to the family of the testator, or of others. The state of things is so different in England, as it regards families, from what it is here, that the ordinary import of the word can scarcely be regarded the same. And the fact that so many cases, where the meaning of this term came in question, have arisen in the English courts upon the construction of wills, and comparatively so few in this country, leads us to the conjecture, that the word "family" will but seldom occur, in a will, in this country, where there will not be something, either in other portions of the will, or in the surrounding circumstances, which may lead to a reasonable ground of inferring, with probable certainty, the sense in which it was used by the testator.

2. In the English courts bequests to the family of one have often been held void for uncertainty. But that course is not so common, in regard to bequests of any kind, as formerly. And now it is said, in an English work to which we have had constant occasion to refer, that "it should seem, that a gift to the family, either of the testator himself, or of any other person, will not be held to be void for uncertainty, unless there is something special creating that uncertainty." 2 "The subject-matter and the context of the will are to be taken into the account," and the bequest upheld, if it can be fairly made out what the testator intended by the word family.

3. It has often been held, that a bequest to one and his family, he having children at that time, was intended for such person and his children; and that such children, as were living at the decease of the testator, were entitled to take. Lord Cranworth here says that this is the import of the word "family" in "com

1 Harland v. Trigg, 1 Br. C. C. 142; Doe d. v. Joinville, 3 East, 172; Robinson v. Waddelow, 8 Sim. 134. This latter case has been questioned. Parkinson's Trusts, 1 Sim. N. s. 242, 246, per Lord Cranworth, V. C. "I cannot

say that that case is quite satisfactory to my mind."

Jarman, (ed. 1861,) 87.

Parkinson's Trusts, 1 Sim. N. s. 242; Barnes v. Patch, 8 Vesey, 604;

Wood v. Wood, 3 Hare, 65.

mon parlance." And it has been held, that a bequest to one's wife, "towards the support of her family," gave the children such an interest in the estate devised, as to enable them to maintain a bill in their own names to protect such interest.1

4. There are several English cases where bequests to a family, or house, have been held presumptively intended for the heir of such house or family. This result is attributable, mainly, to the law of primogeniture which has so long prevailed in England, and whereby a policy of the law has grown up in favor of keeping estates, especially of a landed interest, in the family of the eldest male heir.

5. Questions have often been raised, how far a bequest to one's family should be construed to include the parents as well as the children of the family. It has been more commonly held that the parents are to be excluded in such bequests.6

6. There are many cases where the word family is used in wills, in a more general and unlimited sense, as synonymous with descendants, so as to include children and grandchildren, and even those more remote. But this extended import of the word will generally be sufficiently indicated by the context and the surrounding circumstances, as where the testator bequeathed personal property to his wife, and by a codicil, which was in the form of a letter to his wife, he said, "I should be unhappy if I thought it possible that any one not of your family should be the better" for what he left her; and it was held, that the word "family" was not confined to children, but included descendants in every degree." And when used in a general and enlarged

4

Woods v. Woods, 1 My. & Cr. 401. See also Beales v. Crisford, 13 Sim. 592.

Counden v. Clerke, Hob. 29; Chapman's Case, Dyer, 333 b; Wright v. Atkyns, 17 Vesey, 255; Doe d. v. Smith, 5 M. & Sel. 126; Griffiths v. Evan, 5 Beav. 241.

• Barnes v. Patch, 8 Vesey, 604; MacLeroth v. Bacon, 5 Vesey, 159; Blackwell v. Bull, 1 Keen, 176. See also James v. Lord Wynford, 2 Sm. & Gif. 350. Williams v. Williams, 1 Sim. N. s. 358.

sense it has sometimes received the construction of "next of

kin,'

,"8 as where the testator gave a sum of money in trust for his wife for her life, and at her demise "let the principal return to the good of my family, whoever survives me longest." But it is evident, as said by an experienced writer upon this subject,9 every case must depend upon its peculiar circumstances.

7. The word "descendants" is a term which does not seem perceptible of much variation by way of construction, unless where the attending circumstances, or other portions of the will, indicate some limitation upon the sense in which it is used. In its general sense it must include all in the direct descending line from the person named as the ancestor.10

8. There is one somewhat remarkable case,11 where the testa

In re Maxton, 4 Jur. N. s. 407. In this case the testator left no children; and Wood, Vice-Chancellor, held that it was a remainder vesting in the next of kin of the testator, at the time of his decease, as joint tenants.

2 Jarman, (ed. 1861,) 87.

10 Crossly v. Clare, Amb. 397. In this case the bequest was "to the descendants of F. J., now living in and about Sevenoaks, or hereafter living anywhere else"; and it was held that a grandchild, born after the will, was not entitled. See also Legard v. Haworth, 1 East, 120.

"Craik v. Lamb, 1 Coll. 489. It seems to be conceded that the early writers upon the law of descent did not use the terms "lineal descent," and "lineally descended," in that precise and definite sense which is now attached to them, in the English law, as being confined to those in the direct descending line from the testator, or other person named. These terms, in this narrower and strict sense, seem first to have been used by Littleton, see § 3. But the earlier writers applied these terms to collateral, as well as direct descent. Glanv. lib.

7, c. 4; Bracton, lib. 2, c. 31; Britton, p. 119; Fleta, cap. 2, p. 372. There are other cases where somewhat similar questions have been discussed. See Boys v. Bradley, 4 DeG., M. & G. 58.

But it seems to be well settled, that notwithstanding some exceptional cases, as a general rule, the term "descendants" cannot be held to include any collateral relation. Hamlin v. Osgood, 1 Redf. Sur. Rep. 409. It is here said, the term does not mean next of kin, or heirs at law generally, but the issue of the body of the person named, in every degree, as children, grandchildren, greatgrandchildren, &c. And in Baker v. Baker, 8 Gray, 101, it was held that “de

tor gave all the residue of his real and personal estate unto and amongst all his relations who might claim and prove their relationship to him by lineal descent. He had no wife or issue, at the time of making the will, nor afterwards. His nearest relations by blood when his will was made were his first cousins, of whom there were six or more, and these persons continued to sustain the same relation to the testator at the time of his death. It was held, that these persons were entitled, under the will, to receive the residue. The Vice-Chancellor, Knight Bruce, held the words, "lineal descent," to be mere surplusage, and to have been used by the testator, either ignorantly or not advisedly. But it is here further urged that "lineal descent" may with some propriety be applied to collateral relations, who of necessity trace their descent from some common ancestor. Rather to avoid the result of declaring the bequest wholly inoperative on the ground of uncertainty, than from any confident conviction how the testator did understand the words "lineal descent," the court held all the first cousins of the testator, by blood, entitled under the will.

9. It seems that in a bequest to descendants equally, or to all the descendants of any person, or to the descendants, simply, that all take per capita.12 But where there is a provision in the will, that they shall take by way of representation, this implies, that they shall take per stirpes and not per capita.13 This point is fully discussed under the title "issue." 14

scendants" cannot be construed to include any but lineal heirs, without clear indication in the will of an intention to extend the meaning of the term.

The word "descendants" in a will cannot be construed to include any but lineal heirs, without clear indications in the will of the testator's intention to extend the meaning. Baker v. Baker, 8 Gray, 101.

"Butler v. Stratton, 3 Br. C. C. 367.

"Rowland v. Gorsuch, 2 Cox, 187. It has sometimes been held by the American courts that in case of bequests to "descendants," the question whether they take per capita or per stirpes, is one of intention to be judged of by the 14 Ante, § 45.

10. Bequests to the next of kin of the testator, or of some person named, have received somewhat different constructions in the early cases, and different views have been maintained by different judges of great learning and ability. On the one hand the terms were held to include those only who would take under the statute of distributions. Of this opinion were Mr. Justice Buller,15 Lord Kenyon, 16 and Sir John Leach.17 And on the other hand were Lord Thurlow,18 Lord Eldon,19 Sir William Grant,20 and the decision of Sir T. Plumer, in Brandon v. Brandon,21 who all maintain that the terms "next of kin " apply to those nearest in kindred to the propositus, and exclude all of more remote degree. The question came before the court in Elmsley v. Young,22 and at the Rolls it was held, that the words "next of kin" used simpliciter, and without explanatory context, must be taken to mean next of kin according to the statute of distributions. But upon appeal before the Lords Commissioners, the judgment upon this point was reversed, and the cases very extensively reviewed by their lordships.23 It was here held,

general scope of the will, in connection with its specific provisions; and that the bequest to "descendants" of the share of their "deceased parent," or ancestor, in connection with other portions of the will, tending to show that the testator looked to the principle of representation, might be construed as restricting the import of the term "descendants" to children and the descendants of children, and that they might therefore take per stirpes and not per capita. Barstow v. Goodwin, 2 Bradf. Sur. Rep. 413.

15 Phillips v. Garth, 3 Br. C. C. 64.

16 Stamp v. Cooke, 1 Cox, 234.

"Hinckley v. McLarens, 1 My. & K. 27.

18 Phillips v. Garth, supra.

19 Garrick v. Lord Camden, 14 Vesey, 372.

Smith v. Campbell, Cooper, 275.

21 3 Swanst. 312.

222 My. & K. 82.

* Elmsley v. Young, 2 My. & K. 780. The cases of Phillips v. Garth, 3 Br. C. C. 64; Hinckley v. McLarens, 1 My. & K. 27; and the case of Elmsley v. Young, supra, as decided before the Master of the Rolls, were here distinctly overruled.