extraneous facts, shows that it is used in a more extended sense.62 22. Where a gift over is made to depend upon the predecease of another, the fact that such decease occurs in the life of the testator will not defeat the gift over; but where that is to a class, those born into the class before the death of the testator will participate in the bequest, although born after the contingency upon which the gift over was to take effect.63 23. In a late case 4 in Kentucky, it was decided that the term children could only be construed to embrace other descendants, when that became indispensable in order to give any operation to the will, or else when it was made apparent, from other portions of the will, that the testator intended to use it in that sense. And this seems to be the general doctrine of the American courts, and equally, as we have before shown, of the English courts. 24. In a recent case 66 in Connecticut, it was held that a bequest to the testator's children and their heirs respectively should be so construed as to embrace all the testator's children living at the time of his decease, and the representatives of such as had deceased, leaving children. In this case, the testator, at the time of his decease, had four children living, and four others had deceased, leaving children. Bedford's Appeal, 40 Penn. St. 18. Carver v. Oakley, 4 Jones, Eq. 85. A general bequest to children will include only those born or in being at the death of the testator. Smith v. Ashurst, 34 Ala. 208. And the same rule applies where the period of distribution is deferred. Beasley v. Jenkins, 2 Head, 191. Churchill v. Churchill, 2 Met. (Ky.) 466. 65 Walworth, Chancellor, in Collins v. Hoxie, 9 Paige, 81, 88; Cromer v. Pinckney, 3 Barb. Ch. 466; Gardner v. Heyer, 2 Paige, 11; Mowatt v. Carow, 7 Paige, 328; Hone v. Van Schaick, 3 Barb. Ch. 488; s. c. 3 Comst. 538; Appeal of Gable's Exrs. 40 Penn. St. 231; Ward v. Sutton, 5 Ired. Eq. 421. "Bond's Appeal, 31 Conn. R. 183. SECTION III. THE CONSTRUCTION OF THE WORD 66 ISSUE." 1. The word “issue,” in its natural import, includes all the descendants of every generation. 2. Under a bequest to issue, all the descendants take per capita and as joint tenants. 3. This is the settled English construction of the word, where there is nothing in the will to restrain its operation. n. 3. Definition of the distinction between words of limitation and words of purchase. 4. Abstract of some of the early cases. n. 5. The American writers seem to regard the primary import of "issue as children. 5. The more recent cases in England favor the same view. 6. An abstract of several cases where this is shown. 7. We should profit by the experience of the English courts, and adopt the natural import of the word. 8. The English construction often works great injustice. 9. Justice requires us to restore the word to its natural import. 10. The English statute giving bequests to issue to save a lapse. 11. The effect of the statute is to enable the issue to take as heirs or next of kin. 12. The word "issue" is thus made one of limitation, and not of purchase. 13. The statute of Massachusetts upon the same subject. 14. The construction of that statute not fixed by their courts. 15. The only case which has occurred is, in substance, the same as the English cases. 16, and n. 33. Case of reference under Massachusetts statute stated. 17. The only question whether issue could be synonymous with descending heirs. 18. The latest English case comes precisely to this point. 19. In Pennsylvania, bequest to the issue of A, B, and C. construed distributively. 20, and n. 42. A bequest of personalty to one by name for life, and to the issue of such person, creates an estate for life in the first donee, and the issue take the remainder as purchasers. 21. The English courts adopt this construction. Review of the cases. 22. The supreme court of Pennsylvania adopt the same view. 23, 24, 25. Brief reference to American cases upon the subject. § 45. 1. THE term "issue" illustrates, in a striking manner, the different senses in which the same word or expression may be construed, according to the context, the attending circum stances, or the purpose for which it is used. The more common import attached to the word "issue," in English equity law, is that of offspring or descendants. And in this sense it includes all the descendants in being at the time the term becomes operative.1 2. Under a bequest of personalty to issue, all the descendants, including children and grandchildren, to the remotest descendants, will take per capita and not per stirpes,2 and as joint tenants.2 In this case the bequest was to one, or her issue. That person died in the life of the testator, leaving one son and two children of a deceased daughter, and the three were held entitled per capita. In this sense it is used as a word of purchase, and not by way of limitation.3 3. The word "issue," according to the English construction, where nothing appears to qualify its import, is to be regarded as a word of purchase, and to include all the descendants. In the language of the court, in Leigh v. Norbury, "It is clearly i Haydon v. Wilshere, 3 T. R. 372. This is the case of a bond conditioned to be paid, if any of the issue of a marriage be alive at a certain time. The children had all died, but grandchildren were still living, and they were held "issue," within the meaning of the condition. Lord Thurlow, in Hockley v. Mawbey, 1 Ves. Jr. 143, 150, says the "word 'issue' would extend to grandchildren, or any other degree of kindred, however remote." The cases are very numerous to this point, and we are not aware of any conflict in regard to it being allowable to give it that construction. 1 Jarman, 89; 2 Wms. Exrs. 999. 2 Davenport v. Hanbury, 3 Vesey, 257. This distinction, although familiar to the profession, is one whose application is not always kept sufficiently in mind. It is based upon the point, whether the persons designated take by force of the instrument, and because they are named in it, or because of their relation to some other person, who acquired such an estate under the instrument; as if by operation of law it descended to them on account of the relation, and not on account of their being named in the instrument. Thus the word "issue" may be used to define the estate given, and to distinguish it from a life-estate, or it may be used because the donor had the particular persons included under the term "issue" in his mind, and desired to benefit them. In the latter sense it is a word of purchase, and in the former one of limitation merely. • 13 Vesey, 340. settled that the word 'issue,' unconfined by any indication of intention, includes all descendants. . . . . Intention is required for the purpose of limiting the sense of that word, restraining it to children." The difficulty seems to be in determining what shall be a sufficient indication of intention to use the term "issue" in a restricted sense.5 The cases where issue has been construed to be a word of purchase, and as such to include all the descendants, are very numerous, and have been either decided or recognized by all the more eminent English equity judges. Thus, in Bernard v. Mountague, Sir William Grant, a great authority in equity law, said: "There is nothing in the clause directing a portion to go over, that should confine its operation; but that the grandchildren will be entitled, as well as the children, under the general description of issue."" 4. The early cases favored this construction of the word issue much more than the later ones. In Cook v. Cook, there is a good deal of discussion in regard to the meaning of the term "issue," and other analogous terms. It is here held, that in a devise to the issue of J. S., who had a daughter living, and afterwards a son born, all the children shall take, and even grandchildren, if there were any. And also, that in a devise to J. S. and his children, the children take with the father, if he have any then living, but if not, it creates an estate tail. And It seems to us that the term "issue," in its primary signification, imports children, and that it is a secondary meaning by which it has been held to include the issue of issue in an indefinite line downwards. It is susceptible, more naturally, than “children,” of including all descendants, but the primary sense certainly is, that of direct issue; and it is only in a secondary sense that it also includes remoter descendants, as the issue of issue. The greatest authority in American law, Chancellor Kent, (4 Comm. 278,) in note, says: "The word issue may be used either as a word of purchase or limitation, but it is generally used by the testator as synonymous with child or children"; and we must confess the opinion of the learned commentator seems to us to be founded in truth, and that it will be found to be borne out by experience. 1 Mer. 422, 434. * 2 Vernon, 545. that in a devise to a man and his children, a child born after the death of the testator shall not take. And in Wythe v. Thurlston, Lord Hardwicke said: "The word issue' will carry it to all descendants; and in the present case the word 'children,' which may admit of a more restrained signification, shall be extended so as to enable all the children, grandchildren, and great-grandchildren, to take, and they take per stirpes, and not per capita." 5. But the courts have certainly engrafted a very great number of exceptions upon the rule, and the later English decisions seem to manifest a disposition in the courts, as far as possible, to get rid of the former refinements upon the subject, and from having regarded it as mainly a word of purchase, and intended to embrace a certain number of individuals, supposed to be in the mind of the testator, and to have been the special objects of his bounty, it is, if we judge correctly, fast becoming a word of limitation merely, and, as such, used mainly to define the extent of interest intended to be conveyed to the first donee." 8 Ambler, 555. ' Freeman v. Parsley, 3 Vesey, 421. It was held here, in deference to the early cases, that the word "issue" will include grandchildren as well as children. But Lord Loughborough, in giving judgment, said: "In the common use of language, as well as the application of the word 'issue' to wills and settlements, it means all indefinitely. I very strongly suspect that in applying that to this will I am not acting according to the intention. But I do not know what enables me to control it. If a medium could be found between a total exclusion of the grandchildren and the admission of them to share with the parents, the nearest objects of the testator, that would be nearer the intention, as by letting in those whose parents were deceased, to take the share the parents, if living, would have taken." This admission of so experienced an equity judge goes far to convict the English rule of having perverted the intention of testators, in the majority of instances. There can be no question that in the great majority of cases, say ninety-nine in a hundred, where testators have given estates to children, or to them and their issue, they do have in mind the precise distinctions adverted to above, and intend the issue to take only by way of substitution of, and not in competition with, the ancestor. It might therefore seem more just, and surely more frank in the courts, to change the rule of con |