19. And in King v. Cleaveland, it was held, that a gift to one for life, and after his decease to his children "then living, or their personal representatives, share and share alike," that the representatives took as a distinct class and not by substitution, and that the representatives of children, who died in the lifetime of the testator, and of those who were dead at the date of the will, participated. The Master of the Rolls thus expressed his view of the case: "That there are two distinct classes, first, the nephews and nieces who were then living; and secondly, the representatives of such of the nephews and nieces who shall have died who are to take share and share alike.' I hold that these words, 'legal and personal representatives,' include the representatives of all the nephews and nieces, not only those living at the date of the will, but those who had died previous to that period; and this is in accordance with Coulthurst v. Carter." 40 6 20. In Dixon v. Dixon,41 a testator, after the death of his daughter, gave real and personal estate to her legal personal representatives, to hold to them, their heirs, executors, &c., according to the nature of the property; she left a husband, who took out administration, and an only child, and it was held that the husband took both the real and personal estate. 21. The disposition of the English courts of equity in favor of carrying bequests, given in the name of personal representatives, to such of the testator's family as he probably intended to benefit, has been so decidedly manifested in many of the more recent decisions, that it has even been held, that where a bequest is given, in terms, to the "executors or administrators," that it must be supposed that the testator only intended to have them Sim. 49. The word "next" being prefixed to "legal representatives," was held decisive that executors or administrators were not intended. Booth v. Vicars, 1 Coll. 6. 30 26 Beav. 26. See also ante, n. 37. 40 15 Beav. 421. 41 24 Beav. 129. take in trust for some other party, who was really intended to become the recipient of his bounty. Thus in Palin v. Hills,42 the testator gave a legacy of £2000 to S. B., and in case S. B. should die in the lifetime of the testator, he directed that the legacy should be paid to the executors or administrators of S. B. The legatee died in the lifetime of the testator, having made a will by which she appointed a residuary legatee, and the Master of the Rolls, Sir John Leach, held, that as the executors, &c., as well as the next of kin, were, at the date of the will, persons not ascertained, it could not be assumed that the testator would naturally wish to bestow his bounty upon either, and as it was clear that the legatee named was primarily designed as the object of the gift, it would be more in accordance with the testator's probable wish that it should go, beneficially, to her residuary legatee; and decreed accordingly. 22. But upon appeal before the Lord Chancellor, Lord Brougham, his lordship determined, after a review of the cases, that the case was in all respects the same in principle as those where the personal or legal representatives were named, instead of the executors or administrators, as in the present case, and decreed the legacy to be paid to the next of kin of the first legatee named.43 His lordship here said: "Indeed, I cannot regard this as at all an open question. Bridge v. Abbot, 3 Br. C. C. 224, has decided it." It is here said that Evans v. Charles, 1 Anstruther, 128, was decided "upon very special circumstances," and the court "expressly declared, that it did not intend to dispute the authority of Bridge v. Abbot." In Long v. Blackall, 3 Vesey, 486, both the cases last named were brought under review, and held to have been rightly decided. So also again was the same conclusion reached, in Holloway v. Holloway, 5 Vesey, 399. And it was here held, that neither the case of Ripley v. Waterworth, 7 Vesey, 425, nor that of Price v. Strange, 6 Madd. 159, were in conflict with Bridge v. Abbot. His lordship, in Palin v. Hills, supra, thus concludes: "I entertain no doubt respecting this question. I cannot, for the first time, overrule such an authority as that of Bridge v. Abbot, without any one case, and with scarcely one dictum the other way,- an authority worthy 23. In Taylor v. Beverley, it was held, that a bequest to "my surviving children and their legal personal representatives, share and share alike," must be construed in the primary sense of the words, as the ordinary mode of giving an absolute estate to the "surviving children," and that no estate passed under the bequest to any kindred or representatives in blood of such children. 24. It would seem that where the word "assigns" is superadded to "executors or administrators," they will always be construed as words of limitation, merely indicating that the whole interest of the testator was intended to pass, and not as words of purchase, whereby any estate was intended to be secured to any other person or persons.45 And where money was settled, in trust for the wife for life, with remainder to her children, with remainder as she should appoint, and in default thereof to her "executors, administrators, and assigns." The husband survived the wife, she made no appointment, and there were no children, and it was held, after the death of the husband and wife, that the next of kin of the wife, and not the representatives of the husband, were entitled to the fund.46 of all acceptation, on all accounts, for the learning, the peculiar care and assiduity which distinguished the excellent, most painstaking, and most candid judge who decided it, an authority never yet noticed but to be approved, when it has been brought under the deliberate consideration of the court." And in Bulmer v. Jay, 3 My. & K. 197, it was held, that a direction to pay money to the executors or administrators of the wife, upon the whole scope and context of the instrument, created a trust for the next of kin of the wife, although she died in the lifetime of the husband, whereby the right of administration would devolve upon him. But where a sum of money, after the decease of the wife, is appointed for the use of her executors and administrators, “for their. own use and benefit absolutely," it was held that she had no control over it, but that it belonged to the husband in right of administration of her effects. Wallis v. Taylor, 8 Sim. 241. # 1 Coll. 108. 45 Co. Litt. 54 b; Sockett v. Wray, 4 Br. C. C. 483. 16 Grafftey v. Humpage, 1 Beav. 46. See also Hames v. Hames, 2 Keen, 646; Howell v. Gayler, 5 Beav. 157; Spence v. Handford, 4 Jur. N. s. 987. 25. The conclusion announced in the latest English edition of Mr. Jarman's excellent treatise upon wills is that the doctrine "to be drawn from the more modern, not unsupported by some of the earlier cases, is, that not only the words 'executors or administrators,' but also the words 'representatives,' 'legal representatives,' and 'personal representatives,' must, prima facie, be taken to mean the persons constituted representatives by the Ecclesiastical Court. This is the ordinary and legal meaning of the terms, and it lies on those alleging the propriety of a different interpretation to show that the testator's intention is clearly so, to show more than a doubt; since, raising only a doubt, they leave his expression in possession of its proper force." 47 And we would add, that this intention of the testator must be shown by the context of the will, or by the surrounding circumstances, admissible in aid of the construction.48 The term "legal representative" has sometimes been regarded as less precise in its legal import than the other analogous expressions above alluded to.49 But it is questionable how far any such distinction can be made available, as a general rule of construction.50 But in Price v. Strange,51 Sir John Leach, Vice-Chancellor, held that "legal representatives" must be understood as "executors or administrators," unless controlled by intention upon the whole instrument. And the same words received the same construction in Saberton v. Skeels.5 52 The more recent cases seem pretty The same rule laid down in the text is adhered to by Vice-Chancellor Wigram, in Holloway v. Clarkson, 2 Hare, 521. See also Page v. Soper, 11 Hare, 321; Saberton v. Skeels, 1 Russ. & My. 587; Cotton v. Cotton, 2 Beav. 67. * 2 Jarman, (ed. 1861,) 102. 48 Ante, note 38. See Topping v. Howard, 4 DeG. & Sm. 268; Smith v. Barneby, 2 Coll. 728, 736. "See Holloway v. Clarkson, 2 Hare, 521, 524; In re Crawford's Trusts, 2 Drew. 230, 235; King v. Cleaveland, 4 DeG. & J. 477, 484. 6 Madd. 159. The learned judge here relied chiefly upon the principle of the case of Bridge v. Abbot, 3 Br. C. C. 224. * 1 Russ. & My. 587. See also Reynell v. Reynell, 10 Beav. 21. generally to require that to change any of these terms from their primary import the evidence of the testator's intention ought to be very strong.53 26. The cases have adverted to a distinction, which seems to be founded in reason, between bequests to take effect immediately upon the death of the testator, and those which were only to come into operation after the expiration of an intervening lifeestate. In the former case the terms "executors, personal representatives," and other analogous terms, are more naturally construed as words of limitation, and in the latter case it is more reasonable to conclude that the testator intended to provide for the final disposition of the estate, in case of the death of the legatee during the intervening estate. This distinction is dwelt upon in Crawford in re.54 27. It was held in one case,55 that a legacy bequeathed to A, and, in case he should die in the testator's lifetime, to the legatee's personal representatives, that neither the executor or the next of kin were entitled, but that it belonged to the person entitled to the intended legatee's residuary estate. But in the case of Long v. Watkinson,56 Sir John Romilly, M. R., after adverting to the difficulty, in reconciling the case of Palin v. Hills 57 with some more recent cases,58 held that, where the testator bequeathed the residue of his estate to A, and in case of her death "to the executors or executrixes whom A by her will may appoint," and A, having died in the lifetime of the testator, that neither the residuary legatee nor the next of kin of A took the residue as personæ designatæ, but that it went to the executrix. 6 Attorney-General v. Malkin, 2 Phill. 64; Allen v. Thorp, 7 Beav. 72. 54 2 Drew. 230, 235, 242. 55 Hewitson v. Todhunter, 21 L. J. Ch. N. s. 76. 56 17 Beav. 471. 67 1 My. & K. 470. 68 Daniel v. Dudley, 1 Phill. 1; Allen v. Thorp, 7 Beav. 72; Attorney-Gen eral v. Malkin, 2 Phil. 64; Holloway v. Clarkson, 2 Hare, 521. |