testator,) were entitled to claim his share, and that the widow of such son was embraced in the class of distributees. These latter propositions are unquestionably sound, the estate having vested in the son, at the death of the testator, but the former portion of the decision seems to go beyond the proper limits of construction, and to give a lapsed legacy to the next of kin, which cannot ordinarily be done except by the aid of a statute.32 It seems in effect to be the vesting of an interest under the will, during the life of the testator. 21. In a very late case in Connecticut,83 the court held that a devise of all the testator's real estate to his widow, during widowhood, with remainder to "my children and their heirs respectively; to be divided in equal shares between them"; the testator having, at the time of his decease, four children living, and four children deceased, all leaving children; and there being no reason apparent for his making any distinction between his children living and the issue of such as had deceased, carried an interest in fee to his living children and the representatives of such as had deceased, in equal shares. 22. In a modern case in Pennsylvania,34 it was decided, that the terms "heirs" and "heirs of the body," being forms of expression which had long since acquired a definite legal signification, it could not be intended that, in a legal instrument like a will, they would be used in any but that definite sense. Hence, any one, who claimed that such terms had been so used, must assume the burden of showing it, upon some grounds admissible in aid of the construction; and in such case the court would feel justified in adopting the construction which would effect the intent of the testator. The same is here said arguendo, in regard to other analogous terms, such as "children," "issue," &c. To justify a departure from the strict legal import, there must be an "Bond's Appeal, 31 Conn. R. 183. The court here repeat the common maxim, that it is competent for them to look into all the surrounding facts, in order to determine the import of the words of the will. Ante, § 44, pl. 24. express warrant under the hand of the author of the gift. Conjecture, doubt, or even equilibrium of apparent intention, will not suffice.34 Where the intention of the testator requires it, the word "heirs," and the words "heirs of the body," may be divested of their technical and usual meaning, as words of limitation, and converted into words of purchase.35 The word "heirs" is flexible, and may mean "next of kin" or "heirs at law," according to the nature of the property given.36 The American cases will be found generally to confirm the same view. Guthrie's Appeal, 37 Penn. St. Rep. 9. But in Kentucky, it has been held, that the words "heirs of the body" in wills, are commonly to be construed as words of purchase, intended to give an independent interest to the children, and not as words of limitation defining the interest given. Prescott v. Prescott, 10 B. Mon. 56; Jarvis v. Quigley, 10 B. Mon. 104. Chew's Appeal, 37 Penn. St. 23. The word "heirs" as to personalty generally, means all those who take under the statute of distribution, and including the widow generally. But where the context plainly shows that only the children are intended, the widow will be excluded. Henderson v. Henderson, 1 Jones, Law, 221; s. P. in Evans v. Godbold, 6 Rich. Eq. 26. The sense in which the term "heirs" is used in a will is always open to inquiry. Bailey v. Patterson, 3 Rich. Eq. 156. So of the word "children." Stokes v. Tilly, 1 Stockt. 130. "Heirs," construed children, King v. Beck, 15 Ohio, 559. See also Doe v. Jackman, 5 Ind. R. 283; Kiser v. Kiser, 2 Jones, Eq. 28; Collier v. Collier, 3 Ohio, N. s. 369. The terms "nephews and nieces" include those of the half-blood, but not grand-nephews and grand-nieces. Shull v. Johnson, 2 Jones, Eq. 202. The meaning of the word "heir" is in all cases a question of intention. Williamson v. Williamson, 18 B. Mon, 329. May mean children. Blair. Snodgrass, 1 Sneed, 1. The words "heir," "issue," "children,” construed as synonymous to effectuate the intention of the testator. Braden v. Cannon, 1 Grant's Cases, 60. The terms “child or children,” include a child en ventre sa mere, the same as one already born. Barker v. Pearce, 30 Penn. St. 173. In Campbell v. Rawdon, 18 N. Y. Court of App. 412, it was decided that the rule construing the word "heirs," when used in a will with reference to a living person, as designatio personarum, is not applicable to a future estate, but that in regard to such an estate the words "heirs" will have its strictly legal force, and carry the inheritance, unless a different intention clearly appear. "Ingram v. Smith, 1 Head, 411. 23. It was held in a late case,37 in the Supreme Court of New York, where the rule in Shelly's case is abolished, that in a devise of land to A, for life, and after his death, then to his heirs and assigns forever, that the persons who, at the termination of the life-estate are the heirs of A, took as purchasers and not by descent; and that the remainder so limited is contingent, and the heirs apparent have a future contingent estate, which under the New York statute will pass by a deed in fee. In Maine, the word "heirs" imports heirs apparent, children, or those entitled under the statute of distribution, and will not receive its technical common-law construction.38 In a very recent case in Maryland, the testator devised to his son and four daughters, by name, all his real estate, during life, in equal shares; and if either should die without issue the share of such child to be equally divided among the testator's remaining children, for life; and upon the death of any child, who shall leave any child or children, or the descendants of any such child or children, "the part of my lands which any child so dying shall be entitled to for his or her life, shall belong to, and I do hereby devise the same unto the child or children of my child so dying, or their descendants," in equal shares, "and to their heirs forever, per stirpes and not per capita. And in case of the death of all my children without issue," then over in fee. All the children survived the testator. The son died without issue, leaving all the daughters. One daughter then died, leaving children. Then one of the daughters died without issue. It was held that her share, both the original portion and that which accrued by the death of her brother, descended exclusively to the surviving two daughters for life, and then either to their issue, or the survivor of them, as the case might be, in fee, and that the ultimate devise over failed, all the children not having died without issue. Moore v. Littel, 3 Am. Law Reg. N. s. 144. See ante, n. 35, and cases cited. "Morton v. Barrett, 22 Me. R. 257; Mace v. Cushman, 45 id. 250. Turners v. Withers, 4 Amer. Law Reg N s 723. SECTION V. BEQUESTS TO FAMILY, DESCENDANTS, NEXT OF KIN, RELATIONS, ETC. 1. The construction of the word "family" of comparatively little importance here. 2. Such bequests were in the early cases often held void, for uncertainty. 3. The natural import of the term is, children. 4. In England it has been held to mean, the heir of the family. 5. The parents are commonly excluded. 6. Family, used in a more enlarged sense, as equivalent to descendants, or next of kin. 7. Bequests to descendants include all the direct descending line. 8, and n. 11. Lineal descendants sometimes held to include those descended from a common ancestor. 9. Descendants take, per capita, unless required to take by way of representation. 10. The next of kin include the nearest blood relations, and those only. 11. The same subject further discussed in the House of Lords. 12. Degrees of kindred reckoned according to the Civil Law. 13. Husband and wife not regarded as of kin to each other. 14. But will take under bequest to those entitled by statute of distribution. 15. Construction of terms "next of kin on father's or mother's side," "next of kin in male line," "next of kin by way of heirship." 16. Personal, or legal representatives, mean executors or administrators, primarily. 17. But in many cases it is evident these terms are used for next of kin. 18. These terms sometimes mean descendants. 19. They sometimes define a distinct class, who take under the will as purchasers. 20, and n. 37, 38. These words will be understood in their primary sense, unless the context shows another. 21. A bequest, in terms, to executors or administrators, may be construed beneficially for others. 22. Executors and administrators the same as personal or legal representatives. 23. But these terms often used merely as words of limitation, to define the estate given. 24. And where the word assigns is added they will always receive this construction. 25. The rule laid down in the latest English edition of Jarman. 26. Distinction between estates given direct, and after an intervening estate. 27. How far a gift to executors renders the estate part of that which he represents. 28. The question always arises, in such cases, whether the executor takes benefi cially. 29. Such bequests may render the estate a portion of that represented. 30. Bequests to "relations" would fail, for uncertainty, without some limitation. Rule established. 31. This rule often defeats the intention of the testator. 32. In Pope v. Whitcombe, representation admitted. capita. General rule, all take per 33. The terms "next" or "nearest" will not vary the construction. 34. The half blood take concurrently with the whole blood, on a bequest to next of kin. 35. What words will include relations by affinity. 36. Bequests to the most deserving relations will not create an essential qualification. 37. Bequests to poor relations may create a charity. Mode of carrying into effect. 38. Bequests to testator's next of kin means next of kin, at his death, although deferred. 39. The persons entitled to a bequest are to be ascertained, as of the time the estate vests. 40. And if it be to such as are living, at an after period, it will not vary the construc tion. 41. It has been held that if the tenant for life is the sole next of kin he will not take as such. 42. Sir John Leach's exposition of this question. Sir John Romilly's rule as to the time of determining next of kin, &c. 43. But in Pearce v. Vincent it was held no inconsistency to make the same person tenant in tail, and in remainder. 44. The "next of kin " is sometimes applied to the tenant for life instead of the testa tor. 45. The same rule above stated as to next of kin of the testator, applies to third per sons. 46. The exceptions to the rule are so numerous, as to show its questionable char acter. 47. The word "then" used in fixing the period of the gift over creates an exception. 48. But the word "then" may be used merely to mark the order of events. 49. Bequests to those of the name of the testator, prima facie mean his name, and not his family. 50. One who has assumed another name, by marriage, cannot take. 51. But a new name, by legislative act or royal license, does not destroy the former name. 52. At what period the claimant must bear the required name. 53. Gift to servants means those in testator's employ at the date of the will. 54, and n. 122. The particular nature of service defined. 55. Legacy to poor inhabitants defined. 56. Construction of the term "relative " in the American courts. $47. 1. THERE has been considerable controversy in the English courts in regard to the proper construction of bequests |