63. And the strict application of the relative terms son, child, grandchild, nephew, niece, &c., wherever there exist persons well known to the testator fully answering the primary signification of the terms, is not unreasonable. 181 In a recent case,132 before the Lord Chancellor, after a good deal of examination and discussion at the bar, it was held, that a bequest to "cousins," simpliciter, includes first cousins only, in the absence of any thing to explain the meaning of the testator. His Lordship said: "I think that if a testator says no more than that he gives to "cousins," he must be taken to mean first cousins. That will be a practical construction, and one by which the parties entitled will be easily ascertained: it coincides, too, with ordinary experience, for when a person speaks of cousins, he generally means first cousins, the children of an uncle or aunt; and I think that in the present case, there being first cousins, this is the proper construction to adopt." This exposition of the subject seems extremely reasonable, where there is nothing in the will which, with reference to extraneous circumstances, seems fairly to indicate a different intention in the testator.

64. All that is intended by the rule is, that where the words of the will, with reference to all extrinsic evidence showing the state of the subject-matter, and the condition of the surrounding facts, including the state of the testator's family, and of others to whom his bounty is extended, do not indicate any

nock v. Horton, 7 Vesey, 391; Andrews v. Lemon, cited 4 Dow, 90; Jones v. Curry, 1 Swanst. 66; Webb v. Honnor, 1 Jac. & W. 352; Dover v. Alexander, 2 Hare, 285; Davis v. Thorms, 3 De G. & Sm. 347; Lowell v. Knight, 3 Sim. 275; s. c. 5 Sim. 166; Dummer v. Pitcher, 2 My. & K. 277; Lempriere v. Valpy, 5 Sim. 108; Evans v. Evans, 23 Beav. 1; Shelford v. Acland, 23 Beav. 10.

181 Royle v. Hamilton, 4 Vesey, 437; Reeves v. Brymer, id. 692, 698; Radcliffe v. Buckley, 10 Vesey, 195; Shelley v. Bryer, Jac. 207; Hart v. Dusand, 1 Anst. 684; Corporation of Bridgenorth v. Collins, 15 Sim. 541; Smith v. Lidiard, 3 Kay & J. 252; Crook v. Whitley, 7 De G., M. & G. 490.

133 Stoddart v. Nelson, 6 De G., M. & G. 68.

purpose of extending these relative terms beyond their strict and primary signification, this cannot be done, by way of construction, upon mere conjecture, nor can independent extrinsic evidence be received, to show, by facts having no connection with the words of the will, that the testator intended to include others in these general terms not coming strictly within the primary import of the words. But if there is any thing fairly to indicate, with reference to external facts, that such was the intent of the testator, courts will generally give that construction, as being most in conformity with the probable purpose of the testator, and the general sense of justice. The case of Gill v. Shelley,133 is an illustration of what is here intended. The testator's will contained a contingent provision for the " children of the late Mary Gladman." She had one legitimate and one illegitimate child, both well known to the testator, and both equally objects of her bounty during her life. The court considered that the term "children" sufficiently indicated more than one, and that could not be met but by including the illegitimate child, as well as the other. But there was something in the will to enable the court to give the term this extended import. The difficulty in many of this class of cases has been to find enough in the will to justify the court in extending the import of the term, so as to cover the apparent intent of the testator. So also where the testator gave to his son the perpetual advowson of H. B., the son at the time being the incumbent of the living, it was claimed, the son being in for life, by the presentation of his father, the devisee must take the fee of the advowson, or the will would have no operation.134 But the majority of the court held, that only a lifeinterest passed under the will, the devise, even in that view,

183 2 Russell & My. 336.

134 Pocock v. The Bishop of Lincoln, 3 Br. & B. 27. It was considered that the word "perpetual" had reference to the quality of the living, and not to the estate devised.

going to enlarge the interest of the devisee, inasmuch as he might vacate the living, for the benefit of any one he should name, and if he were preferred to some higher ecclesiastical place, he would then have the right of presentation to the living thus vacated. Parke, J., who dissented from the decision, said: "Many words, which will not carry a fee in a deed, will carry it in a will, if the words used in the devise can be shown to be sufficient to indicate that intention in the testator." The learned judge also referred to the introductory part of the will, wherein the testator declares the purpose of disposing of "all his worldly goods," and also to two cases, wherein eminent judges made some reliance upon such an introductory declaration. 135 We have presented the language of Lord Ellenborough in the note, as tending to show upon what slight grounds, judges, of the greatest wisdom, and the most enlarged experience, have felt justified in construing almost any word, in any part of the will, as sufficient to justify an enlarged construction. of the general phraseology of the instrument, so as to reach the obvious purpose and intent of the testator.

65. The authorities are reviewed, somewhat extensively, by Vice-Chancellor Wigram, in the case of Dover v. Alexander,1

185 Doe d. Bates v. Clayton, 8 East, 141, where Lord Ellenborough says: "This construction may be considered as in a degree aided by the introductory words of the will respecting his worldly and temporal estate." And in Doe d. Wall v. Langlands, 14 East, 370, the same learned judge says: "Very little inference of intention can be drawn from mere formal words of introduction; though we certainly find them, in some cases, called in aid, to show that a man did not mean to die intestate, as to any part of his property, and the making a will at all may also be used, as affording such an inference." See also, Barnacle v. Nightingale, 14 Sim. 456; Yates v. Maddaw 3 Mac. & Gor. 532.

130 2 Hare, 275. The opinion of the learned judge is of such weight, both for its inherent force, and the accidental weight of its authority, that we should be glad to give it here as the fairest and ablest commentary we could present. But our space is so much occupied, that we must refer to the report.

as bearing upon this point. The case, in itself, presents an instance of marked character, wherein general rules may work serious injustice. The testatrix having several legitimate children, and one illegitimate child, and being separated from her husband, and enciente of another illegitimate child, appointed a fund to her illegitimate child, then born, reserving a power of revocation, as to a moiety," in favor of any after-born children she might have born of her body." After the birth of the second illegitimate child, she revoked the appointment of the moiety, and appointed the entire fund, between the two illegitimate children. It was held, that the after-born children, for whose benefit the revocation might be made, must be taken in the primary and legal sense, as applying to legitimate children only; that, therefore, the second illegitimate child was not an object of the reserved power, and could not take under the latter appointment. There is, undoubtedly, in addition to the uncertainty of the use of the term "child," for illegitimate offspring, a principle of policy involved, against allowing any intendment, by way of construction, in favor of a provision for after-born children being applied in behalf of illegitimate offspring. It seems clear, upon the authorities, that there is no difference, in the import of the word "child," as comprehending illegitimate offspring, when applied relatively to parents of different sexes. And it was here considered, that the addition of the terms, "born of her body, but not otherwise," could make no difference.137

66. The American authorities, upon this point, are very numerous, and take the same general view of the question, with the English cases, which we shall have occasion to refer to more in detail in another place.138

137 Wilkinson v. Adam, 1 Ves. & B. 446; Mortimer v. West, 3 Russ. 375. 188 Cromer v. Pinckney, 3 Barb. Ch. 466; Hone v. Van Schaick, 3 Barb. Ch. 488; Collins v. Hoxie, 9 Paige, 81; Mowatt v. Carow, 7 id. 328; Gardiner v. Heyer, 2 Paige, 11; Kent v. Barker, 2 Gray, 535.

67. In a case 139 tried before Sir John Leach, Master of the Rolls, in 1828, the testatrix devised her real estate to one she described as her "kinsman," who was not her heir at law, but whom she directed to assume her name and arms, and by a codicil she gave several pecuniary legacies, and amongst others, "to her heir, £4,000." At her death, three persons were her coheirs, and the question in the case was, whether the heirs at law, the next of kin, or the devisee, who claimed as hæres factus, should take the legacy. Evidence was offered to explain this, as a latent ambiguity, but the Master of the Rolls rejected the evidence, holding, that the word "heir," was to be taken as nomen collectivum, and would legally include all those who filled that character.

68. In re Davenport's Trusts,140 the testator made a provision for his nephew, for life, and in case of his decease, if his wife survived him, the dividends to be paid to her during life, and after the decease of both, to be divided among his children. The nephew deceased, a bachelor, leaving five children of one M. with whom he had cohabited from before the date of the will until his decease. Evidence was tendered, showing that the testator was in habits of correspondence with his nephew, and that he must have known he was living with the mother of the children, as his wife; that she was generally recognized in the family, as his wife, and that the testator frequently alluded to his nephew, as having a wife and children. It was argued, in favor of the mother of the children, that there could be no doubt the testator believed her to have been the wife of his nephew, and made the bequest to her in that character, by way of description, and that, as she had not assumed this false character, voluntarily, with the purpose of deceiving the testator, she was entitled to the legacy by this description, by way of common reputation. It was admitted, at the bar, that the claim in

139 Mounsey v. Blamire, 4 Russ. 384.

140 1 Sm. & Gif. 126; Pratt v. Mathew, 22 Beav. 328.