Gift to children

will not

children at the date of the will if there are any children of the others to take. Radcliffe v. Buckley, 10 Ves. 195.

3. A gift to children hereafter to be born or that may to be born be born will not, without more, exclude children already born. Hibblethwait v. Cartwright, Ca. tem. Talb. 31; those born Wilkinson v. Adam, 1 V. & B. 422, 464; Harrison v. already. Harrison, I. R. 10 Eq. 290.

,exclude

Posthumous

children.

After-born

children, where excluded.

Express

But where there are gifts to three out of four children living at the date of the will, a gift to each child that may be born applies only to after-born children. Early v. Middleton, 14 B. 453; 3 D. F. & J.

1.

And in the same way a testator may confine his bounty to posthumous children. Doe d. Blakiston v. Haslewood, 10 C. B. 544; see White v. Barber, 5 Burr. 2703; Re Lindsay, 3 Ir. Ch. 239.

4. Words prima facie referring to present children, such as to children lawfully gotten," or "to every child he hath," will not exclude after-born children if they can fairly be construed as referring to the stirps. Browne v. Groombridge, 4 Mad. 495; Ringrose v. Bramham, 2 Cox, 384; see Goodfellow v. Goodfellow, 18 B. 356.

A gift to "children who survive me" will not exclude those born after the testator's death. Re Clarke's Estate, 3 D. J. & S. 111.

5. An express gift to one child will not prevent his gift to a child will taking under a subsequent gift to children. Reay v. Rawhim from a lins, 29 B. 88; see Hanna v. Bell, 7 Ir. Ch. 208.

not exclude

subsequent Nor will a gift to A. and her daughter for their lives gift to children. exclude the daughter from taking under a gift in remainder to the children of A. and her daughter. Almack v. Horn, 1 H. & M. 630.

On the other hand, a gift to several children by name will not prevent other children from taking under a subsequent gift to children. Moffatt v. Burnie, 18 B. 211; see Re Connor, 8 Ir. Eq. 401.

date of the

will.

6. When there is a gift to the members of a class for Children of parents their lives, with remainder to their children, the death of dead at the a member of the class in the lifetime of the testator after the date of the will will not prevent his children from taking, but the children of members of the class dead at the date of the will will not take. Habergham v. Ridehalgh, 9 Eq. 395.

On the other hand, if the gift is to the testator's brothers and sisters for their lives, with remainder to their children, and the testator has only one brother living at the date of the will, children of deceased brothers and sisters will take. Barnaby v. Tassell, 11 Eq. 363.

7. In a gift to the children of A. and B. :—

Gift to the children of

a. If A. and B. are described as bearing the same re- A. and B. lation to the testator, and equal legacies have been given. to them, the children of both take-as in a gift to the children of my brother A. and my brother B. Mason v. Baker, 2 K. & J. 567; see Whicker v. Mitford, 3 B. P. C. 442.

b. If they do not bear the same relation to the testator, and A. has children at the date of the will, while B. is unmarried, the gift goes to B. and the children of A. Stummvoll v. Hales, 34 B. 124.

c. So, too, if A. is described as deceased; for instance, if the gift be to the children of the late A. and B., B. and the children of A. will take. Lugar v. Harman, 1 Cox, 250; Hawes v. Hawes, 14 Ch. D. 614; but see Re Davies' Will, 29 B. 93.

This is à fortiori the case where B. is referred to as a legatee. Ingle's Trusts, 11 Eq. 578.

d. A gift for "the benefit of the children of A. and of B." goes to the children of A. and of B. Peacock v. Stockford, 3 D. M. & G. 73.

certain

8. If there is a gift to the six children of A. who has Gift to a only six living at the date of the will, the legacy goes to number of them. Sherer v. Bishop, 4 B. C. C. 55.

children when there

Evidence of intention to benefit certain

children.

And a seventh child en rentre at that time will not be admitted to a share. Re Emery's Estate, 24 W. R.

917.

But if the number does not correspond with the number living at the date of the will, all the children then living will take, whether the gift is of a lump sum or of a distinct sum to each, in which latter case each child will be entitled to a legacy of that sum. Garvey v. Hibbert, 19 Ves. 125; Stebbing v. Walkey, 2 B. C. C. 85; 1 Cox, 250; Lee v. Pain, 4 Ha. 249; Harrison v. Harrison, 1 R. & M. 72; Morrison v. Martin, 5 Ha. 507; Yeats v. Yeats, 16 B. 170; see 4 Ch. D. 46; Lee v. Lee, 10 Jur. N. S. 1041; Spencer v. Ward, 9 Eq. 507; In re Bassett's Estate; Perkins v. Fladgate, 14 Eq. 54.

The fact that a blank is left for the insertion of the names of the legatees makes no difference. M'Kechnie v. Vaughan, 15 Eq. 289.

In such cases evidence of intention is not admissible to show that the testator meant certain of the children, or the children of a particular marriage who may correspond in number with the number mentioned in the will. Daniell

v. Daniell, 3 De G. & S. 337; Matthews v. Foulshaw, 12 W. R. 1141.

Thus under a bequest to the two children of my son Joseph, who had four living at the date of the will, two by a first and two by a second marriage, all the children took, and evidence of an intention to benefit the children of the first marriage was not admitted. Matthews v. Foulshaw, supra.

On the same principle, a gift to the five daughters of A., who has one daughter and five sons, goes to the daughter. Lord Selsey v. Lord Lake, 1 B. 151. See Berkeley v. Pulling, 1 Russ. 496.

But a gift of 1007. a-piece to the four sons of A., who had three sons and a daughter, includes the daughter, the

intention being to give four legacies. Lane v. Green, 4

De G. & S. 239.

tory con

If there is anything to indicate which of the children Explanathe testator meant for instance, an allusion to their text. residence—the rule of course does not apply. Wrightson v. Calvert, 1 J. & H. 250. See Hampshire v. Peirce, 2 Ves. sen. 216.

So where the gift was to the three children of W., widow of W., and the widow of W. had, at the date of the will, married again, and there were two children by W., and six by her second marriage then living, it was held that the two children by the first marriage were alone intended to take. Newman v. Piercey, 4 Ch. D. 41.

It appears never to have been decided whether, when the number of children living at the date of the will is erroneously stated, children born after the date of the will and before the testator's death would be included.

C. RULES FOR ASCERTAINING THE CLASS.

tion

It appears to be settled, that the same rules are appli- Distinc cable in the case of realty and personalty for the purpose between of fixing the period, when the persons to take under a realty and personalty. class name are to be ascertained, though the reasons for the rules in the case of personalty, which it is desirable to distribute as soon as possible, do not apply to realty. 2 Jarm. 144; Williams on Seisin, 208.

The rules may be stated as follows :

devise to children.

1. If there is a direct devise of real estate to the children Direct of A., those living at the testator's death take to the exclusion of those born afterwards. Singleton v. Gilbert, 1 Cox, 68; 1 B. C. C. 542. See, however, Fearne, Cont. Rem. 514, note l.; Dunning, Conc. Prec. 218, note; Cook v. Cook, 2 Vern. 544; Weld v. Bradbury, ib. 560, and cases

Direct bequest.

Effect of gift over.

No children

at death.

Contin

gent re

there cited; Mogg v. Mogg, 1 Mer. 654; Eddowes v. Eddowes, 30 B. 603.

The cases of Mogg v. Mogg and Eddowes v. Eddowes cannot be said to be direct authorities upon this point, as the devise there was to the children " now born or hereafter to be born."

It is clear that the rule above stated applies to an immediate bequest of personalty. Hill v. Chapman, 1 Ves. J. 405; 3 B. C. C. 391.

The class will not be enlarged by a gift over on death of any of the class under twenty-one, nor by a gift over in default of children. Davidson v. Dallas, 14 Ves. 576; Berkeley v. Swinburne, 16 Sim. 275; Andrews v. Partington, 3 B. C. C. 401; Scott v. Harwood, 5 Mad. 332; see Hutcheson v. Jones, 2 Mad. 124.

If there are no children at the testator's death there appears to have been some doubt whether in such a case a devise of real estate would not altogether fail. In all probability, however, such a devise would go to all the children born at any time after the testator's death. See Fearne, 532; Shep. Touch. 438.

This is settled as regards personalty. Weld v. Bradbury, 2 Vern. 705; Shepherd v. Ingram, Amb. 448; Hutcheson v. Jones, 2 Mad. 124; Harris v. Lloyd, T. & R. 310.

2. A devise of the legal estate to A. for life with mainder. remainder to a class of children is governed, in the case of wills not executed, revived, or republished after the 2nd of August, 1877, by the rules of law applicable to contingent remainders; that is to say, only those children can take whose interests become vested before the determination of the life interest. If there are none at that time whose interests have become vested the devise in remainder fails. Rhodes v. Whitehead, 2 Dr. & Sm. 532; Price v. Hall, 5 Eq. 399; Percival v. Percival, 9 Eq. 386; Brackenbury v. Gibbons, 2 Ch. D. 417; Cunliffe v. Brancker, 3 Ch. D. 393.