v. Saril, 23 B. 87; see, too, Doe d. Patrick v. Royle, 13 Q. B. 100; Brown v. Jarvis, 2 D. F. & J. 168.

If the gift is after the deaths of the tenants for life to their children and grandchildren, the families take per stirpes, but the children and grandchildren take per capita, inter se. Barnaby v. Tassell, 11 Eq. 363.

But if the testator goes on to explain what he means by "their children," by adding "that is to say, the children of A. and B.," they take per capita. Abrey v. Newman, 16 B. 431.

at Gift to

A.

2. If the gift be to A. and B. for their lives, and their death not to their children but to the children of and B., there seems less reason for contending that the children are to take per stirpes.

However, in Wells v. Wells, 20 Eq. 342, the stirpital construction was adopted. See Milnes v. Aked, 6 W. R. 430; Sutcliffe v. Howard, 38 L. J. Ch. 472; Re Nott's Trusts, 20 W. R. 569.

In such a case a superadded direction that, "if there is but one child, the whole is to go to such only child," would afford an argument that the distribution was meant to be per capita. Pearce v. Edmeades, 3 Y. & C. Ex. 246; 2 W. R. 672; Swabey v. Goldie, 1 Ch. D. 380; see, too, Peacock v. Stockford, 7 D. M. & G. 129.

A. and B. for life, then to

children of A. and B.

children

3. If the gift to the children is not till after the death Gift to of the survivor of the tenants for life, it would seem the after death distribution will be per capita; at any rate if the gift is of surviving tenant to the children of A. and B., and not merely to "their for life. children." Malcolm v. Martin, 3 Bro. C. C. 50; Pearce v. Edmeades, 3 Y. & C. Ex. 246; Stevenson v. Gullan, 18 B. 590; Nockolds v. Locke, 3 K. & J. 6; Swabey v. Goldie, 1 Ch. D. 380; see Alt v. Gregory, 8 D. M. & G. 221. Perhaps Smith v. Streatfield, 1 Mer. 358, comes under this head.

If the gift is substitutional, as to several or their children, Substitutional gifts.

How the

stirpes

ascer

tained.

the children take per stirpes. Congreve v. Palmer, 16 B. 435; Timins v. Stackhouse, 27 B. 434; Gowling v. Thompson, 19 L. T. N. S. 242; In re Sibley's Trusts, 5 Ch. D. 494.

A simple gift, however, to several or their issue, though it would import a stirpital distribution among the families, would not prevent all the issue of each family from taking per capita inter se. Gowling v. Thompson, 19 L. T. N. S. 242; In re Sibley's Trusts, 5 Ch. D. 493.

In ascertaining the stirpes reference is to be made to the original stirpes pointed out by the testator, and not to the stirpes existing at his death, so that there will be as many primary shares as there are original stirpes who at the testator's death have descendants living.. Gibson v. Fisher, 5 Eq. 51; see, however, Robinson v. Shepherd, 12 W. R. 234; 10 Jur. N. S. 53; 4 D. J. & S. 129.

257

CHAPTER XXIV.

MEANING OF WORDS DESCRIPTIVE OF RELATIONSHIP.

I. NEPHEWS AND NIECES.

and nieces mean

NEPHEWS and nieces mean prima facie the children of Nephews brothers and sisters, including those of the half blood. Falkner v. Butler, Amb. 514; Grieves v. Rawley, 10 Ha. 63; Cotton v. Scarancke, 1 Mad. 45.

The meaning of the word will not be enlarged where the gift is to each of the present nieces of A., who had only one niece of the first degree living at the date of the will. Crook v. Whitley, 7 D. M. & G. 490.

The fact that the gift is to "nephews, descendants of my brothers," will not enlarge the class. Williamson v. Moore, 10 W. R. 536.

The fact that a great-niece or a wife's niece has been previously called a niece will not enlarge the meaning of the word. Shelley v. Bryer, Jac. 207; Thompson v. Robinson, 27 B. 486; Smith v. Liddiard, 3 K. & J. 252 ; Wells v. Wells, 18 Eq. 504; Merrill v. Morton, 43 L. T. N. S. 750; 29 W. R. 394.

Nor will a gift to my great-nephew, and such other of my nephews and nieces as shall be living at my death. Blower's Trusts, 11 Eq. 97; 6 Ch. 351.

prima facie children of brothers and sisters.

cases a

may take.

But if the testator has at the date of his will and death In what no nephews and nieces of his own, and there are nephews wife's and nieces of his wife, they will take, though he may have nephew had brothers and sisters living at the date of his will. Hogg v. Cook, 32 B. 641; Sherratt v. Mountfield, 15 Eq. 305; 8 Ch. 928; see Adney v. Greatrex, 17 W. R. 637.

S

Cousins.

Second cousins.

First and second

cousins.

The words "nephews and nieces on both sides" include a wife's nephew. Frogley v. Phillips, 30 B. 168; 3 D. F. & J. 466.

If a great-nephew is referred to as taking a share of a gift to nephews and nieces, the words will be held to include grand-nephews and grand-nieces. Weeds v. Bristow, 2 Eq. 333.

And if the testator expressly defines a niece, as "my niece, daughter of my nephew," nephews and nieces will include grand-nephews and grand-nieces. James v. Smith, 14 Sim. 214.

A bequest to "male nephews" has been held to include only sons of brothers. Lucas v. Cuddy, I. R. 10 Eq. 514.

II. COUSINS.

The word cousins means primarily children of uncles and aunts. Sanderson v. Bayley, 4 M. & Cr. 56; Caldecott v. Harrison, 9 Sim. 457; Stoddart v. Nelson, 6 D. M. & G. 68; Stevenson v. Abingdon, 31 B. 305; Burbey v. Burbey, 9 Jur. N. S. 96.

Second cousins are persons who have the same greatgrandfather or great-grandmother, and will not therefore include first cousins once removed. Corporation of Bridgnorth v. Collins, 15 Sim. 541; In re Parker; Bentham v. Wilson, 49 L. J. Ch. 587; 15 Ch. D. 528.

But if there are no second cousins the term will include all within the same degree of relationship, unless there is an intention to exclude first cousins twice removed, for instance, by a substitutionary gift to the children of second cousins who had died. Slade v. Fooks, 9 Sim. 386.

In a gift to "first and second cousins," the words will have their strict meaning, unless there is something to show that the testator is not using them in their proper In re Parker; Bentham v. Wilson, supra, where

sense.

Mayott v. Mayott, 2 B. C. C. 125, is explained, and Charge v. Goodyer, 3 Russ. 140; Silcox v. Bell, 1 S. & St. 301, are disapproved.

III. GRANDCHILDREN.

children.

Similarly, grandchildren, unless explained by the con- Grandtext, will not include great-grandchildren. Oxford v. Churchill, 3 V. & B. 59.

But if the gift is to grandchildren herein named, a great-grandchild who has previously been called grandchild may take. Hussey v. Berkeley, 2 Ed. 194.

IV. ISSUE.

A bequest to issue as purchasers goes to all issue, Issue. children, grandchildren, &c., as joint tenants, and all come in who are in existence at the time of vesting in possession. Davenport v. Hanbury, 3 Ves. 257; Maddock v. Legg, 25 B. 531; Weldon v. Hoyland, 4 D. F. & J. 564; Hobgen v. Neale, 11 Eq. 48.

And in the case of a devise of realty, all such issue take as joint tenants for life, or in fee, according as the will dates before or since the Wills Act. Cook v. Cook, 2 Vern. 545; Mogg v. Mogg, 1 Mer. 654, 689; Dalzell v. Welch, 2 Sim. 319.

tions.

1. In the case of realty, however, this construction will Excepbe excluded if there is a general intention manifest to keep the estates together in a single line of enjoyment, in which case the estates will devolve according to the rule in Mandeville's Case. Allgood v. Blake, L. R. 7 Ex. 339; ib. 8 Ex. 160; and see Whitelock v. Heddon, 1 B. & P. 243.

2. The generality of the word issue will be restrained In what if the testator explains that he meant by issue children.

cases issue means

a. This will be the case if the word issue is coupled with children.