1833.

ELMSLEY

บ.

YOUNG.

Dec. 2.

The MASTER of the ROLLS.

The words "next of kin," must be taken to mean next of kin according to the statute of distributions. Upon the other point my present opinion is, that if there be a gift to a tenant for life, with remainder to his children, remainder, if he have no children, to the next of kin at the testator's death, and the tenant for life happen to be one of those next of kin, he is not excluded from taking in that character. The mere circumstance of a partial interest being given to a particular person does not exclude such person from the benefit of a larger or other interest given to him under another description. I shall, however, look into the authorities before I finally decide this point.

This day his Honor delivered the following judg

ment:

In cases of this nature the inquiry necessarily is, whether the next of kin, who are to take upon the failure of a particular gift to one for life with remainder over, are the next of kin of the testator or settlor living at his death, or the next of kin of the testator or settlor living at the death of the tenant of the particular estate. If the persons who are to answer that description are to be the next of kin at the death of the testator or settlor, and the tenant of the particular estate be then living, and be himself one of the next of kin at that period, he cannot be excluded from the benefit which is annexed to that character. If the next of kin, who are to take upon failure of the gift to the particular legatee or donee, are meant to be the next of kin living at the death of the legatee or donee, it is plain that such legatee or donee could not be intended to be included under that description.

This is the principle adopted in the case of Holloway v. Holloway and Jones v. Colbeck, although the decision in Holloway v. Holloway is in other respects questionable. In the case of Bird v. Wood, which was before me, the report is too short; the circumstance which governed the decision in that case, which has been referred to at the bar, although noticed in the statement of that case, is omitted in the report of the judgment. In the case of Briden v. Hewlett (a), which was subsequently before me, the testator gave all his property to his mother for the term of her life, with power to appoint the same at her death, and in case she should make no appointment, then "to such persons who would be entitled to the same by virtue of the statute of distributions." The mother survived the testator, and died without having made any appointment, and upon the original hearing of the cause I referred it to the Master to inquire who, by virtue of the statute of distributions, were entitled to take at the death of the testator, and who, according to that statute, were entitled to take at the death of the mother; and upon the hearing of the cause on further directions, I held that the persons to take were those who, by virtue of the statute of distributions, would be entitled at the death of the mother, the term would used by the testator being future, and it being evident that it could not be intended that the mother should take under that description.

In this case Alexander Elmsley, having survived Peter Elmsley, and being one of the next of kin at the death of Peter Elmsley, according to the unequivocal expression in the deed, I am of opinion that he cannot be excluded from the benefit which then devolved upon him in that character. As to the effect of the expression

(a) p. 90. infrà.

"next

1833.

ELMSLEY

v.

YOUNG.

1833.

ELMSLEY.

v.

YOUNG.

"next of kin," I had occasion fully to examine that point in Hinckley v. Maclarens (a), and I continue of the opinion then expressed, that where the words "next of kin" are used simpliciter and without explanatory context, they are to be understood as next of kin accordto the statute of distributions.

(a) 1 Mylne & Keen, 27.

ROLLS. 1831. Nov. 23.

A testator

gave his per

sonal estate to

trust to convert into money, and invest the same, and to pay the in

terest to his mother for her life; and

THE

BRIDEN v. HEWLETT.

-

HE will of William Bingham contained the following bequest: "I give and bequeath unto my trustees, upon friends William Briden the elder, and William Briden the younger, all my goods, chattels, money in the funds, personal estate and effects whatsoever and of what nature and kind soever, upon trust, in the first place, to convert into money all and such part of my estate and effects as are not already in money; and, in the next after the de- place, to lay out the same in government or landed security, and to pay and apply the interest thereof unto my mother, the wife of Timothy Hewlett, during her natural life. And I will and direct that her receipt only be a sufficient discharge for the same, nor shall the same be subject to the control or disposition of the should by her will direct and present or any future husband of my said mother. And appoint; and after the decease of my said mother, I give and bequeath all my goods, chattels, estate, and effects unto such person or persons as my said mother shall by her

cease of his mother he gave all his estate and

effects to such person or

persons as she

in case his said mother should die

without a will, then to such

person or per

sons as would

will

be entitled to the same by virtue of the statute of distributions. The mother survived the testator, and died intestate: Held, that the testator's next of kin at the death of the mother were entitled to the bequest.

will direct and appoint; and in case my said mother shall die without a will, then to such person or persons as would be entitled to the same by virtue of the statute of distributions."

The testator died, leaving Jane Hewlett, his mother, his sole next of kin, who died intestate. The children of Jane Hewlett's brother were the testator's next of kin at the death of Jane Hewlett; and the same children would have been his next of kin if Jane Hewlett had been then dead. The question in the cause was, whether the testator's personal estate belonged to Timothy Hewlett, as the husband and personal representative of the testator's next of kin at his death, or to the children of Jane Hewlett's brother.

Mr. Tinney and Mr. Norton, for the personal representative of Jane Hewlett, contended, that the testator's mother was entitled as next of kin at the death of the testator, and that the partial interest, which she took under the will as tenant for life with a power of appointment, could not exclude her from the interest which accrued to her as answering the description of the testator's next of kin. Upon this principle it was decided in Holloway v. Holloway (a), that a testator's daughter, who had an interest for life in the whole fund, was entitled to share with his other daughters in the residue of that fund bequeathed in trust for such person or persons as should be his heir or heirs. This principle was recognised by Sir William Grant in Jones v. Colbeck (b), and followed in Doe dem. Garner v. Lawson (c), where the tenant for life, a nephew of the testator, was held to be entitled to a share of real estate devised in remainder to such persons as would have taken

1831.

BRIDEN

v.

HEWLETT.

(a) 5 Ves. 399.

(b) 8 Ves. 38.

(c) 3 East, 279.

1831.

BRIDEN

บ.

HEWLETT.

taken it if it had been personal estate, and the testator had died intestate.

Mr. Bickersteth and Mr. Barber, for the next of kin at the death of Jane Hewlett, insisted that the testator's mother was plainly excluded by the language of this will in the event of her dying intestate; and they relied upon Bird v. Wood. (a) In that case the bequest was to the testatrix's daughter for life, and after her death as she should appoint, and in default of appointment to the testatrix's next of kin, to be considered as a vested interest from the testatrix's death, except as to any child afterwards born of her daughter; and it was held, the daughter having died without having had a child, and without making any appointment, that the persons who would have been next of kin at the testatrix's death, if her daughter had been dead without issue, were entitled.

The MASTER of the ROLLS.

It is impossible to contend that this testator meant to give the property in question absolutely and entirely to his mother, 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 as would be entitled to it by virtue of the statute of distributions. Entitled at what time? the word would imports that the testator intended his next of kin at the death of his mother. It is clear that he meant to exclude his mother from the class who were to take in the event of her intestacy; and no question can, in this case, be raised between the next of kin, exclusive of the mother, at the time of the death of the testator, and the next of kin at the time of the death of the mother; for these are here the same persons.

(a) 2 Sim. & Stu. 400.