1005. compensation to disappointed lega- 2 Colvert v. AVood, 25 S. W. R 963, tees will be divided among them in 93 Tenn. 454. proportion to the amount of their § 720.] DOCTKINE OF EQUITABLE ELECTION. lU07 for the compensation of the person who is deprived by it, it remains to be considered whether the person electing to take against the will is bound to surrender the whole henefit which was given to him by the will, or does he lose only as mAich of it as is needed to compensate those ichom he has disappointed. The question has been seldom under consideration in the cases for the reason that, if the property which is given under the will to the person who has a right to make an election is of more value than his own which the will gives to another, he simply relinquishes his own and takes under the Avill, and neither legatee is disappointed.^ as each receives what the loill gave him. If his own property given away by the will is more valuable than Avhat he receives under the will, he most likely will elect to retain his own property to the prejudice of the legatee to whom it was given by the Avill. In the latter case no question of com- pensation can arise, for the disappointed legatee gets only ichat the party making an election relinquishes under the will. lie gets all of it, and cannot claim more. In some few cases the question might arise whether the per- son who elects to take against the will is bound to surrender all that the will gives him, or must he surrender only so much of it as will compensate the legatee whom his election disappoints. In all such cases, in spite of some lack of harmony in the de- cisions, the rule seems to be that the person electing to take against the will shall be required to give np only so much of his legacy as v:lll make conqjensation to the person who is disap- pointed by his election. After such person is iiKlciiiuilied, the surplus of the legacy, if any, belongs to the party making tho election, and does not go to the heir-at-law or the next of kin of the testator as property undisposed of. Thus, if the h'gacy given to the party who elects was valued at s1o,(M)ailey v. Dunean, 4 Mon. (Ky.) 205; Hall V. Hall, 1 Bland Ch. (.Md.) 130, 135; I..aidler v. Young, 2 liar. & J. (Md.)09; Creswell v. Law.son, 7 (iill A: J. (Md.)228; MeKlfresh v. Sehley, 2 Gill (Md.), 181. 199; WaterH v. Ifowanl. 1 .Md. Ch. 112; Watwjn v. Watson, r,'H .M.'ihH. 152; Norris v. Clurk, ION. .J. K<\. (18.51), 51; St<-<-l.) V. Kislicr, 1 KdwanlH' Cli. (S. Y.) 43.5, 451; .Smith v. KniHkt-iri, 4 .JohnH. Ch. 'N. Y., 1819), 9; La.sher v. Lji.sher, 13 Barb. (N. Y.) 100; Jackson v. Clunvh- ill, 7 Cow. (N. Y., 1827), 287; Adsit v. Adsit, 2 Johns. Ch. 448, 450; Larraboo V. Van Alstine, 1 Johns. (X. Y., 1800), 370; Wilson v. Arny, 1 Dev. & Bat. (N. C.) 370; Havens v. Sackett, 15 N. Y. 305; In re llayden. 7 N. Y. S. 313. 315; Hamilton v. Buckwaltfr, 2 Yesites (I'a.. 1800), 389; Duiu-an v. Duncan, 2 Yeates (Ph.), 302; Huston V. Cone, 24 Ohio St. (1873), 11. 20; Quarles v. Garrett, 4 Des. (S. C.) 140; Wils<»n V. Hayne, Clunes' L. (S. C, 1h:{9), 37. 40; Williams v. (Jray. 1 Coldvv-. (Tnnn.) 101; Ih-rhert v. Wr.-ii. 7 Crancrh, 370; Blimt v. (Joe, 5 Call (Vu.), 481; Lord Kam-liire v. I-ady Parkins, Dow, 149. 179; Maddison V. ('Iia|>inan, 1 John, it Himm. 470; Padhury v. (lark. 2 M. it G. 29K; Pi«-kcr.sgill V. Uodger, K It. 5 Ch. D. 103, 170. 1012 I.AW OF ■WILLS. [§ T30. Cjuest by a testator of all his property or estate to a person with whom he is joint owner of personal property. The person who is a joint tenant with the testator, and who receives a legacy under the will, is not compelled to elect between the legacy and what he or she would take by survivorship by a gift to others of all the estate of the testator of ichatever Jcind} Thus, where corporation stock stood in the name of the testator and liis wife jointly, the latter was not put to an election where her husband devised " my shares " in the A. company to a stranger, altliough the husband had no stock of his own of which he was sole owner.' The intention to put a person to an election must appear. Thus a legatee, by his acceptance of a money legacy, is not estopped from claiming that land which, by the will, was given to a residuary devisee, was owned by the legatee, and that a deed signed by him. absolute on its face, by which the "testator held the land, was in fact a mortgage, and that the morto-affe debt had been satisfied, unless the intention to re- quire an election is clear.^ But where A., having only a life ■estate, attempted to sell the fee which belonged to his children 1 Dummer v. Pitcher, 5 Sim. 35, 2 3Hy. & Cr. 262. 2 Shuttleworth v. Greaves, 4 My. & Cr. 38. " The authorities, as I under- stand it, mean no more than to point out forcibly the difficulty there is in raising a case of election where the testator has a limited interest in the property as to which the election is to be raised ; and no doubt there is more difficulty in such cases than in the ordinary case of the disposition of an estate belonging to another person, and in which the testator had no interest, inasmuch as every testa- tor must prima faciz be taken to have intended to dispose only of what he had power to dispose of. and as, in order to raise a case of election, it must be clear that there was an in- tention, on the part of the testator, to dispose of wliat he had not the ■ right or power to dispose of." By the court in Wintour v. Clifton, 8 De G., M. & G. 641. 650. In order that a case for election mav arise it is absolutely essential that the testa- tor should intend to dispose of an- otlier person's property. Thus, where a testator, after making his will in which he devised land to his son and daugliter, respectively, conveyed to his daughter a portion of the land which he had devised to his son, the daughter is not required to elect be- tween the property given by this con- veyance and that by the will, for the reason that, in the absence of any proof showing that the conveyance was in satisfaction of the devise, it will be presumed that the testator, having by law a full ]iower of dis- position over his own property dur- ing his life.'though he had made a will, intended she should have both. Hattersley v. Bassett, 25 Atl. R. 332, 50 N. J. Eq. 577. 3 Tompkins v. Merriman, 155 Pa. St. 440, 447, 26 AtL R" 659, citing Zinn V. Lebo, 151 Pa, St. 345; Stump v. Findley, 2 Rawle (Pa.), ICa § 731.] DOCTKIXE OF EQUITABLE ELECTION. 101-\ B. and C, covenanting that v/lien they should at:;ain their ma- jority they would join in the conveyance, and B. did so, while- C. refused, it was held that, where C. accepted property devised to hira by Lis father, upon the express condition that if he re- fused to confirm the sale he should not be entitled to it, he should be enjoined from claiming any interest in the property which had been sold.^ So, too, where A., who had only a life interest, de- vised the land to several, giving B., who was a part owner of the fee, a life estate in the same lands devised, and all the devisees entered upon the land, B. joining in selling it, B., having elected to take under the will by accepting the life estate given by the will, was estopped from claiming under the deed as remainder- man in fee.- An election is also required where a testator gives property to A. upon the condition that he shall refrain from pressing a claim which he has against B, The proviso in such case constitutes a gift of A.'s property to B., and A. is required to elect between the inconsistent interests.^ § 731. Finality of an election — Its revocation when made by mistake or procured by fraud or bad faith. — An election, when made by a competent person with a full understanding of his rights and a reasonable knowledge of the facts, is final, both as to him and as regards his representatives. Particularly is this so where the rights of third persons who are purchasers of the property in good faith and for value have attached, who would be prejudiced by permitting a revocation of the election. The maxim ignorantia legls neminem excusat is applicable to the case of a person making an election between a provision which was made for him in a will and the property which be- longs to him and which by tiie will is given to another. This rule is most frequently invoked in the case of the willow's elec- tion. As a matter of fact it will be found that most persons of 1 Leonard v. Crotnmeliri, 1 Ivlw. and her heirs after lier dwith. must (N. Y.) 200. elect between tlie legacy ami tlio 2 Borden v. Ward (.S. C, IHSO), 9 S. farm. Fulton v. Moore, iin Pa. St. ;}08. K. R. liOO. And the SiUiie rule wasajiplied where 'Miller V.Cotton, .If;.!. :! II. Where tin* testator disposed of " pn>p»>rty the testator deviwd a farm, which yet 3, Black, C. J., said: "If a acts, done under the influence of it, ■widow -who is acquainted with all are as binding upon her as if she the facts, but is wholly unaware that knew the law perfectly." by law she has a right of dower, is 2 TJiough an election which lias induced by one who knows the law, been intelligently made is final, an and at the same time knows her ig- election may be made to take effect norance of it, to release or assign it upon the occurrence of a contin- for a totally inadequate considera- gency; as, for example, an election to tion, she ought to be relieved. But take effect if the part}' electing shall where the error is her own, and no die within a certain period. McCal- imposition has been practiced nor lister v. Brand, 11 B. Mon. (Ky.) 370. I T31.] DOCTRINE OF EQUITABLE ELECTIOX. 1(.>15 l>artv who has a right to elect should have been imded or act- ually deceived by acts or spoken words in order that he may be permitted to revoke his election. His legal rights shauld be explained to him. He should be informed by the executor of all the circumstances of the estate; and if those who will gain by his election to tahe under the will are silent, and by their silence permit him to take property under the \y\\\ which is of little value as compared vydh ichat he has the right to talce against the will, they cannot subsequently complain when, after obtaining a fuller knowledge, he repudiates his choice and re- linquishes what the will has given him.^ Thus, the receipt of Though a widow who is desirous of revoking her election has received the benefit under the will and ex- pended a part of it, she may, on being more fully informed of her rights, revoke her election if the pay- ment of the legacy to her has no effect in preventing a distribution of the estate in accordance with the intentions of the testator. Yorkly V. Stimson, 97 N. C. 230, 1 S. E. 11. 4.'>2. J Clark V. Hershey, 52 Ark. 473, 13 S. W. R 1077; Burroughs v. De Couts, 70 CaL (1886), 871; Dabney v. Biiiiey (1871). 42 Ga. 521. 523; Sewell V. Smith, 52 Ga. (1874), 567; Vanzant T. Bigham, 76 Ga. 759; Carper v. Crow). 149 111. 405, 480; AVilbanks v. "VVilbanks, 18 111. (1857), 17, 21; Ward V. Ward, 133 III. (1890), 417, 25 N. E. R 1012; Hawkins v. Boliling. 48 N. E. R 94, 96, 168 111. (1897), 211; Fry V. Morrison, 159 III. 254, 42 N. E. R. 771; (Jarn v. Gam, 123 Ind. 087, 0H9, 35 N. MR 391; Hicliart v. Ki(;hart, 80 Iowa (1870), 465; Sill v. Sill, 31 Kan. (1884). 248; Gri.ler v. Eubanks, 12 B\ihI» (Ky.), 510; Stoddard v. Cut- coinpt. 41 Iowa. 329, ;J31; Itt'ppcrt v. P»-lii/.z;iin). 83 Iowa. 497. 500; Toni- lin V. .laynn, 14 B. .Men. (Ky.. 1H53'. 102; IawIi v. l'rcbHl«'r. 39 Ind. 492; <'raig v. Conr)V('r. 80 .Me. 353, 355; ■Wft'kH V. l'att«!n, \h Mf;. 42. 45; U.-.mI V. Di'kcrrnan, 12 Pick. (.Mahs.) 119, 150; Pratt v. Douglas, 38 N. J. Eq. 516; Macknet v. Macknet, 29 N, J. Eq. 54, 57; Havens v. Sackett, 15 N. Y. 365; Adsit v. Adsit, 2 Johns. Ch. (N. Y., 1817), 448, 450; Hall v. Hall, 2 McCord (S. C), Eq. 269; Yorkly v. Stimson, 97 N. C. 263, 1 S. E. II. 452; Davis v. Davis, 11 Ohio St. 386 (hold- ing tliat an order of the court is nec- essary in the case of a revocation of an election); Huston v. Cone, 24 Ohio St. (1873), 11, 20; Andersons Ap- peal, 86 Pa. St. 476; Duncan v. Dun- can, 2 Yeates (Pa,), 302; Liglit v. Light, 21 Pa. St. 407, 412; Kreisers Appeal, 69 Pa. St. 194; Craig v. Waltliall, 14 Gratt. (Va.) 518, 525; In re Woodburn's Estate, 138 Pa. St. 60(i. 27 W. N. C. 305, 21 Atl. R 16; Snelgrove v. Snelgrove, 4 Des. Eq. (S. C.) 27; Leacli v. Leach, 65 Wis. 284, 291; United States v. Duncan, 4 McLean C. C. 99; Wilson v. Tiiorn- bury, L. R 10 Ch. A pp. 239: Briscoe v. Briscoe, 7 Ir. Eq. R. 123, 1 Jo. & L. 334; Campbell v. Ingilby, 21 Beav. 567, 582; Swectinan v. .Sweet man. 2 L R Eq. 141; Kdwanlsv. Moigari. i:j Price, 7H2. 1 Bligli (N. S.). 101: Win- tour V. Clifton. 21 Beav. 117. 16s. 8 De (J., Mac. tV: ^i. Oil; I'us.'V v. Des- bouverie, 3 I'. Wnis. 315: Hoynton v. Boyntoii, I I'.ro. C. C. 445; WaU" v. Wake. 3 I'lo. C. C. 255: Kidney v. ('ouHsmaker. 12 Vt-s. 130, 151; Dillon v. Barker, 1 Sw. 3.S1, :W2. lOlG LAW OF %YILLS. [§ 731. a Icf^acv "will not prevent the legatee from subsequently con- testing a will upon the grounds of testamentary incapacity and undue influence, where, at the time of his acceptance of the legacy, he did not know of the facts constituting the undue influence; while it appeared that other beneficiaries knew of these facts and fraudulently kept their knowledge of them from him, with a view of procuring him to accept the legacy.^ Ordinarily a court of equity will give relief where a mistake of fact or a flagrant misunderstanding as to the rights of the party is shown ; but equity will not relieve a party who has failed to use due diligence to ascertain his rights. In many states the statutes fix a time within w4iich the right to elect must be exercised, and they are in the nature of statutes of limitation. They will prevent a subsequent exercise of the right. Ignorance of the law is no excuse, either in equity or in law ; and as the widow or other person having the right to elect is conclusively presumed to know the law, he or she will be limited to the statutory period to exercise the right. It is therefore the duty of such persons to ascertain the extent of the estate, and if they fail to make an election within the pe- riod limited by statute, equit}" will not extend the time solely because they were ignorant of the nature and extent of the property.^ But where a person has been prevented from making an elec- tion by some unavoidable accident or by the fraud of others, equity will invoke the maxim " that has been done w^hich ought to have been done," and will make an election for the person as of the date of the death of the testator. "Where the person who has a right to elect has died without doing so, and his fail- ure to elect is either the result of the silence or of the fraud of others, or of circumstances over which he has had no control, 1 "White V. Maj-hall (Ky.), 25 S. W. her to elect after the statutory period R. 881. If a widow intending to dis- has expired. Slie will be placed in sent from her husband's will, to re- the same situation in every respect nounce her rights under it, and to as though she had dissented in time, accept her dower in place of what and as the executor is a qnasi-truatee, the will gave her, is prevented from the legal period of limitation does doing so, within the time required not apply. Smart v. Waterhouse, 10 by the statute, by the fraud of the Yerg. (Tenn., 1833), 94, 104 executor and his false statements 2Akin v. Kellogg, 119 N. Y. 441, 444 of the value of the estate, a court of (1890), 7 Am. Pro. R. 570, 575. equity will relieve her and permit ^ 732.] DOCTIUXE OF EQUITABLE ELECTION. lUlT as, for example, where he Avas mentally unable to give any at- tention to the matter, the court will nuike the election for hiui, or, as an exception to the general rule, permit his heirs to do so.^ § 73*2. Case for election does not arise where will is in- yalid, — It was settled in England as earl}- as 1749 that neither a devise of land by an infant, nor by a married woman not hav- ing capacity to devise, nor a devise contained in a will which ■was improperly executed as a devise of land, but which was valid to pass personal property, v.ould put the heir to an elec- tion. Prior to the passage of the Victorian Statute of "Wills an unattested and often an unsigned writing was valid as a will of personal property ; while an attested and subscribed instru- ment would be required, under the statute of frauds, in the case of a devise of real estate. The question, therefore, would arise whether th.o heir was compelled to elect in the case of an unattested will which was valid to pass personal property, but which was invalid as a devise of land, and which gave the heir a legacy while devising to a stranger land which would have descended to the heir. The English courts generally held that, ill order that the heir should I'c compelled to elect, there must be a will valid to pass real estate. A will not valid for that })urpose affords no intention to devise land away from the heir; and, as the intention to devise land away from the heir was not before the court by an}' legal evidence, the will would be read in equity as though the invalid devise was not in it. So in the case of a will [)roperly executed by a competent testator 1 Thus, where the testator in his land in question was worth nuich will gave lii.s son the riglit to jmr- more tlian the sum mentioned. At (•ha.se a piece of land for a certain tlie tlate of tlie death of tlie testator sum, and gave him a fixeil period tiie son was on liis deatli-lunl and sur- within wliicli tlie purcliase price was vived only a few days, during wliich to bo paid, and provided also that, if time he was unable to attend to any he Hhould elect to purchase under tlio busine-ss. It appeared that Ijo had will, the land in question shouhl vest fully mad(i up his mind to buy, and in t«'Ht'itor's trustee for tlie life of tlie tliat tlie trustees knew of this. It wjn with remainder in trust for his was therefore JH'Id that no declara- heirs, but mentioned neither the time tion, oral or written, of an intention withm nor the mf)de in which tim to elect was required, anil that his election must b<; made, it was held heir had the right to take the land xmder the cireuniHtanceH that a writ- on tlie condition named. Parker v. ton election waH not require; Kfurtu'y v. Maciunb, 16 298, .'JW: li«>nKlitoii v. HoiiKliton. 2 N. J. K(|. IW. VM\. Vhh. Kr. 12; Cap-y v. .\sk<'W. H Vrs. ^Sln'.l- sequent to its execution has acquired other land which does not _pass under it, has been dififerentl}'- decided in England and America. In England it was held, prior to 1 Yic, c. 2G, that the heir of the testator might take what the will gave him as well as the after-acquired land which the testator had attempted to devise, but upon which the will did not operate. lie was not under the necessity of relinquishing the land devised, for the law raised the conclusive presumption that by failing to republish the will the testator intended that his after-acquired lands should descend to the heir.^ In the United States the authorities are di- vided upon this question. It has been held that where a testator gave A. real property and also made him a residuary legatee by a clause not sufficient to pass after-acquired lands, and devised prop- 22; "Wilson v. Wilson, 1 De Gex & if the purcliase had not been com- Sinale, 152; Brodie v. Barry, 2 Ves. pleted in his life-time, his executrix & Bea. 127, i:30; Carey v. Askew, 1 should complete it out of his per- Cox, 341, 2-14; Melchor v. Burger, 1 sonal estate, and cause such property Dev. & Bat. (N. C.) Eq. 634, 637. to be assured and limited to the uses 1 Ciiurchman v. Ireland, 4 Sim. 520, therein expressed concerning it. In 523, 529, 1 Russ. & My. 250; Thellus- 1834 said freehold property was con- son V. Woodford, 13 Ves. 209, 211, 1 veyed to the testator in fee to uses Dow, 249; Tennant v. Tennant, 2 L, to bar dowei". Held, that the heir-at- & G. 51'J; Schroder V.Schroder, Kay, law of the testator (his eldest son) 578, 24 L. J. Ch. (N. S.) 510: Hance v. was not bound to elect between tak- Truwhitt, 2 Joims. & Hem. (Eng.) 216. ing such freehold property as heir, r.y a will made in 1832, a testator, who and taking the benefits given to him died in 1835, devised certuin freehold by the will; the devise of the free- property, which at the date of his hold property having been revoked will he had contracted to purchase, by the form of the 1834 conveyance, to his three sons, and directed that, Jacob v. Jacob, 78 Law T. (N. S.) 825. § 733.] DOCTRIXE OF EQUITABLE ELECTION'. 1021 erty in trust for the testator's heir, Vi.\\(\. sulsequenthj the testator jynrchased lands, it was held that the heir could not take under the will and also claim as heir the after-acquired lands. He was compelled to relinquish the benefit under tlie will.^ It has also been held that where the heir is given a legacy or a de- vise by the will, and land is given to others in the same will, and the latter disposition of land is void, because, for example, it violates the statute against perpetuities, so that the land de- vised descends to the heir, he will be compelled to elect be- tween what the will gives him and what he takes because of intestacy.2 § 733. Party taking title indirectly not put to liis election by a gift under the will. — In order that a party to whom something is given by a will shall be put to an election, it is necessary that the testator shall give him a benefit hj the will di- rectly and not derivatively? An illustration of this occurs where a testator by his will gives property to a man and to his wife respectively, and the wife, being also an heir of the testator, elects to take against the will. She must then surrender what the will gives her. But her husband is entitled to his curtesy in the property which she tal'es as heir against the will, and he may, at the same time, take the legacy the will gives Jtini, for the reason that the source of title in each case is separate and distinct. ]\[oreover, complete compensation having once been made by the wife * when she elected to take against the will, the matter is at an end.' So, too, one of several heirs or next of kin of the testator may retain what descends to him from an- other heir or next of kin of the testator, though he has given up, on his election to take under the will of the testator, what he was entitled to as heir of the testator." So, also, and for the rrason 'McEIfmsli V. Schley, 2 Gill (Md., sons v. Snook, 10 Hurl). (N. Y.) Ml; \H\\), Ibl, I'JD, 200; PliilH.l(ili)hia v. Bloomer v. Bloomer, 2 Ihii.l. (N. Y.) DaviH, 1 Whart. (Pii., 18:J0), 4'JO. Con- 839. tra, in the case of a widow's elortion, ' ISfooro v. Baker, 1 Iiid. (lH,"i;i), 1 15, liaiucH V. Corbin. 24 (ia. 185; Gibbon 117; Ik-nnett v. Harper, 30 W. Vju V. Gibbon, -10 Ga. (IHOU). 5(52; Chapiii 51(S, 15 S. E. \i. 113. V. Hill. I R I. (1810). 410. e (1H05), 10 »CavaM v. PuUetiey, 2 Ves. Jr. 511, VoH. 589, 593; Ha\v!i-y v. JaiiicH, 10 551. 3 V.-s. :!s |. Wenil. 1, 01, Ml; Saiiford v. (Jooddl, •' Wilson v. Wilson, 1 Do G. \- Sm. 2« N. Y. S. 129, 7 Misc. R 334; Per- 152; llowells v. Jenkins, 2 J.,l.n. &. 1(122 LAW OF AVII.I.S. [§ 733a. that he takes derivatively and not directly, A., who takes prop- erty as a legatee under the will of B., is not estopped from also taking a legacy under the will of C. by the fact that C. is also a leiratee under Ji.'s \\i\[ and has elected to take against the will. The property which A. takes under the will of C, though it was taken by C. on his election against the will of B., under which A. receives a legacy, is taken by A., derivatively through C, and not directly from B. A. need not in receiving his legacy under C/s will renounce what he has given by the will of B.^ § 733a. The period within which the election must bo made. — The person who is under an obligation to elect must be allowed reasonable time and opportunity to acquire a knowl- edge of the property which is to be delivered to him under the provisions of the will. In some cases he must also be per- mitted to inform himself of the value of what he is called upon to relinquish. This would be the case where a widow has to elect between a legacy of a definite amount and her dower in real property, the market value of which is dillicult to esti- mate. The person who has to elect has the right to demand that he shall have an opportunity to acquire such information as will enable him or her to make an intelligent election. In England, if the estate is in a complicated condition, he may file a bill in equity to have all proper accounts taken and to have other equitable relief in case he is to make an election which is irrevocable. In the United States a court of probate, at least in the absence of a statute requiring an election to be made within a specified period, would permit a reasonable delay in the settlement of the accounts of the executor for the purpose of allowing an election. The person is allowed a rea- sonable time; but what shall constitute a reasonable time in any particular case depends upon the particular circumstances of that case.- In particular cases a devisee has been allowed to elect after the lapse of a period of many years.' But where the delay of the party to elect has resulted in others acquiring Hem. 706; Cooper v. Cooper, L. R. 6 1 Ves. Jr. O^l; Chalmers v. Storril, Ch. App. l.j, 21, L, R. 7 H. L. 53, 79. 2 Ves. & Bea. 222; Hentler v. Rose, ?, 1 Beem v. Kimberly, 73 Wis. 343. 39 P. Wms. 12-J; Wliistler v. Wliistler, N. W. R 542. ' 2 Ves. Jr. 3G7, 371. 2 Newman v. Newman, 1 Bro. C. C. ^gopwitli v. Maugham, 30 Beav. 186; Wake v. Wake, 3 Bro. C. C. 255, 235; Dillon v. Parker, 1 S\v. 381, 386. §§ To4, 735.] DOCTEIXE OF EQUITABLE ELECTIOX. V^'l'd rights because of his apparent acquiescence, equity wili not permit these rights to be prejudiced by the subsequent exercise of the rio-ht of election, § 734. ^Vliethor parol evidence is receivable to show an intention to reciiiire election. — In a few of the early cases evidence of the testator's declarations was received for the pur- pose of showing that he believed he had the absolute owner- ship of the property which he devised, and that by devising property as his own, which in fact belonged to another, he in- tended to put the other to an election.^ Later cases repudiate this rule, holding that the int-^ntion of the testator to dispose of what was not his own must be ascertained solely from the will.- But the rule excluding parol evidence is applicable only to the declarations of the testator. It is always admissible to prove b}^ parol the circumstances by which the testator was surrounded, .the condition and character of all property dis- posed of in the will, its ownership, and the relations of the par- ties. § 735. What acts constitute an election to take under the will. — Xo rule exists, except so far as the widow's election is concerned, which requires an election between a testamentary gift and an inconsistent claim to be made in any ])artlcular manner. In some of the states statutes have been enacted which require that a widow's election to take a(j3. 1U2J: LAW OF AVILLS. or ao-ainst a "v\'ill mnv be manifested in ether modes. An ex- press and positive declaration by the party who is required to elect, to the effect that he accepts one or the otlicr of the two inconsistent benefits, is usually conclusive of an intention to elect. So the fact that the person who has the right to elect expresses satisfaction, orally or in writing, M'ith the provisions of the will which are in his favor, is strong evidence of his in- tention to abide by it.* And expressions of satisfaction, coupled with an entry upon the lands devised; or, where no actual eutry or occupation is possible; where he receives and enjoys the rents and profits of the land; and a fortiori^ where he con- veys the land devised to him to another by sale or mortgage, may raise a conclusive presumption that he has elected to take under the will. Havino^ o;one so far in assertino^ his claim to the estate which the will gave him, he cannot be heard to ob- ject to its provisions; for, by taking title under the will, he has recognized the force and validity of its provisions for all pur- poses, and is estopped to assert that it is inoperative as regards the claims of others.^ 1 Craig V. Walthall, 14 Gratt. (Va., 1858;, 518, 525. 2 Reeves v. Garrett, 3-4 Ala. 563; Clark V. Hershey, 52 Ark. (1889), 473, 13 S. W. R. 1077; Burroughs v. De Gouts, 70 Gal. 371, 11 Pac. R. 734; Bennett v. Packer, 39 AtL R. 739, 741 (Conn., 1898); Sliivers v. Goar, 40 Ga, 676; Sewell v. Smith, 52 Ga, (1874), 567; Vanzant v. Bigham, 76 Ga, (1886), 759; King v. Skellie, 94 Ga. 147, 3 S. E. R. 614; In re Smith, 108 Cal. 116, 40 Pac. R. 1037; Fry v. Morrison, 159 III. 254, 42 N. E. R. 774; Davis V, Hoover, 112 Ind, (1887), 423, 14 N, E. R. 468: Larkin v. Mc:\ranus, 81 Iowa, 724, 726; Richart v, Richart, 30 Iowa, 465; Stoddard v, Cutcompt, 41 Iowa. 329; Herr v. Herr, 90 Iowa, .538, 58 N. W. R. 897; Reppert v. Pel- lizzarro, 83 Iowa, 497, 500, 50 N. W. R 19; Craig v, Conover, 80 Iowa, 353, 355; In re Franke's Estate, 97 Iowa, 704, 66 N. W. R. 918; Gore v. Stevens, 1 Dana (31 Ky., 1833), 201, 204; Grider V. Eubanks, 13 Bush (75 Ky., 1877), 510; Smart v. Easley, 5 J. J. ]\Iarsh, (28 Ky., 1830), 215; Smith v. Bone, 7 Bush (Ky., 1870), 367: Weeks v. Pat- ten, 18 Me. (1841), 42; Sanders v, San- ders, 22 Miss. 81, 87 (1850); Macknett V. Macknett, 29 N. J. Eq. 54; Jones V, Powell, 6 Johns. Ch. (N. Y.) 194, 199; Thompson v. Hook, 6 Oliio St. 480; Fulton v. Moore, 25 Pa. St. 368; Bradfords v. Kent, 43 Pa. St. 474; Cox V. Rogers. 77 Pa, St. 160; Chace V, Gregg, 88 Tex. 552, 32 S. W. R. 520; Waterbury v, Netherland, 6 Heisk. (Tenn.) 512; Hatch's Estate, 60 Vt. 160, 18 AtL R. 814; Craig v. Walt- hall, 14 Gratt. (Va.) 518, 525; Beem v. Kimberly, 72 Wis. 343, 39 N. W, R. 542. See also Wake v. Wake, 1 Ves. Jr. 335, 3 Bro. C. C. 255; Pad bury v. Clarke, 2 Macn. & G. 298, 300, 307 Dillon V. Parker, 1 Sw. 359, 380, 387 Spread v. Morgan, 1 1 H. L. Gas. 588 Sopwith V. Maugham, 30 Beav. 235 Dewar v. Maitland, L. R 2 Eq. 834 Campbell v. Ingilby, 21 Beav. 583 Tibbitts V. Tibbitts, 19 Ves, 603. Tes § 735.] DOCTRINE OF EQUITABLE ELECTION. 1025 The legal presumption is that a widow knew, if she accepted a legacy, she would be barred from claiming against the will. Whether the facts as proved constitute an election is always a question of law to be determined by the court.^ It cannot, as matter of law, be said that the fact that the person who has the right to elect accepts the office of executor under the will, performs the duty of that office and receives proper compensation therefor, or even a specific legacy for his trouble, which would be remuneration for services and not bounty, constitutes an election on his part to take under the will. Thus, in Massachusetts it was iield that the mere receipt of compensation by a husband, who was his wife's executor, did not constitute an election by him to abide by his wife's will which gave him no property .- The contrary has been held where a husband wrote his wife's will, qualified and act"d as executor under it, paid debts and legacies, filed his accounts and received his compensation as the executor. He was held to have elected to take under the Avill. But in each case he had paid to himself, as legatee, the tator's widow, who was given a life estate in realty and specific personal chattels by the will, with a direc- tion that she would convey her own realty to testator's son, did not, by entering into iK)ssession of such realty and chattels, elect to take them and convey her own estate, where she also kept the latter, and no aflirrn- ative action was had to compel her tf) B() elect Shanley v. Shan ley, rA N. Y. S. 65;}. An election to take land, either for or against the will, is shown by mortgaging or selling it. I'ratt V. Felton, 4 Cush. (Maas.) 474; lifirden v. Ward (S. C, 188'J), 9 S. K. li. liOO; Rogers v. Jones. L. R 3 Ch. ])iv. 688. If a wifo acci-pts a legacy Hho will \a} barnrd of dower after enjoying the K;iiiie for a year an Klton V. MrH)ro, i;r» I 'a. St. .'JJW. A widow who h;is accoptod perHUUul 0.-) property bequeathed to her, and has also received from the executor the rents of land given her in lieu of dower, will prima facie be presumed to have consented to take under the will, and the burden of proof is tlien on her to show that she had not niado Jin election or renounced her dower. Hill V. Hill (N. J. Eq., 18{»8). 41 Atl. \L 943. A legatee's recognition of tlie executor nameil in ti>o will by exe- cuting an order on the executor t<> pay a third [K^rson a siwcifled sum, where tlie legatee herself received nothing therefrom, and the money was paid from a fund undisiK>sed of by tlie t«fstatt)r. does not ct)nstituto an election to take umier tiio will, so as to estop the legal e(* from de- nying its provisions, where such act causeil no injury to the other legatee. I'ryor v. Pendleton ;Tex., 18U8). 47 S. W. R 706. -'Tyler v. Wheeler, 160 Mass. 206, :!.'. \. I'., i: 666. lieu LAW OF WILLS. [§§ 730, 737. sums of nionoy which the testator had bequeathed to hhn.^ On the other liand, the fact that the widow qualifies as the exec- utrix of her kite husband, takes possession of the land and sells under a power of sale conferred upon her as executrix, does not show an intention upon her part to take under the will, as she acts solely as an executrix and not for herself individually? But where the widow, having been appointed executrix, in her account as such took credit for a balance of personal property retained hy the executrix according to the icill^ it was held that she had elected to take under the will." § 736. Not material that the testator supposed he owns the property devised. — It is not material, in determining whether a party is put to an election, that the testator, in dis- posing of that pei-son's property, was in error as to its owner- ship, or that the testator in fact knew that he had no title to it. In either case if the party whose property is given away decides to take against the will, he must relinquish his legacy under the will. AVhile the presumption is that a testator in- tends to give only his own property, his actual knowledge of his title or lack of title is usually unascertainable; and Avhere accurate knowledge is impossible, speculation and conjecture are useless ; " for," as was said by an eminent equity authority, " nothing can be more dangerous than to speculate upon what he would have done had he known one thing or another."* The assertion of title by A., under a deed from B., conveying to A. land which both believed belonged to F. by inheritance from C, being ignorant of the fact that C. had, by will, devised it to A. as a separate estate (the will not having been discovered and admitted to probate till after the death of B.), does not estop A. from claiming the property under the will of C.^ § 737. Election by infaiils and iutompetent persons. — An infant, though he has a right, has no capacity to elect.® Nor 1 Coe's Appeal, 64 Conn. 352, 30 Atl. ^ Rasbeny v. Harville (Ga.), 16 S. E. R 140; SchoU's Appeal (Pa., 1889), 17 R. 299. See also Whistler v. AVebster, AtL R. 206. 2 Ve& Jr. 367, 370; Welby v. Welby, 2 Procter's Estate, 103 Iowa. 232.237. 2 Ves. & Bea. 190, 199; Whitley v. 3 Fulton V. Moore. £o Pa. St. 368. Whitley. 31 Bea v. 173; Coutts v. Ack- ;land v. OhioSt. 11; Tonilin v. Jaync. 11 I?, lluddlcstoiic,:} Itro. ('. C. 2H:>. n.; Cret- Mon. (Ky.) WS.'; Addison v liowif. i ton v. Ilawanl, 1 Swanslon. lOK, •li:t; Uland Ch. (.Md.) WJ<». «-':{; M|. (55 N.C, 1H51), Hrown v. Hrowu, L. ]l 2 Kq. jsi; 16; Orettan V. Ilaward. ISw. 109, 4i:{. (iri^Ks v. (iilwni, L. U. 1 Kq. (555; 2 Andrews v. liiuwett, 92 .Mich. 419. Hlunt v. Ijuk. 2(J L. J. Ch. MH. 52 N. W. K. 74:j; Weeks v. Weeks, 77 ^ In re Marriott, 2 .Moll. 51(1; Ken- N. C. 421. 424: Van Stcenwyck v. nedy v. Johnson, 05 I'a. Si. 45l; Washburn, 59 Wis. W.i; Addi.s third (ImiK'lit.'r. Diuiuith v. :50 Ch. I). 01 1. T.->tator .l.'vmed lands L.'e, 51 N. Y. S. (ilS. 21) A|>p. Div. 20; to hix two daughters with the ilirec- Molfi-tt v. Hati-H, 11 Sni. it Cif. 4nH. tion that tli'-y should pay ^t.OOO to a H'alhot v. Karl of Itjidnor, :i My. it third dauglitcr, arxl if th<'y did not K. 252, 254; Story, Vai .lur., Jj lOUl. jmy this, the third daughter wiik to 1030 LAW OF WILLS. [§ 740. "witnesses, wliich is valid to pass land located there, purports to devise land located in anotlier state or comnionwealtli where three or more witnesses are required for a devise. In determining the question whether the heir of the testator must be compelled to elect between what the partially invalid will gives him and what he takes by reason of the fact that it is in part invalid, and the testator to that extent intestate, it must in the first place be determined whether the testator meant the Avill to dispose of all his land, wherever it may be located, or w^hether he meant to dispose of only his land or other property which is situated in the state or country in con- formity with whose testamentary law the will is operative. In the former case, as wdiere, for example, the testator devises " all my land or my real property^ of whatever sort and wherever located^'' the intention of the testator to dispose of all his land is so clearly apparent that the heir is put to an election. He must then elect between what the will gives him so far as it is valid, and what he takes by descent so far as the wull is inop- erative. If the heir receives a legacy under a will which is valid to pass property in one state, he cannot claim to defeat its operation upon land located in another state by proving that it is not executed in conformity to the laws of the latter state. lie cannot take land by descent because the will is im- properly executed according to the law of the state in which the land is located.^ But the English cases have, in construing English wills which purport to dispose of lands in Scotland, reversed this presump- tion. If the will purports to dispose of the land of the testator "o/" whatsoever nature and wheresoever located^'' the Scottish heir will not be put to his election, for it will be presumed that the testator meant to include only such property wherever lo- cated as the will would operate upon.^ ( )n the other hand, where the testator disposes of his lands by some particular des- ignation describing their locality, as by stating that they are located in Scotland,^ or devises his lands " in any part of the ^In re Cumming's Estate, 25 Atl. Maxwell v. Maxwell, 16 Beav. 102, R 1125, 153 Pa. St. 377 (1893), 22 W. 106. N. C. 172. 3Brodie v. Barry, 2 Ves. & B. 127; 2 Johnson v. Telford, 1 R & My. Reynolds v. Torin, 1 Russ. 129; Mo 244; Allen v. Anderson, 5 Hare, 163; Call v. McCall, 1 Dra 283. § 740.] DOCTRINE OF EQUITABLE ELECTION. 1031 United Kingdom," the person Avho will take the Scotch lands as heir because the will is improperly executed must elect be- tween them and a legacy given him by the same will.^ 1 In the case of Van Dyke's Ap- peal, 60 Pa. St 489, a testator be- queathed to his two daughters lega- cies which exhausted his estate lo- cated in Pennsylvania and devised to his two sons all his New Jersey lands. Tne will, being executed in the former state, was valid by the laws of that state, but invalid to pass the lands located in New Jersey. The daughters were put to an election between their legacies and the shares whicli they would take as heirs in the New Jersey pi'operty. And the court ordered that the daughters should pay out of the personal prop- erty they received under the will a sum equal in value to what thej^ would take as heiresses of the testa- tor in the New Jersey lands. In this case there was an express direction that the heirs of the testator should take no exception to the will, but the court disregarded this in reaching its decision, and placed its ruling upon the broad ground tliat a condi- tion .slumld in such cases U; implied. The court, by Judge Sharswood. said : "It may certainly be considered as settled in England, tiiat if a will pur- porting to devise real estate, but in- ♦-fFectually, becau.se not attested ac- cording to the statute of frauds, gives a leguc-y to the heir at law. he cannot Ix- put to his election. (Ilearle V. (jroenbank, ',i Atk. iVJ')-, Tlu-lluson V. \V(X)dford. i:j V.'s. '2m; Hucke- ridge v. Ingram. 2 id. drich. H id. 4H'2.) Tlu-se <'aseK have Ix-en rtn-ogni/.ed and followed in tliis countrj'. (Mcldior v. Hurge. 1 Bligh. 1 ; McElf resh v. Schley, 2 Gill, 181.) That this distinction rests ujjou no sufficient reason has been ad- mitted by almost every judge before whom the question has arisen. Why an express condition should prevail, and one however clearly implied should not, has never been and can- not satisfactorily be explained. It has been said that a disposition abso- lutely void is no disposition at all, and. being incapable of effect as such, it cannot be read to ascertain the in- tent of the testator. But an express condition annexed to the bequest of the personalty does not render the disposition of the realty valid. It would be a repeal of the statute of frauds to hold so. How, then, can it operate, any more than an implied condition, to open the eyes of the court, so as to enable them to read those parts of tlie will which relate to the realty: and witiiout a knowl- edge of what they are, huw can the condition be enforced? . . . We are e(iually clear that this is a case of election. The intention of the tes- tator does not rest merely upon the implic.'itifin arising from the careful division of his projterty among his children in «'(iual classes, but he Ims indicat«'il it in words by the clause: •I direct and enjoin my heirs that no exception Im' taken to this will, or any part thereof, on any legal or teciinical a<-coutit.' It is true that, for want of u lpi'i|iiest over, tliis prt)- vision would lie regarded as iiitri- rt»rim only, ami would not indiice ii forfeiture. . . . But the (hnt riiio 1032 LAW OF AVILLS, [§ 741. § 741. Cases of election uiuler powers of appointment.— A case for an election arises where the testator, having an ex- clusive power to appoint by will, to be exercised only in favor ofjHuilciiIar ohjects, exercises it in favor of a stranger to the power, and in the same will gives property absolutchj his own to the ohject of the power. The appointment to the stranger being in excess of the power is invalid, and it will be set aside by equity in favor of those who would take by default on a total failure to appoint. If, then, the testator in a will which attempts an illegal execution of the power gives property of his own to those who take in default of a valid appointment, who, in the case of an exclusive power, are the objects of the power, such persons must elect. They cannot take the property owned by the testator and which he has given them in the will, and also take by default of appointment against the will.^ But in order to create a case for an election it is always ab- solutely necessary that the testator should give property of his own to the disappointed objects of the power; for, if this be not done, there is nothing for them to elect between. Thus an election is not required to be made between two appoint- ments by will made under limited powers disposing of separate funds, for under such circumstances the testator, in appointing, ha^ disposed of no property absolutely his own. Hence where a person has one poAver to devise one fund to one or more of his children, and a separate and distinct power to divide another fund by his will among all his children, and he validly executed the former power by giving all to one child, A., but gave the fund embraced in the second power (which he should have divided among all his children) to two of them, it was held that A., while retaining what had been devised to him in exe- of election rests upon the principle of 63; Tomkyns v. Blane, 28 Beav. 422, compensation, and not of forfeiture, 423; Reid v. Reid, 25 Beav. 469; Ex %vliicb applies only to the non-per- parte Barnard, 6 Ir. Ch. R. 135; In re formance of an express condition. Fowler's Trusts, 27 Beav. 362; Arm- Besides, no decree of this court could strong v. Lynn, 6 Ir. R Eq. 186. authorize the guardians of the minors "Thus where a person has a power to execute releases of their rights to appoint to two, and he appoints and titles to the New Jersey lands to one, and gives the other a legacy, which would be effectual in that tliat is a case of election." Sugden state." on Powers, 589 (8th ed.); Bristowe v. 1 Whistler v. "Webster, 2 Ves. 367, Ward, 2 Ves. Jr. 336. 370; England v. La vers, L. R. 3 Eq. § 742.] DOCTRINE OF EQUITABLE ELECTION. 1033 cution of the former power, could also take a share under the second power as in default of an appointment.^ So, too, in order that an election may be required, it is necessary that the testator should dispose of another's property. An attempt on the part of the testator to execute a power to devise in viola- tion of legal rules, in consequence of which the execution is in- valid, does not create a case for election. Hence, where he appoints by his will to a stranger in a mode which is invalid for remoteness, and by the will gives a legacy to the object of the power, the latter need not elect, for, the appointment being absolutely invalid, the court will read the will as though it was not in it.- Xo necessity for an election exists where the testator in the valid execution of a power by will gives the property abso- lutely, but adds to the execution precatory language not dis- posing of the property appointed, but requesting the objects of the power to devote a portion of the property to the benefit of a stranger. Where it is the duty of the testator under the power which he possesses to give property absolutely to A., he cannot put A. to an election by giving him that property in trust for B., or coupled with a request that he apply it to the bene- fit of B. and giving A. property of his own absolutely.' § 74'^. Election aniouir tenants in oonimou and between the life tenant and remaindermen. — AVherc pro))erty not be- longing to the testator, but which is disposed of in his will, lAplin's Tru.sts. 13 W. R IOG'2; v. Bowles, 2 Russ. & My. 301 ; Blacket Fowler's Tru-st, 27 Beav. 302. v. Lamb, U Beav. 482; Church v. ■■iWoUaston v. King. L. R 8 Eq. Kemble. 5 Sim. 525: White v. White, 105, 175; In re Warren's Trusts. I^ R L. R 22 Ch. D. 555; Woolridge v. 26 Ch. D. 208, 219. A case for elec- Woolridge, 1 Jolins. (Eng.) 03; In re tion does not arise where tl»e tes- Warren's Trusts, L. R 26 Cli. Div. tator liaving a power of devising 208,220. Where tlio testator, liaving property wliirh, in default of exe<"U- made a valid apiiointnicnt under a tion, will go to A., refniins from e.xe- jxiwer, attempts to revoke it hy a will cutingit undera mi'^taken Ix'liff that which gives the property thus ap- the projKTty in ]u vtij irhirli tfi, uu'/f /nrs 'Sherwoorl., (Mjihs.). :W7. «W. 1HU7). :Hi All. K. «1<>;;. And srv also • FrjHhor V. Uuilliums, 120 Ind. 17'J, FyU;ljc v. lyti he, HI I^ T. (N. S.) yJU, IT -J. :i\\. lOoG T.AW OF WILLS. ' [§ 744. g'n'ni to anotJu^r, goes to his heirs or personal representatives, the hitter ought to be conipeHed to ckK-t, in fairness and justice to all coneerneil in the will. If both pieces of property devolve upon the same persons, as, for exam]>le, where both are personal property, passing to the legatees or next of kin of the person who had the right to elect, those persons must elect. Each of the next of kin has a separate right of election and is not bound by the act of the majority or of the administrator. But where, on the death of a person who has failed to elect, the ])roperty which he owns and the property which is given him goes to different persons under the law, as when the former is real property which goes to his heirs, and the other is personal property which goes to the executor of his will, there can be no election. The executor need not, because he cannot elect. Nor need the heir do so. But in such a case that person, whether the heir or the executor, to whom passes that property which the testator in the original will had the absolute right to dis- pose of, must compensate the persons who were disappointed under that will. Thus, for example, let us suppose A. shall de- vise to C. money which belongs to B., and bequeath to B. land which he (A.) owns absolutely. On the death of B. without making an election, B.'s money, which Avas attempted to be given to C, goes to B.'s personal representatives, and the land which A. gave B. goes to B.'s heir. But the latter is bound to make good to C. the legacy which was given to him in the will of A.^ § 744. The doctrine of election in its application to the right of dower. — Long before the creation of the doctrine of election in equity, courts of law in England had been accus- tomed to recognize a somewhat similar principle. It was a wel I recognized rule in law that if the wife accepted a jointure made for her during coveiture by entering upon the land comprised in it, she would be estopped from claiming dower in all the lands of which her husband died seized.^ So, also, in a case decided in the reign of Queen Elizabeth,' it was held that the re- covery of dower by a widow was a bar in an action brought iPickersgill v. Rodger, L. R. 5 Ch. 128; Lacey v. Anderson, Cases in D. 163, 175. Chancery, l.lo; Boynton v. Boynton, 23 Leon. 373. 1 Bro. C. C. 445. •Gosling V. Warburton, Cro. Eliz. § T4i.] DOCTKIXE OF EQUITABLE ELECTIOX. 1037 by her to recover the provision made for her ia her husband's will in lieu of dower. Thus it will be seen that the principle of election between inconsistent benefits, so far as it applies to the widow's dower, is not confined to courts of equity, nor did it have its origin there. But it is in equity that the doctrine of election in its relation to dower has received the fullest con- sideration and most abundant illustration. The right of dower is regarded with great favor both in law and in equity. The widow should, and usually does, receive the utmost considera- tion from the court. The presumption is, in the absence of a clearly contrary intention, that the testator, in devising prop- erty to her in his will, intends it as a bounty and not as a sub- stitute for what she is entitled to of right. So it is a general rule in equity, as regards the widow's dower, that the court will not compel her to elect between her dower or other statutory right and interest which she may have in the estate of the testa- tor, and a provision made for her in the will, unless, ^V6'i;, it shall appear in express terms that the bequest or devise was given in lieu or satisfaction of her dower; or second^ unless it appears by clear and manifest implication on the circumstances of the case that the testator intended her to elect. She will not be compelled to elect unless her claim of dower is plainly incon- sistent and irreconcilable Avith the will of the testator and so repugnant to it that loth her claim of dower and the devises in the will cannot consistently Ve upheld. She has a right to take both, despite the fact that the benefit given by the will may be much greater in fact than her dower.^ 1 McLeod V. McDonnell, 6 Ala. 23G, Woods, G3 111. 285; Smith v. Baldwin, 239 (1844); Ililliard v. Binfonl, 10 Ahu 2 Ind. 104; Kelly v. Stinson, 4 Blackf. «77; Apperson V. liolton, 20 ArU. 418, (Ind.) 387; Ka;;sdale v. Parrish, 74 426; Lordv. Lord, 23 Conn, (1854), 327; Ind. 101, 100; O'lliirrow v. Whitney, Ailing V. Chatlield, 42 Conn. (1875), 85 Ind, 140, 142; Wilson v, Moore. 8(i 270; Nel.son v. Poineroy.Ol Conn, 257, Ind. 244, 247; liurley v, Mclver, 110 29 Atl. U, 534; Antliony v, Antljony. Ind, 53, 57; Like v. Cooper, 132 Ind. 55 Conn. 250, 258. 1 1 Atl. \L 45; Cliand- 301, 31 N. R It. 1 1 18; Hichards v. Kich- ler V. W«xxl\vard. 3 Ilarr. (Del.) 428; ards, 00 Iowa. (i0(!. 58 N*. W. R 92C; Warthen v.I\arsoii.33(;a. 3H5;Tooko I'arkcr v. Ilayd.ii. 84 lowu, 403, 400; V. Hardeman, 7 (Jiu 20 (1H40); Jen- Howard v. Watson. 70 htwa. 220. 230; ninKrt V. Smith. 20 Hi. 110 (1802); .Alittfcr v. Wiley, 3 J Iowa. 214; Bald- Brown V. I'itncy. 30 III. 408; Stur^'is win v. Hill. 07 iuwa. 5«(5, 00 N, W, It, V. Kwing. 18 111. 17('.; Mowhry V. M- Ijand is well settled, and the only solutely inconsistent with her claim diftifulty arises in ap|)lyinf5 it to the of dower; so that the intt>iition of varying? circumstan«"es of each pur- the testator will be d<>fcatfd, as to ticular cas**. Where the testator in some part of the property devised or terms declares that the provision lMM{ueathed toothers, if she takes her made in favor of the wife is in lieu dower as w(>ll as the provision made ot dower, if she accepts tlie provis- for her in the will. . . . Andtode ion she cannot have her d(*wer in priv«< the wife of her dower, or to the t:ji>. 570, the same rule was applied to u GO 1043 LAW OF WILLS. [^ 745. the testator intended the lands shoukl be free from dower. "While a person might be willino^ to purchase lands suhjeet to a riirht of dower which the widow could release, and which, as it is less than the value of the fee, would not, if enforced, re- sult in his eviction, he w^ould hardly be willing to lease such lands incumbered by her right, the assertion of which would be equivalent to his eviction.^ The fact that land in Avhich the widow has a right to have dower assigned to her is devised to a person to be used in such a manner as will be absolutely inconsistent with the enforce- ment of her claim of dower is a circumstance which is often conclusive that the testator intended that she should elect. In an English case, where a house w\is devised to the widow for her use for life at a specified yearly rent, and she was directed to keep the house in repair, and the residue of the land of the testator was devised to strangers, it was held that the widow could not enjoy the life estate devised to her and have dower assigned her in the same.^ The fact that she w^as to have the personal enjoyment of the house, being absolutely inconsistent with her right to have a third of the property set out by metes and bounds, is a sufficient indication that she must elect, although the life estate was not given to her ex- pressly in lieu of doAver.' 1 Hall V. Hill, 1 D. & War. 94, 1 C. - Birmingham v. Kirwan, 2 Scb. & & L. I'JO; O'Hare v. Chaine, 1 J. & Lef. 444. Lat. 652, C02; Parker v. Sowerby, 4 3 In this case Lord Redesdale said: De Gex, M. & G. 321, 1 Drew. 488; "Tlie result of all the cases of im- Grayson v. Deakin, 3 De Gex & S. plied intention seems to be that the 298; Linley v. Taylor, 1 Gif. 67; instrument must contain some pro- Lowes V. Lowes, 5 Hare, 501 ; Pepper vision inconsistent with the assertion V. Dixon, 17 Sim. 200; Reynard v, of a right to demand a third of the Spence, 4 Beav. 103; Sullivan v. land to be set out by metes and Mara, 48 Barb. (N.y.) 523. A gift in bounds. . . . Now in the present trust of real property for the term of case it is clear the assertion of a one year, at the expiration of which right to dower as to the house and it is to be turned over to the widow demesne would be inconsistent with for her natural life, or as long as she the disposition of the house and de- remains unmarried, the trustees hav- mesne contained in the will, and ing the power to sell and give a good therefore the widow cannot have and sufficient deed with a devise of both. The house and demesne are the residue of the estate, absolutely devised with the rest of the estate to or in fee. shows a clear Intention trustees. That devise taken simply that the widow shall elect between might be subject to the widow's this provision and her dower. Cooper right of dower, but it is coupled with V. Cooper (N. J., 1897), 38 AtL R. 198. a direction that she shall have the § T4G.] DOCTKIXE OF EQUITABLE ELECTION. 1043 § 746. Presumption of an election hy tlie widow from efiuality of division. — AVo will suppose that the testator has divided all his property, both real and personal, between his widow and another person equall3^ The question then arises, is the widow entitled to her moiety, and also to her dowser in the real property which is given to the other person, or does the intention to make an equal division raise a conclusive pre- sumption that the testator intended she should accept one-half in satisfaction of her dower right in the other? In an Eng- lish case, where the testator said: "I give to my wife A., and my two children, all my estates whatsoever, to be eriiudly di- vided among them^ whether rer.l or personal," ^ it was held that enjoyment of the house and demesne, of the widow to his sister. Sir James paying a rent of 13s. per acre, which Wigram held that the devi-se should mast be out of the whole. Then fol- not be held inconsistent with and in low directions that she shall keep lieu of dower, and that the widow the house in repair, that she shall was not put to her election. He no- not alien, except to persons in re- ticesthe three cases above mentioned mainder; directions wliich apply to (Clialmers v. Storril, 2 V. & B. 22; tiie whole of the house and demesne, Diokson v. Robertson, Jacob. 503; and could not be considered obliga- Roberts v. Smith, 1 Sim. & Stu. 513), tions on a person claiming by dower, and held that his determination did . . Then comes the question not conflict with them, supjiosing whether the implication extends to that these cases did not intend to the rest of the estate. I cannot, on overrule the doctrine well estab- the whole of the case, think the tes- lished. that a mere devise of land in tat(jr has sufficiently manifested an trust for sale did not import an in- intent that this beneficial interest in tention to devise it otherwise than tlie hou.se and demesne, given ujion in lieu of dower. lie does not seem a re.served rent and under certain to have realized that the decision in conditions, should be considered as those cases was based ujton the fact a bar of (hnver out of the rest of the that the disi)ositi()n of the i)roceeds estate. The will may be ])erfectly executed as to all other purjioses wil liout injury to the claim of dower; with respect to the rest of the estate was inconsistent with her claim for dower, and showeil an intention that this was in lieu of dower. He holds, without reference to autiiority, that it rmiy be mortgaged or sold subject the direction to divide the proceeds to that claim." " In the ciiHeof Ellis of tlio sale cannot decide wliut the V. I>rwiH, 3 Hare. 310, the provisions subject of the sale is. I am inclined of the will were substantially Jisthosay the irifonie arising to consider Ihe judgment of Sir Will- iam (irant, Sir .John Leach and Sir T. I'luMier as of more authority than that of Vice-chancellor Wigrain, starif it to his wif(s dnr- court by ( 'liaiicellor Zabriskie in tlol- irig wiilowhooil, arul to juiy the in- gate v. Colgate, 23 N. J. K<[. 371>. <'orne of the other moiety and of the 'Chalmers v. Storil, 2 Ves. & Kea. whole afU;r the death or r<;marriugo 222. "Tho testator directing all his 104J: LAW OF WILLS. [§ 746. the equality of division intended to be effected by the will was absolutely inconsistent with a claim of dower. The testator evidently meant by this language to divide his real property equally, which intention would not be carried out if the widow was not really compelled to relinquish her dower. This rule has been criticised upon the ground that a testator will be pre- sumed to have intended to dispose of his own property only, and where he directs an equal division of his property he will be presumed to have intended to divide equally such property only as he had an absolute power to dispose of, i. e., his real estate less the dower interest.^ Despite this criticism of the rule it has been followed both in England ^ and in America.' It is well settled in the absence of statute that a mere devise in general terms does not put the widow to her election.* A gift of a money legacy to the widow with a devise of a part of the lands of the testator, without any expression of intention that this is to be received in lieu of dower, does not put her to an election.'^ AYliether the gift of an annuity or of a rent charge for life to be paid out of the income of real estate will operate as a bar to dower has been much debated. In some cases it has been held that a gift of an annuity payable during life or widowhood, with a devise of the land subject to the real and personal estates to be maintenance of herself and her chil- equally divided, the same equality dren by her former husband, and is intended to take place in the di- tliat the other half of the income vision of the real as of the personal should be applied to the mainte- estate, which cannot be if the widow nance and education of the testator's first takes out of it her dower and own children. That intended equal- then a third of the remaining two- ity would be disappointed if the wife tliirds." Remarks of Sir William were in the first place to take her Grant, M. R., in Chalmers v. Storil, dower." 2 Ves. & Bea. 2:^2. 3 McLeod v. McDonnell, 6 Ala. 236, 1 Jarman, p. 403, ch. XIV. 239 (1844); Griggs v. Veghte (N. J., -Dickson v. Robinson, Jac. 503; 1895), 19 Atl. R.8(j7; Helme v. Strater, Roberts v. Smith, 1 Sim. & Stu. 513; 52 N. J. Eq. 591, 30 AtL R. 333; Closs Reynolds v. Torin, 1 Russ. 129; Good- v. Eldert, 37 N. Y. S. 353, 16 Misc. R fellow V. Goodfellow, 18 Bea v. 356. 104; Bailey v. Byce, 4 Strob. (S. C.) In the case of Roberts v. Smith, 1 Eq. 84 Sim. & St. 513, Sir John Leach, V.-C, < gee cases cited on p. 1041. said: "The principle referred to in * Lawrence v. Lawrence, 2 Vern. Chalmers v. Storil decides this case. 365; Strahan v. Sutton, 3 Ves. 249; The plain intention of the testator Brown v. Parry, 2 Dick. 685; Incledon was that the wife should have half v. Northcote, 3 Atk. 430, 430. the income of his jiroperty for the § 747.] DOCTKIXE OF EQUITABLE ELECTION. 1045 annuity to other persons, ^vas presumed to be in satisfaction of dower, and that the lands devised were not subject to dower.^ This rule was repudiated by no less an authority than Lord Ilardwicke,- and his determination of the question has been followed as a settled rule of law. There is nothing in the gift of an annuity or the creation of a rent charge for life which in itself indicates any intention that the provision thus made shall be in lieu of dower in the lands which are charged with it. Whether the annuity shall or shall not be a bar to dower de- pends upon the express language of the will or upon necessary implication.^ If the rents and profits derived from the land which is devised are not sufficient to satisfy both the annuity and the dower, it may be presumed that the testator gave the annuity in lieu of dower.^ Particularly would this be the case where the surplus income of the lands, after the payment of the annuity, was to be devoted to the support of a child or the children of the testator during minority.^ § 747. The effect of an election by the widow to take under the will. — Where the widow or other person j)ut to an elec- tion has elected to take under the will, he or she is forever ab- solutely debarred from every right to or interest in the property which belonged to him but which the testator has given to an- other. Thus, for example, where the widow of the testator has elected to accept real or personal property given her by the will, and which, either expressly or by necessary implication, is to be taken in lieu of dower, she is forever barred of dower, not only in the lands which her husband owned at the time of his death, but in those which he had conveyed dui'ing the cov- erture by deed of conveyance in which she did not join." » Arnold v. KemT)stea<], Ainh. ICO, Scli. & Lef. 444. 453; Pearson v. P.-ar- 2 Ed. 'j:i«: Vilhimil v. (ialway. Anil), son, 1 Bro. U. (J. UJH, 'J peal, 23 Pick. (Mass.) 1G3; Nickerson V. Bowley, 8 Met. (Mass.) 424. A tes- tator gave his entire estate to his widow, providing that, if she should again marry, slie should receive one- third of the estate. Hdd, that the widow on remarriage was entitled, as a distributee, under the statute, to one-third of the personal intestate estate. Bennett v. Packer, 39 Atl. R. (Conn., 1898), 739. Thus, in England, it has been held that a gift to the widow "in lieu and satisfaction of dower and all other claims whicli she could or miglit have had or have been entitled to out of the testator's es- tate" will not bar her right as the heir of a copyhold estate. Norcot v. Gordon, 14 Sim. 238, 258. See also Sutton V. Read (111., 1898), 51 N. E. R, 801. Wliere the testator in his will directs that his wife shall have a house for her residence during her life free, which she accepts, she can- § 747.] DOCTKI^^E OF EQUITABLE ELECTION. 104:7 "Where the widow is an heir of her husband she is not barred as an heir by her acceptance of a devise in lieu of dower. For if, as we think, the two capacities are separate and distinct, she may, while taking under the will as widow of the testator, con- test its provisions as his heir. Hence she may, as heir, totally overthrow the will, in which case, the will being invalid, there is no necessity for her to elect. Where the statutes make her election to take under the will a bar both of her right of dower and her right to a distributive share of the personal property of the testator, they do not affect her right as the heir of the testator. Thus, though she may have to make her election as widow within one year, she may as heir have a longer period in which to contest the will, and by securing a revocation of the probate render the election of no effect. The rule that a provision accepted in lieu of dower does not pre- vent the widow from taking as heir or next of kin of the tes- tator in the case of his intestacy, even when such is apparently bis intention, is based upon the principle that, in order to dis- inherit the heir at law and, for the same reason, the next of kin, the property must be disposed of to some one else. If, therefore, the testator is partially intestate either as to his real £>T personal property, no reason exists that one of the heirs or next of kin should be deprived of what tlie will gives him, and compelled to elect between it and a gift under the will, be- cause the testator has seen fit to confer a bounty upon him. The effect of excluding the widow from taking her share in the personal estate undisposed of would be to increase the shares of the next of kin.^ Where a widow, witii a full knowledge of her rights, has not claim homestead. Cowrlroy v. land v. Sutlierlaml (Towa, 1897), 71 Hitchcock. 10:i III. 2(52; "Warren v. N. W. li. 42-4; Sutton v. Road (III, Warren. MM IlL 6U. G."j2. 189^), 51 N. E. K. 801. Where the 'Thus it has been held tliat a pift gift wjxs "for her jointure an Estate, 15 Pa. Co. Ct. R 285; O'Har- Kan. (1875), 625; In re Schultz's Es- row V. Whitney, 85 Ind. 140, 143; Mc- tate (Mich., 1896), 71 N. W. R 1079; Guire v. Brown, 41 Iowa, 650, 655; Randall v. Randall (Md., 1897), 37 AtL Harmor v. Brown, 58 Ind. 207; Still- R. 209; Portuondo's Estate, 165 Pa. well V. Knapper, 69 Ind. 558; post, St. 472, 474, 39 Atl. R. 1105; Vance's note 3, p. 1049. Estate, 141 Pa. St. 203; Ferguson's Es- 2 Buish V. Dawes, 3 Rich. (S. C.) tate, 138 Pa. St. 308. The renuncia- Eq. 281; Hurley v. Mclver, 21 N. E. tionby the widow of a rent charge for R 325, 119 Ind. 53. the provision which the law makes 3 Barnett v. Barnett, 1 Met. (58 Ky., for her in her husband's real prop- 1858), 254; Armstrong v. Park, 9 eity extinguishes the charge. Arm- Humph. (28 Tenn., 1849), 195; Brink strong v. Park, 9 Humph. (Tenn., 1849), 195. § T-iV.] DOCTRINE OF EQUITABLE ELECTION. 104C> other persons, payable after the death of the widow, and the widow renounced and took her dower, all the legatees, includ- ing the residuary legatee, have their gifts accelerated, and an immediate distribution of the estate must be made.^ It has been the subject of much discussion whether a widow is put to her election b}'' the gift of a life estate in land, with a devise o^ the fee of the land to others, in the absence of a di- rection that the life estate is to be accepted by her in lieu of dower. This inquiry may be viewed from a double standpoint. First. Assuming that the widow accepts the life interest de- vised to her, it is well settled that she is not debarred from claiming dower in the remainder of the fee which has been devised to other persons after her death.- Second. Assuming that she has, with a full knowledge of her rights, made an elec- tion and has accepted a life estate which is determinable on her remarriage in lieu of her dower in the real property of the testator, and the remainder of the real property of the testator is devised to others, can she subsequently, on her forfeiture of her life estate by her remarriage, claim her dower in the spe- cific piece of property in which she had a life estate? There are a few decisions which would permit the widow to claim dower after she has forfeited her life estate by a remarriage.' But the majority of the decisions sustain the rule that, where a widow, with a full knowledge of her rights under the law, ac- cepts an estate for life or widowhood in lieu of dower, and subsequently forfeits that estate, she cannot then claim dower in the land which she forfeits; nor, if the life estate was given and accepted in lieu of dower, can she then chiim dower in the balance of the lands owned by the testator, whether that bal- ance was or was not disposed of by the will.* J.Slocum V. nagainan, 170 111. 5:W, R 7:J9; Smith v. Bone. 7 Rush (Ky., T)2 N. II It. 332. 1870), 307: Ollarrow v. Wliitiicy, S.'S '-Havens v. Havens, 1 Samlf. CM. Ind. 110. 113; Harmon v. Hrown. ^S (N. Y.) 3L'r>; .S.'iritlf(.r: Hamiitdn v. Huck- JMittc-er v. Wiley. 31 Iowa. 211; waiter. 2 Yeatc-s (i'a.). 3.s!(, :{U2; In re Sandford v. Ja/kson. 10 Paine (N. Y.). Sotider's Kstate, Vt I'a. Co. Ct. H. 28r.; 206; Ix-'wis v. Sn\itli. 1» N. Y. 502; ('awton v ('ji>i N. E. li. «o2. Tliis sub- Gu. 185; Woitlieu v. Toarson, ;j;j tJa. ject is fully (lis^usseil an^c, ^ :W0. SS.'i; Clayton v. Aikiri, 38 Ga. 320; 2 Kline's Appeal, 117 Ta. St. (18^7), Martincj v. Norris, »l M<>. 4Gr>. 3 S. W. 139. I{. 8I»; PeinlxTton v. Peinberton. 29 » Warren v. Warren. \\H 111. (IS93), Mo. 4l)«; Morgan v, MorK'an. 41 N. J. 641, 6.'>3; IVyton v. JelFrie-s, .lu 111. Ya\. 235; Van ATsdalo v. Van An*- (1W(I). 143; Whyte v. Mayor. 2 Swan dale, 17 N. J. L. lOl. (32 T»'nn.. lM.-,2). :}(;j; Honl.'iibeck v. Mlillijinl v. Hiiifonl, 10 Ala. 077, Cr'.nkriKlit. 23 .v. .J. Bj. -107. 91)0; .M.(;ratli v. .McCiratli, 38 Jn.i. ♦I'urnplin'V V. I'liniplirey, 52 Ark. 2M5; Itrown v. I'ltiiey. 39 111. 4(W; 193, 12 S. W. li. 390; Tooke v. Ilardo- Mo\n bry v. .Mou bry, OIUL 383; Gauch ior.3 LAW CF WILLS. [§ T49. In A'cry many of the states it is now provided by statute that unless the widow of the testator sliail within one year after his death renounce the provisions made for her in tl)o will, whether or not such gift is expressly stated to be in lieu of dov.'er, by some act or writin^^ clearly manifesting an inten- tion to make an election, she Avill be conclusively presumed to have taken under the will.^ The character of the acts, or of the writing, where a writing is required to manifest an inten- tion to elect, depends wholly upon the provisions of the stat- utes, which should be consulted. The statutes are to receive a reasonable construction with the view of protecting the rights of the widow. In case the statute fixes no time within which an election is to be made, the widow must have a reasonable time to decide, depending upon the circumstances of the case.'- The existence of a controversy involving the validity of the w^ill, or the construction of a provision referring to her dower, is a good reason for extending the time within which she is V. St. Louis Ins. Co., 88 111. 255; Cow- drey V. Hitchcock, 113 111.^263; Stunz T. Stunz. 113 111. (1885), 210, 23 N. E. R 407; Warren v. Warren, 30 N, E. R 647, 148 111. 650; Allen v. Hannum, 15 Kan. 625; Dow v. Dow, 36 Me. 211; Ha'^tings v. Clifford, 32 Me. 132; Pratt V. Felton, 4 Cush. (]Mass.) 174; Eeed v. Dickerman, 12 Pick. (Mass.) 146; Atlierton v, Corlis. 101 Mass. 40, 44; Delay v. Vinal, 1 Met. (Mass.) 57; Gough V. Manning, 28 Md. 347, 366; Hinckley v. House of Refuge, 40 Md. 461 ; Jackson's Appeal, 126 Pa. St. 105, 17 Atl. R 335; Craven v. Craven, 2 Dev. Eq. (S. C.) 338; Hair v. Gold- smith, 22 S. C. 566; Luigart v.;Ripley, 19 Ohio St. 24; Davis v. Davis, 11 Ohio St. 386; Bowen v. Bowen, 31 Ohio St. 164; Anderson's Appeal, 36 Pa. St. 476; Reed v. Reed, 9 Watts (Pa.), 263; Cauffman v. Cauffman, 17 S. & R (Pa.) 16: Malone v. Majors, 8 Humph. (Tenn.) 577, 579; Demoss v. Demoss, 7 Coldw. (Tenn.) 256, 258. 1 Sanders v. Wallace (Ala., 1898), 24 S. R 354; Crow v. Powers, 19 Ark. (1858), 424; Pumphrey v. Pumphrey, 52 Ark. 193, 12 S. W. R. 390; Lord v. Lord, 23 Conn. (1854), 327; Cow.hey V. Hitchcock, 113 111. 262; Stunz v. Stunz, 113 111. (1885), 210; Warren v. Vv^arren, 36 N. E. R 647, 148 111. 650; Arcliibald v. Long, 144 Ind. 451, 43 N. E. R 439; Fosher v. Guilliams, 120 Ind. 172, 174; Carper v. Crowl, 149 111. (1894), 465, 474, 36 N. E. R 1040; Pratt v. Felton, 4 Cush. (Mass.), 174: Hast- ings V. Clifford, 32 Me. (1850), 132; Dougherty v. Barnes, 64 Mo. (1876). 159; Grant v. Henley, 64 Mo. 102: Brad hurst v. Field, 57 Hun, 587, 10 N. Y. S. 482; Sullivan v. ]\IcCann, 2 N. Y. S. 193; Collins v. Carmen, 5 :\r(l. (1854), 503; Gough v. Manning, 26 Md. (1866), 347; Chadwick v. Tatem, 9 Mont. 354, 23 Pac. R. 729; Appeal of Jackson, 126 Pa, St. 105, 17 Atl. R 535; Sherman v. Baker (R L, 1898), 40 Atl. R 765; Blunt v. Gee, 5 Call (Va.), 481; Noel v. Garrett, 4 Call (Va.), 92; Albright v. Albright, 70 W^is. 528, 532. 2 Reed v. Dickermann, 12 Pick. (Mass.) 149; Delay v. Vinal, 1 Met. (Mass.) 157. § 749.] DOCTRIXE OF EQUITABLE ELECTION. 1053 to raakc up her miml.^ In some cases it has been held that if a statute requires that a widow's election shall be in writing, her acts and oral statements not of record will not suffice.^ Elsewhere it appears that although the statute provides for a formal election by the widow whether she will take under the will of her deceased husband, in lieu of the share which the law gives her, an election ma}^ be made by acts in pais; and hence the record is not the only proof of such election. The proof of an implied election by a widow whether she will take under her husbiind's will must be clear and satisfactory; but a deliberate and intelligent choice is deemed to be as bind- ing as though it were formally made.' But the filing of an in- strument, when it is not required by a statute, is not binding upon her.* So far as the formal character of the instrument to be filed is concerned, the statute should be strictly followed.* Ordinarily the writing should be acknowledged by the widow.® Her consent to take under the will when filed becomes a part of the judicial records, and cannot be recalled unless under an order of the court.^ A statute which provides that a devise of land by the testa- tor to his wife shall be presumed to be in lieu of dower does not apply to an unconditional gift of personal propert3^'* But a statute which provides expressly that a gift contained in a will shall be presumed to be in lieu of the " widow's share," and that she will also be presumed to have taken under the will unless she files her dissent to its provisions in writing, is ap[)licable to her distributive share.^ The filing of a written renunciation is of course unnecessary where the testator has J Church V. Ackennann, 1 N. J. Va\. « Fosher v. Guilliams, 120 Iml. 172, (1H31), 40; Pindell v. Pindell, 10 Md. 175. 6:i7. " Colos V. T.TivlI, 102 111. 1(;7, -14 N. MVhited V.Pearson, 00 lowii. 488, E. R :}!>!; lialdozior v. Uaynos, 57 5S N. W. H. :K); An-hihuld v. Lc^ng, Iowa. 08:j, C8ri. The presumption is 144 Ind. 4."il, 4.'>4. that the notice of an eli'ftion to take ' I{'s Estiitc. 7 Wash. 291, Hilvey'H E«Uite. 44 CaL (1872), 210; 31 Par. R. KU. St S. occujiies the land for si-x years, hu W. R 1121: Ilfhii V. I^ggott (Mo., will bo dci'incMl to have lakm under 1H99), 48 S. W. R G7.J. the* will and cannot refuse to pay • In re Well's lintate, 63 Vt. 116, 21 the annuity. Fry v. Mudiaou. 12 N. All. R 270. K. U. 774, 159 IIL 21 L * In re Blackmcr's Eatato.OG Vt. 40, 2« At!. R 419. 67 1058 LAW OF WILLS. [§ 752. Tlic statutory rule which obtains in some states, forbidding the alienation of a homestead, occupied as such by husband and wife, by cither without the consent of the other, has been regarded, in one case at least, as not applicable to a devise of the interest of either the hvshand or the ivife. It is said that an execution of a will is not an alienation, as it does not pass any interest or title in the homestead. The will is revocable until the death of its maker, and is effectuated by that event and by the operation of the statute of wills. At the death of the testator the land ceases to be occupied as a homestead, and no reason exists, either in law or public policy, that prevents him from disposing of his interest by will when he can no longer enjoy it, though, of course, he has no power to dispose of the interest of the other. His devisee takes it subject to the statutory rights of the surviving spouse or of the children.^ § 752. Election in the case of a bequest of the proceeds of an insurance policy. — AVhere the testator has his life in- sured for the benefit of A. loithout poioer of revocation in tho testator, or of designating a new beneficiary by his will, awl he devises property of his own to A., and in the same will de- vises the proceeds of the policy, which is payable to A., to an- other, A. is bound to elect — he cannot claim the devise and the proceeds of the policy. Thus, where a testator gave his real estate to his children and devised to another the proceeds of a policy payable to them, the children, on accepting tho devise, elected to relinquish the proceeds of the policy.- And in such cases, where the proceeds of the insurance policy greatly exceed in value the legacy to the beneficiary named in it, he is not only under an obligation to elect, but he has the right to do so for his own protection. The principle that an occasion for an election arisos only in a case where the testator gives away the interest of another is applicable to a bequest of the proceeds of an insurance policy. iVining v. "Wallace, 40 Kan. 609, Kan. 590; Martindale v. Smith, 31 613, 614. The testator may by stat- Kan. 270, 273; Myers v. Myers, 89 Ky. ute, in some cases, dispose of his home- 442, 12 S. W. E, 933. stead by will if he has no cliildren, 2Hartwig v. Schiefer (Ind.), 46 N. but it will be still subject to dower. E. R. 75; 42 N. E. R. 471, affirmed; Pumell V. Reed (Fla.), 13 S. R 831. Van Schaack v. Leonard, 164 111. 602, Or he may devise it to his widow 607, 45 N. E. R 982; Huhlien v, Huh- and children. Barry v. Barry, 15 lien, 87 Ky. 247, 253, 8 S. W. R. 260. § 753.] DOCTRINE OF EQUITABLE ELECTION. lU59 It is only when we assume that the specific beneficiary named has, during the life or at the death of the testator, a vested right to the insurance money in the nature of property of which he cannot be divested, that he has the right to elect between it and what the will gives him.' But when, according to the gen- eral rule, the interest of the beneficiary in an insurance policy is regarded, not as a vested right or estate in property, but rather as a mere expectation or possibility on his part of re- ceiving something on the death of the insured, assimilating to the expectation of a legatee under a will, no case for an elec- tion arises when the person who is insured disposes of the pro- ceeds of the policy by a will in which he gives the beneficiary a legacy ; for the main requisite to an election, that the testa- tor shall by will dispose of the property of another, is absent. The beneficiary named in the policy takes the legacy given him, and the bequest of the insurance money operates under the will, and both legatees take under the Avill according to the ex- press intention of the testator. The intention on the part of the testator to put the benefi- ciary under the insurance policy to an election must be mani- fested expressly or by necessary implication on the face of the will, as in other cases where an election between inconsistent benefits is required. Accordingly in a case where the testator having his life insured for the benefit of his widow bequeathed her a large sum of money, ^'- ijidiulhuj the jyi'oceeds of all insnr- ance upon his life payable to her or otherwise,''^ expressly in lieu ff rloicer, and directed that siie be paid a certain income dur- ing her life by the trustees, and gave the suri)lus income and all the residue of his estate to others, the court held that tho widow, by taking under the will the provision for her in lien of dower, was not under the necessity of relin(|uishing tho proceeds of an insurance policy payable to her as a bent'llciary.-' § I'i'.i. The husbaiHl's rii;ht to elect as respects his cur- tesy. — At tln! coiiiiiKjn law an estate i)y the curtesy was :mi int^jrest to which Urn husbiitid was entithMJ, upon tho (h'alh of liis wife, in lands or t(.'n<'ments of which she was seized in pos- ' P'or nxamplPH of Hur;h cases kco 1(»7. TIm> nilfs ;,'. 72, not« 'J. tion by will of tho ihoccoiIh of iiisnr '■'In re IhiydfrrH ICMtato, n N. Y. uiicfi |i(ilici(.'.s iiru t'X|)liiino(i ia full in Hupp. 815, Ml, 7 N. Y. S. ai3, '> 1 Hun, ^; W, „nfe. 1000 LAW OF -WILLS. [§ 753. session, in fee simple or in fee tail during their coverture, pro- viding always that she had lawful issue born living which might by possibility inherit that estate as heir to the wife, lie took, on her death, an estate for life by the curtesy.^ This right or estate of curtesy is recognized by statute in very many states. In California, Texas, Oregon and Washington it is not recognized. Real property is there held by husband and wife as community property.- In Ohio, Oregon and Pennsylvania the birth of issue is not necessary. In a few of the states the estate by curtesy has been abolished, and under the statute the husband takes a certain definite share of his wife's property, xeal or personal. The question arises as to the wife's power to dispose of her real property, held in fee, in such a manner as to deprive her husband of his estate by the curtesy. In some states it is held that a married woman may cut off the husband's curtesy Avith- out his consent," but the general rule is that the curtesy of the husband cannot be cut off unless he shall assent to the will. A statute enabling a married woman to execute a will to the -same extent as a single woman does not alone enable a married woman to destroy the estate by the curtesy of the husband.* Many of these statutes conferring the testamentary power on married women provide that they shall not be construed to deprive the husband of his estate by the curtesy to which he would otherwise be entitled.^ Where the estate and interest of the husband are thus protected by the statute, and the wife, while attempting to dispose of his estate by will, gives him prop- erty over Avhich she has an absolute power of disposal, tlie husband will be put to his election. Indeed it has been held that a statute referring to an election by a widow is also ap- plicable to an election by the husband^ in the matter of his 12 Bl. Com. 126,127; Westcott v. v. Goodrich, 15 Wis. (1862), 389; Mason :\Iiller (1877), 42 Wis. 465; 4 Kent, 27; v. Johnson, 47 Md. (1877). 347. Billings V. Baker, 28 Barb. (N. Y., ^Teacles' Estate, 132 Pa. St 535; 1859), 344 Clarke's Appeal, 79 Pa. St. 376. ^Ante, % 750. SMiddleton v. Steward, 20 Atl. R 3 Garner v. Wills, 92 Ky. 386. 389 846, 47 N. J. Eq. 293; Gearge v. Bus- (1891), 17 S. W. R. 1023; In re Mitch- sing, 15 B. Men. (Ky.), 558. 563, 564. «11, 61 Hun, 372; Sleight v. Read, 18 «Slnelds v. Keys, 24 Iowa (1868), Barb. (N. Y., 1854), 159; Neeley v. 298; Everett v. Croskrey, 92 Iowa, 333, Lancaster, 47 Ark. 175, 179; Oatman 335 (1896), 60 N. W. R. 732. § 754.] DOCTRINE OF EQUITABLE ELECTION. lOGl curtesy. The principle of an election is not only applicable ta- a devise which is in lieu of curtes}'/ but also in states where curtesy is abolished. An election may be required where the- husband has a statutory provision made for him, either in the- real property- or in the personal property of the wife.' The mere fact that the husband acts as his wife's executor and re- ceives a reasonable compensation does not indicate that he has elected to stand by the will, where it gives him nothing, but purports to dispose of his property.* § 754. Curtesy in land in separate use trust. — It has been settled from the earliest times that the real property of a mar- ried woman of which she was seized in fee, even though it may have been settled in trust to her separate use, was subject ta the estate by curtesy in her husband.^ But an estate may be created in trust which shall be wholly free from the curtesy of the husband. The question always is, not whether the grantor in a separate use trust had the power, but whether he intended in creating the separate use to destroy the husband'^s curtesy. The evidence of such an intention must be clear; for, as has been said, a gift of a fee-simple estate, or of money to the separate use of a married woman, gives her the same estate precisely as though she were single. She has the same power to dispose of it by will, but if she does not dispose of it by will her husband's curtesy will attach. The mere fact that the estate is simply limited to her separate use, or even that it is secured to her free from her husband's debts, or that it is expressly stipulated that it should go to her heirs, or tliat she is given an unlimited power of testamentary disposition over it, does not prevent his curtesy attaching, if she does not dispose of it by the will.'^ • Cunningham V. Cunningham, 30 'Appeal of Coo, 30 Atl. II. 140 \V. Va. 599 (1888), 5 S. E. IL DJO; Allen (1894), 04 Conn. aii. V. Boomer, 82 Wis. (1892), !{«t. :{71; « Tyler v. Who<'ler, n.! N. E. R. 006 Silshy V. Ihiliock, 10 Alh-ii (92 .Mass., (1S9:{). 100 Mass. 200. Tlu- lien of tho 180.')), 91; lieirne'H Ex'rs V. Vt>n Aliki- judgment creditors of tho luisband feldt (Iteirne's Ex'rs v. Ikjirno's on his estate by tho curtesy is not Adm'rH), 11 S. H It 40, 33 W. Va. 003. defeated nor ix)sti>onod by its mer- '^ Everett v. Croskrey, 92 Iowa, 333 ger into the fee of land whicli is de- (189r,), 00 N. W. R 732; Wright v. vised to tho husban.I by his wife. JoncH, 105 Ind. (188r»), 17, 21; Clark Browne's Ao from the danger of death. I'liis is the iiiodorn donatio mortis causa of English jurisprudence. The third is where the donor is in some danger of death, though it is not iiinnln( ut, and he transfers the property, th(Migh without delivery, which is only to take place upon his death. ^ The rules and })rinciples regulating this subject are very fully treated in the books of the writtM-s upon the Roman civil law, and that sysU.'m of law hedged in these gifts with nunu'rous •Sc-e Ward v. Turner, 2 Vuh. 431, 442, citing tho civiliunH: Dig., lib. 39, tit 0, Uiw y^ lOG-t LAW OF WILLS. [§ 755. formalitios which were well calculated to pT'otect the donor from imposition, to safeguard the interest of the hcrcs, and to provide restraints upon improvident persons, whose generosity, exceeding their sense of justice, prompted them to dispose of their patrimony in gifts to friends and dependants to the in- jury of their creditors and the members of their own families. The rules re2:ulatino: gifts moi^tis causa were first formulated at length in England by Lord Chancellor Ilardwicke, in a case ^ which was decided by him in the year 1752. In that case, as in most cases which come under this head of the law, the main question was, "What shall constitute a delivery of the thing which is the subject of the gift? Among the articles alleged to have been given were receipts for South Sea Annuities, and the court held that the title did not pass by a manual delivery of these papers, which were only evidence of the existence of and title to the thing, and not the thing itself, and which it was the custom to disregard and treat as waste paper after an act- ual purchase and transfer of the annuities. Though in a pre- vious case decided in 1744, the same chancellor had held the delivery of a bond as a good gift causa mortis of the debt,^ upon the ground that, though the bond is merely a chose in action, yet some jyroperty is transferred by its delivery, and the person to whom it is delivered may cancel the debt by destroying the bond, which would prevent bringing an action which could not be maintained at common law without profert, in this case the chancellor refused to go any further. Passing from the questions of the necessity of a delivery, and what shall constitute a good delivery, the court inquired as to the status of donationes mortis causa in the ecclesiastical courts. Inasmuch as the gift causa mortis, if valid at all, must be a good gift taking the property out of the deceased person's estate, the church courts could not have any direct jurisdiction of the matter by reason of their jurisdiction of the estates of deceased persons. But they had collateral jurisdiction, and modern probate courts have the same jurisdiction in two classes of cases. The first class is where an administrator declines to deliver the surplus assets to the next of kin upon the grounds 1 Ward V. Turner, 2 Ves. 431, 1 Dick. 2 Snellgrove v. Bailey, 3 Atk. 314. 170. See White & Tudor's Leading Cases, vol. 1, p. 1058. ^ 755.] DONATIONS MORTIS CAUSA. 10G5 that tliey have been given away by the deceased person causa tnoiiis. The second chiss is where the delivery of property specifically bequeathed or included in a residue to a legatee is refused by an executor upon the grounds that it has been given causa mortis. But the chancellor could find only one case in which the powers of the ecclesiastical court had been exercised, and in that case the pretended gift was held valid as a will.^ But the English courts of equity have from that time down to the present always assumed jurisdiction of the matter. This jurisdiction is exclusive where the gift is to one person to hold as a trustee for another. In other cases it is concurrent with the power of a court of law, for the donee may bring a suit against the executor at common law to recover the personal chattel which was the subject of the gift causa mortis? The action is one in the nature of assumjpsit? It is necessary in the first place to define a gift causa mortis, and to distinguish it from a gift inter vivos, on the one hand, and on the other from a legacy. A legacy is a gift of personal property which is con- tained in a testament, which has been executed with proper formalities qualif3ing it for probate. The legatee takes no in- terest whatever from the execution of the will. He has only the expectation of receiving something from the estate of the testator upon his death. This expectation may be disappointed by an ademption or a revocation. The legacy vests in him, if at all, only at or after the death of the testator.* A donation mortis causa is a gift of personal property made by a person during his last illness, or when he is in imminent peril of death, or in expectation of death, which the donee is to retain as absolutely his own if the donor shall die of that illness or peril, but which is revociiblc by the donor at any time during his life, and whith is revoked by implication Ijy the recovery of the donor.' The doctrine of (hmationes mortis causa has no reference? to transfers of real [)roj)erty.'' Upc^n citiiiiJai-ing these delinitions it will be s. 511; 2 Kont'H C'oni., 2Tate V. Hill.ert, 2 Ves. Jr. Ill, p. 211; 1 Story's Imj.. .t^'r^ 000, 007. 120. « Wriitw.rlli V. biiibloH (Mo., 1895), 'GoHS V. Simiwon, 4 Coltlw. (Tonn.) 150 All. K. Un lOOO LAW OF -WILLS. [§ 755. in that both are ambulatory, and that cither may be irvohed hy the donor he/ore his death. I3ut the donee, luilike the legatee, derives his title directly from the donor. No probate is required, and the donee takes not from the personal representative of the deceased donor, but adverse to hiin. Hence the executor of the donor has no interest in, title to, or control over the thing given, unless it is discovered that a deficiency of assets existed Avhen the gift was made. There is no rule of law which pro- hibits a man from disposing of his entire personal estate by a gift causa mortis.^ But the donee takes subject to the rights of the creditors of the donor, and, if there is a deficiency of assets the property donated becomes a part of the personal estate of the deceased, and may be devoted, so far as is necessary, to paying the debts of the donor.^ If the executor has obtained possession of the property which has been donated, a common- law action will lie to recover it,' and if the personal representa- tive shall claim title to it because of a deficiency of assets to meet the demands of the creditors, the burden of proof to show this fact is upon him, as it will be presumed that the testator had sufficient wherewith to do justice to his creditors or he would not have been so generous with his property.* 1 Wetmore v. Brooks, 18 N. Y. Supp. whether the donor lives or dies, it is 852; Thomas' Adm'r v. Lewis, 89 a gift infer riuos. A gift causa mor- Va. 1, 15 S. E. R 389. tis, like a legacy, is revocable during - Borneman v. Sidlinger, 15 Me. life. But on the donor's death the 429,431; Gourley v. Linsenbigler, 51 title of the donee is absolute with- Pa. St. 345, 349; Dunn v. German out proving it in acouit of probate, American Bank, 109 Mo. 90, 101; and in this respect it differs from a Grant v. Tucker, 18 Ala. 27; Mitch- legacy. A mere promise to pay a ell V. Pearce, 7 Gush. (61 Mass., 1851), sum of money cannot be a donatio 350; Sexton v. Wheaton, 8 Wheat, causa mortis. HoUey v. Adams, 10 (21 U. S.) 229; Thompson v. Dough- Vt. (1844), 206, 210. Cf. post, § 759. erty, 12 S. & R. (Pa.) 448; Brown v. Though a gift causa mortis may be Brown, 18 Conn. (1846), 414; Hudnal revoked at any time during the life V. Wilder, 4 McCord (S. C. Lawj, 294; of the donor, it will not be revoked Jones V. Brown, 34 N. H. 439. by a will bequeathing tlie thing 3 Westerlo v. De Witt, 36 N. Y. 346; which was given to another than the Michenor v. Dale, 23 Pa, St. 59. donee, for the will takes effect only *To constitute a valid donatio on the death of the donor, hy which causa mortis it must be made in con- also the donation becomes absolute, templation oi" death, to be effective Brunson v. Henry, 140 Ind. 455, 39 only it' the donor dies, and must be N. E. R. 256. But if the donee be- accompanied by delivery. If the gift queaths the subject of the gift cam-a is absolute, and is to take effect viortis, by the same will giving a leg- § 756.] DONATIONS MORTIS CAUSA. 1067 § 756. Tl»e necessity for the existence of the immediate apprehension of death. — In. order to constitute a valid gift causa mortis it is absolutely essential that the gift should have been made in the immediate apprehension of death from an existing illness or an impending peril.^ It is not essential that the donor should expressly state in words that he makes the gift in the immediate expectation of death. Such an intention and expectation may be presumed from the circumstances under which the delivery is made, as where the donor is in fact upon his death bed or in his last sickness.^ A gift made in contemplation, expectation or fear of a pos- sible or even a very probable death in the future, e. g., by a sailor, a soldier or a traveler embarking upon an extremely hazardous voyage, or upon an expedition attended with danger to life, is not a good gift causa mortis in the modern law.' If the gift was in fact made in the immediate expectation of death, it is not material that some time had elapsed before death actually occurred, provided the death of the donor re- sulted from the same disease or accident and the gift was not revoked in the meantime.* acy to the donee, the latter must elect between the gift and the leg- acy, and cannot claim both. John- son v. Smith, 1 Ves. 314. 1 Carty v. Connolly, 91 CaL 15, 22; Zeller v. Johnston, 105 Cal 143, 148, 38 Pac. R. 640; First Nat. Bank v. Balcom, 35 Conn. (1868), 351; Ray- mond V. Sellick. 10 Conn. 480 (1835); lie vol V. Dye. 123 In.l. 321, 24 N. E. R. 216; Brunwjii v. Henry, 110 Ind. 45.5, 30 N. E. R. 255; Smith v. Dorsey, 38 Ind. (1871), 451; Knot v. Hogan, 4 Meto. (Ky.) 'J'J; WesUjn v. 1 light, 17 Me. 287; SlifMidy v. Roiich, 121 Ma.ss. 472.475; Ellis v. Secor, 31 Mich. (1875), 1^5.180; Brickett v. Brickett. 20 N. J. Eq. 478. 470; Irish v. Nutting, 47 Barb. (N. Y.) 370, 373, :{87; Van Elect V. McCarn, 2 N. Y. Supj). 075; I^ing- ■vvnrthy v. Criwy, 31 N. Y. Hupp. 85, 10 Mi.HC. lU'p. 4.'»0; ("luiinpney v. I'.hincliard, 3» N. Y. (1Hson. 12 Tex. 327; French v. Raymond, 31) Vt. 623. 2 Miller v. Miller, 3 P. Wms. 356; Walter v. Hodges, 2 Sw. 100. And see Reynolds v. Reynrii (hn delivery of tlie property and the deiilli of the donor. .See iil.so Kicideii v. Thrall, 7 lOGS LAW OF WILLS. [§^ r58. § 757. Tlio iiocossity for delivery, actual or constructive. The revocable character of the donatioii. — If the donor re- cover from the disease or escape the danger which created the apprehension of deatli, the gift is revoked by implication of law.^ Or it may be express!}^ revoked by the donor at any time prior to his decease.- The main requisite to the validity of a gift causa mortis is that there shall be a delivery or tra- dition of the thing given by the donor to the donee.' What acts upon the part of the donor are sufficient to con- stitute a delivery we will now proceed to consider. §758. Character and mode of the delivery. — It was in- sisted by the English chancellors in the early cases tliat there must be an actual delivery of the chattel which was given. A symholiG delivery of a key of a box or trunk in which the chattel was kept would not suffice. The strict application of this rule N. Y. Supp. 822, 55 Hun, 185, 24 Abb. N. C. 52. 1 Logenf eil v. Richter, 61 N. W. R. 826, 828, 60 Minn. 49; Conser v. Snow- den, 54 Md. 175. 185; Carty v. Con- nolly, 91 Cal. 15; Thomas v. Lewis, !S9 Va. 1, 15 S. E. R. 389; Collins v. Collins, 31 N. Y. Supp. 1017, 11 Misc. R. 28; Michener v. Dale, 23 Pa. St. 59; Bunn v. Markham, 7 Taunt. 224; Tate V. Hilbert, 2 Ves. 111. In Gard- ner V. Parker, 3 Madd. 184, Sir John Leach said: " This bond was given in the extremity of sickness and in contemplation of death; and it is to be inferred that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition tliat it is to be held only in the event of death." 2 Rhodes V. Childs, 64 Pa. St. 18, 23; Parker v. Marston, 27 Me. 196, 204; Ellis V. Secor, 31 Mich. 185; Gratton V. Appleton, 2 Story C. C. 755: Par- ish v. Stone, 14 Pick. (Mass.) 198; Doran v. Doran, 99 Cal. 311, 315; Barnum v. Reed, 136 111. 388, 398; Walsh's Appeal, 122 Pa. St. 177; Brun- Bon V. Henry, 140 Ind. 455, 39 N. E. R. 256, 259; Dale v. Lincoln, 31 Me. 422. 3Bromberg v. Bates (Ala., 1897), 20 S. R. 786; Williams v. Chamber- Iain, 46 N. E. R. 250 (111., 1896); Dun- bar V. Dunbar, 80 Me. 450; Fearing V. Jones, 149 Mass. 12, 20 N. E. R. 199; feowers V. Hurd, 10 Mass. 427; Keep- ers V. Title Co., 56 N. J. L. 302, 305; Harris v. Cable, 71 N. W. R. 531 (Mich., 1897); Blasdell v. Locke, 52 N. H. (1873), 239; Holmes v. Roper, 141 N. Y. 64, 36 N. E. R. 180; Grymes V. Hone (1872), 49 N. Y. 17; Ridden v. Thrall, 125 N. Y. (1891), 572, 579; Harris v. Clark, 3 N. Y. 93; Kirk v. McCusker, 22 N. Y. Supp. 780, 3 Misc. R. 277; Campbell's Estate, 7 Pa. St. 100 (1847); Michenor v. Dale, 23 Pa. St. 59; Close v. Dennison, 6 R. I. 88; Smith v. Zumbro (W. Va.), 24 S. E. R. 653; Resell v. Senn, 28 Wis. (1871), 2y6; Miller v. Jeffress, 4 Gratt. (Va.) 479; Trenholm v. Mor- gan (S. C), 5 S. E. R. 721; Basket V. Hascall, 107 U. S. 602; Ward v. Turner, 2 Ves. Jr. 431, 1 W. & T. L. Cas. 1059, 1071; Cutting v, Gil- man, 41 N. H. 147; Levis v. Walker, 8 Humph. (Tenn.) 508. § T5S.] DONATIONS MORTIS CAUSA. lOGO often resulted in overthrowing gifts of clioses in action evi- denced by bonds and notes which were on deposit for safe keeping in chests or boxes. And the court of chancery distin- guished between the delivery of the key of a box which w^as itself so small that it might have been readily handed over, and the delivery of the key of a wine vault, w^here the key was not a mere symbol of possession, but the only way of getting at the possession of the vrine in the vault. A delivery by sym- bol was repudiated also by the civil law.^ But the strictness of the ancient rule has not been adhered to by the modern cases. Equity looks rather to the intention of the parties than to the manner of the delivery. Consequently the delivery may be valid, though symbolic merely, w^here under the particular circumstances an actual delivery is impossible.^ Admitting that the gift of a set of keys to a box deposited in the vaults of a bank constitutes a delivery of the securities in the box, it is immaterial that the donor had, prior thereto, placed a duplicate set of keys in the hands of a friend to be used in case of the loss of the original'set.' IS^or is it neces- sary that the donee should, on receiving the keys, at once pro- ceed to take possession of the chattels. Thus, where the things given were in a portable cupboard in the room occupied by the donor, and he handed the donee the key of the cupboard, saying he wished him to have all that was in it, the donation was held to be valid, though the donee permitted the articles to remain locked up in the cupboard until after tJie death of the donor} J Ward V. Turner, 2 Ves. 431, 1 Dick. v. Emmons, 158 l^Iass. 592, 593, 33 N. 170; and comi)are ante, % 310. E. 11. 706; Cooper v. Burr, 45 Harl>. 2 Dunn V. German Amer. Ins. Co., (N. Y.) 9; Marsh v. Fuller, 18 N. II. 109 Mo. VO, 99; Debinson v. Emmons, 300 (iHlfj); Jones v. Brown. 34 N. H. 158 Mas.s. 500. 592. 593; Parish v. Stone, (1857), 429; In r'j Wise, 37 Atl. U. 930 14 Pick. (Mass.) 203; McCJ rath V. lU-y- (Piu, 1897); Wilson v. iMatlisoii, 5.3 nold.s, 110 Mass. .500; Marshall v. Wis. 23, 27. lierry, 13 Allen (Mass.). 43; Rnor has no trunk or a chest, or 8afe-<|c|Mwit vault ap|»lication to a K'ft causa iimrtis. in which the valuahl«*H are kept. Thomas' Adiii'r v. Lewis, bO Va. 1, 15 (Joulding V. Hanhury, H5 Me, (1H92), S. R It. 3H9. 227, 280, 281, 27 AtL It. 127; Dcbiubou «(jlouldinB v. Horbury, 27 Atl. lu loro LAW OF WILLS. [§ T59. § 750. Cifts causa mortis of saviiigs-banlv books, checks and iiOj^otiablc instninieiits. — Whether the actual delivery of a banlc-book showing a deposit to the credit of the donor in a savings bank, alone and without any further action on the part of the donor or donee, is a valid gift causa mortis of the money upon deposit is not settled. The current of the most recent cases seems to sustain the affirmative of this proposition where the delivery of the pass-book is accompanied by language on the part of the donor sufficient to show an intention to pass the title to the money on deposit, and where the donor, in sur- rendering the possession of the pass-book, also surrenders all dominion and control over it} But neither verbal declarations 127, 85 Me. 227, 234. The fact of the delivery is to be determined by the jury. Dunn v. German American Bank, 109 Mo. 90, 18 S. W. R. 1139. In the case of Coleman v. Parker, 114 Mass. 30, the court said: "We have no doubt that a trunk with its con- tents might be effectually delivered in such a case by the delivery of the key. If the key in this case had been placed in the hands of the wit- ness, the donor relinquishing all do- minion and control over it, and part- ing with it absolutely, or if by the direction of the donor the witness bad taken it into her possession and control, there would have been a suf- ficient delivery to make out a full title in the plaintiff." A delivery of keys will not be equivalent to a de- livery of household furniture, in the absence of proof that the keys given secured access to the furniture. In re Somerville, 2 Con. Sur. 86. The de- struction by the donor of a note obli- gatory on the donee may be a good constructive delivery as against the donor's personal representative. Dar- land V, Taylor. 53 Iowa (1879), 503, 506; Gardner v. Gardner, 22 Wend. (N. Y.), 525, 526; Lee v. Boak, 11 Gratt. (Va., 1854), 182, 186, 188; Morse v. Weston, 152 Mass. 5, 6 (1890). Where a donor, in the expectation of death. Lands a sum of money to the donee, intending it to be a gift causa mor- tis, the deliver}^ is sufficient, though the donee immediately placed the money in the desk of the donor. Carle v. Monkhouse, 50 N. J. Eq. 537, 25 Atl. R. 157. The handing over of a bill of sale of articles which are ca- pable of actual delivery is not a suf- ficient delivery. Knight v. Tripp (Cal, 1898), 54 Pac. R. 267. A person in contemplation of her death, stat- ing to a friend that she wanted to give him her property, gave him the key to a desk in which he subse- quently placed certain notes indorsed by her, he retainmg the key. Held, not a sufficient delivery. 1 Camp's Appeal, 36 Conn. (1869), 88; Hill v. Stevenson, 63 Me. 364; Drew v. Haggerty, 81 Me. 231 (1889), 17 Atl. R 63; Debinson v. Emmons, 1.58 Mass. 592, 593; Pierce v. Savings Bank, 129 ]\Iass. (1880), 425; Sheedy V. Roach, 124 Mass. 472, 475; Callanan V. Clement, 42 N. Y. Supp. 514; Dev- lin V. Farmer, 9 N. Y. Su])p. 530; Rey- nolds V. Reynolds, 45 N. Y. Supp. 338; Loucks V. Johnson, 24 N. Y. Supp. 267, 268; Walsh v. Bank, 7 N. Y. Supp. 669; Tillinghast v. Wheaton, 8 R. I. (1867), 536, 542, 543; Dean v. Dean, 43 Vt. (1871), 337. But compare, contra, Conser v. Snowden. 54 Md. (1880), 185; Case V. Dennison. 9 R. I. 88. 90; Dan- iel V. Smith, 04 Cal. 346 (1883), 30 Pac. § 759.] DONATIONS MORTIS CACSA. lUTI by the donor, nor bis written statement of an intention on his part to make a gift, is enough to constitute a delivery in case of a deposit in a savings bank which is evidenced by a savings- bank book which is not delivered.^ And the gift causa mortis of a bank-book, assuming it to be valid as such, was held to have been revoked where the donor, a short time prior to his death, told the donee to go to the bank, get the money and bring it to him.^ The rule reirulating gifts causa mortis consistinor of choses Coo o in action evidenced by written instruments is apparently in- volved in inextricable confusion. The leading case ' determined that though the handing over by the obligee of a bond which is a specialty might be a valid delivery which would transfer title to the debt, for the reason that by canceling the bond the right to recover the debt was gone, because of the impos- sibility of making profert, the transfer of certain receipts for stock did not constitute a delivery thereof, for the stock might be sold and transferred only by an entry on the books of the corporation, after which the receipts were so much waste paper. Later cases have departed widely from this rule. While the ch^ck of the donor, dravjn hy him. upon money which is in a bank and to his credit, may not constitute a valid gift causa. mortis, because it is merely an order or authority to receive money from his l)ailee, and over which he never loses control until it is paid, for he may recall it at any moment before it is accepted, and it is revoked by his death, nevertheless a person may make a valid gift of choses in action which he holds against otiier persons, as bank notes, checks, drafts and bills of excliango drawn by otlu-rs and in his possession. Thus, it is well settled, according to the cuiTciit of the modern cases, tliat n<'goliabU3 paper, such as hank iiolcs,^ bonds,* dejuwit notes and crrtilicates R 575, 17 Viir. R. mW; Walsli's \\^- » W:inl v. Tuiii.>r, 1 Di.k. 170. 2 pejil (I'll. St.), 15 Atl. R 470; Thomas' Ves. \M. Adm'r v. I^wis (Vil, 1897). 15 S. K. < Hill v. Chapman, 2 Bro. C. C. 002; R '.W.); McConii.!!! v. .Murray. '.\ I. R. Slianl<'y v. Harvey. 2 lOilon. 125. ¥.<{. \m. ''SiicIIktovh v. Hailcy. M Alk. :!II; 'MrMalion v. SaviiiKS l'.aiik, r,7 J)iini<-I.l v. KIwrs, 1 HIjkIi (N. S.). 5i:{; Conn. 7H. ;M Atl. R 701». AV.-lls v. Tiick.r, :» Hiiiii. (Pa.) '.W\ 21)oniri V. I)oran. »9 f^al. .'Jll. '.V.\ (IHII); Waring v. Kdwurds, 11 Iml. Vaf\M.\\l'X ('(jMiiiar.) CriH! v. Cal.l- (1«5H;, 12L well, 52 N. J. I^ 215. ID All. R Ihm. 1072 LAW OF \VILL3. [§ 759. of deposit,^ mortgages^ and insurance policies,' or checks pay- able to the order of the donor, or payable to bearer, inay be the subject of a valid gift causa mortin.* And negotiable instru- TQcnts payable to the donor or to his order, it has been held, may be the subject of a valid gift causa mortis, even though they are not indorsed by the donor.* It is generally held, however, that a note or a check drawn by the donor, or a bill of exchange accepted by hira against money which he has on deposit with his banker and pa?/aUe after his death, does not constitute a valid donatio causa Jiiortis. A delivery of the subject-matter of the gift during the life-time of the donor is essential to the validity of the gift. In this case the check or note is not the subject of the gift, but a mere order to pay over the money which it represents, operative only before the death of the donor; and, on general principles of agency, his death works a revocation of the banker's author- ity to pay.^ Thus, where a person who had a certificate of de- 1 Amis V. Witt, 33 Beav. 619; Moore V. Moore, L. R. 18 Eq. 474; Hill v. Stevenson, 63 Me. 364; Pierce v. Sav- ings Bank, 129 Mass. 425; Dean v. Dean, 43 Vt. (1871), 337; Camp's Ap- peal, 36 Conn. (1869), 88; Conner v. Root (Colo., 1895), 17 Pac. R. 773. 2Durke v. Hicken, 61 Cal. 346; Richards V. Symes, Bar Ch. Cas. 90; Hurst V. Beach. 5 Madd. 351; Duf- field V. Elwes. 1 Bligh (N. S.), 543. 3 Witt V. Amis, 1 B. & S. 109; In re Trough, 75 Pa. St. 115. 4 Turpin v. Thompson, 2 Mete. (59 Ky., 1859). 420, 421; Brooks v. Brooks, 12 S. C. (1879), 422, 461; Jones v. Deyer, 16 Ala. (1849), 221, 225; Brown V. Brown, 18 Conn. (1847), 409, 414; Borneman v. Sidlinger, 15 Me. 429, 431; Burke v. Bishop. 27 La. Ann. 465, 467; Waring v. Ednions, 11 Md. (1857), 424; Harris v. Clark, 2 Barb. (N. Y.) 56; Craig v. Craig, 3 Barb. Ch. (N. Y.) 76, 117; Gourley v. Linsen- bigler, 51 Pa. St. 345, 349; Caldwell V. Renfrew, 33 Vt 213, 218; Grover T. Grover, 24 Pick. (41 Mass.) 261 ; Gib- son V. Hibbard, 13 Mich. 214 See also Blount v. Burrow, 4 Bro. C. C. 71; Clavering v. Yorke, 2 Coll. 363; Moore v. Moore, 18 L. R. Eq. 474; Dunne v. Boyd, 8 Ir. Eq. 609. 5 Rankin v. Weguelin, 27 Beav. 308, 309; Veal v. Veal, 27 Beav. 303; In re Mead, L. R. 15 Ch. D. 651; Brown V. Brown, 18 Conn. 409, 414; Parker V. Marston, 27 Me. (1847), 196, 204; Bates V. Kempton, 7 Gray (73 Mass.), 382, 383; Crum v. Thornley, 47 IlL (1868), 192; Tillinghast v. Wheaton, 8 R. L 536, 540: Chase v. Redding, 7 Gray (Mass.), 382; Stevens v. Stevens, 2 Hun (N. Y.), 472; Keniston v. Sceva, 54 N. H. 24, 38, 39; Westerlo V. DeAVitt, 36 N. Y. 340; and see cases cited in last note. « Graves v. Safford, 41 111. App. 659, 662, 26 AtL R. 803; Basket v. Hascall 107 U. S. 602; Harris v. Clark, 3 N. Y, 93, 110; Holmes v. Raper, 141 N. Y. 64, 66; Copp V. Sawer, 6 N. H. 386, 389 Sanborn v. Sanborn, 65 N. H. 386, 389; Phelps v. Pond, 23 N. Y. 69 Holley V. Adams, 16 Vt. 206, 210 Hamor v. Moore, 8 Ohio St. 239, 242 Conser v. Snowden, 54 Md. 175, 185 Walter v. Ford, 74 Mo. 195, 198; Mc Kenzie v. Downing, 25 Ga. 609, 670 759.] DONATIONS MOKTIS CAUSA. 1073 posit for a sum of money which he had placed at his banker's desired to make a gift causa Jiiortis of a part of it, it "was held invalid under the following circumstances: A friend filled up a seven days' notice to the bank of an intention to withdraw the amount, which the depositor signed. He then signed a check *' pay to self or bearer the sum of £500," which "was on the back of the notice, and the paper was handed to the donee ; but the donor died before the expiration of the seven days' notice. It was the custom of the bank, where a depositor withdrew a part of his deposit, to give him a new certificate, which, of course, Avas not done in this case. The court of chancery held that there had not been a valid gift causa mortis, inasmuch as the check was not payable until after the death of the donor.^ If, however, the check has been transferred by the donee to a hona fide holder for value, or if, prior to the death of the donor, it has hesii certified hj the Jjank upon which it was drawn, it will operate as a valid gift of the money which it represents, Flint V. Pattee, 33 N. H. 520; May v. Jones, 87 Iowa, 188, 198; Blanchard V. Williamson, TO 111. 647, 632; Parish V. Stone, 14 Pick. 198, 205; Meach v, Meach, 24 Atl. R. r/Jl ; West v. Gav- ins, 74 Ind. 205, 274; Raymond v. Sel- lick, 10 Conn. 480, 484; Brown v. Moore, 3 Head (Tenn.), 671, 673; War- ren V. Durfee, 126 Mass. 338, 341: Hel- fen.stein's Estate, 77 Pa. St. 328; Tate V. Hilbert, 2 Ves. Jun, 111. 4 Bro. C. C. 289. In Byleson Bills, 12th edition, p. 170, it is statfid " that a chenk drawn by the donor ufKtn his own banker cannot be the sub ject of do- nation carina mort'iH, becaxise tl>e death of the drawer is a revocation of the banker's authority to jiuy. But whcti tlio owner is deaiinj; with the chefk of another man, it stamis on entirely the sjime ffKjtin;; as a bill of exehaiinii or promissory note, wliich i;jay well Ih) tlie MxWyrX of a donation mortin pannn. Kor tliis Wi\r Hon there is noililFcnMir-e Iwtwecn tlie check of another ni.vn and a bill of exchange or promissory n<»t<'." "In mioh a rase tin" foiisiiliTiitioii must be a valuable one fur the beuetil of 08 the promisor, or the trouble, loss or prejudice of the promisee. The note is merely a promise to give. It is executory, and the promisor has a locus pciiit 071 tifc. It was an en<:age- ment to give, not a gift." Fink v. Cox, 18 Johns. (N. Y.) 145, 147. In Curry v. Powers, 70 N. Y. 218, it was said: "The delivery of a check pay- able at a future date could not bo elfective to constitute a gift, when the drawing of a (iheck afterwards would revoke it, and when the checks in question were drawn uo title vested. Such a case bears no anal- ogy to an order drawn on a jiarlicu- lar fimd in pursuance of an arrange- ment with the drawee, which order, on being shown, is afsto\vinf^ jiroperty Y. S. Ii;i5; Siieedy v. Koacii. 1'^'4 Mass. that he attaches a comlition to it, as, 472, 477; Larrabee v. Hascall, SM Me. for instance, tliat he stipulates that T)!!, :{4 Ati. H. 40,'S; liiununi v. Reed, Ills brotlier shall receive an outfit for i:J« III. 38«. 'MH; (iano v. Fisk, 4a India?" A iHjrson making his will Kave Ohio St. 462. Under the stjitutory the one drawint; it a note of Ins son, law of Louisiana a distinction is to Ini ^fiven to him if he did not ("on- made between a mod(» or cliar^M and test hi.s will: if lie di«s<'.HMi()ii«jf the inj^ a donation is not eciuivalent to a note, thouKii his wift^ put it in his condition iinposiMJ u|)oii it. Hence a IKH;ket-bf)ok. Jlilil, not a ^ift cuumii itoiititio viords cinisii for (tharitabht vinrltH. WrK»le in Hi. App. 'J>^!»: revers«'d, 1 J N. K. K. TiS. favor of tlie heirs be.ause of the fail- Vl'.i III. «oy; 10 N. E. li. 2(J!», I.':! Mi. un'of the donee in tnistto exeitut^^ 6<)H. the trust. Sickles v. City of Now 1 roHt, g§ 785-807. Urlwiii.H. mo Immj. H. nm. 107G LAW OF WILLS. [§ 761. pants, the mental condition of the donor at the instant of de- livery, and the relations then existing between him and tho donee, are all relevant, and should receive the closest scrutiny. The burden of proof to establish every necessary fact is on the donee,^ and, while the gift may be established by his evi- dence alone, if it is strong and uncontradicted, there is usually some necessity for corroboration.'- The declarations of the donor made to the donee or to those who are with him at the time of the delivery of the article given are admissible.* And a presumption of the acceptance of the gift by the donee arises from the fact that he will be benefited thereby.* It is usually requisite that the donor should have sufficient mental capacity to understand the character of 1 Conklin v. Conklin, 20 Hun (N. Y.), 278. 2 Bloomer v. Bloomer, 2 Bradf. (N. Y.) 319; Westerlo v. De Witt, 35 Barb. (N. Y.) 214; Eockwood v. Wig- gin, 16 Gray (Mass.). 402; Devlin v. Farmer, 9 N. Y. Supp. 530; In re Wiegel's Estate, 28 N. Y. Supp. 95, 7G Hun, 462. 31 Abb. N. C. 159: Flood v. Cain, 29 K Y. Supp. 156, 78 Hun, 378: Gibbs V. Carnahau, 25 N. Y. Supp. 564, 28 id. 1135; In re Donaldson's Estate, 158 Pa. St. 292, 27 Atl. R 959; Thomas' Adm'r v. Lewis, 89 Va. 1. 15 S. E. R. 389. " The civil law requires five witnesses to establish sucii a gift; a will requires two v.-ith us. It is diflSealt to suppose that it was not by an oversight that the legislature made no provision respecting gifts of this sort: but, though our law does not define tlie number of witnesses required, it is laid down in all the cases, where judges have commented on the evidence necessary to sustain a donation causa mortis, that it must be established by clear evidence. The proof must be more than is required merely to turn the scale in favor of one of two equally probable conclu- sions." McConnell v. Murraj', 3 Irish Eq. R, 465. That the burden of proof is on the donee to establish all the essential facts constituting the gift, see Lewis v. Merritt, 113 N. Y. 386, 21 N. E. R. 386; Farian v. AVeigel, 76 Hun (N. Y.), 462, 463; Devlin v. Bank, 125 N. Y. 756; Bick v. Reese, 3 N. Y. Supp. 757; Savings Bank v. Look, 95 Md. 7, 13-15; Hebb v. Hebb, 5 Gill (Md.), 506; Morse v. Meston (Mass.), 24 N. E. R. 916; Conklin v. Conklin, 20 Hun (N. Y.), 278, 280; Smith v. Smith (Va.), 23 S. E. R. 280; Parker v. Marston, 27 Me. 196. 205; Boudreau V. Boudreau. 45 111. 480; Smith v. Downey, 3 Ired. (N. C.) Law, 130. 3 Dean v. Dean, 43 Vt. 337, 343. Cf. Hunter v. Hunter, 19 Barb. (N. Y.) 631. 4 De Le villain v. Evans. .39 Cal. 120, 122: Devol v. Dye, 123 Ind. 321, 24 N. E. R, 321 ; Darland v. Taylor, 52 Iowa, 503. 506; Callanan v. Clement, 42 N. Y. Supp. 514; Reynolds v. Reynolds, 45 N. Y. Supp. 338; Leyson v. Davis, 17 Mont. 220, 42 Pac. R 775; In re Wise (Pa.. 1897), 37 Atl. R 936. Evi- dence that when the donee produced the note at the request of a legatee she said that it was hers by gift is admissible to rebut an inference against her ownership of the note from the circumstance of the pro- duction of it, tliough incomjietent as evidence of tlie gift. Harris v. Cable (Mich., 1897), 71 N. W. R 531. § T61.] DOXATIOXS MORTIS CAUSA. lorr his act. This will usiiall}^ be presumed in the absence of evi- dence to the contrary.^ But if he is proved to have been lack- ing in mental capacity, or if it appears that the gift was pro- cured by fraud or deception, or under duress, it will be set aside.- In conclusion it may be said that a legacy to the donee will be presumed to be in satisfaction of a prior gift causa mortis. But the donee may always attempt to prove by parol evidence that the testator intended that he should take both the gift and the legacy.' 1 Van Dusen v. Rowley, 8 N. Y. 358. 2 Todd V. Grace, 33 Md, 188; Samuel V. Marshall, 3 Leigh (Va.), 5G8. 3 "A donatio mortis causa must be completely executed precisely as is required in the case of a gift inter vivos, subject to be devested by the happening of any of the conditions bubsequent: that is, upon actual revo- cation by the donor, by his surviving the donee, by the occurrence of a deficiency of assets necessarj' to pay the debts of the donor. If the gift does not take effect as a complete transfer of ^wssession and title, legal or equitable, it is a testamentary dis- position, and good only if made and proved as a will, . . . Tlie instru- ment transferring a chose in action must be the evidence of a subsisting obligation and be delivered to tlie donee, so as to vest him with an equi- table title to the fund it represents and to devest the owner of all pres- ent control over it, absolutely and irrevocably, but upon the recognized conditions subsequent. A delivery which empowers the donee to con- trol the fund only after the death of the donor, when bj' the instrument itself it is presently payable, is testa- mentary in character and not good as a gift." Basket v. Hascall, 107 U. S. 601), 010, 614 CHAPTER XXXIX. ANNUITIES. The apportionment of annui- ties. Wlien annuities are payable. Circumstances under which the corpus of a fund may be employed to pay an annu- ity — The payment of ar- reiirs from surplus income. Abatement of annuities. Annuities payable while the annuitant remains unmar- ried or while she is living separate from her husband. § 762. Anniiities defined and distin- § 766. guished from rent charges and legacies. 76' 763. An annuity in general terms 768. presumed to be given for life only. 764. Language by which an annu- ity in fee is created — Rules regulating the descent of 769. perpetual annuities. 770. 765. The circumstances under which the annuity may be commuted — The effect of the death of an annuitant where payment is post- poned. § 762. Annuities defined and distingnislied from rent charges and legacies. — An annuity may be defined as a sum of money directed to be paid yearly, or at stated times during- the year, and which is to be paid to a person and his heirs, or to a man for a term of years, or for his life ; and which, when created by a will, is payable primarily out of the personal es- tate of the testator;^ for it sliould be particularly noted that an annuity which is bequeathed in general terms is a general legacy; - like a legacy it is paydhJe jyimarlly out of the iiersonal jrroperty.^ And the word " legacies," when it is used in a will, iCoke, Litt. 1445; 3 Kent, p. 460; 2 Bl. Ccm., p. 40. ■^Ante, %% 390, 391. 3Horton v. Cook (1840), 10 Watts (Pa.), 124, 127; In re Hanbest, 18 Pa. Co. Ct. R 534; Cornfield v. Wynd- ham, 2 Collyer, 184, 187; Sibley v. Perry, 7 Ves. 522, 534; Swift v. Nash, 2 Kea 20. Where the testator be- queaths annuities to A., and gives the residue of his property to B. after the payment of legacies and annui- ties, the annuitants are not entitled to have the residue converted, and a sum to pay the annuities invested in securities approved by the court. They are entitled to have their an- nuities secured; as, for example, by a mortgage on the real estate of the testator. In re Parry, L. R. 42 Ch. Div. 570. § 762.] ANNUITIES. 1079 must be construed to include annuities.^ The will :nay ex- pressly or bv implication provide that if the personal property shall prove insufficient for the purpose by reason of it being depleted to pay the debts of the testator or other legacies, the annuities shall be payable out of the ]n'occeds of the real estate not specifically devised,- or out of the rents of property given specifically. The payment is then a rent charge, which differs from an annuity, with which it is often confounded,^ in that it is a yearly payment which constitutes a burden or charge i(pon a particular piece of land, or on land which is comprised in a residuary or general devise, and which is payable out of the net rents and profits of that particular land only. A yearly payment, which is directed by the testator to be made, and whose character is doubtful, will not be presumed to be a gen- eral annuity rather than a rent charge, or an annuity which is chargeable upon a particular fund of personal property, un- less the intention of the testator to make it chargeable is plainly apparent from the language of the will.* A charge in favor of A., imposed upon lands devised to B., will be a lien upon the net profits of the lands into whose hands soever the lands may come, either by descent or by purchase. Every purchaser of the lands, whether he acquire them b}'- a sale or a morto:a":e, takes them cum onere. and is conclusively presumed to have constructive notice of the charge from the fact that he derives his title from one who takes under tiio will by which the charge is created, and the latter is also con- clusively presumed to have actual notice of the charge.* If iRudolpirs ApiM'jil. 10 Pa. St 34 3 o gij^f.^. Com.. [>. KK (1848); In re McCVuiih, 4 HrH(l.(N. Y.) < De Haven v. Sherman i:{t 111. 115 l.Vi; Conifield v. Wyndhani, 2 Coll- (IHffJJ), 22 N. E. K. It")!; Meiritt v. y S. \V. ]{. Clayton, rjl} Mil. l.V.I; Kol)inson v. 6:M; Pierre|K.nt v. Kdwanls. 'iX^ N. Y. Towiishend.lJ (WW . 12H; Nanh v. Taylor. K\ Sniit li v. I'ellows. i:(l Mass. (ISNI). 20. Ind. :J47. \W.S\ Smith v. I'elU.ws. i:n 22; WyckoJl v. WyckolF. IN N. .1. Kq. Mii-sH. 20,22; Davis' ApiM-jil. h:! I'u. .St. \\'.\, 21 .Ml. H. 287: Larkin v. Ijirkin. :J48. :{.-):;: Mullins V. Smith. 1 Drew. & 17 \K. I. (18111), 401. 2iJ .\tl. R. 10; Sm. 204, 211; Hakor v. iJak.%r.O H. I,. Di.kiii v. IMwards. 4 Hare. 27:1. 27«. (.'UH. 010, «.'{2: Uromley v. Wright. 7 ''Nash v. T.iylor. h;{ Ind. ;J47: Hen- Hare. :{:{4. :no: Di.kermaM v. VA- lop v. (iallon. 71 111. (1^7 1), .VJH; Huk- ;nuities. lOSl annum for ten years to be paid A.," is an annuity for ten years, ov for the life of A. if she die lefore the eocjnration of the ten years, as there are no words of succession.^ An annuity of §400 per annum to be paid to A. " for and during the term of her natural life " for the supjiort of herself and daughter, and when the latter shall attain majority her interest therein to cease, creates an annuity for the life of A., the words referring to the daughter iind terminating her interest only.- The rule that an annuity given in general terms is at least for the life of the annuitant is applied in. determining the dura- tion of annuities which are given expressly /br the education and mo 'nt< nance of minors. In the absence of an express di- rection that the payment is to cease with their majority, the annuity will endure for the lives of the minor children.^ An annuity may be granted payable during the life of another or during a term of years, and it then devolves upon the personal representatives of the annuitant for the next of kin, in case of h;s death during the period for which it is payable.^ Where an annuity was to A. for the life of B., on the death of A. be- fore B. the annuity was directed to be paid to A.'s cliildren, where the testator had given no express directions as to its disposal.^ ^ 704. Lancrnage by wliieh an annuity in fee is created — Bules regulating the descent of perpetual annuities. — An annuity wliich is devised with words of inheritance, as to A. and his heirs, or to A. and the heirs of his hody, is a perpetual annuity. On the death of A. it will go to his hell's by descent, to the exclusion of liis personal representatives. Such an an- nuity is regarded as an hereditament and goes to the heirs of the annuitant.* But inasmuch as a perpetual annuity, though it is an hereditament, was by the rules of the common law ne)t within the statute de donis^ by which all limitations to heii-s of 1 Bat«>s V. Biiiry. 12r> Mass. 8:5. 84. Ky. 50 (181)0), 14 S. \V. It. 0.-).-.. Coti- 2 In n- EnKl.-'s KsUit«, 1.") Pa. Co. Ct tra, Kflly v. ( 'asuy. 17 N. V. S. 80, O'J R, 2«. :n At). \L 7(5. \W I'a. St. 'JHO. Ilnii, 407. Harrett, J., diKMcntiuK'. If 'Wilkiris v. J(>i|litan Trust Co. v. Sea ver, Ix-fii n-vfrst'ii, a.s it i.s un. IL \i errorx-ous. Cli. niv. 'J2, •,'•'!. "Turner v. Tumor. A ml). 770, 7><*J; *bUjVtiUaon'tt Ex'ru v. Stevenson, 1>1 3 Kt-nt, ]>|>. tOO, 471; Coku, Lilt. 2, a. 10S2 LAW OF AVILLS. [§ 704. the body were turned into fees tail in the first taker, a limita- tion of a perpetual annuity to A. and the heirs of his body did not create a fee tail, hut gave Mm a fee conditional, wJdch li- came ahsolute upon his Jiaving issue} On the other hand, an annuity to "^1. forever,'''' w'dhout tcords of inheritance, is per- sonal property, and on the death of A. devolves upon his per- sonal representatives.- And in either case a perpetual annuity, whether with or without words of inheritance, is neither within the statutes of mortmain, nor was it in England liable to for- feiture for treason.' A perpetual annuit}^ ni^y, even independently of statute, be created in a will Avithout w^ords of inheritance,^ though w^ords of inheritance may be required in a grant. Thus, if the tes- tator, giving an annuity in general terms to A., directs it should go over in case he should die without issue,^ or if he confers the full power of disposing of the fee of the annuity upon the annuitant,** or uses other language which indicates that he intends the payment of the annuit}^ to continue indefinitely after the death of the first taker, it will be perpetual.'^ In the case of a gift of an annuity to A. in fee, and, if A. shall die without leaving issue him surviving, then to B. in fee, the limitation to B. is valid as an executory devise after a definite failure of issue, though annuities given by will are customarilv governed bv and construed according to the rules regulating devises,^ The rule of construction, by which the words '"''leaving issue'''' are construed '•'■ having issue ^'' so that the parent is vested with a fee simple upon having issue,^ though he may die leaving no issue, is not applicable to an- nuities. An annuity to A. in general terms, with a gift over on his death " without leaving issue," is defeated by his death 1 Co. Litt. 2, a. Mansergh v. Campbell, 25 Beav. 544, 2 Taylor v. Martindale, 12 Sim. 158, 3 De Gex & J. 232; Stokes v. Heron, 161. 12 CI. & Fin. 161, 179, 190. 192; Kerr 3 2 Black, Com., p. 40; Coke, Litt. v. Hospital, 2 De Gex, M. & G. 575, 20, 144; Potter v. Baker, 2 Eng. L. & 589. In this last case the testator Eq. 92, 94, 13 Beav. 273; Parsons v. directed his residuary estate to be Parsons, L. R. 8 Eq. 260. laid out in the purchase of an annu- *Ante, % 684. ity lor a hospital. 5 Hedges \. Harpur, 3 De Gex & J. ** Bradhurst v. Bradhurst, 1 Paige 129; Pawson v. Pawson. 19 Beav. 146. (N. Y.), 331. « Robinson v. Hunt, 4 Beav. 450. ^Ante, % 363, p. 499, and § 566. "Drew V. Barry, L. Pu 7 Eq. 413; §§ 705, 70G.] ANNUITIES. 1083 leaving no issue surviving, though he had issue which did not survive.^ § 765. The circumstances under wliicli the annuity may he commuted — The eifect of the death of annuitant where payment is postponed. — If the testator directs an annuity to he 2>aid out of a specified portion of his estate, or to Jjc paid gen- eralhj by trustees or executors, they have no implied power to commute it for a gross sum.- Eut when the testator directs his executor or a trustee to invest a stated sum in the j>archase of an annuity^ the sum which is thus directed to be paid is a pecuniary legacy vesting at the death of the testator, and the person for whom the annuity is to be purchased ma}^ consent or demand that it be paid to him at once.^ If the purchase and payment of the annuity are postponed by the trustee for the convenience of the estate, or are to take place after the termi- nation of a life estate, the annuity being vested, and the annui- tant dies before it is purchased, the sum wliich was to purchase the annuity must then be paid to his heirs or personal repre- sentatives,* according to the character of the annuity which was to be purchased.'^ § 7C8. The apportionment of annuities. — At the common law and in equity, in the absence of statute, life annuities are never apportionable. If the person to whom the life annuity is devised shall die between the dates upon which the annuity is payable, his personal representatives cannot recover that por- tion of the annuity which was due the annuitant from the time of the last payment to the date of his death.'* I5ut life annuities which are })ayable to the widow of the Un re Hemingway, L. R. 45 Cli. 815; Day v. Day, 1 Drew. .W.t, r.74; Div. 4."):;. Hayley v. Bisliop, 9 Ves. «. ^ Hayley v. liayley, 9 Ves. 0. •'' This rule is of manifest advanta^o ' Yatf'.s V. Compt^m, 2 P. Wms, liOH; to tlie re|)resentatives of a life annu- Palmer v. Crauford, 3 Sw. 482. 4HH; itant wlio dies before the annuity is Day V. Day, 1 Drew. 569, 574: Yates jmrchased. They stand in his,|)Iaee. V. Yates, 28 B««iv. 6;{7, 041; P'ord v. and liis right to elect between the Batley, 17 Hs to Will. 27 I'eav. :{2!(; Dawson v. llearn, them. Of course if he has elected to 1 Huss. He My. '50(1. take the annuity and it has iieen jiur- * Harnes V. IJowley, 1 Vea .'{O.")-. Daw- cluised, and he has rect-ivi'd it for his w>n V. Hearn, 1 Rush, (t My. (lotj, (H2. life, they laiinof claim tin- gross sum. 6i:?: I'almer v. Craiiff.rd. :{ Sw. 4H2. "Tracy v. Slmng, 2 Conn. (INIS). 4":); Hunt V. KurlMT, 1-. K. :5Ch. Div. ('m9. «i(il; Ihi/.-r v. Meizer. 71 Ind. Ijs.-,. I',.:, I-.... 11 V, |)..lin:iii \, I.' :\ I'm (|s^(h, ."i .'fi, .".J'!; Naliliu' v. Na.linu', KKSi LAW OF WIIXS. [§ 767. testator, i)artieuUirly if they are given hi lieu of doicer, or if given/b;' het' su2>2)0i% are in many respects favored by the law. They are apportionable npon the death of the annuitant, and the amount then due to her should be paid to her personal rep- resentatives.^ And many authorities maintain that an annuity for her life which is payable to a married woman, who is living apart from her husband, for her support and maintenance^ or an annuity for the support and maintenance of minor children^ is likewise apportionable.^ § 767. ^Vheii annuities are payable. — An annuity, like a legacy, in the absence of a contrar}' intention clearly expressed, vests at the death of the testator. Independently of statute the first payment sliould be made at the expiration of one year after that date, unless the testiitor has directed that it should be made at another time.' This is so even where the will di- rects a conversion of land into money which is to constitute a fund from the income of which the annuity is to be paid, and a sale is not made until sometime after the death of the tes- tator.^ But an annuity payable to the widow of the testator, or to a minor for his maintenance and support, constitutes an exception to this rule, and its payment should hegin with the death of the testator.^ 137 Ind. 261, 280; Wiggin V. Swett. 6 236; :^roo^e v. Alden, 80 Me. 301; Mete. (47 Mass.) 194. 201; Chase v. Blight v. Blight, 51 Pa. St. 420; Rhode Darby (Mich., 1896), 68 N. W. R. 159; Island Hospital Trust Co. v. Harris Manning v. Rudolph, 4 X. J. L.(1818), (R. I.), 37 AtL R. 701: Irvine v. Ran- 144; In re Lackawanna, I. & T. Co., kine, 13 Hun (N. Y.), 147. 149; Parker 37 N, J, Eq. 126; Griswold v. Oris- v. Seeley (N. J., 1897), 38 AtL R. 280. wold, 4 Bradf. (N. Y.) 216; Irvine v. 2Sweigert v, Frey, 8 S. & R. (Pa.) Rankine, 13 Hun (N. Y.), 147, 149; 299; In re Lackawanna Co., 37 N. J. Kearney v. Cruikshank, 117 N. Y. 95 Eq. 126; Howell v. Hanforth, 2 W. Bl. (1889), 22 N. E. R. 580: Dubbs v. Wat- 1016. son, 2 Pa, Dist. R. 115: Waring v. 3 Crew v, Pratt (Cal., 1897), 51 Pac. Purcell, 1 Hill (S. C.) L, 199; Hay v. R 44, 46; Kearney v. Cruikshank, 117 Palmer. 3 P, W, 501; Jenner v. Mor- N, Y, 95; Cleveland v, Cleveland gan, 1 P, W. 392: Franks v. Noble, 12 (Tex.), 30 S. W. R. 825; McDonald's Ves. 484, 490; Weigall v. Brome. 6 Appeal (Pa., 1888), 12 AtL R. 478; In Sim. 99; Ex parte Smith, 1 Sw. 349; re Eichelberger's Estate, 170 Pa, St. Leathey v. French, 8 Ir. Ch. 401; 242; anfe, §g 424-426. Thackers Trusts, 28 L, T. (N. S.) 56, *Curran v. Green. 18 R. L 329, 27 In some of the states annuities are AtL R. 596. apportionable by statute. See Acts * Weld v. Putnam, 70 Me. 209; Craig N. Y. 1875. ch. 542. v. Cruig, 3 Barb. Ch, (N. Y,) 76. 1 Richardson v. Hall, 124 Mass, 228, § TG7.] ANNUITIES. 1085 An annuity, unless otherwise stated, is payable yearly, and the court may insert the Avords "j)^/' annum " in a direction to pay an annuity, Avhere the manifest intention of the testator calls for it.' The same general rules are applicable to the payment of sums of money "which are not annuities properly speaking, but rent charges payable by devisees of land.- The testator may, and in many cases does, direct that the annuity shall be paid at a particular time or at certain periods, as quarterly, monthly, or otherwise. In case of abundant per- sonal assets to meet debts and legacies, an executor may be jus- tified in paying an annuity not charged on land, which the testator has directed him to pay monthly, at the expiration of the first month after the death of the testator;^ but he does so at his own risk, and may have to refund it if there shall be a deficiency of assets. The customary and better rule is to make the first payment at the end of one year from the death of the testator, whether the annuity be payable quarterly or otherwise.* 1 Hellermann's Appeal, 115 Pa. St. 120, 8 Atl. R. 768. 2 An annuity payable for seven years in semi-annual instalments, •■ the first as soon after my decease as sufficient funds for the purpose shall come into the possession of the executors, and the remaining ones at the end of every six months there- after," begins to run at the decease of the testator under statute (Civil Code, sec. lo(j8) providing that aimu- ities commence at the decease of the testator. Crew v. Pratt (Cal, 181)7), 51 Pac. R 41. 3 Waring v. Purrvll, 1 Hill (S. C ) Eq. IW. Where an annuity is to b») jKiid on the first day of April in each year, the first jMiyment must l»e made on that first day of April wliich oc- curs after the annuity ha.s vested, no matter liow soon tliat may bo, if it bo at h-ast ono liay aft«'r the devise liaH gone into ntfiM-t. Cray v. Herder, 40 N. J. liA\. 41(5. Hi Atl. \L m'). « Uall v. Uall, 3 McCord (S. C, lb27j, Eq. 281; Griswold v. Griswold, 4 Bradf. (N. Y.) 216; ^IcDonald's Ap- peal (Pa., 1888), 12 Atl. R. 478; Storer T. Prestage, 3 Madd. 167; Williams v. Wilson, 5 N. R. 267; Gibson v. Bott, 7 Ves. 96, 97; Astley v. Essex, 6 L. R, Ch. App. 898; Rawson v. McCausland, 7 Ir. R. Eq. 284. Contra, Wiggin v. Swett, 3Iet. (Mass.) 194. In a re- cent case it was held that an annuity payable out of the income of real and jRTsonal property, but with no time fixed for its periodical payments, (night to be paid (juarterly, upon the jiri'siimption tiiat tiie rents, which comiKisi'd the larger part of the fund u|>on which it was charged, wi-ro j)ayable (juarterly. Reed v. Cruik- shank, 46 Hun, 219. But a legacy to the widow of "an income in cash of $1,20(J a yeriods during the current year at tiie dis- cretion of the c.xecutorH. Anthony V. Anthony, 11 AtL R. 40,55 L'ouu. 300. lOSG LAW OF WILLS. [§ 768. § 76S. Ciroumst.ances uiuler wliich tlie corpus of a fuinl mny be employtMl to pay an annuity — The payments of ar- rears from surplus income. — The g-eneral rule is that a gift of the net rents or profits of the kind, or of the interest or income of a sum of money, is a gift of the corjms} But the gift of an annuity, though payable out of net income, or net profit, or an- nual profits, is a demonstrative legacy with a direction pointing out the source from which it is to be paid.- The only interest Avhich the annuitant takes in the income and profits is the amount irhich is directed to he paid to him. Whether the annuity shall be paid out of the fund itself, in case the net income or profits of the fund are insufficient to pay the annuity, depends wholly upon the intention of the tes- tator as expressed in the will. "Where the annuity is given in general terms Cthat is to say, where no particular fund is men- tioned from which it shall be payable), it is a general legacy, and the annuitant may claim to have a sum set aside out of the corpus of the personal property left by the testator which will produce the annuity. The title of the residuary legatee is postponed to the claim of the annuitant.' The same rule as to the liability of the personal property is applied where the tes- tator directs the executor, in general terms, to purchase an an- nuity of an amount specified, or to invest a sum which will produce an annuity of a specified amount, and the executor invests what he considers a sum sufficient for that purpose, but which for any reason ultimately proves insufficient or inade- quate to purchase the annuity mentioned. Under these cir- cumstances, where the corpus of the personal property after the purchase of the annuity is devised to the residuary legatee, the corpus of the personal property will be liable for the payment of the annuity, so far as the income of the sum set aside proves insufficient.* Here it may be remarked, in spite of some lack of 1 See § 692. of all personal property to A., by im- - Ante, § 406. plication gives the annuitant a right 3 Richardson V.Hall, 124 Mass. (1898), to be paid out of the real property. 228, 237; Semple's Estate (Pa., 1899), In re Nathan's Estate. 16 Pa. Co. Ct. 42 Atl. R. 28; Carmichael v. Gee, 5 R 223. 4 Pa. Dist. R. 149; Id., 36 W. App. Cases, 588; Gee v. Mahood, L. R N. C. 184. 11 Ch. Div. 891, 897; Wright v. Cal- ^ Boonihover v. Bassett, 67 Vt. 327, lender, 2 De Gex, Mac. & G. 652, 656; 31 Atl. R. 838; Merritt v. ^lerritt, 48 ante, § 395. But a specific bequest N. J, Eq. 1, 21 AtL R 128; In re § T6S.] ANNUITIES. luST harmony, thiit it seems that a gift of the interest on a sxim of money named is not an annuity equal to the interest on such sum at the current legal rate of interest, but it is a legacy of the actual interest only. If the whole estate turns out less than the sum named, or if the interest actually received does not equal the interest calculated at the current rate, the annui- tant is not entitled to have the deficiency made up out of the cor_pus. But he is actually entitled to the interest of the sum named whatever it may be.^ If the executor is b}" the testator directed to pay an annuity of a certain amount out of the in- come of the personal property invested, or which he is directed to invest and hold as a special fund, with a gift to other per- sons than the annuitant of the surplus of the income beyond the payment of the annuity,' or if he is directed to divide the corjpus among or pay it to others, icith all accumulations of the income, at the termination of the annuity, the annuitant will be regarded in the nature of a life tenant; and in case of a de- ficienc}' in the annual income, he will not be entitled to have that deficiency made good out of the corj>us,^ nor out of a subsequent surplus of the income. But if the testator has made no distinct disposition of the surplus of the income, so that it devolves upon his next of kin as unbequeathed perse nal property, an annuitant, whose an- nuity has been diminished fur several years becaus:) of the Deais, 16 Pa. Co. Ct. R. 37, 1G9 Pa. St. 32 Beav. 194; Darbon v. Kiclianis, U 4:}0, 32 AtL R 430; Curran v. Green, Sim. mi. 18 R L 329. 27 Atl. R 590; Briy;ht v. Hiiinnell v. Baker. 17 R I. 4 (1890), Lurcher. 3 DeGex«&. Jo. 148: \Vrif?ht 23 Atl. R 911; Einbecker v. Kiu- V. CalleiKler, 2 De (Je.x. M. & (J. <):.2. becker. Ifj2 111. 267, 272. 27."», 44 N. E. 605; May v. Bennett. 1 Ku-ss. 37U; R 426; Irwin v. Wollpert. 12H 111. .')27 Perkins v. CjiU V. Aniennan. 4 Hra«lf. (N. Y.) Itoliinsun, L. R H Ch. Div. 411; Cum- 129; Whit.vni V. Whitson. MN. Y. 47; minKH v. CunnninKs, 146 Mass. 501; In re Dewey's Kstati% 46 N. R R Atlorney-(Jeneral v. Ponlden. 3 Hare 1039, l.'*;{ N, Y. 63. 67, reversing 31 N. ."lm; Miller v. Huil,'ham, 21 Beav. 445. (Engli.sii). 235; She|i|iar'l v. Shepp;ir.l, loss LAW OF WILLS. [§ 7t3S. deficiency of income, is entitled, Avhen tlie income subsequently proves more than sufficient, to have his arrears made good out of the surplus before its distribution among the next of kin.' Everything depends upon the language which has been em- ployed by the testator. If, from his language, it is clearly ap- parent that he intended that a deficiency in the income should be made up out of the capital of the fund, the court will not hesi- tate to carry that intention into effect. Thus, for example, if he directs an annuity to be paid out of the income of the es- tate in such definite and absolute terms as to show that its payment is in no Avise to dei)end upon the amount of the in- come, and then makes a general or residuary gift of the corpus, '•'■after the payment of the annxdty^'' or " suhject to " its ixtyment, it will be presumed that the corpus of the estate should be ap- plied to paying the annuity,- Where the testator gives an annuity, and it clearly appears that it was his desire and in- tention to make a definite and certain provision for the sup>port of the annuitant^ the annuity is an absolute charge upon the corpus of the estate. In such a case its payment does not de- pend upon the amount of the income exclusively, though the testator may have given directions for investing the property, and may have alluded to its paj^ment out of the income thus produced.^ This principle is particularly applicable to the case of an annuity payable to the widow of the testator, and to an annuity out of the income of the residue, where the residuary 1 In re Chauncey. 119 X. Y. 77, 23 Johns. Ch. (N. Y.) 61; Justice v. Jus- N. K R 448, reversing 6 N. Y. S. 183; tice (N. J., 1898), 20 Atl. R. 208; Delaney v. Van Aulen, 84 N. Y. 16; Quinby v. Frost, 61 Me. 277; Curran Bradlee v. Andrews, 137 Mass. 50, 57: v. Green, 18 R. I. 329, 27 Atl. R 596; Craves v. Hicks, 11 Sim. 530, 555; Picard v. Mitchell, 14 Beav. 103, 104; Booth V. Colton,L. R. 5 Ch.684; Tay- Hobson v. Neale, 17 Beav. 178, 182; lor V. Taylor, L. R. 17 Eq. 324. Com- Phillips v. Gutteridge, 4 De G. & Jo. pare contra, Bre\v>?ters Appeal (Pa., 531, 536; Howarth v. Rothwell, 30 1888), 12 xVtL R 467, 470. Beav. 516; Birch v. Sherratt, 2 L. R. 2Comstock V. Herron, 5 C. C. A Ch. App. 644; Gordon v. Bowman, 6 206, 6 U. S. A. 626, 55 Fed. R 803; Madd. 342; Swallow v. Swallow, 1 Xash V. Taylor, 83 Ind. 349; Lindsey Beav. 4-32 ; Play fair v. Cooper, 17 Beav. V. Lindsey, 45 Ind. 552; Davis' Ap- 187, 190; Addecott v. Addecott, 29 peal, 83 Pa. St. 348, 353; Gilbert's Ap- Beav. 460; Perkins v. Cook, 2 Jo. & peal, 85 Pa. St. 347, 351; Degraw v. Hem. 393. Gleason. 11 Paige (N. Y.), 136; Sher- ^Additon v. Snith, 22 Atl. R 470, nierhorn v. Shermerhorn, 6 Johns. (N. 83 Me. 551. Y.) Ch. 70; Lupton v. Lupton, 2 §§ T69, YTO.] ANNUITIES. 1089 disposition which is to take effect after the death of the an- nuitant fails and the corj)us goes to the next of kin as in in- testacy.^ § 760. Abatement of annuities. — "Whether the annuity is payable yearly or at some shorter interval, the amount which may be payable as a first instalment will not bear interest from the death of the testator.^ If it is the manifest intention of the testator that the corpus or capital shall be applied to paying annuities in case of a deficiency in the income, and the capital also proves insufficient to pay all annuitants the full amounts due them, it must be apportioned among them j^ro rata, accord- ing to the value of their annuities.' The value of the annuity of a deceased annuitant will be presumed to be the amount in which his annuity was in arrears at his death, and, if all are dead, the fund ought to be divided pro rata according to the amounts of the several arrears.^ In case all the claimants are living, the value of each annuity ought to be calculated as of the date of the death of the testator, and the fund divided in accordance therewith.^ § 770. Annuities payable while tlie annuitant remains ini- inarried, or while she is living separate from her husband. — The general considerations ap})lieable to devises and lega- cies upon condition that the beneficiary shall not marry, and which are elsewhere fully stated,® are applicable to annuities which are ]>;iyable while the annuitant remains unmarried. Thus, it is well settled that an annuit}'' given by the testator to bis widow while she remains' unnuirried or until her marriajre is valid.^ And it has also been held that an annuity to a nuir- 1 In n; CVxjfKir'.s Est.'ito, 1 17 P:i. St. 301; Tiiylor v. Taylor, 8 Ilaro, !','(); S22, 2;J Atl. H. 4.jG; Mooro v. Aldeii, Tone v. Hrowiio. 5 II. L. C'as. .Vm; Hat- 80 Me. :i01, 14 Atl. R 1«9. An an- t..-ii v. Earnley, 3 P. Wins. l(i;{; aiiti\ nuity wliicii i.s oxpresHly (iirccte^l to ^ 43r). Ih; puid out of any money of tlio es- ^ \Vrou>.;iiton v. ( '<)li|iiiiiMiii, 1 I )o tutti which may cohk; into the luinrl.s fiex & Sni. IJ.jT; Todd v. Uielby, 37 of the executor, and the lirst instal- lieav. ariO; iinti', % 3i)0. ment of wliich in to Im3 paid as Hoon *Todd v. Hielhy, 37 Heav. 'AhW, 350. aft^.-r tho decease of tlio te.stator as *To remedy of the cestui que trust § 790. The liabilitj- of trustees for in- vestment of personal i)roi> erty in trust. 791. The liability of a purchaser for the application of the trust property. 793. Definition of a precatory trust. 79-3. Particular examples of lan- guage which is testament- ary, and not precatory merely. 794. Tlie modern rule as to the creation of precatory trusts. 795. The relations between the tiiistee and the testator. 790. Where the discretion is abso- lute no trust is created. 797. Precatory words in a devise to a person for himself and children. 798. Powers of ajipointment de- fined and classified. 799. Language necessary to be used to create a power. 800. The mode of the execution of the jKjwer. 801. Tlie execution of a power of appointment l)y will by a general devise. 802. E(iuitai)le renieilics for the non-«'xt'cution of jMjwers. 8();J. The frauilulenl and inipro|)er and excessive execution of |iu\\e|-s. 801. The illusory exi-cution of powers. 805. The extinguishnieiit of pt)\v- ers. 800. Who may lie (he donee of a power. H<)7. I'owers when void for remote- 1002 LAW OF WILLS. [§ Y71. § 771. The oriixin and early eniployinent of uses. — An ex- tended discussion of the origin and early liistoiy of uses and trusts in England, or of the rules of equity which regulated them at their incejition, would obviously be altogether out of place in a treatise of this character. The student who may bo desirous of entering upon a more complete investigation of this subject is referred to the numerous excellent treatises in which it is explained in the fullest detail.^ All that can legitimately be attempted in this work is to treat concisely of the rules and principles of equity Avhich are applicable to testamentary trusts and powers as they now exist in the United States of America, not only in those states where the English statute of uses has been, either expressly or by implication, re-enacted, but also in other states where other statutes regulating trusts and powers, and delining those which are valid, exist. In order to understand the law of trusts as it exists at the present day, it is necessary to preface our inquiry into that subject by a short consideration of the events which preceded and led up to the enactment of the English statute of uses. In the first place it will be necessary to call the reader's atten- tion to the fact that for ages in England the only way of con- veying freehold land or other corporeal hereditaments was by a feoffment made with livery of seizin upon or in view of the land itself. This involved an actual transmutation of the pos- session in every case where an estate in freehold was created in land,- whether for life, in fee simple or in fee tail. The person who was enfeoffed of the land must be the actual owner, and he must continue in possession either in person or by means of a subtenant. His powers of alienation were origi- nally greatly restricted, and the burdens Avhich were placed upon him were extremely onerous. The feudal law prohibited the alienation of a feud from one person to another without the consent of the lord, lest a feeble, cowardly or unfriendly tenant miffht be sul)stituted for one in whose strength and bravery the lord had confidence. Nor could the tenant alien, eve)i with the lorcVs consent, until he had procured the consent of his heir apparent as well, who was assumed to have an inter- 1 1 Spence, Equity Jurisprudence, et seq. See also tomeroy and Story p. 452 et seq. ; Lewin on Trusts, § 1 on Equity. ■i 2 Black., p. 311 § 771.] TESTAMENTARY USES, TRUST ESTATES, ETC, 1095 est in the fee which entitled him to be heard.^ And though at a very early date, after the introduction of feudal tenures, a man was permitted to alien land which he had himself pur- chased without the consent of his heir, if it were limited to him and his assigns, it was not until the thirteenth year of Edward I. that lands were made generally alienable by the statute quia emjptores? And it may also be noted that from the date of the Xorman conquest of England down to the passage of the statute of 32 Henry YIIL, lands in England Avere not devisable.^ In view of the stringent character of these re- strictions upon the power of alienation, it is not to be wondered at that a method was soon devised by which they could in part at least be evaded. The land which it Avas intended to dispose of was transferred by a feoffment witli livery of seizin to some person in whom the feoffor had confidence, and this person held it to the use of the former owner. The feoffee to use had the legal title to the land. He was able in law to maintain an action to protect the possession of the land against trespassers and against waste and disseisin. He might, at common law, maintain ejectment against the feoffor to use, and he was under no obligation to the latter, or to any person claiming under him, except so far as he was bound in conscience to pay the rents and profits to the actual owner of the land, or to convey the legal title to some person a})pointcd by the cexitul que use. The fact that a larire amount of the land had been enfeoffed to jM'rsons for the benefit of the various ecclesiastical corporations in oi-dcr to avoid the jirohibition imposed by Mufjna Cliartd^ and tiu; stat- utes of mortmain, upon the holding of lami by religious cor^jo- rations, no doubt first induced the court of chancery to assume jurisdiction of this matter. The cedul que use had no i-enie(ly at law for a refusal on the ])art of the feoffee to us(^ to disposo of the h.'gal title vested in liiui for tin; benefit of the former. ]>ut the ecclesiastics, w hi) tlnn eoiitrolled the court of cli.iu- cery, following the pr-eeedeiits of the civil law, by means of Llui writ called lln; writ, of subpo-na, which issued under the seal of the chancellor ;ind \v;is icturnable before hiiu, at, leni^th found ;in ellicimt, iuetlio\t. liHT, 2m. 'iAitir, ;; a. 2 2 bluck., i>. atttf. 1094 LAW OF WILLS. [§ 7T1. feoffor was inclined to reject his conscientious obligations. The feoffor was stiminoned to appear in court and there to answer under oath how he had disposed of the rents and profits of the land, and he might then be compelled to transfer the land to the person indicated by the cestui que use} For it must be remembered that the ecclesiastics, who at that period controlled the court of equity, applied, whenever it was possible to do so, the rules and maxims of the Roman civil law, of Avhich the jldei comniissuni formed a component part.- "We may well believe that they were by no means adverse, under the pretense of enforcing the conscientious obligation which had been imposed upon the feoffee to use, to assert and exercise a jurisdiction which gave them so large an influence over the estates and actions of the land-owning class, which at that date had a monopoly of the wealth of the community. During the protracted wars in which England was involved with the neighboring states of France and Scotland, and in the ensuing civil discord between the houses of Lancaster and York, with their resultant bloodshed and insecurity to life and property, uses grew to be universally resorted to for the pur- pose of evading the forfeiture of land which was incident to an attainder or a conviction of treason, and for the purpose of preserving to their posterity the landed estates of those per- sons who ventured their lives in the various struggles waged for the possession of the government. And though it Avas at first held that chancery could enforce the use only as against the original i:)erson eiifeoffed or intrusted with the legal title, it was soon decided that a purchaser from him, if he had not parted with vakie, or if he took with notice of the use, and also the heir of the feoffee, took the legal title subject to the use, which would be enforced against him as a binding obligji- tion in a court of equity.'' And, on the other hand, the widow and the husband of the feoffee to use, not being parties to the feoffment, while the}'' were not obligated to perform the use, were unable to enforce, as regards the property in the use, the rights of dower and curtesy which they possessed in land at common law. iPlowden,352;2Black.Coni.,p.3'28; Com., p. 328; 1 Spence, Eq. Juris., 1 Spence, Eq. Jur., § 455. § 436. 2 2 Inst. 2, tit. 23; Sanrlar's Jus- ^% Black. Com., p. 329; 1 Cruise, tinian, gg 337, 338 et seq. ; 2 Black. Dig. 341. § 772.] TESTAMENTAET USES, TKUST ESTATES, ETC. 1095 It followed, as a result of the co-operating causes aoove men- tioned, that, by the time of the reign of Henry YIIL, nearly the whole landed wealth of the kingdom had been conveyed to uses over which the court of chancery alone had jurisdiction, and concerning which an extremely intricate, though logical and orderly, system of rules and principles had been formu- lated, by which the cestui que use enjoyed all the advantages with none of the disadvantages which are attendant upon a common-law estate. The consequence of this was that legal titles to land were thrown into inextricable confusion. The heir, who was favored at the common law, could be unjustly, and often was unintentionally, disinherited. The king, by the employment of uses, lost his forfeiture for treason; and the feudal landlord his right to wardships and to reliefs. The common-law rights of dower and of curtesy were often de- stroyed and always imperiled. At length, to remedy these and other evils deemed to be intolerable, the statute of 27 Ilenr}' YIII., c. 10, commonly called the Statute of Uses, was passed with the intention on the part of parliament of utterly abolishing uses, and transferring the legal title from the feoflfee to the cestui que use} i 772. The exception to the English statnte of uses ^ Statut<' does not apply to cliattels.— The advantages of uses in allowing the creation of estates in real property which were not permitted according to common-laAV rules were so mani- fest, and so greatly exceeded the evils to which uses had given rise, that the courts were iinniiplcd to construe the statute most strictly. Thi; statute of uses, too, was remedial. Owing to this strict construction, uses, instead of being absolutely ai)olished by the statute, were only confirmed and strengthened Vjy it, so tliat, under the name of trusts, they continued to exist in many cases, and still exist to this day. It is impossible, be- •Th« material jmrt of this HtatutH Kiinple or fee tail . . . sliall staml iH as follows: "Tiiat wlicru any imt- and be snizcil, dccmt'd ami ailjud^ced fwm or jiersons Ht*x)d <»dy |k)I- rslatf siiall 1m- in him and llicni afti»r itic!. . . . all ami «'vcry such jH-r- such (luality, nianncr. lorni and con- Hon or Inxly jK.litic that hav«! . . . dition as llicy had lit-furc in or to hu«;h use, conlldcnce or truiit in feo the use." 1096 Lvw OF WILLS. [§ 773. cause of the limited space at our command, to enumerate with any completeness of detail all the refinements and technical- ities by which the operation of the statute of uses was evaded, and the equitable doctrine of trust estates erected into its pres- ent symmetrical proportions. The intention of the legislature was to utterly abolish all uses. This was to be done by exe- cuting the use, — that is to say, by transferring the possession from him who had the legal seizin, i. e., the feoflfce to use, to him Avho had the use, so that the cestui que use was to be made the owner of the land hoth at law and in eq^iity} But the courts, in construing the statute, very soon decided that it had no ap- plication to any chattel interest. The express terms of the stat- ute refer only to estates of which a man '■^ stood or loas seized^ At common law livery was necessary to give seizin, and no liv- ery could be made of any estate which was less than a free- hold.- Hence the statute was construed not to execute uses limited in leasehold estates of land, but only estates for life and estates of inheritance, of which one could be seized.' Hence, if the estate in the feoffee to use is for a term less than a free- hold, he will be still treated as a trustee; and the use will re- main unexecuted so far as his estate extends, although the beneficial and equitable interest in the cestui que use is a free- hold. § 773. Active uses are not executed by the statute. — All uses and trusts are, irrespective of any statute, either active or passive in their nature. "Where the feoffee to use has any act- ive duty to perform, the use is active and it is not executed by the statute of uses. If the feoffee to use Avere by the feoffor directed to pay the net income and profits of land to A. after paving and deducting taxes, rates and repairs,^ or if he were di- rected to apply the rents and profits to the support ^ or to the maintenance and education of the beneficiary," or if he is to receive and pay the rents to A.,^ or if he is to pay annuities 12 Black. Com., p. 333. 6 Silvester v. Wilson, 2 T. R. 444; 2 2 Black. Com., p. 311. Plenty v. West 5 Com. Bench, 201; 3 1 Cruise, Dig., pp. 350, 3.'51, 353; Grothe's Appeal, 135 Pa. St. 585. 1!) Prest. Estates, 190; 1 Spence, Eq. Ju- Atl. R. 1058, 26 W. N. C. 2G5; Eshle- ris., § 466 et seq. man's Estate, 43 AtL R. 201, 44 W. X. 4 s'hapland v. Smith, 1 Bro. C. C. 74. C. 96. 5 Rittgers v. Rittgers, 56 Iowa, 218, ^ Doe v. Homfray, 6 AdoL & Ellis^ 220. 206. § 773.] TESTAMENTARY TSES, TKUST ESTATES, ETC. 109T out of the income,^ or to lease property and collect and pay over the rents of the same,- or to accumulate profits and income, or if he is merely to keep the property in repair, the use, or, in modern language, the trust, is an active one, and it will not be executed b}' the statute of uses.^ In other words, where any control is to be exercised or any duty is to be performed by the trustee, hoivever slight it may he, or where the trustee is empowered to exercise a discretion in the management of the fund, either as regards its investment or the expenditure of the income, the trust is active,^ For, inasmuch as it will be impossible for the feoffee or trustee to perform the duties im- posed upon him unless he is permitted to retain the legal estate in him, it will be conclusively presumed that the feoffor meant that he should hold it. Equity will not permit the legal title to be transferred to the beneficiary under the statute of uses, against the plain intention of the creator of the use or trust that he should have only an equitable interest. And as the statute of uses also provided that the cestui que iise, as soon as the use was executed, should stand seized in the same " quality, manner, form and condition" as he had in the equitable in- terest, and as he had only the right to receive the net income, it is clear that the statute had no application to an active trust or use, for no person can be a trustee for himself. But all passive uses or trusts, where the feoffee to use, or, in modern language, the trustee, has no active duty to perform, are exe- 1 Croome V. Croome, 61 Law T. 814; (Pa.) 514, 530; Shankland's Appeal, Walker V. "Whiting, 23 Pick. (Mass.) 47 Pa. St. 113; Barnett's Apiu-al, 46 ;il3. Pa, St. 392, 398; Lancaster v. Dolan, ^ Sears v. Rassell, 8 Gray (74 Mass., 1 Rawle (Pa.), 231 : AVatson's Ai)i>eal, 1857), 89. 125 Pa. St. 340; Moorlieatl'.s Estate 3 Clark's Estate (Conn., 1899), 39 (Pa.). 30 Atl. K. 017; Aikin v. Sniitli, Atl. li. 155; Cutter v. Ilanl.v, 48 Cal. 1 Sneeil (Tenn.), 304; Brks v. Mar- (1874), 503; 13jl). < Bennett v. Bennett. 00 111. Apj.. 282; Mortfjn v. Bjirrett, 22 Me. (1842), 28; Kirklaiul v. Cox (1K80). 94 111. 412; 2.57; Pwircf5 V. Savage. 45 Me, (1858), Kellogg v. Hale (1883). 108 IIL 108; 90; Leonard v. Hiainond, 31 Mil. 503; Doe v. Briggs, 2 Taunt. 109; Novil v. I>vmar;KN 2 Taunton. lO'.l; V\f- to convey the same to the henedria- ham v. Varney. l.'i N. H. IH'J; Waro ries, is an aetive trust. v. Ilirhardson, '>i .Md. .'lO.'j, ."jIN. -'Doe V. Iioe(Del., 1801), 40 .\ll. It. iio«;. 1100 LAW OF WILLS. [§ Y74. § 774. Uses for the benefit of married women arc not exe- cnted by the statute. — The statute of uses does not execute the use where bind is devised to A. in trust for the benefit of B., who is a married woman, and A. is to hold it for her sepa- rate use,^ though the trustee has no active duties to perform in connection with the trust estate. Thus, a trust to permit a mar- ried woman to receive the rents and profits for her separate use is not executed by the statute,- though the trustee has abso- luteh" no duty whatever to perform in connection with the re- ceipt of the profits by the Avoman. The purpose of the testator to confer an interest in real property upon the beneficiary which will be wholly free from the common-law incidents which attach to land which is owned by her during coverture would be defeated by the execution of the use and the vesting of the seizin and legal title in her.'' The husband has the right at common law, independently of statute, to receive the rents of the land owned by the wife during marriage, and upon the wife's death, having children by him, he may enforce his right of curtesy.* If the property is thus placed in trust for the feinme coverte she may dispose of it by sale, mortgage or de- vise, free from the control of her husband, unless the testator or other person creating the trust in her favor has expressly limited her power of alienation.^ The fact that no use was held to be executed under the Eng- lish statute of uses, where the cestui que use could not hold the legal title in such " quality, manner, form and condition " as he enjoyed the use, furnishes the reason why a separate use for a 1 2 Black. Com., p. 33G. control of her husband, being recog- 2 Harton v. Harton, 7 Term R. 652; nized as a valid express trust by 1 Re- Doe dem. Woodcock v. Barthrop, 5 vised Statutes of New York, page 728, Taunton, 582. section 55, subdivision 3, vests the 3 2 Black., p. 433. whole legal and equitable estate in ^Steacey v. Rice, 27 Pa. St. (1856), thetrustee, subject only to the execu- 75, 81; Williman v. Holmes, 4 Rich, tion of the trust imposed (section 60), Eq. (S. C, 1851), 475, 495; Westcott v. and every estate and interest not em- Miller, 42 Wis. 465; In re Berg's Es- bracedinthetrust, and not otherwise tate, 30 Atl. R 1022, 166 Pa. St. 113. disposed of, by force of section 62, re- Cf. cases ante, § 753. mains in and reverts to the grantor 5 See ante, % 121, and see cases fully and her heirs as a legal estate. (Af- cited ante, % 754. A conveyance of firming 5 N. Y. S. 442, Andrews, J., land to a trustee to apply the yearly dissenting.) Townshend v. Frommer, income, rents and profits to the 26 N. E. R 805, 125 N. Y. 416. grantor's use for life, free from the g 774.] TESTAMENTAKT USES, TRUST ESTATES, ETC. 1101 married woman is not execiited. Cessat ratio ^cessat lex. "Where, by reason of the operation of the modern statutes in the states of the American Union, a married woman may now hold, enjoy and dispose of her real property in the same manner and to the same extent as though single, it would seem that a separate use trust for the benejfit of a married Avonian would be executed by the statute.^ But it must not be understood that even where, by some modern statute, a married woman enjoys all the rights of a femme sole as to her property, a trust for her benefit is alwrnjs executed by the statute of uses. The fact that a beneficiary of a trust estate is & femme coverte does not alone execute a trust in her, provided it is an active trust which is otherwise valid under the statute of uses. Thus a trust in ex- press terms to pa}' the income to K.for her sole and separate use^ free from the control or interference of her husband, is a valid trust at the present day, not because A. is a married woman, but because it is an active trust, vesting the legal estate and seizin in the trustee, and it is for that reason not executed by the statute.^ 1 Sutton V. Aikin, 63 Ga. 753; Bayer V. Cockerill. 3 Kan. 202; Bratton v. Massey, M S. C. 277; Ware v. Rich- ardson, 3 ^Id. 50.1, .148. Tlie fact that the will dechired that the land de- vi.sed should not be liable for the debts of the dauj^hter's hasband did not render the intervention of trust- ees nece.ssary, and thas take the case out of the statute of trusts, since, under the constitution of 1HG8, a MOMian's estate is not liable for her liiLsljand's debts. R0; M.I><,ii;ild V. M<-CJa!l. 18 S. E. R. l.">7, 01 (ia. 301; Sidway v. Nich- ols (Ark.. 1807 1, 34 S. W. li. .V.'0; Rich- ardsfm v. Stod*,\ Ro!u.'h V. Dabney (Ky.), 11 S. W. R «01; In H! Dorncy's K^tate (IHOO). 130 P;i. St. 142. 20 W. N. (;. 44.'). 20 Atl. R. OJo; ApiHjal of Ivhnunds (1871), 08 pjL St. 24; Ix'wIm v. Hryci-. 187 I'o. Si. 302, 41 Atl. It 302; Wall.T*M Adinr v. Catlett's Kx"r, 83 Va, 200 (1887), 2 S. E. R. 280. A trustee, merely liold- ing the legal title to property for the separate use of a married woman, cannot incumber it, without express or implied authority in the deed cre- ating the trust. Seborn v. Beckwith (1890), 3 S. E. R. 450. The fact that at the present time, by statute, a married woman may alienate her property as though she were unmar- ried, does not enable the triLsteo of a coverture trust to sell the trust pn>|>- ertyfor her sujiixjrt, though with iier C(jns»'iit. whenj he has power under the will to sell for reinvestiiifiit only. To iK-rmit this would enlarge the ])owers of tbe trustee bt-yond the terms of the instrument cn'ating the trust, \\i\hh v. Elenniken. 20 8. C. 278, 7 S, R R 5i»7. A dfni.so in trust for a wifn and her children, so that her husband shall not control the sjime, confers no interest in tho children duringthe lifeoftlie mother. Waller's Adm'r v. Catlelts lO.x'r, 83 N'ji. 200. 2 S. E. R. 280. S»;e ul.so aio- Il(l2 LAW OF WILF.S, [§ 774. "Whotlicr tlie married woman shall take the equitable title in fee or for her life only, and whether the trust, being especially created by the will for her separate use during her coverture, shall be executed in her as a legal estate during the thne she is not actualhj under coverture, to revive as a trust upon her re- marriage, are questions to be determined upon the language of each separate will. The purpose of a testator who creates an active trust for the benefit of a married woman " for her sole and separate use during coverture " is now usually to protect the wife from the influence and importunity of the husband. It is meant to prevent the wife from transferring the property to her husband as she might do if she was vested with the legal title. While a woman is unmarried a trust for her separate use, to be free from the control of her husband, though it is- valid as an active trust, is unnecessary. Accordingly if, at the date of the death of the testator, the beneficiary is married, the trust, which is to endure during her coverture, will termi- nate upon the subsequent death of her husband, and she will then take absolutely. And though a devise in trust for a mar- ried woman " for her sole and separate use during coverture, excluding «/^ control of her hushand^'' gives her an equitable estate during coverture, her interest becomes a legal estate upon her husband's death, so that if, by the will, a remainder has been limited to the heirs of her body, the estate in her and in the remaindermen will be of the same quality, and an estate in fee will result to her by the rule in Shelley's case.^ And, upon the other hand, if the woman is unmarried at the death of the testator, and a fortiori if she be then an infant of tender years, so that her marriage, if it shall take place at all, will occur only in the distant future, the use, though active, may be executed at once in her by the statute, where the sole intention of the testator was to give her property a protection which she does not then, and may never, need.- And it has also been held that a devise of an estate in trust for the Donald v. McCall, 18 S. K R 157, 91 Pa. St. 214 (1883). 23 AtL R. 444, 28 Ga. 304 W. N. C. 557. Compare In re Dorney, > Shalters v. Ladd (Pa.), 21 Atl. R 136 Pa. St. 142 (1890), 26 W. N. C. 445, 596, 28 W. N. C. 36. See ante, §§ 655- 20 Atl. R 645: Koenig's Appeal, 57 665. Pa. St. 352; Tucker's Appeal, 75 Pa. 2 Meacham v. Graham (Tenn. , 1 897), St. 354 39 S. W. R 12; Neale's Appeal, 104 §§ 775, 77G.] TESTAMENTARY TSES, TKUST ESTATES, ETC. 1103 separate use of a woman during her marriage is void as a. trust when she Avas neither married nor in contem})Lation of marriage at the date of the execution of the Aviil, though she was married at the date of the death of the testator.' § 775. A use upon a use is not executed by the statute. — The statute executes the use in that person only who is the im- mediate cestui que trust or ^ise. Hence, if A. was enfeoffed in fee of land (he having livery of seizin) to the use of B. and his heirs, to the use of C. and his heirs, the statute would execute only the first use in B.- The seizin was drawn out of A. to B. and his heirs by the statute, but it went no further than B. The first use was executed in him, and this would have ren- dered the second use a nullity had it not been for a considera- tion arising out of the construction of another phrase which was found in the statute. B. and his heirs then had in them the seizin ; but as they were, by the express terms of the stat- ute, to stand seized of the land in " such quality, manner^ form, and condition " as they had before possessed in the use, B. and his heirs took the legal title and the seizin as trustees for C. and his heirs.' So where the property was limited in a mar- riage settlement to A. for the use of I>. for life, and after B.'s death in trust for the use of the settlor for his life, Avitli various remainders over, it was held that the use was executed in the settlor for his life, and that the limitations over Avere not trust estates, but that they Avere contingent remainders at the common law.^ % 776. The statute of uses in the United States.— The Eng- lish statutxull ■^2 Hhu-k. ('•.III.. |t. :5:m. V. Sli.ncr.l, .j Wall. (U. S.) 2(58, 2b2. 'Dyer, lOO; Cua. Tciup. Tul. KJl. llOi LAW OF AVILLS. [§ 777. ton-itory at the date of the Revolution. In some of those states Avhich were originally under the control of otiier governments tlian the English, the English statutes not repugnant to the constitution of the United States and not local in their char- acter have been expressly re-enacted. It is proljable, therefore, that at the present day the statute of uses forms a part of the Ia\v reguhiting land ownership in almost every state of the American Union where it has not been, expressly or by neces- sary implication, repealed.^ § 777. Future and executory uses. — At the common law no estate of freehold can be limited to commence in faturo with- out an intervening estate to support it.'^ The future estate was only valid as a common-law remainder if it were immediately preceded by an estate in freehold. If it were a contingent re- mainder it must vest either during the continuance of the prior estate, or eo instantv that that terminated.'' So, according to common-law rules, no estate in fee simple could be limited as a valid remainder after another precedent estate which was a fee simple.* But when the courts of equity had established uses upon a firm foundation as valid dispositions of property, they permitted not only estates which would be valid at the common law to be created by means of feoffments to use, but very many other interests in land which were directly contrary in their character to all rules of the common law. Accordingly an estate in a freehold in the form and nature of a use might be devised to commence in futuro without any precedent es- tate to support it,^ and a use, called a shifting use, might be limited in fee to A., which, upon some future contingent event, would pass the fee in the use to another. The future estate in the use, like a remainder, might be either vested or contingent. If the future use was vested, and if it 1 Bryan v. Bradley, 16 Conn. (1844), son v. Gibson, 1 Ohio (1825), 439; Gor- 474; Bowman v. Long, 20 Ga. (18o9), ham v. Daniels (1851), 23 Vt. 600; 142.148; Booker V. Carlisle, 14 Bush Sherman v. Dodge, 28 Vt. 20, 31; (77 Ky., 18781, 154; McNab v. Young Ayer v. Ritler, 29 S. C. 135, 7 S. E. R. (1876), 81 111. 11; Milholland v. 53: Croxall v. Sherrerd,5 Wall (U. S.) Whalen, 43 Atl. R. (Md., 1899), 43; 208, 282. Mathews v. Ward, 10 Gill & J. (Md., 22 Black. Com., p. 160; ipost, § 854 1802), 443; Guest v. Farley (1853), 19 3 2 Black. Com., p. 108. Mo. 147; Farmers' & M. Ins. Co. v. *2 Black. Com., p. 172 et seq. Jensen, 78 N. W. R. 1054; De Camp ^See § 778. V. Dobbins, 29 N. J. Eq. 36, 43; Thomp- § 777.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1105 was not embraced by any of the exceptions to the statute of uses elsewliere enumerated/ it was executed at once by the statute, although the actual possession and enjoyment of the land by the cestui que vse were indefinitely postponed. If the future use was contingent it was not executed by the stat- ute until it became vested either by the happening of the event upon which its vesting depended, or on the coming into being of the cestui que use. Where property is disposed of by will to future uses, some of which are vested and others contingent, the former are executed at once upon the death of the testator, while the contingent future uses are executed, if at all, only ■when they become vested upon the happening of the future con- tingency. "Where the vested uses which were executed by the statute of uses exhausted the fee-simple seizin which was in the feoffee to use, so that the cestui que use of these vested though future uses became, by the statute, seized in fee simple of the whole legal estate, an apparently difficult question arose as to the existence of any seizin sufficient to support the con- tingent uses, which had not been executed. For an example of this we may instance the very common case in England of a feoffment to A. and his heirs for the use of B. for B.'s life, which is vested, remainder to the use of B.'s unborn sons in tail (which is a contingent use), remainder in fee to C, which is again a vested use. The statute executes the uses in B. and C, giving B. a life estate at law and C. the fee simple in re- mainder. The inquiry then is whether any one is still seized as feofifee to the use of B.'s unborn sons, or wdiether that con- tingent use has been destroyed or absorbed. By the execution of the uses in B. and in C. the whole legal estate and seizin were apparently drawn out of A. and his heirs and exhausted, liut the statute did not execute the contingent use for B.'s sons '/////// t/i'tj t/yre horn, when the use vesteord Coke that, despite the execution of the vested uses by the statute, by which .iiiiiiiniit ly all tliesei/iii was drawn out of the feolVce, a certain interest G LAW OF MILLS. [§ 778. nish a seizin as a support for the contino^cnt use, and Avliich Avould also enable the feoffee to use to defeat the use by aliena- tion in the same Avay that a contingent remainder might bo defeated hy a feoffment, release or forfeiture made by the par- ticular tenant before the contingent estate vested.^ It was absolutely indispensable that some one should remain, enfeoffed or seized of the fee to support the contingent use. And while the majority of the judges indulged in the fiction of a scintilla j 117' is in the feoffee, though by the statu tor}-- exe- (^ition of the vested uses all the seizin had apparently been drawn out of him, others permitted their subtle imaginations to run riot, and assumed the existence of a seizin " in mihibus, ill mare^ in terra, in custodia legis." It matters not which ex- planation is adopted, we are equally under the necessity of believing in the existence of something, which, if we are con- sistent and logical, we must see has no existence whatever. "We may repudiate the technical reasoning and subtility with which the early judges have surrounded the wdiole subject of contingent uses, and adopt the modern view, commended alike by reason and good sense, that the vested estate which B. and C. take in the example above given is vested in them, not abso- lutely, but subject to the contingent use estate. No interest of any sort whatever remains in the original feoffee to use. But no estate in the contingent use arises until the happening of the contingent event or the birth of the contingent cestui que use, and then the vested estates, which are vested suh modo only in B. and C, ojyen and let in the contingent use which has be- come vested. ]S'o scintilla juris, or any other estate, remains in A., but the contingent uses, when they arise and become vested estates, take effect ex relatione out of the original seizin. Consequently the contingent uses are not defeasible by the feoffee, as is a contingent remainder ^ by the feoffment or for- feiture of the particular tenant. § 778. Shifting, springing and contingent uses. — The oper- ation of the statute of uses in executing the use is delayed, as regards all future uses which are not vested, until the happen- 1 Brent's Case, Dyer, 340a; Chud- 184; 1 Sugden on Powers, pp. 20-48 j leigh's Case, 1 Rep. 120; 4 Kent, 2 Washburn on R P., p. 420; 4 Kent, pp. 230-240. Com., p. 239; post, %% 854, 855. 2 Preston on Estates, vol I, pp. 164- § TTS.] TESTAMENTARY USES, TRUST ESTATES, ETC. HOT ing of the contingent event upon wliicli the future use will vest.^ This event must not be too remote, for a perpetuity can- not be created by a limitation of a use. Future uses may be divided into springing, shifting and con- tingent uses. Springing uses are such as are to arise upon the happening of some future event, but where no preceding use is created. These springing uses do not take effect in deroga- tion of any other interest, except, in case the use is created by Avill, it be an estate in the heirs of the testator, who would have a resulting use. Thus, a future use limited to A. and his heirs on the death of B,, who is alive at the death of the testator, or a use which is to commence on the happening of any other future event, is a springing use. A springing use may be either vested or contingent. In the example given, if A. is a living person at the death of the testator, the use is vested. But if a use is limited to the heirs of B. after a life estate in A., and B. is alive* the use is contingent until the death of B., for, until that event takes place, it cannot be known who will be his heirs.^ Shifting or secondary uses are such as take effect either in defeasance or in derogation of some prior use, and they are always contingent. They must, of course, vest an estate within the period permitted by the rules against perpetuities.' They may be limited either by the instrument creating the prior estate which they defeat, or they may be created by the execu- tion of a power of appointment conferred by the same instru- ment. A shifting use may be limited to arise after the determina- tion of a prior estate in fee, and in defeasance of it, if the vest- ing of the fee is not too remote. J}y means of a shifting uso the fee could be made to pass from one person to another suc- cessively. Such an estate was called a conditional limitation, and, as it always followed a fee simple and defeated it, was not valid at the common law as a remainder, though it was sus- tained when in the form of a future use or trust, or later as an executory devise under the statute of wills. But a futur<> usi^ may bo limite Aiifr, % 777. j)p. flOO-ni.T; 2 f'lMiiso. Difiost. 20:1; 4 2li Waslibiirn on Real Troporty, Konf. Com., p. LMH. r/. }< h:»7. »2 Uliiek. Com., p. iijl; ]>ost. ^ SSj. 11 OS LAW OF AVI U.S. [§ 779. iiiul no porpotuity is tliereby created, because the tenant in tail always has the power to convey tlie fee tail by a common re- covery, and to thus destroy the shifting use or any contingent remainder which may follow liis estate.^ A third species of future use is called a contingent use, which is where a use is limited, somewhat like a contingent remainder at common law, as to the children of A. who may be alive at bis death after a life estate in A. To such uses the rule ap- plicable to contingent remainders is applied, and they are de- feated by the destruction of the particuUir estate,^ or by the fact that the prior estate is not sufficient to support them, as Avhere it is not an estate of freehold. And the general rule is that if a future estate can be construed to be a contingent re- mainder, it will go into effect as such, and not as a shifting or springing use under the statute of uses. Shifting and springing uses are in their character somewhat similar to executory devises. But uses differ from executory devises in that they are usually created by deed, and more par- ticularly because they require that there shall be a person seized to the use at the time the contingency happens and future use vests, for otherwise the use cannot be executed by the statute. If, therefore, the estate of the feoffee is destroyed prior to the vesting of the future use, the use is also destroyed, because it cannot be executed. But as an executory devise is a convey- ance not operating by a transmutation of possession, i. e., by livery of seizin, but wholly under the statute of wills, the free- hold can be transferred to the executory devisee at once when the future date arrives.' And in both cases a fee may be lim- ited to take effect after a fee. § 779. The law of modern trusts. — A use prior to the stat- ute was a mere confidence reposed by one person in another creating a moral obligation which was enforced only by a court of equity acting upon the conscience of the feoffee to use, though to all other intents and purposes the feoffee had an ab- solute and legal ownership. The terms " nse, trust and confi- dence'''' are in the statute of uses, and had the statute in fact abolished uses, as it was intended that it should, no line of dis- tinction between an ancient use and a modern trust would have 1 4 Black. Com., p. 429. 3 2 Black. Com., p. 334. See also 2 2 Black. Com., pp. 333, 334. jiost, %% 874, 875. § TSO.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1109' been necessary.^ After the effective operation of the statute of uses had been nullified by the many exceptions which were made to it, a comprehensive system of new property interests, which were cognizable only in equity, vras created and regulated under the appellation of trusts. A trust is a iise which is not ex- ecuted Ijy the statute^ while all interests of an equitable charac- ter which are converted into legal estates by the operation of the statute of uses may be called uses to distinguish them from those which are not thus executed. A trust is what a use was before the statute. A trust in land is an interest in the land wholly distinct from the legal estate. In so far as the statute of uses has not been repealed in America, no difference exists between the ancient use and the modern trust in principle, though a great difference exists in the application of the prin- ciple and in the rules by which the interest of the c^s^w* que use or trust is protected. For modern trust estates are largely sub- ject to common-law rules. They descend in the same lines as legal estates, and where their alienation is not limited by the terms of the instrument by which they are created, they may be devised, assigned and otherwise disposed of to the same ex- tent as legal estates.- The disposition made by the beneficiary will be binding upon the trustee. But though equity will thus follow the law, it does not always adhere closely to technical legal rules, particularly in the case of testamentary trusts, when to do so would often overcome the intention of the tes- tator. Thus a beneficiary to whom the testamentary trustee is to pay income alone diu'ing his life has no legal interest what- ever in the corjm.s which is alienable, though he may, in the absence of any prohibition in the will, assign his share of the income, and the trustee must pay to his assignee.^ But when the trust, having C(;ased to be active, is executcid by the statute, and the legal title to tin; cdi-jkim vests in the cistnl tjiu' (runty he becoMK.'S capabl*; of giving a valid conveyance of the estate, and a court of (Mjuity will decree that the trustee shall convey the legal (•st;ite as he kIijiII direct.' .■i 7S0. Statutes res^uhilhii; tnisls in \. TniHtH. ,^:{7I. 2 Auli, i 7:»l. ■• » !L S. (sth (.(!.). p. 2I.'»7. ^ W. »In ro Neil, 02 Imw TiriicH, 019. «C«.|)lying the tei-ins of the statute of uses, or of tlie local statute authorizing the crea- tion of trusts. If the trust is ncliiu; and in (me jxrniittxl hij tho stu7'poses of t/ie trust require that the trustee shall tiil-e the fee shnj>Ie of the legal interest in order that those purposes may be carried out, he will take an estate of inherit- ance, thouirh no words of inheritance have been used bv the testator in demising tl\e legal interest. Hence, if the interest given to the beneficiary, though it was devised to him in inde- terminate language, is greater than the legal interest devised to the trustee, the trust estate will be enlarged in the trustee to answer all the purposes of the trust. If the carrying out of the purposes of the trust require that the trustee shall take a fee, equity will create a fee simple in him by implication with- out the use of the word •' heirs." ^ Though the interest in the beneficiaries he expressly for life, the estate of the trustee may •be a fee simple, if the powers conferred upon him by the will require that he shall take a fee for their full and proper exer- cise.' But where the legal estate in the trustee is in express terms for the life of the trustee only, it will not be enlarged tO' a fee simple by the fact alone that the estate in the beneficiaries is a fee simple. In such case, while a court of equity has no power to disregard the intention of the testator by creating a fee where he has given only a life interest, it may appoint a new trustee to execute the trust in the place of the trustee who has died. ^Ante, § 684 Wheeler, 7 Mass. 189, 198; Angell v. 2 Chase v. Cartwriglit, 53 Ark. 358, Eosenbury, 12 Mich. 266; Stearns v. 14 S. W. R. 90; Le Breton v. Cook, 107 Pahiiei;, 10 Met. (Mass.) 32, 35; Boston Cal. 410, 40 Pac. R. 522; Korn v. Safe Deposit Co. v. Mixter, 146 Mass. Cutler, 26 Conn. 358; Deering v. 100, 15 N. E. R. 141; Traphagen v. Adams, 37 Me. 264, 273; Lunt v. Lunt, Levy, 45 N. J. Eq. 448, 453; Cuniber- 108 IlL (1884), 307; Steib v. AVhite- land v. Graves, 9 Barb. (N. Y.) 595; head, 111 IlL 247 (1884); Green v. Welch v. Allen, 21 Wend. (N. Y.) 147: Grant, 143 111. 61, 32 N. E. R. 369; Fisher v. Field, 10 Johns. (N. Y.) 505; Devries v. Hiss, 72 Md. 560 (1890), 20 Carney v. Kain, 40 W. Va. 650. 23 S. AtL R 131 i Farquharson v. Eichel- E. R. 758; Brown v. McCall, 44 S. C berger, 15 Md. 73; Cleveland v. Hal- 503. Compare ante, % 684 lett, 6 Cush. CMass.) 403. 406; Ester- 3De Haven v. Sherman, 131 IlL 115, brooks V. Tillinghast, 5 Gray (Mass.), 22 N. E. R. 711. E. g., where the 21; Mayhew V. Godfrey, 103 :Mass. 290, trustee is to pay income to A. for hi* 292; Stanley v. Colt, 5 WalL (U.S.; life, icith a poicer to selUhe land and 168; Holt v. Holt, 114 N. C. 241, 18 S) to pay the proceeds to A. or his heirs E: R. 967; Govdd v. Lamb, 11 Met. absolutely. Blount v. Atalker, 31 S. C. (Mass.) 87: Greenough v. Wells, 10 13,9 S. E. R. 804; Ricketfs Appeal Cush. (Mass.) 571, 577 ; King v. Parker, (Pa.), 12 AtL R. 60. 9 Cush. (Mass.) 77, 81; Newhall v. § TSl.] TESTAMENTARY USES, TRUST ESTATES, ETC- 1113 And if an estate \wfee simjfle is expi'essly given to ihe trustee , and the purposes of the trust do not require such an estate in him, a resultijig trust ^Yill ensue for the benefit of the heirs of the testator, or for the residuary devisee, in that portion of the beneficial interest which cannot be applied to the original pur- poses of the trust.^ In the absence of statute a devise to a trustee without words of inheritance, where the trust does not require a larger estate, may create a life estate only in the trustee.- But a statute which enacts that every devise of land shall be considered as a devise of the fee, unless that construction shall be inconsist- ent with the intention, is applicable to a devise to a trustee. The trustee takes the fee, but he holds it only for such period as the trust estate lasts, and on the termination of the trust the legal and equitable titles to the fee are merged.^ But in most cases it is held, even where a statute of this sort exists, that where no express estate is, in terms, devised to the trustee, and the purposes of the trust Avill be completely performed during his life, or during the life or lives of the beneficiaries, the trustee will onh' take an estate for his life or the life or lives of the beneficiaries. And, upon the termination of the trust, the le^gal and equitable interests are merged by the stat- ute of uses in that person who, under the will, has the next succeeding estate.* So, even when an estate is expressli/'lim- i.l/f^c, g473. 202; Mayliew v. Godfroy. 103 Ma&s. -'In re Hudson, 13 Reports. 54G; 21)0, 2'Jl: Abell v. Abi-ll. 75 :^Id. 44 Baker v. McAden, 118 N.' C. 740,24 (lSt)2i, 23 Atl. R. 71; Wliall v. Con- S. E. R r,31. verse, 140 JIass. 345 (18SM), 15 N. E. 'Ilaynesuortli v. Goodwin, 35 S. C. R. 000; Perkins v. Stearns. 103 Mass. 54. 14 S. E. R 4er, 7 Cow. (N, Y.) 1n7, 191; Bergen V. Ii«Miiiiftt, 1 Cuines' Ciw. (N. Y.) 16; CuHjick V. Twectdy. 120 N. Y. 81, 26 N. M R 1033; Harris v. Strodl, 132 .\. Y. 392. 30 N. E. R 962 : KorHter v. Winlield, 142 N. Y. 327, 37 N. E. U. II; Clift V. M.»s..s. 116 N. Y. 111.22 N. E. \L 393; Mut. I* I. Co. v. «liii>- man, 108 N. Y. 19; Perkins v. Pres- nell, 100 N. C. 220; Haskell v. House, 3 Brew. (S. C.) 242; Ferebee v. Proc- tor, 2 Dev. & Bat. (N. C.) 439; Gros- venor v. Bowen, 15 R I. 549, 10 Atl. R. 589; Anderson v. Butler, 31 S. C. 183, 9 S. E. R 797; Atkinson v. Bowl- ing, 12 S. E. R 93, 33 S. C. 414; Hornsby v. Davis (Tenn., 1896), 36 S. W. R 159; Beadle v. Beadle, 40 Fed. R 315: Doe v. Shotter, 8 Adol. & Ellis. 905: Queen v. Wilson, 3 B. & S. 201. "The law is too well settled for controversy that real estate, unless otherwise disposed of, goes to the heirs and not to the executor,and that a mere power given to the executor to sell real estate does not give him a right to tlie possession of the land; that to entitle him to the possession the land or its usufruct must be ex- pressly, or l)y necessary inqilication, given to him by tiie will." By the court, in liubottom v. Morrow, 24 Ind. 202, 204. A mere naked i)<>wer of sjile given to exccutdrs to bo exe- cuted if the property cannot be sat- isfactorily divided is totally extin- guished where tlie beneficiaries agree to divide without a sale. Clia.sy v. (Jowdry, 43 N. J. Eoses Kpecilied by mortgage or charge of tlie unsold real estate. In re itellin- gi-r. 07 Law .J. Cli. 5S(). 2 Cli. 531, 79 J>aw T. (N. S.) 51; lluivll v. nclliiiger. Id. "Gilbert V. Penllold, 56 I'ac R. 1 107 (Cu!., 1899> 1120 LAW OF WILLS. [§ 7S3. So a general power conferred on the executor to sell land as the " proper and convenient settlement of the estate may re- quire " does not authorize a sale of the hind which composes the bulk of the testator's estate merely to facilitate division among- the devisees, but the power of sale can only be exer- cised to raise money to pay debts, legacies and administration charges, where the personal property proves insufficient for the purpose.^ If the power of sale conferred on an executor expressly refers to " all the land or real estate of the testator ^"^ the executor may sell all land, wiiether it is devised by the will or not.- A power of sale conferred upon the executor *' to sell any or all the land " of the testator authorizes a sale of a particular parcel of land, if the sale becomes necessary, although the testator has, in a sul)sequent clause of the Avill, directed it to be set apart and used for charitable purposes.^ And the fact that an executor to whom a power of sale over all the land of the testator is given is himself a devisee in absolute terms of a portion of the land is not material to prevent him from exercising his power of sale as an executor to dispose of land to Avhich he has an absolute title in fee simple. But the power of sale which he has as an executor does not cut down his absolute title in fee, and if it is not exercised for the pur- poses required it will be extinguished. Independently of stat- ute, full power to sell or otherwise alien "as fully as the tes- tator would if living" may be validly executed though no license has been obtained from the court.* But where no ex- 1 Allen V. Dean, 148 Mass. 591, 20 IG R. I. 98, 18 AtL R. 198; Anderson N. E. R. 314. V. Butler, 31 S. C. 183, 9 S. E. R. 797. 2 Hale V. Hale. 123 111. 399, 17 N. E. An executor, in whose discretion the R. 470; Petit v. Railroad Co. (Midi., mode of selling is placed, may sell 1897), 72 N. W. R. 238; Ness v. David- either by public or private sale, son, 45 ]Minn. 424, 48 N. W. R. 10; Wood v. Hammond, IG R. I. 98, 18 Brown v. Brown, 106 N. C. 451, 11 Atl. R. 198. S. E. R. 647; Saunders v. Saunders, 3 In re Rogers' Estate, 172 Pa. St. 108 N. C. 327, 12 S. E. R. 909; Epley 428, 435, 39 Atl. R. 1109. V. Epley, 16S. E.R321,111 N. C. 505; ^Woolworth v. Root. 40 Fed. R. Knapp V. Knapp, 46 Hun, 190; Pol- 723; De Zeranikov v. Burnett (Tex. lock V. Hooley, 22 N. Y. S. 215, 67 Civ. App., 1897), 31 S. W. R. 71; Iq re Hun, 370; Cruikshank v. Parker, 51 Williams, 92 Cal. 183, 28 Pac. R. 227; N. J. Eq. 21, 26 AtL R 925; Adam's Allen v. Barnes, 5 Utah, 100, 12 Pac. Estate, 148 Pa. St. 394, 23 Atl. R. 1072, R. 912; Schroeder v. Wilcox (Neb.), 30 W. N. C. 32; O'Rourke v. Sherwin, 57 N. W. R. 1031; Smith v. Swan, 3 15G Pa. St. 285; Wood v. Hammond, Tex. Civ. App. 563, 22 S. W. R. 247. § 784:.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1121 press power of sale is given,^ or where the power of sale is to be exercised for a special purpose, or in a special manner not exjyrcssJij autlwrlzed hy the will, the permission of, or confirma- tion by, the court is always desirable, if not indispensable.'^ Thus, though lands are liable for the debts of the testator, the executor is not able to sell them if not expressly empowered to do so by the will, unless with the permission of a court of probate.' If the statute requires that the sale shall be con- firmed by the court of probate, a good title cannot be given until a decree is obtained confirming the sale.* § 784. The execution of a power of sale by surviving exec- utors. — A power of sale to several executors is a joint power, and independently of statute the joint power can only be exer- cised by all on whom it is conferred.' By statute 21 Henry Till., chapter 4, which is incorporated by implication, or has been expressly re-enacted in almost every state of the Union, a power of sale which is given to several executors, all of whom do not jijualify, may now be executed by those who do qualify.^ So where a power of sale or any other power, whether it be a power appurtenant or collateral, is conferred upon two or more executors, and some renounce or fail to qualify, those who do qualify may execute the power.' The execution of the power will be valid both at law and in equity whether the executors or trustees were expressly appointed as tenants in common or as joint tenants.^ AVhere the power is given to several exec- J Stevens v. Burgess, 61 Ma 89, 97. conditions prescrilted to exist Beers 2 Wood V. Hainniond. 16 R. I. 98; v. Narratnore, 61 Conn. i;j, 23 Atl. R. Pennsylvania Co. v. Bauerle, 143 Pa. 1061. 8t 459, 33 N. E. R 166; In re Bag- * Dyer, 219o; Cro. Car. 382(t. gers E.state,78 Iowa, 171,42 N. W. « Co. Lit. 1126, 113a. 1816; Shep- R. 639; Bates v. Leonard, 99 Midi, jianl's Touch., p. 429, pL 9; Dyor. 177; 296. r,8 N. W. R. 311. 4 Kent, p. 319. 'Gibson V. Farley. 16 Mass. 2H0, 284. ^ By the terms of a will the wliolo *C{irt«r V. "Van Bokkelen, 20 Atl. estate was to "he ajipraised and R. 781, 73 M(L n.!. See also Seeger divided, hy my exi'<-utors hereinafter V. L- intercst of m_v estate, to k<'11 any jmrt pniisement and division hy the «tnly thereof for the improvement and «'xecutor who (pi.-ililied wito valid, benofitof the remainder." tlietrust«'e Smith v. \Vinn (.S. C), 4 S. K. R. 210. may exerciw! the |»ow«'r<»f siile when- " Wardwell v. M«'I)owcll.3l 111.3(54; ever, in his discretion, ho finds the Warden v. Richard, 11 (iray (.Ma^s.;, 71 lll'li I. AW OF WILLS. [§ TS4. utors and all q^'ol'fi/, tlio power may be executotl by the sur- yivoi's after the death of one or more.' And this is a fortiori the case where tJie testator has expressly provided that a power shall be executed by his executors or trustees and hy the survivor or survivors of them? Where a testator gives lands to one trustee named, with discretionary power of sale to " executors, . . . or the survivor of them, as executors or trustees," con- fiding in the discretion of said " executors and trustees," the power is annexed to the olfice, and not to the person named as trustee, and his successor has the power to convey.' But where a power has been conferred by the testator upon several exec- utors or trustees jointly, and all are alive and have accepted the office, the instrument purporting to execute the power must be executed by all of them.* Where the power of sale is ex- pressly conferred upon the majority of the executors named in the will, an execution by one executor is invalid,'^ unless the sale 277; Chandler v. Rider, 102 Mass. 268, 271; Putuaiu v. Fisher, 36 Me. 523; Vernor v. Coville. 54 Mich. 283; Herick v. Carpenter, 92 ]\[icli. 440, 52 N. W. R. 747; Lippencott v. Wilioff (N. J. Eq., 1890), 33 Atl. R. 305, 307; Weimar v. Fath, 43 X. J. Law, 1; Denton v. Clark, 36 N. J. Eq. 534: Hyatt V. Aguero, 1 N. Y. S. 339; Jack- son V. Ferris, 15 Johns. (N. Y.) 347; Taylor v. :Morris, 1 N. Y. 341 ; Niles v. Stevens, 4 Denio (N. Y.). 402; Zebach V. Smith. 3 Binn. (Pa.) 69; In re Bailey, 15 R. I. 60, 1 Atl. R. 131; De Saussure v. Lyon, 9 Ricli. (S. C.) Eq. 492; Smith v. Winn, 27 S. C. 591, 4 S. E. R 240; McCown v. Terrell (Tex., 1898), 40 S. W. R. 54; Melms v. Pfister, 59 Wis. 186. 189; Adams v. Taunton, 5 Madd. 435; Forbes v. Peacock, 11 M. & W. 6*; Peter v. Beverly, 10 Peters (U. S.), 532, 564. 1 Security v. Cone, 64 Conn. 579, 31 Atl. R. 7; Wolfe v. Hines, 93 Ga. 329, 20 S. E. R. 322; Gut man v. Buckler, 69 Md. 7; Poole v. Anderson, 80 Md. 454: Parkers v. Sears, 117 Mass. 513, 521; Gould v. Mather, 104 Mass. 283, 290; Carroll v. Conley. 56 Hun. 649; Cowles V. Reavis. 109 N. C. 417; Bred- enbergh v. Barden, 36 S. C. 197, 15 S. E. R. 372; Chapman v. Connell, 30 S. C. 549; McDonald v. Hamblen, 78 Tex. 628, 14 S. W. R. 1042. ^ Safe Dep. & Trust Co. of Baltimore v. Sutro, 75 Md. 361, 23 Atl. R. 732; Boutelle v. Savings Bank, 17 R. L 781, 24 Atl. R. 838; Freeman v. Pren- dergast, 94 Ga. 869; Bradford v. Monks, 132 IMass. 405, 407. It is al- ways necessary, in order that the grantee shall have notice, that the death of the executor or of the trus- tee shall be recited in the deed exe- cuting the power. 3 Boutelle v. City Sav. Bank, 24 Atl. R. 838, 17 R. L 781. ^Shaw V. Canfield. 86 Mich. 1; Pennsylvania Co. v. Bauerle, 143 111. 459, 33 N. E. R. 166: Wright v. Dunn, 73 Tex. 293. 11 S. W. R. 330. A stat- ute providing that, in construing law-s, words pvirporting to give a joint authority to tlu-ee or more public officers or persons confer tlie power on a majority, unless otlier- wise provided, does not apply to sucli a case. Crowley v. Hicks, 72 Wis. 539, 545, 40 N. W. R. 151. 5 Dodge V. TuUoch (Mich., 1897), 68 N. W. R. 239. § TS4] TESTAMENTARY USES, TRUST ESTATES, ETC. 1123 be subsequently ratified by the other executors.* The English rule is that where a power is given to two or more persons oiominatim, whether individually or as executors, it does not survive without express words to that effect; but where it is conferred on several executors or trustees as a plural body, as to " mv executors," or " mv trustees," it will survive so Ions: as two or more executors or trustees survive.^ AVliere a power of sale is exjv'essly limited to the acting trustees and to the sur- vivor and to those who may succeed to the trust, a deed is in- valid which is executed b v the survivor, no trustees havino- been appointed in the place of those who had died.^ A mandatory power of sale, or any other power which is to be exercised ratione officii by a single executor, and he dies or resigns before the execution, may usually be exercised by the administrator with the will annexed, under an order of the court.*. Jjut where tlie power conferred upon the executor is a per- sonal, confidential or discretionary power and not ratione officii^ it cannot, after the death of the executor, be exercised by the administrator with the will annexed.'^ This would be the case • Dunn V. Renick. 80 MJ. 4.J4, 22 S. E. R. GO. -Sug'Jen on Powers. .^ 1">9. The lK)\ver of the testator to direct that a ix)\ver of sale or other jwwer sliall be e.xerciseJ jointly and not Hi'vcvalbj, or to reijuire that all the executors aiijtointeil by him shall join in its execution, with the alternative that it shall expire ami be void in case any one of two or UKjre persons wlio are to execute it sliall hiss.) 329. * Lucas V. Price, 4 .\la. 097;^ Palmer V, M, Jt IIH; .Mor;,'!iri, Kx piirU-. 10 Vos. 101; I.iiw Tiiiifs. ."i; .Murliii v. Liivciioii, IloiM- V. I, i. I. tali. 21 liciiv. 1h:{; Hcllis' L. U. W K.|. .'•(i:?. TriiHtH, I.. IJ. :. Cti. I). r.Ol. ■' Wiliiiiiiis V. .Molii'if, 15 Ati. li. M»2, 2 [n H' Marsliull, USirn. .Vm. CO Vt. :]?>*. »Lin(l84ill V. Thjurkcr, 12 Sim. 17s. 1128 LAW OF WILLS. [§ 78G. object if the trustee devises the legal estate, as he has a right to do, to another who is equally a stranger. But in one well- considered English case where trustees had discretionary pow- ers of distribution and appointment among the beneficiaries, and the survivor of them died, the court held that his devisee could not exercise the discretionary powers vested in his devi- sor.^ The distinction is apparent between a devise made under such circumstances, and a devise of a trust estate, where the powers which attach to the trust do not call for the exercise of any discretion in a trustee, and may be performed by one per- son as well as by another. Even in the case of a trust for sale or a power of sale created in A. and his heirs, or in A. and B., or the survivor or the heirs of such survivor, where the direc- tion to sell is mandatory, a sale being required to be made with all convenient dispatch, and the only discretion being a limited one as to time and mode of sale, it seems that the devisee of either trustee cannot exercise the power of sale any more than could an assignee of either trustee.^ The creator of the trust liaving selected a particular person or class of persons to exe- cute the power, its execution by another is invalid under the rule that the donee of a power cannot delegate its exercise to another. But, on the other hand, in case the devise in trust is not to A. and his heirs, but to A., his heirs and assi(/ns, the devisee of the trustee may execute the power of sale or other discretionary power. The distinction arises from the use of the word assigns in the words of creation of the trust. This word is presumed to include a devisee, to whom, therefore, the trust property devised passes under the terms of the original trust and subject to it.' A devise of a trust estate, by a trustee tak- 1 Cole V. "VVade. 13 Sim. 91. test against the proposition, which '-Cooke V. Crawford, 18 Sim. 91; was stated in the course of tlie argu- Bradford v. Belfield, 2 Sim. 264; Ste- ment, that it is a beneficial thing for vens V. Austen. 30 L. J. Q. B. 212. a trustee to devise an estate whicli is 3Titley v. Wostenholme, 7 Beav. vested in him in that character. My 425; Mortimer v. Ireland, 6 Hare, 196; opinion is that it is not beneficial to Ockleston v. Heap, 1 De Gex & M. the testator's estate that he should be 640. " It is plain that when C, who allowed to dispose of it to whomso- was the sole trustee of the legal es- ever he may think proper; nor is it tate in fee, saw fit to devise the legal lawful for him to make any disposi- estate that was vested in him, lie did tion of it. He ought to permit it to an act which he was not authorized descend; for in so doing he acts in to do. And here I must enter a pro- accordance with the devise made to § 786.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1129 ing under a trust, to the trustee, his executors and administrator, does not pass the trusteeship to the devisee, for he cannot claim, under the limitations of tlie trust.^ In all the cases where the trustee has devised or bequeathed the trust property' to persons not mentioned in the creation of the trust to succeed him, the devise, though valid to convey the legal interest, does not oper- ate as a transfer of the office of trustee nor as a delegation of any of the powers conferred upon the first trustee. The court of equity will appoint a new trustee and decree that the devisee shall convey to him, and direct an execution of the powers in question so far as possible in accordance with the intention of the original trust arrangement. In Xew York state and perhaps in some other states by stat- ute it is provided that, upon the death or the insolvency or the renunciation of the trustee, the estate shall vest in the supreme court, which has then jurisdiction to appoint a new trustee.' In those states the devisee of a trustee need not convey to a beneficiary.' The trustee appointed by the court succeeds to all the rights and ])owers of the original trustee,* unless the power is discretionary and involves a personal confidence re- posed in the former trustee. If powers are given to the trustees ratione officii, as to the trustees generally, they may be exercised by a new trustee appointed by the court or by the survivors of several trustees. Thus, where a power of sale is vested in a trustee, and he has an unlimited discretion, personal to himself, wiiether he shall exercise the power of sale at all, a new trustee cannot exercise liiiii. If Iio devises the estate, I am i Wilson v. Bennett, 20 L. J. Ch. 379; inclined t<> think th;it tht* court, if it In re Hurtt, 1 Drew. ;319. were urged to do so, would order tlio - Kirk v. Kirk, 1:57 N. Y. r)10, 'X^ N. cost of Kitting the le;;al estate out E. R. ^)')'l; N. Y. Security & T. t'o. v. of the devisee to be borne by the es- Gas Light Co., 51 N. E. li. JU!»2 (N. Y., tate of the trustee. I see no substan- 1899). tial distinction Ijetween a convey- 'Robinson v. Schniitt, 17 App. Div. ance by act inter viros and a devise; 628, 45 N. Y. S. 253. for the latter is nothing but a;)o«/. < Smith v. Hall (R I., 1H9H), .37 Ati. mortnm conveyance, and if tin? ono R. (S9H; Wcmyss v. Wliite, .'M N. E. R, i.s unlawful the other nnist be unlaw- 71H, 159 Mass. IHl; Freeman v. Pren- ful." liySir L. Shadwi)er v. Illitiois Cent. R. Co., 38 585; Salow.'iy v. Struwbridge, 1 K. & App. Div. 22. 57 N. Y. 925; Lahey v. J. 37 U Korl right. 30 N. E. lt.9S9, 132 N. Y. 450. 1130 LAW or WILLS. [§ T8C. the power giveii.^ But where the power must be executed by a trustee in order to carry out the intention of the testator, a different rule is applied. Where a sale is imperatively directed, and the trustees"* discretion is only exercised in selecting the time or manner of sale ("as w^ienever and in such manner as they see fit ""), a duly towards others is created that the court Avill enforce. The new trustee will have the rights and powers of his predecessor whose place he occupies. Equity will not per- mit the positive rights of the beneficiary to be prejudiced be- cause of accident, or the neglect of a trustee.- 1 Osborne v. Gordon, 86 Wis. 9'>. 98; and compare Cole v. Wade, 16 Ves. 27, 44; Lewin on Trusts, p. 289. A bequest in trust to pay the income of the trust fund to the child of the testator during her life, " and as much of the principal as shall seem to the trustee proper for her su]3port and maintenance," does not create a mere naked power in the trustee which he may execute or not at his discretion, but imposes an imperative duty upon him to pay over so much of the principal as may be necessary for the support of the beneficiary. Hence the trust may be executed by a trustee appointed by the court upon the death of the original trustee, under R S., § 2094, which vests in such trustee all the powers and duties of the original trustee. Os- borne v. Gordon, 86 Wis. 92, 98, 56 N. W. R. 834. 2 Wells V. Lewis. 4 Met. (Kj-.) 271; Chase v. Davis, 65 Me. 102; Freeman V. Prendergast, 94 Ga. 369; Gibbs v. Marsh, 2 Met. (Mass.) 243, 253; Tainter V. Clark, 13 Met. (Mass.) 220, 225; Parker v. Converse, 5 Gray (Mass.), 336, 341; Nugent v. Cloon, 117 Mass. 219. 221: Wemyss V. WJiite, 159 Mass. 484, 34 N. E. R. 718; Cleveland v. 1^1- lett, 6 Cush. (Mass.) 408; Stewart v, Pettus, 10 Mo. 755; Bain v. Matteson, .54 N. Y.663, 667; Pedrick v. Pedrick, 167; Zebach v. Smith, 3 Binn. (Pa.) 69: Greer v. McBeth, 12 Rich. Eq. (S. C.) 254, 257: Osborne v. Gordon, 86 Wis. 92, 98, 99; Lane v. Debenham, 11 Hare, 188: Warburton v. Sands, 14 Sim. 622: May v. May, 17 S. Ct. 824 (U. S.. 1897). Where an executor had a discretionary power to pay a leg- atee certain sums for liis support, but if the latter did not make proper use of his money, then only to pay him enough for his board; and. if the son should die, then to his surviving issue absolutely, the court said the power was given to the executor ratione officii and might be exercised by his successor. Pedrick v. Pedrick, 50 N. J. Eq. 479, 26 Atl. R. 267. The su- preme court of the United States has recently affirmed the well established doctrine that the testator may dele- gate to persons who are named in the will the power to remove a trustee and to appoint a new trustee in his place. This rule was discussed in a case where the heirs of the testator were given power *' by their unani- mous resolution," and with the con- currence of the widow of the testator, to remove a trustee for good and sufficient cause. No necessity exists to resort to a court of equity to deter- mine the sufficiency of the cause, in the absence of a positive showing that the power to remove the trustee 48 N. J. Eq. 313, 21 Atl. R. 946; Frank- and to appoint a new one has been lin V. Osgood, 14 Johns. (N. Y.) 558; unjustly exercised. May v. May, 17 Jackson v. Given, 16 Johns. (N. Y.) Sup. Ct. 824. § 7S7.] TESTAMENTAKY "USES, TRUST ESTATES, ETC. 1131 § 787. The removal of trustees. — A trustee may be re- moved and a new trustee appointed in bis place wben it shall aifirmatively appear to tbe court tbat tbe interest of tbe cestui que trust requires it. A trustee who becomes non comjws mentis^ permanently leaves the state, or wilfully neglects the perform- ance of the duties of his trust, as where he neglects to pay over or account for income, or to meet the debts of the estate, ma}^ be removed.^ And though no positive acts of neglect or wrong- doing by the trustee shall appear, if such a state of mutual ill- will exists between him and the beneficiary, without the latter's fault, that to continue him in his office of trustee would be detrimental to the latter, he ought to be removed.- It will be presumed, in the absence of evidence to the con- trarv, that a trustee or an executor has properly performed the duties of his office. The burden of proof to show wilful neglect or misapplication of the trust funds upon his part, or to show that a state of affairs exists which renders it necessary to re- move him, is upon the applicant for his removal. A gocnl and sufficient cause for the removal must be shown. Merely to show that circumstances exist which mai/ render his administration of the trust detrimental to the beneficiaries is not enough to effect his removal and the substitution of a new trustee. The circumstance that the testator was acquainted with his qualifi- cations for the carrying out of the trust, and that he has selected him, and not another, to execute his testamentary intentions, should have some weight with the court in overcoming frivo- lous objections not involving any flagrant bi'each of trust.* liy modern statutes the new trustee becomes vesteil on his appointment ; son v. Wilson. 145 ]\IasH. 4110. 14 N. E. (}re<;n V. P.laekwell, :n N. .J. E(|. :{T; R. 521; Nathan's Estate (Pa.. 1M)!»), 4:5 In re .M((;illivray. :v.\ N. E. R. 1077. All. R. M-l 1:{H N. Y. :{0><; Sliejilif res cite.l sii]ir.lriiir V. W,K„iruir, 11 X. J. L".' App. Div. 'J I, iii.i.liliiMi; First Nut- Eq. 70. IC, .All. R. t. ]5ank v. Niiti<.iial HidiKhviiy Bunk, 2Ven!ibl.-s V. Morris. 7 T. R 'H2; 51 N. R li, ;{!»s. lod N. V. l.-.U. Silv<»*t«;r V. Wils^m. 2 T. R. 411; I.<.ril < I'ollitz v. Trust (\... .^J 1-\'(1. R. 210; Say jiml .S<-al v. Jones, :j Hro. C. C. 1 III. liolx-rlson v. \:in ( 'l«'v<>, I'Jl) Irnl. 217, And Hoo aiwj Do\vne« v. (iraz<'l)r(«>k, 20 N. K. U, HOU; Manson v. Duncan- .i Mer. 2(X), 20^; Selby v. Alston, 8 won. 17 S. Ct. •M7; In ro St »• wart, 5 VcH. im. N. Y. S. 127, 120 N. Y. 210, 27 N. E. R. 'Judgment (1897), 47 N. Y. S. HbO, 2oy. llOi I.-VW OF WILLS. [§ 789. are incumljent upon all trustees, whatever may be the nature of the trust estate, and whatever may be the special duties of the trustee in the particukir case. Thus, it is the duty of a trustee, immediately upon his acceptance of the trust, to re- duce all property which is outstanding' into his possession with- out unnecessary delay. If the pi-opcrty consist of debts, he must collect them as soon as possible. If the trustee shall un- reasonably delay to collect money which was due on debts forming a part of the trust estate, or if he shall neglect to take possession of land promptly, he will be personally liable for any damages which may result to the beneficiaries by reason of his negligence and delay. ^ The trustee is permitted to exercise a reasonable discretion in instituting legal proceedings to collect debts due the testa- tor. If, from all the facts, a demand appears to be collectible by action, a failure to institute legal proceedings promptly mav be nefflis^ence for which the trustee or the executor would be chargeable. On the other hand, a trustee or other fiduciary may refrain from litigation where there is a likelihood of large expense being incurred, and little or no probability of a suc- cessful termination of the action, or where a judgment would be uncollectible. If the duties of the trusteeship are so nu- merous and onerous that the trustee is unable to perform them himself, he may employ trustworthy agents. Thus, a trustee may employ an agent or attorney to collect moneys outstand- ing, and, unless he is guilty of negligence in the selection of the agent, he is not liable for losses occasioned by the agent embezzling or losing the money.- So a trustee may employ brokers or agents to purchase and sell the property under the trust, if such a method is the customary and usual one pursued by persons acting with reasonable care and prudence in the ordinary course of business of a like nature, and may commit to the care of these agents the trust pro])erty. If the trustee has exercised dilis^ence in selectinfj: such ai^ents he is not liable for the loss of the property while it is in their hands.'' The 1 Hunt V. Gontrum, 80 Md. 64, 30 Brier, Brier v. Evison, L. R. 26 Cii. Atl. R. 620. Div. 238, 242, 243. 2ExparteBelchier, Amb. 218; Tel> 3 Speight v. Gaunt, L. R. 9 App. ber V. Carpenter, 1 Madd- 291; In re 1; Lewis v. Reed, 11 Ind. 239; Leg- gett V. Hunter, 19 N. Y. 445. § TS9.] TESTAMENTARY USES, TRUST ESTATES, ETC. li; trustee or executor, as soon as debts outstanding are collected, ought to deposit the proceeds in his name as trustee in an au- thorized depository for trust funds. If he shall keep the trust money on deposit in a bank to await investment, or to pay debts or legacies, or for otlier trust purposes, he will not be responsible in case of the failure of the bank.^ A trustee is culpable if he shall permit the money to remain out of his actual possession for an unreasonable time. An ex- ecutor who permits money to remain on deposit in a bank more than a year after the death of his testator, and perhaps for a shorter period if all the debts and legacies have been paid,- or a trustee who permits trust money to remain on de- posit when the testator has directed its investment otherwise, or when the court has directed him to pay it over to his suc- cessor,' or to deposit it with the clerk of the court,* will bo liable for the principal in case of the failure of the bank and for loss of income otherwise.^ A trustee should retain and de- posit trust funds separate from his own. If he siiall commingle trust money with his own so that they are indistinguishable, the cestui que trust is entitled to a preference over other cred- itors of the trustee.® "Where the fund in trust has been deposited in a bank to the trustee's individual credit, the cestui que trust need not prove that the identical money is on deposit, to sustain his chiim 1. Johnson v. Newton, 11 Hare, 160; Swinfen v. Swinfen, 29 Beav. 207. 211 ; Fenwirke v. Clark. 31 K J. (N. S.) 72S: Breneinun v. Mylin, 12 Pa. Dis. Ct. R. :{21. - I)ark« V. Martj'n, 1 Boa v. 525; Movie V. MoyI(?. 2 Uuss. & My. 710. ^Luiihaiii V. I'.liui'i.-ll. 27 L. J. (N. S.) 17'.». < Wilkinson v. B<'\viMt;,'iini he can lepilly attempt toHMtisfy the claimw of other crcditorH. limit v. Smith (N. J., I889j, 13 Atl. K. 123. 1106 LAW OF AVI U.S. [§ T89. afrainst tlie administrator of the trustee. It will be sufficient to show that the trust fund was deposited there by the trustee and that so much money was still to his credit in the bank.^ It is the duty of the trustee to pay all taxes, interest on in- cumbrances on land, and to keep all buildings in repair, out of the income of the property, unless he is expressly directed to provide for these expenses out of the principal.^ Where the property which is placed in trust is liable for the debts of the testator, or for charges which have been placed upon it by the will, the trustee is bound to see that they are promptly paid, and he will be personally liable for interest accruing thereon on his unreasonably delaying to do so.' But it is not every debt which a trustee can pay. lie must determine at his own peril whether the claim is valid and is justly due, and, if he shall exercise his judgment in a reasonable and pru- dent manner, and after making a reasonably careful inquiry, ' he will not be personally liable though the payment was wrongfully made.^ 1 Wulbern v. Timmons (S. C, 1899), 33 S. E. R. 568. When a trustee mixes his principal's money with his own so that it cannot be distin- guished what particular part is trust money and what part is private money, equity will follow the money, by taking out of the trustee's estate the amount due the cestui que trust, notwithstanding there are no facts or inferences tending to show that the particular assets sought to be subjected were swelled or increased, except as that might normally hap- pen by the condition of the trustee's estate resulting from the payment of some of his business debts with the money of another. Bircher v. St. Louis Sheet Metal Ornament Co., 77 Mo. App. 509. Where one is shown to have had the possession of trust funds as trustee, and he mingles them with his own funds, it will be presumed that whatever money or property was used by the trustee after such commingling was his own, and was not the trust fund, and that such fund remained in his hands, forming a part of the sum found in the possession of his administrator. Where trust moneys are siiown to have been in the hands of a trustee at a certain date, and he paid inter- est on them until his death, the fact that he mingled part of the moneys W'ith his own and deposited them in a bank is sufficient to entitle the cestui que trust to a preference over other creditors of the trustee, though it is impossible to point out the pre- cise thing in which the trust fund has been invested, or the precise time when the conversion took place. Order (1899) 55 N. Y. Supp. 708, 37 App. Div. 15, affirmed. In re Holmes, 53 N. E. R. 1126. 2 Mansfield v. Alwood, 84 III 497; Hepburne v. Hepburne, 2 Bradf. (N. Y.) 74; In re Albertson, 46 Hun, 566; ante, § 436. 3 Adair v. Brimmer, 74 N Y. 589. 4 Draper v. Stone, 71 Me. 175. The estate of one who held land in trust for a widow and her children, and I TS9.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1137 In everv case, whether the trustee is collecting outstanding claims, enforcing contracts or paying debts, or whether he is caring for the preservation and the investment or re-investment of the property, the trustee will be held to a liigJi degree of care and intdligence, and will be required to take every precaution, which a reasonably prudent man would take of his own prop- erty. It is perfectly true that in many of the early cases a trustee was held to only a slight degree of care and that he Avas only considered liable for gross negligence. But this rule, it should be remembered, was due to the fact that a trustee, in the absence of statute, received no compensation for the per- formance of his fiduciary duties, and was based upon the rule that a gratuitous bailee was liable for gross negligence only, Avhich does not now apply. At the present time, both in Eng- land and in America, testamentary trustees and executors re- ceive a compensation, the amount of which is fixed by statute. Xot only must a trustee exercise the highest degree of care and diligence in performing the duties of his trust, but he must con- duct himself towards the beneficiaries in executing his trust with the most scrupulous gOod faith. If the trustee shall specu- late with the trust funds, or if he shall invest them in improper securities, or if he uses them in his own business, he is not only liable for any loss which may result, but ho must pay over to the beneficiaries any profit which has been made as well.^ lie ouglit in no case to be permitted to nuike any profit indlvid- wdbj from his employment of the trust property except his commissions. So, if in managing the trust funds he shall min- gle them with his own pro[)(jrty, as, for example, by depositing trust money in his imlividual name in a bank, equity will hold liim liable for any resulting loss or depreciation of the estate. ■>rltl,i,ut their consent expanded rents Fchliiif^or v. Wood, l^l Pa. St. 517, 19 and prolit.s in purcli.isiri;; an ont- Atl. It, 710. Ktan.iing titUs Uj tliu land, i.s lial)Icndcd. Shaw TafL v. Stow (Mass., 1S<)'.)). r,\ N. K. It. V. ]h>\i-rmer.sonal liahility. 1138 LAW OF WILLS. [§ 789. Aside from any question of fraud or gross ncg-lijTfence, it is the rule, both in law and in equity, that an executor shall not be liable for losses occurring to the estate solely by reason of the default or negligence of his co-executor.^ So, also, a trustee shall not be liable for the negligent act or the carelessness of his co-trustee in which he did not actively participate.- Thus, an executor will not be personally liable for the loss of the funds of the estate through the insolvency of a co-executor in "whose custody they are, where the party in default was solv- ent at the death of the testator, and since that time no fact had come to the knowledge of his associate that would indi- cate he was insolvent.' And, a fortiori^ a trustee who is, with the consent of the beneficiaries, deliberately excluded from all active participation in the control and management of the trust property, which is exclusively under the management of a trustee w^ho embezzles it, will not be responsible for the actions of the Tvrong-doer.'' If, however, a trustee or an executor has notice of the wrongful acts of an associate, and he is passive as regards such acts, he will be liable.^ As soon as the knowledge of the illegal investment, or illegal payment of trust funds, or of any other breach of trust, comes to his knowledge, he ought to protest against it, and to take immediate steps to recover the trust property and to protect what remains. His failure to act, or his silence, after the knowledge has come to him Avill be equivalent in law to gross negligence, and will render him personally liable for the tortious action of his associate, though lie has never participated in it or derived any benefit from it.'' A trustee w4io joins with a co-trustee in signing a receipt for money w^hich is to come under the trust is personally liable for only so much of it as comes in his hands. He cannot be called to account for that portion of it which is received and 1 Townley v. Sherborne, Bridg. Re- * In re "VVesterfield, 53 N. Y. S. 25. ports, 35; Cro. Car. 312; Hargthorpe 8 in re Westerfield, 58 N. Y. S. 25: V. Mitford, Cro. Eliz. 318; Kerr v. Monell v. Monell, 5 Johns. Ch. (N. Y.) Waters, 19 Ga. 136; White V.Bullock, 283; Dix v. Burford, 19 Beav. 409; 20 Barb. (N. Y.) 91. Candler v. Tillet, 22 Beav. 257. 2Ray V. Doughty, 4 Blackf. (Ind.) 6 Lincoln v. Wright, 4 Beav. 427; 115; Royal v. McKenzie, 25 Ala. 3G3; Egbert v.Butler,21 Beav. 5G0; Thomp- In re Westerfield, 53 N. Y. S. 25. son v. Finch, 23 Beav. 226. 3 In re Myers' Estate, 187 Pa. St. 247, 42 W. N. C. 435, 41 Atl. R. 24. § TS9a.] TESTAMEXTAEY USES, TRUST ESTATES, ETC. 1139' embezzled by bis co-trustee witbout bis knowledge, for usually tbe mere signing of a receipt by a trustee does not form an excei^tion to tbe general rule tbat be is not liable for tbe wrong- doing of an associate. But tbis is to be understood witb tb& qualification tbat tbe joining in tbe receipt for tbe money is done for mere conformity to tbe directions contained in tbe will. If tbe receipts of all trustees are not indispensable accord- ing to tbe terms of tbe trust, and a trustee unnecessarily joins in a receipt, be will be liable for tbe default of bis co-trustee, tbougb be ma}^ not bave retained any of tbe money for wbicb tbe receipt was given. ^ AVitb executors tbe rule is quite tbe reverse. Wbile it may be necessary, in tbe case of a trust, for both trustees to join in tbe receipts, or in deeds of convers- ance to make a good title,- tbis is by no means necessary in tbe case of a transfer of tbe personal property by joint executors ; so tbat if one, witbout tbe necessity for it, does so, be is pre- sumed to bave assumed a power over it, wbetlier be in fact received it bimself or not.'' § 789a. A trustee cannot pnrcliase the trust property — The remedy of the cestui que trust. — It is a general rule in, equity, wliicb may be subject to an exception created by tbo express language of the testator in tbe will, tbat a trustee in executing a power of sale over property, wbetber real or per- sonal, cannot at tbe same time be tbe purchaser of tbe prop- erty. Tbe sale may be set aside on the application of tho cestui que trust. It is immaterial that the trustee paid an ade- quate price and tbat no actual or positive advantage was taken by the trustee; for, thougli these facts nuiy be proved in a few cases, in most cases of purchases by trustees it is utterly im- possible to discover any positive and decisive evidence upon this point.^ A i)urchase of trust property by a trustee is invalid 'Ilfiiton V. ^farriott, Pre CIi. 17:{; < ICx itarto Lact-y. G Vos. 02r>, 0','7; JY'llows V. Mitrlu-11, 1 P. WiiiH. 81; F<..\ v. Mackrutli. 4 Bro. P. C. Toml. In re Fry<'r, .'5 I\. & J. 317; Prico v. 2.-,y. 2 Pro. C. C. 400. 2 Cox, :52(); K.v Stokfjs, 11 Vr's. :{ii); Stowo v. Pdwon, partu Pcriiiott, 10 Vcs. It'.Ci; (iili>;uii v. OOMasH. 1D4; Kipv. DeniHton, 4 Johna Jcycs, « Vuh. 277; Hall v. llali.-tt, 1 (N. Y.)y2. Cox, i:{4; Piko v. ViK'ors, 2 1). iV \V. 2 Sec J.. 1122. 202; 0^(1011 v. Larriiboo. 57 PI. ;Imi); 'Priro V. Stokos. 11 Vofl. 319,324, JuriiiKon v. ainscock, 29 Mo. MM; 32.-); ChamlxTs v. Minrliin, 7 Vus. 198; Hliute v. Austin (N. C. 1897). 27 S. R Clark V. Jenkin.H, 3 Rich. Eq. (S. C.) It 00; Martin v. Wyncoop, 12 Ind. 20(1. 3ia 1140 LAW OF WILLS. [§ 789(2. though it is made at an auction sale which is the result of the action of a third party ^ as when a sale is made ah invito upon the application of an execution creditor.^ A sale made to a trustee through a third person, or to a trustee as the agent of a third person, is also invalid. But in all cases in which the invalidity of a purchase from himself by a trustee is in ques- tion, while it is not necessary to show that an actual advan- tage was talcen hy the trustee or that the price paid was inade- quate, it is necessary to show that the relation of trustee and beneficiary existed at the time of the purchase^ and for such a period prior thereto as to give the trustee an opportunity of acquainting himself with the value of the property which will in fact ffive him an advantao-e. A trustee may legally purchase trust property after he has ceased to fill the office of a trustee of that property. But he can- not continue to act as a trustee until almost immediately prior to the consummation of the sale, acquiring, in his character of trustee, information which is his exclusively, and which gives him a manifest advantage of the cestui que trust when subse- quently he stands in the attitude of a purchaser.^ A purchase which has been made by the trustee during the existence of the jfiduciary relation is not invalid if the cestui que trust, being sui juris, has had the situation thoroughly explained to him so that he A'nows the sale is to the trustee, and the trustee has disclosed to the beneficiary all information which he has ac- quired by his official position which would give him an ad- A^antage.^ But courts of equity are prone to regard a transaction of this sort with some prejudice, and it will be supported only upon the strictest proof of the highest degree of good faith on the part of the trustee. The burden of proof is upon him to show all facts which are a necessary basis for the presump- tion that the transaction was made in perfect good faith, and unless he shall do so the ordinary presumption will apply.* 1 See cases cited last note; Ex parte Cleghorn, 21 Ind. 80; Pratt v. Thorn- Lacey,6 Ves. 625,629; Ex parte James, ton, 28 Me. Soo; Brown v. Cowell, 116 8 Yes. 348. Mass. 465; Jennison v. Hapgood, 7 2Downes V. Grazebrook, 3 Mei". 200, Pick. (]\Iass.) 1; Wormley v, Worm- 208; Ex parte James, 8 Ves. 348, 352. ley, 8 Wheat. 421. And see Fox v. ' Ex parte Lacey, 6 Ves. 625, 626, Mackreth, svpra. 628; Morse v. Royal, 12 Ves. 373; Coles < " a trustee," said Lord Eldon. in V. Trecothick, 9 Ves, 234, 247; Rice v. Coles v. Trecothick, 9 Ves. 234, "may § 7S9(/.] TESTAMENTARY USES, TKUST ESTATES, ETC. 1141 The validity of a purchase by a trustee can be questioned only by the cestui que trust, or his heirs or personal representatives, after his death. A stranger to the trust has no standing in court upon this point.' The purchase by the trustee is not ab- solutely void. It is voidable merely; and it may be confirmed by those having interests in the trust property, either expressly or by their actions, and even by acquiescence for a long period after they shall have acquired a knowledge of the sale and its circumstances.- The party who confirms must of course be sui juris. He must act voluntarily and freely. It must be proved not only that he was free from the least susjyicion of pressure, fear or undue influence, but also that he thoroughly understood that his language or his actions will have a confirmatory effect upon a transaction which he knows he has a right to set aside. In other words, he must know his rights and understand that he is waiving them.^ A presumption of ratification may arise from long-continued acquiescence. The objection to the validity of a sale by a trustee to himself must be raised within a reasonable time, the length of which will always depend upon the special facts of the particular case.* Acquiescence alone, without anything more, may, if very long continued, operate as a confirmation of the purchase, particularly where the beneficiary was sui juris and had an opportunity for inquiry of which he neglected to avail himself. Particularly would this be the rule where the benefi- ciaries have silently stood by and permitted the property to be conveyed, not only to the trustee himself as an individual, but from him as an individual to a honafide purchaser without no- buy from the cestui que trust, pro- 237; Newcomb v. Brooks, IG W. Va. vided there is a distinct and c-lear 32. contract, ascertained to be such alter - Campbell v. Walker, "» Vcs. G78, a jwiloiLs and scrupulous examina- 082; Murray v. Palmer, 2 Sch. & Lef. tion of all the circumsUmces. that the 474, 470; Morse v. Parker, 12 Ves. 353; rintui que trust intendi-d the trustee Adams v. Clifton, 1 liuss. 21)7; Dover should buy, and tiu^nj is ikj fraud, no v. Huck, 5 (ii(f. r)7; Slump v. Ciaby, 3 conc(«ilTn'Mit, no advantaK*' taken l)y J)i' (Jcx, Mac. tt (1. (>'J3. the trustfc of information ac<|uir<'d 3(",.(,u-,, v. Hidlard, 3 Hro. C. ('. 139; Viy him in his rharactcr iw a truHt<•^^ .Ia(dison v. .Jackson, 47 (la. Wt; Ilix^H 1 admit it is a didicidt caw to mak(5 v. Smith. 3 A. K. Marsh. (Ky.) 338; out wlicrevfr it is cotit*'nd(!.l thiitthe Kvans v. Korfinan, (iO Mo. 4 IIJ. excejition pri'vaih. * Aii-xandrr v. .Mcxamli'r, 4(5 fliu > liiHTum V. .Schcnck, 41 N. V. IHJ; 2;tl; CamjilxH v. WalU.r. :> V.-s. G78, Johns«jn v. liennett, 3U Barb. (N. Y.) GHO, 6«3. 11 -i3 LAW OF WILLS. . [§ TS'Jcf. tice of the trust, and the property^ luul been greatly improved by the hitter iiud has become enhanced in value. But gener- ally, where mere silence is relied on as a confirmation, it must be shown that the cestui qiie trust knew of the fact that the trustee had purchased the property for himself. lie need not have actual knowledge of the sale. The constructive notice arising from the recording of the instrument of conveyance to •the trustee would probably be sufficient.^ A beneficiary who elects to repudiate a purchase of the trust •property by the trustee may insist upon a reconveyance of it to himself, or to a new trustee who is appointed by the court, if it still remains in the ownership of the trustee who has bought jt.'^ The beneficiary may also insist upon a reconveyance where the property has been transferred to a purchaser with notice of the trust.^ He must re])ay the jjyuTcliase-money with interest^ and all moneys which have been legitimately expended on the property in repairs, and in improvements which are of a per- manent character. If he is unable or unwilling to do this, a resale may be ordered by and under the direction of the court upon such terms as will secure to the trustee what he has ex- pended.* The decree must also direct that the trustee shall account for all rents received by him, as well as other profits resulting from the sale of the produce of the land while he held it. lie is also responsible for waste, and for rent for any portion of the land which he actually occupied.^ If, after having purchased the property, the trustee has sold it to a purchaser in good faith and for a valuable consideration, so that it cannot be recon- veyed, the trustee is liable for the amount which he received for the property, and not merely for the o/mountfor which he, as ^ trustee, sold it to himself as an individual.® And where under 1 Wright V. Vanderplank, 3 K & J. v. Stinson, 63 111. App. 319; Wright v. 1 ; Baker v. Bradley, 7 De Gex, Mac. Bruschke, 63 111. App. 358. «&G. 507. ' 5 Hall v. Hallet, 1 Cox, 134; Ex - Lord Hardwicke v. Vernon, 4 Ves. parte Hughes, 6 Ves. 634, 635; Camp- 411; Randall v. Errington, 10 Ves. bell v. Walker, 5 Ves. 678; Ex parte 433; Hamilton v. Wright, 9 CL & Bennett, 10 Ves. 400, 401; Ex parte Fin. Ill, 133. James, 8 Ves. 351; Ex parte Lacey, 6 3 Dunbar v. Tredennick, 3 Ball & Ves. G35, 630. Be. 304. *> Mareck v. Minneapolis Trust Co. * Connecticut Mutual Life Ins. Co. (Minn., 1896), 77 N. W. R. 738; Ex § 790.] TESTAMENTARY USES, TRUST ESTATES, ETC. 114:3 the circumstances a reconve3'ance is possible, it ought to be made without prejudice to the rights of lessees, mortgagees and other incumbrancers in good faith and for value. A trustee cannot, under a power to buy, sell to himself as trustee property which is owned by him as an individual dur- ing the existence of the fiduciary relation. The burden of proof to show that such a sale was made honajide, and that no unfair advantage was taken of the confidence reposed in him, is upon him.^ Under the presumption that every person who has a duty to perform will do properly what he is bound to do, it will be pre- sumed from circumstances or from silence that trustees have executed a conveyance, or that they have properly performed other duties in conformity with the trust. Ko particular period of time is required to create this presumption. Though twenty and thirty years have in some cases been mentioned, in others a much shorter period has sufficed.^ § 790. The liability of trustees for tlie iuvestineiit of per- sonal property in trust. — A trustee must follow very closely any express directions which are contained in the will, regu- lating the investment of the personal property which composes a part of the trust fund.' If the trustee shall negligently per- mit money to remain in a bank, when, by withdrawing it and re-investing it in proper securities, he might have secured a larger income with equal safety to the principal, he will be liable to the beneficiary for the loss of income incurred.* If parte Reynolds, 5 Ves. 707; Hall v. ^Treves v. Townshend. 1 Bio. C. C. Hallet, 1 Cox, 134. 384; Browne v. Southuusc, 3 Bro. C. 1 James v. James, 55 Ala. 525; C. 107; Franklin v. Frith, 3 Bro. C.C. Munn V. Berjijes, 70 111. 004; Ili^gins 433; Browne v. ISIonlKoinory, IH Ahu V. Ciirtiss, 82 III. 28; Smith v. How- 353; Bemmerly v. WoodwanI, 57 Pac. lett, 51 N. Y. Supi). 'JIO, 2'J App. Div. K. 501 (Cal., 1H<){)); Moor*) v. Bea- \H2. clianip, 4 B. Moii. (Ky.) 71; Nelson v. -Mathews v. Wanl, 10 fJill & J. Bank, 27 M-l. 53; Carr v. Lainl, 27 n' V. Jackson, 4 Wcnd- 105h. When- triiKtees fail to kee|) title V. Jonrw, 7 T. It 43, 45; l)oo v. (he liimls in trust properly invested, 8ylx)m, 7 T. K. 2; Kn^land v. Slaile, Iml min^^le Ihem with Iheir own, 4 T. li. 082. and occasionally draw Ihcm fnnii 'S«ie an/c, 5 479 et Hcq. the hardi fc^r their own purposes, ll-i-t LAW OF WILLS. [§ 790. the trustees comply, in a reasonably careful mamur, with the directions of the will as to the mode of investing the trust fund, thev are not personally liable in case the property is lost. "Where the trustee is directed by the testator, in general lan- guage, to keep the estate invested, or where the will is silent as to the mode of investment, the trustee is expected to exercise the greatest care in investing and re-investing the funds. He is not only required to do what a reasonably cautious man would do in investing his own money, but he must employ the highest jpossihle degree of care} In England, by statute,^ trustees are now permitted to invest trust funds upon real securities and in stock of the Bank of England or Ireland, or in East India stock ; and in the United States it is usually prescribed by stat- ute that trust funds may be invested in government, state or specified municipal bonds, or in first-mortgage loans on im- proved real estate. Independently of these statutes equity does not recognize any securities as a proper investment for trust funds except government loans, as the three per cent, con- sols in England,' and, in the United States, government bonds and first-mortgage loans on productive real estate.'* But in recent times, owino; to the laro^e amount of trust funds requiring investment, the relatively limited amount of such se- curities that are to be found, and the extremely low rate of interest which is paid upon them, a wider latitude in the in- vestment of trust funds has been permitted to trustees by stat- ute, A trustee may now, in many instances, invest in particular municipal securities, as in the bonds of the more prominent and they will be charged with compound ward, 2 S. C. 239; Brown v. Litton, 1 interest. Bemmerly v. Woodward Peere Wms. 141; Pocock v. Reilding- (Cal, 1899), 57 Pac. R. 561. ton, 5 Ves. 800; Knight v. Earl of 1 In re Smith (1896), 1 Ch. 71. Plymouth, 1 Dick. 126. The weight -Lord St. Leonard's Act, 22 & 23 of the English cases is against the Vict., ch. 35. text. Norbury v. Norbury, 4 ]\ra(l(l. 3Trafford v. Boehm, 3 Atk. 444; 191; Widdowson v. Duck, 2 Mer. 494; Caldecott v. Caldecott, 4 :Madd. 189. Ex parte Calthorpe, 1 Cox, 192. A * Wilson V. Staats, 32 N. J. Eq. 523; purcliase of government bonds of the In re Craven, 43 N. J. Eq. 416, 5 Atl. Confederate States of America has R. 816: Miller v. Procter, 20 Ohio, been decided to have been an im- 444; Gilbert v. Kolb, 85 Md. 627, 37 proper investment for trust funds. AtL R. 423: Denike v. Harrison, 84 Fergusoa v. Epes, 77 Va. 499; Sliarpe N. Y. 89; Marton v. Adams, 1 Strob. v. Rockwood, 78 Va. 24; Dietz v. Eq. (S. C.) 72; Eckford v. De Kay, 8 Mitchell, 12 Heisk.(Tenn.) 676; Cocker Paige (N. Y.), 89; Mathews v. Hey- v. French, 73 N. C. 420. § 790.] TESTAMF.XTAKY USES, TEUST ESTATES, ETC. 1145 "wealthier cities. But in no case will lie be relieved from a full responsibility for all loss where he loans trust money upon mere personal securities, unless he is expressly permitted to do so by the will,^ or invests them in the stocks and bonds of pri- vate corporations.^ The trustee who, vrithout authority, invests trust funds in personal securities at a loss is not excused by the fact that the testator had been accustomed to loan money ta the same person on similar security. For the trustee is not dealing with his own, but with the property of others to whom the testator has been o-cnerous.' The fact that a hio-her rate of interest will be realized by a loan on a promissory note, or that the risk of loss is diminished by the personal obligation being jointly executed by two or more, or with responsible se- curities,^ is not material to justify the act of the trustee. The testator may confer a power to invest in or loan money upon personal securities. Such investments are never favored in equity, and a power of investment couched in general terms or a direction to invest, leaving the character of the investment to the discretion of the trustee;^ as when, for example, the trustee is permitted to invest the funds "in such manner as he shall deem best for all concerned," " or where he has full power to " invest in any securities whatever,"^ does not give power to loan money on personal securities. An express power to invest money upon personal securities docs not empower a trustee to > Hunt V. Gontrum, 80 Md. 04. :J0 31 N. II. S")'?; Adair v. Brimmer, 7-4 Atl. K. 0-20; Clark v. Garlield. 8 Allen N. Y. 5:39; King v. Talbot. 10 N. Y. 76; (Mass.). 827: DulTord v. Smith, 46 N. English v. Mclntyre, 51 N. Y. S. 910, J. Eq. 216, 18 Atl. R. 10r)2: In re Blau- 29 App. Div. 182; Worrell's Ai)peal, velt, 20 N. Y. Supp. 119, 2 Con. Sur. Pa. St. nOS; In re Ketdtas. 1 C;on. Sur. 4.')8; Jones v. Jones. 50 Ilun, GO:}, 2 468. 6 N. Y. S. 668. Comjiaro Lovell N. Y. S. 844; Tucker v. Tucker, :j:5 N. v. Minot. 20 Tick. (.Mas.s.) 116; Ilar- .1. Eri. 2:55; Wilson's Appeal (F'a.. 1H95), vard College v. Emory, 9 I'ick. (Mass.) 9 Atl. It. 47:i; Nyce's Apix-al. 5 Watts 446. & S. (IV) 254. 258; J.dmson's ApiM-al, ^'Styles v. (Juy. 1 Mac. it (i. 42:{. 4:{ Piu St. 471 : SfKiar v. Spear, 9 lii<;li. * Walls v. (Jirdleslone. 6 Heav. 188. Ec\. (S. C.) 184; Simmons v. Oliver, 74 » I'ocock v. lieddingtrm. 5 Ves. 704; Wis. m'.l 4:{ N. W. R 561; Terry v. Mills v. Oshorne, 7 Sim. ;«); W.-slover Terry, I'irifli. Tree. Ch. 27:}; Hyder v. (Jhapman, 1 Coll. 177; AltiTiny- V. Hickerlon, :{ S\v. HO; Vigras v. Hin- (ieneral v. Iligham, 2 \. it C. C. ('. field,:*. Madd.62: Walker v. Synjonds, 6:! I. « SwariHton, 6:}. '• Mai locks v. Muidlc.n, 21 All. 1{. ■^Matt. 591. 1140 LAW OF WILLS. [§ T90. purcliaso bis own promissory note, or one executed by liis co- trustee,^ or by one of the trustee's relations, or Ijy a member of his family.- The language of tlie grant of power to loan, trust funds on personal securities will be very strictly construed. If the consent of a beneficiary or of a co-trustee is required to be procured as a necessary preliminary to the valid exercise of the power, an investment without it will be ultra vires, and the trustee will be liable for a resulting loss.' And though the trustee may be expressly authorized by the will to loan money to A. upon his note or bond, he ought not to do so if A., who was perfectly solvent at the death of the testator, has subse- quently become Insolvent so that loaning him money would be equivalent to the loss of it.'* A power to loan on personal se- curity is not exhausted b}^ one occasion of its exercise. It may be exercised as frequently as a favorable opportunity offers, but always within the limits laid down by the testator, and under circumstances which commend its exercise to the sound discre- tion of the trustee. A power giving a trustee the widest dis- cretion in the investment of trust funds will not authorize him to employ the fund in trade or for speculation generall}'', except tit the risk of the trustee.'^ We have seen that in some states trustees may invest trust money in first-mortgage loans upon real property. A trustee who is authorized, either by the will or by the statute, to invest in either first or second mortgages must use the ordinary care of a prudent man in doing so. He must see to it that the value of the landed property exceeds the sum loaned upon it, so that in case a sale on foreclosure becomes necessary the equity of redemption will be sufficient, aside from a depreciation in the value of the property, which no careful person could foresee. X trustee ought not to loan more than two-thirds of the value of permanent property, as of land aside from buildings; while on the latter, no more than one-half the original value should be advanced. For while the value of land may diminish, the structures upon it are not only subject to depreciation in value, iPaddon v. Richardson, 7 De Gex, 535; Greenham v. Gibson, 10 Bing. JIac. & G. 563; Forbes v. Ross, 2 Bro. 363, 374. C. C. 430. 4 Boss V. Godsall, 1 Y. & C. C. C. 617. 2 Langton t. Olivant, G. Cooper. 63. 5 Cock v. Goodfellow, 10 Madd. 489. 3 Cocker v. Quayle, 1 Russ. & Mj-. § 790.] TESTAMENTARY USES, TRUST ESTATES, ETC. llttT but to deterioration and dilapidation by reason of the lapse of time as well.^ If the trustee shall exercise ordinary diligence in ascertain- ing the value of the property, he will not be responsible for a deficiency resulting from a depreciation which no person could foresee. He has a right to rely upon the opinions of competent surveyors and real-estate dealers, who are disinterested parties, as to the value of the property when he advances the money; but he has no right to rely upon the opinion of value furnished either by the mortgagor or by his agent.- A trustee who ventures to loan on second morto-a^e must look very closely into tlie value of the property, for he will be personally liable for a deficiency upon foreclosure unless he purchases in the equity.' And a trustee, under a " power to invest the trust funds upon real securities," including mort- gages by deposit of title deeds, has no right to buy in the equity of redemption from the owner in order to protect a second mortgage which he has taken upon the property, and he will be liable for any loss resulting therefrom.* A trustee Avho has invested in government or other bonds at a premium is not responsible for a loss of premium from their redemption by the government before maturity, where it was considered by careful investors that the bonds Avould not bo paid until they became due.* If the trustee neglect to follow the directions of the will for the investment of money in par- ticular securities, he is liable at the option of the beneficiary either to what would have been made in income by such in- vestment or to what has been actually received, or the court may order the trustee to be, charged with compound interest on the wiiole amount. "Where the will is silent as to the char- acter of the investment, tiio fact tiiat certain securities wer(i bouirht and held l>v tiio testator mav recomiiieiid them to the trustee where they are ordinarily regarded as a safe investmenl." 1 Sticknf-y v. ScwcU, 1 My. & Cr. 0; R. 42.1. Coiniwim Drosicr v. Hrcri'ton, In re Ooilfn-y, (ioilfn-y v. Kiiiilkncr, l."» lii-uv. 221; r'it/.g«Tiil(i v. I'ringlo, I^ li. 2:J Cli. Div. 48:{; In ro HIiiuvolt, 2 Moli. rM. 2 Con. Siir. 4r,H, 20 N. Y. S. 119. < Wurman v. Woini.in, I.. R Ul C'li. 2JonfH V. L«!wiH, ;{ Do Hex M<1. 027, :J7 Atl. i:. \L I. ;i:.'l. 1148 LAW OF WILLS. [§ 791. § 791. The liability of a purchaser for the application of trust property. — Where real property is devised in trust for sale and for the payment of debts fjeneralhj out of the proceeds, and no particular debts are by the will made a direct charge upon, the land or its proceeds, a purchaser from the trustee is not bound to see that a proper application of the purchase- money to pay the debts is made by him.^ And generally a purchaser in good faith and for value, not having actual notice of the misapplication of the purchase-money by the trustee, or not knowing of the failure of the trustee to execute a general trust in conformity with the limitations contained in the instru- ment creating the trust, takes the property wliolly discharged of the trust.- The same rule is applied to a trust to pay legacies and annuities generally out of the proceeds of land directed to be sold for that purpose.' This is the rule where land is sub- jected to a general charge. But if the land is devised in trust to be sold and the proceeds devoted to the payment of a ^>«7'- ticidar debt, or if the trust is for a jparticular purpose^ the pur- chaser is then bound to see that the purchase-money is applied to the payment of that debt or to the particular purpose speci- fied.* If the land in trust is specifically charged with the payment of debts and legacies by the will, the charge is a lien upon it Avhich the purchaser is bound to notice, and he therefore takes subject to the trust.' "Where the purchaser has actual notice of the intention of the trustee to misapply the purchase-money, i. e., 1 Potter V. Gardner, 12 Wlieat. 25 X. J. Eq. 35; Gardner v. Gardner, (U. S.) 498. 3 Mason C. C. 218; Bowling v. Hud- - Ellison V. Moses, 95 Ala. 221 ; War- son, 17 Beav. 248; Page v. Adam. 4 nock V. Harlow, 96 Cal. 293, 31 Pac. Beav. 269; Jenkins v. Hiles, 6 Ves. R 166; Seldner v. McCreery, 75 Md. 654. 287, 23 Atl. R. 641; Andrews t. Spar- ^Bugbee v. Sargent, 23 Me. 269, hawk, 13 Pick. (Mass.) 393, 401; 271; Swasey v. Little, 7 Pick. (Mass.) Laurens V. Lucas, 6 Rich. (S. C.) Eq. 296, 300; McWaid v. Blair Bank 217: Bailey v. Colton, 25 S. C. 436; (Neb., 1899), 79 N. W. R. 620; Leavitt Bank v. Smith, 17 R. L 244, 24 AtL R. v. Wooster, 14 N. H. 550; Harrison v. 273; Young v. Mutual Life Ins. Co. Fly, 7 Paige (N. Y.), 421; Rogers v. (Tenn., 1898). 47 S. W. R. 428; Davis Ross, 4 Johns. Ch. (N. Y.)404; Hoover V. Christian, 15 Gratt.(Va.) 11; Haaser v. Hoover, 5 Pa. St. 351; Binks v. V. Shaw, 5 Ired. (N. C.) Eq. 357. Rokeby, 2 Madd. 238; Smith v. 3 Sims V. Lively, 14 B. Mon. (Ky.) Guyon, 1 Bro. C. C. 186. 435; Andrews v. Sparliawk. 13 Pick. ^See § 403. (Mass.) 393, 401; Dewey v. Ruggles, § 791.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1140 if he in fact hioivs that the trustee, in conveying the land, is acting in excess of his powers, the purchaser will take the prop- erty subject to a constructive trust in favor of the original beneficiaries.^ A i')urchaser from a testamentary trustee is af- fected with record notice of his duties and powers and of the purposes of the trust as they are set out in the will. But a pur- chaser in good faith from the purchaser from the trustee does not have record notice of these facts sufficient to subject the property, when in his hands, to a constructive trust.- The law recognizes a great difference between the liability of a purchaser or pledgee of personal property who takes from an executor and one who takes from a trustee. The owner- ship of the personal propert}?- is vested in an executor for the sole 2)U'r2)ose of administering the estate of the testator; and, for this purpose, he must have the incidental power of disposing of the personal assets in his hands, either by sale or by pledge. On the other hand, the ownership of personal property by a trustee '\%for custody and not for administration. The executor on his appointment is at once vested with the ownership of all the personal property disposed of h^ the will. In modern times he is regarded as to such ownership merely as a 5'?/«.y/-trustee, for carrying out the purposes of the will, the payment of debts,' and the settlement of the estate. He has the ownership of the personal property only so far as it is necessary for him to have it to enable him to effect the purposes of the will as they ap- pear upon its face.* The executor slioukl, as soon as possible, 1 Williamson V. Morton, 2 Md. Ch. fraudulently disposed of the trust 94.102; Shaw v. Spencer, 100 Mass. property contrary to the terms of the 3S2, :W9; Otis v. Otis, 107 Mass. 24",, trust, the beneficiaries, on the ternii- 45 N. R R, 737; Stark v. Olsen, 44 nation of the trust, are entitled, in a Net). 040, 03 N. W. K. 37; Turner v. court of ecpiity, to have tiie (;onvey- Hoyle, Si'i Mo. 337, 8 S. W. It. lv)7; ancesset aside, and a partition t>f the Nautnan v. Weidnian (Pa., 1H',)8), 37 premises hetwcM^n thein. Lehnard v. Atl. R. 803; I'-oniar v. (iist, 2", S. C. Specht, WS: N. E. H. 31.% ISO III. 208. 340; Clyde v. Simpson, 4 Oliio St. 44ri; 3 Ante, ^ ((3i) ot se»i. McCown V. Terrell. U Tex. Civ. Ajip. •« Chandler v. Clhandler, 87 Ala. 30, «0,21iS. W. Ii.484; Ilanrick v. Ourley S. 11. IW; Carti-r v. Hank, 71 Me. (Tex., 18{i9),48S. W. K.004; Claih(,rno 448,440, 1 Am. Pro. K. 1!)3; Dalton v. V. Holland, 88 Va. 1010, 14 S. K U. Dalton, 51 Me. 171 ; llutchins v. Pjink, IM.*.; Smfx>t v. liicliards, 8 Tex. Civ. 12 M.-t. (Mass.) 421, 432. 43.-»; Shirley App. 140, 27 S. W. U. 007. v. ll.-alds, 34 N. 11. 407, 411: Peterson •^ Young V. Weed, l.'»l Pa. St. 310, 32 v. lianU, 32 N. Y. 21, 41-47; Furrier v. W. N. C. 207. Where a trustee has I'.'iri.r, L. K. II Ir. 50. 1150 LAW OF MILLS. [§ 791. sell all personal proporty which is not specifically bequeathed, in oi-(lor that he may, out of the proceeds, pay the debts at once, and the general legacies, lie may also, if it is in his opinion necessary for the protection of the estate, unless he is expressly prohibited by the will, mortgage or pledge any of the personal property which is not specifically disposed of.^ It follows from this that a purchaser or a pledgee of negotiable paper, which he has received from an executor, is not responsible for the mis- application of the proceeds if the purchaser is not actually a party to the fraud of the executor, and if he docs not hioio that the latter is misappJijing or intends to misapply the funds.- But where the person dealing with the executor knoics, or has Tea- sonahle grounds for helieving, that the executor means to mis- apply the mone}'', or if he is knowingly, in the transaction in Avhich both are engaged, misappropriating the proceeds, he will be responsible to those who are beneficially interested in the will.^ Thus, if the party to whom the personal property of the estate has been conveyed by sale or by pledge has actual hiowl- edge that the testator left no debts for which a sale or a pledge was necessary^ the presumption of fraud is almost conclusive. And when, on account of the relation of the purchaser to the executor or to the estate, he knows that the executor is actually paying or securing his own indebtedness, and not that of the 1 Carter v. Bank, 71 Me. 448, 450; C. 1; Scott v. Tyler, 2 Dick. 725; McLeod V. Drumniond, 17 Ves. 154, Iluuible v. Hill, 2 Vern. 444. 1G3; Andrew v. Wrigley, 4 Bro. C. C. 3 in re McComb, 117 N. Y. 378, 23 125, 139; Earl v. Rigden, L. R. 5 Ch. N. E. R. 1070; Clark v. Coe, 52 Hun, App. 663; 3 Redf. Wills, cb. 8, § 32; 2 379, 5 N. Y. S. 243; Mercantile Trust ■VVilliams,ExTS,p. 1001: Jelkev.Gold- Co. v. Weld, 85 Md. 685, 36 Atl. R. smitli (Ohio, 1898), 40 N. E. R. 167. 445; Horton v. Jack (Cal., 1897), 37 An executor who is directed to carry Pac. R. 652; Lowry v. Bank, Taney, on the testator's business has the C. C. 310, 330; Carter v. Manu. Nat. ix)wer to incur debts for that pur- Bank, 71 Me. 448, 452; Gerger v. pose. Weddrop v. Wood, 26 Atl. R. Jones, 16 How. (U. S.) 30, 37, 38; 375, 154 Pa. St. 307; Palmer v. Moore, Ewer v. Corbet, 2 P. W. 148; McLeod 82 Ga. 177, 8 S. E. R. 180. v. Druminond, 17 Ves. 153; Drohan 2Hutchins v. Bank, 12 Met. (Mass.) v. Drohan, 1 Ba. & Be. 185; CoUinson 421, 423; Field v. Schieffelin, 7 Ch. v. Lister, 7 De Gex, M. & G. 633; (N. Y.) 150, 100; Berry v. Gibbs. L. R. Stronghill v. Anstey, 1 De Gex, M. & 8 Ch. App. 747; Bonney v. Ridgard, G. 635; Scott v. Tyler, 2 Dick. 725; 1 Cox, 145; Keane v. Roberts, 4 Mad. Rice v. Gordon, 11 Beav. 265; Stokes 332, 357; Andrew v. Wrigley, 4 Bro. v. Prance, 67 Law Ch. 69. 1 Ch. 212, C. C. 125; Gray v. Johnstone, 3 H. L. 77 L. T. (N. S.) 595, 46 W. C. 183; Hall V. Andrews, 27 L. T. (N. S.) 195. § 792.] TESTAMENTARY USES, TRUST ESTATES, ETC. 1101 testator, as would be the case where a banker having on deposit securities belonging to the estate on the request of the exec- utor applies a portion of them to pay a debt due from the ex- ecutor individualh" to the banker, he is estopped from asserting that he is not liable to the next of kin for the misapplication of the assets of the estate. Such knowledge is enough to raise a conclusive presumption of fraud on the part of a purchaser, for he cannot shut his eyes to the actions of the executor savor- ing so strongly of fraud.^ § 792. Definition of a precatory trust. — A trust is preca- tory where property' is given to a person absolutely by the will, and he is entreated^ admonished^ recommended or desired to dis- jpose of all or of a jportion of that j^rojtei'ty in favor of another person mentioned^ and the language of the testator from the whole will seems to be imperative, and leaves no discretion in the legatee except as to the quantum and mode of conferring the benefit. To create a trust, and in order to make precatory words operative, it must appear that the estate vested in the first taker is not absolute, nor the power of disposal unre- stricted. It must also appear that the subject of the devise, and the devisees therein, are both certain, and that the trust is definite; and that the language, as gathered from the whole context, is intended to be imperative, and not a mere matter of 1 Sliaw V. Spencer, 100 ]\Iass. 382, been informed of the existence of a 392; Field V. Scliieffelin, 7 Julins. Cli. will under whicli tlie trustee must (N. Y.) 150, ICO; Petrie v. Clark, 11 act, continues chargeable with a Ser. & R (Pa.) 77; Hill v. Simpson, knowledge of its terms. Marburyv. 7 Ves. ir)2; Wilson v. Moore, 1 M vines Ehleu, 72 Md. 206, 19 Atl. R. 048. But & K. 337; Walker v. Taylor, 4 Law it seems that where tlie executor is a Times, Siri; Pannell v. Hurley, 2 Coll. specific legatee of a security jtledgeil 211; Kodenham V. II(jskins, 2 De Gex, or sold by Iiiin to secure or pay Ids M. & G. 903; In re Tan<|ucray, L. K. own debt (Taylor v. iiawkius, 8 Vos. t.'0 Ch. Div. 40",; In re Whistler, Ij. R. 209), and iierhajjs where he is the 3") Ch. D. 5(51; In re Venn, 8 Rep. 220 solo residuary legatee, or even one of (1894), 2 VA\. 101. Wh(!re stock stand- sevc^ral residuary legatees, frauil will ing in the name of the testator is not bo jiresumed in the absence of tninsferred by his executor to the a<-tual knowiwerH of the truMtec, despite 209; Crane v. Drake. 2 Verii. 101; tim l;i|>se of time b«-twcen tli«) truMH- Mcl.eod v. Drummond. 17 Ves. 153, ferH. Tliu coriforaliun, having once 103. 115 LAW OF "WILLS. [§ T93. discretion.^ That the subject of the precatory trust, as is the rule with all trusts, must be certain, cannot be doubted. But if the intention certainly appears that th'^ beneficiary is in any event to have someiJdmj substantial, the fact that he may re- ceive more or less according to the judgment of the legatee is not material.^ § 793. Particular examples of language which is testa- mentary and not precatory merely. — A gift followed by language desiring the legatee " to give " to certain persons who are then mentioned,* or recommending * or " request- 1 Hence, where a testator, who has derived all his property from his wife, in his will gives her the " re- mainder of his whole estate, . » . believing she will do justice between her relatives and mine at her death," no trust is created in favor of either of tlie relatives of the testator or in favor of the devisee. Hill v. Page (Tenn., 189G), 36 S. W. R. 735. 2 '• When i^roperty is given abso- lutely to any person, and tiie same person is by the giver, who has the power to command, recommended or entreated, or wished, to dispose of that property in favor of another, the recommendation, entreaty or wish shall be held to create a trust: First. If the words are so used that upon the whole they ovigiit to be construed as imperative. Second. If the subject of the recommendation or wish be certain; and thirdly, if the objects or persons intended to have the benefit of the recommenda- tion or wish be also certain." Lord Langdale, in Knight v. Knight, 3 Beav. 172: S. C, 11 C. & F. 513. "If there be a trust sufficiently expressed and capable of enforcement, it does not disparage, much less defeat it, to call it ' precatory.' The question of its existence depends, after all, upon the intention of the testator as ex- pressed by the words he has used, according to their natural meaning, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, the words may be merely those of suggestion, counsel or advice, intended only to influence, and not to take away, the discretion of the legatee growing out of the right to use and dispose of the prop- erty given as his own. On the other hand, the language may be impera- tive in fact, though not in form, con- veying the intention of the testator in words equivalent to a command, and leaving to the legatee no discre- tion to defeat his wishes, although there may be a discretion to accom- plish them by a choice of methods, or even to defeat and limit the ex- tent of the interest conferred upon the beneficiary." Colton v. Colton, 127 U. S. 300, 312, 320. 3 Coburn v. Anderson, 131 Mass. 513; Mason v. Limbi-ey, cited Amb. 4; Erickson v. Willard, 1 N. H. 217; Burt v. Herron, 66 Pa. St. 400; God- frey v. Godfrey, 11 W. R. 554, 2 N. R. 16; Foster v. Wilson, 38 Pac. R. 1003. 4 Webster v. Morris. 19 Ves. 656; Malim v. Keighley, 2 Ves. Jun. 333, 529, 539; Gilbert v. Chapin, 19 Conn. 342. See also Tibbits v. Tibbits, 19 Ves. 656, where the testator " recom- mended " his devisee to continue A. in the occui^ation of a farm so long as A. managed it well and paid rent. A bequest to A. " recommending her to give to B. what she should die r93.] TESTAMENTAKV USES, TEUST ESTATES, ETC. 115J ing " ^ a legatee to dispose of the propert}'- given to him to others, has been held sufficient to create a trust in favor of the other persons. So, too, where the testator gave a legacy "having confidence " - in the legatee, or " with full confidence^'' * with the utmost confidence,^ with impJh-lt confidence;' with the fullest confidence,^ "in the belief " that,' " not doubting " that,- under the " firm conviction " that," " trusting," ^^ having " an absolute assurance " that ^^ the beneficiary would apply a portion of it possessed of."' creates the executor of A. a trustee where A. neglects to carry out the recommendation of the testator. Horwood v. West, 1 S. & S. 387. The English cases and one or two American authorities have relied greatly upon the word -•recommend'" to create a ti'ust. They have gone too far in this, for the primary signification of the word when it is uncontrolled by the con- text is not mandatory, but leaves a large discretion to the legatee. The most recent cases take the stand that recommendatory language alone is never testamentary. Johnston v. Row- land, 2 De Gex & S. 256. In Ford v. Fowler,3 Beav. 146,the testator, while bequeatliing property to A., " recom- mended that she settle it for the benefit of B."' and her children. On the death of A. in the life-time of tlie testator it was held tliat B.'s children should receive tlie legacy becau.se of the trust in their favor. So in Cholmondeley v. Ciiolmonde- ley, 14 Sim. 500, where the words were " earnestly recommemling that the legatee take measun;s to scfcure the property to her chililren on lier decease." a trust was construed to Vm; f-reiited in favor of tlie chil. any- thing or not, the language is precatory, and not testamentary, .'uid if tlio confiflence is that sliowill Ailams ami the Kensington Vestry, do what is ri^ht as rcj^anls tlie dis- 27 Ch. l)iv. ;{94. jKjsjil of tlie property, I cannot say ' Warner v. Bates, OH Mass. 274; that that is, on the true construction Kmdx v. Knox, .VJ Wis. 172, IHU; of the will, a trust ini|K»s(!d on her. Krickson v. Willard, 1 N. H. 217, 227, Having? re^jard to the later decisions, 22M. "The words 'desire,' • recpiest,' we must not extend the old cases in 'recommend,' 'liojws' 'not douhtinj;' any way, or rely u|M)n the mere iwe . . . are to he construml as com- of any particular worils, hut, <'on- marids (dothccl merely in tiic lan- siderinK all tlw words which an- ^,'ua;?e of civility, and they impos(> on used, we have \m we what is their the executor a duty which courts true efTect, and what wjis the intcn- have in frerpient instances en- tion of the testator as expressed in forced."' Itemarks of Wuodliiiry, J., tlie will" I3y Cotton, L. J., In ro in Krickson v. Willard, I N. 11. 217. 115S LAW OF WILLS. [§ Y96. and no trust is created in favor of B. What language shall in every case be sufficient to create a trust cannot be stated in a general rule. Words of confidence, recommendation, hope or expectation, which in some cases liave been held to create a trust, have in others been denied this operation. Thus, where property is given to A. in fee, with the expression of a '■^wish " that the legatee will so arrancje his affairs that whatever may re- main at his death will go to B., no trust for B. is created, for the limitation of what remains shows that the testator meant that A. might, in his discretion, consume or expend the whole. ^ And a mere request to a legatee that, upon his death, he will bequeath consumable articles to a person designated,^ or a wish that he shall keep the property in his family,* is merely preca- tory. The most recent cases do not incline to regard words of recommendation, hope or assurance as precatory. The first case, says Hart, Y. C.,* that construed words of recommenda- tion into a command made a will for the testator. And if the donee has an unlimited discretion in express terms, the strong- est words of recommendation will be disregarded by the court.'^ Thus, for example, no trust is created where the testator gives property absolutely, " recommending the devisee, and not doubt- ing, if she has no relatives of her own, that she will consider my near relative, should she survive me." ^ According to the modern cases, mere words of hope or expectation regarding iNunn V. O'Brien (Md., 1896), 34 her his mother and sister, and re- Atl. R. 244; Mitchell v. Mitchell, 143 quested her to make such provision Ind. 11.3, 42 N. E. R. 405. for them as in her judgment might 2Whelen's Estate, 34 Atl. R. 329, be best r The court held that a trust 175 Pa. St. 23; Clay v. Wood (X. Y.), was created, and that the request 47 N. E. R. 274. and recommendation were manda- 3 In re Hamilton, 2 Ch. 370, 12 Re- tory, taking into consideration the ports, 355; Harland v. Trigg, 1 Bro. facts that the mother of the testator C. C. 142. was an invalid of advanced age, re- 4 Sale V. Moore, 1 Sim. 534 quiring constant care, nursing and 5 In re Whitcom's Estate, 86 Cal. medical attendance, and the sister 265, 24 Pac. R. 1028; Shaw v. Law- dependent upon her. The discretion less, 5 C, & F. 129; Meredith v. Hen- of the widow, if any, was limited to age, 1 Sim. 542. the extent of the provision, and tlie ''Sale v. Moore, 1 Sim. 534: Reeves court did not hesitate to receive evi- V. Baker, 18 Beav. 373. In Colton v. dence of the necessitous circum- Colton, 127 U. S. 300, 8 Sup. Ct. R. stances of the beneficiaries, and 1164. the testator, giving his entire to consider them in determining estate to his wife, •' recommended to whether a trust was created. r96.] TESTAMENTARY TSES, TRUST ESTATES, ETC. 1159 the disposition which a legatee is to make of property given him absolutely do not create a trust.^ Thus, it has been held tliat an expression of a desire and hojye,'^ or of a hope coupled "with a hel'ojf^ that a legatee will bestow a part of his legacy on another, does not create a trust.* So, where the testator stated that he expected and desired,' that he desired and re- quested^ or that he loished, a legatee to make a particular dis- position of the legacy, no trust was created. Thus, a bequest in terms absolute to two persons, followed by the words: " And I v:ish them to bequeath the same equally between the families of my nephew O and m^'- dear niece P. in such mode as they shall consider right," does not confer merely an interest for life Avith a precatory trust added, but an absolute fee simple.' So, also, the expression of a wish that a devisee, to whom the estate is given absolutel}'', shall so arrange his affairs at his death that whatever shall remain shall go to the son of the testator, is precatory, and does not create a trust in favor of said son.^ It is useless to multiply examples. Each will must be con- strued according to its peculiar phraseology. The only gen- eral rule which it is safe to enunciate is that, where a gift is Eq.(1863), 307,503; Lechmere v. Lavie, 2 My. & K 197. * And a devise in fee to persons who are by the testator " admonislied and clianjcd tliat the gift was made " in the hojye and iqton the trust that they shouUl care for their j>ari'nt3 during their lives, is not in trust. Arnold v. Arnold, 41 S. C. 291. 19 S. E. R. 670. The court here delib- erately rejected the wnrts, 355; Tn-nch v. Hamilton, ill. " Nitiiii V. OT.ririi iMd., iSDOi, .'U Atl. K. :;il. ' Sjwoner v. Lovejoy, 108 ^lass. 529, 533; nill V. Page (Tenn.), 36 S. W. R. 735; Hart v. Allen (Mass., 1897), 44 N. R R. 116: Aldrich v. Aldrich (Mass., 1898), 51 N. E. R. 449; Whiting V. Whiting, 4 Gray (Mass.). 23(5, 240; Cole V. Littleficlil. 35 Me. 439; Kinter V. Jacobs, 43 Pa. St. 445; Pennock's Estate, 20 Pa. St. 2(iH. 274. 282. ^Hess V. Singler, 114 Mas.s. 56, 59; Bills V. Bills, 80 Iowa, 2G9, 45 N. W. R. 748. Cf. Uarland v. Trigg. 1 Bro. C. C. 142. A devi.se of "all the rest and residue of my i)ropcrty . . . U) rny dear wife, . . . holieving that she will manage it judicicaisly, and fH;rfe<-tly satisfied that slif) will make a fair distribution of it among our cliildri'n at lu-r uyn<.', 15 N. .1. IIGO LAW OF WILLS. [§ T96. bestowed in absolute terms, and tlie use, employment or dispo- sition of the property is left to the discretion of the legatee, so that he may consume or expend the wliole for his own benefit, no trust is created by the language of the testator recommend- ing, exhorting, desiring or entreating him to give a part to another.* If the conferring of the pecuniary benefit is rele- gated to the discretion or good judgment of the legatee, or if he may do "a* he thhihs j^^oper,^''' oy prudent,^ as he '''■may think just and right,''''* as "Atf may thinh hest^"^^ or '■''may see jit^'"^ or as her sense of justice and Christian duty shall dictate^ and, a fortiori, if the testator directs that the legatee is to be under no legal responsibility to any court or person for the use of the money ,^ he takes an absolute title unfettered by any trust, although the strongest words of desire, suggestion or recommendation haA^e been used.* 1 Ellis V. Ellis, 15 Ga. 29G; Cock- rill V. Armstrong, 31 Ark. 580; In re Whitcoms Estate, 86 Cal. 2G5, 24 Pac. R 1028; Hunt v. Hunt, 50 Pac. R. 578; Dexter v. Evans, 63 Conn. 58, 27 Atl. R 308; Heard v. Sill, 26 Ga. 312; Jones V. Jones, 124 111. 254; Bulfer v. Willigrod. 71 Iowa, 620, 33 N. W. R 136; Fullen wider v. Watson, 118 Ind. 18, 14 N. W. R 571 ; Collins v. Car- lisle, 7 B. Mon. (Ky.) 14; Webster v. AVathen, 97 Ky. 318, 30 S. W. R 663; Hall V. Otis, 71 Me. 326, 330; Morse V. Morrell, 82 Me. 80, 84, 19 Atl. R 97; Taylor v. Brown, 88 Me. 56, 59; Stur- gis V. Paine, 146 Mass. 354, 16 N. E. R 21; Aldrich v. Aldricli (Mass., 1898), 51 N. E. R 449; Bacon v. Ran- som, 139 Mass. 117, 29 N. E. R 473; Lucas V. Lockhart, 10 Smedes & M. (Miss.) 466: Hunt v. Hunt, 11 Nev. 442; Forster v. Winfield, 23 N. Y. S. 169, 3 Misc. Rep. 435; Dominick v. Say res, 3 Sandf. (N. Y.) 559: Rose v. Hatch, 125 N. Y. 427, 26 N. E. R 467; Brunson v. King, 2 Hill Eq. (S. C.) 483, 490; Rowland v. Rowland, 29 S. C. 54, 6 S. E. R 902; Thompson v. McKissick, 3 Humph. (Tenn.) 631; Tabor v. Tabor, 85 Wis. 313, 316; Knox V. Knox, 59 Wis. 172, 175; Toms V. Owen, 52 Fed. R 417: Hoy \. Mas- ter, 6 Sim. 568; Scott v. Key, 35 Beav. 291; M'Cornish v. Grogan, 1 I. R 313; Finden v. Stevens, 2 Phil. 142: Knott V. Cottee, 2 Phil. 192: Brook v. Brook, 3 Smale & Gif. 280; Meredith v. He- neage, 1 Sim. 542; Shepperd v. Not- tage, 2 J. & H. 766; Foster v. Elshey, L. R 19 Ch. D. 518; Johnston v. Row- land, 2 De Gex & Sm. 356; Williams v. Williams, 1 Sim. (N. S.) 358, 372; Cole V. Hawes, L. R 4 Ch. D. 238; Wood V. Cox, 1 Keen. 317. 2 Weiler v. O'Brien, 23 N. Y. 366. 3 Rowland v. Rowland, 29 S. C. 54, 6 S. E. R 902. 4 Boyle v. Boyle, 152 Pa. St. 108, 31 W. N. C. 453, 25 AtL R 494. 5 Bulfer V. Willigrod, 71 Iowa, 620, 33 N. W. R 136. « Dexter v. Evans, 63 Conn. 58, 27 Atl. R. 308. T Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. R 144. s Bacon v. Ransom, 139 Mass. 117, 29 N. E. R 473; Biddle"s Appeal, 80 Pa. St. 258. 9 Eaton V. Watts, L R 4 Eq. 151; Young V. Martin, 2 Y. & C. C. C. 582; Lambe v. Fames, L. R 10 Eq. 267; Stead V. Mellor, L R 5 Ch. D. 225;. § TOT.] testa:mentaky uses, trust estates, etc. 1161 § 797. Precatory words in a devise to a person for himself and children. — Gifts to the widow or child of the testator or to a stranger, conferring, by express language, an absolute title, but containing an expression of hope, confidence, assurance or desire that the devisee will expend a portion in the support or education of his or her children, are usually construed to give the parent an absolute fee and to create no trust in him which the children can enforce. The dispositive language of the tes- tator, so far as it refers to the children, is intended solely to show the purpose and motive of the gift to the mother or father.^ But some English cases have construed a 2:ift to A. for the bene- fit of himself and children as creating a trust in A. for his chil- dren,- or a life estate in him and a power of api)ointment by will in favor of the children. Everything depends upon the pre- Barrett v. IMarsh, 126 Mass. 213, 21-5; Ran.lall v. Randall, 135 111. 398, 26 N. E. R. 7><0. where an absolute legacy was given to the husband of the tes- tatrix to pro^nde for the support of their children, and from time to time to be advanced to them as they may need, but vriih full power to control the same as his absolute property without being required to file or ren- der anj' account whatever. Thus, "le.xpect and desire that my wife, to whom the pro])erty was given ab- solutely,"' will not dispose of any of Kiiid estate Vjy will so that it shall go out of my family and blood relations, does not create a trust. In re (xard- ner, 3.1 N. E. R 439, 140 N. Y. 122. A Ij<->wer of api>ointment is not created by a devise of pro|)(jrty to be at tiie s N. E. \L 774: .Sale v. Tlioriiv bury, 80 Ky. 260, T, S. H \i. .VW; Uluuin V. Phaneuf, 81 Me. 176, 181, 16 Atl. R. 540; Cole v. Littlefield, 35 Me. 439, 445; Aldrich v. Aldrich (Mass., 1898), 51 N. E. R. 449; Chase v. Chase, 5 Allen (Mass.), 101; Taft v. Taft, 130 Mass. 461; Whiting v. Whiting, 4 Gray (Mass.), 236, 240; Elkinton v. Elkinton (N. J. Eq.), 18 Atl. R 587; Pratt V. ]Miller, 23 Neb. 496: Holder V. Holder, 59 N. Y. S. 204, 40 App. Div. 255; Mclntyre v. IMcIntyre, 123 Pa. St. 323, 16 Atl. R. 783: Boyle v. Boyle, 152 Pa. St. lOH. 25 Atl. R. 494; Pais- ley's Appeal, 70 Pa. St. 153, 158; Bid- die's Appeal, 80 Pa. St. 258; llippen- stall's Appeal, 144 Pa. St. 259; Thomp- son V. McKissick, 3 Humph. 631; Rhett V. Mason, 18 Graft. (Va.)541; In re Adams, L. R 24 Ch. I). 199; Webb V. Wool.s. 2 Sim. (N. S.) 267; In re Adams and Kensingtt)n, L. R. 27 Ch. D. 394; Howarth v. Dcwell. 29 Beav. 18; Scott v. Key, 35 Bcav. 291; (ircene v. {ireen«'. 3 I. R 90; Push- man v. Eillitcr, 3 Vps. 7; Lamlni v. Ivim(»s, L. R 6 ('h. 597; Atkinson v. Atkinson, 02 \a\.w Time-s, 733; Paul V. (.'omptori. 8 V«'H, 3H0; Cruwj's v. ('olcman, 9 Vcs. 319; Carr v. Living, 2.S M..)i\ . 61 1. -hird V. .Mavl.ury. 33 Beav. 351; l.diigMiortf V. lOlcomc, 34 Heav. 536; Hi-rrv V. {{riant, 2 hn-w. & Sm. 1. 11G2 LAW OF WILLS. [§ 798. cise language of the will. Thus, the fact that tlic mother is directed in precatory words to devise what remains among her children,' is given a power to do so,- or that either by deed or will she may appoint certain sums to the children who behave themselves to her satisfaction,^ will not create a trust for the children, where the parent is given an absolute title and the dis- position of the property is left to her discretion. So, too, where the testator gives property to her husband " hoping he would leave it to his sons if the latter was worthy," but giving the father full discretion, no trust is created, as the words of hope are qualified by language which gives the parent a full discre- tion as to the disposition of the property.* And a devise of all the land of the testator to his wife, " to have and to hold in fee simple," followed by an expression of trust and confidence that the wife would provide by last will for equitable distribution among their children, with a further provision that " this ex- pression of trust and confidence is not to be interpreted as lim- iting her right of ownership or power of distribution," creates no trust, but gives the wife an estate in fee simple.^ § 798. Powers of appointment defined and classified. — It M'ill be impossible, owing to the limited space which is at our disposal, to give any but the most concise treatment of the subject of testamentary powers of disposition and selection. In the first place, it may be said powers of appointment assimi- late in their character very closely to trust estates, so that many of the rules elsewhere discussed, relating to trusts, may also be applied to powers.^ All estates in land which are created by the execution of powers owe their validity either to the stat- ute of uses or to that of wills. Powers owe their origin to equity, where they were permitted to be created in two ways. First. They might be created by a deed, in which case the power which was created was valid only if it would be valid as a use under the statute of uses. Second. They might be created by will. The donee of the power created by the will might then execute it by his deed or will. An example of a power to be exercised by will would 1 Grierson v. Kirsop, 2 Keen. 633. 5 Tabor v. Tabor, 55 N. W, R 702, 2 Howorth V. Dewell, 29 Beav. 18. 85 Wis. 313. 3 Le Frov v. Flood, 1 Ir. Ch. 1. 6 See ante, % 782 et seq. * Eaton V. Watts. L. R 4 Eq. 151. § 798.] TESTAMENTARY USES, TRUST ESTATES, ETC. 11G3 be a devise to A. of an estate for life, witli a power in A. to di- vide the estate among his children by his will. This is a spe- cial power in A., and operates as a future use until A.'s death, when the legal title vests in the children either under his will by appointment, or in default of an appointment it vests in the children of A, under the original instrument creating the power. An example of a power created by will to be exercised by deed would be a power of sale conferred upon an executor. By the employment of powers a testator is enabled to create executory estates to begin in the distant future, when, in the judfjmentofihe donee., they can be most advantageously created. The interest of the persons named who are in the end to bene- fit by the appointment, -if the poioer is special, is a contingent use or an executory devise until, by the appointment, the legal estate becomes vested in them. This equital)le interest they take under the original instrument by which the power is created, and not by the appointing instrument. The elasticity of powers and their great convenience in family settlements of property recommended them to the attention of the English chancellors. In course of time, as a result of the continuous exposition of the subject, a system of intricate rules regulating powers was established, and the more extensively powers were employed the more abstruse and complex became the rules by which they were governed. The persons who are concerned in the creation and the ex- ecution of the power are the donor, who confers or creates it; the donee, who is the person upon whom it is conferred, and who, as regards its execution, is called the appointor; and the appointee, who is the person foi- whose benefit the power is to bo exercised, and who may take; in default of an ai)p<>inlment. Powers may be classified according to the character of the ap- pointees into general powers and special powers. A (pneral pfnner is one wiiich may 1)C exercised by the donee in I'avoi* of any person or class of persons wlioiii he may choose The donee under a g('nf tlu« power Iwcaiiso tlu^ ■' 1 Sii;;d»'n on I'owcrs, 2 11 , 2.'»(), 278 ; wile woidcl not otiifi wise l»i< provided Williams on Heal l'ro|M'rty. 2J).'». for. < There may Ix' exceptions to thin * 1 Kent. p. ;{2;i. ruh; in equity. In Toilet v. Toilet. 2 " I'erkins v. I'rfsntll, 100 N. ('. 220, 1*. Wms. W.K a man had a life estate (', S. I!. \L sol. with a |(; Ilervcy v. lips v. Bn.wii. Iti R. I. (112. 1.") Atl. R. Hervey, 1 Atk. 507, ."jOB; Smith v. !»<»; r.-as.- v. (iilletti*. :52 N. Y. Supji. Bjiker, 1 Atk. :J8.j; Shannon v. Brad- li)2. 10 .Misc. R. 4(17; (irundy v. Hat- Ktre«t, 1 Sch. & Lef. 52. OH; Fotlier- li<'ld, Ki R. I. r)79. 18 Atl. R, 180; Mc- Kill V. I'othcr^cill. 2 En-cm. 250; Ken- Crcary v. BomhcrKcr. l."il I 'a. St. ;{2;j. naril v. Kcnnard, E. R. 8 Ch. App. 'M W. N. ('. 41; Taync v. .Johrisuu 572: Wilson v. Ri^K'^tt. 2 Ves. Jr. :r.l ; (Ky.), 21 S. W. R. 2;(S; M.. iWJ; Miit- (Jarth V. Townsend, I^ It 7 E<|. 220; ual I.^ Ins. Co. v. Sliipman, 119 N. V. Kcnnard v. Kcnnard. E. R. H Ch. :J2J. 21 N. E. \l. 177 App. 227; I^JinK^low v. IJln^^Hlo^v, 21 * Brown v. I'iiillips, 10 R 1. 012, IB licav. r,r,:i; Vunu V. Elctcli.r, 1 I'. Atl. R. 219. \Vm.s.:3:>l. 1168 LAW OF WILLS. [§ 801. vey an}' interest he may have in the pi"opcrty, but as a valid execution of the power, the intention will be res]iecte(l and the defective execution will be aided. Eut the intention to execute the power, if it does not appear in express terms upon the face of the instrument, must arise by very necessary implication.^ Every conveyance executed by virtue of a poAver of sale should recite the power in cx])licit language, showing its oi'igin and extent, and showing that the property or estate conveyed is conveyed in execution of the power.'- All these facts ought to appear upon the face of the instrument. But where an executor, trustee or other donee of a power has no interest in the property as an individual, a deed of con- veyance, though not reciting the power nor the fact that he is an executor or a trustee, nor showing that it purports to be exe- cuted as carrying out the power, is valid.' § 801. The execution of a power of appointment by a gen- eral or residuary devise in a will. — In determining the ques- tion whether a power of appointment which is to Ije exercised by will is validl}^ executed by a general or a residuary clause in a will, it is first necessary to determine if the donee meant to execute it. This must be ascertained solely from the lan- guage of the will. The intention to execute a power by will may be shown in three modes. 1st. Where there is an express reference to the power itself. 2d. Where the will expressly refers to the property over which the testator has a power of appointment. 3d. Where the provisions of the will executed by the donee of a power to devise would be nullified unless they are to be regarded as an execution of the power.^ An ex- press reference to the power or to the property Av^hich is the subject of the power will usually be conclusive evidence of an intention to execute it. But it is not always necessary that the intention to execute 1 Henderson v. Smitli, 10 C. C. A. Rodohan, 79 Ga. 278, 5 S. E. R. 88; 602, 62 Fed. R. 708: Mutual L. I. Co. Hill v. Conrad (Tex., 1898), 43 S. W. V. Shipraan, 24 N. E. R. 177, 119 N. Y. R. 789. 324; Getting v. Sartiges, 17 R. I. 668, 2 Johnson v. Johnson, 108 N. C. 619. 24 Atl. R. 530; Chase v. Ladd, 29 N. 3 Terry v. Rodohan, 79 Ga. 278, 5 S. E. R. 637. lo") ]Mass. 417; Silvers v. E. R. 38; Arlington State Bank v. Canary, 109 Ind. 267, 9 N. E. R. 904; Paulsen (Neb.. 1899), 78 N. W. R. 303. Brown v. Farmers" Loan & T. Co., 121 ^ See remarks of Story, J., in Blagge N. Y. 302, 24 N. K R. 602; Teny v. v. Miles, 1 Story, C. C. 426. § 801.] TESTAMENTARY USES, TRUST ESTATES, ETC. 11 GO a power to devise should appear by express language. But where an intention to execute a power is implied, the implica- tion must be reasonably clear and manifest. If it is doubtful whether the will was executed to carry into effect the power, the doubt may nullify the alleged execution of the power.^ But if upon the whole will it is apparent that the testator intended to execute a power of appointment of which he was the donee, a general or residuary devise will be sufficient, though there may be no reference in the will to the character or the existence of the power in question.- Independently of statutes by which a will passes lands ac- 1 We cannot do better in this place than to quote the remarks of Judge Story contained in Biagge v. Miles, 1 Story, C. C. i26, on page 446. " The authorities upon this subject may not all be easily reconciled. But the principle furnished by them, how- ever occasionally misapplied, is never departed from, that if the donee of the power intends to execute it, and the mode be in other respects unexceptionable, that intention, how- ever manifested, wlietlier directly or indirectly, positively or by just im- plication, will make the execution valid and operative. I agree that tlie intention to execute the power mast be apparent and clear, so that the transaction is not fairly sus- <;eptible of any other interpretation. If .it be doubtful, under all the cir- cumstances, then the douljt will |)re- vent the instrument from being an execution of the [K>\vcr. All the au- tlioriti(;8 agree that it is not neces- sary that the intention to «'xei-ute a I)Ower should ai)iH'^ir by express terms or recitals in the instruin<'nt. It is suflicient that it shall apiH-^ir by words, acts or deeds deriioiist rating the intention." 2Bull»Tdick V. Wright (Ins(.n, 134 U. S. .572, 10 Sup. Ct. 631; I)(K> V. Koake, 2 Bing. 497; Wildbore v. ( Jregory, L. R 12 E<|. 482; Carte v. ("arte, 3 Atk. 171; .Stillnmn V. Weedon, 16 Sim. 2<»; I'alch v. .Shore, 2 Dr. & Sni. .598; Ilodsden v. Dancer. 16 W. R 1101; I'almer v. Newell, 20 Be4iv. 38; In re Merritt, I S\v. & Tris. 112. ^'o»(/r N. J. Va\. 1:!0. 22 At). R 7!t4; Smith K. & J. .VJO, 5;{.S; Power v. Quely, L. V. Kioyil, 140 N. V. :«?, 35 N. E. R. R 4 Ir. 20; Fenwick v. GretMiwall, 10 GOG; Hrierly v. Hrierly, 12 Rep. 151; Beav. 412. See cases a/iff, p. (523. McCaniant v. Nuckolls. H5 Va. 331, ^ In one or two of the states of the 12 S. R R 100. This is the rule l)y Union it is provided by statute that Ht^itute in some states where an im- if the trustee of a j)Ower with the perative trust is rreateil for the iKMie- rijjlit of seleetion shall jm., p. 330; Sudden on of the |Mi\ver to take ecpialiy. iJerse Powers, pp. 452. 453. v. Derse (.Minn., IS'JS), 7U N. W. R 44. ^ Doyley V. Attorney (Jcncral, 2 Ivj. IITJ: LAW OF WILLS. [§ S02. members of the class who were living at the death of the tes- tator.^ But where there is no gift in express terms in the will to the class directly, but only a power of appointment is created di- recting the donee to divide by will property among the class, onl}' those persons are objects of the power and take in default of an appointment who survive the donee when his will be- comes effective at his death.- In the latter case the court will imply an intention to give the property, on a default of an ap_ pointment, to those persons only among whom the donee might have distributed thej>roperty, and on the failure or the neglect of the donee to exercise the power it will be exercised accord- ingly among those persons. Where property is given to A. for life, with a power in him to devise the same to his children, but no express devise to 'the latter, nor any devise to them or strangers in default of an appointment, the court will execute the power among a class composed of A.*s children living at his death, and not among the children of A. living at the death of the donor of the power. The class will be ascertained and the power executed by the court upon a default in its execu- tion by the donee as of the date of his death, excluding from its operation all persons who, though the}^ would have been members of the class had they survived, have died before the donee.^ The rules just stated are confined to mandatory powers or powers in trust. "Where not only the time and manner of ex- ercising the power are left to the donee, but also the determina- tion of the question whether the power shall he exercised at all is relegated to the uncontrolled discretion of the donee, equity will not interfere. Where this is left to the uncontrollable discretion of the donee or trustee, equity will not attempt to control that which the donor intended should remain uncon- trolled. If, then, the donee is vested with an absolute discre- iStewartv. Keating, 15 Misc. R. 44. ton. 2 Jac. & W. 431; Lambert v. 3G N, Y. S. 913. Cf. Doe v. Martin, 4 Thwaites, L. R. 2 Eq. 151. T. R. 39; Cunningham v. Martin, 1 3 Doyley v. Attorney-General, 2 Eq. Ves. 174. Ca. Ab. 194: Witts v. Bodington, 3 2Melflun V. Devlin. 20 Misc. R. 56, Bro. C. C. 95; Cruwys v. Coleman, 9 45 N. Y. S. 333: Walsh v. Wallinger, Ves. 319, 325; Birch v. Wade, 3 Ves. 2 Russ. &My. 78; Kennedy v. Kings- & B. 95; Finch v. Hollingsworth, 21 Beav. 112. § 802.] TESTAMEXTAKY TSES, TRUST ESTATES, ETC. 11 iO tion not only as to the manner of exercising the power, but to choose whether he shall or shall not exercise it at all, equity will not, in the absence of bad faith on his part, compel him to exercise it.^ This rule is applicable to the execution of a dis- cretionary power of sale,- or to a power to alter investments,' or to divide property among persons nominated by the donee, or to apply income to a particular purpose in such amounts as may be suggested by the best judgment of the trustee.^ So where a donee of a power or a trustee has an uncontrol- lable discretion to apply any or all of the trust property to the support of a beneficiary, equity will not interpose where the donee has exercised the power honestly and in good faith.* Where the trustee has 720 disorfion as to the amount wJtlch is to he applied to the support of the beneficiary, and the discretion, is unlimited only so far as the mode and the time of the pay- 1 Mitchell V. Denson, 29 Ala. 327; Wilkinson v. Getty, 13 Iowa, 157; Hughes V. Washington, 72 111. 84: Lambert v. Harvey, 100 111. 338; Van Brocklin's Estate, 74 Io%va. 412. 38 N. W. R 119; Howard v. Carpenter. 11 Md. 259; Venable v. Trust Co., 74 :Md. 187, 21 AtL R. 704; Greenough v. Wells, 10 Cush. (Mass.) 571, 577; El- dredge V. Heard, 106 ]Mass. 579, 592; Olney v. Balch, 154 Mass. 318, 322; Gibbs V. Marsh, 2 ISIet. (Mass.) 243, 252; Battelle v. Parks, 2 Midi. 531, 535; King v. Merritt, G7 :\rich. 194, A testator devised to his wife all his property for her natural life, with full |X)wer and autliority to devise and bequejith the same, by will, to such of his sons as shall be kindest to her, but such will not to become 0|)erative until after her death. Held, that she had absolute power to de- vise or convey the projierty to some or ail of liis wms. Watson v. Watson, 51 S. W. R 1105. See Jilso sustaining t«ixt, Merritt v. ("ortifs,71 Hun, 012, 24 N. Y. S. 5f)l; Lindo v. Murray. 3(5 N. Y. S. 331. 91 Hun, 335; Hilleu v. L'«;lin, 144 N. Y. 3(55; In re largo's Hst^ite, 45 N. Y. S. 732: Itighter v. Riley (W. Vji.. Ib97;, 27 S. E. K. 357; Dillard v. Dillard (Va., 1896), 21 S. E. R. 669. - Tempest v. Lord Camoys, L. R. 21 Ch. D. 571. 3 Brown v. Brown, L. R 29 Ch. D. 889. 4 See also Pink v. De Thuissey, 3 Mad. 157; Tabor v. Brooks, L. R 10 Ch. D. 273; Marquis v. Murray, L, R 16 Ch. D. 161; Brown v. Higgs,5 Ves. 501; White v. Crane, 18 Beav. 571; Hart V. Tribe, 19 Beav. 149: French V. Davidson, 3 Mad. 396: Costabadie V. Costabadie, 6 Hare, 410. 5 In re Balke, L. R. 29 Ch. D. 021; Tabor v. Brooks. L R. 10 Cli. D. 372; Tiffany v. Monroe (R, I., 1897). 35 Atl. R 302; Reid v. Patterson, 44 N. J. Eq. 211. Where one conveys proi> erty in trust, to be held for the bene- fit of sucli " charitable corporations " as he may appoint by will, a testa- mentary (linn-tion to liis executor, an individual, to expend a certain sum in [>nivi(ling free excursions for lK)or childn-n is v;ilid, ami the exec- utor may give tii(> iiKHiey to a cliari- tiiblt! corporation to bt> so ('.xiwiidcd. Loring v. Wilson fiMass.), 54 X. M R 502: Loring v. Hiair, id. And . ('out to. Pcj*- R 'J'ti. jMjr's AinH'ul, 120 Piu St 'S.i'), VA Atl. K. ^ D.-K'tnan v. D*>;-k Ala. .")0, 1« S. R .O.IO. In EnKliiM.liUKl ^Su^'Ien on Powers, j). 112; "VVill- in some of the Btates it is now ex- iatns on H. P.. p. ;510; Smith v. Death, pressly provided by statute that 5.Ma, where the terms of a jKiwer show W'.Ui. that a fund or any estjite is to \h'. dis- ^ThoriiiKlou v. ThoriiiKton, S2 Ala. trib>it<-d in pro|M)rti«»ns as the roiiKli v. F«irl Cio fur as tlio total number of lifi* ost4itea dolphin. lK'i- lishing charitable donations, which wer«i undcrstfKjd to \*(i valid by the laws anteredcritly in forc*^ The pro- visions of the statute its<'lf airord irnrsistiblo evitleiifo U) my niinil that Kiif.-h was its design and efrect." -"The elr-iuenls of the dix-trinn of the Flnnlisli fbanfery in ri'lation to churiUible u.s»,'s an; laiiks and under his ordinary jurisdiction, nor liif^hways, eihication and prefennont i'ould an appejil 1m-' taken to the House of or|»hans, relief, stock or ntainto- of Lords. Saul v. Wilson. 2 Vernon, nance for liouses of correction, niar- llM; \Vindsotent and |((M>r |M>o]ile, main- captives, aid or ease of any [xMir in- tenance of sick and maimed soldiers habitant concerning; payments of and mariners, s<-h- plied by the Knglisli courts of equity as a fKirt of the general rules of ecjuity. Methodist Chur(;h v, Kemiiigton, 1 Watts (Pa.), 21H; Zimmerman v. An- ders, 6 "Watts & S. (Pa., 1HJ;{), .^IH; Wright v, Lynn, » Pa. St. VM; Wit- man v. Lex.lTS. & li. (Pa., 1«27),W, \)2; Miller v. Porter, 53 Pa. St. 292: Beth- lehem V. Perseverence, 81 Pa. St. 445; Fountain v. Rii venal, 17 How. (U. S.) 369; McGirr v. Aaron, 1 Pa. St. 49; Mayor of Philadelphia v. James, S Rawle (Pa.. 1831), 170; Martin v. Mc- Cord, 5 Watts (Pa.), 494. 1 Burr's Executors v. Smith, 7 Vt. 241. 2Vidal V. Girard's Executors, 2 How. (U. S., 1844). 127. In tliis case Justice Story says: "Whatever doubts might properly be entertained upon the subject when the case of the Trustees of the Philadelphia Bap- tist Association (4 Wlieat. 1) was be- fore the court (1819), those doubts are entirely removed by the later and more satisfactory .sources of informa- tion to which we have alliuled. The former idea was exploiled ami has since nearly disjippeared from the jurisprudence of the rountry. Upon reading the statute carel'iilly one tuin- notbut feel surprised that the doubt* thus iiulicated over existed," 11!) J: LAW OF AVir.I.S. [§ 810. the jurisdiction of equity which existed when it was passed, ;ind which had hcen possessed and exercised for a considerable period, the question as to the existence of the statute in the United States is not important.^ In very many of the states the decisions go much further. Xot only are the principles of English equity, under which charities were enforced and regulated as trusts prior to the statute, recognized, but the statute of Elizabeth itself is, by the decisions, expressly declared to be in force. This is the rule in Illinois, which state has, by statute, re-enacted as a part of its common law all English statutes passed prior to the fourth year of the reign of James I. ;^ and also in Indiana,^ Kansas, Maine,^ Massachusetts,^ Missouri ^ and Wisconsin.'^ 1 Williams v. Pearson, 38 Ala. 299; Green v. Dennis, 6 Conn. 292; New- som V. Stark (1872), 46 Ga. 88; Heuser V. Allen. 42 III, 425; McCord v. Ochil- tree, 8 Blackf. (Ind., 184G), 15; Cromie V. Orphans' Home, 3 Bush (Ky.), 371; ]\Ioore V. Moore, 4 Dana (Ky.), 60; Tingling v. Miller, 77 Md. 104, 107, 26 Atl. R. 491; Dashiell V. Attornej^-Gen- eral, 5 Harr. & J. (Md.) 392; Earle v. Wood, 8 Gush. (Mass.) 430; Going v. Emery, 16 Pick. (Mass.) 107; Norris v. Thompson, 19 N. J. Eq. 307; De Camp V. Dobbins, 29 N. J. Eq. 30; Yates v. Yates, 9 Barb. (N. Y.) 395; McCartee V. Orphan Asylum, 9 Cow. (N. Y.) 437; Ayres v. M. E. Church, 3 Sandf. (N. Y.) 363; Levy v. Levy, 33 N. Y. 97; Williams v. Williams, 8 N. Y. 525, 541 ; Bascom v. Albertson, 34 N. Y. 584, 618; Witman v. Lex, 17 S. & R (Pa.) 88; Potter v. Thornton, 7 R. L 263; Green v. Allen, 8 Humph. (Tenn.) 170; Dickson v. Montgomeiy, 1 Swan (Tenn.), 248; Franklin v. Armfiekl, 2 Sneed (Tenn.), 305; Bell v. Alexander, 22 Tex. 2(52; Hopkins v. Usher, 20 Tex. 89; Burrs Ex'rs v. Smith, 7 Vt. 241 ; Gallegos' Ex'rs v. Attorney-Gen- eral, 3 Leigh (Va.), 450; Brook v. Shacklett. 13 Gratt. (Va.) 301; Ould V. Hospital (1877), 5 Otto (U. S.), 303; Perrin v. Carey, 24 How. (U. S.) 465; Baptist Ass'n v. Hart, 4 Wheat. (U. S.) 1, 30; Vidal v. Girard's Ex'rs, 2 How. (U. S.) 127. 2Crerar v. Williams, 141 III, 625, 34 N. E. R. 467; Seminary v. Mor- gan, 171 III 441, 448; Plumleigh v. Cook, 13 111. 669; Ingraham v. Ingra- ham, 169 lU, 432, 451; Starkweather V. American Bible Society, 72 111. 50. 3 McCord V. Ochiltree, 8 Blackf. (Ind.) 15, in which the court says: "The statute in question we con- ceive to be in aid of the common law, for, though it gave no new ju- risdiction to the court of chancery, it enumerated and specified objects of its cognizance which, prior to its passage, seem to have been involved somewhat in doubt and obscurity." ^Tappan v. Deblois, 45 Me. 122; Preachers' Aid Society v. Rich, 45 Me. 552; Drew v. Wakefield, 54 Me. 297. 5 Going V. Emery, 1 Pick. (Mass., 1834), 107; Sanderson v. White, 18 Pick. (Mass., 1836), 328; Earle v. Wood, 8 Cush. (]\Iass.) 430, 445; Dex- ter v. Gardner, 7 Allen (Mass., 1863), 242; Bates v. Bates, 134 Mass. 110, 113. e Chambers v. sit. Louis, 29 Mo. 543. 7 Webster v. Morris, 60 Wis. 366,390. In Illinois it has been recently held that the validity of charitable be- quests, and the jurisdiction of equity over them, are not altogether de- pendent upon the statute of Eliza- § Sll.] KULES EEGTJLATING CHAEITABLE GIFTS. 1195 §811. The charity must he a piihlic one. — Courts of equity will not enforce a trust as for a charitable purpose un- less the purpose is a public and not a private one. That is to say, it must appear from the character of the gift itself that under its terms some benefit is to be conferred upon, or duty to be performed towards, the public generally, or some part thereof consisting of an indefinite class of persons. This is not to be understood as holding that a gift ior private charity is in <^ver7/ instance illegal and void. The rule merely places gifts in trust for private charity upon the same footing as are other trusts, and requires that the beneficiaries of a private charity shall be definitely named, and that the trust for a private charity shall not offend against the rule of perpetuities.^ The fact that the testator expressly designates a charitable trust created by him a private charity is not conclusive that it is not a public charity, and will not prevent it from being up- held as a public charity if it is such. Thus, where a testator left a sum of money " to apply to the relief of the poor and im fortunate whom I have aided in past years, and also to others, as their judgment may dictate, strictly for pridate cha?'- ity,''^ the court sustained the gift as a valid public charity, pointing out that the class of beneficiaries was indefinite, being the poor and indigent generally.- If the purpose of a charity is icholJij private it will not be sus- tained if it violates the rule against perpetuities. Thus, for ex- ample, a gift to a company to enable it to keep on hand a stock of corn;' a bequest in trust to establish a private museuui in the house of Shakespear at Stratf ord-on-Avon ; ^ or to sustain a library which was supported by the private contributions of its members; * or to provide a fund for the purchase of a cup annu- beth, but that a charitable trust ^Thomson v. Shakespear, John. 612, ■which is consistent with public pol- 2 De (iex, Fisher & J. 399. icy may l)e created for almost any- *Carne v. Loiifr, 29 L. J. Cii. 503, 3 thing that tends to promote the well- De Gex, Fisher & J. To. As the fund doing and well-being of man in so- was to be apjilied to the purchasing ciety. Garrison v. Little, 73 111. App. of lx)oks for a library so long as ten 402. subscribers remain, and as the sus- 'Ommanney v. Rtitcher, Turn. & ])ension of tiie power of alienation RuK. 2W. And see also t.^ H9U-«'J2. thus crcati'tl might cxIimkI b«'yond ^Hullard v. Ghandl(.T, 119 Mass. tim life or lives in being, the gift was 532, 21 N. K li. 9.-) I. voi.i. 'Attorney-(ieneral v. Haberdash- ers' Cr^■- marily for a limited class of beneficiaries, as men of letters and clergymen, is not confined to them, but may be used by the pub- lic generally.^ iln re Nottage, (1895) 2 Cli. 649, 12 » Kelly v. Nicbolls, 18 R I. 03, 25 Reports, 571. Atl. R. 840. 2 Kelly V. Nichols, 18 R L 1, 2, 21 «Carne v. Long, 29 L. J. Cli. 503, 2 Atl. R 906. De Gex, Fish. & J. 75. 3 Attorney-General v. Soule, 28 t Fairbanks v. Lamson, 99 Mass. 533, Mich. 183. 534. 4 In re Bartlett, 163 Mass. 509, 40 N. » St. Paul's Church v. Attorney- K R 899. General, 164 Mass. 188, 195. § Sll.] KULES KEGULATIXG CHARITABLE GIFTS. 1107 A friendly society, whose funds, raised by the subscriptions of its members and by fines and forfeitures imposed on them, are exclusively employed to aid any of its members who may be incapacitated from earning a living by reason of accident or illness, and which may be devoted also to pay annuities to the widows or to the next of kin of its deceased members, is not a ]-)ublic charitable organization which is capable of taking a gift in perpetuity for a charitable purpose.^ But a society which is not supported ivholly by the contributions of its mem- bers, but which is also sustained by voluntary subscriptions by the public, and, more particularly, if it also appears that pov- erty is an absolutely necessary requisite for receiving aid from it, is a public charity, though its benefits are confined to its members.^ A trust to found an asylum for orphans is undoubt- edly valid as a public charity, and such trusts have been re- peatedly sustained. But a gift to a man for the benefit of a private orphan asylum, which he carried on wholly at his ex- pense, is not for a public charity,' as the institution is strictly private, and on its ceasing to exist the bequest will not be given over to another school. So a gift of money to be distributed for the benefit of sev- eral families named, according as they shall need it, is not a pub- lic charity, though it is valid as a gift to the individuals com- posing the families to the extent that it does not suspend the power of alienation too long.* And generally, as is elsewhere pointed out',' gifts in trust for poor relations are valid, being regarded not as gifts either for public or private charity, but as gifts to classes of individuals, the members of which are to be ascertained by the trustees exercising their discretion.* 1 Cunnack v, Edwanls, (1800) 2 Ch. sense of the term, though tlie object 67'J; Bubb v. Read, o Rawle (Pa.), 151; of tlie trust was to etTectuate a pub- Swift V. Society of Eastcjn, 7;i Pa. St. lie enter])rise, partaking; lar^a'ly of 302; In re Clark's Trust, Ij. II. 1 Cli. an educational cliaracler. World's Div. 497; In re Dutton, L. li. 4 Ex. Col. Exposition v. United States, 50 Div, 54. Fed. R. 054, C. C. i\. 58. -' In re Buck, Bruty v. Macky, (1890) 8 ciark v. Taylor, 1 Drew. 013. 2 Ch. 727. And it has very recently < Liley v. Uoy, 1 Hare, 580. V»een held tliat a trust which wa.s * See ^ 592. created for tlio purpose of carrying "WL.ijster v. Morris, CO Wis. 300, onthe World's Columbian Exposition 392; Isaac v. Dcfriez, 17 Ves. 373, in Chica(?o was not a jiuhlic chari- note; AVhite v. White, 7 Ves. 423; At- taljJe trust in the legal and technical torney-Cionerul v. Price, 17 Vea 371; 1108 LAW OF WIIJ.S. [§ 811, The question of the public character of a charity or of an in- stitution which ckiiuis a devise for charitable purposes is to bo (h'tci'iiiiiKMl by the court upon all the circumstances proved to exist in tlie particular case. The mere fact that an institution, though it is carrying on a public charitable work, is partly supported by private subscriptions from those persons who, in return, enjoy peculiar privileges, or that it enacts payment from those of its inmates or beneficiaries who are able to pay, does not alone deprive it of the character of a public charity. If the institution, whether it be a library, a home for the aged, or a hospital, is not conducted with a view to making a pecuniary profit, all its surplus income being expended in increasing its resources, and if the public or any indefinite class of the public Avho are unable to pa}^ are entitled to tiie use of its facilities gratis, it is a public charitable institution, though it may be conducted by a private corporation.^ A gift in trust for the encouragement of a sport cannot be regarded as a charity, though the practice of the sport may be in many respects beneficial to the public. In England it has been held that a trust attempted to be created by a testator for the purpose of providing annually and forever a cup to be given to the most successful yacht of the season, though stated to be bequeathed for the purpose of encouraging the sport of yachting, Avas not a valid charital)le gift under the statute of Elizabeth.^ Doubtless, under the principle settled in this case, a devise for the purpose of establishing or maintaining a race-track, base-ball ground or a club-house for the promotion of athletics would be invalid. Nor could trusts for such purposes be regarded as char- itable merely because they tend to preserve or promote the physical and mental health of those who participate in them ; for, Avhile such a result may flow from them, it is wholly inci- dental thereto, and by no means always necessarily follows. The object of all mere sports, whether practiced in public or in private, is amusement and relaxation, and while it may be es- Gillain v. Taylor, L. R. 16 Eq. 581; Park's Adm'r v. American Home ]Malioa V. Savage, 1 Sch. & Lef. 111. Missionary Soc, 63 Vt. 19, 20 Atl. K. Where A. lias power, under a will, to 107. dispose of money in charitable gifts, i Phillips v. Harrow (Iowa, 1807), 61 he cannot give it to private persons N. W. R. 434. in recognition of kindness and in ^jni-e Nottage, (1895) 2 Ch. 049, 13 testimony of affection and regard. Reports, 571; Jones v. Palmer, id. 812.] KULES KEGULATIXG CHAEITABLE GIFTS. llUO sential to society as it is at present constituted that anything which furnishes relaxation and amusement is not to be con- demned, still they cannot correctly be regarded as charities within the existing legal rules. It should not be understood, however, that a testamentary^ gift to a corporation is invalid merely because the object of the corporation is sport or amuse- ment. Social or sporting clubs may of course take real and personal property for the purpose of their incorporation if they are authorized to do so by statute. § 812. Tlie validity of bequests for religious purposes.^ Testamentary trusts of real or personal property created for any purpose connected with the advancement of the Christian religion are unquestionably valid as public charities. So, be- quests of money for repairing and for ornamenting churches,^ or for erecting or sustaining them, have been repeatedly sus- tained.- In very many cases bequests for the promotion, sup- port and propagation of religion generally have been ui)held iHoare v, Osborne, L. R. 1 Eq. 583, 585; In re Rigley's Trust, 36 L. J. Ch. 147. -Locks\-ood V. Weed, 2 Conn. 287; Grissom v. Hill, 17 Ark. 483; Trustees V. Eagle Bank, 7 Conn. 476; Miller v. Cliittenilen. 2 Iowa, 315; Seda v. Hul;lo. 75 Iowa, 429. 431, 50 N. W. R. 685; Kinney v. Kinney, 86 Ky. 610, 6 S. R. 593; Brown v. Kelsey, 2 Cush. (Mass.) 243, 250; In re Bartlett, 163 Mass. 509, 40 N. E. R. 899; Teele v. Bisliop of Derry (Mass.. 1897). 47 N. E. li. 422; McAlister v. Burgess (Mass., 1H9S), :j7 N. E. R 173 (for the poor churches of Boston); Goode v. ]\Ic- Pherson, 51 Mo. 136; Preston v. Hawk, 3 A|)i). Div. 43, 37 N. Y. Supp. 1079; liitiivar V. Fiison. 8 Pa. St. 327; .Metli- odLst Church v. Reiningt(»n, 1 Watts (Pa.). 21H; Potter v Thornton, 7 R. I. 2.52; Baptist S'xiety v. Hall, 8 It I, 234; Brr)wn v Baj)tist Society, 9 R I. 177; Krifrson v. General As-semhiy, 7 II(Msk. (Tenn.)083; Webster v. .AJor- rJH, 06 Wis. 366. 3S0; WhiUi v. Whil.-. 2 Iti'jKjrts, :{80,(lH93)2Cli. 41; Adiiaru V. Cole, 6 Beav. 353 (a bcarticular religious services of the dcnoniiiiation to wiiich the 8o< <'icty i)('leiug employed in augmenting the number of books, and where the public was entitled to the use of the books in the reading-room, it is a public institution though carried on by a private corporation.^ §815. Gifts for scientific purposes. — Testamentary gifts bestowed b}^ the testator for the purpose of promoting science and education, and to secure a wider diffusion of knowledge generally, are valid as charities. Under this classification donations for the purpose of pro- moting horticulture and agriculture, and " for other philosoph- ical and philanthro})ical purposes; "'- for " the advancement anil propagation of education in economic and sanitary science ; " ■' for the promotion of the art of medicine;* to support a histor- ical society ; '" for the benefit of societies organized for the pre- vention of cruelty to animals, and to improve the breeding of animals, and various bequests for similar purposes, have been sustained as valid." The promotion of art, including in the term sculpture and painting, though not perhaps within the letter of the statute of Elizabeth, is certainly within its spirit. Art is educational. It refines and enriches the mind, and renders more pleasant and healthful, and consequently more useful, the lives of all who are brought under its influence. It is for the general public interest that art should flourish, and the law will foster art so far as may be done consistently with recognized and settled principles. Hence, bequests for the founding of art institutes and museums, and for the purpose of giving prizes to the same, have been held to be valid.^ 1 Phillips V. Harrow (Iowa, 1897), 61 ^ jn a recent case a gift to sustain N. W. R. 434. And see also ante, an anti-vivisection society was sus- pp. 1197, 1198. tained as a valid charitable gift. In 2Rotch V. Emerson. 105 Mass. 431, re Foveaux, (1895) 2 Ch. 501. 433. ' Almy v. Jones, 17 R. I. 265, 269, 21 3 In re Berridge. 63 Law Times, 470. Atl. R. 616: British Museum v. White, *Stratton v. Physio-Medical Col- 2 S. & 8. 594; Yates v. University, lege, 149 Mass. 505, 21 N. E. R. 874. L. R. 8 Ch. App. 454. L. R 7 H. L. C. 5 Missouri Historical Society v. 438; Coates v. McKillop, 58 L. T. 212. Academy of Science (Mo., 1894), 8 S. W. R. 346. § 816.] RULES REGULATING CHARITABLE GIFTS. 120T §816. Testamentary proYisions for the poor — Validity of. — Dex'ises and bequests for the poor and indigent generally, or for the poor of a certain city, district or neighborhood, are valid under the statute of Elizabeth, and also where that stat- ute is not recognized. To alleviate poverty, to aid those who are in indigency, and to enable them to help themselves, have always been recognized as evincing the true spirit of charity and humanity in every system of philosophy, religion and ethics. " The poor ye have always with you; wliensoever you Avill you may do them good," said the Founder of Christianity, and this saying of Christ has been observed and followed by Christians of all periods as a fundamental injunction of the Master. In view of the prominence of the duty of aiding the poor in the system of Christian belief as taught by the Founder of Christianity, and as shown in the practice of the church in all asres, a erift to one or more churches of a certain denomination, for the benefit of the poor of the church is particularly favored by the courts.^ The objection that aiding the poor is not within the corporate and charter power of the church, as a re- ligious institution, or that it is foreign to the objects and pur- poses of such institutions, has absolutely no weight whatever.^ And a devise to the poor of a church or a parish is not void for uncertainty where, according to the rules and discipline of the church as organized under the statute, the rector, or the -'Hi. of relir-ving unfortunate females and ■' HeanLsley v. l'>rid;;;e|Mirt, 53 C^onii. firing for their offspring "); .Muonr V. 493; Sixilian v. i'hilailelphia, 33 I'a, M\ver 207, 209. Iiy them was intended, tlie i)romo- * Everett v. Carr, 59 Me. ."{25, 335. tion of such an object would not be "James v. Allen. ;J Mer. 17. 12 IS LAW OF WILLS. [§ 821. l)urposos, c/iiiritahle or 2>/ii/f(>it//r<>j>ie,'" ^ ^^ ^or sucli henevolcnt, charitable and religious institutions as the executors may think proper,'"- or "for the promotion of the religious, W(;;r//5 and social welfare of the people in any locality," ^ or '^ for such benev- olent, charitable and religious purjyoses as the executors may think advantageous," * has been held invalid as a charitable gift, being void for uncertainty as to the beneficiaries, and for the further reason that the ex^va^sQCi j^urjwse of the gift does not come under the definition of a jndflic cJiaritij, as that word is employed in its strict legal and technical sense.'' The meaning of the word '' benevolent " or "philanthropic," or of any similar vague term, may be restricted by the lan- guage of the context if it is associated with other words which possess a technical meaning, and which show that the testator intends to dispose of his property for charitable purposes in the technical sense of the term. Thus, a gift in trust to be expended by the trustees for charitahle and henevolcnt purposes has been held valid," as for a public charity, and the same rul- ing was had where the gift was in aid of objects and purposes of " benevolence and charity^ public or private^'' or for the edu- cation of deserving youths.^ In all cases where the word " benevolent " is employed in connection and association with the technical terms proper to the creation of charitable trusts, it will have a secondary and restricted meaning, and may be construed as co-extensive and synonymous with the word "charitable."^ iln re MacDiiff v. MacDuff, (1896) religious; it would include all gifts 2 Ch. 451. prompted by good will or kindly 2Norris v. Thompson, 19 N. J. Eq. feeling toward the recipient, whether 307, 20 N. J. Eq. 489. an object of charity or not. The !i Livesey V. Jones (N. J. Ch.), 35 Atl. natural and usual meaning of the R. 10C4. word would so extend it. It has no 4 Williams v. Kershaw, 5 L. J. (N. legal meaning. The word 'charita- S.) Ch. 84, 5 CI. & Fin. 111. ble' has acquired a settled limited •' " It is conceded that, by the Eng- meaning in law which confines it lish decisions, the words ' cliaritable within known limits." Remarks of and religious ' are sufficiently defi- the court in Norris v. Thompson, 19 nite, and it is contended tliat, by the N. J. Eq. 307. same authorities, tlie word •benevo- •'Fox v. Gibbs, 86 Me. 87, 29 Atl. R lent ' is not, and that a gift to benevo- 940; People v. Powers, 8 Misc. R. 628, lent objects or for benevolent institu- 29 N. Y. Supp. 950. tions is void. The word 'benevolent'. "Saltonstall v. Sanders, 10 Allen is certainly more indefinite and of (Mass.). 440. far wider range than charitable or * Rotch v. Emferson, 105 Mass. 431, § 822.] EULES KEGULATIXG CHARITABLE GIFTS. 1219 § S2'2. Miscellaneous cases of charitable gifts. — Many in- stances occur of gifts which have been held valid as charitable which cannot be strictly classified under any one of the pre- ceding heads. Thus, a bequest to trustees to be employed in suppressing the sale, manufacture and use of intoxicating liq- uors;^ for the purpose of circulating the writings of Henry George dealing with economic questions ; - for the distribution of good books among poor people;^ to promote the cause of peace throughout the world;* for the benefit of native-born maiden ladies;' to purchase land and to erect model buildings thereon for rent so as to improve the moral, physical and intel- lectual condition of the youth of a city;^ to aid apprentices in setting themselves up in business;' for planting shade trees;* to construct children's play grounds;^ to establish a protectory for boys;^" to maintain a life boat,'^ a botanical garden,^^ or a museum at Shakespear's house at Stratford-on-Avon," or an institution for the investigation and cure of the diseases of birds and quadrupeds which are useful to man, and to support a lecturer on the same;" to assist in sustaining a volunteer regi- ment in England ;^^ for the benefit of the British ]\Iuseum;^*' or for the Eoyal Geographical Society; ^' for a law library ; ^^ for an 434; Chamberlain v. Stearns, 111 Mass. 267, 208: Suter v. Hilliard, 132 Mas.s. 413: De Camp v. Dobbins, 31 X.J. Eq. GOj; Adye v. Smitli, 44 Conn. 60; In re Jarman, L. R. 8 Ch. D. .184; Hill V. Burns. 2 W. «& S. 80; Crichton V. Griersoii. 3 Bligh (N. R), 424, 3 Wils. & S. 329, 341; Heath v. Chap- man, 2 Drew. 417; Ewen v. Banner- man, 2 Dow & CI. 74. 101, 4 Wilson & Shaw. 346: Millar v. Rowan, 5 CL & Fin. 99: Kendall v. Gran;;er, 5 Beav. 300: Morice v. Bishop ol' Dur- liani. 9 V«is. 399. 1 Haines v. Allen. 78 Ind. 100, 102. 2 George v. Braddock, 4.'5 N. J. Eij. 757, 18 Atl. R. H>i\. 'Pickering v. Shotwell. 10 Pa. St. 23. ♦Tai)pan v. Deblois, ir, Me. 122. » Fellows V. Miner, 119 Mass. 511, 545. 6 Webster v. Wiggin (R. I.), 31 AtL R. 824. " Franklin's Adni'r v. City of Phila- delphia, 13 Pa. Co. Ct. R. 241, 2 Pa. Dist. Co. R. 435. «Cresson"s Appeal, 30 Pa. St. 437. 9 In re Smith. 5 Pa. Dig. Co. R 327. 10 Duggan v. Slocum, 83 Fed. R 244. 11 Johnson v. Swan, 3 Mad. 457. i-Townley v. Bedwell, 6 Ves. 194- i^Tliompson v. Shakespear, 1 De Ge.x, F. & J. 399. •* London University v. Yarrow, 23 Beav. 59. 1 De Ge.x. G. & J. 72. '■•Alt V. Stratheden, 8 Reports, 515, (1894) 3 Cii. 265; Ciianiljerlayne v. Brockett. L. R. 8 Ch. 2()(i. '•' Britisii Maseuni v. White, 2 Sim. & St. 59.5. 1' Beaumont v. Oliviera, L. U. (i Va{. 534. »» Craig V. Lilly (Pa., 1^87), 9 .Ml. R 171. 1220 LAW OF WILLS. [§ 822. "art institute," the income to be distributed in annual prizes for the encourag-einent of art;' for the purpose of giving prizes for the advancement of medical science, and to distribute treatises;^ for the benefit of soldiers and sailors who served in the War of the Eebellion, their widows and orphans;* for a Sunday school library ; * a gift for deserving literary men who have been un- successful;* for sheltering homeless people;* to establish a fire engine;^ for the relief of disabled firemen;^ for the relief of emigrants and travelers;^ for the benefit of the members of a Masonic lodge;''' for the benefit of a Shaker community;" for the removal of slaves to Liberia; '- to create a public sentiment that will put an end to African slavery ;'* to protect American citizens of African descent in the enjoyment of their civil rights as provided for in the federal constitution and by the various acts of congress; '^ to furnish prizes for essays; '* or for the most important discovery in light or heat made in America ; '* and for the diffusion of useful knowledge and instruction among clubs and meetings of the workingmen ; '^ to establish a home for aged women,'^ or a home for needy single women and poor widows; '^ or to pay money to a certain number of persons over fifty years of age who attend a certain chapel,-" has been held valid. 1 Almy V. Joues, 17 R. T. 2G.1. 21 Atl. Eq. 107: Cruse v. Axtel. 50 Ind. 49; R 616. Duke v. Fuller, 9 N H. 536. 2 Palmer v. President, etc. of the " Gass v. Wilhite, 2 Dana (Ky.), 170. Union Bank, 17 R. L 267, 2-4 AtL R. ^^ Wade v. American Colonization 109. Soc, 7 Sm. & M. (Miss.) 695; Walker 3 Holmes v. Coates, 159 Mass. 226, v. Walker, 24 Ga. 420. 34 N. E. R. 190. 13 Attorney-General v. Garrison, 101 ^Fairbanks v. Lamson, 99 Mass. Mass. 227; Jackson v. Phillips, 14 533; Conklin v. Davis, 63 Conn. 877, Allen (Mass.), 550. 28 Atl. R. 537. >* In re Lewis' Estate, 152 Pa. St. 5 Thompson v. Thompson, 1 Coll. 477, 31 W. N. C. 460, 25 Atl. R. 878, 11 295. Pa. Co. Ct. R. 561. « In re Croxall's Estate (Pa. St., ^^ Farrer v. St. Catherine's College, 1896), 29 Atl. R. 759. L. R. 16 Eq. 19. 7 Bethlehem v. Perseverance Co., i* Amherst Academy v. Harvard 81 Pa. St. 445; Thomas v. Ellmaker, College, 12 Gray (Mass.), 582. 1 Pars. Cas. (Pa.) 98. i^ Sweeney v. Sampson, 5 Ind. 465. 8 Potts V. Philadelphia Society, 8 J* Hazeltine v. Vose, 80 Me. 374, 14 Phila. R 326; In re Jeanes, 3 Pa. Dist. Atl, R 733. Ct. R. 31 4, 34 W. N. C. 190. i^Swasey v. American Bible So- 9 Chambers v. St. Louis, 29 Mo. 543. ciety, 57 3Ie. 523. lOMcBride v. Elmer, 2 Halst. (N. J.) 20 in re Wall, 42 Ch. 510. In this § 823.] EULES REGULATING CHARITABLE GIFTS. 1221 § 823. Testamentary provisions for the erection and care of monuments. — A dedication of land for the maintenance of a cliurcli-yard or burial ground in connection with a church or religious society, or as a public burying ground, or even for a burial ground for persons of a particular race or class, or who are resident in a particular neighborhood, is a dedication of the land to a public and charitable use.^ Hence a testamentary disposition either of land, or money for the purchase of land, for the establishment or the support of a public cemetery in which all persons, upon compliance with the conditions pre- scribed, shall have the right of interment, is valid as for a pub- lic and charitable purpose.- A very different question arises, and one which is not alto- gether easy of proper solution, in the case of a gift in per- petuity to provide for the purchase of a burial plot for the iedator alone, or for the permanent care of one already owned Jy him, or for the purchase and care of -di family hurial plot, or for the erection of a monument to the memory of the testator. The gift for a j^uUlc cemetery is one that is calculated to con- fer a benefit upon the whole public or upon a certain large though indefinite class of the public. Every characteristic of a public charity is present. It is intended to supply a public necessity and to aid in preserving the public health by furnishing a proper and convenient place of sepulture for the dead. And as the interment of the departed with appropriate ceremonies case the gift was sustained as a valid 243; Sheldon v. Stockbridge, 67 Vt. charitable bequest to the '"aged" 299; Knox v. Knox, 9 W. Va, 124; under the statute of Elizabeth. Webster v. Morris, 66 Wis. 306, 380; J Hopkins v. Griuisliaw, 16:") U. S. Naumann v. Weidinann, 182 Pa. St. 342, 353; Beatty v. Kurtz. 2 Peters 263, 267, 37 Atl. R. 863: and see cases (U. S.), 566, 583; Cincinnati v. Wliite, in last note. A statute perniitting Peters {U. S.), 431, 436; Jones v. a ceinetery association to take proj)- Habershani, 3 Woods. 443, 470, 107 erty bequeathed to it in trust for U. S. 174, 183, 184; Dexter v, Gard- tlie improvement of the cemetery, ner, 7 Allen (Mass.), 243. 247; Di- or tliereiuiir and preservation of any venger v. Geary, 113 Ind. 106, 14 monument or gravestone, etc.. in it, N. E. R. 903; In re Vauglian, 33 Cli. is a valid e.xercise of legislative Div. 187. IKiwer and permits a perpetual trust, - Bronson V. Strouse, 57 Conn. 360, to that extent annulling tiie rule 17 Atl. R 099 ((ien. St.. § 2951); against |M'rpetuities. liurtson v. El- Chatham v. Brainard, 11 Conn. 00; den, 50 N, J. Eq. 522, 525, 20 Atl. R liaptist ('hun-h v. Presbyterian 561; Moore's Ex'r v. Mooro, 00 N. J. Churfh. \H H. .Mose, all he gives must then be taken as surplus, particularly if the amount for the invalid purpose can be ascer- tained to be small. Tiie valid chari- table object will take as against the residuary legatee. Fisk v. Attorney- General. L R. 4 Eossible to carry out his general intent. In all the cases of charities which liave been administered in the English courts of chanceiy without the aid of the sign-manual, the prerogative of the king, acting through the chan- cellor, has not been alluded to except for the pur|K^>se of distuiguishing it from the iK)W«'r exerci.sed by the court in its inherent jurisdiction with the assistance of its masters iu chancery." 1230 LAW OF WILLS. [§ 825. foumled for the purpo.se of educating the freedmen and for the education of colored persons generally.' "Where the rule of ci/ j)/'es, as it has been defined and limited within reasonable bounds, is recognized, a gift by will for the benefit of poor families in a city to aid the children of such families in attending school was upon the establisliment of free schools in that city devoted to the purchase of books for the latter.- So, where money was given to support a school- liouse in a particular district, and this school district was sub- sequently aljolished by statute, the income of the money was devoted to the su[)port of another school within the same ter- ritorial limits, though children from outside of the district at- tended.* The doctrine of cy j^res is also applicable where the testator has made a valid charitable gift in trust for a particu- lar charitable institution, definitely designated, and after his death, and consequently after the gift has vested in the partic- ular institution, it suspends operations. In such case the trustee does not take for his own benefit, even though it be a religious corporation, but a court of equity will apply the funds for a similar charitable purpose through an institution of a similar character as that which has suspended, or as near as possible to the orig-inal intention of the testator.* If, however, the testator has not used languacje from icJiich a general intent may be implied, or if he has pointed out some particular institution or mode of application by which the charity is to be carried out, the court will not decree an execu- tion cy i^res^ Avhen, for any reason, the carrying into effect of the particular intent of the testator becomes impracticable. Thus, where a testatrix gave money for the purchase of a chapel, 1 Jackson r. Phillips, 14 Allen its modified form by tlie fedei-al (Mass.), 539, 550: Attorney-General v. courts. See Loring v. Marsh, 6 Wall. Garrison, 101 Mass. 227: Attorney- (U. S.) 337; Perrin v. Carey, 24 How. General v. Briggs. 164 ^lass. 561, 42 (U. S.) 465: Vidal v. Girard. 2 How. N. E. R. 118; Theological Society v. (U.S.)127;Fontainv.Ravenal.l7How. Attorney-General, 135 Mass. 285. 289; (U. S.) 369. Tlie doctrine of cypres, Stratton v. Physio-Medical Society, whereby trust provisions of a will 149 Mass. 505, 21 N. E. R 874. are executed as near to the presumed 2 Birchard v. Scott, 39 Conn. 63. intention of the testator as may be, 3 Attorney-General v. Briggs, 42 N. is not recognized in Wisconsin. Mc- E. R. 118, 164 Mass. 561. Hugh v. McCole, 72 N. W. R. 631 * Barnard v. Adams, 58 Fed. R. 313. (Wis., 1897). The cy pres doctrine is supjxjrted in § 825.] RULES REGULATING CHARITABLE GIFTS. 1231 the title to wliicli was to be vested in the bishop, for the per- petual religious services of the Roman Catholic church in her native town, and the bishop refused to take part in the matter, thus rendering the scheme impracticable, it was held tliat an execution of the gift cf/ j?res could not be had. The intention of the testator was clearly not a general one to advance religion in the parish, but to build and support a chapel in one particular place, and, this failing, no other purpose could be substituted.^ The power of equity to carry out a charitable gift cij j)res is recognized in ]\[issouri as a part of the inherent power of equity to execute trusts, independently of the statute of Elizabeth and irrespective of the English rule regarding it as a branch of the royal prerogative.- So where the scheme of the testator for the erection of a building which was to be occupied by two charitable corporations jointly became impracticable on ac- count of the character and surroundings of the property, the court decreed a sale of the same and authorized each institu- tion to receive a portion of the proceeds to be devoted to the erection of a separate edifice for each association.' It has been Boted that in Pennsylvania charitable institutions are greatly favored, and the courts go to great lengths in seeking out and effectuating the intention of the testator. And while the courts repudiate any claim to possess any branch of the royal prerog- ative, or to exercise anv powers not entirely judicial, it may, with entire correctness, be said that they recognize a power to construe cypres the charitable meaning of the testator so far as such power is modified by the principles of our government and laws.* iTeele v. Bishop of Deny (Mass., 2 Missouri Historical Society v. 1S98), 47 N. E. R 422. The case of Academy (Mo., 1895), 8 S. W. K. :M0; Attorney-General v. Bishop of Ox- Academy v. Clemens, 50 Mo. 1G7; ford, 1 Bro. C. C. 444, n., was similar. Goode v. ]\IcPherson, 51 Mo. 12G. The testator left money to •• build a ^Missouri Historical Society v. church at W. where the chapel now Academy of Science (Mo., 1895), 8 S. in," anil as the defendant, who was W. R 340. ]x)th pars- cluincellor. as against a claim on the ington. 1 Watts (Pa.). 218; Wiiitmau jKirt of tiieward.jnsoftli.'oldclmn-h v. Lex. 17 S. & R (Pa.. 1827), 88, 91; that it should be n'paircd. dccrt'cd In re Lewis' Kstatc. 11 Pa. Co. Ct. R that tin- money should Im' paid lo the 5(il: KlaliiTly's Kstatf. 2 I'ars. Cas. next of kin. The charital»lc iritfii- IHJ; Philadelphia V. Cirurd, 45 Pa. tion was certainly specific in both Si. I). thcst' cases. 1232 LAW OF AVIT.LS. [§ 826. § 82G. rnccrtiiinty and indefiniteness as regards cliarita- l)le gifts. — Although the rules of law and the principles of equity which are applicable to trusts which are not charitable are not applied with the same degree of strictness to trusts which are charitable, still, in very many cases, courts of equity have refused to sustain cliaritable trusts for the reason that the}' were indefinite and uncertain in some one or more re- spects. The cases in which charitable gifts have failed on ac- count of uncertainty may be classified under three heads: Fh'st. The uncertainty or indefiniteness which Avill invali- date the trust may relate to the purpose of the charitable trust itself, and it may cause a failure of the trust even where the trustee is definitely designated, as, for instance, in the case of a bequest to trustees or executors of money to devote "to charitable and religious purposes," ^ or a bequest to the execu- tor " for religious purposes," ^ or for " foreign missionary pur- poses and for the poor saints," ^ or for benevolent purposes,* and there is no institution or means jpointed out hj which the gift may he carried into effect.^ Second. The indefiniteness and uncertainty may relate to the person or to the institution that is to act as the trustee of the charity, and may arise either {a) because no trustee is named at all,^ or ih) because the person or institution named as trustee is incapable of taking or of executing the trust," or ( Post. ^ 828. that, though the gift itself is in the ' Post, % 830. vaguest and most indefinite terms 8 Post, § 831. j; S27.] KL'LES EEGULATIXG CHARITABLE GIFTS. 1233 SO vaguely and generally designated that they cannot be ascer- tained either by the trustee whom the testator has named or by a court of equity to whom the trustee has applied for guid- ance. An example of this Avould be where the testator has bequeathed money to a trustee to be distributed " among the poor and unfortunate,^^ or to be devoted to the " education of the colored people^'' or to be distributed ^^ arinriKj poor loidows^'' ^ or to propagate the gospel," and the testator has not only failed to designate the institution or mode in which his bounty is to be applied, but has also not limited it to beneficiaries in any particular place.' ^lost cases of uncertainty in charitable gifts range them- selves under one of these heads. Some may come under all of them. In the latter case the invalidity of the gift is incur- able, and it will fail as a charitable gift. These various classes of invalid charitable gifts we will now proceed to consider in. detail. § 827. The iudefiuiteness of tlie beneficiaries of tlie charity. Trusts for charitable purposes constitute a striking exception to the general rule that the cestuis que trust for whose heneft the trust has heen created must he definitely ascertained and pointed out by the person who has given the property in trust. In the case of ordinary trusts the donor of a trust must not only con- fer the legal title to the property which he conveys in trust upon some definite person, but he must point out by name, or in some other equally definite manner, the particular person or persons who are to be the beneficiaries under the trust. In the case of charitable trusts the case is quite otherwise, for it is immaterial how uncertain and indefinite the ultimate benefi- ciaries of a charity are, if there is pointed out a legal mode of ascertaining who they are, and of distributing the bounty of the donor among them in accordance with his intention. In order to constitute a valid charitable trust the testator must, Jirnt, appoint a trustee, or, either expressly or by imj)lication, show ;i clear intention tiiat the court of <'(|iiity shall a]>i>()int f>ne for him ; and second^ he must direct that his money ov oilier ' Oalloj^o V. Attorney-General, 3 cisions on tin' (iiicstion of tlio cliar- L»'ij?li (Vju). AT}{). acter of tliu boneliciurics uro dif*- - t.'arjHjnter v. Milli-r, :' \V. \'ii. 171. cuMsud. 'See % 827, where tlie various do- 7« 1234 LAW OF WILLS. [§ 82T. ])roportv shall be applied to a purpose which is in itself legally charitable, and which is not so indefinite that it cannot be car- ried into execution. If he shall do this, his intention is not to fail because the beneficiaries consist of a vague, indefinite and fluctuating class of persons. Indeed, in many of the cases it has been held that the indefiniteness of the beneficiaries is of the very essence of a charitable trust, and that no trust is tech- nically and legally charitable unless the beneficiaries are thus vaa'ue and indefinite.^ 1 Williams v. Pearson, 38 Ala. 299; People V. Cogswell (Cal.), 45 Pac. R. 270 ; Treat's Appeal, 30 Conu.113; Birchard V. Scott, 39 Conn. 63; Beckwith v. Rector, 69 Ga. 569; State v. Griffith, 2 Del. Cb. 392; Goodrich's Appeal, 57 Conn. 275, 18 Atl. R. 49; Woodruff v. Marsh, 63 Conn. 125; Newson v. Stark, 46 Ga. 88; In graham v. Ingraham, 169 111. 432, 450; Grand Prairie Sem- inary V. Morgan, 49 N. E. R. 516, 171 111. 444, 448; Heuser v. Allen, 42 111. 425; De Bruler v. Ferguson, 54 Ind. 549; Miller v. Chittenden, 2 Iowa, 315; Phillips v. Harrower (Iowa), 61 N. W. R. 434; Lepage v. JIcNamara, r) Iowa, 414; Kinney v. Kinney, 86 Ky. 610, 6 S. W. R. 593; Moore v. Moore, 4 Dana (Ky.), 354; Bedford v. Bedford (Ky., 1890), 35 S. W. R. 926; Fink V. Fink, 12 La. Ann. 301 ; Needles V. IMartin, 33 Md. 609; Bartlett v. King, 12 Mass. 537; Saltonstall v. Sanders, 11 Allen, 456, 464: Chana- bers V. St. Louis, 29 ]Mo. 543; Kurz- man v. Lowy, 52 N. Y. S. 83, 23 Misc. R 380; Beekman v. Bonsor, 23 N. Y. 298; Downing v. Marshall, 23 N. Y. 366; Goddard v. Pomeroy, 36 Barb. (N. Y.) 546; Levy v. Levy, 33 N. Y. 1)7; Paschal v. Acklin, 27 Tex. 196; In re Ingersoll's Will, 59 Ilun, 571 ; Miller V. Teachout, 24 Ohio St. 525; Gerke V. Purcell, 25 Ohio St. 267; Raley v. County of Umatilla, 15 Oreg. 172, 13 Pac. R. 890; Croxall's Estate (Pa. St.), 29 Atl. R. 759; Schultz's Appeal. 80 P;i. St. 396; Board of Foreign Mis- sions V. Culp, 151 Pa. St. 467, 25 AtL R. 117, 31 W. N. C. 135; Brennaa V. Winkler, 37 S. C. 457, 16 S. E. R. 190; Dickson v. Montgomery, 1 Swan (Tenn.), 348; Ileiskell v. Lodge, 3 Pickle (Tenn.), 168; Johnson v. John- son, 92 Tenn. 559, 565, 23 S. W. R. 114; Fadness v. Braunborg, 73 Wis. 257, 41 N. W. R. 84; Sawtelle v. Witham, 94 Wis. 412, 414. 69 N. W. R. 72; Dodge V. Williams, 46 Wis. 70, 98; Gould V. Orphan Asylum, 46 Wis. 106. A bequest of property "to be used " by the bishop of the diocese of G., " for the benefit and behoof of the Roman Catholic Churcii," is too indefinite to be executed. McIIugh V. McCole, 72 N. W. R. 631 (Wis., 1897). In some of the states it seems to be the rule, which is sustained by the earlier cases, that practically the same requirements as to the definite- ness of the beneficiaries of the trust is required in the case of a charitable trust as are required where the trust is for a private pur^jose. See, as sus- taining this view, the cases of Needles V. Martin, 33 Md. 609; Dashiel v. At- torney-General, 5 H. & J. (Md.) 32, 400 ; W^ilderman v. Baltimore, 8 Md. 551; Virginia v. Levy, 23 Gratt. (Va.) 21; Seaburn v. Seaburn, 15 Gratt. (Md.) 423; Gallego'sEx'rs v. Attorney-Gen- eral, 3 Leigh (Va.), 450; Trustees v. Chamber's Ex'rs, 3 Jones' Eq. (N. C.) 453; Holland v. Peck, 2 Ired. Eq. (N. C.) 255; Miller v. Atkinson, 63 N. C. 537; Venable v. Coffman, 2 W. Va. 310; Carpenter v. Miller, 3 W. Va, 174. § S27.] EULES REGULATING CHARITABLE GIFTS. 123S Thus, a gift for the benefit of the poor generalhj^ or for edu- cational purposes to be expended under the direction of trustees, named by the testator or to be named by the court,^ for thet education of worthy and indigent youths, or for the education of poor children,' " for poor widows over the age of fifty of irreproachable character who have resided not under three years within eight miles of the town and who have no certain income,"* or for an asylum for Protestant widows and orphans,"' has been held sufficiently definite.® 1 See ante, §§ 816, 817. 2See§814 SNewson v. Starke, 46 Ga. 88; Heuser v. Allen, 42 111. 425. * Bruler v. Ferguson, 54 Ind. 549. s Fink V. Fiuk, 12 La. Ann. 301. ^In his excellent Treatise on the Law of Trusts, at § 732, Mr. Perry says: "It is immaterial how uncer- tain, indefinite and vague the cestuis que trust or final beneficiaries of a charitable trust are, provided there is a legal mode of rendering them certain by means of trustees ap- pointed or to be appointed. In other words, it is immaterial how uncertain the beneficiaries or objects are, if the court, by a true construction of the instrument, has power to appoint trustees to exercise the power or dis- cretion of making the beneficiaries as certain as tlie nature of the trust required them to be." " It seems to be now settled tliat a gift to charity, if there is a comi)etent trastee, al- though there is no ascertained or ascertainable l^eneficiary, may still be upheld, provided the charitable iLse is so clearly defined as to be ca- pable of being specifically executed and enforced as intended by the donor, by judicial decree." By the court by Jobnson, J., in Goddard v. Pomeroy, 36 Barb. (N. Y.) 046. The lat« Satnuel J. Tilden in his will au- tlioriwMl li is trustees U) procure "an act of incor|K^ration of an institution to be known as tlic 'Tildcu Trust,' with capacity to maintain and estab- lish a free library and reading room^ . . . and to promote such scientific: and educational objects as my said executors and trustees may more particularly designate; and such in- stitution shall be incorporated in a form and manner satisfactory to my said trustees." The testator further said that "I hereby authorize my said executors and trustees to organ- ize the said corporation, desiguat& the first trustees thereof, and to con- vey or apply to the use of the same the rest„ residue and remainder of all my real and personal estate not. specifically disposed of, . . . or so much thereof as they may deeni; expedient." subject to the special, trusts therein created. " But in case^ such institution shall not be so in- coi'porated" within the times men- tioned, " or if for any cause or reason', my said executors and trustees shall deem it inexpedient to convey said '" residue, "or any part thereof, or to apjily the same, or any part thereof, to the said institution, I authorize'* them toapi)ly it, "after making good the said special tru-sts lierein directed to be constituted, ... to such charitable, educational and .scien- tific purposes as in the judgment of my said executors and trustees will render the rest, residue and re- mainder of my projK'rty most widely and sul)staiilial!y bcnolicijil to thi» interests of mankind." In construing this will the court of apiicals hold i\\:i{. first, the schcnieas 1236 LAW OF WILLS. [§ 828. § 828. The jurisdiction of the court of equity to appoint trustees of charitable trusts. — A court of equity, by virtue of its jurisdiction over trusts and charities, has inherent power to appoint trustees in the case of every valid charitable trust, where the testator or grantor has either failed to designate a trustee, or where the trustee who has been designated refuses, neglects, or is unable to carry out the trust. A court of equity will not permit a charitable trust, which in itself is valid, to fail for want of a trustee. In this respect no distinction exists ' between private trusts and charitable trusts. If the testator creates a trust for a charitable purpose which is definite and valid, and the objects of which are sufficiently ascertained and certain as a class, and fails to nominate a trustee, or in express terras delegates the appointment of the trustee to the court, the court will, on the application of the proper parties, appoint a trustee. So, also, where a testator has given property to an unincorporated association, or where he has in his will directed that a charitable corporation shall be formed, for purposes Avhich are sufficiently definite and certain, and has made no disposition of the legal interest in the property which he de- vises to such unincorporated or non-existent institution, the coiu't will appoint a trustee who is capable of taking and hold- outlined by the testator was entire Third. The court held that under and inseparable, covering and includ- the language of the will, giving the ing the whole residue in one com- trustees power to devote the residue preliensive disposition. That the tes- " to such charitable, educational and tator had not made a disposition of scientific purposes as in the judg- his estate in the alternative under nient of my said trustees will render two distinct provisions, one primary the rest, residue and remainder of for the founding of the Tilden Trust, my property most widely and sub- and an ulterior provision of a sec- stantially beneficial to the interest ondary nature, to be put into opera- of mankind,'' tlie beneficiaries are in- tion only in the event that the definite and uncertain, and that con- trustees named by him should deem sequently the power in trust, or the it inexpedient to convey the whole trust, as the case may be, cannot be residue for the purposes of the Tilden enforced by a court of equity. The Trust. devise therefore was held void and Second. Irrespective of the char- the residue devolved upon tiie next acter of the power vested in the of kin of the testator. Tilden v. trustees to select a beneficiary, that Green, 28 N. E. E. 880, 130 N. Y. 29, is, whether it was a valid trust with 29 N. E. R. 1033, affirming 7 N. Y. the legal title in the trustees, or Supp. 382. simply a naked power to select, its ^ Except in the state of Xew York, exercise was imperative. § 843. § s-^s.] KULES KEGULATING CHAKITABLE GIFTS. 12 Oi ing the legal title, with directions to cany out the wishes of the testator. In the case of an unincorporated institution the trustee will hold the legal title for the members of the association, or for such purposes as are germane to the association.^ "Where the institution is to be incorporated at some future date, the trustee appointed by the court will hold the legal title until the insti- tution shall have been incorporated, when he will, under the directions of the court, convey it to the institution.'- The ap- pointment of a trustee by the court should be surrounded by such safeguards as will secure the appointment of a proper person to the office. An application for the purpose ought to be made by some person who is interested in the enforce- ment of the trust, in connection with the attorney-general of the state, and on full and sufficient notice to all the parties interested.^ So if the testator shall devise property for a general and definite charitable purpose, and shall appoint trustees of the fund, conferring on them full discretion to select the objects J See cases in next note. •JBull V. Bull, 8 Conn. 47; Storr's School V. Whitney, 54 Conn. 345; Conklin v. Davis, 63 Conn. 377, 383; Grand Prairie Sem. v. Morgan, 49 N. E. R. 510, 171 111. 444, 452; Hoeffer v. Clogan, 171 111. 402; Seda v. Huble, 75 Iowa. 429, 39 N. W. R. 685; Preach- ers' Aid Society v. Rich. 45 Me. 552; Swasey v. American Bible Soc, 57 Me. 520; Bliss v. Am. Bible Society, 2 Allen (Mass.). 334; Winslow v. Cumming. 3 Cush. (Mass.) 558; Minot V. Baker, 147 Mass. 348, 353, 17 N. E, R. 839; Darcy v. Kelly, 153 Mass. 435, 437, 26 N. E. R 110; Schouier's Peti- tion, 134 Mass. 426, 428; Sears v. Cliaiv man, 158 Mass. 400, 401. 33 N. K. R. 604; Nortli Adams v. Fitch, 8 (jlray (Mass.), 421; Sanderson v. Wldte, 18 Pick. (Mass.) 328; Mcl^iin v. Direct- ors, 51 Pa. St. 100: Mc(Jirr v. Aan-ii, 1 P. & Watts (Pju), 49; Jolinson v. Johnson, 92 Tenn. 559, 565; Stone v. (Jriflin, 3 Vt. 100; (Jonhl v, A.syiiini, 46 Wi.s. 100, 117; .Ma.son v. M. E. Church, 27 N. J. Eq. 47. The valid- ity of the testator's delegation of power to appoint trustees to carry out his charitable scheme to judges of the state or federal courts cannot now be questioned. But the policy of the testator in thus invoking the aid of a judge of wliom he know.s nothing and wdiom he has never heard or seen, and who may appoint an entire stranger to put into opera- tion his charitable plans, when the latter might, on the other hand, com- mit their execution to some one in his personal confidence, may well be doubted. The fact tliat the judges are not to exercise the power to ap- jioint a trustee until lifteen yeai-s after tlie testator's dratii, th«? prt>|>- erty mcanwliiie being vested in other trustees, will not ren All. R. 375. 1233 LAW OF WILLS. [§ S21>. of the charity, and to specify and define more particularly the purpose of the gift; in other words, where a testator confers power upon the trustees to reduce his general indefinite and vaguely described purpose to a proper application and method, .-and the trustees die without having acted, or if one or all re- fuse to act, the court will appoint new trustees in thoir place. ^ And if the trustee of the property to be disposed of in his dis- cretion dies after having disposed of only a small portion of it, the remainder will be applied to charitable pur[)oses indi- cated by the testator, under the supervision of a trustee ap- pointed by the court of equity.^ So, also, where the action of the trustee, in the distribution of the trust fund, is to be regu- lated by the request of another person, the court, upon the neglect of the third person to act, will remove him and appoint s.nother in his place.^ But on the other hand, where it clearly appears from the language of the Avill that the discretionary power which was placed by the testator in a trustee was a mat- ter of personal confidence, or if it clearly appears that his dis- -eretion was not only as to the mode of his action, i. e., as to how much or how little he should distribute, and to whom, but that his discretion included the decision of the question whether he should act at all in favor of a charity, or whether he should ■devote the fund of which he is trustee to non-charitable pur- poses, the court will neither compel him to exercise his discre- tionary power nor appoint a new trustee.* § S39. Charitable gifts to institutions wliicli are to be in- corporated in the future. — At the common law in England -every grant or devise of land was invalid unless the grantee or devisee was a natural person, or a corporation in esse at the «sdeath of the testator.^ The validity of a devise for charitable purposes to a corporation which is to be created in the future is of comparatively modern origin. It was not recognized by the English courts until the beginning of the nineteenth cen- tury. Thus, as early as the time of Henry YI., it was laid down that a devise to an non-existent college was void, though > Bull V. Bull, 8 Conn. 47; Sawtelle 3 Appeal of Goodrich, 57 Conn. 275, V. Witham (Wis., 1897), 69 N. W. R. 18 Atl. R. 49. 72. Cf. Dye v. Beaver Creek Church < Ante, § 802. d of which i)reci.sely corresponds to V. Hammond, 10 R. I. 98, 17 Atl. R. the description in every particular, 324; hi re Bennij,'. 154 Pa. .St. 209, 25 that the i)ropfrty shall be e.pialiy di- Atl. R. 1049; Kilv.rt's Trust, L. R. 7 vid«> tion of a legatee or devisee, wliether a natural person or a corporation, will not invalidate the provision nor defeat the intention of a testator, if, either from the will itself or evi- dence dehors the will, the object of the testator's bounty can be ascer- tained. No principle is better set- tled than that parol evidence is admissible to remove latent ambigu- ities; and where there is no person or corporation in existence precisely answering to the name or descrip- tion in the will, parol evidence may be offered to ascertain who was in- tended by the testator. A corpora- tion may be designated by its corpo- rate name, or by the name by which it is usually or popidarly called and known, by a name b}' which it was known and called bj" the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or descrii> tion to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of tiie will, may in all cases be proved by parol. ... As said by the court in Minot v. Curtis, 7 Mass. 441, 'there is no reason why corporations may not be known by several names as well as individuals.' and if so, and named in a grant or devise by any one of its recognized names, it can- not be said tliat the name is wholly mistaken. The ambiguity arises only from the fact that the corpora- tion has and bears two or more names. The corporate or cliarter name may be wholly mistaken or unknown to the testator, but if he designates it by some other name by Avhich it is known and can be identi- fied, the will must have effect ac- cording to the intention of the tes- tator. A mistake in the name is not fatal so long as the testator suffi- ciently indicates the institution or individual intended." Remarks of Allen, J., in Lefevre v. Lefevre, 59 N. Y. 434, 440. The fact that a cor- poration named as a legatee for char- itable purposes -has changed its name before the execution of the will does not invalidate the bequest, particu- larly wliere the change of name is not known to the testator. The evi- dence must show that, whatever may be its name, the institution claiming the bequest is the one in- tended by the testator. Elnell v. Universalist General Convention, 76 Tex. 514, 13 S. W. R. 552; Trustees, etc. Methodist Seminary v. Peaslee, 15 N. H. 317. In the latter case the testator, a Methodist clergyman, be- queathed money to the Franklin Seminary of Literature and Science at Newmarket, N. H., wliich was tlio only public school in the town, and was under the control of the Meth- odist church. Before the execution of the will the name of this institu- tion had been changed to '" The Trus- § 832.] KULES KEGULATIXG CHAEITABLE GIFTS. ll'iT that are to be the recipients of his bounty in the case of a char- itable gift. The cases which have arisen under this head of charitable trusts may be divided into two classes. First^ where the charitable purpose stated in the will is reasonably clear, definite and certain, though the testator has left it to his exec- utors to select the institution by which his purpose is to be car- ried out, and, at the same time, has expressly directed that his intention shall be carried out through and under the control of some existing charitable corporation. Such cases arise, for ex- ample, w^here the testator gives money to a Eoman Catholic bishop to be "used for the Eoman Catholic institutions of his diocese,"^ or directs the executors of the will to distribute a residue "among charitable institutions similar to those men- tioned by me in my wnll,"^ or directs them to "distribute money among such charitable institutions as they may deem proper,"^ or "to divide the remainder of the estate among such charitable institutions in a certain city as they shall deem most worthy."^ Such gifts are undoubtedly valid. The objection that they are too indefinite, in that they do not point out the beneficiary with sufficient certainty, is of no force, as the rule id cerium est quod certum reddl 2>otest would api>]y. The general charitable purpose of the testator is clear and definite, and, having thus clearly defined his intention, he has the power to leave to his executor the selection of one or more out of a necessarily limited number of charitable institutions or corpo- rations which are to receive the property disposed of. The question in all these cases where the executor is empowered to select the institution is not as to the indefiniteness of those who are to be tiie final beneficiaries, tiie ultimate cestuis qne truatent, but what corporation is to receive the legal title which tees of the South Newmarket Meth- tion was must have been indifTerent odist Seminary." The court said: to him, for it was the institution, by "The evidence tends strongly to whatever name it was known, wiiicli sliow that he did not know tliat the lie desired to patroni/.e and benefit.'' name of tlie school had bcon chan;4er girls," is void for uncertainty. '•' Hutler v. (Irecn, 16 N. Y. Supp. WheeUwk v. Am.-riciin Tract Sck-. KHH. 9 N. Y. S. 890. (Mich., 1H96). 66 N. W. R. 955. " l'.<-(kinan v. Honsor, 2!{ N. Y. 29S. aSUiUi v. (Jrifhth. 2 Del. Ch. 392. '- Diilany v. Middletou, 72 Md. 07. ♦Sawtclle v. William, 9 J Wis. 112, 1252 LAW OF WILLS. [§ 833. jects according to the scriptures, the greater part to missionary purposes; *' ' a residuary gift " to some disposition thereof wliich my executors may consider as promising most to benefit tlic town and trade of A. in such manner as appears to them to 3'ield the greatest good;"-^ and a bequest to be distributed among charitable institutions in Pennsylvania as executors may deem most beneficial to mankind, " so that part of the colored population in each of the said states shall partake of the benefits thereof,"^ have been held invalid.^ § 833. The validity and performance of conditions attached to charitable gifts. — The testator may attach a condition to his devise or bequest for charitable purposes, upon the perform- ance of which it will vest in the trustee, or by the non-per- I'ormance of w-hich it will be defeated. The rules elsewhere explained regulating testamentary gifts upon condition are in. general applicable.-^ If the condition is precedent, the per- formance of which is required before the legacy shall vest, a substantial compliance is necessary. Thus, w^here a testator devises land to a college upon condition that it should change its name prior to his decease, the devise is void where the ben- eficiary has not in fact changed its name.^ If the condition, being precedent, is so indefinite that it cannot be performed, the devise which is to vest upon its performance will be void.'' A condition that a sum of money is to be paid to a hospital by a trustee appointed in the will, in case the Episcopal churches in a city shall prove to his satisfaction that they w^ould per- manently support it as a church hospital, is not void for in- definiteness.^ 1 Bridges V. Pleasants, 4 Ired. (X. C.) 'Beecher v. Yale, 45 K Y. Supp. Eq. 26. 622. nVheeler v. Smith, 9 How. (U. S.) « At water v. Russell, 49 Minn. 57, 55. 51 N. AV. R. 629; In re Robinson, 61 3 Fontain v. Ravenal, 17 How. (U. S.) L. J. Ch. 17. A legacy of an amount 369. to be paid to a charitable institution 4 In Louisiana a testator cannot upon its raising an amount as a con- leave the selection of a residuary dition precedent is not invalid, and, legatee to the discretion of his exec- on tlie performance of the condition, utor. Burke's Succession (La., 1899), the legacy will vest in tiie legatee. 25 S. R. 387. Penick v. Thorn's Trustee, 90 Ky. 665, 5 See § 479 et seq. 14 S. W. R. 830. •> Merrill v. Wisconsin Female Col- lege, 74 Wis 415, 419. § S33.] KULES EEGUL.VTIXG CnAKITABLE GIFTS. 12ol Tlie testator may impose as a condition upon the charitable bequest that a scheme shall be devised to carry out his inten- tion by certain persons named by him in his will before the money bequeathed shall be paid over. And he may also re- quire that the scheme thus devised shall be certified as practi- cable and seemiugl}^ certain of success by a person in whom he has confidence and upon whom he has conferred the power to certify to these facts.^ The testator may also annex a condition to his gift, that, on the happening of an event, the fund given to tlie first legatee shall go over to others ; ^ as, for example, where the testator pro- vided that, if the charit}'' was ever discontinued, the legacy should go to another institution.^ Every gift of land or money for chari- table purposes is upon the implied condition that it shall be de- voted perpetually, by the corporation or its successors, to a spe- cific charitable purpose which is pointed out by the testator. It is the general rule in America that upon breach of this implied condition, upon which all charitable gifts of land are held, the 1 Appeal of Seagrave, 12.") Pa. St. 3G3, 17 Atl. R. 412. In tliis case a residue was left to be paid to the trustees of a liospital which was to be organized within five years, the fund, in the lan- guage of the testator, to be only a nu- cleus for the establishment and main- tenance of tlie institution named. He further directed and empowered cer- tain ecclesiastical authorities to de- vise .a sclieme for the proposed hospi- tal and to appoint trustees to carry tlie scheme out. He also stated that, as he did not wish liis estate to be wiisted in an inofft'ctual atteiiijit to establish the institution named, and as he knew that other subscriptions for the same purpose would be refpiinid, he did not wish the bishop and tlie conference, which were authorized to formulate the scheme, to call lor Dm payiinMit of the mowy unless the plan devised '•should be jiraf-tical and sfscmingly certain of succchs." "NVIicn tni^lees liad Ixren ai)point<'d, land pun-liascd Kiidicient for the ere<;tiori of on » Merrill v. Hayden. 86 Me. 133, 135, bell V. City of Kansas, 102 Mo. 326, 29 Atl. R. 949; Simmons v. Burrell, 13 S. W. R. 897; Seitz v. Seitz (Pa.), 17 28 N. Y. S. 025, 8 Misc. R. 388; In re Atl. R. 229; Schlessinger v. Mallard, Cowen's Estate, 4 Pa. Dist. R. 435. II Pac. R. 728, 70 Cal. 326; ante, % 47. So where a testatrix devised her re- 2 Clark V. Taylor. 1 Drew. 642: Rus- siduary estate to a school district to sel V. Kellett, 3 Sm. & Gif. 264: Marsh build a school, and the scliool district V. Means, 5 Weekly R. 815; Fisk v. was, after the execution of the will, Attorney-General, L. R 4 Eq. 521; but prior to her death, abolished by Langford v. Gowland, 3 Gif. 617, 9 statute, the residuary gift lapsed and § S35.] KULES KEGULATIXCr CHARITABLE GIFTS. 1255 The dissolution or extinction of a charitable corporation, iu •which property devised by the testator has hecome vested, does not always effect a reversion of the property' to the heirs of the testator, in the absence at least of an express condition to that effect. The court of equity will arrange that the property of the defunct institution shall be applied to a purpose which is similar in its nature to that of the original institution, through some other existing institution.^ Thus, the proceeds of the sale of the property of an orphan asylum which had been dissolved may, on payment into court, be devoted to the aid of a society for the prevention of cruelty to children in preference to a dis- pensary or hospital.^ TThere two corporations are created by the legislature to succeed to the powers, duties and rights of another, to which a valid charitable gift has been made, the property will, on the death of the testator, be divided between the two bodies in proportion to the shares which they take by the statute in the property of the non-existing corporation.' § 835. Definitions of tlie words pointing out the area witliiu which charital^le funds are to be distributed. — The question arises in construing a gift which is to be distributed among charitable institutions located within a territorial area mentioned by the testator, whether he speaks in view of the condition of affairs existing at the date of the will, or whether he refers to the date of his death.^ If he directs money to be distributed among the poor of the town of A., and, subse- quently to the execution of the will, the town of A. is sub- divided, or is consolidated with another town, the inquiry is what cl'ass of persons was intended? It has been said that, where the testator makes a gift directly to the city or town in wJiicJi he resides, or to its jHJor, he may have had in contempla- tion that at some future date it would possibly be expanded desceiided to her heirs as intestate Incase the original institution which property. Brooks v. City of Belfast, has suspended subsequently resumes ;i8 Atl. R. 222 (Me., 1898). oi)oration, the custody and adniinis- 1 In re Seller's Cliap. M. E. Church, tration of tlie fund may bo restored 27 W. N. C. 88:]. 21 Atl. R 14.'); .lones to it. Barnard v. Adams, 58 Fed. R. V. R<;nsliaw, l;iO Pii. St. :}27, 18 Atl. R. :Ji;{. «."j1; In n- V.udiorne. 18 R. I. :]81). 28 3 Diocese of East Carolina v. Dio- Atl. R. :M1; In re Sl.«vin, (1891) 2 Clu cese of Nortli Carolina, 102 N. C. 442, 2: JO. 9 S. E. R. :n(). ^ Attorney-fleneral v. Paiilino *Soe a/j/e, ^ 14. Home, 141 I'a. St. WT, 21 Atl. It. 001. 125G LAW OF WILLS. [§ 830. and extended so as to include within its limits persons wha were not its residents Tvhen the will was made. Hence, where trustees were given a discretion to distribute money to the poor of A., they are not conlined to the limits of the town as it ex- isted at the date of the loill, bat may take in territory which had been added to it subsequently.^ In the United States the boundaries of a municipal corporation are almost invariably designated explicitly by its charter, and generally no confusion arises in determining "what lands shall constitute the city. But in England, and perhaps in some exceptional cases in this countr}'-, dilliculties in construing a gift to hospitals or other charitable institutions of a city might arise. Thus the word "London," in its popular sense, has a fluctuating meaning. Where the testator gave a bequest to be divided among the- '•'■hosjntals of the cit if of London j'' it is clear that he did not mean to use the word in its technical sense, as meaning only the metropolitan district, by which Kensington and Westmin- ster would be excluded, nor could he have meant the terri- tory within the bills of mortality, which were purely arbitrary, excluding a large part of the metropolis itself. The court, after some hesitation, finally adopted a definition, w^hich it con- fessed was extremely indefinite, that by the city of London, the old city, with Westminster, South wark, and as much ground in Middlesex and Surrey as was built on or contiguous thereto, and within call, Avas meant.^ § 836. Procurement of charitable bequest by unfair means, fraud or undue influence. — A charitable gift, in other re- spects valid, may be set aside because the testator was induced to execute it by fraud or undue influence. The general princi- ple at the basis of the rule, that undue influence invalidates a legacy procured by it, is applicable to charitable gifts. It is not necessary that a person exercising the undue influence shall desire or succeed in procuring a benefit for himself only. 1 Mclntire y. Zanesville, 17 Ohio St. stitute the city of New York, the pre- 352, 363; Zanesville Canal, etc. Co. v. existing terminology is still in com- Zanesville, 20 Ohio, 483. mon use. Thus, persons in Brooklyn 2 Wallace v. Attorney-General, 33 will speak of going to New York Beav. 384, 392. At the present writ- when in fact they mean Manhattan, ing, nearly two years after the con- and to Long Island City, which is solidation of the numerous cities, now no longer in existence. towns and villages which now con- § 83G.] EULES REGULATIXG CIIAEITABLE GIFTS. 125 T If by the employment of duress or pressure amounting to un- due influence he shall overcome the will of the testator, so that while thus under his control the testator bequeaths money to some third person named by him, the bequest is invalid. A clear case of undue influence is made out where the testator, being under the complete control of his spiritual adviser, and having no volition of his own, bequeathed money to a religious body to which the latter belongs. Eut it is not to be under- stood that a charitable gift must be from a testator who is wholly uninfluenced in every way. Indubitably fair means may be employed to procure a charitable bequest. One may approach the testator and seek to direct the current of his bounty in favor of a particular corporation by appeals to his sympathy, or pride, or his religious belief. Solicitations, sug- gestions, argument, and perhaps remonstrance, may be used. Advice, persuasion and entreaty do not, in connection with a charitable gift, constitute undue influence, if no fraud or de- ceit is practiced and no force, imposition or duress is employed.* TVhere a will which makes a provision for a church is drawn by and executed under the supervision of a rector, priest, pastor or other officer of that church, the same rules and principles are applicable. This is particularly true where the person drawing the will is named as an executor to carry out the pur- poses of the testator. If the testator was aged, infirm or of weak mind ; if, prior to the execution of the will, he had mani- fested little, if any, interest in the church or institution which was the beneficiary; if those who were then living and the nat- ui-al objects of his bounty were designedly kept in ignorance of his illness and of his testamentary disposition, — the convic- tion is almost irresistible that the will was not S}iontancous, but was procured by undue influence.^ J Pn;si(lent, etc. of Bowduin Col- required by tho rules of tlio order, lege V. Merritt, 75 Fed. R. 499. is not by tliat fact alone presumed ^ Drfike's Appeal, 4."> Conn. 9, 19, 1 to have been procured bj' coercion Am. Prob. R. 227, 2:i7; Tomkins v. or undue influence, where it does not Toinkins, 1 Bail. 90; Langtctn's Will, aflirniativeiy ai)pear that tho testa- 1 Tucker, Sur. R. .''01. A will by a trix ever regretted having taken irieiiilx-r of a n-ligious order giving the vow. In re Will's Kstatti (Minn., }i«'r i.roperty to the order, made in 1897), OO N. W, R lOUO. Siiti ii\so a ate, fuiliiliiient of a vow by tlie testatrix, ^ IIG. 12jS law of wills. [§ 837. § S'iH. Tlic Eiiglisli statutes of superstitious uses. — When Henry YIIL, after his quarrel with the Church of Rome, had assumed the headship of the English Church, and, as a part of bis scheme of aggrandizement, liad appropriated the property of the monastic houses throughout the kingdom, parliament, urged by the importunity of the king, enacted a statute under Avhich uses and trusts thereafter declared in lands and heredita- ments except for the term of twenty years, for the purposes of procuring masses, or for the support of the Catholic Avorship, or for like purposes, were declared to be absolutely void. Subse- quently in the first year of the reign of his son, Edward YL, another and similar statute was passed which declared that every gift, either of land or personal property, in trust or other- wise, for the perpetual support of a priest, or for furnishing or lighting any lamp or other light in a chapel, or for the support of masses for the dead, or for the saying of prayers to release souls from purgatory, or for cmfj like purjwse, should be void, and the property thus given was, under the express terms of the statute, forfeited to the king. Out of these statutes a doc- trine grew up that devises to superstitious uses were invalid in England which is of some historical interest, though it was never transplanted to America, or incorporated into our system of law. The statutes mentioned, being in restraint of the rules of the common law, received a strict construction in the English courts. Thus, devises and gifts in trust for the support of ministers and places of worship of Protestant dissenters, and for the propaga- tion of the religious tenets of such persons, were sustained by the court of chancery in very early times, despite the fact that the teaching of such doctrines was altogether at variance with and contrary to the dogmas of the established church.^ 1 Attorney-General v. Baxter, 1 Eq. text is also sustained by the cases of Cas. Ab. 96, pi. 9, 1 Vern. 248, 2 id. Attorney-General v. Pearson, .3 Meri- 105. In this case, though the Lord vale, ;J58, where the whole subject of Keeper at first held a bequest which superstitious ases is examined in was to be distributed among certain great detail and discussed with much ministers who had been ejected from ability by Lord Eldon. Attoruey- their pulpits under one of the acts General v. Hickman, 2 Eq. Cas. Ab. punishing non-conformity to be in- 193. In the case of Doe v. Hawthorn, valid, his decision was subsequently 2 B. & Al. 96, a devise to a chapel reversed in the appellate court. The under the patronage of the trustees f § 838, 839.] KULES kegulatixg charitable gifts. 1259 § 838. The validity of bequests for the support of the Koman Catholic religiou in England. — As a result of the operation of the two statutes/ all gifts, either of real or per- sonal property, for the support or propagation of the Eoman Catholic belief were, during a period of over two centuries, ab- soluteh' void in England. At length, however, in consequence of the increase of material wealth, and the spread of the prin- ciples of religious and civil liberty at the beginning of the pres- ent century, such a condition of things became intolerable. To remedy a condition of affairs which worked so much injustice to a large and law-abiding class of persons, it was enacted by the English parliament in the year 1833 that "• his majesty's subjects, professing the Eoman Catholic religion in respect to their schools, places for religious worship, education and chari- table purposes in Great Britain, and the property held there- with, and the persons employed in and about the same, shall, in respect thereof, be subject to the same laws as the Protestant dissenters are subject to in England in respect to their schools and places for religious worship, ed ucation and charitable pur- poses, and not further or otherwise." Since the enactment of this statute, testamentary gifts for the advancement of the Eoraan Catholic religion, and for educational and charitable purposes under the control and supervision of the authorities of that church, have been and are perfectly valid so long as they are not otherwise contrary to the law of the land.^ § 839. The American view of the doctrine of superstitious uses. — The English statutes of mortmain are not in operation in any part of our country, partly for the reason that they never formed a part of the system of law which was in force in the colonies prior to the Revolution, and partly because these stat- utes are absolutely irreconcilable with and repugnant to our principles of government. In most of the states there are very powerful and effective limitations i)laeed upon the acquisition of tlie counte8.s of Jluntinpjton was IJoav. 14. See also Attorney-General .su.staine'1. And at a later pcriofl a v. Cook. 2 Ves. HA. trast for the purpose of projKiKatinj; 123 Hen. VIII., cli. 10, aii«l 1 VAw. the writin;«i of Joanna Sovitlicot, who VI.. ch. 14. ]Hi\ifi\<-t\ any the Holy (Jho.st. ami 2'Jl; la re Micliurb Trii-sts, 28 lioav. other 'h'lusifjns of a similar fharafti-r. li-l. wa.s upheld. Tliorntou v. Howe, :',l 12G0 LAW OF WILLS. [§ 839, of lands by corporations, and these statutes, so far as thev re- quire the possession of a statutory license by the corporation, undoubtedly resemble the statutes of mortmain. Tlie statute of 9 George II., chapter 3G, which prohibits disposition of lands to charitable uses, unless by deed made and enrolled at least six months before the death of the donor, was purely local, and did not extend to Ireland or the colonies.^ But similar stat- utes have been enacted in very many of the states. In view of the absence of any state church and of the abso- lute freedom of religious belief and worship which is guar- antied by the federal and all the state constitutions, the theory of the invalidity of charitable gifts, because of their devotion to superstitious uses, has no place in our law. As has been ex- plained in a prior section, the early statutes under which so many gifts for religious purposes were overthrown, because superstitious, have been repealed or materially modified in Eng- land.- They never had any operation in the colonies as such, and are, it needs hardly be said, absolutely repugnant to our system of government.^ It is hard to see how the courts could hold otherwise. In America all forms of religion not involv- ing the teaching of immorality are tolerated, and, as no one of them is established, each and all have the same right to the protection of the law. It follows, therefore, that all, so far as they do or do not contravene any law of the land, are equally to be forbidden or equally to be advanced and defended. Chris- tianity is, in a sense, a part of the law of the land, in so far, at least, as the wise and benignant principles of its morality have received the sanction and confirmation of our courts. But if religious liberty is to be more than a vague generality, it is clear that a rule of law by which such an affirmance is given to the religion of Christ must not be construed to prevent the devotees of any other religious belief from worshiping their 1 Odell v. Odell, 10 Allen (Mass.), raised in the cases, but where an 6; Tudor on Charitable Trusts, 94: objection has been made upon this Story on Equity, sec. 1194. A some- ground, it has always been repudi- what similar act in Massachusetts ated with much firmness and un- was repealed immediately after the answerable logic by the courts. Gass Revolution. Bartlett v. King, 12 Mass. v. Wilhite, 2 Dana (Ky.), 170; Attor- 545. ney-General v. Jolly, 1 Rich. (X. C.) 2See§838. Eq. 99; Frierson v. General Assem- 3 The question has not been often bly, 7 Heisk. (Tenn.) 683. § 840.] EULES ^vEGULATI^■G CnAKITABLE GIFTS. 12G1 Creator according to the dictates of their conscience, or to for- bid them from devoting their property by testamentary dispo- sition to carrying on the form of worship in which they be- lieve, and propagating the doctrines of their faith. Hence, the law cannot forbid the Roman. Catholic from devising his estate for the purpose of founding a nunnery or a monastery, or for the procurement of masses; or the Hebrew from giving his propertv over to the propagating of his faith ; or even the Mo- hammedan, or the Buddhist, from devoting his wealth, the one to assist or relieve those who may undertake the annual pil- grimage to Mecca, the other to build a temple for his graven, idols. §840. The English statutes of mortmain, — At the com- mon law, that is to say, in the absence of any disabling stat- ute, a corporation, whether ecclesiastical or lay, had the same capacity as a natural person to acquire a valid title to lands by purchase and to hold and dispose of the same for its corporate purposes.^ This natural and unlimited right possessed by all corporations continued to be recognized until, for reasons pres- ently to be explained, it was curbed and restricted, and in many cases wholly abolished b}^ statutes. After the conquest of England by the Xormans, and when these semi-barbarous and domineering warriors had firmly established their govern- ment and had engrafted the principles of the feudal system upon the framework of the English nation, the power of the Christian church greatly increased. The clerics enjoyed, and often abused, a monopoly of that small amount of learning which had survived the incursions of the northern barbarians and the ravages of a continual and internecine warfare. What- ever of conscience still remained in the hearts of the members of the conquering race prompted them to seek at the hands of the priest or bishop, when weakened by illness or when the terrors of death came ujion them, absolution for their deeds of munler and rapinij. The houses of the monastic orders which ul>out this time began to s|tring up throughout England \\vi\) not only places of retreat for those who by their condition or inclination were un(itteey some other statute to take lands hy devise? For inasmuch as devises to corpora- tions, which were void under the mortmain acts, were validatetl in England only by virtue of the statute of Elizabeth, which had been expressly repealed in Xew York, all devises direct to corporations, and also all devises in trust for charitable corpo- rations, are absolutely void unless the corporation in question had by statute the right to take by devise. Uut these rules have no application to bequests." • Rirf charitabUj trusts, says regard ;is unmi.xed evil. When a on page 4<>!(: "The b«'iii«vol<'nco tjf ncnv and plainly mt'ritorious t-harity (Miristian and otln^r philanthropists is meant to be found(*d . « . none will nr>t be unduly restrained. ... of us can fear that the sanction of Charitable and public ases are not the Icgi.-jlalure will In,- willilu-ld, nor 126S LAW OF WILLS. [§ S43. will it be deemed a subject of just regret, that, when the aid of tlie leg- islature is required, it will have an opportunity of considering whether the claims or fair expectations of wives, children or relations have been overlooked and sacrificed. Under our present system, as we suppose it to exist, and considering the re- straints that are now laid upon cor- porations, their incapacity to take by devise, and the limited amount of property which they are permitted to hold, we need not the English stat- utes of mortmain; but revive the English doctrine of charitable and pious uses in its original extent, and the necessity of such statutes will soon be apparent. In this as in every country in which such uses have been suffered for a time to prevail without restriction, there will be an inundation of abuses, which the ut- most power of the legislature will be required to stem, repel and over- come." CHAPTER XLII. THE CONSTRUCTION AND MEANING OF GIFTS OVER ON DEATH WITHOUT ISSUR § 844. What constitues an indefinite failure of issue. 845. A conditional or determinable fee is created where the fail- ure of issue is a definite failure — Conditional fees distinguished from, estates in fee tail 846. The estate of the primary dev- isee where the failure of issue is a definite failure. 847. The invalidity for remoteness of an executory devise of the fee on an indefinite fail- ure of issue after a devise of the fee simple. 848. The failure of the testator's issue means a definite fail- ure of issue. §849. 850. 851. Definite failure of issue is meant by a devise over on death without issue under majority. A definite failure of issue is meant by a devise over to persons then surviving. The meaning of the failure of issue at or after the death of a primary taker of the fee. 852. Presumption in favor of strict construction in case of per- sonal property. Cross-remainders by implica- tion after the failure of issue — Devises in fee and devises in tail distinguished. 853. § 844. What constitutes an indefinite failure of issue. — A devise to A. and his heirs, or a devise in equivalent terms, gives A. an estate in fee simple absolute. If the testator, after thus creating an absolute estate in A., shall give the fee to an- other person upon the death of A. without issue, whether th© terms employed are, "if he die Avithout issue," " witiiout hav- ing issue," " if he die before he has issue," " if he have no issue," "in default of issue," or any other similar lanij;un<^e, the ques- tion arises, how are these expressions to be understood and con- strued ? In the absence of statute they are to bo taken aa indicating an indefinite failure of the issue of the lirst devisee of the fee. This rule of the coujmon law, though it may, and indeed often does, n-sult in disappointing the intention of tlio testator, is lo(j \V(,'ll settled {>> Ix? shaken of a life imprison- 1272 LAW OF WILLS. [§ 84:5. § 845. A eoiiditioiial or determinable fee is created where the failure of issue is a definite failure — Conditional fees dis- tinguished from estates in fee tail. — Where the faihire of issue attached to a devise in fee is to be taken as signifying a definite failure of issue, i. e., the death of the first taker without leaving issue swviving, the estate created in the first taker is a base or determinable fee, and the devise over is an executory devise Avhich is to vest upon the happening of the prescribed contingency. On the other hand, if the failure of issue referred to is to be construed as an indefinite failure of issue, the estate in the first taker is an estate tail,' which may in the United States be converted into a fee simple by statute, and is then alienable, the devise over being void. In view of these well settled rules of construction it may be well in this place to consider briefly some of the elementary principles of the law of real property appertaining to the creation and nature of base or determinable fees and of fees simple conditional with which they are often confounded. A base, qualified or deter- minable fee is defined by Chancellor Kent to be " an interest which may continue forever, but which is liable to be deter- mined by some event or act or circumstance circumscribing its continuance or extent." ^ A devise of the fee to A., and if he shall die without issue surviving then over, confers upon the first taker a qualified fee, which may defeated by his death without leaving issue him surviving. In that event the exec- utory devise vests. If, however, he shall die leaving issue living at his death, the fee vests in such issue, who take, not as purchasers under the will, but by descent from their ancestor, and the executory devise expectant upon the definite failure of issue is defeated. The owner of the base or qualified fee cannot convey in fee simple, for his estate is defeasible upon the contingency, i. e., a definite failure of issue, which cannot nient shall be deemed civilly dead, an end." . . . " The estate is a fee, Avery v. Everett, 110 N. Y. 317, 18 N. because by possibility it may endure E. R 148, Earl dissenting. forever in a man and his heirs; yet 1 Ante, % 471. as that duration depends upon the 24 Kent, Com., p. 9. "A base or concurrence of collateral circum- qualified fee is such a one as hath a stances, which qualify and debase qualification subjoined thereto, and the purity of the donation, it is ■which must be determined whenever therefore a qualified or base fee." 2 the qualification annexed to it is at Black. Com., p. 109. § 815.] GIFTS OVER ON DEATH WITHOUT ISSUE. 1273 happen until liis death. Until that event happens it cannot be determined in whom the fee will ultimately vest. A base fee differs from a fee conditional at the common laAV, which latter was a fee limited to some jxirticular descrijytion of heirs to the exclusion of others. Thus a fee to A. and the heirs of his body was a fee conditional upon A. having heirs of his body. As soon as A. had issue born to him, the condition was performed, the fee became absolute in A., and he might, prior to the statute De Donis, at once alien the land absolutely or charge or incumber it in any way. The first taker would usu- ally alien the land and take it back by a conveyance to himself and his heirs general. If he did not do this, the course of de- scent was not changed by the birth of issue. The fee condi- tional could not descend to any class of heirs but the heirs of the body; and if he had issue who did not survive him, the fee reverted to the donor or grantor.^ Because of the almost uni- versal custom of immediately conve3"ing the fee upon the birth of issue, and taking it back by a conveyance in fee simple, by which the possibility of a reversion was forever defeated, the Statute of ^Yestminster 2d, 13 Edw. I., c. 1, was enacted. The effect of this act was to preserve the estate to the issue of the first taker, and on the other hand to convert a mere possibility of a reversion into an actual reversion in the orio-inal £:rantor. The courts, in construing this statute, would not permit the alienation of the fee upon birth of issue, but divided the estate into two parts; one of which was a sort of particular estate for life, which was called a fee tail, with a quasi contingent re- mainder in the heirs of the body, and a reversion expectant upon an indefinite failure of issue, in the grantor and his heirs. These elementary principles, while in most cases of little appli- cation in the United States, are of value in those jurisdictions where it is held that a devise in fee to A. with a devise over on a failure of issue gives A. a fee conditional as at the cuinmon law'.^ • 2 Black. Com., p. 111. forever. Where tlie estiite in fee is 2 See cases in ne.xt section. " A fee granted subject to some condition in Kimple is the hirgest estate a man can tlie inKtrumi'Jit creating it, or to some have in lands, Ijeing an ahsfjlute es- condition implied by law to hothere- tatein p<'rpetuity. The essential mat- after iti-rformed, it is called a *condi- ter istliat siichan estate isso hnnight linnal fee.' A 'determinable foo'em- into existence that it (/c/// riinar.v devisoo Avliore tlio fail- ure of issue is a delinite failure. — A limitation of a fee after ii failure of the issue of a devisee to wiiom a fee is also given, either in fee simple or in fee tail, is valid if the failure of issue ■is a defnite failure of issue; i. e., issue living at the death of the lirst devisee. If from the language of the will itself it is evident that the testator tneant a definite failure of issue (and the same of course should apply Avhere ly statute "die without issue" or "death without issue" is to be construed to mean a failure of issue at the death of the percon taking), and the prnnary devisee has a fee, whether by words of limitation and inheritance or otherwise, the first taker will have a base or de- terminable fee, -which is defeasible upon his death without leav- ing issue. He has a determinable fee (or perhaps more properly ji conditional fee), which enlarges into a fee simple in his issue if he shall die leaving issue. It is a fee conditioned upon his having and leaving issue at his death, and the limitation over is valid, not as a contingent remainder limited after an indefinite failure of issue, but as an executory devise of a fee in defeas- ance of an estate in fee determinable.^ The primary devisee by some act or event expressed, in their limitation, to circumscribe their continuance, or inferred by law as bounding their extent. In its broader sense a determinable fee embraces wliat is known as a conditional fee. When it becomes an established fact that the event which may determine tlie estate will never occur, a deter- minable fee enlarges into a fee simple absolute. So, when the condition upon which a conditional fee rests has been performed, the estate be- comes an absolute fee.' " Fletcher v. Fletclier. 88 Ind. 420. iFlinn v. Davis, 15 Ala. 1-32, 1.36; Mason V. Pate, 34 Ala. 379; Goldsby V. Goldsby, 38 Ala. 404; Newsoni v. Holesapple, 101 Ala. 682, 15 S. R. 644; Clark V. Stanfield, 38 Ark. 347; Myar V. Snow, 49 Ark. 125, 4 S. R. 381; Hudson V. Wadsworth, 8 Conn. 348, 362; Williams v. McCall, 12 Conn. S28; Smith v. Pendell, 19 Conn. 107; St John v. Dann, 34 AtL R 110, 113, 66 Conn. 401; Friedman v. Steiner, 107 IlL 125; Summers v. Smith, 127 111. 645, 21 N. E. R. 191: Waters v. Bishop, 122 Ind. 516, 519; Smith v. Hunter, 23 Ind. 580; Pool v. Penning, 9 B. Mon. (Ky.) 623; Thackston v. Watson, 84 Ky. 206; Martin v. Re- maker (Ky, 1888), 9 S. W. R. 419; Marble v. Phillips (Ky., 1893), 20 S. W. R. 306; Webster v. Webster (Ky., 1893), 22 S. W. R. 920; Collins v. Tliompson (Kj-., 1897), 43 S. W. R. S27; Wheatland v. Dodge, 10 Mete. (Mass.) 502; Hawley v. Northampton, 8 Mass. 3; Webster v. Ellsworth, 147 Mass. 002, 18 N. E. R. 569; Bowker v. Bowker, 19 N. E. R. 213, 148 ]\Iass. 198; Welch v. Brimmer, 47 N. E. R. 699, 169 Mass. 204; Backus v. Presby- terian Assembly, 77 Md. 50; Lednunx V. Cecil, 76 Md. 153, 24 Atl. R. 4.52; Mason v. Johnson, 47 Md. 355; De- vecmon v. Sliaw, 70 Md. 224, 16 Atl. R. 645; Hutchins v. Pearce, 80 Md. 4.34, 31 Atl. R. 501, 502; Weybright v. § S46.] GIFTS OVKR OX DEATH WITHOUT ISSUE, ll>75 cannot convey the fee so as to bar the interests of his issue living at the date of the conveyance and at his death, nor can he by a conveyance destroy the executory devise which will take effect in succession upon his death without issue. Hence there is a suspension of the power of alienation for his life. Xor will the general rule which holds that an unlimited power of disposal in the first taker enables him to defeat the devise over apply in the case of such an executory devise, for it is ap- parent that the existence of a devise over is in no wise depend- ent on the exercise of the power, but rather on the death of the devisee without any surviving issue. All, therefore, that the first devisee could convey during his life is his defeasible or conditional fee, and his grantee takes that subject to defeasance by the executory devise, on the death of the lirst taker without issue him survivino-.i Powell, 39 Atl. R. 421, 8G Md. 573; Goodell V. HibbarJ, 32 Mich. -17, 53; Mulreed v. Clark (Mich., 1896), 68 X W. R. 138: Hall v, Chaffee, 14 N. H. 215; O'Brien v. OLeary, 64 N. H. 332, 10 AtL R. 697; Den v. Snitcher, 14 N. J. L. 53; Den v. Allaire, 20 K J. L. 6: Seddell v. Wills. 20 N. J. L. 223; Kennedy v. Kennedy, 29 N. J. L. bo; Groves v. Cox. 40 N. J. L. 44; Neil- son V. Bishop, 17 AtL R 962, 45 N. J. E*^. 473; Wilson v. Wilson, 46 N. J. Eq. 321, 19 Atl. R. 132; Bonnell's ExTS V. Bonnell, 47 N. J. Eq. 540, 20 Atl. R. 895; Wilkes v. Lion, 2 Cow. rior estate in fee sim])le^ not in fee tail, is given, is a conditional limitation which is void for remoteness. The indefinite failure of issue may never take place at all, or it may not take place until the expiration of the period within which the fee must become alienable' under the rule forbidding perpetuities. Until the issue of the first taker of the fee has become wholly extinct, the executory de- vise of the fee does not vest. The primary devisee can only convey a defeasible fee, which is to come to an end upon an indefinite failure of his issue. And until that event takes place the executory devisee cannot convey the fee, for until then his interest is wholly contingent. There is therefore no person in existence who possesses the power of making an absolute con- veyance of the fee simple of the property. On the other hand, an executory devise, or a contingent remainder coming after an estate tail, though dependent upon the general or indefinite failure of issue of the tenant in tail, is not invalid for remote- ness of vesting, because the tenant of the estate tail has full power at any time, by suffering a common recovery, to convey the estate tail and to bar all subsequent limitations.^ there is a devise of land to A. in fee over is therefore valid as an exeen- simple, witli a devise of the fee to tory devise of the fee under the stat- B. upon tlie failure of A.'s issue, and ute of wills, but not as a contingent it appears that a definite failure of remainder at the common law, for a A.'s issue was meant; i. e., that A. contingent remainder cannot at com- shall die leaving him surviving no mon law be limited after a fee. Mc- issue, the devise of the fee to B. is Leod v. Dill, 9 Fla. 427; Glover v. valid as an executory devise. The Condell, 163 111. 56G, 45 N. E. R. 173; future estate devised to B. cannot be Strain v. Sweeney, 163 111. 603, 45 N. impeached for remoteness of vesting, E. R. 201; Davenport v. Kirkland. for the fee will vest absolutely in 156 111. 169; Smith v. Kimball. 153 any event at the death of A. A. 111. 368, 38 N. E. R. 1029; Jones v. takes a base or conditional fee, which Sotheran, 10 Gill & J. (Md.) 259; Pat- on his death leaving issue vests in terson v. Madden (N. J. Eq., 1896), 36 tiiem absolutely as a fee simple, and Atl. R. 273; Armstrong v. Douglass, is then alienable. On the other hand, 89 Tenn. 219, and cases cited in note if he die leaving no issue, the execu- 1, p. 1274. See also g§ 875-878. tory devise of the fee vests at once i ^ 882. in the devisee over. The limitation 2 Post v. Rohrbach, 142 111. 600, 32 §§ 84S, 84:9.] GIFTS OVEK ON DEATH WITHOUT ISSUE. 1277 § 8i8. The failure of the testator's issue nieaus a definite failure of issue. — A testator wlio, having no issue when he Q/iaJces his icill, devises land to A. " in default of issue of him- self," means a definite failure of his own issue. He means if he shall leave no issue at his death the land is to go to A. The devise to A., though a contingent devise, is immediate and upon condition, and is to vest at once in A. upon the death of the testator if he leave no issue, and to be at once defeated if ho leave issue. The devise to A. is not a future gift by way of a contingent remainder after a fee tail, or an executory devise after a fee which may possibly be invalid for remoteness.^ Some of the cases place reliance upon the fact that the testa- tor has no issue when he makes the will. But where he had issue then living who survived him, the same construction has been had. Thus where the testator, having several sons and one daughter living at the date of his will, and also at his death, devised to A. a reversion to which he was entitled under a marriage settlement upon the death of his children " in case of failure of issue male of his body," the court decided that a failure of issue at the death of the testator w^as meant, and that the gift to A. was a valid, immediate gift, and not an ex- ecutory devise upon an indefinite failure of issue.- The cir- cumstances of the testator's family should always receive full attention, and may indicate what estate he meant to go to the issue in case he left any surviving. And it may also be re- membered that if the testator is unmarried when he makes his will, his subsequent marriage and birth of issue may, by revoking the will, render its construction wholly unnecessary. § 849. Definite failure of issue is meant by a devise over on death without issue under majority. — The words "dying witliout issue" undouljtedly mean dying without issue surviv- N. E. R. 087; Fisk v. Keene, 18 Pa. Badger v. Lloyd, 1 Salk. 232; Monro St 72; Malcolm v. Malfolin, 3 Cush. v. Parker, 1 Lord Raymond, 37; Car- (Mass.) 472; Niglitingalo v. Burrell, ter v. lientall, 2 Peav. o")!; Lepplo v. l.j Pick. (MasH.) 104; Condict v. King, Ferrard, 2 My. & Russ. 378. 13 N. J. Erj. 47.',; Wright v. Brown, > French v. Ca.ldell. 3 B. P. C. Tond. 116 X. (;. 20, 22 S. K. R 313; Toman 2."i7; Wclliiigtou v. Wellington, 4 V. Diirdoj), IS Pju St. 72; Haines v. Burr. 210.",. Witmer, 2 Yerg. (Tenn.) 400; In ro -'Sunford v. Irhy, 3 B. & Aid. O.'il; Ix,wman, 2 Ch. 348, 12 Re[H,rt, 302; In ru Rye's Settlement, 10 Uare, 100. Fi.Hher v. Webster, L. R 14 Ivj. 2«.'!; 1278 LAW OF -WILLS. [§ S50. inrr, wliore the doatli without issue is to take place during the minority of the j^'iniary devisee of the fee. Thus a devise to A. ill \\h\ l)ut if he shall die without issue and under twenty-one years of a(ji\ then over, gives A. a defeasible fee, with an execu- tory devise over on a definite failure of issue, which only vests in case oF the happening of hoth events. The fact that death without issue, to vest the devise over, must necessarily take place Itcfore A. attains majority, shows that death with a delinito failure of issue is intended. If, therefore, A. attains his major- ity, or dies under twenty-one years of age leaving issue, the devise over is defeated, and the fee becomes a fee simple, in the first case in A., and in the other case in his issue. And as has been elsewhere explained,^ if the direction is in case of A.'s death under age, or without issue, the courts will substitute the word " and " for " or " to carry out the evident intention of the testator that A. and his issue, if he leave any, shall benefit.- § 850. A definite failure of issue meant by a devise over to persons then surviving. — If the devise over on a failure of the issue of a devisee in fee is to the survivor or survivors of a class of which the primary devisee is a member, it will of necessity be presumed that the testator must have meant a definite failure of issue. This would be the case wdiere the tes- tator gives property in fee to his sons, and on the death of any to his issue, and, if either should die without issue, his share to the survivors. And, aside from this, the fact that a limitation over on a failure of issue is to a person living at the death of the testator, and that it will vest, if at all, during the period of a life or lives in being, will prevent any objection being raised to the gift upon the grounds of remoteness of vesting. In such case the first taker has a fee defeasible on his death without 1 See § 366. 1798), 184, 185 ; Hinde v. Lyon, 3 Leon. •■^Tennell v. Ford, 30 Ga. 707; Say- 64; Eastman v. Baker, 1 Taunt. 174, ward V. Sayward, 7 Me. 175, 181, 182; and cases cited in § 366. The same Raborg v. Hammond, 2 id. 42, 54; nile is applied where "dying witli- Kay V. Enslin, 3 Mass. 53.54; Hunt out issue" is used in connection with V Hunt, 11 Met. (Mass.) 88; Prosser "dying without leaving a husband V Hardesty, 101 Mo. 593; Shimer v. or wife;" and where there is a de- Sliimer, 50 N. J. Eq. 300: HaiTison vise over in case the first devisee of V. Bo we, 3 Jones' (N. C.) Eq. 478, the fee shall die either before or 481; Kelso v. Dickey, 7 W. «& S. (Pa.) after attaining his majority. Glover 279; Brewer v. Opie, 1 Call (Va., v. Monckton, 3 Bing. 13. § 851.] GIFTS OVER OX DEATH WITHOUT ISSUE. 12 71) issue surviving, with an executory devise over, which vests in possession upon his death without issue him surviving.' § 851. The meaning of the failure of issue at or after the death of the primary taker of the fee. — AVhether a lim- itation over expressly in terms " on the death " of the life ten- 1 Williams v. Graves, 17 Ala. G2; 455; Gish v. Moomah, 89 Va. 345, 15 Clark V. Terry, 34 Conn. 176; Burton S. E. R. 868; Jackson v. Chew, 13 T. Beach, 30 Ga. 638; Atwell v. Bar- Wheat. (U. S.) 153. 163; Lippett r. ney, Dudley (Ga.), 207: Daniel V. Dan- Hopkins, 1 Gall. 460; Lewis t. Clai- iel, 28 S. E. R. 167, 168 (Ga.); Sum- borne, 5 Yerg. 369: Turner v. Ivie, 5 mers v. Smith, 127 111. 645. 21 N. E. R. Heisk. (Tenn.) 232; Williams v. Tur- 191; Kellett v. Shepard, 139 III. 433, ner, 10 Yerg. (Tenn.)2S9: Greenwood 28 N. E. R. 751: Lombard v. Witbeck, v. Verdon. 1 K. & J. 74. In tlie last 173 111. 396, 51 N. E. R, 61 ; Pate v. French, 23 N. E. R. 673. 122 Ind. 10; Deboe v. Lewen, 8 B. Mon. (Ky.) 616; Louisville Ass'n v. Trust Co. (Kv.), case cited, the court, by Wood, V. C, says: "When the gift is upon the death of the first taker witliout issue to the then surviving legatees, that 29 S. W. R. 866; Hall v. Priest. 6 Gray is, to those persons named in the will (Mass.), 18; Gray v. Bridgforth, 4 Geo. who should then be surviving, it can- (Miss.) 312; Rucker v. Lambdin, 20 notbea transmissible interest wliiclt Miss. 31 (1849): Naylor v. Godnian, is given to them; and the onlj- inter- 109 Mo. 543, 19 S. W. R. 56; Faircliild est v.-liich they could take must be V. Crane, 13 N. J. Eq. 105; Den v. one which would accrue, in their sur- Cook, 7 N. J. L. 41; Sherman v. Sher- vivingthe specified period, and thei'e- man, 3 Barb. 385; Dumond v. String- fore it must necessarily be a personal ham, 26 Barb. (N. Y.) 104; Cutter v. benefit that was intended for those Doughty, 23 Wend. 513: Moffatt's legatees: and the period at which it Ex'rs v. Strong, 10 N. Y. 11, 12; Nor- was to take effect bemg upon the ris V. Beyea, 13 N. Y. 273; Chrystie failure of the issue of a preceding v. Pliyfe. 19 N. Y. 345; ZollicofTer v. devisee, I cannot regard the limita- ZollicofFer, 4 Dev. & Bat. (N. C.) L. tion as pointing to an indefinite fail- 43M: Baird v. Winstead (N. C. 1898), 31 S. E. R. 390; Beasley v. Whitehurst, 2 Hawks (N. C). 437; Bird v. (Jillam (N. C, 1898), 31 S. E. R. 267; Thread- gill V. Ingram, 1 Ired. (N. C.) L. 577; ure of issue, but a failure whicli might take place in the life-time of those legatees named in the will." A devise to a son, "his lieirs and as- signs, forever," is limiteil by another Deihl V. King, 6 Serg. & R. 32; Rapp clause in the will providing that, "in V. Rjipp, Pa. St. 49; Lapsley v. La])s- case of the decease of any one of my ley, 9 Pa. St. 130: Cahlwell v. Skilton, said children without issue living at 13 Pa. St. 152: Wall v. Mc(Juire, 24 Pa. St. 24N; Bedford's -Appeal. 40 Pa. St 18; Sh.M-fs Appeal, -52 Pa. St. 257: Ingerw.ll's Api.eal, H6 Pa. St. 24(»; Manchi'ster v. Durfee, 5 R. J. 549; the time of such decease, the devise or Ijequest given to such child I give and be(iueath in e(pial shares to the surviving brothers or sisters of said de(!eased;" and. on tlie death of tlu> Ijowry v. O'Brien, 4 Rich. Kq. (S. C) son without issue, tii(< land devis(;(l 262; Cox v. Buek, 5 Rich. (S. C.) 604; to him passes in e(pial shares lo his M'KJorkJo V. Black, 7 liich. L. (S. ('.) brothers and sisters then living. 407; Hydnor V. Sydnor, 2 Miuif. (Va.) O'Brien v. O'Leary, . P. IHi. (N. C.) Va{. lOO; Perry v. Logan, 5 81 l-2^2 LAW OF WILLS. [§ 853. at all where the first devisee has a fee simple in the real prop- erty or an absolute interest in the personal property; for the testator has parted with all his interest absolutely to each of the primary devisees, vj)on the i^ole cundition that, in case they shall all die without issue, it shall then go over to another. Each and all take a qualified or determinable fee, which is ab- solute in the heirs of each of them upon his death leaving issue, and in that event the executory devise over is defeated. Hence the share of any devisee d3''ing without issue will go to his heirs or personal representatives until all shall have de- ceased without leaving issue, when it will go to the executory devisee, or until some one of them has died leaving issue, in Avhich event the determinable conditional fee becomes an ab- solute fee simple. Therefore, where the testator has given an absolute interest in real or personal property to several as ten- ants in common, with an executory devise over on the death of all without issue, no necessity for cross-remainders between them exists, as there would be no intestacy in the event of any dying without issue.^ But, on the other hand, though the gifts be absolute in terms, j^et, if they are contingent and not vested, "with a gift over on the death of all without issue or under age, no necessity for cross-remainders will exist.^ Thus, where a man devised land to five sons and to their heirs male, and '■'■ if all five should die ivithout issue^'' then over, it was held that the survivor of the five was entitled to the whole.^ In America the same rule is applied to gifts in fee to several persons as tenants in common, with a limitation over if they should die without issue.* Accordingly, where the gift was to A. and B., their heirs and assigns, but if they should die without issue then over,' or to A. and B. with a remainder to their issue, and remainder on their death to the survivor,^ a cross-remainder by implication was created. One or two of the 1 Skey V. Barnes, 3 Mer. 334; Brown- Dow v. Doyle, 103 Mass. 489: Hoxton head v. Hunt, 2 Jac. & Wal. 459; v. Archer, 3 Gill & J. (Md.) 199; Baxter v. Lash, 14 Bear. 612. Pierce v. Hakes, 23 Pa. St. 231; Kerr 2 Mackell v Winter, 3 Ves. 236, v. Vernon. 66 Pa. St. 326. 536; Scott v. Bargeman, 2 P. Wras. 68. ^ Lillibridge v. Adie, 1 Mason C. C. 3 Dyer, 303b. 13 Eliz.; Holmes v. 224. Meynell, Raym. 452. 2 Show. 136. «Seabrook v. Mikell, Cheves (S. C.) ■» Allen V. Trustees, 102 Mass. 262; Eq. 80. § 853.] GIFTS OVER ON DEATH WITHOL'T ISSUE. 12S3 earlier cases refuse to admit the application of the rule of cross- remainders by implication where the property was devised to more than two.' But this distinction has been wholW repudi- ated by the later cases, and the rule in both England and America is that cross-remainders will be implied to carry out the testator's intention, irrespective of the number of those among- whom they are to be raised.'- The general rule is that cross-remainders are only to be implied to carry out i\ie mani- fest intention of the testator. If it shall appear from an express limitation over that the testator has created cross-i-emainders in express terms on the happening of certain particular events, this may be an indication that he did not desire that such re- mainders should be employed on the happening of other events.' This is illustrated in an early case where the testator devised land to A. and B., and in the event of the death of A. before the age of sixteen, her share to B., and if B. should die without issue, then to A. On the death of A. after having attained the age of sixteen, the court held that there could be no implica- tion of a cross-remainder in such case.* And this early case has been subsequently followed in England.^ But in other cases it has been held that, inasmuch as cross-remainders are largely a matter of intention, the circumstance of the remainder hav- ing been expressly created between the parties, on the hap- pening of particular events, is not decisive that the testator did not intend that similar remainders should be employed on the happening of different events.*' If the parties to whom the es- tate has been limited as tenants in common take different inter- ests, that is if some are tenants in fee, others onl}" for life, the limitation over on failure of issue will give them cross-remain- ders by implication.' The same rule is applied as to the crea- tion of cro.ss-remainders where property is given to several persons as tenants for life, with a remainder to their respective issue, and a dt.-vise over in ca.se of the death of all of tlu'iu with- iGillxirt V. Witty. Cro. Jhc. 0">, < ("l;i(.-lu>',s Caso. Dyer, :'>:!()/'. Cole V. Liviriijston, 1 Vent. 224. '• Itiibljcth v. Snuire, IS) Hcav. TO, 77, 2 Hall V. rri.'st. « (Jniy (.Mass.). IM; 4 De (lex & J. 4(»(>. 2 Wa.slib. R R. p. .'517; Hoxton v. « Atkinson v. Hamm, HI IVav. 277. Archer, 3 Oill & J. (M.i.) IIW; Wall v. 3 D. V. & J. :{:{!». Maj;uire, 21 I'a. St. 24H. '^ Van.l.TiiIaiick v. King, 3 Hare, 1. ' Clache's Case, Dyer, 'S-iOb. 1284 . LAW OF WILLS. [§ 853. out issue.^ So, also, the same rule is applied where the devise is to A. and B. in tail as tenants in common, and in default of such issue then over.- And the fact that the devise is limited to A. and B. and the heirs of their respective bodies as tenants in common, with a limitation over in default of such issue, does not alter the rule, and there will be cross-remainders among the first class of takers, with a limitation of the whole estate over.' iln re Ridge's Trusts, L. R 7 Cli. 3-SYatson t. Foxon, 2 East, 36, 40; 665; In re Clark, 11 W. E, STL Comber v. Hill, 2 Stra. 969: Williams 2 Wright V. Holford, Cowp. 31, 2 v. Brown, 2 Stra. 996; Doe d. Gorges Eden, 239; Phipard v. Mansfield, v. Webb, 1 Taunt, 234, 238; Green v. Cowp. 797; Atherton v. Pye, 4 T, R, Stephens, 17 Ves. 64, 75. 710. CHAPTER XLIIL THE VESTING OF FUTURE DEVISES AND LEGACIEa § 854 Definition, classification and characteristics of contin- gent remainders. 855. The perpetuity created by a contingent remainder. 856. The happening of the contin- gent events. 857. The character of remainders to heirs. 858. Conditional limitations and remainders which are de- pendent upon the remar- riage of a tenant for life. 859. Remainders de^iendent upon the death of a life tenant without surviving issue or children. 860. Vested remainders defined. 861. An early vesting is favored by the law. 862. The judicial leaning in favor of vested gifts where the testamentary disposition is residuary. 863. Examples of remainders wliich have been held to be vested. 864 When remainders to classes are vestei 865. Contingent remainders to classes. 866. Vested interests may be cre- ated by directions for the future division of land or of money, or for the future payment of a legacy. 867. Vested remainders which are subject to be divested by some future event. 868. The effect of a power of dis- posal on a vested remainder. 869. The vesting of devises and legacies at majority. 870. Contingent legacies which vest only at majority in a legatee. 871. The effect of a limitation over on death during minority in vesting a legacy. 872. The effect of the gift of the intermediate income on the vesting of a legacy. 873. Tlie vesting of pecuniary leg- acies, and particularly of those charged uf>on the rents and proceeds of land. 874. The definition and classifica- tion of executory devises. 875. Executory devises are not af- fected by the acts of the holder of the precedent es- tate, 876. The effect of the failure of an executory devise. 877. The transfer of future vested estates. 878. The acceleration of future es- I tates. § 854. Definition, i-I;issification and rliarat'toristics of con- tiniroiit roniaiiulers. — The reader will pardon us if we insert at thi.s ])oint a few of tlie elenumtary princij)les of law govern- ing contingent remainders. Tliough these principles are toler- ably familiar to the majority of members of the profession, a 12SG LAW OF WILLS. [§ 854. short recapitulation of them may be of value where one is un- expectedly called upon to give an opinion of the character of a future limitation, and the recognized authorities in this de- partment of the law are not within reach. A contingent remainder is one which is limited to vest upon the happening of some event which is dubious and uncertain, and hence may never happen at all, or may only happen after the particular estate is at an end; or Avhich is given to a non- existent person or to a non-existent class of persons.^ " Con- tingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take ef- fect either to a dubious and uncertain person, or upon a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect." ^ Many classifications of contingent remainders have been attempted. They are divided by Mr. Elackstone into two classes. The first class of contingent remainders comprises those which are to vest upon the happening of some dulnous and uncertain event. The second class includes those which are limited to some diibious and uncertain person or persons. In the first class we may arrange contingent remainders which are to vest upon the prior termination of the particular estate by some uncertain event, which does not, of necessity, abridge or de- stroy it. Under the second class of contingent remainders are included all limitations in remainder to persons who are un- born at the death of the testator, as, for example, to the heirs of a person who is described as then alive,* and also remainders limited to uncertain persons, as to the survivors of several per- sons named, or to a class, or to the surviving members of a class.* Independently of modern statutory modifications, it is the rule that a future estate, whether vested or contingent, if it is to operate as a common-law remainder, must be created by the same instrument and at the same time as the particular estate w^hich is to support it and which precedes it. And a contingent remainder must vest, if at all, either during the 1 4 Kent, Com., p. 198. For other Spear v. Fogg, 87 Me. 132, 139; Eob- definitions, see Robinson v. Palmer, inson v. Palmer, 96 Me. 246, 248. 89 Me. 128, 35 Atl. R. 1037; Harvard ^2 Black. Com., p. 168. College V. Balch, 171 IlL 275, 280; 3 See §§ 612, 857. Post, §§ 864, 865. § 855.] TESTING OF FUTURE DEVISES AND LEGACIES. 128T continuance of the particular estate or at once at its termina- tion. This is the consequence of the rule that at the common, law the fee could not be in abeyance.^ Ilence, it follows that if the particular estate comes to an. end, or if it is destroyed before the contingent remainder has vested, the remainder is also destroyed. Thus, in the earlier common law, if a life tenant alienated his freehold by feoffment, or a tenant in tail alienated by fine, all contingent remainders coming after him were by this action destroyed. But courts of equity have always favored contingent remainders, particu- larly when they were contained in wills; and no contingent remainder can be destroyed by a transfer of the particular es- tate by means of any conveyance which, like a bargain and sale deed, operates solely as an equitable conveyance under the statute of uses. Again, a continorent remainder could not as such be created by a common-law conveyance, as by a feoffment, to take effect, that is to vest, upon the happening of an event which prema- turely brought the particular estate to an end. If a future es- tate in land was by its terms to vest upon the happening of any event which defeated, abridged or destroyed the preced- ing estate, it would not be valid as a common-law contingent remainder, though it might be valid as a conditional limitation, or as an executory devise when it was created by a Avill.- § 855. The perpetuity created by a eontini^ent remainder. "When a contingent remainder is created by a common-law feoffment vntJt livery of seizin to the Ife tenant^ the fee or inheri.tance is said to be in abeyance, because there is no one in whom it would vest absolutely, until the contingent event happens upon which the remainder in fee will become vested.' l>ut where a contingent remainder or an executory devise is 1 1'U)wden, 2.1. 28; Co. Litt. 49 a, b; commence in fiituro." 4 Kent. Com.. Arclier"» Case, 1 Ca 68; Chudleigli's p. 242. And see also jmst, i 881. Case. 1 Co. i:J8. " There must be no ^ See ante, § 480. and ;»o.s•^ Ji 874. interval or mean time between the ^4 Kent, Com., p. 252; ChiidleiKh's particular estate* and the remainder Case. 1 Co. i:J5. The rule in Shelly's HUpIK^rted by it. If the particular case was introduced to avoid tho estate terminates before the remain- great uiconvenience which will re- der f!an vest, the remainder is gone suit in such cases. See ante, g O.Vi forever, for a freehold interest can- et se(i. not, according to the eoinniun law, 12S8 LAW OF WILLS. [§ 855. created in a will ivhich certainly does not operate hy feoffment and by actual livery of seizin, but under the statute of wills, the inheritance, unless disposed of by a residuary devise, de- scends to the heirs of the testator, to remain with tliem until the contingency happens; for in equity it was admitted, at least after the creation of uses and trusts, and the passage of the statutes of uses and of wills, that estates of freehold might be created by will or as uses to commence in future} In the case of an executory devise of a freehold to begin in, futuro without any particular estate created to support it, the fee de- scends to and remains vested in the heirs of the testator, sub- ject to being defeated as soon as the executory devise shall vest.^ The same rule is applicable to all conveyances of the fee which operate not by feoffment, but under the statutes of uses or of wills. And the great importance of this rule in the United States of America lies in the fact that conveyances by feoffment and with livery of seizin are universally abolished ; and bargain and sale deeds, and other conveyances which de- pend for their validity upon the statute of uses or upon some similar statute, have been substituted for conveyances by feoff- ment and livery. By the creation of a contingent remainder by means of a common-law feoffment, the fee or inheritance was regarded as having been absolutely parted with by the feoffor; and, as there was no one in being in whom it could vest absolutely, it was held of necessity to be in abeyance.' The doctrine of abeyance resulted in the greatest inconven- ience. Logicall}'- no person could, until the contingent re- mainder vested, convey with livery of seizin; for a contin- gent remainder, viewed from a common-law standpoint, was not regarded as an actual estate until it had vested. It was a mere possibility of having an estate in the future, and as such it was not assignable; for a contingent remainder could be conveyed at common law only by way of estoppel, which was either by record, as by a fine and common recovery, which de- stroyed it, or by deed, as by a grant.* In equity, however, all contingent interests, whether common-law remainders, future or contingent uses, or executory devises, were always assign- 1 Ante, %% 111, 778. « Co. Lit. 352a; Weale v. Lower, 2 See § 874 etseq. PoUexfen, 54, 61; 4 Kent, Com. 254. »Posf, §881. § 856.] TESTING OF FUTURE DEVISES AND LEGACIES. 12S9 able by conveyances operating under the statute of uses; and also by wills if they were of an inheritable nature, and the person or persons to take had been ascertained. But where the ultimate remaindermen or executory devisees were not in- esse, or were not ascertainable until the happening of the con- tingency, the future disposition of property was a mere possi- bility not coupled with an interest, and it was not assignable either in law or equity.^ The rule of the older law that contingent interests cannot be transferred save by an estoppel by deed, or by a conveyance operating under the statute of uses, is now generally repealed by statutes in very many of the states. In many of the states all estates in expectancy, whether they are vested or contingent, are descendible, devisable and assignable, according to their nature and duration, by the ordinary deeds of conveyance which are required in the case of vested estates. Elsewhere contin- gent and executory interests which are not estates mav be con- veyed if the contingency upon which they are to vest is not as to the person in whom the future estate shall vest.^ But where the contingency upon which the ultimate enjoyment of the re- mainder depends is the survival of the remaindermen until the termination of the particular estate, as when it is to " children living at the death of A.," who is the tenant for life, the re- mainder is neither assignable nor transferable, and a purchaser on execution takes no title.' § 856. The happeiiinfl? of the contingent events.— Although the law favors vested estates, both in real and personal proj)- erty, a future and executory devise, or a legacy wliicli is to vest upon the happening of some contingent event, will not vest unless the contingency hapi)ens ^;;vt'/.s'i Atl. \L 'Z'iH; RouMiltreo v. Aliu 214. 20 S. li. »*,. Routi.ltrfie. 20 S. C. 450. 2 S. K. li. 474. *S.»,. mit>; J5 4H0. us to the strict 2 Putnam v. Story, 132 >Lih.h. 207, performunce of conditions. 211; Nttbli V. Na«li, 12 Allen (Muss.), 1290 LAW OF WILLS. [§ 85C. requiretl by the terms of the testator's language of limitation. Thus, if the testator has provided for the distribution of his es- 'tate upon the happening of one or more contingent events at the termination of a prior existing vested estate, and none of the required events happens exactly as provided for, the court can- not, by supplying dispositive words or the language of gift or of devise, dispose of the estate upon tiie happening of another event, though that is nearly similar to the events which have been mentioned. This rule of construction is illustrated by a future provision for the children of A. then living, i. e., at the termination of a vested life estate, but if one such child only survive, and there be no surviving issue of any deceased child, then to that child, and there is a surviving child and also the survivinsr issue of one or more deceased children. The devise does not vest in the children of A., for the condition of affairs actually existing is not the one provided for by the testator, and as the future gift was contingent upon a state of affairs which cannot now exist, the testator is pro tanto intestate.' And this rule is likewise well illustrated by an executory de- vise to A. in case B. shall die under the age of twentj^-one and without issue.'^ Here B.'s death must take place under twent}'- one, and the deceased must also leave no issue at his death, or the contingent devise w^ill fail. An estate, whether in fee or for life, which is vested either in interest or in possession, but which is subject to being di- vested upon the concurrence of two or more contingent events, Avill not be divested unless all the necessary contingent events shall happen precisely as described in the will. Thus, if a vested interest is to determine and to go to others upon the happening of some event which of itself puts an end to tlie es- tate, as m the example above given, the vested estate will not determine until the event shall happen. And, on the other hand, if an absolutely vested interest is, upon the happening of one or more events which are in their nature contingent, to be divested, and then the estate is to go to other persons who up to tliat time are uncertain or are not persons in being, the vested interest will not be divested, unless it shall appear that the devisees over who are to take are ascertained at that tiiiie. iShuldam v. Smith. 6 Dow. 22, by 2 See ante^ % 407. Lord Eidon and Lord Redesdale. § S57.] VESTING OF FUTURE DEVISES AND LEGACIES. 1201 This is so, although the contingent event has happened upon which the prior interest was defeasible.^ Accordingly, under this rule, where a remainder is devised to A. and B. b}^ name as individuals, equally to be divided between them at the death of the life tenant, or to the survivor ofthem^ and Tjoth die during the life tenancy, the remainder, being vested, is not divested. The representatives of A. and B. each take an equal share. The remaindermen take vested estates at the death of the testator, subject to be divested by the fact that one only survives, and he is to take all if he survive. As the only event which can possibly defeat the share of any remainderman has not and cannot happen, the share of none is divested.- §857. The character of remainders to heirs. — The con- struction of future gifts to the heir or heirs when they are to take as purchasers under the will is so fully and exhaustively treated in another portion of this work,^ that little remains to be said here. A remainder to the heirs of a life tenant (in those states where the rule in Shelly 's case is repealed) is a contin- gent remainder, for nemo est hceres viventis^ and, if the life ten- ant shall die Avithout any heirs, the remainder is gone.^ But very often the word " heirs," in the case of a remainder to the heirs of the life tenant, will be construed to mean his children,'* in which case the children will usually take a vested remainder as a class.^ Thus, a remainder to the " heirs of the marriage of the testator by his present wife and to heirs of the former marriage of the said wife " of the testator means " children of those nuirriages,'" and such children have been held to take contingent remainders.^ Whether a remainder devised to the heirs of the testator him- self shall be vested or contingent depends alwa3's upon the ex- lAn illiLstration of the rule of the 2 Bjo^vne v. Kenjon, 3 Maii. .'IIO; text is foumi in Wood v. Mason. 17 Bell v. Slack. 1 Kee. 2liH. R I. 99. 20 Ail. R 204, which was a ^^■.^ ()Ot;-tj:]:{. devise of a life estate to A., but if A. '•Larnioiir v. Rich. 71 Mil. KWi, IS died before the testiitor«/(f/<-liiliiless Atl. R 702; Putnam v. (Jleason. 99 then over, and A. survived the testa- Mass. 451; Kiclianlsoii v. Wheatland, t^jr, h>ut died leaving no children. 7 Met. (Mass.) I09. The court hold that the devise over ''Antr, t-J; (SKJ, (U7. did not vest, as it was dependent on '•See also Jj 558. a flouble contingency, 1, i\, that A. " Ma^uire v. Jloore. lOS Mo. 2(57, 18 should iirede<'«»jise the testator and S. W. R 897. hIho that he shoidd di(; cliildless. 1292 LAW OF WILLS. [§ 857. act wonling of the will. If by " heirs " the testator means those persons who are his heirs at his death (which is the customary construction)/ tliose persons take a vested estate in remainder. On the other hand, where it is clear that, by a reference to his heirs, the testator means those persons alone who would be his heirs if he had died at the termination of the life estate, the re- mainder to his heirs would probably be construed as contingent until that event.- In conclusion it may be said that a remainder to the heirs of a person other than the testator, but who takes nothing himself under the will, is always contingent until the death of that per- son.' "Where the ancestor is alive at the execution of the will and he dies hefore the testator, those who are his heirs and who also survive until the death of the testator take a vested re- mainder.* "Where the ancestor is alive at tJie death of tlie tes- tator, the class doctrine is applied, and all who would be his heirs if he died immediately take a contingent remainder, as a class, subject to open and let in others born to him during his life. Then, upon his death before the life tenant, those who are his heirs take a vested remainder, the possession only being postponed until the death of the life tenant.^ i^nfe. §§ 610, 613. 2 Bunting v. Speck, 41 Kan. 421 Walker v. Dunshee, 38 Pa. St. 439 Donohue v. :\IcNichol, 61 Pa. St. 73 Johnson v. Jacob, 11 Bush (Kv.), 646 Rich V. Waters. 22 Pick. (Mass.) 563 Sears v. Russell, 8 Gray (Mass.), 86. 3 2 Black. Com., pp. 169, 170; Pres- ton V. Brant. 96 :Mo. 552. 10 S. W. R. 78; Ryan v. Monoglian, 99 Tenn. 338, 42 S. W. R 144; Hall v. Nute, 38 N. H. 422. 4 Persons v. Snooks, 40 Barb. (N. Y.) 144; Campbell v. Rawdon, 18 N. Y. 412; Preston v. Brant, 96 Mo. 552, 10 S. W. R. 78; TiUinghast v. Cook, 9 Met. (Mass.) 143. 5 Moore v. Littell, 41 N. Y. 66. And see also ante, § 612, and the early case of Dan vers v. Earl of Clarendon. 1 Vern. 35, and Bullock v. Bullock, 2 Dev. Eq. (N. C.) 316. Before it can be decided whether a testator has or has not succeeded in creating a valid con- tingent remainder by a devise to a person for life with remainder to the heirs or to tlie heirs of the body of the life tenant, it is necessary to as- certain to what extent, if at all, the court construing the will is bound by the rule of law known as the rule in Shelly's case. This rule, which has been fully discussed in another por- tion of this work, is as follows: If an ancestor takes an estate for life and an immediate remamder is limited thereafter in the same instrument to his heirs, or to the heirs of his body, the words " heirs " or " heirs of his body " are not words of purchase.but words of limitation, and the fee vests at once in the ancestor. The words " heirs " or " heirs of his body" do not create a contingent remainder where the rule is in operation, but the life tenant takes an estate in fee or in fee § 858.] TESTIXG OF FUTURK DEVISES AND LEGACIES. 1293 § 858. Conditional limitations and remainders which are dependent npon the reniarriuu:e of a tenant for life. — Else- 'where it is explained that a devise by the testator to his widoAV for her life, but, if she should remarry, then over to others in fee, loithoiit any provision for the disj)ositio?i of the fee after her death, where she does not remarry, gives the devisee over a re- mainder in the latter event by implication, the courts inserting the proper words for such a limitation.^ The point here to be considered is whether a devise of the future estate, on the mar- riage of the widow, simjjliciter, is a conditional limitation, valid only under the statute of wills and contingent solely upon the remarriage of the widow, so that if she shall die without hav- ing remarried it will be defeated; or whether it is a remainder, vested or contingent, according to circumstances, which is to take effect in any case on her death, if she shall die without having remarried. The question is an old one and frequently arises. The diflB- culty is caused by the fact that an estate which is given for life, in express terms, is to be terminated by a contingent event; i.e., the marriage of the life tenant. Under such circumstances it may seem that the devise over is contingent and should take effect only if the prior life estate is terminated hy marriage, and that it should be defeated if it is not. Thus, where land was devised to the widow of the testator ''''for life, hut vpon the ex- press condition that if sice should marry " again the land should go to A. in fee, the estate to the widow was held to be an es- tate upon condition, and the estate to A. was a conditional limit- ation, which was dependent upon the contingency of remarriage by the widow,^ and where the widow did not remarry tlie de- vise over did not take effect. lUit the majority of the decisions have not thus construed such a limitation. In an earl}'' case where the limitation was to the widow expressly for life " if she should not marry ayain, hut if she did, then to -^1.," the court held, on the widow's death without having married again, that the devisee over had a vested remainder in fee which was de- tail, as the ca.se may i>«\ On th(,'f)ther the ancestor. For a discu.ssionof the hand, where the rule in Shelly'scaso rule in Shellys case, seeuH/e, ^§655- haa heen rei>ealeiJ, a remainder to 0<»S. the heirn or to tlie lieirn of tlio hody l .\n\t\ "i, 172. of the tenant f<*r life is a valid con- -Shelheld v. Lord Orrery, 3 Atk, tiogent remainder until the death of 2ti2. 121)4 LAW OF WILLS. [§ S58. pondt'iit on the life estate in the Avidow.' The distinction between tlie two cases or chisses of cases is difficult to appre- liend so far as mere words are concerned. The solution is to seek the intention from the whole will. If it shall appear that the testator meant to give an estate for life upon a condition subsequent that the devisee should not remarry, the devise over is then a conditional limitation contingent upon that event alone, l. irth of issue to A. if they survive the life tenant; but that, on B.'s death in the son's life, the rcmaindei' dcscciKh'd from ]>. to his heirs, an»[»iw V. I>;e, 9-' Ky. lO. 1(5 S. W. Mass. WVi, Hit N. E. R. 1 1 1,'. R :JU;; Dunn v. Sargent. 101 .Mass. '> Hills v. HarnanI, IW Ma.s.s. 07, 25 :m, -.i'-i^; Iloi.kins v. .Jon.-s, ',> I'a..St. 0'.); N. K. \i. !»«. 129G LAW OF WILLS. [§ 859. was to E. for life, remainder to her children in fee, but if none at lier deaths then remainder to her brother, and the brother died before E., it was held, upon the death of E. leaving no children, that the remainder was vested and that it might be legally claimed by the heirs of the brother, but that it was not devisable by E.^ And the same construction has been fol- lowed^ where there was no express devise of the fee hi remainder to the children of the Vfe tenant whom he should leave at his decease. Thus, where land was given to A., wiio was the son of the testator, " during his natural life, and in case he should die leaving no child or children, then to the surviving children or grandchildren of the testator," the court held that the children of the testator living at his death and the children of the tes- lator's deceased children took vested remainders, subject to being devested by the death of A. leaving children. In the latter event A.'s children took remainders, though nothing had been expressly devised to them.^ Many cases, however, may be found in which it has been held that a remainder, which ordinarily would be considered vested, will be rendered contingent by the fact that it is lim- ited to follow after the death of the life tenant without issue or without children him surviving. Thus, where a remainder is devised to the issue of the tenant for life, but if he shall die without issue, meaning without leaving issue at his death, then remainder to B. for life, remainder to the children of C, the remainder to B. is vested, while that to the children of C. is contingent until B.'s death, A. having died during B.'s life without issue.^ So a devise to A. for life, remainder to his children living at his death, if they attain majority, or die leav- ing issue under majority, but if none attain majority or die leaving issue, then remainder to the children of B., gives the 1 Garrison v. Hill, 79 Md 5, 28 Atl. N. E. R 702, 147 N. Y. 348. See also, R. 1062. See also Goodright t. Jones, sustaining the text, Xaylor v. God- 4Maule & SeL 88; Lewis v. Waters, man, 109 Mo. 543, 19 S. W. R. 50; 6 East, 336. Woelpers Estate, 126 Pa. St. 562, 24 2 But on this point compare cases W. N. C. 233, 17 Atl. R 870; Taylor cited ante, % 468. v. Taylor, 63 Pa. St. 481 ; Losey v. 3Kilgore v. Kilgore, 127 Ind. 276, Stanley, 147 N. Y. 560, 42 N. E. R 8; 26 N. E. R 66. And see cases cited, May v. Gest, 14 S. & R (Pa.) 40; Je- p. 621, note 2. nour v. Jenour, 10 Ves. 562; Roe d. 4 Nathan v. Hendricks, 34 N. Y. S. Sheers v. Jeffery, 7 T. R 589. 1016, 87 Hun, 483; In re Baer, 41 § 860.] TESTING OF FCTUEE DEVISES AND LEGACIES. 1297 latter class a contingent remainder and not an executory de- vise.^ A devise of a remainder to the children of the life ten- ant, but if none survive him, then to "• the grandchildren of the testator, their heirs and assigns forever," gives the grandchil- dren of the testator living at his death a contingent remainder as a class, "svhich opens to let in after-born grandchildren, but which is defeated by the death of the life tenant leaving chil- dren.- In conclusion it may be said that a limitation over upon the death of a life tenant without children, when, if he has any surviving, they are to take a vested remainder, does not refer solely to death in the life-time of the testator, as would usually be the case if the devise Avas to the devisee in fee, and on his death without children then over? §860. Vested remainder defined. — A vested remainder is one, says Chancellor Kent, " lolieii there is an immediate right of present enjoyment, or a present fixed right of future enjoy- mentr * The uncertainty that the remainder will ever vest in possession in the remainderman named will not render it con- tingent, if there be a person in being in whom it would vest if the precedent estate^ were to come at once to an end. If the remainder is in. fee, and it is vested in A., the fact that he dies during the life of the tenant of the life estate does not devest the remainder, but A.'s estate in the remainder descends to his heirs, and they may enter into possession at the termination of the particular estate.'^ So, too, a renuiinder to B. and the heirs of his body is a vested remainder in B. in fee tail, though it may happen that B. dies without heirs of his ])ody before the life tenant. It is the present capacity of the remainder to take efifect in possession which makes it a vested remainder, Ihit, on the other hand, if it be uncertain whether the remainder will ever vest in any person at all, the remainder is contingent. 1 Dernill v. K N, the death of the prior taker in fee W. R. .".IH; Cjarkson v. I'ldl, 17 R. 1. under age or witlxjut i.ssnc, and 040, 21 Atl. U. 110. See also g U40. when "or" is changed into '-and,'' i» considj-red at length in g 300. 1208 LAW OF WILLS. [§ SCO, Tlie simplest example of a vested remainder is a devise to A. for his life, and after or at his death the fee is to go to B. and his heirs, and A. and B. are both living at the death of the tes- tator.^ But few limitations are worded so simply or so plainly as this, and the dilliculty, in construing the language of the will, of ascertaining whether the testator intends to give a vested or a contingent interest, is very great. The line of de- marcation between vested and contingent future estates is very fine and discernible often only with great difficulty. When- ever it is possible the future interest will be construed as vested, and hence alienable and devisable by the remainderman.^ It is not so much the certainty or the uncertainty of the enjoyment of the fee in remainder after the life estate ends as the uncer- tainty of the person who has a present right to enjoy the future estate if the particular estate came to an end now, which determines the character of the remainder. A remainder is vested if the remainderman, being alive^will take at once if the life tenant were to die. The fact that his enjoyment is post- poned, and, on a certain event, as on his death, may never take place at all, does not make the remainder contingent. But where there is no person now in being upon whom the enjoy- ment and possession of the remainder would devolve as a re- mainderman, if the particular estate were to terminate, the remainder is contingent. Where a vested remainder is devised 1 As in Perrine v. Newell, 49 N. J. man is in esse and ascertained ; pro- Eq. 57. vided nothing but his death before 2 " A vested remainder is one lim- the determination of the particular ited to a certain person or a certain estate will prevent such remainder event, so as to possess a present ca- from vesting in possession. Yet, if pacity to take effect in possession the estate is limited over to anotiier should the possession become va- in the event of the death of the re- cant." Crews' Adm'r v. Hatcher, 91 mainderman before the determina- Va. 378, 21 S. E. R. 811. A good ex- tion of the particular estate, his ample of this would be a remainder vested estate will be subject to be to A. upon the death of B. without devested by that event; and the in- issue living at his death. So, it is terest of the substituted remainder- said, " where a remainder is limited man, which was before either an to take effect in possession, if ever, executory devise or a contingent re- immediately on the deterinination mainder, will, if lie is in esse and as- of the particular estate, which estate certained, be immediately converted is to determine by an event that into a vested remainder." By the must happen unavoidably by the ef- court, in Blanchard v. Blanchard, 1 flux of time, the remainder vests in Allen (Mass.), 227. interest as soon as the remainder- § S61.] VESTING OF FUTUKE DEVISES AND LEGACIES. 1299 to A., with a disposition of the fee to C. upon the death of the remainderman without issue, it will be presumed, in the ab- sence of a contrary intention clearly shown, that the death of A. without issue during the life of the particular tenant is meant, and, upon A. surviving the life tenant, he will take ab- solutely.^ § 861. An early vesting is favored hy the law. — Under the rule elsewhere explained,- by which a modern will speaks as of the date of the death of the testator, every gift to a person who is alive at that date vests at once, in the absence of an expression of an intention that the vesting shall be postponed. It will be presumed, when the testator does not expressly or by implication indicate that the vesting of the title to his bonnty is to be postponed, that he means it to vest at once upon his death. Ilis silence upon this point will raise a con- clusive presumption that the interest in the gift is to vest as soon as the instrument by which it is given shall take effect, which, under the general rule, is at his death. And if the per- son who is to take is not alive at his death, the title will vest as soon as he comes into being, for the law in every case favors an early vesting. No future or executory limitation will he re- garded as contingent which may, consistently loith the i7itention of the testator gathered from, the whole will, he deemed vested. The presence of the language of contingency, as in the phrase " if they be living," or to those who " may then be living," or in similar language, is to be considered, though such phrases are by no means conclusive, as they may refer to the entering into the possession as well as to the vesting of the title. If the terms of the will are equivocal or ambiguous on this point, they ouglit to be construed to favor the vesting of the title at ^ See anto, g .340, p. 40."), for Cc-isos tliose were liviiifjat the iloatli of B. citf;y to make the will elTectual by their will flevised his real property to H., ri^lit of [Kissession, were fixed, deli- his wife, ff)r and durin;^ her life, and nite and certain." .Simpson, J., ia at lu-r death to liis lethal hr-irs; and at KuntiriK v. SiHiuk, 41 Kan. 424, 4111, the deiith of A. he hail two sons, atiber, 83 Wi.s. 617. 625; 111 re Ehle, 73 Wis. 445, 451; (^lien«'y V. I'luiiil). 79 Wis. 602, 60(!; in M.itt.T of I'icrcc, 56 Wis. 560, 565. -Giiniiiu-r v. Guild, 106 .Mass. 25. The sdii wlio was oldest at tlie death of till' testator was meant. •'(Wngrieh v. (Jingrich. 1 H! Ind. 227, 45 N. E. H. 101. of a future event, the doubt is always resolved in favor of a vested i-emain- der. Many well-considered cases as- sert a still stronger rule in favor of vested remainders, by holding that all estates in remainder are to be treated as vested, except in a devise in which a condition precedent to the vesting is so clearly expressed that the court cannot treat it as vested without doing so in [ilain con- tradiction to the language of the will. Another rule, so often ex- pressed that we find it everywhere in the books, but probably included in those already stated, is that no re- mainder will be construed contin- gent which may, consistently with the words used or the intention ex- pres.sed, be deemed vested." Bunt- ing V. Sfieek, 41 Kan. 424, 4:'.'^. • Tlie authorities which sustain the jtresumption against intestacy are without number. A few only of tlie nu)st recent are here cited, though these, it may be noted, are more a|>- plioiblu to the general rule than to the queHtion of vesting. Higgins v, Dwen, 100 III. 551, 556; King v. King, 1303 LAW OF -WILLS. [§ 864. session of the estate;' a devise "absolute to B. on the death of A., but if B. shall die in the life of A. then to B.'s heirs;"'-' a devise of a house "to be given to A." one year after the death of B.,' or to B. if living at the death of the life tenant, but if not then to another,^ or a direction that the land is " to revert to my three children " after the death of my widow,^ creates a future gift which vests at the death of the testator. A vested remainder may also be created by terms which shall make it defeasible upon a condition subsequent. Thus, as is shown elsewhere,® a remainder in fee to A., but if he shall die ■without issue under twent3'"-one, is vested, but may be defeated upon his death during minority and Avithout issue.^ § 864. When remainders to classes are vested. — Because of the principle that the law favors an early vesting, it is a gen- eral rule, unless a contrary intention is clearly expressed, that where the testator has given a remainder to a class, which may increase or decrease in numbers during the particular estate, the remainder will vest in those members of the class loho are alive at the death of the testator, subject to o}ien and let in all after-born members of the class.^ The members of the class who are alive at the death of the testator take vested remain- deis, though the share of each may be diminished b}^ the subse- quent birth of new members into the class during the duration of the particular estate.^ As the various members of the class are born during the ex- istence of the life tenancy, each takes at once a vested remainder, though his enjoyment and possession are postponed. AYhere the remainder is a vested remainder in fee to the class, the death 1 Duncan V. Prentice, 4 Met. (Kj'.) Kent says: "Where a remainder is 216. limited to the use of several persons 2Tindall v. Miller, 143 IlL 337, 41 who do not all become capable at N. E. R. 535. the same time, as a devise to A. for 'Pond V. Allen, 15 R. I. 171, 2 Atl. life, remainder to his children, the R. 302. children living at the death of the * Hoover v. Hoover, 116 Ind. 498, 19 testator take vested remainders, sub- N. E. R 468. ject to be disturbed by after-born s Shipp V. Gibbs, 88 Ga. 184, 14 S. E. children. The remainder vests in the R. 196. persons first becoming capable, and 6 Post, § 867. the estate opens and becomes de- ^ Hinrichsen v. Hinrichsen, 172 111. vested in quantity by the birth of 462, 50 N. E. R. 135. subsequent children, who are let in to 8 See cases cited §§ 551-558. take vested portions of the estate." 9 In 4 Comm., p. 197, Chancellor See also anfe, p. 723, note 1 et seq. § 864:.] TESTING OF FUTURE DEVISES AND LEGACIES. 1303 of one of the remaindermen before the death of the life tenant will not devest his share. And the deceased remainderman's interest will descend to his heirs if he has not disposed of the fee by his will. The share of each member of the class, being Tested, is also assignable and devisable during the existence of the particular estate, subject to diminution as to the amount or quantity which the remainderman or his heirs will ulti- mately receive by reason of the class being subject to open and let in after-born members.^ 1 Rosenau v. Childress, 111 Ala. 214, 20 S. R. 95; Bull v. Bull, 8 Conn. 49; Johnson v. Webber, 33 Atl. R. 506, 65 Conn. 501; Belfield v. Booth. 63 Conn. 299, 27 Atl. R. 585; Nelson v. Pom- eroy, 29 AtL R 534, 64 Conn. 257; Crawley v. Blackman, 81 Ga, 775, 8 S. E. R. 533; De Vaughn v. JI'Leroy, 10 S. K R. 211, 82 Ga. 687; Kelly v. Gonce, 49 111. App. 82; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. R. 56; Heilman v. Heilman, 28 N. E. R. SIO, 129 Ind. 59; Moores v. Hare (Ind., 1897), 43 N. E. R. 870; Fleming V. Ray, 86 Ga. 533, 12 S. E. R. 944; Burnside v. Wall, 9 B. Mon. (48 Ky.) 321; W^inter's Estate, 114 Cat 186; Arnold v. Arnold, 11 B. Mon. (Ky.) -93: Downes v. Long, 79 Md. 382, 29 Atl. R 827; Young v. Robinson, 11 Ciill & J. CKy.) 328; Waters v. W^aters, 24 Md. 430. 446; Dulaney v. Middle- ton, 72 Md. 67, 19 Atl. R. 146; Taylor V. Mosher, 28 Ud. 443, 455; Straus v. Rost, 67 Md. 465, 10 Atl. R 74; De- vecmon v. Shaw, 16 Atl. R. 645, 70 Md. 219; Winslow v. Goodwin, 7 Met. (Ma-ss.) 381; Lombard v. Willis, 147 lyiass. 13, 16 N. E. R 737; Parker v. Converse, 5 Gray (71 Mass.), 336; Shattuck V. Stednian, 2 Pick. (Mass.) 468; Weston v. Foster, 7 M(;t. (Mass.) 297, 299; Vallard v. Vallard, 18 Pick. (Mass.) 41 ; Dingley v. Dingley, 5 Mass. 537. See also other Massachusetts cases cited in note 1, page 732; also Adams v. W Ante, %% 349-3J3. « In re Winters, 114 C'al. 1S(l, i.j Patv ■^Antc, ):■ :i->l. R. 1()0:{. ^M<(Jr:i\v V. Davenport, Port. "Denny v. Kettell, 1:35 Mass. 138, (Ahu) 310; Putnam v. Story, 132 Mass. 13!». 207, 211; Nash v. Nasli, 12 Allen •* See the followinj; eases in sui»i)ort (Ma.ss.), 34.'); Dunn v. Sar^eant, 101 of tlie text: Ilethea v. liethea ( Ala., Mass. 330; Kobinson v. Palmer (Me., IH'JT), 22 S. R. 520; William v. Cald- 18»6). 3W Atl. R 10; Mc(;illis v. Mc- well (Iowa. 1H07), 71 N. W. R. 214; (Jillis. 4!» N. v.. R. 14.'>. 154 N. Y. 532. Moores v. Hare (Imi.. IHUO). 43 N. E. R. < Ho|.kins V. Kea/.er. HO Me. 347. 30 870; Hempstead v. Dirkson, 20 111. Atl. R. 015; Rounrltree V. lioundtree, 103. 105; Spear v. Kokk- ^1 Me. 132, 20 S. C. 450, 2 S. K. R. 474. 130: Mercantile Trust Co. v. Mrowii, ■•SiM-;ir V. FogK. >^7 Me. 132, 32 Atl. 71 My 7iame, with a proviso that the share of any child dying without issue should go to his or her su?'viving brothers and sisters, the children of one who dies after the testator, leaving issue, were let in.^ § 866. Vested interests may be created by directions for the futnre division of land or of money, or for the future payment of a legacy. — A direction to divide land, or the pro- 1 Olney v. Bates, 3 Drew. 319. 391; Lombard v. Willis, U7 IMass. 137, ■-' Grimmer v. Friedrich, 4.5 N. E. R. 16 N. E. R. 737. 498, 164 111. 245; Union Assn v. Mont- =» Stone v. Lewis, 84 Va. 474, 5 S. E. goinery, 70 Mich. 5>s7, 59.5; Porter v. R. 282. Porter, 50 Mich. 456; Smith v. Black, * Wainwriglit v. Sawyer, 150 Mass. 29 Ohio St. 488, 498; Anderson v. 118, 22 N. E. R 885. Smoot, SiM'or's Eq. (S. C. 1844). 312; Molines v. Beers. 57 Conn. 295, 18 Ballard v. Connors, 10 Rich. Eq. (S. C, Atl. H. 100. A jjrovision that. " \\\>on 1859), 389, 392; Swinton v. Le^jare. 2 the deatli of a lil'o tenant witliout 3IcCord Eq. (S. C, 1822), 440; Ream.s is.sue, the remainder should go to a V. Spann, 26 S. C. .561, 2 S. E. R. 412; son of the testator, and if ne simuld Cress^jn's Apix^al, 76 Pa. St. 19; Sat- im|tli. tlie death of tlie son during the life (Tenn.) 478; Jouea v. Knai»pen,63 Vt. of the life tenant. ( "hace v. (iregg, 88 Tex. 552, 32 S. \V. IL 520. 1308 LAW OF WILLS. [§ 806. ceeds of land, at some future date, as at or after the death of one who has a life estate in the income, among individuals, and, a fortiori, among a class, may, even in case there is no actual and cxj^ress devise of the land to the individuals or to the class, create a vested remainder. A similar direction to pay money, without express words of bequest, may create a vested legacy. These and like directions will create vested in- terests where their meaning is not controlled by the context. The direction to divide, to distribute or to pay implies an act- ual division, distribution or payment, and not one that is con- structive, and hence it will be presumed to refer to the actual enjoyment or to the possession of the land or money which is to be divided or pr.id. This is usually the presumption whore there is notJiing more than a direction to jpay or to divide or dis- tribute, and it would most assuredly be the true construction where there is an absolute devise of land in the form of a re- mainder, with a direction for a division or partition to take place at or after the termination of the particular estate.^ Thus, where there was no absolute and express gift of the land, but the trustees of the will were directed to sell it and to divide the proceeds among the heirs of the testator after ^Williams v. Williams, 73 Cal. 99, 17 R. I. 727, 24 Atl. R. 742. Those 14Pac.R. 394; Thrasher V. Ingraham, cases in which there is a gift of a 32 Ala. G45; Arnold v. Arnold, 11 B. legacy with a superadded direction Mon. (Ky.)81; Field v. Hallowell, 12 to pay at some future time, or on B. Mon. (Ky.) .517: Willett v. Rutter, the hajipening of a future event, or 84Ky. 317; Weitekind V. Hallenberg, a devise of a remainder in land to 88 Ky. 114, 10 S. W. R. 3G8; Blanch- individuals or to a class with a simi- ard V. Blanchard, 1 Allen (Mass.), lar added direction to divide in tlie 223; Hogan v. Hogan, 102 Mich. 641, future, are to be distinguislied from 61 N. W. R, 73; McClure's Appeal, those cases where there is only & di- 73 Pa. St. 414; Hedger's Estate, 1 rection to pay a legacy, or to divide Con. Sur. (N. Y.) 524; Hurlbutt's Es- land at a future time or on a future tate, 145 N. Y. 535, 40 N. E. R. 226; event, and nothing viore than that. Goebel v. Wolf, 21 N. E. R. 388, 113 The former are more likely to be N. Y. 405; Sayles v. Best, 140 N. Y. construed as vested gifts, other 368, 36 N. E. R. 636; Bridgewater v. things being equal, than the latter. Gordon, 2 Sneed (Tenn.), 5; Hays v. But, as is abundantly illustrated and Collier, 2 Sneed (Tenn.), 585; Owen proved by the cases cited, there is no V. Dunn, 85 Tenn. 131, 2 S. W. R. 29; conclusive presumption tliat a mere Foley V. Harrison, 84 Va. 847, 6 S. E. direction to pay or to divide land or R 144; Mc Arthur V. Scott, 113 U. S. money in the future always creates 580; Heilman v. Heilman, 28 N. E. a contingent and not a vested inter- It 310, 129 Ind. 59; Spencer v. Greene, est. § SOG.] TESTING OF FUTURE DEVISES AND LEGACIES. 1309 the death of A., who had a life estate in it,^ or where land, de- vised to the widow of the testator for her life, was directed to be divided among- the children of the testator when she should remarry or should die,- or Avhere trustees were, on the death of a life tenant, to convey the property,* or even Avhere land was to be divided *' among the children whom the life tenant may thereafter have,'^ the remainder is vested and not contingent." A legacy will tlie more readily be construed as vested in every case where there is no other gift than a direction to pay or to distribute money, if it is apparent that the payment or the distribution was postponed, not in order that the legatee should ])ersonally perforin some act or acquire some personal qualification as a condition precedent to payment, but where the postponement is clearly intended for the benefit of some one who takes a prior interest, or, in the language of the cases, where the postponement of payment is "/br the convenience of the estate?'* An illustration of this is found where a fund is bequeathed to pay A. the income for life, and on liis decease to divide or to distribute among individuals or a class.'' But a mere direction to divide, loithout other tvords of r/ift, does not always, alone and without words of present gift, create 1 Sayles v. Bent. 140 N. Y. 368, 35 N. E. K. 636; Thomman's Estate, 161 Pa. St. 444, 29 Atl. R. 84. ^ Gest V, Flock, 1 Gr. Ch. (N. J. E(i.) 108. 3 Weston V. Weston, 125 Mass. 268. * A direction that land of tlie tes- tator sliall be sold as "soon after the death of the testator as it can be done," the proceeds to be invested for the benefit of the wife of the tes- tator duriyf^ her life, "and after her deeeaw to be equally divided antontj the children" of tins testator, ^ives tiie children a vested inti^rest in the money. In re Ilurlbutt's Estatt*. 145 N. Y. 535. 40 N. K. R. 226; 2!) N. Y. fjupp. 403. aMirined. Simi also tiide, ^"fi 702-704. as to the vcstiiiK <>f lands directed to Imj sold for distribution. •"^ChcrlHjnnier v. (i(Hjdwin, 7i* .Md. 55. 28 Atl. K. H!)4. "A devise of tlic inromc to the parent for life, " and at his decease a devise of the principal to his chil- dren to be equally divided between them," gives the children who were living at the death of tlie testator a vested remainder. Lombard v. Willis, 147 Mass. IS, 16 N. E. R. 737. A de- vise of a remainder to children " to take effect at Hie decease of the life tenaid," is a vested remainder, and is not dependent ujMm the survival of the children until the death of thn life tenant. Marsh v. Hoyt, 161 Mass. 459. 37 N. E. R. 454. 'Tlie following English cases may becit<' Wilson. 14 .liir. 263; Marshall v. Ment- ley, 1 .hir. (N. S.) 7H(i. The American cases are cittjd mipni, p. 13()S, n. 1. 1310 LAW OF WILLS. [§ 866. a vested remainder. AVhere the direction to divide amonir a class indicates no intention to postpone the vesting, the usual rules apply, and the class will consist of those who are alive at the death of the testntov, plus those who are subsequently born. But where the direction is in express terms, with words of gift, to divide among a class as it is composed at the death of the life tenant^ as, for example, to divide into as many parts as there may be children or heirs " then living," or surviving; - or where lands are by the testator directed to be sold at the death of the life tenant and the proceeds are then to be divided among the siirviving hrothers and sisters of the testator;'^ or where a fund is to be equally divided among the children of the life tenant, but if none at her decease^ then to others;'' or where money is to be divided among children and the heirs of those deceased; ^ or where the direction is merely to divide among a class of unborn persons generally,^ the remainder is contingent. And where the direction is to divide amonii- a class, the children of deceased members of the class to take their parents' shares absolutely, and the shares of the members dying without issue at their death are to go over, the remainder is contingent as to the shares of the substitutional class, but vested, though defeasible at least as to the shares of the mem- bers of the original class.^ A direction to divide among individuals named, with nothing more, at or after the termination of a prior estate, will be more readily presumed to give the persons named a vested remain- der than a similar direction to divide among a class. Devisees who are named will be conclusively presumed to take vested estates if in esse at the death of the testator, unless the vesting is very clearly postponed. The devisees named are fixed in number, while classes are fluctuating as to their membership, and may, consistently with the language of the will, be ascer- tainable as well at one time as at another.^ But a devise to 1 As to words of survivorship, see ^ Rosenau v. Childress, 111 Ala. 214, ante, %% 349-351. 20 S. R. 95. 2 Hopkins v. Keazer, 89 Me. 347; 5 Hunt v. Hall, 37 Me. 363; Wilson Robinson v. Palmer, 96 Me. 246, 248; v. Bryan, 90 Ky. 482, 14 S. W. R. 533. AVomrath v. McCormick, 51 Pa. St. « Hale v. Hobson, 167 Mass. 397, 45 504; McGraw v. Davenport, 6 Port, N. E. R. 913. (Ala.) 319. -' Ante, § 353. »In re Winters' Estate, 114 Cal. 8 See anfe, g§ 551, 558. 186, 45 Pac. R 1043. § 867.] VESTING OF FUTURE DEVISES AND LEGACIES. 1311 individuals by their names, to be divided at the death of a life tenant, share and share alike, among those of the original devisees " then living,''^ is contingent on the survivorship of the devisees, and the descendants of one who dies during the life tenancy take nothing.^ § 867. Tested remainders which are subject to being de- vested by some future event. — A remainder may be created which is vested and which is alienable by the remainderman, but which is also liable to be devested by the happening of an uncertain event before he shall take possession. Take as an example of this a remainder to the children of the life tenant as a class, with a provision or a direction that the children, or the issue of any member of the original class, shall take their parent's share in case the parent shall not survive the life estate. This gives the children alive at the beginning of the life estate a vested remainder as a class, subject to let in all children whc> are born during the life tenancy, though the share of each mera,ber of the class is defeasible as to him individually by his death during the life tenancy. This remainder, being vested, is> alienable, subject to being defeated by the substitution of the members of the secondary class. The remainder in fee to the 1 Wilhelm v. Caldwell (Iowa, 1897), his personal representatives, or, if it 71 N. W. R 214 "The distinction has been previously assigned by him, between a bequest of money at a to his assignee. A contingent, upon particular time specified, and a simi- the happening of the same event, is lar bequest payable or to be paid at wholly extinguished and sinks into the same time, is somewhat refined, the residuum for the benefit of tlie and, it is probable, seldom exists in residuary legatees or next of kin, the mind of a testator; but it is es- and a previous assignment is neces- tablished by so long a series of decis- sarily defeated, since every such as- ions that it must now be regarded signment, if otherwise valid, is sub- as a constituent ])art of the law, ject to the sjime contingency as the which it is our province and duty to gift itself. There is, liowever, an ex- administer. In tlie second case the ception from the general rule that a gift is reserved and only its payment gift to a particular jwrson is contin- I)ost(>oned. In the first tlio gift it- gent during liis life. If iluring Iiis self is [KjstjKjned. In the language life a benelit is given to liim or to of the Ixxjks, the time is annexed in any otlier person in the cajutal sum the Becond case to the payiiuut, in beciueathed, tlie legacy is construed the first to the Huhxtnurc of the gift, as a vested remainder, and is not de- The first is a contingent, the .s«>cond feateil by the antecedent death of is a vested, lega<;y. A vested legacy, the legat»'«>." I?y Duer, J., in An- where the legatee dies beffjro the drews v. Amer. Uible Soc., 4 Sandf. time fixed for its payment, i>a.sse8 to (N. \.) I'tQ. 1312 LAW OF WILLS. [§ SG7. issue or children of the members of the original class is a con- tingent remainder,^ whose vesting depends upon the death of the parent before final distribution. As soon as the parent dies leaving children, his share in the remainder vests in them at once, and it is not then defeasible by the death of the substi- tuted remaindermen, unless expressly so directed in the will. Thus, where the testator devised a remainder to his son, and, in case of his son's decease before he came into possession, then to his son's children if any survived him, but if none survived the son, then to a charity, and the son died during the life es- tate, leaving a child who also died during the life estate, the court held that, as the remainder vested in the grandchild of the testator at once upon the death of his father,^ it was not defeated by the grandchild's death before the life tenant.^ On the other hand, it has been held that a devise to A. for life, re- mainder " to the seven sons of the testator nominatini, or to such of thetn as may he living at the death of the life tenant, . . . and if any one of my sons be deceased leaving lawful issue then to that issue," is a remainder with a double aspect. The re- mainder to each son is contingent, being absolutely defeated by his death without issue, but upon his death leaving issue a substituted remainder will be created in the issue.* And as the iSee ante, %% 353, 354, on substitu- v. Greenfield, 7 Paige, 544; Mander- tional gifts. son v. Lukens, 23 Pa. St. 31; Pass- 2 See ante, % 355, citing cases. more's Appeal, 23 Pa. St. 381: Siddons 3 Van Gieson v. White, 53 N. J. Eq. v. Cockrell, 131 111. 653, 23 N. E. R. 1, 30 Atl. R. 331; Cox v. Handy, 78 586. Contra, Chew v. Keller, 13 S. W. Md. 108, 27 Atl. R. 227, 501. See also R. 395, 100 Mo. 362. Where a re- Mercantile Bank v. Ballard's As- mainder is devised to a class with a signee, 83 Ky. 481 ; Dodd v. Winship, substituted remainder to the issue or 144 Mass. 461, 11 N. E. R. 588; Corey children of those who die before dis- V. Springer, 138 Ind. 506, 37 N. E. R. tribution, and no expi-ess provision is 332; Lenz v. Prescott, 144 Mass. 505, made disposing of the share of one 11 N. E. R. 923; Robinson v. Palmer, who dies without issue or children, 96Me. 246.248, 38 Atl. R. 103; Dunlap it was held that the share of one V. Fant, 74 Miss. 197, 20 S. W. R. 874; who died without leaving children Johnson v. Delome Land P. Co., 26 was not devested. Cox v. Handy, 78 S. R. 360 (Miss., 1899); Tiencken v. Md. 108, 27 Atl. R. 227, 501. Tiencken, 131 N. Y. 391; Smith v. nVhitesides v. Cooper, 115 N. C. Secor, 157 N. Y. 402, 52 N. E. R. 179; 570. 20 S. E. R. 295. See also Crane Mullarkey v. Sullivan, 63 Hun, 156, v. BoUes, 45 N. J. Eq. 373, 24 Atl. R. 17 N. Y. S. 715; Lepps v. Lee, 92 Ky. 237. A devise to A. for life, remainder 146, 17 S. W. R. 146; Braunsdorf v. to his three children, or to such as Braunsdorf, 23 N. Y. S. 722; Nodine should be alive at his death, being § SOS.] TESTING OF FUTURE DEVISES AND LEGACIES. 1313 lemaiacler in the members of the primary class is not vested absolutely as of the testator's death, but is vested subject to being devested, it cannot be subjected to any incumbrance which the remainderman may attempt to place upon it as against his children or his issue.^ Where the testator has not used v^^ords of survivorship indi- cating that none of the original class shall take unless he shall survive the termination of the life estate, but has simply lim- ited the fee over to the issue of a member of the class leaving issue, v^nthout providing for the death of a member of the orig- inal class ivithout chilch'en or issue, the remainder, having vested at the death of the testator, is not devested by the death of a remainderman vrithout issue, unless it is expressly given to others in that event.- § 868. The eifect of a power of disposal on a vested re- mainder. — A remainder cannot be limited after an estate in fee simple. It matters not how the estate in fee is created, whether by a limitation to one and his heirs, or by a lim- itation in indeterminate language coupled with an absolute power of disposal;^ and a future limitation coming after such an interest can only be valid, if at all, as an executory devise. But a vested remainder, following after a life estate created in express language, is not rendered contingent by the fact that the life tenant has a power of sale by which he may con- vey the fee for his support, or for reinvestment, or for any other purpose.* Thus, a gift of the income of a trust fund for life, vested, is not defeated by the death issue, prima facie refers to the death of all the children, though tiie vested of the remainderman during the life interest is undoubtedly liable to be estate. See ante, § 346. But it may devested in favor of the survivor or refer to the death of the remain- survivors of them, if any there be. derman during the life of the tes- Sturgess v. Pearson, 4 Madd. 411. tator, so that the children of a de- • Straas v. Rost, 10 Atl. R. 74, 67 ceased remainderman who are alive ]\Id. 46.'>. at the death of the testator take tiioir - Heilman v, Heilman, 129 Ind. oO, parent's share. Outcalt v. Outi-alt, 28 N. E. R. :jlO; Moores v. Hare (Ind., 42 N. J. E(i. fjOO, 8 Atl. R. 532. See 1896), 43 N. E. R. 870; Nelson v. Rus- also authorities cited ante, \)\\ 729, sell, 135 N. Y. 137, 31 N. E. *R. 1008, 730. reversing 16 N. Y. S. 39."}. A provis- ^See ante, %% 358, 685, 680. ion for the substitution of the chil- < Welsh v. Woodbury, 144 Mass. dren of a remainderman for the 542, 11 N. E. R. 762; Samlford v. jiarent who may die; Ixilon- the t<'r- Blake, 45 N. J. E- 1 Harvard College v. Balch, 171 III ject to be devested by the exercise of 275, 281; Lehnard v. Specht, 180 111. the power. Sandford v. Blake, 17 Atl. 208; Van Axte v. Fisher, 17 N. Y. R. 812, 45 N. J. Eq. 247. A devise to 401, 22 N. E. R. 943. A. during widowhood, with a power -See Railsback v. Lovejoy, 110 III in her to divide the property on her 442. deatli among her children, but if she 3 See ante, g§ 687-689. shall fail to do so, then remainder to * Thorington V. Thorington, 111 Ala, her three children, gives A. a life es- 237. tate by implication and her children 5 Cunningham v. Moody, 1 Ves. 174; a vested remainder in fee, subject to Doe V. Martin, 4 T. R. 39. The inter- being devested either by the deatli of vention of a power of appointment, any child before A., or by her testa- general or special, whether the estate mentary disposition. Thorington v. be real or personal, will not prevent Thorington, 111 Ala, 237, 20 S. R. 407. the vesting of an estate given in do- § 869.] TESTING OF FUTUEE DEVISES AND LEGACIES. 1315^ the decease " of a life tenant, to whom the residue is bequeathed in trust for his support, " I give and bequeath such residue and remainder to D., her heirs and assigns forever, provided the amount does not exceed $3,000," gives D. a vested pecuniary legacy of that amount, if so much remains unexpended.^ These rules are applicable only where the power is discretionar}^ If the power to appoint is imperative and special, the devisee of the remainder in fee takes nothing where there are persons in existence at the death of the testator to whom the testator has directed the fee to be appointed by the life tenant. As equity will consider that done which ought to have been done, the ap- pointees will take vested interests, which will vest in possession in them upon default of an appointment, to the exclusion of the remaindermen named.^ § 869. The vesting of devises and legacies at majority. — Instances where a legacy is to be paid to, or land is to be di- vided among, legatees at majority, or at some other specified age, are very numerous.' The question then arises, does the mention of majority or other age postpone the vesting until the specific age is attained, or is the devise or the legacy vested and the payment only postponed ? In an early and leading case* where the testator devised land in trust for the payment of his debts until such time as his son should reach the age of twentr/-one years, and when his said son should attain that age, then to him in fee, and the son died in his minority, it was de- termined that the fee vested in the son on the death of the tes- tator, and upon the son's death during minority it descended to liis heir. This rule has been generally followed both in England and America. And though in most cases it may happen that the person to whom the legacy is payable at ma- 1 Chafee v. Maker, 17 R I. 739, 24 wliicli must be applied in order to as- Atl. R 773, For a full citation of certain at wliat period the meniber- ca«es, see ante., % 358. sliip of the class is to be ascertained, 2 Smith V. Floyd, 140 N. Y. 337, 35 are fully explained elsewhere. See N. K R. <500. See also antp, %% 802- ante, t;'^ 554, 555. The rules re^ulat- 804, as to the execution of powers, ing vesting, which are stated in tlie and 5i§ 687, 088, as to life estates with text, are mainly invoked where t ho powers of disj)OsaL testamentary gift is to individuals. 'The rules of constniction applica- where the class doctrine is not in bio to legacies or devises to children (picHtion at all. as a chi-ss, whieh are i)ayable when < lioraston's Case, 3 Co, Kep. li">, 1'.'. the children attain majority, and 131G LxVW OF AVILLS. [§ 8G9. jority is to receive the income tliereol" wliile it is in trust dur- ing his minority, this circumstance is not indispensable. The same rule of vesting wouhl apply where the income is to be applied in the interim to another purpose, though the presump- tion is more strongly in favor of the rule of vesting where the legatee himself is to receive the income. Where a fund is given to one person to be enjoyed until another shall attain his majority, when it is to go to the latter, or to be paid if or when the other shall attain majorit}"-, the gift on majority is usually an executory devise or a legacy which vests at the death of the testator,^ though possession is postponed until the devisee is of age. A devise or legacv given in absolute terms, but which is " payable," or which is directed " to be paid " or delivered, to the beneficiary Avhen he shall attain the age of twentj^-one, vests absolutely at the death of the testator. The mere post- ponement of the payment, being usually for the benefit of the estate, and not by reason of considerations which are personal to the beneficiary, does not prevent the vesting.^ The inclina- 1 Collier's Will, 40 Mo. 287; Hath- away V. Leary, 2 Jones' Eq. (N. C.) 264; Lane v. Goudge, 9 Ves. 225; Webster v. Parr, 26 Beav. 236; Pear- man V. Pearman, 33 Beav. 394. See also cases cited in next note. 2 Cox V. McKinney, 32 Ala. 461; Watkins v. Quarles, 23 Ark. 179; In re Rogers, 95 Cal. 526, 530, 29 Pac. R. 962; Nelson v. Pomeroy, 64 Conn. 257; Bowman v. Long, 23 Ga. 247; Kelly V. Gonce, 49 111. App. 82; Allen v. Van Meter, 1 Met. (Ky.) 264; Dan- forth V. Talbot, 7 B. Mon. (Ky.) 623; Kimball v. Crocker, 53 Me. 263; Ward- well V. Hall, 37 N. E. R. 196, 101 Mass. 396, 399; Furness v. Fox, 1 Cash. (Mass.) 134, 1.36; Eldridge v. Eldridge, 9 Gush. (Mass.) 516, 519; Claflin v. Claflin. 149 Mass. 19, 23; Sears v. Put- nam, 102 Mass. 5; Fuller v. Winthrop, 3 Allen (Mass.), 51, 60; Toms v. Will- iams. 41 Mich. 552; Hogan v. Hogan, 102 Mass. 641, 01 N. W. R. 73; Brown V. Brown, 44 N. H. 281; Benton v. Benton, 66 N. H. 169, 20 AtL R 365; Dawson v. SchaefTer, 52 N. J. Eq. 341, 30 Atl. R. 91; Drake v. Bell, 3 Edw. (N. Y.) 251; Converse v. Kellogg, 7 Barb. (N. Y.) 590; Marsh v. Wheeler, 2 Edw. Ch. (N. Y.) 163; Sweet v. Ciiase, 2 N. Y. 73, 79; Roome v. Phillips, 24 N. Y. 465; Stevenson v. Leslie, 70 N. Y. 512; In re Murphy. 144 N. Y. 557, 39 N. E. R. 691; Birdsall v. Hew- lett, 1 Paige (N. Y), 32; Van Camp V. Fowler, 13 N. Y. S. 1, 59 Hun, 311; Harris v. Fly, 7 Paige (N. Y), 421; Hoxie V. Hoxie, 7 Paige (N. Y.), 187; In re Grossman, 1 N. Y. S. 103; Aid- rich V. Green, 48 Hun, 619, 1 N. Y. S. 549; Patterson v. Ellis, 11 Wend. (N. Y.) 259; Goebel v. Wolf, 113 N. Y. 405; Braunsdorf v. Braunsdorf, 23 N. Y. S. 72; Nunney v. Carter, 5 Jones' Eq. (N. C.) 370; Hathaway v, Leary, 2 Jones' Eq. (N. G.) 264; In re Jeremy's Estate, 178 Pa. St. 477, 35 Atl. R. 847; Scott v. Price, 2 S. & R (Pa.) 59; Reed's Appeal, 118 Pa. St. 215; Bayard v. Atkins, 10 Pa. St. 17, 18; Schnure's Appeal, 70 Pa. St. 400; § 869.] VESTING OF FUTURE DEVISES AND LEGACIES. 1317 tion of the courts is to favor vested legacies "whenever this can be done consistently with the expressed intention of the testa- tor.^ So, too, in the same manner and with a similar effect, are to be construed words directing payment, division or distribu- tion at a future date, coupled with a positive gift of a legacy which by its terms is not contingent."^ Accordingly, where a legacy is pa^'able to legatees, to whom it has been given by proper language, " when each sliall attain the age of twenty- one," or as " they severally become of age," or " when they marry," or "after the death of A.," or on their " arrival at their respective birthdays," or where legacies are given to be paid after the debts of the testator have all been paid,' or as soon as the assets of his estate have been converted into ready money, or when an outstanding mortgage shall liave been col- lected, or when land devised for the payment of legacies shall have been sold, or the legacy is payable at any other future date, the legacy is vested, and the postponement of the pay- ment does not alone make it contingent. In such cases, the postponement being for the benefit of the estate, if the legatee dies before the date of payment has arrived, the legacy must be paid to his personal representatives.* Where the testator has placed a fund in trust for the purpose of applying both the principal and the interest or income to the supjiort of his chikl during that child's minority, with a direction that all not spent for the child's support shall, on her attaining her majority, l)e paid to her, but if the child shall die under twenty-one then over, the court held, after supplying the words " without issue," that the child took a vested estate which went to her issue, Buckley v. Read, ir> Pa. St. 83; Bow- z.See § 860. man's Appeal, M Pa. St. 19; Youn^ 3Small v. Winp;, 5 B. P. Toinl. 60. V. Stoner, \i7 Pa. St. 10 J; Pond v. -"In re Murphy, 144 N. Y. rMT, 39 Allen, 2 Atl. R. 302, Kt R. I. 171; N. K. R. (591. and cases cited in note 2. Baker v. McLeod, 48 N. W. R. 0.")7, jtu^e 1310. In Sidney v. Vauf^iian, 2 79 Wis. .'534; McReynolds v. Graham, B. P. C. Tonil. 254, a legacy was to 43 S. W. R. 138 (Tenn.. 1897). he paid six months after tlie It'K'atee ' Tims, u devise as follows: "I^'ve should have comjiletcd his appreii- to 1). the resiilue, a suflieicnt amount ticeshij). Tlie l<';x<'itet«al(seonded from t^j he used to (vliirati* him hefon; he his master ix-foni the end of his ap- iMjcomes of a^e, hut if In- do not live iircnticcship and iicvrr comidt'ted it. to lieir it then to a eliarity," cri'ates But upon ids death hit} representa- H v('st<'d lej^aey. Kiinhh- v. White, tive took. .VJ N. J. i:<|. WH, 21 Atl. R. 400. 1313 LAW OF WILLS. [§ 870; ■when she died leaving issue, though she died before reaching the age of twenty-one,^ Inasmuch as the position of the words of a will is immaterial in construing it to find out the inten- tion of the testator, it does not matter at all, in determining whether a legacy or a devise is contingent, that the words directing distribution, division or payment precede or follow the words of gift by which the vested interest is transferred. § 870. Contingent legacies which vest only at the major- ity of a legatee. — Xot every legacy which is made payable at the majority of the legatee vests in him at the death of the testator. If it shall appear that the testator intends that the attainment of majority by the legatee shall be a condition pre- cedent, not only to the payment of the legacy, but to its vest- ing as well, the legacy will be contingent upon the legatee attaining his majority.- A legacy to be paid "• when the lega- tee comes of age^'' or when he " arrives at the age of twenty- one years," or a legacy which is payable simply " at majority^'' or " if " or " in case the legatee reaches majority," may or may not be contingent according to the context read in con- nection with the circumstances. The inclination of the courts is to construe legacies of this sort, where words importing con- tingency are employed, and the only gift is the direction to pay, as legacies contingent upon the attainment of majority by the legatee, unless there is somewhere in the will clear language of gift creating a vested legacy. But if property is first given to A. absolutely, and it is to be delivered to him when he at- tains majority or at majority, the interest of A. will be con- clusively presumed to vest at the death of the testator, and the reference to majority will be restricted to the vesting of the property in possession and enjoyment, either in him or in his representatives. The presumption that a legacy is vested is materially strengthened if the testator has dh^ected the income to be laid out for the benefit of the legatee during his minor- ity.' But w^here no express language indicating the giving of an immediate present gift is used, and the only directions of the "will are that a legacy shall be paid A., or he is to receive money or other property at majority, or when or if he shall 1 Baker v. McLeod, 79 Wis 534, 541. 2 Ante, § 503. 3 See § 872. f 870.] TESTING OF FUTURE DEVISES AXD LEGACIES. 1319 attain majority, and particularly if the property is undisposed ■of during his minority, the legacy to A., is contingent upon A.'s attaining his majority. And if it is clear that the attain- ment of a given age by a legatee is a condition precedent to the vesting of the legacy, it will be contingent, though, be- sides the direction to pay, there shall be the express language of gift} The question of the determination of the character of a de- vise or a legacy, whether it is or is not to be taken as vested or contingent, must be decided upon the context of the will, which is to be taken in connection with the disposition of the property made during the minority of the legatee to whom it is ultimately to go. A disposition of property " to he Tzejjt to- gether " by the executor until the daughter of the testator shall arrive at her majority, " and when she becomes of age or mar- ries she is to have it; " ^ or a devise under which A. is to receive a legacy '•'"wheii he arrives at the age of twenty-one; '"^ or leg- acies which are given to several " if they shall live to come of age ; " * or a legacy to a person when he shall hecome of age or marry, or at the death of another;^ or a direction to pay a sum of money to A. at the death of B., " if A. shall have ar- rived at the age of twenty-eight years,"® is contingent and does not vest at the death of the testator.^ "Where the attain- 1 Knight V. Cameron, 14 Ves. 389; 514; Collier's Will. 40 Mo. 287; John- Lister v. Bradley, 1 Hare, 10; Heath son v. Valentine, 4 Sandf. (N. Y.) 3G, V. Perry, 3 Atk. 101. 37; Butler v. Butler, 3 Barb. Ch. 2 Colfier v. Slaughter, 20 Ala. 263; (N. Y.) 304; Tayloe v. Gould, 10 Barb. Allen V. Whittaker, 34 Ga. 6. (N. Y.) 388; In re Seaman, 147 N. Y. 3 Moore v. Smith, 9 Watts (Pa.), 69; Hathawaj' v. Leary, 2 Jones' 403; Giles V. Franks, 2 Dev.Eq. (N.C.) Eq. (N. C.) 264; Sims v. Smith, G 521. Jones' Eq. (N. C.) 347 ; Seibert's Ajv « Jackson v. Winne, 7 Wend. (N. Y.) peal, 13 Pa. St. 501; Gilliland v. Bur- 47. den, 63 Pa. St. 393; Moore v. Smith, 5 Snow V. Snow, 49 Me. 159. 9 Watts (Pa.), 47; and also cases * Crossman v. Grossman, Dem. cited ante, % 508, note 2, page 668. It Sur. 148. is elsewliere pointed out an-G OF FUTURE DEVISES AXD LEGACIES. 1321 of which may never happen at all, the legacy, whether given by direct language or merely by a direction to pay, is contin- gent. § 871. The effect of a limitation over on death during niiuoritj as vesting a legacy. — A legacy or devise payable or to be conve3'ed {/", icJien or in case the legatee or devisee reaches his majority or some other age, or if or when he or she marries, by which language the gift is admitted to be contingent, may be rendered vested by a limitation over in case the legatee dies during his or her minority, or before his or her marriage. Thus, where laud was devised to A. in fee simple, "if it should happen that he shall attain the age of twenty-one years " (which was clearly a contingent devise), but on his death be- fore that age then over to others in fee, the gift was taken to vest in A. immediately at the death of the testator,^ but de- feasible by his death under majority either before or after the death of the testator.' The giving of the property to others upon the death of the legatee before the event happens is con- strued to indicate that the testator meant that the devise or legacy should vest at his death, and that it should be indefeasi- ble upon the happening of the event. If the vesting of the title of the gift was only to take place if or in case the legatee reached his majority or married, that is, if the gift is contin- gent, there icoidclhe no necessity for a limitation over on his death prior thereto, for the law would hnphj that. The bene- ficiary takes a defeasible vested estate upon a condition sul)se- (juent, which is fulfilled, and the estate becomes indefeasibly vested on the happening of the event. This rule of construc- tion is ecjually applicable to cases where, on the death of the lega- tee under age, the pnjperty is to go over to his issue,' and where it is to go to some stranger. And it is also applicable to gifts to classes. And the fact that the fee of the estate is vested in tru.stees as well as the interim interest is not material to vary tiic construction.* Thus, in the very commcm case of a gift to •IMwanis v. Ifiiniiuond. 3Lev. 132, < I'liii.ps v. ^Villi:llns. ". Sim. II. 9 2 SIkjw. :5!)H. followctl in Doi; eal, 07 Pu. St. 403; Pett-r- 384. Hfjn'.s A|)|M'^1, 88 Pa. St 307; KolnTts' "In ro (Jrini.shaw's Trust, L, It. 11 ApiKral, Tt'.) Pa. St. 70; Valentino v. Cli. Div. 400. IlH><1, 7y Wi.s. .'>34. And hco albo cusea cited iu note 2, i»age 008. 132G LAW OF WILLS. [§ 872, class as a Avhole, until they shall receive the legacy without any apportionment among them, it does not raise any pre- sumption, in the absence of words of vesting, that the future legacy is vested.^ ISTo rule of law prevents the testator from giving a vested interest in income to A. until his majority, with a contingent legacy payable only if ov provided he shall attain majority, pro- vided this intention is evidenced by apt language. Thus, for example, if the testator expressly states money is to be divided among a class when they respectively reach their majority, hut ■'fthey die^ in no ease to go to their jyersonal representatives, with a direction to pay over income, which vests it, the gift of the corpus, being expressly contingent upon survivorship, continues so.^ So, too, this would be the construction wliere the gift of the prin- cipal and of the income of a legacy is in fact but one insepara- ble and indivisible gift, as would be the case where the executor is directed to pay a specific sura vrith interest to A. ^y he shall reach majority,^ or to pay a fund or to deliver securities with all income lohich may have accumulated added to them if the legatee shall attain his majority.* On the other hand, if the fund or the thing which is bequeathed is to be severed from the estate at the death of the testator for the advantage of the legatee, though it is to be paid or to be delivered to him only at his majority, and in the meantime the income is to accumu- late and to go with the corpus, the latter is undoubtedly vested.^ A devise in trust for A., to be held hj the trustee, who is di- rected to apply the income to A.'s support, with power to rent and repair the premises, vests an absolute fee simple in A., and not merely an interest in the income until he attains majority.^ A direction to apply income to a minor's support, with a gift of the corpus to him on his attainment of majority, " but if he die under majority " then over, means death during minority without issue. The minor takes a vested estate, and on his 1 Lloyd V. Lloyd, 3 K & J. 20; 240; Love v. L'Estrange, 5 B. P. C. Hunter's Trusts, L. R, 3 Eq. 298. Toml. 59; Oddie v. Brown, 4 De Gex ■■2InreBulIey'sEstate,llJur.(N.S.) & J. 185, 194; Chance v. Chance, IG 847. Beav. 572. SKjiight V. Knight, 2 S. & St. 490. eDeichmau v. Arndt, 49 N. J. Eq. * Stretch v. Watkins. 1 Mad. 253. lOG, 22 Atl. R. 799. 6 Saunders v. Vautier, Cr. Si Ph. § 873.] VESTIXG OF FUTURE DEVISES AND LEGACIES. 1327 death under majority, leaving a child, the child takes his share.^ And a gift is not contingent merely because it may be taken in land or in monev, as the beneficiary may elect. This occurs "when land is devised in trust to apply the income to the sup- port of minors during minority, with a power of sale in the trustee, and if not sold to partition among the beneficiaries when they reach a specified age. The power to elect to take either land or money is for the benefit of the legatee, and, the gift being vested, the failure of a beneficiary to elect because he dies in his minority does not devest it and his heirs may claim it.- § 873. The vesting of pecuniary legacies, and particularly of those charged upon the rents or proceeds of land. — The vesting of pecuniary legacies is, to a large extent, regulated by the same principles which control the vesting of lands devised, except so far as the law of legacies has been modified by being subject to certain principles of the Roman civil law, by reason of the early jurisdiction over legacies exercised by the English ecclesiastical courts concurrently with courts of equity. A money legacy given simply to a person who is in esse at the death of the testator, and without any express direction post- poning the vesting, is a vested legacy prima facie. Thus, a direction to pa}'' the sum of $3,000 out of the estate if there should be anything remaining after the death of a life tenant;' or a legacy " to J." when he shall satisfy the executor that he is worth a sum specified;* or to children at a future date in equal shares,^ is a vested legacy, and the words of postpone- ment relate only to the payment and not to the vesting. In the latter part of the seventeenth century the Englisli court of chancery determined, as a positive principle of equity, that all legacies which are charged upon the rents or profits of land, or which are to be paid out of the proceeds of land which liavc been directed to be sold, whether the legacies Avero in terms vested or contingimt, if their payment was pt)st[K)ned to a date alter the death of tlie testator, would lapse in case of iRakor v. MfI.f;o. « Sec ^ 815. ilman, 129 In. 1. .59; 4 Kent, Com., p. 19.5. 1334 LAW OF WILLS. [§ 878. or shall be paid after the death of the widow of the testator,^ or at some other future period, and the legatee dies before the date of payment arrives, the payment should be made to his administrator if he has died intestate,^ or to his executor in case he has made a will.^ §878. The acceleration of future estates. — The rule was formulated in an early case in England that if land shall be de- vised to A. for his life, remainder to B. in fee simple, and A., though he is living, is a monk at the death of the testator, the life estate to him is void because he is civiliter mortmts by rea- son of his being a monk. Upon the death of the testator the remainder in fee will go at once to B.* In other words, the enjoyment of the possession of the future estate will be accel- erated when from any reason the preceding estate fails. The principle of the acceleration of future and expectant estates is well established. So where there are two or more limitations by will, whetlier of real or of personal estate,^ to several persons absolutely, to be enjoyed by each of them successively in point of time, and one or more of the earlier gifts fail, either because of the death of a devisee, by reason of which a lapse occurs,^ or because of 1 § 866. common law, exclusively to Tested 2 Budd V. Haines, 52 N. J. Eq. 488, remainders. If the particular estate 29 AtL R. 170. upon which a contingent remainder 3 Conant v. Bassett, 52 N. J. Eq. 12, is expectant comes to an end before 28 Atl. R. 1047; McCarty v. Fish, 87 the contingent remainder becomes a Mich. 48, 49 N. W. R. 513. See also vested remainder, the latter is for- Smith V. West, 103 111. 332; Rhodes ever gone; for. at common law, no V. Shaw (N. J.), 11 AtL R. 116. A re- freehold estate can be limited by liv- mainder in the children of B. as a ery of seizin to begin in futuro, and class and their heirs, coming after a every contingent remainder must life estate in their parent, is a vested have a vested particular estate to su]i- remainder, which is devisable and port it. Of course, these rules do not assignable durmg the life of the par- appl}- to executory devises or future ent, though possession has been post- trust estates. poned until after .several life estates. ^ Lainson v. Lainson, 23 L. J. Ch. Loring v, Carnes, 148 Mass. 223, 19 N. 170; Jull v. Jacobs, L. R. 3 Ch. Div. E. R. 343. See also Chapman v. Chap- 703; In re Lowman, (1895) 2 Ch. 348, man, 90 Va. 409. 18 S. E. R. 913. 12 Reports, 362. ^Perkins, 567; Shep. Touch. 435, <^ Robinson v. Female Orphan Asy- 451; 2 Black. Com., p. 122. The rule lum, 8 S. Ct. 327, 123 U. S. 702; Simp- of the acceleration of remainders is son v. Cherry, 34 S. C. 1, 68, 12 S. E. applicable, under the principles of the R. 886. § 878.] VESTING OF FUTURE DEVISES AND LEGACIES. 1335 the incapacity of a life tenant to take,^ or because the prior devisee refuses to accept the benefit,'^ or where the prior gift is void because it is clearly in contravention of some recognized rule or principle of law, common or statute, as, for example, where it is in violation of the rule of perpetuities,^ or because the prior interest given has been revoked by the testator,* the next estate following will be accelerated, and it will vest in possession at once, but it will not be otherwise affected. And if one or more of those who would have taken the earlier es- tates shall die in the life-time of the testator, the next in order will take absolutely, though he might never have taken anything in the event of the prior devisees having survived the testator.* Where land is devised in trust, whether to executors or trust- ees, until A. attain majority, to apply the rents and income which may accrue until then to particular purposes designated, with a devise of the land to A. when he shall attain twenty-one years of age, and a devise over to B. if A. shall die under his majority, and A. happens to die before he has attained his ma- jority, the question is, does A.'s death accelerate the devise over to B., or do the trustees continue to hold and to accumu- late income for the purposes of the will until the date when A. would have become of the age of twenty-one years had he survived ? If the income is to be paid to A. during his minor- ity, the principal to vest in him when he becomes twenty-one, the gift over to B. will of course take effect at once on the death of A. But on the other hand, where the purpose of the accumula- tion of income from the trust was the payment of debts and legacies to other persons when the legatee. A., should have at- tained his majority, it will be conclusively presumed that there is to be no acceleration of the gift over to B. The primary in- tention of the testator is that this income is to be devoted to pay debts and legacies, and having estimated (whether cor- 1 Jull V. Jacobs, L. R. 3 Ch. D. 703, 139, 33 Atl. R 788; Fosdick v. Fos- where he was an attesting witness, di(;k, C Allen (Mass.), 41, 43. and for that reason was incapable of * Lainson v. Lainson, 18 Beav. 1, 6 taking under the will De Gex, Mac. & G. 7r)4. 2 In re White's Estate, 174 Pa. St. »In re Lowinan, (1895) 2 Ch. 348,13 672, 38 W. N. C. 136, 34 Atl. It. 321; Reports. 302; Craven v. Brady, L. R. Everett v. McCroskery, 92 Iowa. 333. 4 Eq. 209, 4 Cb, App. 29G. 'Hamlin v. Mansfield, 88 Ma 131, 1336 LAW OF WILLS. [§ S78. rectly or not it is immaterial) that the income which may arise during the minority of A. would be sufficient, and havin<^ thus made the income a primary fund for the purpose, it must remain so irrespective of other events. To permit an accel- eration so that income shall go to B., or to recognize a resulting trust for the next of kin of the testator, will be contrary to the clear intention of the testator.^ 1 Boraston's Case, 3 Co. 19a, 21a,- his majority, with a gift of the in- Lomax v. Holmedon, 3 P. W. 176. come during his minority to pay And the rule is applied to the case debts or legacies to other persons, of a devise to A. in fee simple, he to Carter v. Church, 1 Ch. Cas. 113. receive possession when he attains CHAPTEE XLIV. THE LAW OF PERPETUITIES AND REMOTENESS OF VESTING. 879. The definition of a perpetuity. 880. The law of perpetuities — Gen- eral considerations. 881. The rule of remoteness in the vesting of contingent re- mainders. 882. The origin of executory de- vises and of the modern rule of perpetuity. 883. The possibility of the happen- ing of the future event. 884 The validity of future limita- tions to unborn persons. 885. The rule of remoteness of vest- ing and of perpetuities in relation to contingent gifts to grandchildren as a class. 886. The invalidity of the suspen- sion of the power of aliena- tion for a period which is indefinite or which is not measured by lives. 887. The period is to begin at the death of the testator. 888. Vested estates are not within the rule of perpetuities. 889. The effect of a power of sale to prevent the operation of the rule of perpetuities. 890. Tlie rule of perpetuities in re- lation to charitable gifts. 891. Devises lor cliaritablo pur- r. poses may offend the rule when made to non-existent corporations. § 892. Devise over on the termination of a charity — When void for remoteness. 893. The suspension of the power of alienation during minor- ities. 894. The separation of gifts to classes — When not per- mitted. 895. The circumstances under which class gifts may be separated. 896. Tlie effect of the invalidity of a devise on the next expect- ant limitation following it. 897. The statutory regulations of the rule of perpetuity in the United States. 898. The rule of perpetuities in Connecticut. 899. Cases illustrating the New York rule of perpetuities. 900. The statutory rule of perpetu- ities in Wisconsin. 901. The suspension of alienation for the ])urpose of accumu- lating income. 902. The validity of accumulations for charity. § 870. Tlio (lofinition of a perpetuity. — Tt may be of some benefit to the reader ior the author to observe at tlie outset of this chapter tiiat it by no means purports to contain an ex- haustive treatment of the Jef^al ruh's and princii)les wiiich con- efore B.'s son capable of taking in remainder, ia was born, tlie remainder would liavo the same? manner as if tlicy had been been absolutely gone, for the partic- burn in their father's lif(;-time; that ular estate was determined before is. the remainder is allowed to vest the remainder could v(;ht. Nay, by in truun wiiile yet in tluir mother's the strict rule of law, if A. was tea- womb.'' ant for life, reiuaiuder to his own *.l«- pen so tliat the remainder may vest eo itistanti tlie preceding limitation determines, it can never take effect at all. There was a great difliculty in the old law, because the rule as to j)erj)etuity, which is a comi)aratively niodcrn rule (I mean of recent intro- duction, wli(;n speaking of tlie laws of this country) was not known, so that while contingcint remainders were the only spcicnes of e.\<.'cutory estate then known, and uw's and springing and shifting limitations were not invented, the law did speak of remoteness and mere possibilities as an objection to a remainder, and endeavored to avoid remote possibili- ties; but since the establishment of the rule as to perpetuities, tliis has long ceased, and no question now^ ever arises with respect to remote- ness; for if the limitation is to take effect as a springing, shifting or sec- ondary use, not depending on an es- tate tail, and if it is so limited that it may go beyond a life or lives in being, and twenty-one years and a few months, equal to gestation, then it is absolutely void; but if, on the other hand, it is a remainder, it must take effect, if at all, upon the deter- mination of the preceding estate. In the latter case, the event may or may not happen before or at the instant the preceding estate is determined, and the limitation will fail or not, according to tlio ev(>nt. It may tlms be prevent(Ml from taking effect, but it can never lead to remoteness. That objection, therefore, (^annot bo sus- tained against the valiilily of a con- tingtiiit rtMuainder. IJut this dictum of the court is not to \w in any wise construed as ihM^uring tliat contin- gent n'mainders are not subject to the rule against perpetuities." 1344: LAW OF AVILLS. [§ 882, particular freehold estate to support it,^ and that the tenant of the particular estate may, if he choose, Avholly defeat the con- tingent remainder before it vests at all.- So, too, a remainder in fee cannot at the common law be limited after a fee; as, for example, a gift of land to A. in fee simple, and if he die with- out issue then remainder in fee to B, After the passage of the statute of Avills and the establishment of uses, many future and contingent estates in land, which would not be valid as common- law remainders, were recognized by the courts. They resolved, in every case where it was possible, to carr}' out the intention of the testator. If the testator had intended to create by will a common-law contingent remainder, and it appeared that the devise would fail as such because not consistent with legal rules, the courts supported the limitation by will under the name of an executory devise.^ An executory devise differs from a contingent remainder in several important particulars. In the first place an executory devise of a fee simple is valid though there be no particular estate to support it. A freehold may be created by an execu- tory devise to commence in the future, which could not bo done in the case of a common-law contingent remainder. If the prior estate terminates before the executory devise vests, the fee is not in abeyance, but devolves upon the heirs of the testator, subject to defeasance by the happening of the contin- gency upon which it is to vest in the executory devisee. As soon as the validity of executory devises was firmly es- tablished and it became possible to carve out future interests of a contingent nature, through Avhich, because the person who ■was to take the fee was not knoAvn, the power of conve3nng the fee-simple title was suspended for a more or less indefinite period, it also became necessary for the courts to fix some limit to the period of suspension in order that a perpetual suspension of the power of alienation might be avoided. Contingent re- mainders might be defeated by the alienation of the particular tenant, and estates tail w^ere also barrable by common recov- eries. But executory devises, unless they follow an estate tail, are whoU}^ exempted from any control of the first taker of the fee.* The executory devise cannot be destroyed by any action 1 See ante, % 854. 3 See ante, % 874. 2 See ante, ^ 881. * See ante, g 875. § SS2.] PERPETUITfES AXD EEMOTE^'ESS OF VESTING. 1345 on his part or any alteration in or destruction of the nature of his estate.^ When the courts were called upon to determine the validity of the executory devises and shifting and springing uses which were constantly being created after it had been discovered that land could be devised to uses in ways not possible at common law,- it became necessary to determine the period within which the fee devised by an executory devise or by a future contingent use must vest. Every executory devise which is contingent is a perpetuity so far as it goes, because the fee is rendered abso- lutely inalienable during the period in which the future devi- sees are not ascertained or ascertainable, and the fee cannot be conveyed though all mankind should join in the conveyance. The courts, in formulating the rule, resorted to the old prin- ciple of remoteness, as that principle was exemplified and in- volved in the giving of a contingent remainder in fee to the unborn child of an unborn person. The practical effect of this rule of remoteness was that the contingent remainder was void if it did not vest in and during the life of a person in being, i. e.j the life of the tenant of the particular estate. This being so, the courts fixed upon a life or lives in being as the measure 1 " The executory devise is wholly cuted in the first taker it is a species exempt from the flower of the first of entailed estate to the extent of devisee or taker. If, therefore, there the authorized period of limitation, be an absolute power of disposition It is a stable and unalienable interest, given by will to the first taker, as if and the first taker has only the use an estate be devised to A. in fee, and of the land or chattel pending the if he die possessed of the property, contingency mentioned in the wilL without lawful issue, the remainder The execuloxy devise cannot be de- over, or remainder over of the proi> vested even by a feoffment; but the erty wliich he, dying without heirs, stability of these executory limita- should leave, or witliout selling or tions is nevertheless to be understood devising the same. In all such cases with this single qualilication, tiiat, if the remainder over is void as a re- an executory devise or interest fol- inainder because of the preceding lows an estate tail, a conunon re- lee, and Ls void by way of executory covery, suffered by the tenant in tail devi.se because the limitation is in- before the condition occurred, will consi-stent with the absolute estate bar the estate depentling on that or i>ower of disposition expressly condition, for a conunon recovery given or necessarily implied by the bars all suljsequcnt and conditional will. A valid executory devise can- limitations.'' 4 Kent, Com., pp. :l'01, not subsist after an absolute power liO"). of disiKjsilion in the first taker. *,Suu U)(/c, ^ 771 et se(i. When an executory devise is exo- 13-J:G LAW OF WILLS. [§ 882. of the time during which the power to alienate the fee could be allowed to continue in suspense. At first the period was confined to one life in being, wdiich was exactly the rule of remoteness of a remainder.^ Afterwards it was held that the period should be measured, not by one life, but by the duration of the lives of persons wiio were all in ex- istence at the same time; the court quaintly observing that it was enough if "the candles were all lighted together." In, other words, the period of the suspension of the power of aliena- tion, though measured by a hundred lives, could not possibly endure longer than the life of the longest liver of them.- It was not, however, until the year 1736 that the rule of perpetui- ties in its present form, i. e., with the addition of the term of twentj^-one years to the period of life or lives in being, was firmly established. In a case decided in the year mentioned^ it was determined that an executory devise to such unborn son of a feme coverte as should first attain the age of twenty-one was valid, for the utmost space of time that the fee w^ould be suspended was the life of the mother and the subsequent in- fancy of the son. Later, a fraction of a year was added to the period to allow for the birth of a posthumous child to a life tenant, which brings the rule of perpetuities to the condition in which we now find it where it is not modified by statute.* The addition of twenty-one years to the period of perpetuity is the addition of an absolute term which has no reference ta the actual infancy of any person wdiatever. That is to say, the testator will be permitted to suspend the power of alienation for a life or lives in being, and for any fixed period of time in addition thereto not to exceed twenty-one years. He may sus- pend the alienation for ten years or twenty, or for any stated time less than tw^enty-one, and need not limit it in express terms for the infancy of any person born or unborn. But in the same case in which this point was decided, it was also de- termined that the period of gestation was not in every case 1 Pells V. Brown, Cro. Jac. 590; nite failure of issue was valid was Snowe V. Cutler, 1 Lev. 135. decided in the affirmative. Duke of 2 Goring v. Bickerst^ffe, Pollexfen, Norfolk's Case, 2 Ch. Cas. 1. 31. To the same effect is Scatter- ' Atkinson v. Hutchinson, 3 P. W. good V. Edge, 1 Salk. 229. In the 258: Goodman v. Goodman, 1 Blacks, year 1685 the question whether an R 188; Long v. Blackall, 7 T. R. 100. executory devise over upon a defi- § SS3.] PERPETUITIES AND REMOTENESS OF TESTING. 134:7 to be considered as formino^ Avitli the lives in being; and the twenty-one years, a gross term, irrespective of the non-exist- ence of an infant en venire sa mere. The suspension cannot go beyond twenty-one years. A period of gestation is only to be allowed in those cases where it actually exists.^ § 883. The possibility of the happening of the contingent event. — The principle of law by -which a fee simple given to commence in the future must vest, if it is to be valid at all, within a life or lives in being and a minority, is infringed if the vesting of the future estate be made to depend upon some con- tingent event which, while it inay possiblv happen within the laAvful period, may 2)ossihly not happen, loithin that jperiod. The possibility of the event happening is the legal test of a perpe- tuity, not the fact that it actually" will happen or that it lias happened. The fee must of necessity vest and thus become capable of alienation within the period limited by the rule of law under consideration. It must he certain at the time that the limitation is created that it will so vest. For, though it may then be extremely probable that the fee will vest, still if there is a possibility that the vesting will be postponed beyond the period of the rule, either because of the character of the con- tingent gift itself, or because of an express direction contained in the "will, the limitation will be void because it will be too remote. The primary limitation of the fee must be so framed that it shall of necessity, under any and all circumstances as they exist at the death of the testator, take effect as a vested estate within the period allowed by the law.- Thus, to illus- trate, a limitation by means of which the vesting of the fee is indefinitely postponed until incumbrances upon ])roperty shall be paid off,' or a devise of property absolutely in trust, witli- >Ca(l.'ll V. Palmer. 7 BIIkIi. 20'2. 1 Dana v. Murray. 102 N. Y. 004. filT; CI. & Fin. :57J, 10 Hin■,^ HO, 1 Sim. Haynes v. .Slicrman, 117 N. Y. A'.i:\, \1\\. 4:J7: Punly v. Ilayt, U2 N. Y. 4 IG. 457; ^Sears v. Putnam, 102 Mass. 5, 7; Jar-kson v. Phillips. 14 Allen (Mass.), Fosflirk V. Fosdick. fi .\llen (Mass.),41, 550, 572; Prattle Squarts Church v. -l:}: Merritt v. Pueknam, 77 Me. 25:{. (Irant, :J (Jray (Mas.s.). 142; Odell v. 250; Hrfx.ks v. Pelfast, 00 Me. :ilM. ;J2.'{; Odeli. 10 Alien (Mass.). 5. 7; Leake v. Meek V. HriKP*. H7 Iowa. (U«, 010; P(.l)insr.n, 2 Mer. :i(i:5; (irillltli v. Pow- Konl V. r-'onl, 70 Wis. 10. (il : Sehettlr-r nal. i:t Sim. :{0:{. %. Smith. 41 N. Y. :{2H; Thomas v. :• Killam v. Allan, 02 Barb. (N. Y.) (Jregg, 70 Mil. 100, 21 Atl. li. 41H; 005. 134S LAW OF WILLS. [§ 883. out a power of sale in the trustee, until a charitable corpora- tion shall be incorporated to whose use the property shall be devoted, or a condition that a house or parcel of land shall be devoted to a particular purpose for an indefinite period, where the purpose is not a charitable one, with a limitation over upon the breach of the condition, or any other disposition of the property by which the vesting of the fee is indefinite]}^ post- poned, or by which it is postponed for a period which is not measured by a life or lives in being and twenty-one 3'ears there- after, is invalid though it may happen ultimately^ Jjy reason of unexpected circumstances^ that the fee shall in fact vest within the 'period laid down hy the law under the rule} So where property was given by the testator to his children for their lives and to their husbands for their lives, respectively, and, after the death of an}^ child and her husband, then to the chiklren of the marriage, the limitation to the grandchildren was held void because of tlie possibiiit}^ that a child might, after the death of the testator, marry a man who was not in being at the death of the testator, and that this unborn person might be the survivor of the marriage.^ So also a gift over of the share of a devisee, in case of his or her death without issue dur- ing the life of his or her wife or husband, is void for remote- ness. The legatee may marry a person not in being at the date of the death of the testator, who may sur\'ive the legatee more than twenty-one years, and the gift over, because of this possi- bility, is therefore invalid.^ Under the same amplification of the general rule would also be included a gift to a person un- 1 1 cannot do better in this connec- templated be Avhat it may, and the tion than to quote the very lucid ex- probability of its early occurrence as planation of this point made by Mr. great as it may be, it will in every Lewis, who says on page 478 of his case be of too remote expectancy, work: '• The rule requiring all future and a Imiitation upon it will there- limitations to be such as, if they take fore always be void unless either effect at all, will necessarily operate fi"om the nature or internal quality within the period of lives in being of the contingency, or fi'om express and twenty-one j'ears, obviously con- provisions and restrictions it be cer- demns as invalid every gift of a fut- tain that the event which is to give ure interest in property made to effect to the limitation will liappen, depend on an event which, although if it at all, within the period of lives it may possiblj' happen within tiie in being and twenty-one years." allowed period, may possibly not hai> - Loring v. Blake, 98 Mass. 2.')3. pen until after the expiration of such ^Uodson v. Ball. 14 Sim. 558. period. , r . Let the event con § SS4:.] PEEPETUITIES AXD REMOTENESS OF YESTIXG. 1340 horn at the death of the testator ^xahose description is jparticularJy qualified^ but who may not correspond to the description within the legal period. Such would be the case of a devise to the eldest son of A,, who has no son at the death of the testator, to vest in him when he shall marry or enter upon the practice of a particular profession. The devise to such a person will be void, though he may by possibility come into being and qualify during the legal period. Thus, in the example given, A. may have a son born to him who may marry or otherwise qualify during the life of his father. But the possibility that he will not do so, however slight, renders the devise to him and the devise over void. This applies to all personal qualifications and to the performance of all conditions precedent or subse- quent which are not necessarily fulfilled by an unhorn, devisee hefore he shall attain majorit}^ Thus, where the testator gave lands in fee to the son of A. who should become a clergyman of the Church of England, but if no such son, then in fee to B., and A. died without ever having had a son, the devise was void for the reason that, according to ecclesiastical rules, no person can be ordained until he shall have attained his twenty-fourth year. The power of alienation might thus possibly be sus- pended during the life of A. ; for, until all his cliildren were born, it could not be told which would become a clergyman, and at least twenty-three years thereafter, though it is evident that if A. had a son born to him and A. lived long enough, that son might have acquired»the proper qualification in the life-time of his father.^ But a devise to A., who is a living person at the death of the testator, to vest when he shall marry, or upon the performance of another act upon his part, is valid ; for the con- dition, if performed at all, must of necessity be performed dur- ing his life-time. ji 884. The validity of future limitatious to unborn per- sons. — The rule of perpetuity, and the ancient rule of remote- ness whicli was applicable to contingent remainders, do not, it hardly seems necessary to say, {)revent the giving of future in- terests for life, or in fee simj)le, to persons who are uiilioiu at the death of the testator, ])r(jvided that such unborn persons must necessarily bcj Ixjrn within the period ol' thc^ rule. Tho limitation of a contingent i-eMiain! All. U. '.' 10. 1356 LAW OF WILLS. [§ 888. immediatel}^ after the execution of his will, the devise would be void for remoteness of vesting, nevertheless the will may be validated by events happening subsequently to the execu- tion and during the life-time of the testator. So where money is given in trust for A. for life, and, after his death, to those of his children who shall attain the age of twenty-four, which will be invalid in case the testator dies before A. docs, it will be a valid limitation to A.'s children if A. dies before the testator, since the devise, in this case, must of necessity vest within the lives of the children of A. who are living at his death. ^ § 888. Tested estates are not witliiii the rule of perpe- tuities. — The rule of perpetuities has no application to estates when the fee simple is vested, JSTo devise by which the fee simple vests absolutely, either at the death of the testator or within the period of a life or lives in being and twenty-one years, is invalid merely because the possession and enjoyment are indefinitely postponed, or are postponed for a period not measured by lives in being.- If, by the language of the will, the estate is vested in some one who can alienate it absolutely, no suspension takes place, though a trust postponing the pos- session and enjoyjnent is attached to it. The main difficulty in most cases is to determine whether the testator, by the language he has used, meant to postpone the vesting or merely to postpone the possession and enjoy- ment. This is altogether and purely a question of verbal con- struction, and the question whether the testator, from the words he has used in the will, intended to give a vested or a contingent estate, is always to be determined, regardless of the fact that the limitation created may ultimately be invalid as a perpetuity, provided it is found to be contingent after it shall have been construed. 1 Vanderplank v. King, 3 Hare, 17; Kirk v. Kirk, 12 N. Y. S. 326; Saw- Williams V. Teale, 6 Hare, 251; Peard yer v. Cubby, 146 N. Y. 192, 40 N. E. V, Kekewich, 15 Beav. 173. R 869, reversing 26 N. Y. S. 426, 73 ^Tarrant v. Backus, 28 Atl. R 46, Hun, 298; Hillyer v. Vandewater,121 63 Conn. 277; Dyson v. Ropp, 29 Ind. N. Y. 681, 24 N. E. R 999; Coopers 482; Jordan v. Woodin, 93 Iowa, 451, Estate, 150 Pa. St. 576, 24 Atl. R 1057; 465; Phillips v. Harrower, 93 Iowa, Rhodes' Estate, 147 Pa. St. 227, 23 92, 107, 61 N. W. R 434; Pulitzer v. Atl. R 653; Morgan v. Morgan (R L, Livingstone, 89 Me. 359, 36 Atl. R 1898), 40 Atl. R 730; Potter v. Couch, 635; Tucker v. Bishop, 16 N. Y. 402; 11 S. Ct. 1005, 141 U. S. 296. Savage v. Burnham, 17 N. Y. 561; § 889.] PERPETUITIES AND EEMOTEXESS OF VESTING. 1357 § 8S9. Tlie effect of a power of sale to prevent tlie opera- tion of the rnle of perpetnities. — The rule forbidding the creation of a perpetuity is not transgressed if the fee simple is absolutely alienable by some person who is in being at the death of the testator or who comes in esse during the period limited b}'' the rule. Hence if the testator shall devise several estates for life in succession to persons who are in being at his death, and other life estates to classes of devisees who are not then in being, with a contingent remainder over, so that the vesting is postponed beyond the legal period, and at the same time the testator confers an absolute power of sale upon his executor or upon his trustees, by virtue of which the fee sirrvple may he conveyed at any tiine^ no perpetuity is created, for the fee simple, though not vested, is alienable.^ The fact that the testator has not, in clear and express terms, directed that the power of sale must he exercised within a life or lives in heing and twenty-one years, or within whatever period may be estab- lished by the statute, is not material, provided always that he has not expressly forbidden his trustees to exercise it within that period or postponed its exercise beyond the period of the rule. If it may be exercised at any time it is valid and does not infringe the rule.^ So it matters not that the power of sale is discretionarv in the trustee as to the time and mode of its exercise^ as where it permits him to delay a sale until such time as he shall be able to secure a fair price, if the direction to sell is imperative and absolutely requires a sale within the period for the vesting of cstat(;s.* It is generally held that 1 In re Walkerly's Estate, 41 Pac. tate, 150 Pa. St. 576, 30 W. N. C. 532, R. 772, 108 CaL 627; Pulitzer v. Liv- 24 Atl. R. 1057; In re Myers, 11 Pa. ingston, 89 Me. 359, 36 Atl. R. 635; Co. Ct. R. 194; Hughes v. Hughes, 91 Ford V. Ford, 80 Mich. 42, 44 N. W. R. Wis. 138; Barber v. Railroad Co., 17 1057; Atwater v. Russell, 49 Minn. S. Ct. 488. For cases illustrating 22, 51 N. W. R. 624; In re Tower, 49 i)0\vei-8 of sale over lan and with the ;i[i- 1360 LAW OF WILLS. [§ 890. proval of a court, docs not create such a perpetuity as will invalidate the charitable g'ift.^ The rule against perpetuities is not rendered applicable to charitable gifts merely because the fee is devised for a chari- table purpose with no express limitation to others hy way of ex- ecutory devise^ on the failure of the charitahle jyurpose^ of the reversion or the possibility of a reversion which remains. We shall see that an executory devise over, on the termination of a charity, may be void for remoteness of vesting.- Here it is to })e considered whether the vesting of the fee simple is sus- pended because there remains in the testator or his heirs a pos- sibility of a reversion. The interest in the heirs of the grantor or of the testator who gives property in fee to a charity is not an executory devise after a fee, the vesting of which is post- poned indefinitely, but a possibility of acquiring a right of entry as soon as the charitable use shall cease. The devise for the charitable purpose is a fee on condition at the common law, which may endure forever. When the condition is broken, the I'eversion vests at once in the heirs of the testator, and they may recover the inheritance at once by ejectment. And although in most cases the condition of the charitable gift is implied rather than express, these principles are, a fortiori^ always ap- plicable where the charitable gift is upon an express condition subsequent. An actual entry on breach of the condition is re- 1 White V. Fisk, 22 Conn. 31; Good- N. Y. S. 847; State v. Gerard, 2 Ired. rich's Appeal, 57 Conn. 275, 18 Atl. Eq. (N. C.) 210; In re Lennig's Estate, E. 49; Pendleton v. Kinney, 65 Conn. 154 Pa. St. 209, 25 Atl. R. 1049; Hill- 232, 32 Atl. R. 33; State v. Griffith, 2 yard v. Miller, 10 Pa. St. 326; Phila- Del. Ch. 392; Abend v. McKendree delphia v.Girard,45 Pa.St. 26; Yard's College, 174 111. 96, 50 N. E. R. 1052, Appeal, 64 Pa. St. 95; Franklin's 74 111. App. 654; Richmond v. Davis, Adm'r v. Philadelphia, 13 Pa. Co. Ct. 103 Ind. 449, 453; Phillips V. Harrow, R. 241; In re Smith's Estate (Pa.. D3 Iowa, 92, 107, 61 N. W. R. 434; 1897), 37 Atl. R. 114; Webster v. Wig- King V. Parker, 9 Cush. 82; Odell v. gins (R. L, 1897), 31 Atl. R. 824, 826; Odell, 10 Allen (Mass.), 1, 6; Dexter Franklin v. Armfield, 2 Sneed (Tenn.), V. Gardner, 7 Allen (Mass.), 243, 246; 305; Wood v. Humphreys, 12 Gratt. Detwiller v. Hartman, 37 N. J. Eq. (Va.) 333; Fadness v. Braunborg, 73 854; Mills v. Davison (N. J., 1897), 35 Wis. 257, 41 N. W. R. 84; Jones v. Atl. R. 1072; Moore v. Moore. 50 N. Habersham, 107 U. S. 174,185; White J. Eq. 554, 25 Atl. R. 403; Williams v. Keller, 68 Fed. R. 796, 15 C. C. A. V. Williams. 8 N. Y. 525; Levy v. 683. C'o»f?*a, Bem-haus v.Watertown, Levy, 33 N. Y. 97; Bascom v. Albert- 94 Wis. 617, 627; Cottman v. Grace, son, 34 N. Y. 584; Holmes v. Mead, 52 112 N. Y 299, 19 X. E. R. 839. N. Y. 332; In re Schuyler's Estate, 24 2 § 891. § S91.] PERPETUITIES AXD REMOTENESS OF TESTING. 1301 <]uired to be made by the heirs of the donor or of tlie testator. But the vesting of the fee or the power of alienating it is never for a moment suspended, because, until a breach of the condition, it is in the charitable trustee, to be exercised under judicial direction, while the right of entry may at any time be released by the heirs of the testator. After a breach of the condition and re-entry, the fee is, of course, absolutely alien- able by the heirs of the testator.^ § 891. Devises for charitable purposes may offend the rule ■wheu made to non-existent corporation. — It has been else- where explained - that, at the common law, it is necessary to the validity of a grant in fee that the grantee named in it should be a natural person, or a corporation in existence at the time of the grant, and able to take livery of seizin. This is never necessary in conveyances which are meant to operate under the statute of uses or under that of wills. A freehold may be created to commence in futuro in a person not in esse at the date of the feoffment to use, or at the death of the testator ^ with or without a precedent particular estate to support it. This may be done as well where the cestui que use or devisee who is to take the future estate is a corporation as Avhere he is a natural person. But in the one case as in the other it is abso- lutely necessary that the unborn corporation shall be ushered into existence within the period which is permitted by the rule of perpetuities for the vesting of estates. Hence, it is a well- settled general rule that a devise to a charitable corporation which is not in existence at the date of the testator's death is valid if provision is made that the corporation inust be incor- porated within a life or lives in being and twenty-one years thereafter. It is not material that the time when it shall be incorporated is left to the discretion of the executor or the trustees, or that it may be incorporated within an indefinite time, for example as soon as possible, when the date on or before which it must •nopkins V. Grimshaw, 17 S. Ct. v. FrarniiiKh.im, 109 Mass. .'503; First 401, lOJ U. S. 342, 346; Cowell v. Society v. R)lund. 15.j AIuss. 171; In Springs Co., 100 U. S. 55: Austin v. m Rjuulell. L. R 38 Cli. D. 213, 218, Cambri(lK*;iM)rt, 21 Pick. (Mass.) 215; 210; In ro Bowen, (lb'J3) 3 CJi. 491, Gray v. IJiaiu-hanl. 8 Pick. (Mass.) 494. 28;J; Guild v. Ilichards, 10 Gray, :!09; 'i Ante, ^ 820. Tobey v. Moore, 130 Mass. 448, Stono 'g 777. 80 13G2 LAW OF WILLS. [§ 892. be incorporated is within the limits of the rule. Where the purpose of the suspension of the power of alienation is accu- mylatlon for a chariiaUe purpose, it has repeatedly been held that it is not material that the testator provides that the process of accumulation shall continue for an indefinite time, or for a period not measured by lives. ^ The same rule has also been applied where the primary purpose of the testator was not accumulation, but where the sole reason for the postpone- ment of the vesting was that no charitable institution was in existence which could fulfill the particular charitable intention of the testator, or because he desired to perpetuate his name by the creation of a new one. The courts, in construing trusts of this character, have usu- ally invoked the definitely-settled principle that the rule of perpetuities has no application to charitable trusts.- But else- where it is maintained that every devise to a charitable corpo- ration to be created in the future must take effect in a corpo- ration which is incorporated within a life or lives in being and twenty-one years thereafter. And in the state of New York and elsewhere, where the limit of suspension by statute is two lives in being, a devise to a corporation to be incorporated is absolutely invalid unless the incorporation must of necessity take place within the statutory period.' A gift in trust to executors or trustees, with an imperative direction that the fund shall be devoted to charitable purposes, but either expressly or by implication providing that the chari- table institutions shall be selected by the executors or trustees, is not generally held to be in conflict with the rule of perpetu- ities, even though no time is fixed by the will within which the beneficiaries must be selected.* The power created and the discretion conferred upon the trustees are personal to them and cannot be delegated or transferred to a new trustee. Hence the power in trust endures only for the lives of the trustees,-^ and the rule of perpetuity is not infringed. § 892. Devise over oii the termination of a charity — When void for remoteness. — An executory devise of a fee to A., i§902. 4 4nfe, §832. 2 See ante, % 890. sNew Haven Y. M. Ins. v. City of sin re Wood's Estate, 55 Hun, 204, New Haven, 60 Conn. 32, 22 Atl. R. 7 N. Y. Supp. 836; People v. Simon- 447. son, 55 Hun, 605, 7 N. Y. Supp. 861. § S92.] PEKPETUITIES AND EEMOTEXESS OF VESTING. 1363 which is to vest in him offer the termination of a prior estate in fee which is given to charity, is absolutely void for remote- ness, if the nature of the contingent event which is to termi- nate the estate of the charity is such that it may, by any possi- bility, not happen within the period which, by the rules of law, is established for the vesting of estates. The executory devise is a void conditional limitation for the reason that, prior to the happening of this contingent antl uncertain event, no person is in being who is able to give an absolute and indefeasible con- veyance of the fee simple of the property.^ And, on the other hand, where a devise of the fee is made to an individual, with an executor}" devise over to a charity upon a contingency which may or may not occur within the period required under the rule prohibiting the remoteness of vesting, the devise over is void because it is too remote, and the person designated takes absolutely. So where the devise is to A. in fee, and, upon a general failure of his issue, to a charity; or where it is to A. and his heirs, they paying an annuity to a charity, and, on their failure to pay, then to the charity in fee;- or a devise to per- sons belonging to particular families, with a devise over of the fee to a charity upon the family becoming extinct,' the gift to the charity is invalid.* A devise in fee to one charity, and, on a contingency, then in fee to another charity, is valid, though the contingency on which the fee is to go over may not happen within the limits of the rule against remoteness. The estate is all charity. Xo individual is concerned, as the fee passes at 1 Hopkins v. Griinshaw, IGo U. S. education, is void under the rule of 342, 355; Ru-ssell v. Allen, 107 U. S. the text. In re Bowen, 3 Reports, 163, 171; Jones v. Tlabersliain, 107 529, 2 Ch. (1893), 4G1. U.S. 174. 185: McArthur V.Scott. 113 '-J Jackson v. Phillips. 14 Allen U. 8. 340, 381; Brooks v. Belfast, 90 (Mass.), 572; Brattle Square Church Me. 318, 324; Theological E- v. Cliunhill (Gu., 189S), :i() S. I'. R. fif,'. lish a general Byutem of freit iJuMic 130J: lav; of wills. [§ 893. once from one charitable trustee to the other. Xo greater re- striction is placed upon the power to alienate by devising to two charities in succession than by a devise to a single one.^ Thus, where land was in the year 1G2J: devised to a municipal corporation for charitable purposes, Avith a devise over to Christ's nos])ital in default of a valid execution of the trust, it was held, two hundred and twenty-four years later, that the devise to the hospital should be sustained.- §81)3. The suspension of the power of alienation during minorities. — A suspension of the vesting of the fee during one or more minorities does not violate the common-law rule of perpetuities if the minorities are of persons who are in being at the death of the testator, or who will come into being during life or lives. Thus, a devise in trust for the benefit of A. to pay him the income until the "youngest of the children of the testator shall attain the age of twenty-one years," if living, or if dead would have reached that age had he lived, suspends the vesting no longer than twenty-one years and a possible period of gestation after the death of the testator.' And it is not material how many minorities are designated by the will to measure the period of the suspension of vesting, for in any and every case the period of suspension cannot exceed the majority of the youngest minor who is living or en "centre sa mere at the death of the testator. A suspension for minorities is valid at common law, even though the minors shall not be in esse at the death of the testator, if, though then unborn, they must neces- sarily be born within the life-time of persons then living or within a possible period of gestation. A statute which by its terms expressly enacts that the com- mon-law rule of perpetuities shall be no longer in force, but that the vesting of the fee shall not be suspended for a longer period than two lives in being, no mention being made in the statute of minority, as is the case in the common-law rule, has been held to permit a suspension for minorities, but not for more than two. In such a limitation the suspension of the vesting of the 1 Society for Propagating the Gos- 2 Christ's Hospital v. Granger, 16 pel V. Attorney-General, 3 Russ. 142; Sim. 83. 100, 1 M. & G. 460. McDonough v. Murtlocb, 15 How. " Otterback v. Bohrer, 87 Va. 548, 12 (U. S.) 367; Storrs' School v. Whitney, S. E. R. 1013. Cf. Jordan v. Woodin, 54 Conn. 342, 8 AtL R 141. 93 Iowa, 453, 61 X. W. R. 948. § 894.] PERPETUITIES A^^) KEMOTEXESS OF VESTING. 1305 fee cannot outlast the lives of those persons whose minorities are taken, and it may possibly terminate sooner, that is, on their attaining majority. The suspension cannot possibly be for a longer period than during the lives of the two minors, and it may ultimately be for a much shorter jieriod in case they attain majority and live for man}^ years thereafter. In the state of Xew York, where the limit of suspension is two lives in being, by the early cases a minority of a minor alive at the death of the testator has been held to be equivalent to a life in being, and suspensions for two minorities, though no more, have been sustained.^ Thus, a direction to trustees to hold the property of the testator in trust until the " youngest child of the testator " should attain the age of twenty-one, and then to divide it among a class of beneficiaries, was held not to cause an invalid suspension of the vesting of the fee.- Indeed it seemed to be well established in that state down to a recent date, that a suspension of alienation until the majority of the yovngest child of the testator was valid, being regarded at the utmost only as a suspension for the life of a person in being, i. llun. 153. 13 N. Y. S. 202. See also and see also McCiowan v. McCiowan, Walsh v. Waldron, 17 N. Y. S. 829, 03 2 Duer (N. Y.), 57, where a division Hun, 315. was to bn made wlien the «ddest of ^ Haynes v. Sherman, 117 N. Y. 433, W'ven <-iiiiiln'n attained his inajorily. 2".' N. V.. K. '.(38, 51 IIuu, 585, 4 N. Y. S. 'boe the recent cai»c» of Stehlin v. 413. 136G LAW OF WILLS. [§ 894. executory devise is given which is void under the rule are in beincr at the death of the testator or have come into beinir dur- ing the period which is at the basis of the rule, while others aro not or have not come into being, does not always prevent the fail- ure of the whole limitation to the class. Thus, for example, we will take a limitation which occurred in an English case where personal property was bequeathed to A. for life, and o/ter his death to his children who shall attain the age of twenty-five years, and if A. shall die leaving no children him surviving, or if he shall leave any that shall all die before they attain the age of twenty-five, then to the Irothers and sisters of A. in fee. The executory devise to brothers and sisters of A. is to a class which may not be ascertainable until at least twenty-five years after the death of A. It will consist of all the brothers and sisters of A., who must, of course, be born in his life or within twenty-five years thereafter. It cannot be known, there- fore, until at least twenty-five years after the death of A., whether the fee simple will vest and be alienable in the children or in the brothers and sisters of A. The latter event will hap- pen if no child of A. survives his twenty-fifth birthday. The membership of the class ''^Irothers and sisters " cannot be ascer- tained until that time, and, though it may happen that at the death of the testator there may be several members of that class alive who may take if they survive, there may le others born within the period above mentioned and beyond the limits of the rule, for the rule of perpetuities has regard to what Qiiay 2>ossihly Juqrpen, and not to events which actually happen. To split up the class, which is indivisible and composite, be- cause some members are or have come into existence during the period allowed by the law, though others do not, and to give to the former sub-class their shares while depriving the others of their benefit, is in no case what the testator intended to do by such a disposition of his property. To do this would be in effect to confer particular bequests upon one or more legatees as individuals, that is, upon those members of the class, " brothers and sisters," who may have come into being within the period permitted by the rule against perpetuities.^ ^ Leake v, Eobinson, 2 Mer. 363. In tion are not made to individuals, but discussing this case Sir W. Grant, to classes, and what I have to de- ;^L R., said: "The bequests in ques- termine is, whether the class can § 894.] PEKPETUITIES AND REMOTENESS OF VESTING. 13GT The fact that the devise to a class which is too remote is coupled with a devise to an individual named, which is to vest in him only if he survive, is not material. His devise fails with the remote gift to the class, though he may survive until the period named, for it is impossible to separate the whole fund into shares and to ascertain how much the individual named would take, where he is to take as a tenant in common with the members of a class which is too remote.^ If, however, the valid and invalid provisions contained in the same will are each complete in themselves, and independ- ent of the others, so that they may be separated without injus- tice to any person, and it appears that the testator intended they should be separated, this intention should be respected. The provision or limitation which transgresses the rule of per- petuities may be cut off, while that wliich does not offend the rule may be supported.^ So where the devise was a certain specific amount to each child that should be born to any son of any brother of the testator, it was supported as to all chil- dren of the sons of the brothers of the testator who were in being at the death of the testator, though defeated as to those subsequently to be born, and who, as a class, would be too re- mote.' And though a limitation made by a residuary clause is take. I must make a new will for the then to all A, 's children in fee. As testator if I split into portions his the provision relating to final dis- general bequest to the class and say tribution was void, the whole trust tliat, because the rule of law forbids failed, and the gifts of the annuities his intention from operating in favor to the children of A. wlio were living of the whole class, I will make his at the death of the testator also bequests what he never intended failed.- Lawrence v. Smith, 1G3 IlL them to be. wi^., a series of particular 149, 45 N. E. R. 259. See also In re V)equests to mdividuals, or, what he Whitten, 62 Law Times, 391. has as little in his contemplation, dis- i Porter v. Fox. 6 Sim. 485. That a tinct bequests, in each instance, to gift cannot be split up into several different classes, namely, to grand- gifts to take efftu-t on separate con- children living at his deatli, and to tingentevonts.some witiiin and some Krandcliildren born after his death." be}'ond the period of the rule, see In a rccf-nt Illinois case will be found In re Bence. 04 Law Times, .'382, 3 Ch. a good illastration of the rule of the (1891), 242: Tost v. Roiirbuch, 142 IlL text The testator created a trust to 600, :{2 N. E. II. 087. j)ay A. a life annuity, and on A.'s 2 Kennedy v. Hoy, 105 N. Y. 524, 11 •Iwithtopayannuitiesto A.'schildrcn N. K. II. :m): Uiidcuwood v. Curtis, until tliey severally attained tlie ago 127 N. Y. 52:{, 28 N. E. It 5H5. of twenty-five, and when tin* young- 3 Storrs v. lienbow, U D. M. & G. 390, e.st attained the ago of twenty-fivo 13CS ■ LAW OF WILT.S. [§ 895. Toid because in violation of the rule of perpetuities, specific legacies to the same legatee ought to be supported.^ So, where property is limited in a valid trust for life, with a remainder in foe over, and the remainder is void because it infringes the rule of perpetuities, the gift for life, if it is severable, will stand, though the limitations over may fail for remoteness of vesting, and the testator may die intestate as to the fee comprised in the executory limitations.- § 895. The cireiiinstances under which class gifts may he separated. — There have been some cases where the courts have held that it was allowable to separate a contingent provision for a future class, where some of the members of the class have come or must come into being beyond the legal period, and to sustain the provisions for the class as to those members of it who are actually in. being within the rule of perpetuities, while lettinfj it fail as to those who are not. Thus, where the testator devised land to A. for his life, he beins: alive at the death of the testator, remainder to his chil- dren for their lives, and remainder in fee to their children; and A. left several children surviving, some of whom were born hefore, and some after, the death of the testator, the court sepa- rated the limitation to the children of A., and held that the shares of the children who were born he/ore the death of the testator should go to their children in fee on their death. But the devise of the remainder failed as to the grandchildren of A. whose parents were born after the death of the testator.' 1 Lawrence v. Smith, 163 IlL 149, 45 547, 548; Manice v. Manice, 43 N. Y. N. E. R. 259. 303, 384; Van Scliuyver v. Mulford, 2 Morns v. Bolles, 31 Atl. R 538, 65 59 N. Y. 426, 432; Kennedy v. Hoy, Conn. 45: Ketcham v. Corse. 31 Atl. 105 N. Y. 134, 137, 138; Underwood v. R. 486, 65 Conn. 85: Leake v. Watson, Curtis, 127 N. Y. 523, 541: Brown v. CO Conn. 498, 31 Atl. R. 1075; Marion Ricbter, 76 Hun, 469, 27 N. Y. Supp. V. Williams, 20 D. C. 20; Ingraham 1094; Law v. Maxy, 13 N. Y. Supp. V. Ingraham, 169 IlL 432, 48 N. E. R. 366; Haynes v. Sherman, 51 Hun, 685; 461; Bugbee v. Sargent, 23 Me. 269; Schermerhorn v. Cotting, 131 N, Y. Dulany v. Middleton, 72 Md. 67, 19 48, 29 N. E. R. 980; Allen v, Allen, 149 Atl. R. 146: Deane v. Littlefield, 1 N. Y. 280, 287; Armstrong v. Doug- Pick. (Mass.) 239, 243; Holman v. las, 89 Tenn, 219, 14 S. W. R. 604; Perry, 4 Met. (Mass.) 492, 497; St. Saxton v. Webber, 83 Wis. 617, 53 N, Paul's Church v. Attorney-General W. R. 905. of Massachusetts, 164 Mass. 188, 195; sCattlin v. Brown, 11 Hare, 373, Dean v. Mumford, 102 Mich.' 510; 382; Griffiths v. Pownall, 13 Sim. 393; Harrison v. Harrison, 36 N. Y. 543, Knaping v. Tomlinson, 34 L. J. CIl. § S95.] PERPETUITIES AND KEMOTENESS OF VESTING. 1369 Testamentary executory provisions for unborn classes may also be separated, and the part which vests within the legal period may be sustained, though the balance is permitted to fail, where, by the terms of the limitation, a class of devisees is to take by substitution a contingent interest in the share of any member of another primary and original class who dies before the vesting in that class. An example of this would be an estate in A. for life, he being a living person, remainder to his children in fee when they severally attain the age of twenty- one, and if any child shall die in his minority, then to his issue.^ The remainder in fee by substitution to the issue of a deceased child is valid so far as the shares of children in being at the death of the testator are concerned, for the remainder is cer- tain to vest, if at all, during A.'s life, or within twenty-one years thereafter. It vests in the children of A. if they attain majority, or in their issue if they are dead. But the remainder in fee to issue is void as to the issue of the children of A. who are born after the death of the testator, for such children are not in being at the death of the testator, and consequently the fee cannot go in their issue until both they who are unborn at the testator's death, and their parent, A., are deceased, and also after a majority, which is not within the period. Here, then, are two classes, one of children and one of grandchildren. uUl the children will certainly come into being during A.'s life, and possibly some of the grandchildren. But some of the grand- children may not, for their parent, the child of A., may be en ventre sa mere at A.'s death. But when the number of A.V children is ascertained and fixed by his death, we have found the number of shares and also how many stocks into which the 3,7. Tlie distinction between tliese gent remainder to their children), or, cases and that of Leake v. Rohin.sou if dead, to tlieir cliildren in fee. while is that in these cases so soon as it can the other shares meant for the issue l»e definitely as(.'ert;iined liow many of tlie children who are afterwards Burvivin;^ children of A. there are, born, not vestiTic: until the sulise- •which of course is at his death, no (juently born chiMren are tliemselves iiuitter when they are Iwrn, the iiroi>- deceased, must of necessity bo void, erty can Ije divided into as many In Leake v. Robinson the cla.HS was shares as there are surviving chil- not thus divisible, and its member- dren. The shares of those <-hildren shij) was only to be ascertained at of ^\. born before, the death of the u date which wius absolutely too ro- t«'stator can be then delivered to mole tin-Ill. if alive, for life (with coritin- 'See avli\ ^j^ WTtW, 855. 1370 LAW OF WILLS. [§ 890. testator meant his property to be dividccl ; and, this fact hav- ing been ascertained, the issue that may proceed from each member of the original chiss forms a secondary and substitu- tionary class which is distinct and separate from the issue of any and every other member of the original class. But on the other hand, where, in a similar limitation to that above mentioned, it appears that the children and the grand- children form together ons composite and original class, the membership of which cannot be ascertained within the legal period, the whole gift fails, though some of those who make up the membership of the class have been born before the death of the testator. If some of the members of the class are to be the unborn children of persons not in being at the death of the testator, and the share of each and any member cannot be as- certained until all these persons are in being, the whole limita- tion is so permeated with remoteness that it must be cut off altogether. Thus, a devise of a contingent remainder was to the children of a life tenant (A.) living at his death, and to the descendants of all his children who are then deceased, with a devise over, if no children or descendants of A. shall attain their majority, to the children of B. living at his death and the de- scendants of those deceased. The contingent remainder to the descendants of the children of A. was to such only as were liv- ing at A.'s death, and they took by substitution the shares of their parents as separate stocks.^ So the rule of perpetuities is not in any respect infringed by a devise in trust for a child of the testator for life, and at his death to be divided among his children ^^then" living, and the issue of any deceased child. The living children of the life tenant take as one class, and the descendants of his deceased children take as another. There are thus two separate classes, both of which are ascertainabki within the life of A.^ § 806. The effect of the invalidity of a devise on the next expectant limitation following it. — All future contingent lim- itations which are to vest upon the termination of a prior lim- itation which is void because it is in violation of the rule of perpetuity are also void, and are not accelerated because the 1 Terrell v. Reeves (Ala., 1898), 16 2in re Siddairs Estate, 180 Pa. St. & R 54. See ante, §§ 353-355. 127, 36 Atl. R. 570. ^ SOC] PERPETUITIES AXD REMOTENESS OF VESTING. 1371 prior estate is invalid.^ If the later interest depends for its vesting upon an event which puts an end to the former estate, both are void. The reason is obvious. Thus, if the contingent event, on the Tiappening of which an interest which up to that time has been contingent is to become vested in fee in class A., is the same event on the non-happening of which the same prop- erty is to vest in fee in class B., both must necessarily be valid or neither. For the non-happening of the event is, so far as class B. is concerned, as much a contingent and doubtful event as its happening is to class A. If it happens, the fee vests in one class of persons. If it does not, the fee vests in another. Both classes are equally beyond the period mentioned by the rule and both devises arc void. So, too, the testator undoubtedly meant to give to both classes, and he cannot be assumed to have meant that a contingent and indefinite class B. shall take a vested fee on the happening of an event which renders his disposition in favor of class A. in- valid. Thus, where personal property was to go for life to A., and on his death to his children, to vest in them when they shall attain the age of twenty-seven, and if no such children, then over,^ or where property was given to the first son of A. on his becoming a clergyman, which he could not become until he was twenty-four years of age, but if no such son then over, and the fee never vested in the first devisee because the con- tingency never happened, it could not vest in the alternative devisee.' If, however, the ultimate limitation which is to vest the fee depends not upon a single event, but upon an alternative contin- 1 This rule does not apply to future alive, have been capable of enjoying vested estates coming after void lim- the estate, and that he did not intentl itations. See § 878. that the estate sliould wait for per- 2 Cambridge v. llous, 8 Ves. 12, 25 sons to take in a given event, where Beav. 409. the person to take itliat is, to take in *In Monypenny V. Bering, 2 D. M. the interim) was actually in exist- &, (}. 14"), on page 182, the court s;iid enco, but could not take. This shows a limitation was invalid, "not be- that where there are gifts over wliich cause it was within tlie line of per- are void for perpetuity, and there is petuity, but expressly on the ground asubsetiuont and independent clause that the limitation over was never on a gift over which is within the intended by the testator to take ef- line of perpetuities, efbift caiinot be feet, unless the persons wliom lie in- given to such a clause urdi'ss it will tendrul to take UJider the previous ddvctail in and accord with jirevious limitation would, if tln-y had beiiu liiiiitatioiis wliidi are vabd." LAW OK WILLS. [§ 896. gencY, or upon two contingencies, the rule is otherwise. If the vesting of the estate over depends upon the happening of either of two contingent events, one of which is certainly within the period of life or lives in being, though the other may not be; and the event which is within the period happens, while that which is beyond the period does not happen, the validity of the limitation will be determined by the event w4iich has hap- pened, and not by that which has not. Thus, where there is a limitation in fee to a class of persons, including the unborn grandchildren of a life tenant, which is void, with a devise over of a vested remainder to A., in case the grandparent, who is living at the death of the testator, dies leaving no issue surviv- ing him at his death, and the latter event happens, the devise to A. is valid. For the same reason a contingent remainder in fee to a class in the above example, upon the death of the grandparent, the life tenant, without issue living at his death, would also be valid, if it should so happen, for the devise to the class is bound to vest within the legal period, though a pro- vision for unborn issue of the life tenant coupled with it might fail toirether.^ 1 " But if the testator distinctly makes his gift over to depend upon what sometimes is called an alterna- tive contingency, or upon either of two contingencies, one of which may be too remote and the other cannot be, its validity depends upon the event; or, in other words, if he gives the estate over on one contingency which must happen, if at all, within the limit of the rule, and that contin- gency does happen, the validity of the distinct gift over in that event •will not be affected by the consider- ation that upon a different contin- gency, which might or might not happen within the lawful limit, he makes a dispensation of his estate which would be void for remoteness. The authorities upon this point are conclusive." Jackson v. Phillips, 14 Allen (Mass.), 572. The court cites Longhead v. Phelps. 3 W. Bl. 704; Beard v. Westcott, 5 Taunt. 393, 395, 5 B. & Aid. 801, 809, 813, 814; Minter V. Wraith, 13 Sim. 53; Evers v. Challis, 7 H. L. Cas. 531. And see also Lewis ou Perpetuities, oh. 31; Goring v. Howard, 16 Sim. 395; In re Weinbrenner's Estate, 34 Atl. R. 314, 173 Pa. St. 440. Where two con- tingent remainders are limited as substitutes or alternatives, — one to take effect if the other does not, — the fact tliat the contingency on which one is to take effect is too remote does not affect the validity of the otlier. Walker's Adm'r v. Lewis, 90 Va. 578, 19 S. E. R. 358. A devise to trust- ees for the children of a person in being, should he have any, and, in case he should have none, to other persons named, is a devise upon al- ternative-contingencies; and, if the first contingency never happens, the second disposition will take effect, though the first devise may have been void as creating a perpetuity. Perkins v. Fisher, 59 Fed. R. 801. §§ SOT, SOS.] TEKPETUITIES AND KEilOTEKESS OF YESTI^IG. 1G73 §807. The statutory regulations of tlie law of perpetui- ties in the United States. — The rule of the common. la\y, by the operation of which the suspension of the power of alienat- ing the absolute interest in property is restrained to life or lives in being and twenty-one years thereafter, prevails throughout the United States where it has not been expressly repealed or modified by statute.^ In the states of Iowa,- Georgia,^ Kentucky,* North Dakota,'^ Pennsylvania,^ California,^ Wisconsin,^ Michigan,* and perhaps in several other states which have escaped the investigation of the writer, the common-law rule has been expressly confirmed by statute. In the state of New York and in one or two other states, according to existing statutes, the vesting of the fee can- not be suspended longer than during two lives in being at the creation of the estate or at the death of the testator. And no term of years Avhatever is permitted to be added to this limited period.^" If the statute does not expressly or by necessary im- plication refer to personal property, the rule of the common law prevails as to that." § 898. The rule of perpetuities in Connecticut. — The stat- ute in Connecticut provides that " no estate shall be given by deed or will to any persons but such as are in being at tlie time of the delivery of the deed, or at the death of the testator, or to their immediate issue." '- A trust for A. and his family is not invalid under this statute, as it can endure only so long as A. is the head of the family, that is to say, onl}^ during his life- ■ 1 In re Hendy's Estate, 118 Cal.G36, 3 civil Code, §3112; Code 1873, 50 Pac. R. 753: Chilcott v. Hart, 23 §2267. Colo. 40, 45 Pac. R 391; Madison v. * Gen. Stats., ch. 03. art. 1, § 27. Larmon (111., WJS), 48 N. E. R. 550, ^Comp. Laws, i; 2717. Hale V. Hale, 125 111. 399, 17 N. E. R. « Act April 18, 1853. 470; Lawrence v. Smith, 163 111. 149, 'Code, f-t^ 715, 716. 15 N.- E. li. 259; Rhoad.s v. Rhoads, 43 » Rev. Stats, j^ 2039. 111. 239; Sla.le v. Patten, 08 Mc 480, Nlow. Ann. Stsits., § 5531. 482; Ilfwea v. .Iacol)s. 98 Mass. 05. 07; lo Rev. Stats, of New York (7th ed.), LoveririK v. W()rtliinKt<»n, 100 Mass. p. 2179, i; 15. so, 88; Pratt v. Alger, 130 Mass. 550, n In re Tower's Estate. 49 Minn. 371. 551; "Wood bridge v. Winslow, 170 52 N. W. R. 27; iKulge v. Williams, ]yias.s. :i90. 19 N. E. It. 738; Brown v. 40 Wis. 70. 95. 50 N. W. R. 1103; Web- P.n.wn, 2 Pickle (Teuu.), 277, 6 S. W. «ter v. Jlorris, 00 Wis. 300, 382. R 8<59. la Gon. Stuta., g 2U5i - Code, 8 1920. 1374: LAW OF WILLS. [§ 890. tinie.^ A testamentary provision for five cliilclren of the testa- tor by name for life, and on the death of the survivor of such ehihh-en to be divided among the surviving grandchildren and their heirs, is invalid. The remainder does not vest in the im- mediate issue of the children at the death of the testator, but in the grandchildren of the testator who are living at the death of the last surviving child, and in the issue of those then dead as purchasers." And it seems that in the state of Connecticut the general rule is, under this statute, that any future estate which is to vest in a class, the membership of which is to be determined at the termination of one or more precedent life estates, is void as a perpetuity, though the class consists of the immediate issue or descendants of some or all of the life tenants.' Every contin- gent remainder, therefore, to the children of a life tenant as a class, where the children of a deceased member of the class are to take their parent's share, is void,'* as the grandchildren take as purchasers their parent's share, and not by inheritance, and some of them may possibly not be in being at the death of the testator. So, too, a devise of a future estate to the heirs of the survivor of a class, to vest in them after a prior life estate, is also void.'^ § 899. Cases illustrating the New York rule of perpetui- ties. — In the state of New York the limit of the rule of per- petuities is two lives in being, and no more. The following illustrations, selected out of the very many cases which have been determined in that state, will serve to show the attitude of the courts of that state upon this point: A devise in trust for the support of the children of the tes- tator during the lives of the two youngest children ; ^ or to sup- port A. and B. for their joint lives, and, on the death of the survivor, to vest in others ; ^ or to support the widow and chil- 1 St. John V. Dann, 66 Conn. 401, 34 5 Ketchura v. Corse, 31 Atl. R 486, Atl. R. 110. 65 Conn. 85. The provisions of the 2 Morris v. BoUes, 65 Conn. 45, 31 Ohio statute are identical with those AtL R 538. of Connecticut (Act Dec. 17, 1811). 8 Johnson v. Webber, 65 Conn. 501. Phillips v. Herron (Ohio, 1898), 45 N. 23 AtL R 506; Beers v. Narramore, E. R. 720. 61 Conn. 13, 22 AtL R 1061. « Oilman v. Reddington, 24 N. Y. 9. * Landers v. Dell, 61 Conn. 189, 23 ^Onderdonk v. Onderdonk, 5 N. Y. AtL R 1083. Supp. 242, 52 Hun, 614. § 899.] PERPETUITIES AND REMOTENESS OF VESTING. 1375 dren of the testator during- the life of the widow ;^ or in trust for the widoAv of the testator for Iter life, and, on her death, to be divided into three separate life estates ; - to pay income to A., B. and C. during their lives, and, if A. survive them, to him in fee, but if he die before C. and B., then to such persons as he may by will appoint; ^ to pay the income of a fund to A. and B. for seven years, and at the end of that time the princi- pal to go to the survivor of A. and B., but if Ijoth be dead, then to the heirs of C. ; * to pay income to A. for ten years, at the expiration of which time the corpus • is to vest in A., or, if he die prior thereto, in B., and if A. and B. shall both die prior thereto then to C. and D., or the survivbr of them, and if both C. and D. shall die then over;^ and a devise in fee to the sur- viving children of the testator who may be living at the death of a life tenant, and to the then living issue of any child of the testator who may then be deceased, to be divided among the issue when they attain the age of twenty-one years,® are valid, as they do not suspend the vesting more than two lives in being at th? death of the testator, A devise to A, for life, on his death to B. and C, for life jointly, and to the survivor of B. and C. ; '' or to A. for life, with a remainder for life to all the chil- dren of the testator surviving A. ;^ or a trust to pay income to A, for life, then to B. and C. for life, and to the survivor of them, and, on his death, to the children of the survivor, but if all die without issue then to D. ;^ or to three persons for their joint lives, and to the survivor, and, on his death, to others ;'° or a similar devise to three for life, and if they die without issue then as the law directs;'' to the widow of the testator for her life and then to his daughter, and, if she die 1 Williams v, Conrad, 30 Barb. 6 Vanderpoel v. Lowe, 112 N. Y. 107, (X. Y.) 5'J4. 19 N. E. R 481. 2 Parks V. Parks, 9 Pai;;e (N. Y.), 7 Arnold v. Gilbert, 5 Barb. (N. Y.) 107. Cf. Snhermerhorn v. Cotting, 190; VanScliuyvcr v. llulford, 59 N. 131 N. Y. 48. Y. 420. 3 Bird V. Pick ford. 35 N. E. R. 938, 8 Post v. Hover, 33 N. Y. 593. 141 N. Y. 18, reversing 25 N. Y. Supp. 9 Knox v. James, 47 N. Y. 389: Wesl> 40. Thi.s is only for one life — that orvclt v. Westorvolt, 1 Bradf. (N. Y.) of A. 137. «Montagnini v. Blade, 39 N. E. R. i'> Kowlcr v. Tngersoll, 50 Hun, 004, 719. 145 N. Y. 111. 2 N. Y. Supp. H33. »MoiitaKiiini v. Blade, 39 N. E. K. i' Ward v. Ward, 105 N. Y. 00, 11 N. 719, 115 N. V. ill. E. K. :i73. 1370 LAW 0? "WILLS. [§ 899. before her husband and without children, then to him for life ; ^ to four persons for their joint lives, and, on the death of any of them, to divide among the survivors and the children of those then deceased ;2 to A. for life and then to his children, with a devise to B. in case all the children shall die under age; ' or a devise in trust to pay annuities to the grandchildren of three persons named until the death of their (the grand- children's) parents, which would be at least for six lives,^ is an invalid disposition, as in each case the period of two lives is exceeded. An appointment by the holder of a life estate under a will to A. for life, remainder to A.'s descendants, is valid, where hoilitlie life tenants were living when the original will was exe- cuted.^ A direction to pay the income of a fund to A. for his life, and, on his death without issue him surviving, then half of the income to B. for his life, and half of the income to C. for his life, is valid.^ So, too, is a devise to A. for life, and then to be equally divided between B. and C. for their lives, and on the death of each one, then his share to go to his children.'' A clause devising a fund which had been attempted to be devised in trust for a purpose which may prove illegal " in the event that this bequest and devise . . . should be adjudged or prove invalid, or its execution be impossible either by judicial decree or from any other cause," does not suspend the vesting for an illegal period, the length of which is to be measured by the time it shall require for the court to reach a decision. The estate vests at once upon the death of the testator, as the de- cision of the court, when it is reached, relates back and deter- mines the state of the law as it was at that date and not as it is at the date when the decision is reached.^ A trust for the ben- efit of A., B. and C. for life, remainder in the share of the prin- cipal to the children of each on his death, and in the case of 1 Woodruff V. Cooke, 47 Barb. (N. Y.) point, Frear v. Pugsley, 30 N. Y. Supp. 304. 149. 9 Misc. R. 31G. •■^Colton V. Fox, 6 Hun. 49. eWeller v. O'Brien, 23 N. Y. Supp. 3 Kennedy V. Hoy, 105 N. Y. 524, 366. 11 N. E. R. 390. 7 Trolan v. Rogers, 79 Hun, 507, 29 * Lorillard v. Coster, 5 Paige (N. Y.), N. Y. S. 899. 172. 8 Cruikshank v. Chase, 21 N. E. R. 6 Hillen v. Iselin, 144 N. Y. 365, 64, 113 N. Y. 337. 39 N. K R 368. See also, on this § 900.] PEKPETUITIES AND EKMOTE^^ESS OF TESTING. 13V7 the deatli of am" one of the life tenants leaving no children, his share to the other life tenants, and on the death of all three the principal to go to the surviving children, if any, is void as to the limitation over to the surviving children. But the life estate, and the limitation over in case of the death of any life tenant without children, is valid, and will be sustained though the other limitation is void as in violation of the statute.^ And the same rule is applicable where the trust is for the life of A., and on his death to be divided into shares for several legatees, W'ith cross-remainders on the death of any life tenant without issue.^ A devise in trust to pay the income to each of the tes- tator's eight children during their lives, and after their death to their respective husbands or wives, and if any should die without leaving a husband or a wife, or without issue, and leavino- a husband or wife him or her survivino-, then to the survivors, is valid and does not suspend the power of alienation for a longer period than for the life of the beneficiary and the Imsband or wife survi^ing liim or her. In this case it is evi- dent from the context of the will that the testator meant the husband or wife living at the date of his death, and not any future husband or wife. Hence, such a disposition does not restrain the power of alienation for a longer j)eriod than for two lives in being at the date of the death of the testator.^ A devise in trust until A. sliall attain the age of twenty-one or shall die, and if he shall die before B. attains the age of twenty-one, then until B. shall attain that age or die, is valid. If A. should live to be twenty-one the estate would vest at once, and then the power of vesting is suspended only for his life. If he shall die after the date upon which B. attains his majority, the period of vesting is lengthened only by the life- time of B. at the most. In neither case is the vesting post- poned longer than two lives in being.* § 0(M). The statutory rule of perpetuities in "Wiscousin. — In the state of "Wisconsin the statute expressly provides'' that tlie absolute power of alienation of tiio fee shall not be sus- 1 In ro Ricard's Estate. 28 X. Y. S. 178, 19 N. E. R. (50. Aii.l soo Doau v. 683, 7 Misa R 019; In re Ewon, iride and vanity in an ancestor, dis- regarding the ease and comfort of his immediate descendants for the miserable satisfaction of enjoying in anticipation the wealth and aggran- dizement of a distant posteritJ^ Such an iron-hearted scheme of settle- ment, by withdrawing property for tate, with all the accunmlations. was so long a period from all the uses to be conveyed to the eldest living and purposes of social life, was intol- inale descendant of each of the sons, and in default of a living male de- scendant of any son, tlien to tlie de- scendants of tlie otlier sons. The validity of the will was sustained by the court of chancery in 1798. and hy the hoiLse of lords in 180.1 The l<;stator died in the year 1797 and left about half a niillion [Mmnds ster- ling. If, as Cliancellor Kent ro- iiiarks, the jKiriod of accumulation erable. It gave occasion to the stat- ute of 39 and 40 Geo. III., prohibiting any person from settling or devising real or personal jtrojx'rty, for tho purpose of accumulation, by means of rents or profits, for a longer period tiian the life of tlio grantor or testa- tor, twenty-one years after Ids deatli, or during the minority of any per- son who, under tlio deed or will di- recting the accumulation, would, if sliould extend to one hundred years tlion of full age. be entitled to tlio from that daUi. as it might well do rentH and i)rollts." 4 Kent, Com., in view of th<; iiifuruty of the jiost- j). 2N0. liiiinouH H(>nn of the testator, ami as- -4 Jiev. St. (Sth ed.), pp. 2434, 2435, huming that the final devisee was gg 37, 3b, ami p. 2ol0, ^,^ 3, L 13S0 LAW OF WILLS. [§ 901. except for the benefit of minors in being, and during the period of their minority, is expressly forbidden. Under this statute a trust requiring an accumulation for a definite term of years,^ or during a life in being,- or during an indefinite period, as, for example, until the accumulations amount to sudicient for a particular purpose,' is invalid. Every provision for an accu- mulation which is for a period which is not measured by the minority of some person Avho is in being at the death of the tes- tator is invalid in the state of Xew York.^ V>\.\t in that state it has also been held that the accumulation, though it may be directed for a longer period than a minority, will be good at least for the minority of the minor for whose benefit the accu- mulation has been directed.^ So, where a trust for an illegal accumulation has been framed, the amount accumulated under it devolves upon that person who is next eventually entitled under the will.® In the state of Pennsylvania the statute ^ pro- vides that no settlement or appointment by any device what- ever for the accumulation of the profits of real or personal property, except for charitable or religious purposes, shall be allowed for a longer period than the life or lives of the one or more persons making it, and twenty-one years from their re- spective deaths, with an allowance in case of a possible term of gestation.^ Under this statute it does not seem necessary that the object of the accumulation shall be to benefit the minor. An accumulation for any purpose is valid, provided the period in which it takes place does not exceed the period of twenty- one years after the death of the testator. The object of the statute is to prevent a permanent accumulation b}'' which the property accumulated may be permanently taken out of the market. A mere temporary accumulation of the suri)lus in- come which may arise after the support of a legatee is provided 1 Tucker v. Tucker, 5 N. Y. 408. ^ Cochrane v. Schell, 35 N. E. R. 971, 2 In re Roos" Estate, 4 Misc. R. 232, 140 N. Y. 51G; Smitli v. Parsons, 14G 24 N. Y. S. 862. K Y. 116, 40 N. E. R. 736. 3 Wells V. Wells, 24 N. Y. S. 874. 30 7 Act Leg. Pa., 1853, P. L. 503; and Abb. N. C. 225; In re Hoyt's Estate, see also Act May 9, 18S9, P. L. 173; 24 N. Y. 577, 71 Ilun, 13. Purdons Dig., p. 2450. ^Harrisv.CIark, 7N. Y. 242;Manice '^As to charitable gifts see In re V. Manice, 43 N. Y. 303; Hawley v. Lennig's Estate, 154 Pa, St. 209, 25 James, 5 Paige (N. Y.^ 318. Atl. R. 1049. 5 Oilman v. Reddington, 24 X. Y. 9; Hull V. Hull, 25 X. Y. 017. § 002.] PEKPETUITIES AND EEMOTKXESS OF TESTIXG. 13S1 for, which surplus is to be applied for his benefit as he may need it, is not prohibited by the statute.^ Accumulations for charitable purposes constitute an exception to the rules dis- cussed in this section, and these "\ve will discuss in the next sec- tion. § 902. The Talidity of accuinulatious for a charity. — The rule which limits the accumulation of income to a fixed period which is measured by a life or lives in being, or by minorities, is not applicable to accumulations of income which are di- rected to provide for charities. Assuming that the law re- stricting the suspension of the alienation of property does not apply to a devise of the fee outright, the income to be at once (j'iven to the poor or the needy, or to other charitable purposes, no valid reason exists why a testator, who may not leave enough ])roperty at his death to carry out fully his charitable intentions, may not provide that the income of what he can then give shall accumulate indefinitely until sufficient is realized. A gift to a charitable institution which is to be incorporated subsequently to the death of the testator- is almost universally valid. And it IS submitted that a gift to accumulate for a charity is not to be overthrown merely because the whole amount necessary is not given in the aggregate, but a small sum is given with a di- rection that it shall accumulate until with the interest and income it is sufficiently large for the purpose. In the case of Downing college at Oxford a gift to purchase ground and build a college was sustained, though, because of the peculiar circumstances of the case, the trust was not carried i.ut until fifty years after the death of the testator.^ So, too, in an early American case a fund was given in trust to accu- mulate until sufficiently large to su[)port fifty sailors in a hos- pital. The United States sui)reme court sustained the gift, and an institution was incorporated, which at the present time, by i-eason of the immense advance in the value of the land de- vised, supports in great comfort nearly one thousand -aged sail- ors.* •In ro IIil)l/s Estiitc, U:i I'a. St. » Attorncy-nenoral v. llcwniiif,', 217, 'IM W. N. C. ]«, 22 Atl. R W2; In Wilniot, i:}, Dick. 411. Ami). TmO, T^tX. n- Willijunwjn'H EHtiite, 22 Atl. \L h:\, * InKliw v. Sailors' Snug Harbor, i n:{ IV su i.vj. 2« w. N. c. yo;i. ivterH, yy. 13S2 LAW OF WILLS. [§ 902. An explicit direction that the income of a sum of monc}'' shall accumulate for a specified number of years, and at the end of that period shall be given to a charity, is therefore valid.' A direction that a fund and its income shall accumulate indefi- nitely for a charity is valid,- though the limits of the period of accumulation are subject to the control and jurisdiction of a court of equity, which may terminate the accumulation of in- come if it has been going on for an unreasonable time.^ For, though equity will not usually interfere where a definite period is lixed during which the income is to accumulate, or where the trustees have an uncontrollable discretion to determine whether sufficient income has accumulated or not, still if, by reason of the rapid increase in value of tlie property in trust and the negligence of the trustees in expending the income as directed, the fund is increasing at an exceedingly rapid rate, a court of equity will order the application of principal and in- come to the charitable purpose indicated, or to some other pur- pose cy jpres} 1 Brown v. Yeall, 7 Ves. 50, n., cited in 9 Ves. 403, 406, 10 Ves. 27, 584; Northampton v. Smith, 11 Met. (Mass.) 390 (accumulation for sixty years); Woodrufif v. Marsh, 63 Conn. 125, 26 AtL R. 846 (one hundred years). A direction in the will of Benjamin Franklin that the income of a fund devised therein should ac- cumulate, and at the end of one hun- dred yeai's shovdd be given to the city of Philadelphia for public works, was sustained in Franklin's Adm'r v. City of Philadelphia, 13 Pa. Co. Ct. R. 241, 2 Pa. Dist. Ct. R. 435, 9 Pa. Co. Ct. R. 484. ' ^Ingraham v. Ingraham, 169 111. 432, 451, 48 N. E. R, 561; In re Len- nig's Estate, 154 Pa. St. 209. 25 Atl. R. 1049; Whitman v. Lex, 17 S. & R. (Pa.) 91; Philadelpliia v. Girard, 45 Pa. St. 1; Odell v. Odell, 10 Allen (Mass.), 1, 6, 7, 13 et seq.; Harbin v. Masterman, 7 Rep. 159, (1894) 2 Ch. 184, L. R. 12 Eq. 559; Talbot v. Jevers, L. R. 20 Eq. 355; Roger's Estate, 179 Pa. St. 609, 36 Atl. R. 340. 3 Wardens of St. Paul's Church v. Attorney-General, 164 Mass. 188, 41 N. E. R. 231; Woodruff v. Marsh, supra. * American Academy v. Harvai'd College, 12 Gray (Mass.), 582; Hawes V. Humphrey, 9 Pick. (Mass.) 350, 355, 362; Hawes Place Con. Soc. v. Hawes Fund, 5 Cush. (Mass.) 454. If the ac- cumulations are to cease during the life of a person in being or at his death, no question of a perpetuity can be raised. Ingraham v. Ingra- ham, 169 111. 432. 450, 48 N. E. R. 561. A devise in trust for a charitable purpose, to take effect when a suffi- cient amount shall have been sub- scribed by the general public, is not void as a perpetuity; nor is it too vague. A reasonable time will be allowed for the subscription, to be de- termined on all the circumstances by a covu-t of equity as having juris- diction of trusts and charities, as the performance of this condition is precedent to the absolute vesting of the executory gift. Almy v. Jones, § 902.] PERPETUITIES AND KEMOTENESS OF VESTING. 13S3 IT R. I. 265, 21 Atl. R. 616. A provis- ion that income shall be accumu- lated, and that half sliall be paid to charities and the other half to A. and his heirs, though valid as to the charities is void as to the individu- als: but, as it is severable, it may be sustained as to tlie former, while overthrown as to the latter. "Ward- ens of St. Paul's Church v. Attorney- General, 164 Mass. 188. 41 N. E. R. 231; Harbin v. Masterman, 7 Rep. 159, (1894) 3 Ch. 184. "We are not prepared to say that accumulation for a charitable purpose can in no case be allowed for a fixed period of more than twentj'-one years, or for a contingent period beyond a life or lives in being and twentj'-one years afterwards. The uncertain duration of a life or lives in being would seem to have no relation to a charity. And the justice or policy of a rule is not apparent, which would prevent a person charitably disposed, but whose property is not large enough to carry out his charitable intent by an accumulation of twenty-one years, from founding a charity, ex- cept through the indirect measure of a life or lives in being; especially wlieu the period of accumulation which he needs or selects is one within the avex'age duration of accu- nmlation under the common rule. The objection that accumulations for a charitable purpose might go on in- definitely, unless governed by the common rule, would certainly be en- titled to grave consideration before determining what the limit is. It is possible that the power of a court of chancery over charities might en- able it to so modify the donor's par- ticular directions as to carry out his general charitable intention with- out violating any rule of public pol- icy." Odell V. OdeU, 10 Allen (Mass.), 1, p. 13. CHAPTER XLY. THE UNCERTAINTY OF THE LANGUAGE AND THE ADMISSI- BILITY OF PAROL EVIDENCE. § 903. The uncertainty of testament ary dispositions — Tlie de- gree of certainty required. 904. The invalidity of a bequest or a devise of an indefinite amount or quantity. 905. Gifts which are void because of an uncertainty of the beneficiary. 906. Wlien a gift of what may re- main after a void gift is invalid for uncertainty of amount. 907. Construction of gifts to be en- joyed by several in succes- sion. 908. Parol evidence of the actual intention of the testator not contained in the will is inadmissible if introduced solely for the purpose of in- fluencing the construction of the testator's language. 909. Pai-ol evidence to show the circumstances of the tes- tator. 910. Patent and latent ambiguities defined — The admissibility of parol evidence to explain latent ambiguities. 911. The admissibility of parol evi- dence to identify the sub- ject-matter of a legacy. 912. Parol evidence to show mis- takes and supply omissions. 913. Parol evidence to explain tlie meaning of words. 914 The uncertainty of terms de- scriptive of real property. § 903. The uncertainty ot testamentary dispositions — The degree of certainty required. — The informal or formless character of the language of a will, its lack of verbal precision and perspicuity, and the fact that the testator, either because of ignorance or haste, has paid little or no attention to the Bules of grammar or literary composition, are not, per se, valid objections to it. The law does not permit the ignorance of the testator, or his inability to use language correctly, to defeat his will. It overlooks grammatical and orthographical errors, mis- takes in punctuation,^ and the rude and uncouth style in whicli his intention is stated, if that can be ascertained. Courts of con- struction ought to favor the wills of testators who, though per- haps mentally unfitted for the task, have, without professional assistance, attempted to make their own wills. Be the languagef 1 Ante, g 3G9. § 903.] rXCERTAIXTY OF LAJS'GUAGE TAROL EVIDENCE. 13S5 of the will ever so perplexing, elliptio||i and vague, the court must, with patience, construe it, accepling all the light which may be gained from the context and from evidence of surround- ing circumstances.^ The testator may, with safety, be presumed to have had some intention in mind as regards the disposition of his property loheii writing his will. And it may also be as- sumed that the testator did not. desire to die intestate or he would not lave made any will at all. The court may mould the language of the will by omitting,- transposing ' or supplying words,* where this is possible by referring to the context. And, if by this means or by means of parol evidence, it is possible to give an intelligible meaning to the language of the will, the court ouo-ht to arive it that meaninir. It must be an extreme case in which a court can relieve itself from the responsibility of construing a will by declaring it to be void for uncertainty. For testamentary language ought to be declared void for un- certainty, onl}^ when from the whole will, with all admissible parol evidence, it is mere conjecture to say what the testator means by the words that he has used. The fact that the testator uses language which is susceptible of more than one meaning ought not to deter the court from placing a meaning upon his language, though all the significa- tions which are attached to the lanfi-ua^-e are diverse. In the interpretation and construction of wills the precise and literal meaning of words is not always to be adhered to. The court must from the whole will try to ascertain^ not what the language ougld to mean., but what the testator has employed it to mean in the particular will. But where for any reason the provis- ions of a will considered in its entirety are so obscure that, witli all the light of extraneous circumstances, no definite idea can Ije formed of the intention of the testator, its provisions, so far as they are obscure, are void for uncertainty.^ This is a last resort, and it sliouhl be avoided until the confines of legitimate construction luive Ijcon reached, and to proceed farther would be to enter upon the realm of conjecture. Though it is allowable to invoke every means c»f liiidiiig the ' VoHt, % 009. 6 Cope V. Coi.c. ^:^ Ohio St. 104, 15 "^Anlc, S :Uil. N. K li. 200; RotliiimlcT v. Meyers, 4 ^Anle, %•}, \mi, :{03. Uea (S. C.) 215. *Anlr, g.^ :}0:i, :}0y. 13S6 LAW OF WILLS. [§ 904. intention, it cannot be permitted to gness at the intention; for it shonUl l)e i-emenibered that, thougli tlie hiw will foster and protect the statutor}'' right of the testator to make a will, and the vested interests of the beneficiaries under it, it Avill none the less sedulously defend the rights of those who would take the property in case of intestacy. Thus, it has become a maxim in the construction of wills that the heir is not to be disin- herited unless by express words or necessary implication. And in modern times and in the American courts the same protec- tion is thrown around the rights of those who take personal property under the statute of distribution.^ § 9(U. The invalidity of a bequest or a devise of an in- definite amount or quantity. — A testamentary gift of an in- definite amount of money or of an indefinite quantity of land is void for incurable uncertainty when neither upon the face of the will, nor by the aid of admissible parol evidence, can it be ascertained how much land or money the testator intended to iDunlap's Appeal, 116 Pa. St. 500, 9 AtL R. 936. " We ought not, with- out absolute necessity, to let our- selves embrace the alternative of holding a devise void for uncer- tainty. Where it is possible to give a meaning vre should give it, that the will of the testator may be oper- ative; and where two or more mean- ings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than the other before we reject the whole. It is true the heir at law sliall only be disinherited by clear intention; but if there be ever so little reason in favor of one con- struction of a devise rather than any othei', we are at least surer that this is nearer the intention of the testator than that the whole should be void and the heir let in. The cases where courts have refused to give a devise any effect on the ground of uncer- tainty are those where it was quite impossible to say what was intended or where no intention at all had been expressed, rather than cases where several meanings had been suggested and seemed equally entitled to the preference. On this head it may be furtJier observed that the difficulty of arriving at a conclusion — even the grave doubt which may hang around it — certainly the diversity and the conflict of opinions respect- ing it, and tlie circumstances of dif- ferent persons having attached dif- ferent meanings to the same words, form no ground whatever of holding a devise void for uncertainty. The difficulty must be so great that it amounts to an impossibility; the doubt so great that there is not an inclination of the scales one way, be- fore we are entitled to adopt the con- clusion. Nor have we any right to regard the discrepancy of opinion as any evidence of uncertainty, while there remains any reasonable ground of preferring one solution to all the rest. The books are full of cases where every shift, if I may so s[)eak, has been resoi-ted to rather than hold the gift void for uncertainty." By Lord Brougliam in Doe d. Winter v. Perratt, 6 M. & G. 359. §904.] rXCERTAINTT OF LA^'GUAGE PAKOL EVIDENCE. 13S7 give. "Where the testator directed that a person whom he names should '■^ share hi his estate," not stating how much he should receive as a share ;^ that A. should be "provided with a home ; " - or where he devised to A. " a small jnece of land; " ' or gave to B. '■'■ some of his lest linens; "* or directed his exec- utor to " purchase for C. some land at a price not to exceed $ ," ^ the legacy or direction was held void because of its uncertainty as to the amount. But a direction that A. shall have power " to appropriate to herself absolutely such parts of the plate as she may wish " is not void as uncertain, for it is an absolute gift to A. of all the testator's plate.® Where tlie amount of a pecuniary legacy or the quantity of land devised is capable of ascertainment, either from a perusal of the will by the court or by extrinsic evidence, the will must be sustained. This rule of construction is frequently applied to a direction for the support of a legatee by the executor out of the income of a fund in trust, where the precise amount of the income which is to be used for this purpose is not men- tioned. The trustee will be required in this case, if he has no discretion exjpressly conferred upon him, to furnish the bene- ficiary with a support and education commensurate with the income of the amount in trust for the purpose according to the social condition of the beneficiary. If the trustee has a discre- tion to fix the amount to be paid for support, he must exercise it in good faith according to the language of the will and the facts of the case; and, if he does not do this, a court of equity may intervene, and, either by construing the will or by other means, find out how much is required to carry out the inteu- 1^471^^,^.320. death. Jolinson v. Goss, 13S Mass. "^ Ante, % 318. 433, 435. See I'urther as to the power ' Weatherhead v. Sewell, 9 Humph, of a le;;atee to select, Ilobson v. (Tenn.) 272. Blackburn, 1 My. & K. 574; Ja<'tiues ♦Peek V. Ilalsey, 2 P. W. 387. v. Cliambers, 2 Coll. 441, 453; Millanl 5 In re Traylor's Estate, 81 Cal. 9, v. Bailey, L. R. 1 Eq. 378. "Unto my 22 Pac. It 297. all my just debts and demands ail '' Arthur V. McKinnon, L. R. 11 Ch. my funeral and buryin^j costs (ii-st D. 3M5, W. N. (1H79), p. 93; Kennedy balance to S. K. my brother my V. Kennedy, 10 Han*, 4.35. A be(juest mntln'r and J. M. to have thi'ir main- of "on^,' viDrlijiKji'/' entitles the Iet;a- tenc«! and burying; char^^esout of it," tee to select one otit of sevf-ral mort- is void for uncertainty. Kelly v. gages owned by the testator at hi.s Kelly, 25 I'a. St. 400. 13S8 LAW OF WILLS. [§ 904. tion of the testator regarding tlie character of the supi)ort which is to be furnished.^ On the other hand, a legacy of the "same amount as liad been given in the will of A.,"- a direction to spend income for the purpose of giving a legatee a " liberal education," ' a leg- acy of a swn equivalent to the rent of a certain piece of land,* or of an amount which is to be determined by the number of shares into which a residue is to be divided, or a direction to executors that they shall retain out of the estate a " reasonable sum to remunerate them for their trouble," ^ or a legacy of "£3,000 or thereabouts,"^ is not uncertain, for in each and all of these cases the amount can be positively and definitely ascertained, either by a reference to the will itself or to com- petent written evidence. So a direction to a trustee to pay "taxes and legal assessments" out of the income, to "keep premises in repair, and to pay the balance of the income to A.," is not void for uncertainty, for it is easy for the trustee to approximate how much will be required for the purposes men- tioned, and, if more than enough is reserved for taxes, repairs, etc., the surphis may be included in the next payment of in- come to the beneficiary.^ 1 Forbes v. Darlins:, 94 Mich. 621, 54 2 Stevens v. Powys, 1 De Gex & J. N. W. R. 621 ; Conover v. Fisher (N. J. 24, 32. Eq., 1898), 36 Atl. R. 948; McKenzie ^ in re Atwoods Estate, 82 N. Y. V. McKenzie, 145 Mass. 577, 15 N. E. Supp. 115, 10 Misc. R. 480. R. 88: In re Keinz's Estate, 88 Hun, 4 R^^h v, Couchman, 92 Ky. 339, 298, 34 N. Y. S. 339; Collister v. Fas- 17 S. W. R. 1020. sitt, 48 N. Y. S. 792; Pride v. Fooks, & Jackson v. Hamilton, 3 Jo. & Lat. 2 Beav. 430, 437. In Broad v. Bevan, 702. 1 Russ. 511, the legatee was com- ^ Oddie v. Brown, 4 De Gex & Jo. manded "to provide for the daughter 179. of the testator during her life," and ^ In re Wordin's Estate, 64 Conn, the court of chancery fixed tlie 40, 29 Atl. R. 238. A testator gave amount which was to be devoted to A. the " use and control of the two this purpose. Where a will directs east rooms of his house, and a horse that a " liberal support " shall be fur- and buggy, and if the horse sliall nished, the court, on reviewing the die the executors to buy another for facts, and considering the amount of her," and directed the executors " to the income and the value of the es- give A. a decent support during her tate, may determine what a "liberal natural life." The provisions as to support " is. McLean v. Thomas, 159 the horse and the '' decent support " III. 227, 42 N. E. R. 788. See also were certainly extremely indefinite. Cresap v. Cresap, 34 W. Va. 310, 12 The court held that A. was entitled S. R R. 327. to medical attendance and other ex- § 905.] UXCEKTAIXTT OF LANGUAGE — PAROL EVIDENCE. 1389 A legacy of an amount differently stated will be construed most favorably to the legatee. Thus, he Avill take the largest sum where the legacy is of an amount " not exceeding §100," ^ or " of $50 or SIOO." ^ And where the amount of a legacy is expressed by the dollar sign, followed by the figure 5, and this is followed by two ciphers connected together, with a dis- tinct space but no decimal point between the figure and the ciphers, the ciphers being also written somewhat above the line, an ambiguity exists which permits the introduction of parol evidence to aid in determining whether §5.00 or §500 was meant by the testator.^ § 905. Gilts Avliich are void because of the iiiieertamty of the beneficiary. — If the court cannot, from a study of the context of the will, or by parol evidence, identify the persons intended to be benefited, so that it is utterly impossible to as- certain who is meant to take, the will must be to that extent void for uncertainty^ and the testator is intestate. A legacy to '"'• one of the sons of A." who has several sons at the date of the execution of the will,* or to the children of " a deceased son of A." who had three deceased sons at the date of the will, all of whom left children,-^ is void for the obvious reason that no court can tell which son is meant.^ But a de- vise to " one of the sons of A. who shall take care of i?." is not void for uncertainty, for the gift is readily made certain by the performance by a son of A. of the condition precedent upon which it is given.'^ This rule applies to a legacy " to one of A.'s daughters that shall marry a Norton," which means the daughter of A. that shall first marry a Xorton.^ Gifts to indefinite and fluctuating classes are not necessarily void, thougli the gifts are not/»<^/' se charitable, where it can jienses attendant upon her illness, zgeale v. Seale, 1 P. W. 290. and that, if the hor.se was sold by ''Schlottnian v. lloirnian (Miss., the executors to meet these expense.s, 1890), 18 8. K. 89:3. the executors should purchase an- < Strode v. Russell, 2 Vern. (1708), other for A. The legatee wa.s not 621, 024; McDeriiiott v. Insurance compelled to remain in the rwjnis Co., 'i Serg. & H. (Pa.) 007. set a|)art for her, and might demand *In re Stcplienson, 00 L. J. Ch. 93, a decent support, though she should 1 Ch. (1897 1. 75, 7r> L. T. 19"). reside elsewhure. Hurt v. Hart, 81 "See Dowset v. Sweet, .\ml). 17."i. Ga. 78.',, 8 S. K. It 182. " Whitt-si.leH v. Whitusidcs, 28 S. C. ' Thompson v. Thompjion, 1 CcjII. ;J2."), :{;n. ."> ,S. R K. n16. 895. M'.at.- V. .\nili.Ts(. '!". Ravm. 83. 1390 LAAV OF AVILLS. [§ 905. be ascertained b}^ parol "who are the members of the class. Gifts to the rehitives of the testator or to members of his fam- ily are valid. ^ But a devise to " my brother's and sister's fam- ilies " is void because it is impossible to ascertain, wliere tlio testator has several brothers and sisters, which of them was meant." A gift to a class described by words referring to an- other part of the will, in which they are not mentioned, is not thereby void, as the words of reference may be rejected. Thus, legacies " to my nephews and nieces aforesaid,'''' ^ " to my said children last mentioned,''^ * or to " such children of A." upon his death,^ are valid, although the members of the class were not mentioned in any way in another portion of the will.^ All nephews or children take as members of the class. So, too, a legacy to a class, excepting one member Avho is not named, goes to all the class.'^ A devise to A. or to B., in the alterna- tive, may be void for uncertainty, unless it shall appear that A. and B. are to take in succession, or that '• or " should be read " (znfZ," in which latter case they take as co-tenants. Thus, a devise of land " to the heirs male of any of my sons or next of kin " was regarded as of doubtful validity, i'or it is impossible to tell whether the testator meant the heirs male of one of his sons or of all of them, or the heirs male of his next of kin.^ So, too, a devise to " A., who resided at B. w^hen I left Eng- 1 Ante, % 585. 4 Hall v. Hall, 123 Mass. 120, 124. 2 Doe d. Hayter v. Joinville, 3 East, 5 Hope v. Potter, 3 K. & J. 206. 172,176(1802). Seeajife, g 585. Under ^^ devise to the "said last men- the following provisions for families tioned A., B., C. and D." does not con- it was held that the testator meant stitute a devise to D., who was not the children of the sister named to mentioned in any part of the Avill. participate, that he also meant to Hyatt v. Pugsley, 23 Barb. (X. Y.) 285. group the legatees in families, and " The appointment of " one of my that the legatees took per stirpes, sisters to be my executrix," tlie tes- " The other half of R., and a claim I tator having three sisters living at have against the government of the the date of the will (In re Blackwell, United States, I think is about one L. R. 1877, P. D. 72), or of " any two hundred thousand dollars. These of my sons to be executors," is in- two amounts, or halfs, I intend to valid (In re Baylis, 2 Sw. & Tr. 613, give to the families of my brother 614) as incurably uncertain. A de- Thomas H. Allen's four children . . . vise to A., B. and C. as individuals, and to the five children of my sister but " one to be the heir of the others," Cynthia A. Smith." Succession of is uncertain and void. Wood v. In- Allen, 20 S. R. 193, 48 La. Ann. 1036. gersole, 1 Bulstr. 61, Cro. Jac. 260. 3 Campbell v. Bouskell, 27 Beav. s Beal v. Wyman, Styles, 240. 325, 329. § 905.] "UNCERTAINTY OF LAXGTJAGE PAROL EVIDENCE. 1391 land, or to bis heirs, executors or assigns," was held void Avhere A. died in the life-time of the testator, the words being alto- gether too uncertain to show that the testator intended the heirs to take b^' substitution.' AVliether a gift in the alterna- tive to the " heirs or next of kin of A." is void for the uncer- tainty of the persons who are to take, has been differently de- termined. In an early case- such a gift was held void, for in England the person who takes the real estate as heir is almost always a different person from those who take the personal property under the statute of distribution. On the other hand, a gift of jpersonal estate to the " heirs or next of kin " of a person who was described by the testator in the will as deceased was held to indicate the statutory next of kin.^ Some uncertainty may arise from a loose employment of the words " named " or " mentioned." To name means almost always to be mentioned by name. But where a testator di- rected that a surplus is to be divided among the legatees " here- inbefore named," and, if there was a deficiency, a deduction, should be made from the shares of all the legatees named, the direction is applicable not only to legatees who are mentioned by their Christian names or by their surnames, but also to those who take as members of classes, as heirs and next of kin.* So a gift to persons " /«?/'e/r^/b;'e namecV may mean and include persons mentioned by some designation other than their Chris- tian name and surname, if such clearh'' be tlie intent of the testator,^ "Where the testator gave a legacy to his relations " hereafter mentioned^'' and omitted to mention any in the will, the claims of his next of kin to legacies were not allowed.^ " Hereinbefore named " usually means named as a legatee. But where the testator gave a legacy of one dollar to A. and B., children of my brother C, and the remainder to the '-''heirs of the testator not before named,'''' the brother C. was included 1 White V. Templar, 2 Sim. 524. sons in hospitals of or in tlio city of '-'Ixjwndcs V. Stone, 4 Ves. C48. 050. Ciintc'rl>ury was hokl void upon the •'In re Tliornpson, L. K. 9 Ch. IJ. itrinciiilcs statcil in the text. Flint 007, OO'i, 2 Kee. & J. T-V). And in one v. Waricii. l.") Sim. «'J(5, 021). casfi a gift to A. or her children was * Ivu-xglcs v. Kandall (Conn., 1897), read to "A- and her chihlren," and W Atl. K. hh."). 88K. the gift held certain and valid, the ''Seale-llayno v. Joihcll, Gl U J. devisees taking as a class. Eccard Cli. 7U. 72; (1891) Ch. ;{UI. V. Brooke, 2 Cox, 213. A gift to i)er- M'lanipton v. Wi.se, 58 1^ T. 718. 1393 LAW OF WILLS. [§ OOG. amono" the Icfi-atccs not before named. The namino' of C. was merely to identify his children, and, where C. died after his legacy vested, his heirs were permitted to take by descent from liiin, including- the two children A. and B. to whom merely nominal gifts had been given.^ § 1)06. IVhcn a gift of wliat may remain after a void gift is invalid for uncertainty of aiuouut. — A legacy of the resi- due, or of what remains after another legacy is paid, the amount of which latter is to bo determined by the trustees of the fund, by executors, or by the circumstances of the case, may fail for uncertainty because of the failure of the first legacy. If the testator has not pointed out how much is to be included in the first legacy, and it fails because its object is illegal as well as its amount indefinite, there is no way open for a proper as- certainment of the amount of the probable surplus. In strict- ness of lano-uao^e, when the first legacy fails there is then no surplus. So a gift of a sum of money in trust for the purpose -of erecting or purchasing a chapel, and, if any surj)lus re- Qnains, then to ])ay it to A., was held void in toto by the court, because the direction as regards the chapel was in contraven- tion of the statute of mortmain; and, this legacy failing, no surplus existed, as it could not be inquired into by the court how much the testator wished his trustees to expend for the chapel, which would be necessary in order to ascertain the amount of the probable surplus which the other legatee was to take.' 1 Klein v. Faulstich, 154 Pa. St. 188, the congregation to be expected 26 Atl. R. 218. A clause directing thei-ein, but the gift in question was the disposition of property "herein- so entirely indefinite it was quite before given" cannot apply to prop- uncertain what the residue would ■erty given by subsequent clauses, have been." See also the nearly sim- Reid V. Walbach, 75 Md. 205, 23 Atl. ilarcaseof Attorney-General v. Hinx- R. 472. man, 2 Jac. & Wal. 272. The rule in 2 Chapman v. Brown, 6 Ves. 404, the text has been applied in England 410. The court said that it was im- to that class of cases in which the possible "to frame any direction that testator has directed the trustees of wovdd enable the master to form any a fund devised in perpetuity to erect idea as to what would have been a monument for himself and family, proper to expend upon the chapel, or to keep his grave in repair, which If the testatrix had jwinted out any is void as not being for a public char- particular place, that might have itable purpose and a disposition of furnished some gi'ound of inquiry as the surplus to others. See cases cited to what size would be sufficient for ante, § 823. § 90G.] UKCERTAINTY OF LAXGL'AGE — -PAROL EVIDENCE. 1393 This would be the rule Avhere the terms of the void devise are so extremely vague that it is practically impossible to learn, even approximately, how much the testator wished to devote to the carrying out of the void purpose, provided it had been valid. But, on the other hand, if the expression of the inten- tion of the testator regarding the sum of money which is to be expended upon the object which ultimately proves illegal is clear, or if it can be made clear by a reference or other judi- cial inquiry involving the taking of evidence, or if from the terms of the will itself the court is able to ascertain the amount which would have been expended if the purpose had been a legal one, the amount of the surplus, having thus been made certain, should be paid.^ But this rule, though commending it- self to reason as best adapted to carry out the testator's inten- tion, has not met with universal acceptance in the English cases in which the question of the disposition of a surplus to arise after a void and indefinite gift has failed has been dis- cussed. In cases where the courts might ver}' easily, because of the nature of the disposition made and the property disposed of, have ascertained the amount of the surplus, they have re- fused to do so; but where the first gift was illegal or invalid for any reason whatever, they have held that the whole fund shall be paid to the legatee to whom, in the first instance, the surplus had been given, wholly discharged of the void purpose.- In most cases such a new disposition of the whole fund in favor of the person to whom only the surplus had originally been given is directly contrary to the intention of the testator. If the general residue is paHialhj devised for a purpose 'which fails, and the surplus of that residue is given to A., it may be con- sistent with the intention of the testator to give A. the whole general residue, including the void legacy, as the word "resi- due" comprises everything ineffectually disposed of by the will. • Mitfonl V. Reynolds, 1 riiil. 18"), its use wliich are re;isoiial)ly delinito 199, 700. If the testator lias indi- in so far as they entail an expendi- cated thfijtrcciHc. sum he wishes given tureof money, the surplus can readily for the illef^al imr[Kwe, there can, of be ascertained by an inquiry, course, 1x3 no dilliculty whatever in - Fisk v. Attornev-(Jeiieral, Ij. R 4 ascertiiinirif^ the suii)lus. If he has Kr|. rt'Jl: In re liirkctt, L. K. 9 Ch. htated the particular jiiece of land Div. 57(1; In re \Villianis, L. li. 5 Ch. which he desires to have purchased. I)iv. 'I'-i'). and liaa also given instructions as to 88 1304- LAW OF WILLS. [§ 907. But whore the testator gives a general pecuniary legacy in part for an illegal purpose, and the surplus to A. after the illegal purpose shall have been accomplished, it is nullifying his in- tention to give A. the entire legacy, when, if the particular pur- pose had been valid, he would have received very much less, and perhaps nothing at all in case its execution had exhausted the legacy.' If the amount for the invalid purpose is not as- certainable, so that no surplus arises, the whole legacy should fail and go to the residuary legatee. It is absurd to assume that, because the testator intended A. to share in it more or less according to circumstances if the particular purpose had been valid, he meant him to take the whole of it in case the pur- pose for whose execution no sum is stated should be impos- sible of accomplishment. § 907. Construction of gifts to he enjoyed by several in succession. — An objection, based upon the indefinite and un- certain character of the language, may be raised in the case of a gift to several persons, to be by them enjoyed in succession. If the legacy or devise is to several individuals specifically designated by name or otherwise, each to have a life estate, whether expressly or by necessary implication, as " to A., B., and C, for the life of each," the obvious solution of the diifi- culty, and one which approaches most closely to the probable intention of the testator, is for the several beneficiaries to take estates for life in order of time as their names are written in the will by the testator. But where the property is given to a class, or to an indi- vidual named, and also to a class of which he is a member, to be enjoyed in succession by all the members of the class, the order of succession is to be deteriliined by seniority of age; at least in the case of gifts to sons, children or brothers as classes. So, where the provision was for A. and his brothers successively, and A. was the oldest son and heir, the court held he should take first in order of time, and after him his brothers according to their age.' Such a mode of disposition, made in 1 Fisk V. Attorney-General, siipra. to institute an inquiry, but gave the In re Birkett, supra, and Dawson v. wliole sum to A. discharged of the Small, L. R. 18 Eq. 14, were devises invalid legacy. But compare contra, of a specific sum in part for an in- Fowler v. Fowler, 33 Beav. 616. valid purpose and the surplus to A., ^Ongley v. Peale, 2 Lord Raymond, and in each case the court declined 1313. § 90S.] UXCERTAINTT OF LANGUAGE PAEOL EVIDENCE. 1395 order to avoid an invalid devise because of uncertainty, may appropriately be made in England, where the rule of primo- geniture is established, though a similar devise would perhaps be void in the United States. Eut, on the other hand, a devise to A. for life, then to B. for life, and then to the next heir of the testator in succession for his life, was held void as to all life estates coming after B.'s.^ § 908. Parol evidence of the actual Inteutiou of the testa- tor not contained in the will is inadmissible, if introduced .solely for the purpose of influencing the construction of the testator's language. — The statute requires all wills, with im- material exceptions, to be in writing. As the statute impera- tively requires the intentions of the testator to be in writing, we cannot receive evidence which is extrinsic to the writing to contradict, vary, supplement or enlarge the signification of the written language which the testator used. The testator will, unless a contrary presumption is created by the context, be pre- sumed to have used the words in which he expresses himself in his will in their strict and primary sense and application. If, on comparing the language of the will with the extrinsic cir- cumstances of the person and property of the testator, which the court always has the right to inc^uire into, it shall appear that the words of the testator have an intelligent meaning and express an intention which can be carried out, it is not permis- sible to receive parol evidence to show that they possess some other and a different meaning. The testamentary intentions of the testator must be learned in all cases from the will itself. And though the exclusion of parol evidence of the intention of the testator is rather more rigid at the present day than in earlier times, the rule of exclusion is very old, haviug an origin contemporaneous with the introduction of written wills, and being in the first instance intended for the su])prcssion of per- jury and the prevention of fraud.- 1 Tliomason v. Moses. 5 Be:iv. 77. Bevelot v. Lestrade, 15:i 111. 025, 38 N. 2Stratton v. Morgtin (Cul., 18%). 44 W. R. lO.lC; Heslop v. Gatton (lUlli), Pa& R. KK'H: SpaMiiig v. Huiitiiif,'- 71 III. W8; Biownliuld v. "Winslovv. 78 tun, 1 Day (Coun., 1802). 8; Avory v. 111. 4(J7; Pocock v. R(HiciiiiKor, 108 Chappell. Conn. (1820), 270; Can- Ind. :)7:], 575 (1880): l)au;;li<); Millinjcsl<*a v. .M«jor<'. 11 (ia. ;{70; :!:!(): Donoliue v. Donohuo, 54 Kan. Whito V. Holland. J)2 (Ja. 210. IMS. K. KKJ. i:Jl», :]7 Par. K. WH; Ernst v. li. H17; Ilawkt' v. Cliicayo K. R. Co. I'<.st(>r (Kan.. 1H!(7), 4» I'ac. R. r.27; (Hi.. 1897), 40 N. E. R. 240; Lonia.\ v. All.n v. Van MfU-r, 1 Mot. (Ky.) 201: 1398 LAW OF WILLS. [§ 910. § 910. Patent and latent ambiguities defined — The ad- missibility of parol evidence to explain latent ambiguities. The competency of parol evidence to explain latent ambigui- ties in the construction of wills is admitted. A latent ambigu- ity, says Lord Bacon, is " that which seems certain and without ambiguity for anything that appeareth upon the deed or in- strument, but there is some collateral matter, outside of the deed, that breedeth the ambiguit}'." ^ A patent ambiguity is one " that appeareth to be ambiguous upon the face of the deed .or instrument." In every case the court is entitled to be placed in possession of all the information which is available of the circumstances of the estate and family of the testator when he made his will, to the end that the court may be in his situation as nearly as may be, and may interpret and understand the will as he would if he were living.- "When the evidence of ex- trinsic circumstances is all in, it may appear that a description in the will which was intended by the testator to apply to one olject or thing is applicable, with more or less certainty, to sec- eral ohjects or things. This is a case of latent ambiguity, and parol evidence is then received to ascertain which person or thing was intended b}'' the testator. "Where the ambiguity is latent, it is created by evidence of extrinsic facts, and the same evidence is admissible to remove it. But such evidence is not direct evidence of intention, and, if the rule in relation to the Smith V. Hoi den, 58 Kan. 535; Dar- 456, 31 N. E. R. 332; White v. Hicks, nail V. Adams, 13 B. Mon. (Ky.) 278; 33 N. Y. 383; Terpenning v. Skinner, Lamb v. Lamb, 11 Pick. (Mass.) 375; 30 Barb. (N. Y.) 373; Doe v. Provost, Brown v. Saitonstall, 3 Met. (Mass.) 4 Johns. (N. Y.) 61; Gannaway v. 426; Brown v. Thorndike, 15 Pick. Tarpley, 1 Coldw. (Tenn.) 572; Woot- (Mass.) 400; Waters v. Howard, 1 Md. ton v. Ptcdd, 12 Gratt. (Va.) 196, 205, Ch. 112; McHugh v. Fitzgerald, 103 207; Jones v. Quattlebaum, 31 S. C. Mich. 21; Gilliam v. Chancellor, 43 600, 9 S. E. R. 982; Cogdell v. Cog- Miss. 437; Gregory t. Cowgill, 19 Mo. dell, 3 Des. (S. C, 1811), 346, 364; In re 415; Mersman v. Mersman, 136 Mo. Gilniore's Estate. 154 Pa. St. 523, 26 244, 258; Little v. Giles, 25 Neb. 313, Atl. R. 614; Westhofif v. Dracourt, 3 41 N. W. R. 186: Goodhue v. Clark, Watts (Pa.). 240. 37 N. H. 525; Morgan v. Dodge, 44 i Bacon's Maxims, Reg. 23. "^m- N. H. 2.55; Van Winkle v. Van Hou- biguitas verborum latens verifica- teu,3 N. J. Eq.l72; Halsted v. Meeker, Hone s^ppletur; nam quod ex facto 18 N. J. Eq. 136; Paxson v. Potts, 3 oritur ambiguum verification e faeti N. J. Eq. 136; Dey v. Dey, 19 N. J. toUitur." Eq. 137; Barnard v. Barlow, 50 N. J. 2 See ante, § 909. Eq. 131; Morris v. Sickle, 133 N. Y. § 910.] UNCEKTAINTY OF LANGUAGE PAKOL EVIDEXCE. 1399 reception of parol evidence to solve latent ambiguities per- mitted the introduction of such evidence only, it would not require a separate discussion, as it would be synonymous with, the rule that extrinsic facts are always admissible to explain the lano-uao-e of the will, regardless of the nature of the am- biguity, whether it be patent or latent. The principle goes much further than this. It is not to be confined to the admis- sion of facts appertaining solely to the circumstances of the testator, and which merely tend to show the meaning of his words. Under it evidence showing or suggesting a direct in- ference of intention as to the things or objects disposed of in the will, including tlte testator s declarations of intention uttered at the execution of the will, and, according to some of the cases, subsequently thereto, are received to assist the court in dispos- ing of the latent ambiguity, by showing which of several per- sons or things answering to the description was intended by the testator. Hence it will be seen that there may be, and usually is, an essential and radical difference between the evi- dence which raises or creates the latent ambiguity, i. e., proof of extrinsic circumstances of the case, and the evidence which removes it or explains it, and which may be declarations' of the intention of the testator as well as evidence of circum- stances.^ 1 Vandiver v. Vandiver (Ala., 1897), 360, 367; Turner v. Hallowell, 76 :Me. 22 S. K. lo-l; Brewster v. McCall, 15 527, 531; Stockley v. Gordon, 8 Md. Conn. 292; Spencer v. Higgins. 22 486: Stackpole v. Arnold, 11 Mass. 29; Conn. 521; Rogers v. Rogers, 78 Ga. Morse v. Stearns. 131 Mass. 389, 3 688, 3 S. E. R. 451; Pinney v. Kevins, Am. Prob. R, 51; Marshall v. Haney. 33 Atl. R 591, 66 Conn. 141: Wliit- 4 Md. 498; Love v. Buchanan, 40 comb V. Rodman, 156 111. 116, 122; Miss. 758; Ilalsted v. Meeker, 18 N. J. Decker v. Decker. 121 III 341, 12 N. Eq. 136 (1866); Burnet v. Burnet, 30 E. R 750; Grimes v. Harmon, 35 Ind N. J. Eq. 395 (1879); Griscom v. Even.s. 246; Groves v. Gulp, 132 Ind. 186. 187; 40 N. J. Law. 402, 1 Am. Prob. R 133, Skinner v. Harrison, 116 Ind. 139. 18 137; Hyatt v.Pugsley.23 Barb. (N. Y.) N. E. R 529; Dennis v. Holsapide, 47 285; Mann v. Mann, 1 Johns. Ch. N. E. R 631, 632; Fitzpatrick v. Fitz- (N. Y.) 231; Klock v. Stevens, 45 N. jjatrick, 36 Iowa. 674; Covert v. S.}- Y. S. 6U3; Bradiiurht v. Field, 32 N. E. Jjern. 73 Iowa, .564,567,35 N. W. R R 113. 135 N. Y. 564; Worman v. 636; Dauglicrty v. Rogers, 119 Ind. Teagardeii, 2 Oliio St, 3SU; Boggs v. 254.258; Cruse v. Cunningham, 79 Ind. Taylor. 2(5 (Jhio^'St. 604; Moreland v. 402,405; Black v. Richards. 95 Ind. Brady,8Oreg.303: Senger v. Sengors 184, 189; Sturgis v. Ward, 122 Ind. 134, Ex r, 81 Vju 694-697; Hawkins v. (Jar- 136; Jackson v. Payne. 2 Met. (Ky.) land. 76 Va. 119,3 Am. Pro. R 550; 670; Cotton v. Southwick, 66 Me. Morgan v. Burrows, 45 Wi.s. 211, 217, 1400 LAW OF WILLS. [§ 010. It is not necessary, in order that parol evidence may be re- ceiveil, that tlie description in the will sliall i\\)p\j jn^ecisel'i/ and in every reiiped to two or more persons or things. In some cases where the rule has been invoked, two persons of exactly the same name, or answering precisely to the same description, have claimed.^ But the law requires only tliat the testament- aiy description shall apply to the several objects with legal certainty, so that the mind of the court is satisfied. The de- scription, whether by name, locality or occupation, must be sufficient to fairly satisfy the court that the testator may have meant either of the several persons or things which are re- vealed by the extrinsic evidence. For if the description of the person or thing be, in the opinion of the judge construing the will, wholl}'' inapplicable to the subject intended, or which is claimed to be intended, parol evidence is not received to show Avho or what the testator did intend. Thus, if a benefit is claimed by several persons, all answering the description of the will in one or more material particulars, though none of them answers to it perfectly and accurately in every particular, ex- trinsic evidence is received, including expressions of intention.- In these cases, which are extremely numerous, the description, so far as it accurately applies to any person, applies to all the claimants alike, and so far as it is inaccurate it applies to no 220; Sherwood v. Sherwood, 45 Wis. tlie brother had two grandsons by oo7, 363; Patch v. "White, 117 U. S. the name of John. So in Lord Chey- 217, 219; GiUner v. Stone, 120 U. S. ney's Case,5 Rep. 68, b,it was held that 586, 588 ; Hannon v. Mountain, 23 Fed. if a man. havinj^ had two sons named R. 5, 11. John, and believing that the elder of 1 Jones V. NewTiian, W. Bl. 60. The the two is dead, made a devise to gift was to John Cluer, of Calcot, " his son John," the younger son may and two persons answering exactly sliow his father's knowledge of the to the name and description, father death of tiie other by his declara- and son, claimed the legacy. A sim- tions. and his meaning to give the ilar case was that of a devise to " W. land devised to himself. R.. my farming man," and the testa- -'ximg^ jn Careless v. Careless, 1 tor had two men oia his farm of that Mer. 384. where the devise was to name. Reynolds v. Whelan, 16 L. J. " Robert Careless, my nephew, son of Ch. 434. In Doe d. Allen v. Allen, 13 Joseph Careless," and the testator Ad. & E. 451, M-liere the devise was had no brother Joseph, but he had to "John A., grandson of my brother two brotliers John and Thomas, both Thomas," the declarations of the tes- mentioned in the will, each of whom tator were admitted to show which had a son named Robert, parol evi- grandson was intended, though made dence of extrinsic facts and declara- loug subsequent to the will, where tions of intention was received. § 911.] UNCERTAINTY OF LANGUAGE PAROL EVIDENCE. llUl one. Tender this class of cases may be ranged those of the mis- nomer of a charitable corporation.^ § 911. The adniissibility of parol evidence to identify the subject-matter of a lei^acy or devise. — The testator, in describ- ing the property of which he disposes in his will, must, of neces- sity, employ terms which suggest or im[)ly an existing condition of affairs. The words of his will always siujgest facts and cir- cumstances which are exti^insic to it^ and things that are not, and cannot be, identified by anything contained in it.- If he describes his property somewhat vaguely or generallj^, parol evidence is necessary, not to contradict the meaning of the words, to add to or to overcome his express intention, but to confirm and elucidate that intention by showing what the Avords mean. Thus, in the common case of a devise of a " house," ' or of a " farm," * or of land of any sort described as " noio occujned " by the testator,^ or a devise of my '• home- stead," "home place," or home farm,"^ or a devise of land ^Ante, % 831. The leading English case upon the question of the admis- sibility of the declarations of the tes- tator in cases of latent ambiguities is that of Doe d. Hiscocks v. Hiscocks, 5 Mees. & Wei. 363, decided in 1839. The devise was " to the grandson of the testator, John H., eldest son of John H." Prior to the execution of the will .John H. had twice married. By his first wife he had one .son named Simon. By his second wife lie had an eldest son Jolin H. and other chiMren. The court, in reji^ct- ing parol evidence of instructions given by the testator to the draughts- man and his declarations of intention after execution to show wiiich of these two the testator meant, said: "There is but one case in wliich the testator's dei;laratioiis as evidence of intent can profHTly bi* admittnl, and tliat is whf'rethe iiifaningof tlietesta- tors words is nt'lllier aiiitAW OF WILLS. [§ 913. name of A. was stricken out of one of the clauses by the court, as the error was apparent upon the face of the will. But the name of B. coukl not be inserted on parol evidence to give him a legacy not given by the will.^ So where a fund was to be divided "among nephews and nieces A. and B. ," the gift Avas void though the testator, after mentioning nephews and nieces in the plural, named only one of each class. He left a l)lank for the purpose of inserting names, but as he never did this, the names cannot be supplied by parol.^ § 913. Parol evidence to explain the meaning of words, — A testator is, prima facie, presumed to have emplo3^ed the words in which he has expressed his intention in their strict and p>riinary sense. If, therefore, nothing appears in the context which shows that he has used them in another sense, and always provided that they possess a sensible meaning when referred to extrinsic circumstances., parol evidence is not received to show that the testator has used them in some other sense. This rule applies to technical words. Unless it shall appear from the context that the testator has used technical words in a non- technical sense, or unless, Avhen viewed in the light of the sur- rounding circumstances, the technical words have no meaning, parol evidence is not received to correct or contradict their ordinary meaning, and to show that the testator has used them with a secondary meaning.' 1 In re Goods of Boehm, (1891) Prob. Ex'rs v. Hadley, 50 N. J. Eq. 547, 25 247. Atl. R 325; Lasher v. Lasher, 13 2Greig v. Martin, 5 Jur. 329, 330. Barb. (N. Y.) 106, 109, 110; Gardner 3 Johnson v. Johnson, 32 Ala. 637; v. Heyer, 2 Paige (N. Y.), 1; Tuttle v. Appeal of Allen. 69 Conn. 702, 38 Atl. Berryman, 94 Ky. 553, 23 S. W. R. R. 701, 702; Ruggles v. Randall 345; Van Nostrand v. Moore, 52 N. Y. (Conn., 1897), 38 Atl. R. 885, 887; 12, 18; Rivenettv. Bourquin, 53 Mich. Jackson v. Alsop, 34 Atl. R. 1106, 67 10; Porter v. Porter, 50 Mich. 450; Conn. 249: AVillis v. Jenkins, 30 Ga, Rupp v. Eberly, 79 Pa. St. 141, 145; 169; Daugherty v. Rogers, 119 Ind. France's Estate, 75 Pa. St. 220, 225; 254, 260; Ridgevvay v. Lanphear. 99 Harrison v. ]\Iorton, 2 Swan (Tenn.), Ind. 251, 252; West v. Rassman, 135 251, 261; Smith v. Bell, 6 Peters Ind. 278, 290; Wheeler v. Dunlap, 13 (U. S.), 68; Given v. nilton, 95 U. S. B. Mon. (Ky.) 292 ; Osgood v. Lovering, 591 ; Hamilton v. Ritchie, (1894) App. 33 Me. 464, 469; Golder v. Chandler, Cases, 310; Mounsey v. Blamire, 4 87 Me. 63, 32 Atl. R. 784; Crocker v. Russ. 484; Shore v. Wilson, 9 CI. & Crocker, 11 Pick. (Mass.) 252; Mc- Fin. 558; Barrow v. Methold, 1 Jur. Queen v. Lilley. 131 Mo. 9, 17: Love (N. S.) 194; Crosley v. Clare, 3 Sw. V. Buchanan, 40 Miss. 748; Marshall's 320; Brown v. Brown, 11 East, 441; § 913.] XTXCEKTAIXTY OF LANGUAGE PAEOL EVIDENCE. 1407 Thus, it is settled that, wliere the testator devises his real property to his heirs^ or his personal property to his next ofhin, or to children, grandcldldren or other classes of relations, parol evidence is not to be received to show an intention on his part to include in the classes mentioned any person who does not properly belong there.- By parol evidence is here meant direct evidence of the intention of the testator, consisting of his dec- larations introduced for the sole purpose of contradicting the plain meaning of the words of his will. Thus, parol evidence of the language of the testator is not admissible to show that he has declared that his grandchild should take under a gift to children as a class ; ' that a stepchild should take under such a devise,* or that a nephew of his wife should take under a gift to his own nephews.-^ But the condition of the testator's family "would be relevant and may be proved by parol in the first ex- ample to show that he had no living children when he made the will, but that he had adopted a grandchild as his own, or that a stepchild was commonly treated as a child by him, and, in the last instance, that his wife's nephew lived with him and that he treated him as his nephew, and that he never had any nephews by consanguinity. So the meaning of peculiar words which are not in general use, or which are commonly employed in the profession or busi- ness to w^hich the testator belongs, may be exphiined by parol. Thus, where the testator, being a sculptor, bequeathed his "mods." to A., the evidence of other sculptors was received to show the custom of the pTofession, though the declarations of the testator were rejected.® So, also, if the testator employed abbreviations in his will,^ as when he was a jeweler and em- ployed his private price mark to indicate the amount of the legacies,* or where he uses words which have a peculiar signifi- cation in the particular place where he dwells, as where he Bpoaks of "his farm" or " homestead," parol proof of the fact of such u.sage, with explanatory evideuco of what the abbrovia- Phillips V. Chamhorlainp. 4 Ves. 50, <§r)40. 57; Aruln-ws v. Sfjhoppe, «4 Wis. 170, ft«^ r)!).!. 175, 21 Atl. li. 805. <•(■'(. 1)1. •( V. Piwrhoy, 8 Rim. 24, » g Ws. 7 i)a,„i V. Fidlcr. I'i N. Y. 40, 40. Mn^', ^:^T.«0. 572. 585. 591,595, 597. ■* K.'ll v. Clianiior. 2:5 Itavv. 195; ^Anli'. :::: 510, 5JH. MmsI.ts v. .Masli'i-s, 1 P. W. 421. 140S LAW OF WILLS. [§ 913 tions, private marks or peculiar words meant, will be received.^ ISo, also, parol evidence is received for the purpose of showin<^ who was meant by the testator where he has employed a pet name in his will to describe a beneficiary.^ In all these cases this evidence is competent, not to show directly the person or thing that the testator intended in this particular case, but to illustrate his habitual modes of speech and thought, leaving the court from these circumstances to ascertain his intention.' 1 Scott V. Neeves. 77 Wis. 305, 311; Oades v. Marsh (Midi., lSi)7), 09 N. W. R. 251; Schlottinan v. llott'man (Miss., 189G), 18 S. R. 893: Ryers v. Wheoler, 23 Wend. (N. Y.) 152. 248; Wangh v. Waiigli, 28 N. Y. 9: Boggs v. Taylor, 26 Oliio St. 516; Hart v. Marks, 4 Brad. (N. Y.) 163. 2 Clayton t. Lord Nugent, 13 Mee. & Welsby, 200, 207; Price v. Page, 4 Ves. 679." 3 An example of this occurred in Lee T. Pain. 4 Hare, 251. The testa- tor gave legacies to '• Mrs. and IMiss Bowden, widow and daughter of the late Mr. Bowden." It appeai'ed that two persons named Mrs. and Miss Wash bourne, the widow and daugh- ter of a Mr. Washbourne. were en- titled to these legacies, and that the testator was in the habit of calling these ladies Bowden for the reason that he had been intimately ac- quainted with the father of Mrs. W., ^vhose name was Bowden. The fol- lowing remarks of Lord Abinger. ■uttered in determining the case of Doe d. Hiscocks v. Hiscocks, 5 Mee. & Wei. 363, 367, have been often quoted as a most lucid summary and explanation of the doctrine of the application of parol evidence to the construction of wills: "The object in all cases is to discover the inten- tion of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. But as his words refer to facts and circumstances respecting his prop- erty and his famih'. and others wliom he names or describes in his will, it is evident that the meaning and ajjpli- cation of his words cannot be ascer- tained without evidence of all those facts and circumstances. To under- stand the meaning of any writer we must first be apprised of the persons and circumstances that are the ob- jects of his allusions or statements; and if these are not fully disclosed in his work, we must look for illustra- tion to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or projjerty to which the will relates are undoubt- edly legitimate and often necessary evidence, to enable us to understand the meaning and application of his words. Again, the testator may have habitually called certain persons or things by peculiar names, by which they were not commonly called. If these names should occur in liis will they could only be explained and construed by the aid of evidence to show the sense in which he used them, in like manner as if his will was written in cipher or in a foreign, language. The habits of the testator in these particulars must be received as evidence to explain the meaning of his will. But there is another mode of obtaining the intention of the testator, which is by evidence of his declarations of the instructions given for his will, and other circum- stances of the like nature which are § 014.] UXCEKTAINTY OF LANGUAGE — PAROL EVIDENCE. 1409 § 914. The nncertaiiity of terms descriptive of real prop- erty. — Uncertainty as to the subject-matter frequently arises in devises of real property. First. Either because the descrip- tion of the land in the will does not precisely correspond with not adduced for explaining the words or meaning of the will, but either to supply some deficiency or to remove some obscurity, or to give effect to expressions tliat are unmeaning or ambiguous. Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor ob- scure, and where the devise is, on tlie face of it, perfect and intelligible, but. from some of the circumstances admitted in pi-oof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words of the will), the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally de- noted by the words he has used, in tliat case there is what Lord Bacon calls ' an equivocation,' that is, the words equally apply to either manor; and evidence of previous in- tention may be received to solve tiiis latent ambiguity, for the intention sIkjws wliat he meant to do, and when 3'ou know that you immedi- ately perceive that lie has done it, by the general words which he has used, which in their ordinary sense may properly bear that construction. It appears to us that in all other rases parol evidence of what was the ttjstator's intention ought to bo ex- cluded \i\ion this plain ground, that his will out^lit to bo made in writing, and if ids int«'ntion cannr)t bu made to ai)|K;ar by the writing cxplaiiii'd by cJrcumstancoH, there Ih no will." 80 *• I. A testator is always presumed to use the words in which he ex- presses himself according to their strict and primary acceptation, un- less, from the context of the will, it appears that he used them in a dif- ferent sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. II. Where there is nothing in the context of the will from which it is api^arent that a testator has used the words in whicli he has expressed himself in any other than their strict and primary sense, and where the words so interpreted are sensible with reference to extrin- sic circumstances, it is an inflexible rule of construction that tiie words of the will shall be interpreted in their strict and primary sense, and in no other, althoiigli they may be capable of some ])opular or secondary interpretation; and altliough the most conclusive evidence of tiie in- tention to use them in such popular or secondary sense may be tenilered. III. Where there is nothing in the context of a will from which it is api)arent that a testator has used the words in which he has expressed ium- self in any other than their strict and primary sense, but ins words so interpreted are insensible with refer- ence to extrinsic circiunstances, a court of law may loolc into the ex- trinsic cir<;umstances of the case to see whetlier tlio meaning of tlio words bo sensible in any pojuiiar or secondary sense, of which, witli ref- erence to tiiese circ'umstan«"t*s, tliey are cajialili'. IV. Where tiie ciiar- acters in wliiili a will is written are dinicult to 111! diMMphcrt'il. or the lan- guage of tlio will i.s not understood 1410 LAW OF WILLS. [§ 914. the description of any land wliich is owned by tlie testator, or f:{9. 210. to show lucid iiit|)Iy to, 1350-I361. devise for cor[ioration to be created may olfenii rule against perpe- tuities. 1361, 1362. deviw.'H over on termination of, may create perpetuities, 1301. (see PEtti'E'ruiTiifli) 1422 IXDKX. References are to pages. CHATTELS — may be disposed of without writing, 236, 241, emblements are, 412. synonymous with goods, 417, 418. derived from catalla, 418. includes choses in action, 418. rule of ejusdetn generis, 418. rule in Sheily's case is applicable to, 90G. statute of uses not applied to, 1096. CHATTELS REAL — defined, 66. governed by law of personal property, 66. leases and terms are, 67. may be bequeathed, 66. include easements, licenses and market privileges, 67. CHECK — gift of, causa mortis, 1071-1073. CHILD EN VENTRE SA MERE — operation of provision for, 765, 766. See also 746, 749. (see also Classes.) CHILDREN — of testator, means those at his death, 21. discrimination among, by testator, 145-148. their competency as attesting witnesses. 275. birth of, after execution of will revokes it, 326. effect of birth of, at Roman law, 327, 328. effect of omission of, under statutes, 328. what provision for, prevents revocation, 330, 331. parol evidence to explain omission of, 331, 332. adoption of, does not revoke will of adopting parent, 359. gift to, when dead at the date of the will, 440. as words of substitution. 476-478. legacies to, carry interest from death of testator, 579. advancements may be deducted from legacies to, 599-601. legacy to, satisfied by a portion, 592-598. gifts to, as joint tenants, 704, 705. as a word of purchase means immediate descendants, 712, 714-716. may include grandchildren, 712, 713. does not include step-children, 716. step-children are, 716. adopted children may take as, 717, 718. of different marriages, 718, 719. alive at the execution of the will, 720. described by name or enumerated, 731. class of, in immediate gifts, 721, 722. •wlien distribution is to be at majority. 722-725. distribution when youngest child attains majority, 728, 729. as a class taking in remainder, when class ascertained, 731-734, 1293, 1294, 1297, 1305-1307. gifts to children "to be born," 720, 734-736. distribution among, when per capita, 736, 737. divide equally among, favors division per capita, 737. of ])ersons named, division per stirpes, 738, 739. division per stirpes when taking by substitution, 739. distribution per stirpes when gift is to a person and the children of another, 740. number of, wrongly stated, 742, 743. devise over in case of "death without," 744-746, 869. "death without" may mean death never having had, 745. "death without leaving " may mean death without having had, 745. IXDEX. 1425 References are to pages. CHILDREN (continued) — en ventre sa mere, 743, 749. legitimacy of. presumed, 749. 750. competency of wife's evidence to prove legitimacy of, 750, 751. when creating estate tail, 8(j'^, 871, 87:2. family may mean, 779, 780. when illegitimate cliildren take as, 753-767. estate tail by implication on death " without," 744, 869. taking in place of deceased parents, 796, 798. meant b}' heirs of tiie bod}% 873. meant by gift to heirs. 817-819. take devise to heirs when equal division is directed, ^33. remainder to, as class described as heirs, 833, 833. are meant in case of "death without heirs," then over. 834, 835. rule in Slielly's case does not apply to remainder to, 870, 871, 886-888, 890-893. when issue means. 930-933. precatory trust for benefit of, 1161, 1163. power to appoint in favor of. 1163, 1176. power to appoint among, validly exercised by gift in trust for, 1177. remainder to, when vested, 1397. remainder to take effect upon death of life tenant without, 1393, 1394. remainders to, may be devested by their death, 1311, 1314. "CHILDREN" AS A WORD OF LIMITATION — equivalent to "heirs of the body." 769, 770, 863. fee simple or fee tail created. 770, 771. rule in \Vild's case applies when no children living, 771, 773. wiien children living tliev take joinlly with parent under rule in Wild's case. 773. 773, 774.' (see Wild's Case.) CHINA — passes under a bequest of furniture, 434. CHO.SES IN ACTION — may be bequeathed, 65. legatee takes title from the executor. 65. riglit of executor and legatee to sue, 66. may not pass under bequest of goods and chattels, 418. not included under bequest of movables, 419. pass under bequest of money, 431. liave no locality. 437, 438. do not pass by gift of property in a house, 437, 428. gift of. causa mortis, 1071, 1073. CHURCH — member of, as an attesting witness, 385. bo(iuest for building, furnishing and maintaining is valid charitable gift. 1199. gift to. valid, irrespective of form of worsliip, 1300. devise.^ to, for the benelit of tiie poor, 1307, 13U8. CIRCUMSTANCES — evidi'iii-e of. to sliow fraud and undue iulluence, 187-189. revocation implied from change in, 335. parol evidence to explain, 1390. CLAIMS — against testator, release of may bo required, 671. CLASS - how gifts to, vest in, 439. lapse rxjt Hj)plicab!e to, when vesting Ip postponed, 439, gift to "exL-culors above named " in a gift lo a. 111. 1-1-21 IXDEX. References are to pages. CLASS (continued) — how detenninod when legacy is immediate and when postponed, 439, 440. 712-737. 815. 817, 841, 842, remainder to, vested, 478. members of, deceased at date of execution of will, 480. substitutionary gift to cliiidron of deceased members, 480. composed of parents and cliildren, 480, 720. substitutionary gift in case of future death of member, 481, 482. take as joint tenants, 704. gift to cliildren as, in remainder, opens to let in others, 713, 731-734. when ascertained in case of cousins, 805. when ascertained in case of heirs, 814-816. in remainder preceded by life estate in a class, 848, 844. composed of two genei'ations, 720. children alive at date of will, 720. wiien legatees named, no gift to, 720, 721, note, when ascertained if devise is immediate, 721, 723. when ascertained if distribution at majoritj', 722-725. when ascertained if distribution at majority of youngest child, 725-727. special powers to divide among, 1171, 1179. devise to. with power in another to divide, 1173. illusory appointments among, 1178-1180. future estates to, of unborn persons as a, 1349-1351. may be void for remoteness, 1851-1858. contingent remainders to a, 1304-1307. when ascertained in case of gifts in remainder, 1304-1307. future gifts to surviving members of, 1305-1307. remainder to, though vested, may be devested by death of members, 1311, 1314. direction to divide land among, with and without words of gift, 1307- 1311. gifts to, not void though fluctuating. 1389. a perpetuity may be avoided by separating a devise to, 1183, 1365-1368. legacy to, to be taken by the members in succession, 1393-1395. (see Children, Heirs, Next of Kin, etc.) CLAUSE OF ATTESTATION — signature of testator after, 254. signature of witness before or after, 266. may be omitted, 275. need not be formal, 275. raises presumption of regularity of execution from, 276, 277. CLAUSE OF REVOCATION — in printed will bj' mistake, 353, 354. may not have literal application, 354 in general terms, does not revoke a power, 354. express, revokes appointment of the executor, 349. strictly construed, 338. affecting specific legacies, but not a residuary devise, 338. presumption against creation of partial intestacy, 338. must sliow present intention to revoke, 339, 310. may operate though disposing part is void, 340, 341, 355. (see also Revocation.) CLERGY — will in favor of, 4. CLOSE — defined, 404. CLOSET — bequest of contents of, 426. CLOVER — is not emblements, 413. INDEX. 1425 References ai-e to pages. CODICIL — defined, 11. immaterial that it is not attached to will, 296. may cure defective execution of will, 287, 295, 396. will need not be read at execution of, 297. must be executed as a will, 297. effect of, on after-acquired land, 298. will not revive an adeemed legacy, 298. brings language of will to date, 299, 384. effect of, on holographic will, 300. revocation by, under statute of frauds. 337, 338. construed to avoid partial intestacy, 338. restricted effect of revocation clause in, 339. must show present intention to revoke, 339, 340. effect of, as revoking will partly void, 340. revoking will by inconsistent disposition, 341, 343. repugnancy in, must be reconciled with will. 341. when vague, does not revoke clear gift in will, 343. does not revoke appointment of executor by an inconsistent disposi- tion. 349, 350. presumption of revocation of, from revocation of will, 353. when unintelligible without will, 353, 353. additional and substitutional legacies in, 5G9-573. COHABITATION — directions discouraging, of husband and wife are void, 681, 683. COLLATERAL POWERS — defined, 1164. COLLEGE — residence at. as affecting domicile, 43. validity of gift to municipal corporations for a, 97. CO>IMITTEE — is appointed for an incompetent legatee, 104, 580. COMMON DISASTER — death by, 26-28. COMMUNITIES — gifts by will to, 89. COMMUNITY PROPERTY — distinguished from separate property, 73, 1054. right of husband to control during his life, 74, 1054. neither party may dispose of more than half of, 1055. presumption against an election in, 1055. actions which are an election to take, 1056. COMMUTATION — of annuities, 1083. y reference, 379, of land received to identify land devised, 411. power of appointment by, not executed by a devise, 1165, in execution of power of sale when defective may be reformed, 1166- 1168. DEFAULT — elTect of, to execute a power, 1171-1174. DEFEASANCE — of estate on non-performance of coriiliti(jn sul)S((iu('nt, 645 047. DEFINITE FAILURE OF ISSUK — limitation over on, does not (Ti-ate an estate tail, 869, 870. (see IJKATH; I'aillhk OF I.SSLH) 1434: INDEX. Eefereucea are to pages. DEFINITIONS — of will, 7. of testament, 8. of devise, 8, 9. of codicil, 11. of domicile, 39. of chattels real, 66. of testamentary capacity. 111, 113. of an insane delusion, 119, 120. of lucid interval, 131. of idiot, 158. of imbecile, 159. of undue influence, 180. of nuncupative will, 236. of end of the will. 251, 253. of interested witnesses, 284, 285. of re-execution, 295. of revocation, express and implied, 803, 303. of estate, 396. of tenement, 403. of messuage, 403. of premises, 404. of appurtenance, 404. of close, 404. of adjacent, adjoining and contiguous, 408. of effects, 415-417. of chattels and goods, 418. of movables, 419. of personal property, 414. of et coetera. 414. of home. 430. of devise, 430. of share, part or portion, 432. of also, likewise, furthermore, moreover, item, etc., 433-434. of lapse, 436. of general legacy, 554. of demonstrative legacy, 555, 55S, of specific legacy, 557. of satisfaction, 589. of conditions, subsequent and precedent, 636, 637. of childless, without children, etc., 744, 746. of family, 778, n.. 779, n. of heirs as purchasers, 811, 813. of rule in Shelly's case, 878, 893, n. of annuities and rent charges, 1078-1080. of equitable conversion, 955. of gift causa mortis, 1063. of equitable election, 1000. of a use, 1108. " of a trust estate, 1109. of a charity, 1186. of poor, 1208-1310. of indefinite failure of issue, 1270. of vested remainder, 1341. of London, 1255. of city, 1256. DELAY — right to elect not lost by, 1033. DELIRIUM — lucid interval in, 137. INDEX. 1t1:35 References are to pages. DELIRIUM TREMENS — described, 151. temporary character of, 152. capacity of one suffering from, 153. 154. destruction of will by testator in fit of, 307. DELIVERY — of instrument as evidence of its non-testamentary character, 53. DELIVERY . OF GIFT — necessity for, 1068. character and mode of, 1064, 106S. when it may be symboHc, as by giving a key, 1068, 1069. of choses in action, 1070-1074. DELUSION — when produced by the use of drugs, 156. cunning of persons who have, 117. definition of, 119, 120. is not mere eccentricity, 120-124. must influence the provisions of the will, 125. mistake and prejudice are not, 126, 127. jealousy and suspicion ai-e not, 127, 128. belief in spiritualism and witchcraft is not, 128. DEMONSTRATIVE LEGACIES — defined, 555, 556. effect of loss of fund from which payable, 555. legacy of purchase-money, 556. legacy of interest on a bond, 556. of debt not adeemed by payment. 556. annuity payable out of specified fund, 1086. DEPRECIATION — trustee not responsible for unexpected, 1147. DESCENDANTS — legal status of, conferred upon adopted child, 717, 718. included in gift to children, 712. includes lineal relations, 925, 926. distribution among, 927, 928. title of, substituted to prevent lapse, 453, 454. includes grandchildren and great-grandchildren, 926. descendants of A. "now living," 926. "nearest in blood," 926. devise to children and their descendants, 926, n. "relationship by lineal descent," 926, n. not equivalent to relations, 926, n. rule in Shelly's case applies to a remainder to, 890. (see also Classes.) DESCENT — heir takes by. under rule in Shelly's case, 878-908. statutes modifying laws of, H'.id. when issue take by, 908-917. (see ilEiiis.) DESIRE — trust created by words of, 1154, 1154, u., 1155, n., 1159. DESK — Ijfcjuost of the contents of, 420, 427. DESTRUCTION- ittij)licd from (lisapix-araiicr' of will, ;nH-;j21, 372. of will, when acciiliMitai, :!0S. of will not by direction of the testator, 308, 371. 1436 INDEX. References are to pages. DESTRUCTION (continued) — silence of tlie testator may ratify. .308. no revocation when incomplete, 300, 310. revocation by, of duplicate wills, 355, 356. DEVASTAVIT — does not give legatee right to call on devisee, 534. legatee cannot be called ui)on for contribution in case of, 534, 585» estoppel of legatee, 534, 535. DEVISE — defined, 8, 9, 417, 430. DEVISEES — meant by reference to " heirs before mentioned," 835, 826. DIPLOMATIC SERVICE — domicile of persons in, 41. DISAPPEARANCE OF WILL — presumption of i-evocation from, 318, 373. DISASTER — survivorship in case of, 2G-28. DISCRETION — in trustee to exercise power of sale, 957-960. in the case of precatory trusts, 1157-1159, 1160. of donee of power may prevent its execution in equity, 1171-1175, 1237, 1238, 1246-1252. of trustees to postpone sale does not create perpetuity, 1357, 1358. DISCRIMINATION — by testatoi-, is not proof of lack of capacity. 145-148. by testator as proof of fraud and undue influence, 191-193. DISEASE — capacity as affected by, 157, 158. DISSEISIN — actual and by election, 58. DISTRIBUTION — of gift to children after life estate in parent, 731-734. is per capita when equal division directed, 736, 737. among children may be per stirpes, 737-739. per stirpes when children take by substitution, 739.' to individuals and children, 740. among " family " is per stirpes, 781. among "relations " is per capita, 790, 791. among legatees as " next of kin " is per stirpes, 839, 840. among " personal representatives," 850, 851. per capita among class when directed share and share alike, 833, 833. among heirs is per stirpes when of different stocks, 834-836. (see Equality of Division.) DIVIDENDS — apportionment of, as between life tenant and remainderman, 581-586. DIVISION — words of, create tenancy in common, 701, 703. direction for, does not convert land into money, 962. direction for, may create vested estate in land, 1307, 1308. direction for, yvith no words of gift, 1308, 1309. effect of postponement of, for benefit of the estate, 1309. direction for, at death of life tenant, 1310. direction for, among a class, 1310. (see Classes; Equality of Division; Distribution.) INDEX. 1137 References are to pages. DIVOECE — wife granted, may change her domicile, 43. revocation of will of husband by, -JGO. conditions requiring, are void, 681, 683. DOMESTIC ANIMALS — on farm, 4'25. DOMICILE — law of, applied to legacies, 30. of widow electing, 33, defined, 38, 39. in town and country, 39. presumption of continuance of, 40. change of. 40. when abroad in employ of government, 41, 43. change of, for benefit of health, 43. of married women and minors, 43, 43. declarations of testator as evidence of, 43, 44. DONATIONS MORTIS CAUSA — defined, 1063, 1064. classifications of, in the Roman law, 1003. status of, in the English courts, 1064. distinguished from legacies, 1065. no reference to transfers of real property, 1065. probate not required, 1066. donee takes subject to donor's debts, 1066. necessity for immediate apprehension of death, 1067. delivery required and gift revocable, 1067. character of the delivery, 1067-1069. of savings bank books and negotiable instruments, 1070-1074, may be in trust, 1074, 1075. burden of proof to show, 1075, 1076. DOUBLE CONTINGENCY — lapse in the case of a gift upon, 447-449. DOUBLE CONVERSION — defined. 990. DOUBLE PORTIONS — presumption against, 591. DOWER — conflict of laws as to bequests in lieu of, 33. legacy m lieu of does not abate, 587. exoneration from incumbrances of land taken in lieu of, 530, 531. in mortgaged lands, 531, 533. right of, as against creditors, 533. interest on legacies in lieu of, 578. legacy by implication, from false statement that devise is subject to, G39. rule in Slielly's case gives the widow, 907. in money to be invest<'(l in land, 985, 986. election may be revoked when based on fraud or mistake, 1013-1016. election in case of, at common law, 1036. presumi)tion that widow is to take both legacy and, 1037. intention that h-gricy is in lieu of, must ap|)oar, 1037. 1038. intfTition to raise an cli-ctioii need not Ix; cxprrss, 1037-1039. a general devise t(j the widow is not l)y implication in lieu of, 1040. devise of land for sale is not in lieu of, 1010. no eh'ction by (h-visc with provision for an equal division, 1043, 1044, aimuity or charge docs not raise an election, lOM, 1045. cllect of an election to take devise in lieu of, 1045. 143S INDEX. References are to pages. DOWER (continued) — devise expressly in lieu of, does not bar share of personal estate, 104G, 104G, n. devise in lieu of, does not bar widow's right as heir of her husband, 1047, 1048. acceptance of devise in lieu of, bars dower in lands not devised, 1048. acceptance of a life estate may bar dower in the remainder in fee, 1049. effect of a remarriage on, 1049. compensation to widow when devise in lieu of, fails, 1030, 1051. statutes regulating election, 1051, 1052. presumption that a devise Is in lieu of, 1051. time witliin which widow must elect, 1053. how widow's election must be made and proved, 1053. (see also Community Propekty; Election; Curtesy.) DRAFT OF WILL — is not primary proof when will is lost, 374^ use of, to refresh memory of witness, 370. DRAUGHTSMAN — presumption of fraud in case of legacy to, 194, 198. DRUGS — habitual use of, affects capacity, 156, 157. DUPLICATE WILLS — disposition of the copies, 356. presumption from destruction of one copy, 356. presumption from disappearance of one copy, 357. effect of interlineations in one copy, 357. DWELLING-HOUSE — occupation of, 410. E. EASEMENTS — under a devise of property, 400, 405. ECCENTRICITY — distinguished from delusion, 120, 124. not alone insanity, 122. tendency towards, 122. evidence to prove, 123, 124. gradual growth of, 123. ECCLESIASTICAL COURTS — necessity for probate in, 370. jurisdiction of, over lost wills. 370. jurisdiction of, over legacies, G51. EDUCATION — bequests for, 98. private school, library or museum is not a public charity, 1196-1198. bequests for, are valid as public charitable gifts, 1204, 1205. of poor children, colored children and poor students, 1205. in science, 1206. miscellaneous charitable, 1219, 1220. EFFECTS — defined, 415. mean primarily personal property, 414, 415. may be modified by rule of ejusdem generis, 415, 416. may pass real property, 416, 417. INDEX. 1430 References are to pages. EJECTMENT — cannot be brought by alien, 84. by tenants in common. 700. maj' be brought to enforce right of entry, 640. EJUSDEM GENERIS — defined, 413. 414. rule of. applied to word "estate," 399. applied to gifts of goods and chattels, 418, 419. ELDEST CHILD — illegitimate child cannot take as, 754. ELDEST MALE LINEAL DESCENDANT — construed, 927. ELDEST SON — rule in Shelly's case applies to a remainder to, 890. as a word of purchase, 866. usually words of limitation creating fee tail in father, 866, 890. limitation over, on definite failure of issue of, 866. ELECTION — definition and history of, 1000. origin in the Roman law, 1001. early cases of. 1002, n. the knowledge of the testator as to the ownership of the property, 1003, whether based on compensation or on forfeiture, 1005, 1006. measure of compensation, 1007. presumption against necessity for, 1008, testator must intend to dispose of the property of another, 1008. where testator has only a limited interest, 1010, 1012, 1013. intention to create a case for, must be clear, 1011. is not revocable if made in good faith, 1013. person who is to elect must have opportunity for obtaining informa- tion. 1014. if made under mistake of fact or procured by fraud, will be revoked, 1016. none where will is invalid, 1011, 1019, 1020, under will of married woman disposing of property not settled to her separate use, 1019. the heir need not elect when will is invalid, 1019. applied to lands acquired after the execution of the will, 1020. no necessity for, when party takes benefit indirectly, 1021. must be made within a reasonable time, 1022. in statutory period, 1022, parol evidence to show intention to require, 1023. what constitutes, 1024. by expressions of satisfaction, 1024, 1)resumption of, from possession, 1024. )y widow or husband, 1025, not material tliat testator supposed he owned property devised, 1026. for infants and other incompetents by the court, 1026-1028. married woman may elect in equity, 1027, by creditors, 1028, between inconsistent gifts in the same will, 1028, by the heir in case of a will devising land partially invalid, 1029-1031. under powers of appointment, 10'i2, 1033. among tenants in common, and between life tenant and remainder- men, 1033. lf)34, riglit of, does not fmss to the heir. 1034-1036. in its application to tin; riglit of dower, 1030, int<'nti(jr) tf) put widow to election must clearly appear, 1038. general dr-vise of land doeH not put widow to, 1((1(). devi.4e in trust to aell does not raise |)resumpliou of, 1040, 1041. 14-10 INDEX. References are to pages. ELECTION (continued) — direction for an equal division raises no case for, 1043-1045. the effect of, by tiie widow, I04r)-1049. in lieu of dower, does not bar distributive share, 1046, compensation to widow when devise in lieu of dower fails, 1050, 1051. statutes regulating, 1051, 105'3. of devises of con)inunity propertj'. 1054-105G. of devise of the homestead. 1056-1059. of a devise of insurance money, 1058-1061. as rt\gards the right of curtesy, 1059-1061. by widow, conflict of laws, 32. by a creditor of testator to whom legacy has been given, 670, 671. between gift causa mortis and a legacy. 1066, n. distinguished from satisfaction, 590, 591. ELECTION TO TAKE PROPERTY UNCONVERTED — may be made by absolute owners, who must be sui juris, 992. equity may make, for incompetent, 993. all persons must concur in. 993, 994. must be made before sale has taken place, 991 what constitutes, 994, 995. by remaindermen, 996, by tenant in tail, 997. by person in whose hands the money is "at home," 997, 998. EMBLEMENTS — are chattel interests, 412. pass to devisee of land, 412. grass and timber are not, 411, 412. EMINENT DOMAIN — conversion under, 978-980. EMPLOYEE — of the testator, gifts to, 805, 806. END OF THE WILL — defined, 250, 251. witnesses must subscribe at, 265. ENTIRETY, ESTATES BY — cannot be incumbered by either husband or wife, 707. creation of, by devise, 707-709. effect on, of statutes abolishing joint tenancy, 709. effect of statutes regulating property rights of married women, 710. devisable nature of, 64, 65. ENTRY — incorporated in will by reference, 381, 383. when conclusive on legatee, 383. of physician to prove age, 727. ENTRY, RIGHTS OF (see Rights of Entry). EN VENTRE SA MERE — fiction that child is born, 746, included under children born in life-time, 747. may take under devise to issue, 747. must be born alive, 748. fiction of actual birth indulged to benefit child, 740. (see Children.) EPILEPTIC — capacity of, 157, 158. INDEX. 14:il References are to pages. EQUALITY OF DIVISION — direction for, indicates " personal representatives " means next of kin, 850, 851. indicates tenancy in common, 701. among heirs of tlie body, 870-874. in devise of a remainder to issue, 913. 914, 916. does not raise case for an election, 1043, 1044. indicates takinjiper capita, 737, 832. 839, 840. (see Division; Per Stirpes; Distribution.) EQUITY. JURISDICTION OF — over charities. 1186-1194, to construe, 608-610. over resulting trusts, 627, 628. to decree specific performance of contract to devise, 387. over assets of testator, 514. to establish lost wills, 369, 370. in case of trusts ex malefacio, 218-223. in case of homicide of the testator by a legatee, 224. over municipal corporations when trustees, 101, 103. to inquire into action of trustee refusing consent to niarriage, 658. rule in Shelly "s case is applicable in, 900, 901. over dower and curtesy. 984-986. over trusts, 1092-1109, 1125-1127, 1131-1134. to aid the execution of powers defectively executed, 1165, 1166. in case of non-execution of imperative powers, 1169, 1170. in England and America to apply cy pres doctrine to charities, 122ft- 1233. to appoint trustee of charitable trust, 1236-1243. will not enforce a private charity, 1195-1197. to appoint new trustee, 1125-1127, 1129. to remove trustee, 1131, 1132. ERASURE — as a revocation, 311, 312. of names of testator or witnesses, 312, 313, 317. (see Blanks.) ERRONEOUS RECITALS (see Recitals). ESCROW — delivery of deed, 54. ESTATE — usually includes real property, 397. in introductory clause. 397. restricted by words of locality, 397. sufliciency of, to pass a fee simple, 308, 933. includes jjorsonal property only, .309, 400. effect of rule of ejutidcvi r/nneris, 399, 400. indicates quantity or location of property, 932. devise of, creates fee though describing land by its location, 934 devise of, does not enlarge express gift of life interest, 934. ESTATF:S IN FEE TAIL — nature and origin of, 800. 801. statute of dc donin, 860, H(\\. by in formal wonis, Hfil. H(52. by limitation to "children," 862. created by limitation to male heirs, 803, 803. when si)ecial, male or female, Wil. by particular wife or husband. H(l|. created by limitation to "son," m;:,. created by limitation to first or eMest son, 800, 890. 01 1442 INDEX. I References are to pages. ESTATES IN FEE TAIL (continued) — life estate not enlarged to, by limitation over on indefinite failure of issue, 868, 870. none by implication on definite failure of issue, 870, 871, 890. effect of limiration to heirs of the body as tenants in common, 871, 872. in the United States, 874, 875. regulation of, by statute in the United States, 875-877. created by devise to A. and his issue, 911. created by devise to A. for life, remainder to his issue, 912. b}' implication, not enlarged by a personal cliarge, U19. under the rule in Shelly 's case, 871, 878, 889-892. by implication on indefinite failure of issue, 624, 625, 867, 868, words " heirs of the body " not varied by direction for equal division, 870-873. ■words of limitation and inheritance added to "heirs of the body," 874. future use after, is not a perpetuity, 1108. tenant of, may defeat an executory devise, 1345, 1346. reversion after, may be devised, 59, 61. tenancy in common in, 703, 871. by devise to A. and his children, 712, 770. (see Shelly 's Case; Heirs of the Body; Tenancy in Common.) ESTATES PER AUTRE VIE — are freeholds, 67. special occupant of, 68. devisable by statute of frauds, 67. where words of inhei'itance are not employed in their creation, 68. general occupant of, 08. may devolve as personal property, 70. ESTOPPEL — of trustee to repudiate his trust, 1125, 1126, 1126. n. of beneficiary to dispute sale by trustee to himself, 1141, 1142. (see Election.) ET CETERA — ■when the words are employed with others of wide meaning, 414. rule of ejusdem generis applied, 414. EVIDENCE — of circumstances to show fraud and undue influence, 182, 187, 188. competency of, in suit to establish lost will, 373, 374. (see Declaration; Parol.) EXECUTION — of powers of appointment. 1164-1184. of power of disposal for support, 942. undue influence must exist at moment of, 182, 184, 185. secrecy of, showing undue influence, 186, 187. burden of proof to show, of lost will, 373-375. one witness suflficient to show, where will is lost, 876. death of legatee before, 455, when will speaks from date of, 22, 23. EXECUTION OF WILL — regulated by statute in force at date or at the death of the testator, 23, 24. ■will must be written, 246. may be on printed blank, 247. will need not be dated, 247. sealing not necessary, 247, 248. ■will ma\' be in pencil, 248. signature of testator at end, 249, 250. end of the will defined, 250, 251. whether will not signed at end is partly void, 251-254. INDEX. 1443 References are to pages. EXECUTION OF WILL (continued) — the testator's signature by mark, 254, 255. guiding the hand of the testator, 256. the testator's name signed by another, 256, 258. acknowledgment of signature by the testator, 259-261. the request to the witnesses, 261, 2G2. the competency of the witnesses, 268-265. place for the signature of tlie witnesses, 265, 266. witnesses need not sign in the presence of each other, 271, 272. witnesses may sign b)' mark, 272-274. attestation by minors. 274. attestation clause as proof of, 276-278. necessit\' for publishing the will, 278. witnesses must attest in the presence of the testator, 267-271. mode of publishing the will, 279-282. the competency of the witnesses, 282-287. substitutionary proof if attesting witness is absent, 288, 291. impeachment of hostile attesting witness, 291-293. EXECUTOR — may be appointed by will not disposing of property, 8. origin of the office of, 10. necessity for appointment of, 10, 11. appointment of, need not be in express terms, 11. wlio may be appomted as, 11. administrator c. t. a. in place of, 11. takes title to all personal property, 10, 66. has right to sue on testator's contracts, 65. chattels i-eal go to, 67. 68. may take as special occupant in estate per autre vie, 68. his statements do not bind legatees, 229. his right to fees. 282. competency as an attesting witness, 282, 283. appointment of, wlien revoked by express revocation, 349. legacies to, when revoked, 350. in foreign will, his powers in England, 385. separate, for foreign will, 385. may be sued for a breach of testator's contract to bequeath, 388. his right to emVjlements, 411, 412. statutory regulation of his right to growing crops, 412. legacies to, may lapse, 440. vesting and jjayment of legacy dependent upon power of, 459, 460. may exonerate mortgaged land, 528-534. liable personally when property is wasted, 534. legacies to. as mark of friendsliip, 571. right to sue him for legacy, 574. tender of legacy b\', 574. must pay legacies promptly, 575, 576. iiiav be charged with compound interest for neglect to keep funds in- vested, 576. right of, to set oflf debt of legatee, 606. may ai)i)ly for constni(;tion of will, 609, 610. l)Ower (if sale conferred on, 957 et se(|. entitled to |)urchase -money of land agreed to bo sold, 972, 976. must j>ay for lands foiitractt'd to lie purchased. 971. jfersrjMal rcprcMMilativi' is e<|uivalent to, HI6, 847. is ordinarily a word of limitation, 852, b53. in a marriage settlement, 852. equivalent to ne.xt of kin, and a word of purchase, 853. u.HUally takes for benelit of the estate. H53, 854. may take for his own benefit, 854. 855. w liat language shows that he is to take for the CHtato. H55, 850. gift to, " in trust,'' not conclusive that he in not tutuku beneficiully, 855. 1444 INDEX. References are to pages. EXECUTOR (continued) — bequest to, for his own benefit, 856. gift to executor not conditioned upon his accpptance of office, 856-858. gift to. by proper name, presumed to be beneficial, 857. presumption that gift to, is conditioned on acceptance, not conclusive, 858. if bequest to, is through motive of friendship, then not conditional, 858. powers conferred upon, to distribute in cliarity, 1243-1250. acceptance of oftice, not election to take under will, 1025. power in, to distribute among charities, does not create a perpetuity, 1362. right to elect may pass to, 1036. execution of power by survivor of several executors, valid by statute, 1121, 1123. 1124. power of, annexed to the office, executed by the survivor, 1122. all must join in execution of power if all alive, 1122. direction to sell land confers power of sale, 1116, 1118. lands go to heirs or devisee subject to the power of sale in, 1116, 1117. extinguishment of power of sale in, 1117. has no power over land unless conferred, 1118. power of sale in, does not include power to mortgage, lease or build, 1119. has power to sell land for payment of debts, 1121. confirmation of sale of land by, 1121. power given to, as an individual, does not go to successor, 1123. power to be exercised ratione ojjlcli survives, 1123, 1124, n., 1130, n. discretionary power in, cannot be exercised by administrator with the will annexed, 1123, 1124. cannot delegate discretionary power, 1124. power of, extinguished when no longer needed, 1124, 1180. power of, may endure though trust has expired, 1125. ■when liable for co-executor's breach of trust, 1138, 1139. effect of, joining in a receipt, 1133. purchaser from, need not see to application of purchase-money, 1148. purchaser from, having notice of intention to misapply money, is lia- ble. 1150, 1151. (see also Power of Sale: Power of Appointment; Personal Rep- resentatives; Trust Estate; Trustee.) EXECUTORY DEVISES — dependent on death of first taker, 459 et seq. when they may be devised, 56-04, 1289, 1333. defeated by a prior tenant leaving children, 622. void when following an indefinite failure of issue, 1271, 1276-1278. fee is not in abeyance by, 1288. defined, 1329-1331. fee to vest in future given bv, 1330. not affected by act of holder of precedent estate, 1108, 1330, 1331, 1341. not valid after absolute estate in fee simple, 1331. effect of the failure of, 1331, 1332. the alienation of, 1289, 1333. created by court to carry out the intention of the testator, 1343, 1344. distinguished from remainders, 1344. rule of perpetuity applied to, 1344-1346. after a charity, may be void, 1363. assimilate to future uses. 1108. not destroyed by destruction of particular estate, 1108. may be limited after a fee conditional, 1108. to classes, may not create jjerpetuity if severable, 1306, 1368. EXECUTORY TRUSTS — defined, 896, 897. distinguished from executed trusts, 897. rule in Shelly's case not applied to, 881, 883, 898, 900. INDEX. Ii45 References are to pages. EXECUTORY TRUSTS (continued) — directions to purcliase and settle land ai'e, 900. examples of, 901. 901, n. (see also Trcst Estatk) EXONERATION — of personal property from the debts of the testator, 516-524. of land devised in lieu of dower, 1030. EXPECTATION — of heir or legatee is not devisable, 61, 64. of reward, is not devisable, 63. trust created by words of, 1158. EXPERT EVIDENCE — to i^rove foi'eign law, 37, 38. of insanity, 138. 139. qualifications of the witness to mental condition, 140. EXPRESS CONDITIONS (see Conditions). EXPRESS REVOCATION (see Revocation op Wills). EXTINGUISHMENT OF POWERS — by release, 1179. none by failure of donee to exercise it, when special, 1179. none by death of donee, 1179. occurs when power is no longer needed, 1117, n., 1124, 1179, 1180, 1189» EXTRINSIC WRITINGS (see Incorporation of Writings). F. FAILURE OF ISSUE — presumption that it is ind- lic frhurity, 1 197. coiidilioii against marriage into. 6")"), (i")(i, n. compromise in, favored in law ami eita, 832-835. statutes regulating laws of descent, 834. personal representatives means, in gifts of lands. 852. rule in Slielly's case does not apply to, 891, 894, 895. 897-902. equalit}' of division among, may indicate the words are synonymous with children, 891, «92. HEIRS GENERAL — limitation to, coming after remainder to the heirs of the bodj^, 887, 888. HEIRS MALE — equivalent to children, 886. HEIRS OF THE BODY — technical words to create fee tail, 861. presumption that thej' are words of limitation, 870. when words of purchase, 870-873. meaning of, controlled by direction that they shall take equally as tenants in common. 872, 873. issue synonymous with, and a word of limitation, 909-914. create a fee conditional in an annuity, 1081. (see Estates in Fee Tail.) HEREDITARY INSANITY — relevancy of, 144. HOLOGRAPHIC WILLS — in Louisiana, 244. date of, 247. signed at end, 252. statutory rcMjuirements of, 15. attestation, 16. use of iirintfMl form, 16. disguising the hand, 16. must be Kubscribed. 16. when deposited among pajicrs of the deceased, 16. proof of testator's liamlwriling, 17. iric()ri)oratif)n of n<)iiliolograi)hic papers, 17. form lA Ictti-rs, 17, 51. declarations of testator to prove haiulwritiiig, 17. HOME - direction to provide. 429. may include nursing and mcdiral alhiilaMci', 129. 1452 INDEX. References are to pages. HOME PLACE — defined, 409. HOMESTEAD — defined, 408. maj' take in barns, outbuildings, etc., 408. not synonymous with farm, 409. parol evidence to show meaninjjj of, 409. 1401. bequest to care for, not valid as charity, 1196. inures to heirs, lOoG. devise of, may call for an election, 1056, 1057. HOMESTEAD PRIVILEGE — may be devised, 74. HORSES — pass under a devise of chattels, 418. HOSPITAL — bequests for, are valid as charitable bequests, 1212. HOSPITALITY — bequest for, is not valid as a charity, 1196. HOSTILE WITNESS — when attesting, he may be impeached, 292. mode of impeachment, 276, 292, 293. HOUSE — defined, 403, 405. includes what is in curtilage, 405. may include land, gardens, orchards, barns, lawns, etc., 403, 405, 406. fixtures go with, to devisee. 406. described by occupation, 409-411. parol evidence to explain, 1401. HOUSEHOLD FURNITURE — passes under bequest of personal property or effects, 415, 418, 419. passes under bequest of money, 420. described by its location, 427. includes everything which furnishes a house, 423, 424. does not include a stock in trade, jewelry, ornaments, tricvcle or live- stock, 424. specific legacy of, pledged, 538. ademption of legacy of, by removal, 562. delivery of key may show gift of, 1070, n. HOUSEHOLD SERVANTS — gifts to, 806, 807. HUSBAND — consent of, to wife's will, 173, 174. undue influence exerted by wife upon, 211, 212. of legatee, competency of, as attesting witness, 283. of legatee, does not take lapsed legacy as a relative, 453. reference to man who is not legally such, 760, 801. children of a woman by husband named, 719. gift to, in satisfaction of legacy to wife, 594. "death unmarried " may mean not leaving a, 634. included in gift to family, 782. included in gift to relations, 785-787. nephews and nieces of, 793, 794. evidence not received to show he is an heir, 812. curtesy of, in money converted, 985, 986. need not elect in case of invalid will of wife, 1019. as executor of wife's will is not an election, 1025. iXDEX. 1453 References are to pages. HUSBAND (continued) — has no control over a separate use trust, 1100-1103. right to control community property, 10o5. right to, in estate by the curtesy, 1060-1063. HUSBAND AND WIFE — mutual wills by, 19, 20. devise to, creates estate by entirety, 707. neither can incumber estate by entirety, 707. survivorship between, 708. as tenants in common, 709, 710. as joint tenants, 709. effect of statutes abolishing joint tenancy upon devises to, 709. effect of statutes regulating the property rights of the wife, 710. presumed to mean those lawfully such, 801. gift to, not affected by fact that the marriage is illegal, 760, 801. woman not lawful wife may take as widow, 803. legacy procured by deception as to relations between, 803. from what time will speaks as to devise to either, 803-805. are not heii's of one another, 831. but may be included as an heir by special words, 831. provision for widow in lieu of dower excludes her from gift to heirs, 833. estates in special fee tail created by limitations to heirs of the body of, 864. (see Widow; Election.) HYPOTHETICAL QUESTIONS — on mental condition of the testator, 138. I. IDENTIFICATION — of writing referred to, 380. IDIOTS — testamentary capacity of, 158. transaction of ordinary business, 159. IGNORANCE — does not destroy capacity, 158, 159. of condition, does not excuse non-performance, 650. ILLEGALITY — of conditions, 646-648. of conditions promoting separation of husband and wife, 681, 683. ILLEGITIMATE CHILDREN- legitimate children presumed to be meant by "children," 753, 753. may take when no otiiers, 753. intention to benefit, must plainly appear, 754. knowledge of the testator that there are, 754-750, 759, 760. parol evidence that testator meant, to take as children, 755, 750. may take when named, 757,758. recognition of, by testator, 75!t, 761. when they may take with legitimate children as a class, 702. gifts to, when unborn. 763, 764. gifts to, en ventre «a mere, 765, 767. effect of the legitimation of, 767, 768. may take as descendants, 453. designated as such, may take, 752, 757. of bnjllier, do not take as nr'[)hews and nieces, 700. gifts to illegitimule daughters, 799. 1454 IXDKX. References are to pages. ILLITERACY — to show testamentary incapacity, 166-170. of an attesting witness, 272, 273. ILLNESS OF TESTATOR — affording opportunity for fraud, 198. not evidence of incapacity, 198, 199. may prevent completion of destruction, 306. ILLUSORY APPOINTMENTS — may be set aside in equity, 1178-1180. IMBECILES — capacity of, to make will, 153. IMMEDIATE GIFTS — vest at death of testator, 731, 722. IMPEACHMENT — of attesting witness, 291. by proponent in case of hostile attesting witness, 292. by bad reputation for veracity. 292. by extra-judicial declarations, 293. IMPLICATION — that debts are charged upon land, 517. must be of necessity, 615-617, 935. introductory clause in connection with, 017. estate in fee simple by. 618, 619. estate by, where land is devised after death, 619-621. estate by, on attainment of majority, 621, 622. no estate by, on death without children, 622, 623. arising from non-execution of power, 623, 624. cross-remainders for life by, 624, 1281, 1284. estate tail by, 024, 625, 867, 868. remainders by, after remarriage of widow, 625. resulting trusts for the heirs, 625, 626. on failure of devise for a particular purpose, 627. from false or erroneous recitals, 628-633. in construction of the word " unmarried," 633. 634 estate tail by, on indefinite failure of issue, 867, 868. none by, on a definite failure of issue, 869. estate tail by, on death without children, 869. fee by, on death under majority, 947. to raise case of election, must be clear, 1012. trust may be created by, 1111, 1112. interest in trustee may be enlarged by, 1112. power of sale by, 1116-1118. cross-remainders by, on a definite failure of issue, 1281-1284 IMPLIED REVOCATION — parol evidence to rebut presumption of, 333. defined, 302, 303. from disappearance of will, 303. none from placing will among waste papers, 319. of woman's will by marriage, 321, 322. from marriage of man, 323, 32.5. from marriage and birth of children. .325-335. none from mere change in circumstances, 335. from inconsistent disposition of property, 341-344. of codicil from revocation of will, 352. of duplicate wills, 356. none from insanity of the testator, 358. none from adoption of a child, 359, 360. none from divorce, 300. IXDEX. 1455 References are to pages. IMPORTUNITY — is not undue influence, 205, 206. IMPOSSIBILITY— of performing conditions, 646-64§, 651. "IN CASE OF DEATH" — construed, simpliciter, 457-459. before receiving legacy, 459-461. before a legacy is •' due or paj^able." 461, 462. with a contingency, as under majority or without issue, 462-468. INCOME — legacy payable out of, is a charge, 544-546. how apportioned between life tenant and remainderman, 581, 586. gift of, carries title to fund, 949-951. liability of trustee for loss of, 1143-1149. gift of, with gift of capital on majority, 1336. bequest of, showing intent to vest legacy payable at majority, 1823-1326. validity of the accumulation of, 1377-1884. INCOMPETENT PERSON — paj-ment of legacy to, 580, 581. election for, must be made by court, 1026-1028. INCOMPLETE DESTRUCTION — effect of, as revocation, 309-311. INCORPORATION OF WRITINGS — based on fiction of law, 379. by reference to a map of property, 379. in case of a codicil, 379. existence and identity of writing incorporated, 380. will must refer to writings as in existence, 380, 381. language of the reference, 381. probate of writing incorporated, 382, 383. when will consists of several sheets, 384. blank spaces in writings not material to, 384. separate wills of property by one testator, 384. home probate of foreign wills, 384. not applicable to writings not in existence, 337. rule in Shelly"s case, 881. by reference to, in holographic will, 17. INDEFINITE FAILURE OF ISSUE — where there is a power to appoint among issue, 916. estate tail by implication, 621-624, 867-869. (see also Failure of Issue; Death Without Issue.) INDEFINITENESS — in charitable gifts, 1186. in relation to charities, classified and defined, 1232, of charitable gift as to beneliciaries, 1233, 1234, 1235, n. caused by neglect to appoint a trustee, 1236, 1238. arising from gifts to unincorporated institutions, 1237-1240. arising from misnomer of institution, 1243-1245. where a trustee is a[)pointed with power and discretion to select, 1246- 1252. doctrine of cy pres applied to, 1226. (see also Uncektainty.) INDP:TKRM1NATE LAN(JUA(iE — remainder to issue in, 916. ^ INDIVIDUALS — gifts to, distinguished from class gifts, 721. 1456 INDEX. References are to pages. INDUSTRY — ' condition favoring habits of, 683, C84. INFANTS — may be appointed executors, 11. capacity of, to take under will, 104, 580. testamentary capacity of, at common law, 170. at civil law, 170. by statute, 171. may appoint testamentary guardians, 171. conversion of land of, by court order, 980. may dispose of land converted, 982, 984. conversion when land of, is sold in partition, 983. cannot elect to take property unconverted, 993. no election arises in case of will of, not valid to pass lands, 1018. an election for, must be made by the court, 1037. cannot be donee of a power, 1180. (see Majority.) INFLUENCE (see Undue Intluence). INHABITANT — of town as attesting witness, 285. INHERITANCE — words of, added to devise to heirs of the body, 874. effect of words of, when added to remainder to issue, 912. necessity for words of, to confer fee simple, 929-981, 935, 951-953. words of, not necessary to create a perpetual annuity, 1083. (see Heirs as a Word of Limitation.) INJUNCTION — to restrain improper execution of power of sale, 1176, n. INK — should be used for a will, 247. INSANITY — characteristics of, 116. measure and test of, 117. inferred from sudden change in habits, 118. delusions, 118, 119. eccentricity distinguished from, 120, 121, 123. must influence the will, 125, 126. mistake and prejudice are not, 126, 127. jealousy and suspicion are not, 127, 128. belief in spiritualism is not, 128-130. lucid interval defined, 131-138, 307. physician may testify to, 139. attesting witness may testify to, 140. non-expert witness may testify to, 141. intimate acquaintance may testify to, 142. range of evidence to show, 144. declarations to show, 149. drunkenness as evidence of, 150. suicide as evidence of, 150. 151. revocation not presumed from, 358. ^ destruction of will during lucid interval, 307. ademption by change in character of property of person suffering from, 562. INSOLVENCY — conditions directing forfeiture upon, 690. repugnancy of conditions against, 091. estates until. 692. spendthrift trusts. 693-695. effect on legacy of annulment of, 695. INDEX. ^ 1457 References are to pages. INSTITUTION — contract to make will in favor of, 393. INSURANCE MONEY — right and obligation to elect between, and a devise, 1058, 1059. no election when right to, is revocable and not vested, 1059. may be devised, 70-73. holder of option may claim, 978, n. INTENTION OF TESTATOR — to make will not disposing of property, 10. to appoint executor, 11, n. to make a contingent will, 12. to make will speak from date of execution, 21, to change domicile. 39, 40. that an informal writing shall be a will. 46. that a legacy of a debt shall carry the right to sue, G6. as determining the character of the instrument, 47, 48. to pass after-acquired lands, 77. to make oral will, 240. to revoke, when prevented by legatee, 306. to revoke, must be present in act of destruction, 303-306, 308, 313, 314 to omit children from will, 332-334. to revoke, in case of duplicate wills, 356. to prevent the lapsing of a legacy, 444. to exonerate personal property, 510-524. to cause ademption, 562. to give cumulative legacies, 572. from implication. 614-634. from whole will, 617. from erroneous recitals, 629-632. modifving the application of the rule in Shelly's case, 883-886, 903, 903, n. to convert, 957. the doctrine of cy pres applied to, 1224-1226. INTEREST — payable on general legacies, 575. at wliat rate calculated, 576. more than simple, ought to be paid, 576. payable from date of testator's death and from grant of letters to ex- ecutor. 574, 577. payable by administrator c. t a., 577. none on advancements, 577. on legacies ciiarged upon land, 577. on legacies given in lieu of dower for support, 578, 579. upon annuities, 1089. legacy of, is demonstrative, 556. " INTERESTED WITNESSES "— defined, 284, 285, 293, 294. INTERLINEATIONS — whether final or deliberative, 311, 312. IN TERROREM — applied to conditions restraining litigation, 673. applied to conditions, it recjuires a gift over, 656, 657. INTERSTATE LAW (seo Foukiun Law), INTESTACY — next of kin in. 839, 840. INTOXICATION — testator addicted to habits of, 150. bearing u|)on undui.' iiiIIiicik-c. 15i), 151, 200. producing ilcluima lixincns, 152, 153. 92 1458 INDEX. References are to pages. INTOXICATION (continued) — resulting; in permanent insanity. 152-156. presumption of continuance of, 154. introducing evidence of, 155, 156. condition to refrain from, 684. (see Habitual Drunkenness.) INTRODUCTORY CLAUSE — expressive of intention, 617. does not alone enlarge devise in vague terms, 931. raises presumption that fee is given by indeterminate language, 397, 933. INVALID CONVEYANCE — revocation by, 348, 349. INVALID WILL — heir need not elect in case of, 1017-102(i INVESTMENT — liability of trustee for, 1143-1147. of general legacy directed, is not mandatory, 574 ISSUE- RS a word of substitution. 454, 476-478. fee tail created by limitation to, 862. death " without " and " unmarried," 633, 634» when included in gift to children, 713, 713. adopted child as, 717. child en ventre regarded as, 747, 748. presumption that legitimate issue are meant, 752, 757, n. whether a word of purchase or of limitation, 909, 910. primary meaning of, is heirs of the body, 909, 910, 918. estate tail by devise to "A. and his issue," 863, 910. rule in Wild's case not applicable to devise to, 911. devise to A. and his issue " living at his death," 911. the addition of words of inheritance to remainder, 913, 913. limitation to "heirs" or "assigns" of the issue, 911. the word is equivalent to eldest son, 913. added words directing equal division among, 913. remainder to, as tenants in common, 913. 914. rule in Shelly's case applied to remainder to, 914,J918. power of appointment among, 890, 891, n., 916, 1176. death without issue, when coupled with power to appoint among, 916.. remainder to, in indeterminate language, 916. definition of, as a word of purchase, 918. will not be restricted to children, 909, 918. the word used in its restricted meaning of children, 920-933, 933, n. mode of distribution among, as purchasers, 924, 935. (see Failure of Issue; Power of Appointment.) ISSUE, DEATH WITHOUT — when meaning death in the life of the testator, 463, 466-468. before termination of prior estate, 464. during minority, 464. (see Failure of Issue.) ITEM — defined, 433-434 J. JEALOUSY — is not delusion, 127, 128. JEWELRY — does not pass under bequest of " furniture," 424 passes under bequest of •'ornaments," 413. ademption of legacy of, by removal, 562. INDEX. 1459 References are to pages. JOINT TENANCY — power to devise estates in, 63, 64. legacies in, do not lapse, 437, 438. cross-remainders by implication, 624. distinguished from tenancy in common, 699. unities in, 699. survivorship, 700. created at common lavi', 700. presumption in favor of, 701, 703. in chattels, 701. not created by words of severance or equal division, 701-703. estates in, not favored by law, 703. in case of an estate tail, 703. in gifts to classes, 704. in remainders to children, 704, 773, 773. statutes raising presumption against, 705. constitutionality of statutes abolishing, 700. words necessary to create under statute, 706. by devise to A. and his children under rule in Wild's case, 773, 773. by gift to several as next of kin if in equal degrees, 837, 838. issue take a remainder in, when purcliasers, 918. election when testator holds pi'operty in, 1009-1011. JOINT WILLS — validity of, 18. probate of, 19. revocation of, 19-31. JOURNEY — contingent wills in contemplation of, 13-14. JUDGMENT — lien of, on legacy, 605. in an action to construe will, 613. against trustee binds cestui que trust, 1133. nray pass under a bequest of money, 420. not under bequest of movables, 419. JUDICIAL NOTICE — none of foreign laws. 35, 36. JURISDICTION — of equity and probate courts over lost wills, 869, 370. of probate court to construe will, 613, (see also Equity.) K. KEY — delivery of, as evidence of a gift causa mortis, 1069, KINDNESS — inlluence of, is not undue, 203, 304. L. LAND — conversion of, by direction for sale, 955-998. passe.s under a devi.se of prf^jxTly, -lOO. included in d«;vis(,' of cstati', 397, ;!9M. in not a|)|iiirtf'ti;int to land, 401, 105. devise ot, iiiclmlcs tilings appurtenant, "104^ amount of, included bv devist* (if farm, 107. when devise of, is void for uncertainly, 1380-1389. 1400 INDEX. References are to pages. LAND REFORM — gifts by will to advance, 1215. LANGUAGE — parol evidence to explain meaning, 1406-1411. (see Uncertainty; Foreign Language.) LAPSE — defined, 358, 436. not prevented by use of words of succession or representation, 436, 445, 446, 849, 850. 852. in case of legacy to tenants in common, 437, 438. in case of legacy to joint tenants, 4:57, 438. in legacies and devises to classes, 439, 441, 797. in legacies to executors, 440, 441. when legatee is dead at date of the will, 440, 455. none by statute when legatee leaves surviving descendants or where legatee is a relative of the testator, 440, 453. postponement of payment does not cause, 442. of legacies to creditors, 443. of legacies to debtors, 443. intention to prevent, must plainly appear. 444. words of limitation do not prevent, 446, 447. death under majority and without issue, 447, 448. substitution of "and " for "or," 448. ' vesting of legacy may prevent. 449. statutory regulation of. 440, 452-455. none by statute when legatee leaves descendants, 440, 453. none when legatee is relative of the testator, 440, 453. residuary clause takes in legacies and devises failing by, 449-451. when in tlie residuary disposition, testator is intestate, 451, 452. title of substituted heirs or issue under statute, 454. the words •' personal representatives " to prevent, 436, 849, 850, 852. future estate accelerated by, 1334. of charitable gift by dissolution of institution. 1254. (see also Survivorship; Death of Beneficiary; Substitutional Gifts.) LAST SICKNESS — nuncupative will executed in, 238. LAST WILL — presumption of revocation from use of, 851. which is, where several of same or no date, 351. does not of necessity revoke those preceding, 341. LAW OF FOREIGN COUNTRY (see Foreign Law). LEAD PENCIL (see Pencil). X,EASES — are chattels real and pass to executor, 66. devisee takes subject to, 567. statute of uses not applicable to, 1096. options to purchase attached to, 977, n. power of sale does not imi^ly power to grant, 1119. LEAVING ISSUE — construed having issue in a bequest of an annuity, 1082. equivalent to having had issue, 745, 746, n. LEGACIES — construed by law of testator's domicile. 30. defined and distinguished from devises, 430. may refer to gift of land, 430. ademption of, 561, 565. ■cumulative and substitutional, 568-574 ixDEx. i4or References are to pages. LEGACIES (continued) — ' presumption in case of repetition, 569-573. < to executors and servants, 573. interest on, 57-4-577. currency paj'able in, 578-580. to incompetent person, 580, 5S1. apportionment of income of, 581-586. due at expiration of year, 573, 578. right to sue for, 574. limitation of and presumption of payment, 575. satisfaction of, 589-607. direction to pay as a charge, 618. false statement that one has been bequeathed, 639, 630. not revoked by false recital, 631. amount of, incorrect description may be corrected, 631, 633. jurisdiction of ecclesiastical courts over, 648. illegal and impossible conditions attached to, 648. tenancy in common in, 700-703. defined and distinguished from donations causa mortis, 1065. ambulatory character of, lOGO. include annuities, 1078, 1079. by implication from words of payment, 1307-1311, payable at majority, 1315-1335. LEGAL REPRESEXTATIVES (see Personal Represextatives). LEGATEE — may be equivalent to devisee. 430. meant by reference to heir before mentioned, 835, 836. for uncertainty of, 1389, 1390. competency of as witness, 394 LEGISLATIVE CONTROL — of the testamentary power, 33-36. LEGITIMACY — presumption of, 749. cogent evidence required to overcome presumption of, 749. proof of access conclusive of. 750. evidence of non-access of husband, 750. incompetency of husband and wife to testify to non-access, 750. absence of husband may he proved to show, 751. declarations of husband or wife to prove. 751. mode of treatment by fatlier relevant to prove, 751. LEGITIMATION — decree of, its effect, 767, 768. LETTER — may be a liolographic will, 17, 51, 53. incorporated by reference, 381. LEX DOMICILII — applieer stirpes when statute is referred to, 838, 830. take per capita when equality of division is directed, 839, 840. of a particular name or sex, 840. gift to those who are worthy, 840. in case of intestacy, 840. of paternal line, 841. when ascertained as a class if vesting is immediate, 841, 842. wlien ascertained as a class if vesting is postponed, 842, 843. when ascertained where gift is future after a life estate in sole next of kin, 842. 843. 844. of pcTsons other than the testator, 844, 845. pre.sumption that testator means tiioso who are legitimate, 84.5. may take under gift to legal or personal representatives. .S48-.S.")0. exi)re.ssion favoring their taking as "personal representatives," 819, 850. of incompetent, their right to claim proceeds of land ordered to bo sold. 980-981. resulting trust in favor of, 989, 990. right of widow as, not barred by devise in lieu of dower, 1010. (see Guild e.n Ventke sa Mere; Cuiluke.v; Ueuw; Classe.^.) NIECES (sec Nei'IIEWs a.nu Niece.s). 1470 INPKX. References are to pages. NON-ACCESS — husband and wife cannot prove. 750. proof of. rebuts presumption of legitimacy, 750. proved by showing absence of husband, 750. NON-EXPERT — may testify to mental condition of the testator, 140. must relate facts on which his opinion is based, 141. may testify to drunkenness of the testator, 155. NON-RESIDENTS (see Aliens). NON-REVOCATION — of will, raises presumption against fraud, 189, 190. NON-TESTAMENTARY WRITING — invalidity of revocation by, 836, 337. NOTARY — wills executed before, in Louisiana, 244. NOTE — presumption of satisfaction by legacy to holder of, 603. specific legacy of. adeemed by payment, 5(35. "NOW LIVING" — construed, 22, 720. means at execution of will, 720. heirs of person who is, 818, 819. "NOW OCCUPIED" — meaning of, 22. NUMBER — of persons who are legatees incorrectly stated, 743, 744 NUMBER OF WITNESSES — required to prove a lost will, 377, 378. NUNCUPATIVE WILLS — origin and definition, 235. as regulated by statute of frauds, 236. character and purpose of the request to the witnesses, 230, S37. the language of the request, 237. 238. must be made in last sickness, 238, 239. value of property disposed of by, 239. testamentary capacity required in, 239, 240. must be oral, 240, 241. real property cannot be disposed of by, 241. of soldiers and sailors, 342-244. in Louisiana, 243, 244. o. OBLITERATION — revocation by, 304, 305. (see Cancellation.) OCCUPATION — defined, 409-411. of dwelling-house and factory contrasted, 410. description by, prevails over distances, 410. OFFSPRING — fee tail created by limitation to, 862, 874. n. rule in Shelly's case applies to a remainder to, 890. means issue, 919, n. INDEX. 1-tTl References are to pagec. OLD PERSONS — testamentary capacity of, 160, 165. habits of, 160. loss of memory by, 161-165. OMISSION — if intentional cannot be filled. 500. when apparent at a glance, 498-501. may be supplied from context, 502-504. parol evidence to explain, 1404. OMISSION OF CHILDREN FROM WILL — does not revoke at common law, 3'25, 326. the rule at the Roman civil law, 327, 328. statutes regulating, 328. when intentional, 329. how intention may be shown. 330-382. provision for children must be substantial, 331, 333. parol evidence to show intention, 332, 333, 334. ONUS PROBANDI (see Burden of Proof). OPINIONS — of testator in politics and i-eligion, not insane delusions, 129, 130. OPPORTUNITY — undue influence not presumed from, 185, 186. "OR"— "and " may be substituted for, in case of a gift over on death under ma- jority, 448, 476, 477, 504-500. may be substituted for "and " in devise over on death " unmarried and without issue," 633. as a word of substitution to prevent lapse, 476-478, 504-506. ORAL WILLS (see Nuncupative Wills). ORCHARD — may pass with house in devise of messuage or premises, 403, 404. ORIGINAL WILL — not admitted in an action to construe, 013. ORPHANS— devises for support of, are valid, 1211. when half-orplians included, 1211. bequests to, may be void for indefiniteness, 1313. orphan asylums defined, 1197, 1212. ORNAMENTS — includes jewelry, 413. OWNERSHIP — misrecitals as to, in will, 628-633. OWNERSHIP OF LAND — gifts to advance reform in, 1215, 1219. P. PARALYTIC — tt'Stamentary capacity of, 176, 177. PARKS — d.' lined, 99, bequests to purchase and luaintaiii, 9S, 99. 1472 INDEX. References are to pages. PAROL EVIDENCE — not received to prove statute law, 30, 37. received to prove common and unwritten law or custom, 37. to sliow whether writing is a will, 47, 48. to raise trust ex malejicio, 221. to rebut presumption of undue influence, 325, 227. to supply or contradict date, 247. to show writing referred to not existent, 281. of revocation by destruction, 309-311. revocation by, at common law, 335-337. to show that omission of child from will was intentional, 332-335. to rebut or strengthen presumption of revocation, 317, 318. not received as direct evidence of intention, 333, 334, 599, 600, 604, 812, 957. of contract to devise, 392. not competent to confine meaning of word, 402, 812, 818, 1395. to show how much land comprised in term "farm," 408. to show intention to charge debts on land, 526. insufficiency of personal property may be shown by, 526, 527. to identify land devised, 408, 411, 1409, 1410. to show legacy is a charge, 545. to show legacy is substitutional, 572. to show intent of testator as to advancements, 599, 600. Jiot competent to show legacy is in satisfaction of a debt, 604. to show meaning of "grandchildren," 715. to show tlie testator meant to benefit illegitimate children, 755-757, 796. not received to extend meaning of heirs, 812, 818. not received to show intention to convert, 957. to show intention to put party to an election, 1023. to show circumstances, 488, 1396, 1398. to explain ambiguities, 1398, 1399. to identify subject-matter, 1401-1403. to show mistakes and supply omissions, 1404-1406. to explain the meaning of words, 812, 818. 1406-1408. PARSONAGE — bequest to build or repair, is valid as a charity, 1199, n. PART — defined, 433. PARTIAL PROBATE — of will procured by undue influence, 223. PARTIES — to suit to establish lost will, 372, 373. to action to construe will, 610. trustees proper, to all actions relating to trust property, 1133. PARTITION — of land in trust does not terminate the trust, 1114, n. words of, create tenancy in common, 700-703. conversion of land of infant tenant in common by action for, 983. PART PERFORMANCE — as taking contract out of statute of frauds, 389. PASSIVE TRUSTS — abolished by statutes, 1096, 1098, 1110, trusts to convey are not, 1098. PASTURE — included in devise of farm, 405, 407. PAUPERS (see Poor; Municipal Corporation; Charities). INDEX. 1473 References are to pages. PAYMENT — postponement of, effect on legacy, 442, 578. of legacy, lapse in case of legatee's death before, 461. survivorship in case of, at majority, 46"2. of legacy, must be one j-ear after death of the testator, 574. effect of postponement of, by executor, 575, 576. direction for, does not always create power of sale, 1118. of annuities, is yearly, 1084. of annuities at short periods, 1085. (see Division.) PENCIL — validity of wills written in, 248. no presumption against the use of, 248. spaces filled by, 249. alterations in, 865. presumption as to finality of cancellations in, 316. PER CAPITA — distribution among relations, 790, 791. distribution among, when in equal shares, 924. distribution among descendants is, 927. issue take as purchasers by, 919. (see Distribution; Per Stirpes.) PERFORMANCE — of conditions, when impossible or illegal, 645, 646. differs when condition is precedent or subsequent, 646, 647. when impossible without fault of legatee, 647. of illegal and impossible conditions attached to legacies, 648, 649. the waiver of, 649. when repugnant to estate devised, 649, 650. ignorance of legatee does not excuse non-performance. 659. of condition requiring residence, by miuor or adult, 676, 677. PERPETUITY — the creation of, by restrictions upon alienation, 685-688. created by the nature of a power to appoint in A. or his heirs, 1181. in a power to re-settle estate on successive births of life tenants, 1181. lives must be in being at date when donor confers power, 1182, 1855. when a power to appoint among issue is invalid as, 1182. a power to appoint among children or grandchildren may be invalid as a, 1182, 1849. distinction between general powers and special powers as to the crea- tion of, 1183, 1184. appointments to a class may be separated when partially void as cre- ating, 1188, 1184, 1805. limitation in default of an appointment under a power may be, though by the power none is created, 1188, 1184. may be created by a general power to be exercised by a will, 1184. created by a fee tail, 861. not created by a future use after an estate in tail, 1108. law of, is applicalile to shifting uses, 1107. trust must nut offend rule of, 1110. if created by a jtrivat*.' charity tlie trust is void, 1195-1197. definition and general considerations, 1888-1810. remoteness of contingent remainders, 1840, 1842. the modern rule of, 1848-1847. the possibility of tlie contingent event, 1847-1850. future estates to unborn |)<,'rsc*s, 11M2, 1819-1851. created by gifts to grand(;liilclrfn, 1851-lli58. [jeriod must be nieaMin-d by life or lives, 1858-1855. period to begin at the death of the testator, 1182, 1855, l850. not a|)()licabll actual view by testator not necessary, 268, 269. adjacent room may constitute. 269. ability of testator to see, 270, 271. "PRESENT DEBTS"— meaning of, 23. PRESENT TIME — construction of words referring to, 21, 22, 410. PRESUMPTION — of survivorship in death by common disaster, 26-28. of domicile, 40. of acceptance of bequest by person non siii juris, 104, 1077. of testamentary capacity, 10(5-109. of sanity, where testator had been insane, 110, 133-137. of continuance of intoxication, 153-155. of revocation, when will is found mutilated, 307, 313. of revocation from loss or disappearance of a will, 317-321, 371, 373. that consent to a marriage has been given, 659. of revocation rebutted by parol, 332-334. of revocation from destruction or disappearance of one copy of dupli- cate vrills, 356, 357. of the date of alterations in a will, 363-365. as to repeated legacies, 569-572. of satisfaction, 589-607. against intestacy, 617. of legitimacy of children, 749, 750. in favor of heir, 627, 628. from false statement that legacy has been given, 630. that legitimate children are meant in devise to children, 753, 753. as to primary meaning of technical words, 811, 818. that "heirs of the body" are used in a technical sense. 886-888. in case of election that man intends to dispose onlv of his own prop- erty, 1008, 1011, 1013, n. under statute that general devise is in lieu of dower, 1051, 1052. that gift of personal property is not in lieu of dower, 1054. of acceptance of trust by interference with trust property, 1125. of proper performance of duty by trustee, 1131, 1145. against validity of purchase by trustee, 1140. of ratification by beneficiary of sale by trustee to himself, 1141. PREVENTION OF LAPSE — intention must appear in will and cannot be shown by parol, 444. clear terms required, 444. gift over in case of death indispensable, 444 if death under majority, 444. words of succession do not, 445. by gifts to heirs, assigns or representatives of legatee, 445, 446. PRICE — effect of direction to sell land at a fixed, 971, 973, PRIEST — may testify to the mental condition of the testator, 140. will in favor of, not necessarily undue, 210, 211, 1257. PRIMOGENITURE — its influence ujjon the right to devise lands, 7. ixDEx. 1479 Eeferences are to pages, PRINTED FORM — use of, invalidates holographic will, 16. revocation clause permitted to remain in, by mistake, 353. will on, is in writing. 240, 247. danger of employing, for wills, 247. PRIORITY — among legatees from intention or character of gift, 537, 538. PRIVATE CHARITY — is invalid if creating a perpetuity, 1195. illustrations of what is a, 1195-1197. PRIVILEGE — waiver of, as regards attorney or physician, 286, 287. PROBATE — refused to contingent wills, 14. takes effect from, and by relation back to death of testator, 21. of lost wills, 369, 370. of foreign wills, 384, 385. writings which are incorporated by reference, 382. PROBATE COURTS — their jurisdiction over donations causa mortis, 1065. jurisdiction to construe will, 612. PROCEEDS — means income or interest, 429. may mean the results of sale in case of real property, 429. of sale of real property may be included in bequest of personal prop- erty, 414, 418. of insurance policy, may be bequeathed, 70-73. PROCREATION — words of, necessary to create fee tail, 862. PROHIBITION — gifts by will to advance, 1215, 1219. PROMISE — to dispose of property given by will inferred from silence, 220. of one binding on several, 221. trusts ex malejlciu created by, 218-223. to dispose of property may be proved by parol, 233-224. PROMISSORY NOTES — pass under bequest of money, 420. gift causa mortis of, 1071-1073. when they are wills, 52. PROPERTY — synonymous with estate. 396. the will need not dispose of, 8, 10, 255. includes botli real and personal, 400. intangible and invisible things are, 100. may be confined in meaning to real propert}'. 100. meaning of, restric;ted by wfjrds (jI locality, iOl. meaning of, restrained by wcjnls vjnsdtin generis, 401. when after-acquired land passes umler, 402. parol evidence not received to confine meaning, 402. PROVISIONS — gift for life of, confers ubHolutc interest, 948, 919. 14S0 INDEX. References are to pages. PUBLICATION OF WILL — when unnecessary, 278, 279. defined, 278. mode and form of, 279. by silence and actions. 280. in answer to questions, 280. object of, 280. must be made at tlie time of the execution, 281. PUBLIC POLICY — consideration of, at basis of conditions in partial restraint of marriage, 651-654. gifts by will to procure changes in existing laws not opposed to, 1216, 1217. PUBLIC SCHOOLS — gifts to municipal corporations for, 97. 98. gift to endow, is valid as a charity, 1203-1205. PUNCTUATION — not important in a will, 509. may be corrected or disregarded, 509. parol evidence to illustrate, 510. PURCHASE — creation of tenancy in common by, 700. substitutional legatees take by, 476, 477. children as word of, under the rule in Wild's case, 770, 772, 773, 892, n. heirs and next of kin taking by, 810-845, 884-888. executors and personal representatives taking by, 846-858. as a word of purchase, 866, 892, n. eldest son as a word of, 866. heirs of the body as words of, explained by children, 871, 872, 888. issue a word of, 918-922. when children take by, 711-751, 892, n. PURCHASE-MONEY — equity will follow in case of a trust, 1148-1151. PURCHASE OF TRUST PROPERTY — by trustee invalid, 1139. payment of adequate price not material, 1139. after termination of trust, 1140. presumption against validity of, 1140. cestui que trust may affirm by silence, 1141. acquiescence after conveyance to bona fide holder, 1141, beneficiary must repay purchase-mone}% 1142. measure of trustee's liability, 1142, 1143. Q. QUESTION — publication of will in response to, 280. E. RATIFICATION — by executor of power of sale executed by co-executor, 1123. by cestui que trust of purchase by trustee for himself, 1141. READING WILL — to the testator is necessary, 201, 202. INDEX. 14S1 References are to pages. REAL ESTATE — passes under a devise of "property," 401. 402. passes under a de%-ise of " all effects." 416. the word "devise" when used in connection with " effects " carries, 417. is not ejusdem generis with money and securities, etc., 413, 414. deed to, in box does not pass by gift of contents, 427. devise of proceeds of, 429. passing by the word "legacy." 430. 431. capacity of alien to take, under will, 82-84. lapsed devise of, when going to heirs and when in residuum, 449-451. REAL PROPERTY — devises of, construed by lex loci rei sitce, 29. power to devise future and contingent interest in, 56-64. acquired after the execution of the will, 75-80. cannot be disposed of by nuncupation, 241. passes under the term "estate," 397, 398. RECEIPT — character of executor's and trustee's, 1188, 1139. RECEIPT OF LEGACY — distinguished from actual receipt, 460. RECITAL — that legacy given is in addition. 630. that legacy has already been given, which is untrue, 630, 631. implied gifts arising from false or erroneous, 628. when constituting a gift, 632. of amount of legacies given. 632, 633. of number of children, 743, 744. RECOMMENDATION — trust created by words of, 1151, 1153, n., 1156, 1158. RECONVERSION — in case of land sold to pay debts. 959, n., 960. takes place when land is sold without consent, 970, 971. of land or money which has been converted by the order of a court, 981-9.^3. on a failure of the testamentary purpose. 986. when sale was directed for an unlawful purpose, 988. when proceeds are only in part disjiosed of, 988, resulting trust for the heirs, 987, 988. resulting trust for the next of kin, 988. the person who takes when purpose fails, takes the property as it is, 989, 990. RECONVEYANCE — will be decreed when trustee sells trust property to liimself, 1142. RECORD — of writing to show that it is a deed and not a will, 54. RF^EXECUTION- defined, 294. not synonymous with republication, 294. exprt'ss, (iffined, 295. constructive, delint-d, 295. by H codicil. 295. 29(5. by parol, not sudicji-nt, 297. jfrt'siiinption (jf, wIk-ii rebutted, 298. do'.'M not revive an adtM-tneil legacy, 298. effect of on jiflerinviiiiri'd l.md, 298. 299. of holo;een revoked, 1366, .167. of powers defectively executed, ordiied in ec|iiily. 1165-1168. 1482 INDEX. Roferencos are to pages. REFEREXCE — incorporation of non-holograpliic wills by, 17, 18. REFORM — condition as to, of legatee. 643, G83, G84. gifts to procure, when charitable, 1215-1217. REGISTRATION — ot writing as proof of its testamentary character, 53. of birth to show age, 727. REJECTION — of words and clauses which are repugnant, 485-487, 874. of meaningless words, 493, 889. incase of devise over on death "unmarried and without issue," G33, 634. of the words " what remains " coming after fee, 945, 946. RELATIONS — defined, 784. confined to statutory next of kin, 785, 835. of a particular name, 785. husband and wife are not, 785, 786. husband or wife may be included among, by reference to the statute, 785, 786. the word in the singular number, 787, 788. for benefit of, when poor or worthy, 788, 789. powers of appointment and selection among, 790, 791. when meant by " family," 782, 784. (see Child en Ventre sa Mere.) RELATIVE — gift to, does not lapse, though not to him nominatim, 440. defined, as used in statute, to prevent lapse, 453. RELEASE — of debt, direction to execute. 443. of powers of appointment, 1180. RELIGION — bequests for, validity of, 1199, 1200. form of, not material to the validity of the bequest, 1200. bequests to sustain missionaries and circulate literature to propagate, 1200, 1201. equity will not control discretion of a trustee who has power to dis- tribute bequest for, 1201. bequests for masses void in England. 1202. provision for masses is valid in tlie United States, 1202, 1203. duty to provide for poor is a part of, 1207, 1208. gifts for, to be distributed by trustee, 1243-1250. gifts for the support of, are not invalid as superstitious in America, 1256-1261. invalidity of devises to Roman Catholic churches, 1259. maintenance of public cemetery, 1222. RELIGIOUS CORPORATION — member of, as an attesting witness, 265. REMAINDER — power to devise, 56, 62, 63, 1289. whether vested or contingent, 465-468, 1291-1321. to survivors, 471. to a class, when vested, 477, 1304-1.307. to children of members of class by substitution for parents, 478, 482. by implication, by devise over on death of life tenants, 624. by implication on remarriage, 625, 1293, 1294. dependent on indefinite failure of issue, 625. to children as joint tenants, 704. INDEX. 14^'3 References are to pages. REMAINDER (continued) — to children by name, 720. 721. to children "now living" or "surviving." 728, 729. to children as a class simpiiciter, 731, 734. when vested, 731-734. to children of A. after death of B., 733, 734. to child en ventre, is valid, 747. to children after life estate in parent under rule in Wild's case, 773, 774. to heirs, vrhen class ascertained, 810, 814, 1291-1293. to heirs after life estate in heir, 815. to heirs after life estate in sole heir, 81G. to next of kin, 842, 843. gift of, to legal or personal representatives, 849, 850. to issue, effect of added words of inheritance, 912, 913. to issue in indeterminate language, 91(5. to issue, but if one child, tlien to him, 921. to issue, provided they attain majoritj', 922. to issue share and share alike, 923. tenant of, may elect as against life tenant, 996, 1033. 1034. tenant of, not bound b}'^ action of trustee of life estate, 1114. when life estate is legal and remainder equitable, rule in Shelly's case does not apply, 894, S95, 995, n. to children. Shelly's case does not apply to. 870. cannot begin in the future or be limited after a fee, 1344. (see AccELERATiox; Life Te.naxt; Peupetuities; Vestlng.) REMARRIAGE — acquiring domicile by, 43. remainder on, 625. conditions against, 663-667. REMEDY — of party under breach of contract to devise, 388, 389. REMOTENESS — in creation of a power, 1181. in the execution of a power, 1181. of devise over on an indefinite failure of issue, 1276-1278. rule of, as applied to contingent remainders, 1287-1290, 1344-1346. (see Peupetuities; Vesting.) REMOVAL— of furniture or personal property from house, eflfect of on bequest of, 427, 428, 561, 562. REMOVAL OF TRUSTEE — by agreement of all beneficiaries, 1130, n. if insolvent, insane or neglectful, 1131. may take place when he cannot agree with beneficiaries, 1131, burden of proof on party demanding, 1131. RENT — anciently payable in farm |)roduce, 407. of land, goes to tlie devi.see. 567. RENT ClIARtJE — defined and distinguished fmm aiiniiity, 1079. may be a lien on land in hamls '.» '.•51. direction tliut devisee Hball not enjoy. 641), O.'iO. direction to pay, mukcH use active, 10'J6. 14S4 INDEX. References are to pages. RENUNCIATION — of dower, liow made, 1053, 1053. of the executor, 10, 11. of trust by a trustee should be promptly made, 1125, of trustee, new trustee may be appointed, 1129. REPAIRS — paid by life tenant, 587. REPETITION — of legacies, 568-574. REPRESENTATION — use of words of, in preventing lapse, 445, 446. REPUBLICATION— "by codicil, 11. may prevent failure of legacy to witness, 287. effect of, upon satisfied or adeemed legacy, 606, (see Re-execution.) REPUGNANCY — of words directing equal division among heirs, 871, 872. of conditions, 649, 650. REPUGNANT CLAUSES — latter of, prevails, 485-487. clear gift not cut down by vague words, 487, 490, 945-947. must be reconciled if possible, 341, 342. (see Rejection.) REPUTATION — as proof that testator meant to benefit illegitimate child, 756, 766, REQUEST — to attest a nuncupative will, 236. by testator that witness shall attest his will, 261, 262. by witness that his name be signed for him, 273. no constructive conversion when sale is to be made upon, 969, 970. to sell, must be made by a majority, 971. RESIDENCE — devise of, described by its occupation, 409. conditions requiring, 642, 675. what constitutes, 676. of minor legatees to fulfill condition, 677. requirement of, excused when illegal, 647. (see Domicile.) RESIDUARY CLAUSE — passes after-acquired land, 77, 78. may include after-acquired personal property, 65. does not take in lapsed devise at common law, 449, 450. by statute includes lapse and void devises, 450. includes lapsed legacies, 450. intestacy in case of lapse in a disposition made by, 451, 452. of particular fund, 451. enlargement of meaning of, 617. omission of, as extending effect of clause of introduction, 933. satisfaction of, by portion, 597. resulting trust in, on failure of disposition, 627, 628. RESTRAINT OF MARRIAGE (see Maeriaqe, Conditions Restraining> INDEX. 1485 References are to pages. RESULTING TRUST — a possibility of, may be devised, 59. for heirs where secret trust is invalid. 222-224 in heir on failure of devise in trust, 02.'5-627. in land directed to be sold, 026, 987-990. in land sold to pay debts. 020. none in land devised charged witii payment of debts, 627, 628. for heir or next of kin on failure of the purpose of a conversion, 987- 990, 1113. RETROACTIVE STATUTES — regulating execution and revocation, 23. RETURN OF LEGATEE — may be condition precedent to vesting of legacies, 042, 069. what constitutes, 069. notice to legatees, 609. period allowed for, 070. REVERSION — expectant on estate tail, may be devised, 59, 61, 63, REVIVAL OF WILLS — how made when will revoked, 346, 366. in case of express revocation. 306. when presumption is created, 366. none by statute, unless will is re-executed, 367. REVOCATION — of gift causa mortis, 1060. of donation causa mortis implied from survival of donor, 1068. REVOCATION OF WILLS — may be express or constructive, 302. when implied, 303. the intention and the act must coincide, 303, 305. by blind testator, 305. by destruction, tearing, burning, 300. testator must have testamentary capacity, 307. unintentional destruction is not. 308. incomplete destruction is not, 309, 311. by cancellation or obliteration, 315, 316. by pencil cancellations. 310. effect of erasing testator's signature as, 317. presumption of, from loss or disappearance, 317, 318. placing among waste papers, 319. declarations to rebut presumption of, 319-321. by woman's marriage, 321-323. by execution of power, 323. 324. of a man's will by his marriage, 324-327. by birth of children, 327-330. what provision for childi'en prevents, 330-335. by change in circumstances, 335. by parol, 335, 336. Ijy non-tHstamentary writings, 336, 337. by later wills and codicils, 337-339. intention to revoke; must ai)i)ear, 339. by c'odicil partly invalid, 310, 341. by latir will making inconsistent disposition, 841-343. when f:oti(lili(jnal. 311-310. founded upon mistaken assumption of fact, 340,347. by invalid cunvcyance, 3IS, 349. revocation of apixjintment of executor, 310, 351. whiMC several undated or of same date, 351, 352. revocation of codicil, 351, 352. 14SG INDEX. References are to pages. REVOCATION OF WILLS (continued) — not by clause of revocation inserted by mistake, 353, 354. b}' inconsistent disposition, 354, 355. by codicil not disposing of property. 355, 356 when executed in duplicate, 35(3, 357. not implied from insanity of tiie testator, 358. not implied from adoption of a cliild, 350, 360. not implied from the divorce of the testator, 360, 361. by subsequent lost wills, 361. effect of alterations, 302-365. presumption as to time of alterations, 363-365. revival of revokeil wills. 365-368. distinguished from ademption, 566, 567. joint and mutual wills, 19, 20. of personal property by change of domicile, 31. of prior gift by inaccurate statement. 631, n. of devise to heir not caused by a false statement in will that he has been disinherited, 631, n. not implied from inaccurate description of amount of legacy given, 632, none by mistaken designation of prior devisee, 631. absence of presumption of, indicating freedom from undue influence, 190, 191. when indicating undue influence, 190. of devise by sale, 972-974. of wills executed under contract to devise, 390. REVOCATION OF ELECTION — not permitted when grounded on ignorance of law, 1013. by widow when not informed of riglits, 1014. allowed when procured by fraud, accident or mistake, 1013, 1014. allowed where party has been deprived of time and opportunity to ac- quire information, 1015. under wiiat circumstances allowed where party has died, 1016. party must restore what he has taken, 1015, n. RIGHT HEIRS — construed, 821. RIGHT OF ACTION — may be maintained against executor by donee causa mortis, 1066, 1067. RIGHT OF ENTRY — enforcible by ejectment, 640. accrues on breach of condition, 638. on condition, may be devised, 57-59, 61. RIGHT OF WAY — by necessity, when passing by devise of house, 405. ROMAN LAW — its principles applied by church courts, 651. ROMAN TESTAMENT — compared with Anglo-Saxon will, 3. SAILORS (see Soldiers and Sailors, Nuncupative Wills of). SALE — resulting trust in case of sale of land for debts, 62.5, 626. of land may show intention to take it unconverted, 994. (see Power of Sale.) INDEX. 1187 References are to pages. SALVATION ARMY — gift to, 1242. SANITY — presumption of, 106-108. SATISFACTION — defined, 589, 590. distinguished from election, 590, 591. distinguished from ademption, 591, 592. of legacy by subsequent portion, 593. may he pro tanto, 592, 597. difference in legacy and portion. 598. 594, 597. by gift to husband of legatee, 594, 595. legacy and portion must be ejusdem generis, 595. testator in loco parentis, 596. of residuaiy legacy by portion, 597. • none where advancement precedes will, 597, 598. expi'ess directions to account for prior advancements, 598, 599. of marriage portions by legacies, 599, 600. of legacy given for a particular purpose, 601. of bequest to creditor, 601-603. of legacy to wife or child who is a creditor, 604. of legacy to debtor of testator, 605, 606. effect of republication of tlie will, 606, 607. disposition of satisfied legacies, 607. of gift causa mortis by a legacy, 1077. SCANDALOUS MATTER — may be erased from the record of the will, 510. SCHEDULE — incorporated in will by reference, 381, 383. SCHOOLS — validity of gifts to municipal corporation for, 97, 98. is not charitable if school is private, 1196. SCIENCE — bequests for the advanccmant of, valid as charitable bequests, 1206, 1213, 1220. SCINTILLA JURIS — the doctrine of, defined, 1106. SEAL — on writing as evidence that it is not a will, 53, 247. tearing off, may constitute revocation, 312. SEARCH — necessary for a lost will, 371, 372. SECONDARY USES — defined, 1107, 1108. SECOND COUSINS — included in gift to cousins, 805. SECOND MORTGAGE — power of trustee to invest in, 117. SECRE(;Y — of execution of will as evidence of undue influence, 186, 187. SECRET TRUSTS (see TuusTS KX Mamcimcio). SEIZIN — (laviHor must have, at common law. 5(1, 57, 65. not now minimi uiidoiiitment by will, 944-916. deflnrj.l, 1103. if imperative, may be executed in equity, 1160. iimst bf restrained within limits indicated liy donor, 1170. to deviHf, may be exfciitcd by devisi; in trust, 1177. perpetuity may be created by, more readily than by a general power, 11 H^ (see also Power of Ai'I'oi.ntme.n'T.) 1490 INDEX. References are to pages. SPECIFIC DEVISE — every gift of land is, 567. ademption of, by parting with the land, 5G7. SPECIFIC LEGACY — must be exonerated from incumbrances, 538. when in pledge must be redeemed by executor, 538. of leasehold, 5'6d. of shares, is liable to calls, 539, 540. defined, 557, 565. a sum of money in bag, box, etc., is, 557. distinguished from demonstrative, 557. of stocks, bonds, debts and securities, 558. reference to ownership as peculiar to, 558. legacy of "stock out of stock," 559. incidents of, 559. carries all interest and other accessions, 560, 561. the ademption of a, 562-565. of securities to life tenant, 585, 586. SPECIFIC PERFORMANCE — of promise to hold property devised in trust, 219, 220. of contract to devise, 887, 388. SPENDTHRIFT TRUST — definition and validity of, 692-694 SPIRITUALISM — belief in, not delusion, 128-130. evidence of, is relevant, 129. its bearing on undue influence, 130. SPORT — gifts for the encouragement of, are not valid as charities, 1198. SPRINGING USES — defined, 1107. STABLES — may pass with devise of house, messuage or premises, 403-405. STATE — validity of charitable bequests to the, 1213, 1214. STATUTE — effect of, when enacted after the death of the testator, 25, 26. applicable to after-acquired real property, 26. mode of proof of, 36. preventing lapse applies to class gifts, 440. abolishing lapse, construction and effect of, 452-455. retroactive effect of, upon joint tenancy, 706. regulating the adoption of children, 717, 718. STATUTE OF DISTRIBUTION — reference to, as affecting construction of words "next of kin," 837-839, 845. STATUTE OF ELIZABETH— ^" ^' .jurisdiction of common law over charities prior to, 1186. jurisdiction of equity prior to, 1186-1189. has been expressly repealed in some states, 1191, 1195, n. jurisdiction of equity in the United States over charities aside from the, 1191-1194. objects of the, 1191, n. in what states re-enacted, 1194. devise for the poor valid under, 1207. miscellaneous charities valid under, 1219. IXDEX, 1491 References are to pages. STATUTE OF FRAUDS — not applied to trusts ex maleficio, 219. requires wills to be in writing. 246. regulating nuncupative wills, 236, 241. publication of will not required by, 278. requires revocation to be in writing, 304, 335-337 requires revoking will to be attested, 336. provisions of, applicable to real and personal property, 336, 338» writing required to execute a power over real property, 1165. requires contract to devise to be written, 389, 390. contracts to bequeath are not under, 389. effect of part performance, 389. STATUTE OF USES — origin and construction of, 1095. strictly construed. 1096. executes the use, 1096. not applicable to uses in leaseholds, 1096. active uses not executed, 1096-1099. uses for married women not executed, 1100. use on a use not executed, 1103. in the United States, 1103, 1104. effect on future uses, 1104-1106. application of, to modern trusts, 1108, 1109. trust estate executed in remainder by, 1114. STEP-CHILDREN — excluded from provision for children, 716. legacy to, as a class, 716. may be included in gift to children when testator has no children of his own, 716. STEP-DAUGHTER — gift to, 800. STIPULATION — lost will not admitted to probate upon, 376. STOCK — legacies of, are specific, 558-560. legacy of, when adeemed, 564. \ ademption by sale, 564 ademption of legacy of, not by mere change in form, 565, STOCK IN TRADE- does not pass under bequest of furniture, 424. STOCK ON FARM — includes domestic animals, but not crops, tools, implements, eta, 412f, 425. STORE — occupation of, 410. STRANGERS — alterations by, 363-365. STUDENT — domicile of, 42. condition that legatee shall become a, 680. SUBJECT TO MORTGAGE — defined, 528, 529. SUBSCRIPTION — by tostator reriuired to holographic will. Id. when ro(iuirL'il, 21'J-254. of altcHting witnesses, 205. on shares, 540. 1102 INDEX. References are to pages. SUBSEQUENT — meaning of, applied to conditions, 641-644. SUBSTITUTION — of word " or " for "and," 633, 634. "and" for "or," 438, 633, 634. SUBSTITUTIONAL GIFTS — to prevent lapse in case of death, 476, 827. introduced by word "or," 477. when the vesting is postponed, 477. to classes and to the children of deceased members of the class, 478. 479, 1312, n. when members of the class are dead at the date of the execution, 479- 481. future death in contemplation, 483, 484. contingent character of, 482, 483. to personal representatives, 848, 850. SUCCESSION — words of, to prevent lapse, 445, 446. SUICIDE — as evidence of insanity, 124, 126, 150. SUNDAY SCHOOL LIBRARY — gift to, may be valid as a public charity, 1196, 1230, 1243. SUPERSTITIOUS USES — in England gifts for masses are void as for, 1202, 1259. doctrine of, not recognized in the United States, 1203, 1259, 1260. SUPPLYING — language to the will, 498, 500, 501. SUPPORT — provisions for, 429, 430, 547, 548. of legatee, when a condition, 548, 549. personal liability of devisee for, 548, 549. of legatee charged upon land, 550, 551. residence, when requisite, 550, 551. what constitutes sufficient. 550, 551, 1887. interest on legacies for, 578, 579. of legatee excused by his death, 647. of wife living away from her husband, 681, 683. life estate with power of sale for, 940-944. annuities for, do not end with minority, 1081. trust for, is active, 1096. SURNAME (see Name). SURPLUS — legacy of, after a void bequest, 1223, n., 1392. ^SURVIVORSHIP — presumption of, in case of death by common disaster, 26, 27. as between joint tenants prevents devise of, 65. in joint tenancy prevents lapse, 438, 700. difficulty of framing clause of, 456. "in case of death " means death in life-time of testator, 457-459. until payment of legacy, 459-462. in connection with special contingency, 462-465. death without issue, 466-469, 1277. period of, in legacies to individuals or classes, 469. when the vesting is postponed, 470-472. during life of particular tenant, 472. meaning of the word "survivors," 472, 473. disposition of shares accruing by, 474, 475. INDEX. 1403- References are to pages. SURVIVORSHIP (continued) — among joint tenants, abolished by statute, 705, 706. words of, create joint tenancy, 706. among members of a class who take a remainder, 439, 704, 729, 73t, 734, 1305, 1306. gifts to persons "then living." 1806. death without issue coupled with a limitation in, 1277, 1278. among children who take as a class, in remainder, 729, 731, 734, 1305w implied, among life tenants, 624. SUSPICION — of wife, is not insane delusion, 127, 128. T. TAIL (see Estates Tail). TAXES — paid by life tenant, 587. TEACHERS — bequests to city to pay salary of, 98. TEARING — revocation by, 304. by testator not having capacity, 307. by accident or mistake, 308. cutting will may revoke, 312. of will, effect of when incomplete, 310. TEMPORARY INSANITY — from delirium tremens, 151-153. TENxiNCY IN COMMON — promise of one, does not bind others, 221. power to devise estates held in, 64. 65. legacies to several in, lapse on death of one, 437, 433. survivorship expressly among, 469. distinguished from joint tenancy, 699. four unities in, 700. partition among, 700. language creating, at common law, 700, 701, 702. created by implication, 702. favored in equity, 702. created by words indicating division, 701, 703. in an estate tail, 703. of a devise in fee of same land, 703. in class gifts, 469, 704. 871, 872. statutes regulating. 705. presumption of, under statutes, 705. direction that lieirs of the body shall take in, 871, 872. effect of, in case of remainder to issue, 914, 915. minority not bound by election by tenants, 1034. TENANT IN TAIL — must elect between inconsistent benefits, 1002, n. may elect to take property unconverted, 997 TENDER — of legacy to stop interest, 574 TENEMENT — messuage synonymous with, 402, 403. includes more than land. 403. includes everytliing whicli may be holdcn, 403. when tlie word means a dwelling, 403. 149J: INDEX. References are to pages. TESTAMENTARY CAPACITY — burden of proof, 106, 107. degree of. required, 111-114. ability to carrj' on business, 113-116. insanity destroys, 117, 118. delusions, 119, 120, 125. ^ of those who are eccentric, 120-125. as influenced by mistake and prejudice, 126. 127. as influenced by suspicion and jealousy, 127, 128. belief in spiritualism and witchcraft, 129, 130. during lucid interval, 131-133. burden of proving lucid interval, 133-137. relevancy of evidence, 137, 138. expert evidence to show, 138-140. non-expert evidence to sliow, 140-142. insanity in the family of the testator, 144. evidence of past and present mental condition to prove, 144, 145. unnatural discrimination as evidence of lack of, 145-148. declarations of the testator to show, 148, 149. suicide of the testator, 150. of drunkards, 150-156. of persons addicted to the use of drugs, 156, 157. of epileptics, 157. of idiots and imbeciles, 157-159. of aged persons, 160-165. of blind persons, 166-168. of deaf mutes and illiterate persons, 168-170. of infants, 170, 171. of married women, 171-174 of convicts, 174. 175. of paralytics, 176, 177. necessity for, to revoke, 306, 307. always present where undue influence is proved, 183. uecessarj' to make nuncupative will, 239. attesting witness who attacks, may be impeached, 293. TESTAMENTARY POWER — origin and history of, 1-6. control of, by legislature, 23. THELLUSON WILL — facts of, 1379, n. TILDEN'S WILL — explained, 1235, n. TIMBER — passes as a part of the land, 413. TIME — from which will speaks, 21, 22. for performance of condition, 645, 646. for performance of condition that A. shall marry B., 655. discretion as to, may prevent conversion, 963-965. of conversion, is death of the testator, 965-967. of sale dependent on consent, 966. within which an election must be made, 1032, 1053. «T0 BE BEGOTTEN" — construed. 735. TOWN HALL — validity of bequest to purcliase and maintain, 98. INDEX. 1495 References are to pages. TRANSPOSITION — of words and clauses, 495. allowed to reach intention, 496. parol evidence not competent to show necessity for, 496. language need not be meaningless or contradictory, 497. TREASON — land enfeoffed not forfeited for, 1094* TREATIES — permit aliens to devise, 88. TRUST ESTATES — may be devised, 61. municipal corporation cannot be trustee of private or religious, 97. lands in, for payment of debts administered in equity, 514. in equity on breach of contract to devise. 387. to protect fund from insolvency of beneficiary, 693. rule in Shelly's case applicable to, 895. distinguished from estate upon condition, 640. remedy is in equity to enforce, 640. early history of, 1092. jurisdiction of chancery to enforce, 608-610, 640, 1093. the statute of uses, 1095. in leasehold lands. 1096. when active are not executed by the statute, 1096-1100. for married woman not executed, 1100-1103. use upon a use not executed, llOo. statute of uses in the United States, 1103, 1104 future and executory uses, 1104-1100. shiftmg, springing and contingent uses, 1106. in modern times, 1108. statutes regulating, in the United States, 1110, 1111. language by which created, 1111. for sale of land, 1115. by implication by direction that land shall be sold, 1111, 1115. distinguished from naked power, 1116. devise of land in, to executor to sell, 1118-1120. distinguished from use, 1109. subject to common-law rules, 1109. estate in, may be aliened by deed, 1109. (see Resultixg Trust; Power of Appointment.) TRUSTEE — revocation of appointment of, 349, 350. competency as an attesting witness, 282, 283. may ap|)ly for construction of a will. 609, 6l0. rnay withhold consent to marriage. 658. may not withdraw consent given, 658. consent may be presumed, 659. need not give consent in writing, 659. his consent may be dispensed with, 660. the consent of a majority of, 661. direction that legatee siiall not interfere in management by, 674. benchcial gifts to, 857-H59. equity will not contnji discretion of, 1201. his duties in relation to active uses, 1(U)6-1099. to convey land is a |)assive trustee, 109.8. having any duty to pirfonn is an active trustee, 1099. han leg.il estatf undi-r statute, lllU. beneliciary cannot sue, 1110. hi.s power of alienation, 1 10'.). when ap|iointed by implication, 1111. his iHtat'- may he a fee witlif>ut wurds of inheritance, 1112, 1 113. express life interest in, not inlargeil |»y ini|)li(iition, 1112. 1496 INDEX. References are to pages. TRUSTEE (continued) — when in fee, resulting trust may ensue, 1114. remainderman not bound by actions of, 1114. power of equity to appoint, 1112. power of, to sell trust propert}% 1115-1117. right of, to collect rents and profits, 1115, 1116. devisee takes land subject to power of sale in, 1117. when power of sale in, arises from implication, 1119. cannot be compelled to accept, 1135. refusal or resignation of. will not affect the trust, 1125. lapse of time does not release him from liability, 1125. maj' be estopped from denying title of the cestui que trust, 1126, n. power of equity to appoint new, 1126. on death of, the legal title vests in his heirs, 1126. interest of, may pass under a general devise, 1126. circumstances rebutting the presumption tl:at the estate of, passes under a general devise, 1126, 1127. whether discretionary powers of, descend to heirs or devisees, 1123, 1124, 1126. 1127. 1129. rule in New York as to appointment of a new trustee, 1129. . mandatory powers of. may pass to successor, 1130. removal of, may be directed when necessary for the interest of the beneficiaries, 1131. the merger of the estate, 1132, 1133. is in law legal owner. 1133. must be made a party to actions. 1133. his duty to collect and protect all the property in the trust, 1134. powers of, as to disposition of trust money, 1135. power to pay debts, 1137. his liability for the actions of his co-trustee, 1138. cannot purchase trust property, 1139. cannot delegate a discretionary power, 1124. may ratify power exercised by co-trustee, 1124, 1125. power conferred upon, when may be exercised by associate, 1124, 1127- 1129. power of equity to appoint in case of charity, 1236. ' may be appointed where money is given to non-existent corporation, 1236-1243. application to court to appoint must be made by person interested, 1237. must exercise care in investing funds, 1143. may not invest in personal securities, 1144. may invest in government bonds and mortgages, 1144, 1146. may have express power to loan on personal security, 1145. measure of care in loaning money on mortgage, 1146. not responsible for diminution of premium, 1147. purchaser from, must see to application of purchase-money, 1148, 1149. court of equity will execute a discretionary power in a, 1171, 1172. measure of liability when he mingles trust money with his own, 1335, 1136. (see Power of Appointment.) TRUSTS EX MALEFICIO — by promise of legatee, 218. specific performance, 218, 219. statute of frauds not applicable to, 219. actions by beneficiary which create, 220. created by statement of one of several, 221. may be raised by parol evidence, 218-221. resulting trust for heirs, 222-224. none where promise without consideration, 223. where testator is murdered by the beneficiary, 224. TYPEWRITING — will drawn in, 247. INDEX. 149 T References are to pages., u. UNATTACHED WRITINGS (see Incorporation op WRiTiNas). UNCERTAINTY — of gift to "family," 778-780. of gift to "poor relations,"' 788, 789, 1309, 1213. of bequest to " worthy " next of kin, 840. of bequest to next of kin excluding person who is sole next of kin, 841. degree of verbal certainty required, 1383-1385, conjecture not permitted to remove, 1386. in amount or quantity, 1386, 1387. in direction to support or educate a legatee, 1387, 1388. in direction to pay "same amount," 1388. of beneficiary, 1389, 1390. in gift of " wliat may remain," 1393. in devise to be taken in succession, 1394. parol evidence to remove, 1395-1409. UNCHASTITY — mistaken belief in veife's unchastity is not delusion, 127, 128. UNDUE INFLUENCE — exerted on morphine user, 155. of priest or other religious adviser, 210, 211. of wife, 211-313. of mistress, 213-315. fraud equivalent to, 215-217. must overcome will of the testator, 179. facts which constitute, 181, 183. mental condition of the testator is relevant to show, 183. existence of, implies capacity, 183. burden of proof, 184, must exist at the time of the execution of the will, 184, 185. not presumed from mere opportunity, 185, 186. circumstances which are relevant to show, 181, 187, 188. secrecy of the execution may indicate, 187. presumption against, from non-revocation. 190. alteration of existing will may indicate, 190, 191. unreasonable will, evidence of, 191. evidence to rebut presumption of, 193-195. inferred from fact of will being drawn by legatee, 194-197. relevancy of illness or weakness to show, 198-200. inferred from habitual drunkenness. 200. knowledge of tlie contents of the will, 200-203. in case the testator is unacquainted with the language in which the will is written, 203. 204. flattery, persuasion and importunity do not constitute, 205, 206. confidential relations between the testator and the beneliciary as in- dicating, 200-209. will not affected by, admitted to probate, 223. declarations of tesUitor to prove or disprove, 225-227. declaratifjiis of legatee or executor to show, 228-330, charitable gifts procured by, 1250, 1257. UNEQUAL DISTRIBUTION — not evidence <>( incapacity, 145-148. as evidence of undue influence, 191-193. evidence to exi)lain, 193, UNGRAMMATICAL LANGUAGE — may bo corrected, 499, 500. IttOS INDEX. Beferences are to pages. UNINCORPORATED ASSOCIATION — validity of charitable gifts to, 102, 1199. 1200, 1230. trustee appointed by court for, holds legal title for purposes of the, 1237, 1242. gifts to, invalid at common law, but sustained in equity, 1238-1242. rule in the United States as to gifts to, 1242. gifts to inhabitants of unincorporated community, 1241-1243. devise to, may create a perpetuity, 1361-1363. UNITY — of possession, title, etc., 699, 700. ^' UNMARRIED "— as used in a statute, defined, 323. means never having been married, 633. may mean not having or not leaving a husband or wife, 633, 634. meaning of death unmarried, 633. rejecting the word, 633. construed, 839, n. UNREASONABLE DISPOSITION — of property, relevancy of, 145, 146, 147, 148. USE — may be devised, 61, 62. defined, 1108. gift of, carries the land itself, 951. Y. VALIDITY — of contracts to devise, 386, 387. VALUE OF ESTATE — revocation not implied from increase in, 335. VENDEE — devise by, of land contracted to be purchased, 974. executor of, must pay purchase-money, 974. executor of, not liable if contract was not binding, 975, 976. VERACITY — of attesting witness, not conclusive, 291-293. VESTED REMAINDERS (see Vesting; Remainders). VESTING — of legacy, may prevent lapse, 437, 449. not defeated by delay in payment or receipt of legacy, 459-463, 722- 725. 1323. may cause words referring to death to mean in life of testator, 458. at majority, 722-725, 1315-1321. at majority of youngest child, 725, 726. of annuities, 1082. remainder must vest at end of particular estate, 1340-1342. definition and classification of contingent remainders, 1285, 1286, 1341. contingent remainder destroyed by destruction of precedent estate, 1287. the perpetuity created by a contingent remainder, 1287-1290. the assignability of contingent estates, 1289. the happening of the contingent events. 1289-1291. contingent remainders to heirs, 1291, 1292. contingent estates which depend upon the remarriage of a life tenant, 1293, 1294. remainders dependent upon the death of a life tenant without issue or children, 1295, 1296. INDEX. 14:99 References are to pages. VESTING (continued) — vested remainder defined, 1297, 1298. early vesting favored by the law, 1299-1301. examples of vested remainders, 1303, 1304. contingent remainders to classes, 1304-1307. effect of directions to pay money in the future, 1307-1309. remainders subject to being divested, 1311-1313. effect of a power of disposal upon a vested remainder, 1318-1315. of devises and legacies at majority, 1315-1318. contingent gifts which vest at majority, 1318-1321. limitation over on death under majority as affecting, 1321-1323. effect of gift of intermediate income on, in case of legacy payable at majority, 1323-1327. of legacies charged upon income of land, 1327-1329. executory devises, 1329-1333. the transfer of future estates, 1333, 1334. acceleration of future vested estates, 1334, 1335. (see Classes; Perpetuities.) VOLUNTARY SOCIETIES (see Unincorporated Associations). VOYAGE — contingent wills made in contemplation of, 12, 14. w. WAIVER — of condition requiring consent to marriage, 649, 660, 661. of condition that legatee shall not contest will, 649. WASTE — condition against committing, 649. WASTE PAPERS — placing will among, is not a revocation, 319. WEAKNESS — of testator to show undue influence, 183. WEARING APPAREL — passes under bequest of personal property, 414. "WHAT REMAINS" — meaning of, 489. devise of, void if after a fee simple, 489, 490, 1393. gift of, may be repugnant, 650. devise of, does not cut down a fee simple, 945-947. devise of, after gift witli power of disposal for support, 940-943. repugnant devise of, after a fee may be rejected, 945, 946. devise of, after a life estate with power of disposal for a particular purpose, 947, 1313-1315. devise of, after estate for support of A. and her children, 947. WIDOW — the heir or personal representative of, cannot elect, 1035. election of, if made in writing, 1023. election of, may be siiown by actions or declarations, 1024. must have time to ascertain value of gift in lieu <»f ilower, 1022. may revoke an election proc\ired by fraud or mistake, 1013-1016. dower of, in property converted, 985, 980. of testator or another, when allowed to take as an heir, 831, 832. prima facie means lawful widow. 8()1-S()4. devise to A. if she shall bccoinf, OS'J, 083, n. remainder on death of, 025. 1293, 1294. election by, conllict of laws, 32. (sec DowEK.) 1500 INDEX. References are to pages. WIDOWHOOD — validity of provision for one during, to be defeated on remarriage, 663, 664. 1220. r-393. the character of the estate, 666. may be for hfe or in fee defeasible on remarriage, 293, 667. WIFE — of legatee, her competency as an attesting witness, 283. jealousy of, is not a delusion, 127, 128. will procured by influence of, invalid, 211, 212. ante-nuptial relations of, to testator, 212. of legatee, does not take lapsed legacy as a relative, 453. legacy to, satisfied by gift to husband, 594. death unmarried may mean not leaving a, 634. provision for, while living apart from husband, 683. children by future, 719. gift to children of A. by particular, 719, 720. reference to, not a legal wife, 759, 760, 762. legal wife is presumed to be meant, 754, 758. in a gift to a family, 782. in a gift to relations, 785-787. devise to nephews and nieces of, 793, 794. her right to elect in the community property, 1054, 1055. lier right to elect in case of a devise of the statutory homestead, 1058, 1059. (see Married Woman; Husband and Wife.) WILD'S CASE, RULE IN — "children " may be a word of limitation under, 769, 770. application of, when no children alive at date of will, 771, 773. estates in fee tail created by operation of, 770-773. effect of, when children living at date of testator's death, 773, 773. "children" may be a word of purchase under, 771, 773. parent and children taking as tenants in common under, 773, 774. is applicable to personal property, 775, 776. rule in, applied to devise to issue, 911, 913. WILL — defined, 7. need not dispose of property, 8-10. distinguished fi-om testament, 8. need not appoint an executor, 9-11. WITCHCRAFT — belief in, is not delusion, 130. WITHDRAWAL — of consent to marriage, 658, 659. WITHOUT HEIRS — means without children, 834, 835. may mean without issue. 835. " WITNESS " — sufficient as an attestation clause, 275. WITNESSES — not required to holographic wills, 15. to insanity, 138-143. request to attest a nuncupative will, 236, 237. to execution other than those attesting, 291. (see Attesting Witnesses.) WOMAN SUFFRAGE — gifts to advance, 1318. INDEX. 1501 References axe to pages. WORLDLY ESTATE (see Estate). WRITING — consent to a marriage may be in, 659. WRITTEN WILLS — origin of, 5. T. YACHTING — bequest to encourage, is void as a charity, 119S. YOUNGER BRANCHES OF FAMILY — de&ned, 784 "YOUNGEST"— meaning of, 23. (jt^ ■^ Q .(^ ■BBL .