28. The question generally arises, as we have already intimated, in all these cases where an estate is given by will, in certain events, to "executors," "personal representatives," &c. (and there is nothing in the will or in the attending circum stances proper to be received in aid of the construction, to show that any other persons were intended by these terms,) whether the executors, &c., take beneficially, (for themselves), or for the estate which they represent.59 But after some dissent, it seems now finally settled, both by the decisions of the English courts, and finally by statute,61 that unless a contrary intention appear by the context, whatever is bequeathed to the executors or administrators vests in them, as part of the personal estate of the testator or intestate.62

29. And it seems that bequests to the executors, &c. of any person, will make the estate a portion of the estate of such person in the fullest sense, so that it will be subject to the disposition of the will of such person, notwithstanding such person may die before the testator.63

30. Bequests to "relations," without any limitation or definition, if construed in the literal and extended sense, would include such an indefinite multitude, that every such attempt to dispose of property must wholly fail, by reason of uncertainty. To avoid this result, the English courts have restrained these terms to such persons only as come within the statutes of

2 Jarman, 105.

* Evans v. Charles, 1 Anstruther, 128; Churchill v. Dibben, Sug. Pow. (8th Lond. ed.) 312; Long v. Blackall, 3 Vesey, 486.

61 1 Wm. 4, ch. 40.

Stocks v. Dodsley, 1 Keen, 325. The bequest here was "to the executors or administrators of G. W. absolutely," but the court held that the executor did not take a beneficial interest in the legacy. Morris v. Howes, 4 Hare, 599; Collier v. Squire, 3 Russ. 467; Andrew v. Andrew, 1 Coll. 686.

03

Long v. Watkinson, 17 Beav. 471; Smith v. Barneby, 2 Coll. 728. See also Mackenzie v. Mackenzie, 3 Mac. & Gord. 559; Morris v. Howes, 4 Hare, 599; Wallis v. Taylor, 8 Sim. 241.

distribution, and would take the estate in case of intestacy. And the same rule extends to devises of real estate. In Rayner v. Mowbray,66 the Lord-Chancellor Thurlow said: "The difficulty was, how to construe the word 'relations' but by a reference to the statute of distributions. If it was a recent matter, there might be a doubt.. When once a rule has been laid down, it is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance." But where the words of the will clearly indicate that others, not entitled under the statute, were intended to take, they will be admitted.67

31. In a large proportion of the English cases where this rule has been applied, it has evidently defeated the intention of the testator. In a case 68 where the testator gave the residue of his estate to his wife for life, with direction to dispose of the residue amongst his relations, in such manner as she should

Spring d. v. Biles, 1 T. R. 435, n, 437, n; Green v. Howard, 1 Br. C. C. 31; Rayner v. Mowbray, 3 ib. 234; Masters v. Hooper, 4 ib. 207; Jones v. Colbeck, 8 Ves. 38; Cruwys v. Colman, 9 ib. 319; Cole v. Wade, 16 ib. 27; Walter v. Maunde, 19 ib. 424; Forbes v. Ball, 3 Mer. 437; Pope v. Whitcombe, ib. 689. In Edge v. Salisbury, Amb. 70: "Such of my nearest relations as my executors shall think the greatest objects of charity," was held to extend only to such as would take under the statute of distribution. The same rule obtains in New Hampshire. Varrell v. Wendell, 20 N. H. R. 431.

65 Doe d. v. Over, 1 Taunt. 263.

66 3 Br. C. C. 234.

67 Greenwood v. Greenwood, 1 Br. C. C. 30 in n. No distinction is made between the word "relation," in the singular number, and "relations," in the plural. Pyot v. Pyot, 1 Ves. Sen. 335; Marsh v. Marsh, 1 Br. C. C. 293. In the very late English case, re Caplin, 11 Jur. N. s. 383, (1865,) a power to appoint to the testator's "relations or friends," was held to be a special power, and must be specifically performed; that relations or friends could receive no different construction from "relations"; that the appointee might have selected relations beyond the next of kin; but, not having done so, the court could only imply a trust for the next of kin. The learned judge here relied upon Gower v. Mainwaring, 2 Ves. Sen. 87.

think fit, and she appointed it to relations, not next of kin, it was held a void appointment, and the same was decreed to be distributed among those who were next of kin to the testator at the time of his death.

32. The case last referred to admitted the representatives of a deceased next of kin to take concurrently with the surviving next of kin of the same degree as the deceased person thus represented. And as this point was expressly made in the argument, it is difficult to perceive why that was not expressly determined by the decision, notwithstanding the highest authority is cited in favor of the opposite conclusion. But however that may be, it seems now agreed on all hands, that by the present well-established rule of the English equity courts, after those relations coming within the statute of distributions are ascertained who are entitled to take under the bequest, they will take per capita, and not per stirpes; 70 and, in general, such persons will take in equal shares, unless, as we have before seen, there is something to indicate a different intention. And where the words of the will direct an equal distribution, there can be no question.71 Where all are of equal degree, no such question can arise.72

33. The addition of the terms "next 66 or nearest" in a gift to relations, has been held not to vary the import; 78 and surviving brothers and sisters will exclude the children of such as are deceased,74 and this will be so under the will, notwithstanding a

"2 Sug. Pow. 246; 2 Jarman, 109.

Harding v. Glyn, 1 Atk. 469; Cruwys v. Colman, 9 Vesey, 319; Wright v. Atkyns, 19 Vesey, 299; s. c. 1 Ves. & Beames, 313; Tiffin v. Longman, 15 Beav. 275.

"Thomas v. Hole, Cas. t. Talbot, 251; Green v. Howard, 1 Br. C. C. 31; Rayner v. Mowbray, 3 Br. C. C. 234; Butler v. Stratton, ib. 367.

"Cole v. Wade, 16 Vesey, 27; Ham's Trust, 2 Sim. N. s. 106.

" Whithorn v. Harris, 2 Ves. Sen. 527; Smith v. Campbell, 19 Vesey, 400. Pyot v. Pyot, 1 Ves. Sen. 335; Marsh v. Marsh, 1 Br. C. C. 293; Smith v. Campbell, 19 Vesey, 400.

different result would follow under the statute.

But where the

testator added, " as sisters, nephews, and nieces," it was held to indicate a purpose to have the legatees take per stirpes and not per capita.76

34. On a limitation, by settlement, to the next of kin, they take the same as under the statute of distributions, there being no distinction between the whole and the half blood.77 And the same rule applies to bequests.

35. On bequests to the next of kin, only those by blood are entitled, as we have before said.78 But any such expressions, as "by blood or marriage," " on both sides," and the like, clearly indicate an intention to include relations by affinity as well as by blood. Thus, under a bequest to "any other nephews and nieces on both sides," it was held that the children of the brothers and sisters of the testator's wife were included.79

36. Bequests to the most deserving of the testator's relations, has been held to create no legal qualification, it is so indefinite.80 So also in regard to a bequest to the "most necessitous of my relations," it was held to go according to the statute of distributions.81

37. Bequests to poor relations, one of the testator and one of his wife, the direct management thereof to be left to the dis

75 Withy v. Mangles, 4 Beav. 358; s. c. 10 Cl. & Fin. 215.

Stamp v. Cooke, 1 Cox, 234.

"Cotton v. Scarancke, 1 Madd. 45.

78 Ante, pl. 10; Maitland v. Adair, 3 Vesey, 231; Harvey v. Harvey, 5 Beav. 134; Craik v. Lamb, 1 Coll. 489, 494. In this last case some doubt seems to have been entertained by the learned judge, Sir J. L. Knight Bruce, how far next of kin necessarily implied relations by consanguinity only; but the later cases seem to treat the matter as clearly settled in favor of the rule stated in the text.

"Frogley v. Phillips, 6 Jur. N. s. 641.

80

Doyley v. Attorney-General, 2 Eq. Ab. 194, pl. 15.

81 Widmore v. Woodroffe, Amb. 636; s. P. Anon. 1 P. Wms. 327. This case is regarded as having overruled that of Attorney-General v. Buckland, cited in Edge v. Salisbury; Amb. 71, n.; 2 Jarman, 113.

82

cretion of his executors, has been held to create a charity for the benefit of poor relations within the statute of distributions.8% And in Brunsden v. Woolredge,83 the question arose in regard to two wills. The first gave a sum of money to be "equally distributed among his mother's poor relations; the other also gave a sum of money to be paid to such of his mother's poor relations as his executors should think objects of charity, and in such proportions as they should think fit. The Master of the Rolls, Sir Thomas Sewell, said: "The question is the same under both the wills, with respect to the objects. . . . . I am of opinion the true construction of the words is, 'such of my mother's relations as are poor and proper objects'" of charity. So a bequest for the purpose of putting out "our poor relations' apprentices," was sustained as a charity.84 The rule seems finally to have settled down upon the views presented by Lord Redesdale, Chancellor, in Mahon v. Savage.85 That where a person has a power of distribution among poor relations, he may distribute among all poor relations, however remote. But where the court is called upon to distribute, in failure of the person so empowered, it will confine itself within the limits of the statute of distributions.86 But in these cases a relation who was poor at the time of the testator's death, but became rich before the time of distribution, is not entitled. And poor relations, dying before distribution, do not transmit their claim to their personal representatives.86

Isaacs v. Defriez, in n., 17 Vesey, 373; Amb. 595; Attorney-General v. Price, 17 Vesey, 371.

* Amb. 507. The learned judge here cites Carr v. Bedford, 2 Ch. Rep. 146; Griffith v. Jones, 2 Freem. 96, in confirmation of his decision.

"White v. White, 7 Vesey, 423.

85 1 Sch. & Lef. 111.

"Harding v. Glyn, 1 Atk. 469. His lordship also referred to a case before Lord Mansfield in support of the latter portion of the proposition. In these cases the charity is administered by a scheme settled by the Master. See also Cruwys v. Colman, 9 Vesey, 319.