stances, and with very essential qualifications.13 It seems to have been supposed by some, that a devise, or bequest, to "my son," or other relation, by class, will only apply to the person, or persons, answering that description, at the date of the will.14 But it is obvious this proposition must be received with some allowance. By the present English statute, the will is revoked by a subsequent marriage of the testator,15 and that question cannot now, often, arise in the English courts, in regard to that relation. But under the old law, a bequest by the husband to his "beloved wife," not mentioning her by name, applies exclusively to the individual, who answers the description, at the date of the will, and is not to be extended to an after-taken wife.16 And it is laid down in the early books, that if the relation is changed before the decease of the testator, as where a bequest is made to the husband, or wife, of a particular person, and the person marries again before the decease of the testator, he or she will, nevertheless, take the bequest,17 although not the wife, or husband, of the person named in the will, at the time it becomes operative. And it seems to have been considered in a recent case, that a devise, or bequest, to the wife of a person named,

"Foster v. Cook, 3 Br. C. C. 347. This case is often quoted in support of the general proposition stated in the text, which, to a certain extent, it supports. But the opinion of the Lord Chancellor, p. 349, in note, shows very clearly, that the gift over in the event of the decease of the legatee, was the controlling circumstances in the case, why another legatee, answering the description at the decease of the testator, could not take.

141 Jarman, 303.

15 See Pratt v. Mathew, 22 Beavan, 334.

Garratt v. Niblock, 1 Russ. & My. 629; Bryan's Trust. 2 Simons, N. s. 103. "10 Mod. Rep. 371, arguendo; Plow. 344; Vin. Ab. Tit. Devise, T. b. pl. 2; Godolph. 462. But Mr. James says: "If J. S. had no wife at the date of the will, a devise to the wife of J. S. might go to the person answering that description, at the decease of the testator, but that it is clear, the person must answer the description, either at the time of the decease, or of the date of the will, and merely having sustained it, during some portion of the intervening period, will not entitle such person to the bequest. Ante, § 29, pl. 6 and note.

he having no wife at the date of the will, shall go to his wife at the decease of the testator.18 And it seems to us, this must be the general construction of a devise, or bequest, to any relative, either of the testator, or a third person, that if no person answering the description exists at the date of the will, the devise, or bequest, will go to the person answering that description, at the decease of the testator, if any such there be.

9. The general rule, then, which we deduce from the cases upon this point is, that if a devise, or bequest, is made to one sustaining a particular relation, and there is such a person in being at the date of the will, it shall be held to be descriptive of that person; but if there be no such person at the time, then the language shall be construed, as descriptive of the relation, and any one answering it, at the decease of the testator, will take under it. And the cases seem to favor this view as a general proposition, in regard to estates given in remainder.19 But where there is a person in existence, answering the description at the date of the will, and the same person survives the testator, it seems impossible to extend the provision to another person, subsequently coming into the same relation.20 The learned V. C., Sir James Wigram, here confesses, that if the question were submitted to a person not bound by "legal rules of construction," whether a provision for the maintenance of the wife and children of A. B., after his decease, should go to the wife of A. B., although not the same person who sustained that

19 Frank v. Frank, 3 M. & Sel. 25. But a more stringent construction is sometimes adopted, in order to save a lapse. Peppin v. Bickford, 3 Vesey, 570. "Boreham v. Bignall, 8 Hare, 131. Where the testator had been separated from his lawful wife, whose name was Elizabeth, and had subsequently gone through a marriage ceremony with another woman, by the name of Sarah, and, at the time of his death, she was cohabiting with him as his wife, a bequest in his will of the income of his property to "his wife, Sarah," for life, was held not to belong to the lawful wife, but to the other woman, Sarah. Dilley v. Mathews, 8 Law Times, N. s. 762, before Vice Chancellor Wood.

relation, either at the date of the will, or the decease of the testator, such person would find difficulty in believing, that the intention of the testator could be carried into effect, short of allowing such alimentary stipend to go to the wife, who should happen to survive. The learned judge, however, concludes: "The question which I have to consider is, whether the will gives it to her or not, and it is with regret I have come to the conclusion, that the will does not give it to her."

10. And this construction has been carried so far, as to restrain a provision for the testator's servants, to those in his employment, at the date of the will, although subsequently superseded by others.21

11. General devises and bequests seem to have been universally construed to include all which it was in the power of the testator to dispose of, which, as the law now stands, in most of the American states, will embrace all the testator's estate, whether real or personal, at the time of his decease.22

"Parker v. Marchant, 1 You. & C. C. C. 290. But this seems to us a very questionable construction, and one which ought not to be followed, unless there is something in the will to justify the conclusion that the provision was intended to be personal rather than for the class of persons named. A provision for servants, more than most others, would naturally be supposed to have reference to those who should be thrown out of employment.

* 1 Eq. Cas. Ab. 201, pl. 12; Banks v. Thornton, 11 Hare, 176; Brimmer v. Sohier, 1 Cush. 118; Wait v. Belding, 24 Pick. 129, 136; Loveren v. Lamprey, 2 Foster, 434; Collin v. Collin, 1 Barb. Ch. 630; Van Vechten v. Van Veghten, 8 Paige, 104. It is here said, that to take a case out of this rule, there must be something in the nature of the subject of the bequest, or in the language used, to show an intent to confine the gift to the subject, as it existed at the date of the will. It was held, in Valentine's Succession, 12 Louis. Ann. 286, that a disposition, which, in terms, does not define the time to which it refers, must be referred to the time of making the will. A bequest of personalty, to be equally divided "between all my children that are now living," was held to create an interest in the children of a son of the testator, who deceased after the making of the will, but in the lifetime of the testator, and that such children 33

VOL. I.

12. And the same rule of construction has been extended to devises, and bequests, to classes, or fluctuating bodies of persons; all answering the description, at the decease of the testator, have been held entitled to take.23

13. Under statutes giving the testator power to dispose of all his estate, both real and personal, of which he may be possessed at his decease, it has been held, that a general devise of all the testator's estate in a particular town, or county, or other place, will embrace all of which he dies possessed, within these limits.24

14. General powers of appointment, created after the date of the will, will be executed by the will, under the present English and similar statutes, if it would have had that operation, provided such powers had been in existence, at the date of the will.25 But in regard to powers of revocation, reserved by testator, the rule of construction is otherwise; 26 and an existing

took the share provided for their father, as purchasers. Whitehead v. Lassiter, 4 Jones, Eq. 79.

* 1 Jarman, 306, 307. In Campbell v. Rawdon, 18 N. Y. 412, it is said, a devise to a class of persons takes effect in favor of those who constitute the class, at the death of the testator, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts, as may be entitled to consideration in construing its provisions. But where there is an intermedi.. ate estate, the class is to be determined at the time the estate vests in such class, in possession. Knight v. Knight, 3 Jones, Eq. 167.

And the use of the word "then" with reference to the vesting or coming into possession of the estate over, will not render it imperative that the members of the class shall be ascertained at the termination of the intermediate estate.

Bullock v. Downes, 9 House Lds. Cas. 1. The word "then" is sometimes used as an adverb of time, and sometimes as pointing to an event, and nearly synonymous with "afterwards;" and it is sometimes used in both these senses in the same sentence. Gill v. Barrett, 29 Beav. 372.

24 1 Jarman, 307; O'Toole v. Brown, 3 Ell. & Bl. 572; Lady Langdale v. Briggs, 3 Sm. & Gif. 246; Doe d. v. Walker, 12 M. & W. 591.

25 Stillman v. Weedon, 16 Simons, 26; Carte v. Carte, 3 Atk. 174; Cofield v. Pollard, 3 Jur. N. s. 1203.

28 Pomfret v. Perring, 5 De G. M., & G. 775; Palmer v. Newell, 20 Beav. 38; Re Merritt, 4 Jur. N. s. 1192.

will cannot be regarded as intended to operate upon them, when reserved after the making of the will.27

15. It was, as before stated,28 an established rule of the English law, until the recent statute,29 that to give effect to a devise of real estate, the testator must not only be actually seized of the estate, at the time of his death, which rule still prevails, everywhere, but he must have been seized of the same estate, at the time of making the devise, and also during all the intervening period.30 This rule of the English law went upon the theory of considering the devise as a species of conveyance, which required the present seizin of the testator to the validity of the conveyance, and the further implication, that the conveyance of the title, even for an instant, operated as a revocation of the devise, and it could not therefore become operative, except by the republication of the will. This same rule of construction obtained in most of the American states, until a comparatively recent period. That was the inflexible rule in Massachusetts, until the date of the Revised Statutes.31 So that the will, as

"Jarman, 313. See Leigh v. Norbury, 13 Vesey, 340.

25 Ante, § 26.

291 Vict. ch. 26.

* Bro. Ab. tit. Devise, pt. 15.; Rol. Ab. 615, pl. 6; 2, pl. 1; Minuse v. Cox, 5 Johns. Ch. 441, 450.

"Parker, Ch. J., Bullard v. Carter, 5 Pick. 112, 114; ante, § 26, pl. 11, et seq.; Gen. Stats. c. 92, § 4. An additional reason is here assigned by the learned judge for this rule, namely, the interest which the law always takes in heirs. The Massachusetts statute provides, that all after-acquired interests in real estate shall pass by the will, whenever "such clearly and manifestly appears by the will to have been the intention of the testator." And it is assumed, as the natural intendment, from the very act of one making a will, which purports upon its face to dispose of all his estate, real and personal, and which from the very nature of the act may fairly be presumed to have been his intention; and which he expects to come into operation only at the time of his death, that he designs it to operate upon all estate, both real and personal, of which he dies possessed. This is putting real and personal estate much upon the same footing. Wilde, J., in Prescott v. Prescott, 7 Met. 141, 146. This provision of the Massa