estate within that parish or county where it is chiefly, but not wholly, situated. 56. The exposition given by Bramwell, B., in Anstee v. Nelms, although questioned by Wigram, seems to us entirely unexceptionable. "The fact turns out to be, that when the testator made his will, this property was commonly reputed to be in Doynton: What then is the primary signification of the words ' in the parish of Doynton,' 'which shall be proved to be in the parish of Doynton,' or 'commonly reputed to be in Doynton?' I hold the latter to be the natural meaning of the words. The land may have been reputed to have been in Doynton, for five hundred years; but afterwards, on an inquiry being instituted, on reference to Domesday book, or some other ancient or forgotten record, it may turn out to be in another parish." And the language of Pollock, Ch. B., here seems to be entirely unexceptionable: "By the gift of land 'in a parish,' the testator means to pass that which he understands that which is generally understood to be in the parish. A subsequent discovery of the true parochiality will make no difference; if it were otherwise, a will would mean one thing in 1804, and another in 1855." The reference by Sir James Wigram's editor, to the discovery of the illegitimacy of one who, at the date of the will, was recognized as legitimate, and described as a child of the reputed father, the testator, and those about him, having lived and died in ignorance of the misfortune,- and saying this, "may surely at any time cause a will to express what, but for such discovery, it would not have expressed," seems to be an unfortunate reply to Ch. B. Pollock's illustration. It is clearly a case where the interpretation of the will must be made with reference to time of execution, rather than the decease of the testator, and therefore has no just bearing on the question. 57. It seems to us, therefore, that the learned judge is manifestly right, and the strictures of this generally accurate writer, for once, are at fault. It could not surely be contended, that if the limits of a parish should be altered, by act of the legislature. (as is very common in America), between the date of the will and the decease of the testator, that this could be allowed to have any effect upon the construction of the will. And the same may be said of the names of persons, and equally of estates, or other matters described in the will. All must be received, as understood, at the date of the will. Any other view would lead to most glaring absurdities, and misconstructions. We submit, therefore, that there is no occasion, whatever, to criticise, or bring in question, the soundness of the decision in the case of Anstee v. Nelms. And if the other cases referred to rest upon the same principle, they were not correctly determined, as it seems to us, and will not ultimately be followed. 58. The only difference which we perceive in the two classes of cases, is, that in one class, the name of the estate was according to the general understanding and common repute of the import of the locality, and in the other, it was a name given to the estate, with reference to the locality, where it was principally situated, and which was in common use by the testator, in that sense, about the time of the date of the will, and well understood by all, who knew enough about the subject, to have any just comprehension of the term, as including the whole estate. I does not seem to us that it can make any difference, in such a case, in regard to the admissibility of extrinsic evidence, to show the sense in which the testator understood or used the term, that he knew it was not strictly accurate, in one case, and in another supposed that it was entirely so; or that he knew in both cases, that the term, as to locality, was not entirely accurate, while others supposed it was; or that others understood the locality was incorrectly described, and the testator was ignorant of that fact. The material inquiry, in all such cases is, were the terms well understood by the testator, and by those acquainted with the subject-matter, as descriptive of the entire estate? It seems to us, therefore, that both Sir James Wigram and Mr. Jarman, as well as the English courts, have gone beyond the fair import of their own definitions of the principle involved, in saying that where an estate is known and called by the name of the town or parish where it is chiefly situated, but some portion of which is in fact situated in an adjoining town or parish, that the estate shall be divided, and only the portion pass, under the devise, which is, in fact, in the town or parish named. We have already referred to some cases, where a different view has prevailed, and we feel confident that this opinion will constantly gain ground, since it is so reasonable and just in itself, and so strictly in accordance with principle, as it appears to us. 59. The cases which fully illustrate Vice-Chancellor Wigram's second proposition, are all of a different character. As where one gives, in his will, to his children, or to his sons and daughters, and has both legitimate and illegitimate children then living and recognized by him, as children, the latter will be excluded, because the primary signification of the term child, or children, is legitimate offspring. But if the testator has only illegitimate children, whom he fully recognizes as dependent upon him for support, the words must of necessity have that application, or else become wholly inoperative, a result which courts study to avoid, in all cases, in giving construction to written instruments or documents.126 60. In a very recent case,127 this rule received a very singular 126 Wilkinson v. Adam, 1 V. & B. 422; Woodhouslee v. Dalrymple, 2 Mer. 419; Beachcroft v. Beachcroft, 1 Mad. 430; Bayley v. Snelham, 1 Sim. & Stu. 78; Earl of Orford v. Churchill, 3 V. & B. 59; Pratt v. Mathew, 22 Beav. 328; Swaine v. Kennerley, 1 V. & B. 469; Cartwright v. Vaudry, 5 Vesey, 530; Geoffrey v. Davis, 6 Vesey, 43. 127 Edmunds v. Fessey, 7 Jur. N. s. 282, stated ante, n. 12. How far illegitimate children, or their children, shall take by general description, where there are no legitimate children to answer the words of the will, seems mainly a question of intention. Allen v. Webster, 6 Jur. N. s. 574. But illegitimate children, born after the date of the will, cannot take by general description, as such other children of my housekeeper, &c. Medworth v. Pope, 5 Jur. N. s. 996. This question is practical illustration. The testator gave a legacy to the "sons and daughters of A. B. living at my death." There were three sons and one daughter of A. B. living at the decease of the testator, one of the sons and the daughter being illegitimate. It was held, the illegitimate daughter took under the will, but the illegitimate son must be excluded. The learned judge, Sir John Romily, M. R., thus concludes his judgment: "The result is necessarily somewhat anomalous, for I admit one of the illegitimate children and exclude the other. It is to be ob served, there are two legitimate sons, sufficient to satisfy the word 'sons' in the plural." The judge naturally regretted the decision, but felt obliged to come to it, although contrary to the clear intent of the testator. 61. This seems to exhibit in a strong light the inadequacy of the rule, as one of construction, intended to reach the real intention of the testator. And the anomalous mode of its operation will be still more glaringly exhibited, if we suppose the will in this case to have made the bequest to the_children, instead of the sons and daughters, since, in that case, there being two legitimate sons, answering the word "children," in the plural, this must, upon the terms of the rule, exclude both the illegitimate children. It would seem, that a rule of construction, liable to such singular misapplications, which would occur to no one but an expert in the law, and might very often escape the recollection of those most experienced in such matters, as every one must have observed the far greater difficulty of remembering accurately a rule of law, which is unnatural and further illustrated In re Herbert, 6 Jur. N. s. 1027, where it was held, that to enable illegitimate children to take under a bequest to a class, e. g. — to daughters there must be evidence that no other persons would answer the description, and that they, in their reputed character, did answer it, and that the testator was aware of those facts; and the testator's knowledge will not be presumed, without evidence. There must be some evidence tending to show the knowledge. against reason and justice, than one of the contrary character; it would seem, that such a rule of construction ought to be reformed by the legislature, if it cannot be by the courts. We question whether such applications of the rule, notwithstanding its general recognition, would ever be tolerated in the American courts. There was in this case a very ready and natural path for escape. The fact that the testator clearly referred to the natural daughter, as one of the children, was proof, satisfactory to all minds, that he must have intended to include legitimate and illegitimate sons under the general name, since, in regard to the daughter, he evidently made no distinction between the two classes. This point was in effect decided by Vice-Chancellor Wood,128 within the last few years. The testator having named the son of his illegitimate son, as his grandson, it was held this, by implication, made the daughter of that same son a grandchild.128 This subject will be further discussed elsewhere. 62. And the application of the same rule is made to the devise of "my real estate." So that property which the testator holds only in trust, or subject to a power, shall not pass, unless where the testator had no real estate except that, and the devise must be held nugatory, unless allowed to operate in that mode,129 seems to be a fair illustråtion of the rule. But the same rule of construction has not been applied to personal estate, held under a power, since a bequest of personal estate may operate upon property subsequently acquired, and thus receive a sensible construction, as having been intended to have that application, notwithstanding the testator had no other personal property at the date of his will, except that held under the power.1 128 Allen ". Webster, 6 Jur. N. s. 574. 130 120 Lewis v. Llewellyn, 1 Turn. & Russ. 104; Denn v. Roake, 5 B. & Cr. 720; Hoste v. Blackman, 6 Madd. 190; Doe d. Caldecott v. Johnson, 7 Man. & Gr. 1047. 130 Jones v. Tucker, 2 Mer. 533; Andrews v. Emmott, 2 Br. C. C. 297; Nan |