the eldest son for the time being, or not. Ellison v. Thomas, 2 Dr. & Sm. 111; 1 D. J. & S. 18; Davies v. second and has in first son An elder son has been included under the expression Gift to second and other sons, in cases where the probability was other sons that the elder had been left out by mistake. Langston v. some cases Langston, 8 Bl. N. S. 16; 2 Cl. & F. 194; Blake's Estate, included a 19 W. R. 765; Tavernor v. Grindley, 32 L. T. N. S. 424. already. But this construction will not be adopted when there are sufficient reasons for the exclusion of the elder son. mingham v. Tuite, I. R. 7 Eq. 221; L. R. 7 H. L. 634. Bir Children means legitimate children. 4 CHAPTER XXIII. CONSTRUCTION OF GIFTS TO CHILDREN. A. ILLEGITIMATE CHILDREN. I. "THE description child, son, issue, every word of that species, must be taken prima facie to mean legitimate child, son, or issue:" per Lord Eldon, Wilkinson v. Adam, 1 V. & B. 422. And it may be stated as a general rule that where there is a bequest to children without anything on the face of the will to show that the testator meant by children illegitimate children, and there is a possibility at the date of the will of legitimate children to satisfy the terms of the bequest, evidence dehors the will will not be admitted to prove that the testator may or must have meant illegitimate children. Durrant v. Friend, 5 De G. & S. 343; Re Davenport's Trusts, 1 Sm. & G. 126; Re Overhill's Trusts, 1 Sm. & G. 362; Medworth v. Pope, 27 Beav. 71; Warner v. Warner, 15 Jur. 141; 20 L. J. Ch. 273; and see Gabb v. Prendergast, 1 K. & J. 439; Godfrey v. Davis, 6 Ves. 43; Kenebel v. Scrafton, 2 East, 530; Harris v. Lloyd, T. & R. 310; Mortimer v. West, 3 Russ. 370; Bagley v. Mollard, 1 R. & M. 581; Swaine v. Kennerley, 1 V. & B. 469; Meredith v. Farr, 2 Y. & C. C. 525. The same rule applies where the words next of kin are used. Re Standley's Estate, L. R. 2 Eq. 303. In the will of a Jew domiciled in England, children must mean legitimate children according to English and not according to Jewish law. Levy v. Solomon, 25 W. R. 842. In the case of a gift to the children of a person having a foreign domicile, the children need not be legitimate according to English law, if they are legitimate according to the law of their parents' domicile. In re Goodman's Trusts, 14 Ch. D. 619; reversed on appeal, overruling so far as contra In re Wright's Trusts, 2 K. & J. 595; Boyes v. Bedale, 1 H. & M. 798. See In re Wilson's Trusts, L. R. 1 Eq. 247; ib. 3 H. L. 55. In the absence of direct evidence of the marriage of the parents of the children, it may be proved by reputation. Lyle v. Ellwood, 19 Eq. 98; Collins v. Bishop, 48 L. J. Ch. 31. cases ille II. But under the description of child, son, issue, and In what similar words, illegitimate children may take if they have gitimate acquired the reputation of being children of the person question in the following cases: in children may take. there is no 1. If looking at the circumstances existing at the date When of the will there is no possibility of legitimate children to possibility satisfy the terms of the bequest. of legiti. mate (a) If, for instance, the bequest is to the children of A. children. now living, and A. has only illegitimate children, they would take. Dover v. Alexander, 2 Hare, 282, per Wigram, V.-C. (b) So if it appears from the language of the will that children living at the date of the will are meant, and there are only illegitimate children then living, they will take. Thus in Holt v. Sindrey, 7 Eq. 170, there was a bequest. to the testator's "daughter Mary, the wife of John Lattimer," and after her death " unto all and every the child or children of his said daughter begotten or to be begotten." It appeared that Mary was not the lawful wife of John Lattimer, and that the testator was not aware of this fact. Stuart, V.-C., held that illegitimate children born at the date of the will were sufficiently described by the words "children begotten." See, too, In re Dixon, 2 Jur. N. S. 970; Gabb v Prendergast, 1 K, & J. 439. And in Savage v. Robertson, 7 Eq. 176, a bequest to "my sister, Mary Robertson, and her two youngest daughters," Mary Robertson being a spinster, was held a sufficient designation of her two youngest illegitimate daughters. See Hartley v. Tribber, 16 B. 510; Laker v. Hordern, 1 Ch. D. 644. A direction, however, to divide property into shares corresponding in number with the number of legitimate and illegitimate children of a person at the date of the will, is not in itself a sufficient indication that illegitimate children then living are meant to be included, since, if before the testator's death one or more of the children had died, the division prescribed by the will would have been inapplicable. Cartwright v. Vaudry, 5 Ves. 530; In re Wells' Estate, 6 Eq. 599. (c) If the gift is to the children of a deceased person who had only illegitimate children, the illegitimate children take. Lord Woodhouselee v. Dalrymple, 2 Mer. 419; Edmunds v. Fessey, 29 Beav. 233. (d) If the gift is to the children in the plural of a deceased person who had only one legitimate child and one or more illegitimate children, they will all take in order to satisfy the plural number. Gill v. Shelley, 2 R. & M. 336; Leigh v. Byron, 1 Sm. & G. 486; but see Hart v. Durand, 3 Anstr. 684. If, however, it does not appear on the face of the will that the person to whose children the bequest is given was dead at the date of the will, and the testator was not a near relation, it will not be presumed that he knew of the death, but evidence will be admitted to show that he was aware of it. See Herbert's Trusts, 1 J. & H. 121; Milne v. Wood, 42 L. J. Ch. 545. (e) The description "children" will also be taken to mean illegitimate children when the gift is to the children of two persons who cannot by any possibility have legiti mate children between them. Bayley v. Snelham, 1 S. & St. 78. (ƒ) And it seems that a bequest by an unmarried man or woman to his or her children must mean illegitimate children, because every will since the Wills Act made by a man or woman is revoked by his or her marriage (see sec. 18), and, therefore, none but illegitimate children could by any possibility take under it. See Pratt v. Matthew, 22 Beav. 328; and Clifton v. Goodbun, 6 Eq. 278. But under a gift to the children of a living person, when Circumstances inthere is no evidence on the face of the will to show that sufficient to admit illegitimate children are intended, legitimate children illegiti alone will take. And this will be the case Though the person whose children are to be benefited has, at the date of the will, only illegitimate children, and at the testator's death there is no possibility of any others. Godfrey v. Davis, 6 Ves. 43; Re Davenport's Trusts, 1 Sm. & G. 126; Kelly v. Hammond, 26 B. 36; Dorin v. Dorin, L. R. 7 H. L. 568. It will also be the case, though the person to whose children a gift is bequeathed has, at the date of the will, only illegitimate children, and is, whether from old age or other causes, never likely to have any others. Re Overhill's Trust, 1 Sm. & G. 362; Paul v. Children, 12 Eq. 16. mate children. v. Beach cussed. There are, however, two cases in which this rule has not Fraser v. Piggott, been followed. Fraser v. Piggott, You. 354, before Lord Beachcroft Lyndhurst; and Beachcroft v. Beachcroft, before Sir Thomas croft disPlumer, M. R., 1 Mad. 430. In the former, after a bequest to the testator's grandchildren, being children of his sons, whether born in wedlock or not, there was a gift of residue to his two sons, and if either died his moiety to go to his children equally. Both sons died in the testator's lifetime. One had only illegitimate children, the other legitimate and illegitimate children. Lord Lyndhurst held that the |