tor's intention than the opposite construction which had been contended for in that case; and that it was supported by the early cases. 19 12. This whole subject 20 is again very carefully reviewed, so late as December, 1859, by a most able and experienced equity judge, Sir John Romilly, M. R., wherein it is declared by the learned judge: "I concur in Ex parte Wynch, which is a valuable decision, and does not conflict with any previously decided cases. It points out what would be the result if a life-estate were clearly given." There is here "an absolute interest (with a gift over. The testator probably supposed that the law would give effect to the gift over, but in fact it is inoperative. Neither Knight v. Ellis nor Ex parte Wynch shakes the proposition that this is an absolute gift. The way in which the court deals with such gifts of personalty is this: the testator intends a gift to the children, but the law construes it as an absolute gift to the parent, leaving it to the discretion of the parent to make a provision for the children. If there were a clear lifeestate given I could follow Ex parte Wynch, but there is not." 13. This subject has been more or less touched upon in a considerable number of very recent cases, many of which are not yet reported in this country in the regular series of the equity reports. In case of a bequest of personal property to A, to spend both principle and interest, or any part during his lifetime, should A not spend the property which was left for him, it was to be equally divided between C and D. Held that A took an 279. 10 Clare v. Clare, Cas. temp. Talb. 21; Warman v. Seaman, Cas. temp. Finch, See also Goldney v. Crabb, 19 Beav. 338, where the same rule was adopted in the construction of a will giving leaseholds for life to A, and after her decease to the issue of her body. See also Parker v. Clarke, 6 DeG., M. & G. 104; Roe d. Dodson v. Grew, 2 Wils. 322; Hedges v. Harpur, 3 DeG. & J. 129; Stewart v. Jones, 3 DeG. & J. 532. 30 Andrew's Will in re, 27 Beav. 608; 6 Jur. N. s. 114. absolute estate in both principal and interest.21 Where an absolute interest is given by a will, it will not be cut down except by distinct words.22 14. The final result at which the English courts seem to have arrived is, that where there is a clear gift of personalty, and a gift over in default of issue, or where the gift is to one and his heirs, or the heirs of his body, or his issue, it shall be held to vest an absolute estate in the first donee, unless there is a clear expression of intention, that the first donee shall take only a lifeestate, in which case the issue, or heirs, if provided to take after the termination of the life estate, will take, as purchasers, and not by way of limitation. This is unquestionably entirely in concurrence with the views of the American courts, and will commend itself to general acceptance with the profession here. 15. It would seem that where a gift is made of personal estate, to be at the disposal of the donee during her natural life, or as long as she remains the widow of the testator, that this sufficiently evinces an intention to place the estate in the absolute disposal of the donee during life, and that, as to personal estate, it implies the right to dispose of the same by sale or gift.23 16. Questions in regard to personal property have often arisen, in the construction of wills, whether the word "heir " or heirs was used in its strict literal import, or in a more general sense, as indicating the next of kin, or those persons to whom the property in question would go, independent of the provisions of the will. This point is somewhat extensively examined, and the cases discussed, in Doody v. Higgins,24 and the Henderson v. Cross, 7 Jur. N. s. 177. See also Howorth v. Dewell, 29 Beav. 18; Salmon v. Salmon, 29 Beav. 27. Adshead v. Willetts, 9 W. R. 405. "White v. White's Exrs. 21 Vt. R. 250. * 2 Kay & Johns. 729. In this case the learned judge, Vice-Chancellor Wood, referred to the following cases in confirmation of the proposition stated in the text. Lowndes v. Stone, 4 Vesey, 649; Lord Cottenham in Withy v. conclusion reached, that where the word "heir" or "heirs " occurs in a will, by way of indicating succession to property, it is to receive a construction "according to the nature of the property." When therefore these terms are used in a will, affecting personal property, they will be held equivalent to next of kin, and as including those persons who would take the estate under the statute of distributions. 17. In a late case 25 it was decided, that where the will gives a legacy to one or "his heirs," it shows the testator intended the persons he designates as heirs, to take by way of substitution, whenever the person first named dies; and hence, if he dies in the lifetime of the testator, there shall be no lapse. But it is held in this same case, in conformity with the earlier cases cited, that where there is a bequest to A for life, and after his decease to B or his executors, or to B or his personal representatives, it is simply another way of giving a vested interest to B upon the death of the testator, and if B die before the testator the bequest shall lapse. 18. But where real and personal estate are blended in the same bequest, there seems an inconsistency in giving the word "heir" or "heirs" a different import with reference to different subject-matters combined in the same general disposition. This difficulty is referred to in some of the earlier cases.26 But the question was thoroughly reviewed, and all the cases bearing upon the point considered in the case of DeBeauvoir v. DeBeauvoir,27 and the rule fully established, that in all such cases Mangles, 10 Cl. & Fin. 215, 253; Jacobs v. Jacobs, 16 Beav. 557; Gittings v. N. S. 344. 5 In re Porter's Trusts, 4 K. & J. 188. The learned judge here reviews the cases bearing upon the question. Bone v. Cook, McLel. 168; Ive v. King, 16 Beav. 46; Corbyn v. French, 4 Vesey, 418; Tidwell v. Ariel, 3 Madd. 403. 25 Wright v. Atkyns, Coop. 111, 128; Lord Cottenham in White v. Briggs, 2 Phill. 583, 590. 15 Sim. 163; s. c. on Appeal, 3 Ho. of Lds. Cas. 524, 557. ཏི the word "heir" or "heirs " must receive its natural and ordinary import and construction. Lord St. Leonards, after questioning the general rule that the word "heir" or "heirs" may be construed to mean the person or persons intended by the will to take the share given, in the first instance to the ancestor, or predecessor, according to the nature of the property, whether such as passes under the statute of distributions, or by succession, thereby indicating a succession by way of substitution, thus concludes: "Then we come to the mixed cases. I quite agree that as to them the argument is stronger against the appellant, (the next of kin,) for if the law is settled, when you can collect the intention as to personal estate, the argument that it is so must, a fortiori, have more operation when you come to blended property, consisting of real and personal estate; for as to so much of the property as consists of real estate there can be no doubt but the person who is described as "heir" is intended to take in that character. You therefore, at once, in speaking of heir, impress upon the gift, or upon him who is to take it, his own proper character, that of heir. When therefore you are dealing with the same disposition, though of another part of the property, you are relieved from the difficulty which you labor under in the mere naked case of personal property, and having found that the testator meant what he has expressed, as regards that portion which is real property, you may more readily infer the same intention, as regards the other portion of the same gift, depending upon the same words, and you, therefore, allow the whole disposition the same operation as you would give to it if it had been confined to real estate alone." The same view had been taken by Sir William Grant, M. R., in an earlier case.28 But we must confess that this reasoning seems to us rather forced and not entirely satisfactory. There are many cases where the same identical words receive a different construction as to different subjects named in the same sentence. * Gwynne v. Muddock, 14 Vesey, 488. The same rule adopted by the court in Tetlow v. Ashton, 15 Jur. 213. 19. In the American states the real and personal estate of intestates, in general, go to the same persons, thus rendering the distinction, which occupies so much space in the English treatises, upon the settlement of estates, between heirs and next of kin, of very little practical consequence.29 And in most of the states both real and personal estate is distributed, in case of intestacy, chiefly, according to the provisions of the English statute of distributions,29 with the exception of the widow, who takes a life-estate in one third of the real estate, and the absolute property in one third of the personal estate. The half blood, generally, take equally with the whole blood, as they do under the English statute of distributions. Chancellor Kent says: "Such an uniform rule in the descent of real and personal property gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions being founded in justice, and on the wisdom of ages, and fully and profoundly illustrated, by a series of judicial decisions, was well selected as the most suitable and judicious basis on which to establish our American law of descent and distribution." 80 20. We shall certainly not attempt to give a full digest of the American cases upon this point, as they follow very nearly the principles already indicated, with this difference, that the heir is more readily permitted to take as purchaser, than in the English courts. In North Carolina,31 a bequest to the testator's wife for life, and at her death to be equally divided "between all my children that are now living," was held to give an interest to such children, as purchasers, whereby the children of one of the testator's children, which deceased before the father, might claim under the bequest, and that the distributees of a son, who died after the testator, but before the time of distribution, (which was fixed by the will to take effect at the decease of the wife of the 22 Kent, Comm. 426, 427. 20 Ibid. 428. Whitehead v. Lassiter, 4 Jones, Eq. 79; McCabe v. Spruil, 1 Dev. Eq. 189. |