is a gift of the absolute interest in personalty to the first donee, he will hold such estate exonerated from all charge, notwithstanding there may be a gift over of the same things depending upon some contingency.42 42 Andrew's Will in re, 6 Jur. N. s. 114. But see post, § 46, pl. 6, and cases cited. The late English cases adopt many very nice constructions in regard to the application of the word "issue." In Holgate v. Jennings, 11 Jur. N. 8. 5, (1865,) Sir John Romilly, M. R., held that where the residuary estate was given to the testator's nephews and nieces, after the decease of his wife, and if any of them should then be dead, leaving issue, such issue to be entitled to their parent's share; and one of the nephews died leaving issue, who also died before the period of distribution, that the issue took no interest in such residue. The learned judge considered that the issue must be in being at the period of distribution, and that the case was much stronger than if the language of the will had been "having left issue." See also, to same effect, Re Corrie's Will, 32 Beav. 426. And in two very recent cases before Vice-Chancellor Kindersley, these refinements are carried great lengths. In Lamphear v. Buck, 11 Jur. N. s. 837, (1865,) the testator gave the residue of his estate for life, and in the event of the children of the tenants for life dying before the parent, or after, and under age without lawful issue, then the trustees were directed to divide such residue equally among all the testator's nephews and nieces, who should be living at such time or times, “and to the issue of such of them as may be then dead, such issue to be entitled to its parent's share only." One of the nieces died unmarried. It was held, there was sufficient indication of intention that the gift over should take effect; that "issue" meant children; that the gift to the issue of deceased nephews and nieces was original and not substitutionary; that whether original or substitutionary, the issue need not survive the tenant for life, in order to entitle them to take; nor need they to have survived their parents, where the gift to them was original, but otherwise where it was substitutionary; and that the gift to the issue was in joint tenancy. The other case is that of Turner in re, 5 Am. Law Reg. N. s. 234, where it was decided that if the gifts to "issue" were substitutionary, such issue must survive their parents, in order to take. The following comment upon the conflict of opinion upon this point, from the London Solicitors' Journal, may be worthy of perusal, as a brief summary of the cases upon the point. "As there has been much conflict of judicial opinion upon this point, it may be well to give, in brief chronological order, the results of the various reported cases. In Pearson v. Stephen, 5 Bl. 203, (1831,) it was assumed, without argument, (the time not having arrived for deciding the point,) that in 22. This question came very recently before the Supreme Court of Pennsylvania,43 where it was held that a bequest in the a so-called independent gift, viz., to A. for life, remainder to the five sons of the testator living at the death of A. and their respective issue, no issue of a deceased son could take who did not survive the tenant for life. In Bennet v. Merriman, 6 Beav. 360, (1843,) where the gift was substitutionary, Lord Langdale held the words of contingency, expressed in the case of the parents, ought to be implied in the case of the issue. A similar conclusion was arrived at by Lord Justice Knight Bruce, (then Vice-Chancellor,) in Macgregor v. Macgregor, 2 Coll. 193, (1845,) in the case of a gift independent in point of form. In both these cases there were directions that the issue should only take their parents' share. On the other hand, in Lyon v. Coward, 15 Sim. 287, (1846,) Vice-Chancellor Shadwell held that where the gift to the issue was independent in point of form, the contingency ought not to be implied. It is to be observed that Macgregor v. Macgregor was not cited in this case. In Masters v. Scales, 13 Beav. 60, (1850,) Lord Langdale refused to import the contingency into a substitutionary gift. Vice-Chancellor Parker followed Lyon v. Coward in Barker v. Barker, 5 DeG. & Sm. 753, (1852,) as did also Vice-Chancellor Kindersley in Harcourt v. Harcourt, 5 W. R. 478, (1857,) and Vice-Chancellor Wood in re Bennett's Trust, 3 K. & J. 281, (1857,) all cases of gifts to issue, independent in point of form, coupled with directions that the issue should take their parents' shares only. In Penny v. Clarke, Johns. 621, (1859,) Vice-Chancellor Wood decided in the same way in a precisely similar case of independent gift, and his decision was confirmed on appeal to the Lord Justices, (8 W. R. 286; 1 DeG., F & J. 425,) in consequence of Lord Justice Turner concurring in the view of the judge in the court below. Lord Justice Knight Bruce differed, considered that his opinion, as expressed in Macgregor v. Macgregor, ought also to be applied in the case of gifts in a so-called independent form. In Crause v. Cooper, 1 J. & H. 210, (1859,) Vice-Chancellor Wood hinted (the point did not call for a decision,) that a different rule should be applied in the case of a purely substitutionary gift, and that there the contingency which was expressed in the gift to the * Emma J. Myer's Appeal, Legal Rep. May 18, 1865. The question how far children and grandchildren, named by classes, take per capita, is discussed in Herneisen v. Blake, 1 Philadelphia Rep. 131. The expression, to be equally divided between my said grandchildren, their respective heirs and assigns, requires the individuals to take per capita, ib.; Bender's Appeal, 3 Grant's Cas. 210. See also Gold v. Judson, 21 Conn. R. 616; Lee v. Lee, 3 Am. Law Reg. N. 8. 59. will of the father of the appellant, the effective words of which were, "I give and bequeath," "in trust for the use of my daughter, E. J. S., during life, and after her decease, for such issue, if any, as she may leave," created an estate for life in the first donee, with remainder to her issue, who took as purchasers under the will. The subject is here very extensively considered, and the authorities discussed by Read, J. In this case the be parents, should be implied in the gift to the issue. In re Wildman's Trust, 1 J. & H. 299, (1860,) Vice-Chancellor Wood considered the bequest to be an independent gift to the issue, and refused to import words of contingency. A similar conclusion was arrived at in Pell's Trust, 9 W. R. 733; 3 DeG., F. & J. 291, (1861,) where, in a case of independent gift, Lord Justice Turner approved of the decision of Vice-Chancellor Stuart in the court below. Lord Justice Knight Bruce still adhered to the principle of his decision in Macgregor v. Mac-. gregor. In Humfrey v. Humfrey, 10 W. R. 286; 2 Dr. & Sm. 49, (1862,) Vice-Chancellor Kindersley considered himself bound by previous authorities to hold that in a case of independent gift to issue, those who predeceased their own parent, as well as the tenant for life, were excluded. Lastly, in Corrie's Will, 32 Beav. 526, and Holgate v. Jennings, 5 N. R. 120, the present Master of the Rolls, in cases of substitutionary gifts, approved and followed the decision of Lord Justice Knight Bruce in Macgregor v. Macgregor. The result of the consideration of these authorities is, that Lord Justice Knight Bruce considers that the words of contingency, expressed in the gift to the parents, ought to be implied in the gift to the children, whether the gift be in form, independent or substitutionary; that Sir John Romilly considers that they ought to be implied in cases of purely substitutionary gifts; that Lord Langdale was of opinion that they ought not to be implied in cases of substitutionary gifts; that Vice-Chancellor Leach, Vice-Chancellor Shadwell, Vice-Chancellor Parker, Lord Justice Turner, Vice-Chancellors Kindersley, Stuart, and Wood, have decided against the implication in cases of independent gifts; but that Vice-Chancellor Wood doubted the propriety of extending this decision to the case of gifts by way of substitution. Vice-Chancellor Kindersley has decided, in the principal cases, that in gifts of the character in question, there is no distinction between (so-called) independent and substitutionary gifts, but that words of contingency pointing to the necessity of surviving the period of distribution, which are expressed in the bequests of the parents, are not to be implied in the bequests to the issue. We trust that the decision in this respect will be acquiesced in, and that this point may be considered as now settled." quest was to trustees, who were directed to pay the interest to the daughter, in monthly instalments, from the death of the testator, thus rendering the construction more unquestionable than where trustees are not interposed.43 23. In a somewhat recent case in Maryland," it was declared, that in a will the word "issue" is got to be regarded as a technical expression, prima facie operating by way of limitation upon the title of the devisee or legatee, but that its force will be controlled by the apparent intention of the instrument, to be collected from the words used with reference to the subject matter, and such other attending circumstances as are admissible in aid of the construction; but that in a deed or grant this degree of relaxation is not admissible. 24. In the case of Pinckney v. Pinckney,45 it was held that the word "heirs" in a will should have the force of issue, in a clause of limitation over. And in Moye v. Moye,46 the word "increase" was held to include children and grandchildren, and to be synonymous with issue of the body. 25. The cases in the American states are very numerous, where the expression" without issue" has been held equivalent to" without leaving issue," and as implying an indefinite failure of issue.47 * McPherson v. Snowden, 19 Md. Rep. 197. 45 1 Bradf. Sur. Rep. 269, 274. 45 5 Jones, Eq. 359. Wilson v. Wilson, 32 Barb. 328; Des Bois v. Ray, 7 Bosw. 244. See also Paterson v. Ellis, 11 Wend. 259, 278; Dumond v. Stringham, 26 Barb. 104; Norris v. Beyea, 13 N. Y. App. 273; Albee v. Carpenter, 12 Cush. 382; Kay v. Scates, 37 Penn. St. 31; Lapsley v. Lapsley, 9 Penn. St. 130; Arnold v. Brown, 7 R. I. R. 188; Manchester v. Durfee, 5 id. 549; Burrough v. Foster, 6 id. 534. 32* SECTION IV. THE HEIR AS PURCHASER. THE WORD HEIR AS EQUIVALENT TO NEXT OF KIN. 1. Devise to heirs creates an estate in fee-simple. 2. To heirs of the body creates an estate in tail. 3. Where the words "heir" or "heirs " are used, as designatio personarum, creates only an estate for life. 4. The nice refinements in the English law affecting estates tail, not useful here. 5. Bequest of personalty to A, and if he dies before testator, to his heirs, will go to the next of kin. 6. A bequest to one and his issue create an estate tail in the realty, but an absolute gift of personalty. 7. Statement of the case of Ex parte Wynch. 8. The point decided in Tothill v. Pott. 9. Heirs of the body and issue receive same construction. 10. Knight v. Ellis reviewed and approved. 11. Lord Justice Turner's review of the cases. 12. Sir John Romilly's review of the cases. 13. Some of the more recent cases stated. 14. The present state of the English law. 15. Gift of personalty to be at the disposal of donee. 16. The word "heir" or "heirs" often used to designate next of kin, as to personalty. 17. Difference between bequest to one, or "heirs," or, to one, or "executors," &c. 18. Where real and personal estate blended, "heir" will receive same construc tion. 19. In America real and personal estate go, generally, to same persons. 20. Case in North Carolina showing that heir may take as purchaser. 21. Case in Connecticut where "heirs " allowed to take, as purchasers. 22. Cases in Pennsylvania and Tennessee to same effect. 23. Similar case in New York. Contingent remainders. Cases in Maine. § 46. 1. A DEVISE of real estate to the testator's heirs, in the plural number, is now universally regarded as creating a feesimple in those persons who answer the denomination of legal heirs at the decease of the testator. But in Chambers v. Taylor,2 Lord Cottenham held, that a devise "to the heir female ” 1 Burchett v. Durdant, Skin. 206; Mounsey v. Blamire, 4 Russ. 384. 2 My. & C. 376. |