and death.

life with remainder to her children, or to A. absolutely, of the will followed by a gift over, if A. dies without issue, to the testator's relations, and A. is the sole next of kin at the date of the will and death, the class will be ascertained at A.'s death. Marsh v. Marsh, 1 B. C. C. 293; Jones v. Colbeck, 8 Ves. 38; Lees v. Massey, 3 D. F. & J. 113; see post, p. 280, seq.

And the testator may himself fix the time at which his relations are to be ascertained; for instance, by directing his relations to be advertised for at the death of a tenant for life, and giving the property to such of them as claim within two months after such advertisements. Tiffin v. Longman, 15 B. 275.

Where there is a power to appoint to relations and no When the gift in default of appointment:

class to

take in

appoint

be ascer

1. If there is no life interest, and the power is a general default of power to appoint to the testator's relations, it seems the ment is to class to take will be ascertained at the death of the tained. testator and not when the power expires. Cole v. Wade, 16 Ves. 27; in which case, however, the actual point did not arise, since the next of kin at the testator's death, and the time when the power expired, were the

same.

2. If there is a life interest and the tenant for life has power to appoint to the testator's or his own relations, the class is to be ascertained at the death of the tenant for life, whether the power is to appoint by deed or will. Harding v. Glyn, 1 Atk. 468; Birch v. Wade, 3 V. & B. 198; see, too, in Brown v. Higgs, 8 Ves. 561.

And it makes no difference whether the power is one of selection or distribution merely: Pope v. Whitcombe, 3 Mer. 689, as corrected by Lord St. Leonards on Powers, 662, and Finch v. Hollingsworth, 21 Beav. 112; Caplin's Will, 2 Dr. & Sm. 527; see, too, A.-G. v. Doyley, 4 Vin. Ab. 485, where the tenant for life and the donee of the

power were different persons, and the class was ascertained at the death of the tenant for life.

Family.

Devise of lands.

Direction to secure

VII. FAMILY.

The word family may have a different meaning, according to the context.

1. In the case of devises of land :

"If land be devised to a stock or family or house it shall be understood of the heir principal of the house." Counden v. Clarke, Hob. 33.

This will be the case where the word is used as a quasiword of limitation, where, for instance, after a devise to a person, there is a direction that the property is to remain in his family. Chapman's Case, Dyer, 333; Doe d. Chattaway v. Smith, 5 Mau. & S. 126; Griffiths v. Evan, 5 B. 241.

A devise to A. and his family according to seniority, gives A. an estate tail. Lucas v Goldsmid, 29 B. 657.

So too a devise of land to A. for life " in confidence that after her decease she will devise the property to my family," goes to the testator's heir-at-law upon A.'s death. Wright v. Atkyns, 17 Ves. 255; 19 Ves. 299.

Under a direction to secure property for the benefit of a for family. person and his family the realty will be settled for life with successive remainders in tail, and the personalty will be settled for life with remainder to the children. v. Briggs, 15 Sim. 17; 2 Ph. 583; Woolmore v. Burrowes, 1 Sim. 512.

Bequest of

White

2. It is now settled that in a bequest of personalty or a to family. mixed bequest of realty and personalty to the family of a person, the primary meaning of family is children. Barnes v. Patch, 8 Ves. 604; Terry's Will, 19 B. 580; Wood v. Wood, 3 Ha. 65; Parkinson's Trust, 1 Sim. N. S. 242; Beales v. Crisford, 13 Sim. 592; Burt v. Hillyar, 14 Eq. 160; Pigg v. Clarke, 3 Ch. D. 672; In re Hutchinson

& Tenant, 8 Ch. D. 540; see Woods v. Woods, 1 M. & Cr. 401.

It has been held that the word includes an illegitimate

son.

Lambe v. Eames, 10 Eq. 267; 6 Ch. 597; Humble v. Bowman, 47 L. J. Ch. 62.

3. In order to give the word a different meaning there

must be some special circumstances.

a. Thus, if there are no children, next of kin may take. May mean Re Maxton, 4 Jur. N. S. 407.

b. So a gift to the family of an unmarried person would probably extend to all her relatives. Snow v. Teed, 9 Eq. 622.

next of kin.

widest

sense it

c. In some cases on the context family has been held to In the mean those of a man's household, thus including a wife or husband. Macleroth v. Bacon, 5 Ves. 158; Blackwall may v. Bull, 1 Kee. 176.

include a husband or

wife.

includes all descend

d. Family has been held to include all descendants in When it existence at the period of distribution; but such a construction would not be adopted without a strong context. ants. Williams v. Williams, 1 Sim. N. S. 358.

e. It would seem that a power to appoint to a person's Power to appoint to family would be limited to his children if there are any. family. In re Hutchinson & Tenant, 8 Ch. D. 540; see Sinnott v. Walsh, 5 L. R. Ir. 27.

If there are no children the donee of the power may select relations not within the degree of next-of-kin. Grant v. Lynam, 4 Russ. 292.

If the power is not exercised the statutory next-of-kin are entitled. Cruwys v. Colman, 9 Ves. 319.

4. Where it is clear that the testator has used the word family in a wider sense than any of those here mentioned, but it is uncertain who were meant to be included, the gift will be void for uncertainty. Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381; see Robinson v. Waddelow, 8 Sim. 134.

gift to

Whether a When family is construed children, a simple gift to the families of A. and B. goes per capita in joint tenancy. Gregory v. Smith, 9 Ha. 708.

several

families

goes per capita or per stirpes

among them.

Friends.

So, too, a gift to be divided between the families of A. and B. goes to all the children of A. and B. per capita as tenants in common. Barnes v. Patch, 8 Ves. 604; see, however, Alexander v. Douglas, Rom. Notes of Cases, 93.

Under a direction that after the death of the testator's wife, to whom a life interest in lands was given, the lands should revert to the testator's friends, the heir at law was held entitled. Coogan v. Hayden, 4 L. R. Ir. 585.

269

CHAPTER XXV.

GIFTS TO HEIRS, NEXT OF KIN, REPRESENTATIVES,

AND EXECUTORS.

Borough

WHERE Borough English or gavelkind lands are devised Devise of with other lands to the testator's heir, the common law English heir is entitled. Davis v. Kirk, 2 K. & J. 391; Thorp v. Owen, 2 Sm. & G. 90; Buchanan v. Harrison, 1 J. & H. the heir. 662; Sladen v. Sladen, 2 J. & H. 369.

So where Borough English lands alone are devised to a person for life, with remainder to her sons and daughters and their heirs, and if A. dies without having such heirs, to the testator's sons and daughters then living and the heirs of those who may be deceased, the common law heir takes under the ultimate gift. Polley v. Polley, 31 B. 363.

In the same way a devise of gavelkind lands alone to the testator's right heirs goes to the common law heir. Garland v. Beverley, 9 Ch. D. 213.

and Gavelkinds to

cases the

persona de

The rule is that "nemo est hæres viventis," and therefore In what a devise to the heirs of a living person is contingent, unless word heir the term heirs is so qualified by express words or by the refers to a general intention of the will as to show that the testator signata. meant by heir the heir apparent or presumptive or some other person, who will then take as persona designata.

This will be the case if the testator speaks of the heirs. of the body of B. now living. Burchett v. Durdant, 2 Vent. 311; Carth. 154; see Chambers v. Taylor, 2 M. & Cr. 376.