of too strict construction by the rule adopted in Hughes v. Hughes,14 that where the residuum of an estate is given to all the children which shall be alive when the youngest child shall attain the age of twenty-one, and if any child shall have deceased, leaving a child or children, such child or children to receive the parent's share, this shall not allow the parent's share to go, by way of representation, to grandchildren, where the children have all deceased; thus following the letter of the will, to the obvious exclusion of the clear intent. And as there are many instances where the word "child" 99 "children " or has been so construed as to include grandchildren, there would seem to have been the greatest possible reason why that construction should have been adopted in this case. It has often been held, we know, that grandchildren and great-grandchildren, do not take as children," except from necessity, or very clear intent, yet this case seems to be one of that character.15 In Hill v. Chapman,16 Lord Thurlow said of the early case of Ellison v. Airey :17

66

be begotten," have been considered as having no reference to after-born children. This rule might have been founded in truth, in some of the early cases, in which the rule is first established, but in the majority of cases it would not be true. These terms are used more generally, it is believed, to include both the existing and after-born children. The rule, as held by the English courts, rests on policy more than justice.

14 14 Vesey, 256.

15 Marsh v. Hague, 1 Edw. Ch. 174; Ewing v. Handley, 4 Litt. 346; Phillips v. Beall, 9 Dana, 1; Hone v. Van Schaick, 3 Edw. Ch. 474.

16 1 Ves. Jr. 405, 408.

" 1 Ves. Sen. 111. The cases upon this subject are thus arranged by Mr. Sanders in his note to Heathe v. Heathe, 2 Atk. 121. "The general rule in cases of this nature seems to be, that where the devise or gift to the children is general, and not limited to a particular period, then it is confined to the death of the testator. Northey v. Burbage, Prec. Ch. 470; Heathe v. Heathe, supra; Horsely v. Chaloner, 2 Ves. Sen. 83; Isaac v. Isaac, Amb. 347; Congreve v. Congreve, 1 Br. Ch. C. 530; s. c. cited in Viner v. Francis, 2 Br. Ch. C. 658; Hughes v. Hughes, 3 Br. Ch. C. 352, 354; Hill v. Chapman, ibid. 391. But where such devise or gift is to one for life, or where the distribution is postponed to a future time, then children born during the life or before that

"This case, which I have often had occasion to consider, went upon a refinement, but cannot now be shaken." And his lordship further said: "If I enlarge the intention of the testator by imputing to him a view of providing for all the children, I shall contradict a rule which has stood too long to be shaken, but which, when first raised, went satis ex arbitrio, because the intention might go to all possible children, as in marriage settlements; and to impute to him such a restrained intention is rather a forced interpretation, and generally against the intention conceived at the time."

5. It was established in Wild's case,18 that a devise to one and his children should carry an estate in joint tenancy, where the person named had children living at the date of the will; but that where no such children existed, the term "children" should be construed as a word of limitation, and as equivalent to children of his body, thus creating an estate-tail general as to real estate.

6. This involves the germ of a principle upon which a very numerous class of cases has been decided by the courts of equity, based upon Sir James Wigram's third proposition.19 Thus, in a

time are let in. Harding v. Glynn, 1 Atk. 470; Graves v. Boyle, 1 Atk. 509; Haughton v. Harrison, 2 Atk. 329; Ellison v. Airey, supra; Attorney-General v. Crispin, 1 Br. Ch. C. 386; Congreve v. Congreve, 1 Br. Ch. C. 530; Devisme v. Mello, ibid. 537; Baldwin v. Karver, 1 Cowp. 309; Andrews v. Partington, 3 Br. Ch. C. 401; Pulsford v. Hunter, 3 Br. Ch. C. 416. It seems that under a devise to children living at the testator's death, a child in ventre sa mere shall take. Hale v. Hale, Prec. Ch. 50; Beale v. Beale, 1 P. Wms. 245; Millar v. Turner, 1 Ves. Sen. 85; Clarke v. Blake, 2 Br. Ch. C. 320. See contra, Pierson v. Garnett, 2 Br. Ch. C. 38; Cooper v. Forbes, 2 Br. Ch. C. 63."

16 Co. Rep. 16; Jackson v. Coggin, 29 Ga. R. 403.

19

Wigram on Extrinsic Evidence, 42.

"Where there is nothing in the

context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible, with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the

considerable number of cases, where legacies have been given to a class of persons described by the name of the relation of that class, either to the testator, or some other person named, or to some other class of persons designated, and, upon inquiry into the surrounding facts, it is ascertained that no persons, strictly corresponding to the relation named, existed at the date of the will, and this was well known to the testator at the time of using the terms, it has been permitted, partly from necessity, in order to give the testator's words any meaning, and partly from conjectural and probable intention, gathered from the other portions of the will, as well as from the surrounding circumstances, to apply the words to other persons coming the nearest to the primary import of the terms used, and also to the presumed intention of the testator, taking all the allowable extrinsic aids into the account.

7. The word "children," as well as all other similar descriptive terms of classes or relations, it will be borne in mind, must always be understood in wills, in its primary and simple signification, where that can be done; in short, where there are any persons in existence at the date of the will, or before the devise or legacy takes effect, answering the meaning of the term.20

8. And where the term "children" has received a larger and more extended construction, as synonymous with issue, it has generally been based upon something in the will,21 unless it re

case, to see whether the meaning of the words be sensible, in any popular or secondary sense, of which, with reference to these circumstances, they are capable." Ante, pt. 1, § 41, where the subject is extensively discussed.

Duhamel v. Ardovin, 2 Ves. Sen. 162. Here the word enfants, in French, was held synonymous with "children"; and where a residuum was given, upon failure of children, it was held not equivalent to failure of issue, since that would render the bequest void for remoteness, and a court will never give any term in a will a secondary signification, where the result will be to defeat the purpose of the testator.

21 Wythe v. Thurlston, Amb. 555. The form of expression was, " but if any one be dead at that time, to be equally divided among the survivors of them, and

sulted as already intimated, from the fact that there were no children in existence. And where, from the construction of the whole clause, it can be made to appear, that the testator meant, by "children," to include children and the issue of such children. as were deceased, that construction will be adopted.22 Hence the term children has been held to include, in that way, all the descendants of the person named.22 And there are numerous American cases wherein it has been held that grandchildren and great-grandchildren will take under a bequest to children, whenever that is necessary in order to give effect to the words of the will, or that appears to have been the evident intention of the testator.23 Lord Alvanley, M. R., in Reeves v. Brymer,24 said: "Children may mean grandchildren, where there can be no other construction, but not otherwise." And the same learned judge adopted the view that children included all the descendants, rather than admit a construction which must result in intestacy.25

their respective children, in case any of them be dead leaving issue of their body"; clearly showing that the word "children" was used as synonymous with "issue." Lord Hardwicke said, "The word 'issue' will carry it to all the descendants" Gale v. Bennett, Amb. 681, goes upon the same principle.

"Royle v. Hamilton, 4 Vesey, 437.

*Marsh v. Hague, 1 Edw. Ch. 174; Ewing v. Handley, 4 Litt. 346; Izard v. Izard, 2 Dessaus. 308; Smith's Case, id. 123 n.; Phillips v. Beall, 9 Dana, 1 ; Hone v. Van Schaick, 3 Edw. Ch. 474; Pemberton v. Parke, 5 Binney, 601. The case of Hone v. Van Schaick, 3 N. Y. Court App. 538, presents numerous nice questions in regard to the construction of legacies to children and grandchildren, where the decree of the Chancellor, 3 Barb. Ch. 488, is reversed, and that of the Vice-Chancellor affirmed. The opinions of the Chancellor, and the Court of Appeals by Gridley, J., are of marked interest and ability, as affecting this question; that of the Chancellor being, upon the whole, the most liberal, and that of the Court of Appeals the most critical, but, at the same time, rather the most satisfactory. The general principles adopted in both are the same as stated in the text.

"Royle v. Hamilton, 4 Vesey, 437, 439. In Radcliffe v. Buckley, 10 Vesey, 195, Sir William Grant holds, that "children" may include other more remote

9. There has been some question whether the term "grandchildren" could be held to include great-grandchildren. It has been held, that where there was anything in the will to show that the testator spoke of these two classes indiscriminately as "grandchildren," both should be included under the term "grandchildren." 26 But unless there is something in other portions of the will, or in the surrounding circumstances, admissible in aid of the construction, which indicates, with reasonable certainty, that the word is used in a more extended sense than its ordinary import, or there would otherwise be an entire failure to give the clause any operation, we apprehend the word "grandchildren," must be restricted to its primary and ordinary signification.27

10. And in the case of a legacy to the children of any one by name, who at the time of the gift had no children, but only grandchildren, although there might arise some degree of probability that the testator intended the grandchildren to receive the legacy, yet it has been questioned how far such probability will justify the courts in departing from the primary significa

descendants, where the will would otherwise become inoperative, or where by the testator's use of other words in the will it is made apparent that the word "children" was used, not in the proper, but in a more extensive sense. But in Moor v. Raisbeck, 12 Sim. 123, the Vice-Chancellor, Shadwell, held that this necessity must clearly exist, or the word could not be construed in such secondary sense. And there must be special and satisfactory grounds to justify a departure from the primary import of the word children. Jackson v. Staats, 11 Johns. 337, 351; Hallowell v. Phipps, 2 Whart. 376.

25 Hussey v. Berkeley, 2 Eden, 194, 196; s. c. nom. Hussey v. Dillon, Amb. 603. The Lord Chancellor here says: "As to great-grandchildren, I incline to think that the word grandchildren would, without further explanation, comprehend them, for in common parlance, which is the true way of interpreting words in a will, the word grandchildren is used rather in opposition to and as exclusive of children, than as confined to the next descent, — the children of children,— and must, I think, have the effect of comprehending both, unless the intention appear to the contrary."

27 Earl of Orford v. Churchill, 3 Ves. & B. 59.