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722. See, too, Tapner v. Marlott, Willes, 177; and A.-G. v. Vigor, 8 Ves. 256, 291; but it is unlikely that this construction will be extended.

The effect, however, of a gift to A. or his heirs or assigns, is to give the absolute interest to A. Wilton's Estate, 8 D. M. & G. 173; Hopkins' Trust, 2 II. & M. 411. See post, p. 286.

BEQUESTS OF PERSONALTY TO HEIRS.

1. A bequest of personalty to the right heirs, or to the Bequests of heirs at law, or the next heir of an individual, primâ facie to heirs.

personalty goes to such heir as persona designata, whether the bequest be to the heirs of the testator or of a stranger. Mounsey v. Blamire, 4 Russ. 384 ; Hamilton v. Mills, 29 B. 193; De Beauvoir v. De Beauvoir, 3 H. L. 524; Re Rootes, 1 Dr. & Sm. 228; Southgate v. Clinch, 27 L. J. Ch. 651; 4 Jur. N. S. 428.

The rule applies, d fortiori, to a mixed fund. De Beauvoir v. De Beauvoir, 3 H. L. 524; Boydell v. Golightly, 14 Sim. 327; Todhunter v. Thompson, 26 W. R. 883.

2. In the same way, if the gift is to A. for life with A. for life, remainder to his heirs, the heir, in the strict sense, is

remainder

to heirs. entitled. In bonis Dicon, 4 P. D. 81; Smith v. Butcher, 10 Ch. D. 113; disapproving Mounsey v. Blamire, 4 Russ. 384. The cases of Evans v. Salt, 6 B. 266; Low v. Smith, 25 L. J. Ch. 503; 2 Jur. N. S. 344 ; Re Peppitt's Estate ; Chester v. Phillips, 36 L. T. N. S. 500, must be considered overruled, unless they can be supported on the special context in each case.

3. But the word heirs may be controlled by the context, In what as in Gamboa's Trust, 4 K. & J. 757, where a bequest to

cases beirs

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Substitutional gift to heirs.

and in In re Newton's Trusts, 4 Eq. 171, where the
bequest to "the heirs and assigns of my deceased sister"
was shown to be quasi substitutional by other limita-
tions to the testator's living brothers and sisters and their
heirs and assigns; and see In re Steevens' Trusts, 15 Eq.
110, as to which case quære.

Where the intention is to give A. the absolute interest,
the word heirs has been held equivalent to executors and
administrators. Powell v. Boggis, 35 B. 535, where the gift
was to A. for life, then to her heirs as she shall give it by
will, and if she dies without a will to her right heirs.

And, where the testator directs a division amongst the several heirs of tenants for life, who are related to each other, so that heirs cannot mean next of kin, heirs will mean children. Bull v. Comberbach, 25 B. 540; see Roberts v. Edwards, 33 B. 259.

4. In a gift to A. or his heirs, heirs means the persons entitled under the statute. Vaux v. Henderson, 1 J. & W. 388; Gittings v. M Dermott, 2 M. & K. 69; Jacobs v. Jacobs, 16 B. 557; Doodly v. Higgins, 9 Ha. App. 32; 2 K. & J. 729; In re Craven, 23 B. 333; Powell v. Boggis, 35 B. 535; Parsons v. Parsons, 8 Eq. 260; Neilson v. Monro, 27 W. R. 936.

If real and personal estate are given together to persons or their heirs, but the realty is not converted, the realty goes to the heir and the personalty to the statutory next of kin. Wingfield v. Wingfield, 9 Ch. D. 658. Heayj w Boulton,

1383 In a bequest to children or their heirs, followed by a gift over, if all the children die without issue the word heirs has been held to mean issue. Speakman v. Speakman, 8 Ha. 180; and see Roberts v. Edwards, 12 W. R. 33.

In a bequest to A. or the heirs of his body, heirs of the body means such of the persons entitled under the statute as may be descendants of A. Pattenden v. Hobson, 17 Jur. 406; 22 L. J. Ch. 697.

Heirs of the body.

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tute fixes

A widow is included in the persons entitled under the The stastatute, and the statute fixes not only the persons but the the proporproportions in which they take. In re Steevens' Trusts, well as the 15 Eq. 110; Jacobs v. Jacobs, supra ; Doody v. Higgins, persons. supra.

A bequest of personalty to “the heirs or next of kin of A.” has been construed as a gift to next of kin. Thompson's Trusts, 9 Ch. D. 607; see p. 277.

In re

NEXT OF KIN.

next of

The words next of kin, without more, mean the nearest Gifts to blood relations of the propositus in an ascending and kin descending line, and they take as joint tenants. Withy v. Mangles, 10 CI. & F. 215; Lucas v. Brandreth, 28 B. 274 ; Avison v. Simpson, Johns. 43; Halton v. Foster, L. R. 3 Ch. 505.

The same meaning has been given to the words “legal or next of kin.” Harris v. Newton, 46 L. J. Ch. 268; 25 W. R. 228.

Those of the half blood are equally entitled with those of the whole blood. Collingwood v. Pace, 1 Vent. 424 ; Brown v. Wood, Alleyn, 36; see Williams on Executors, 1120.

But a selective power to appoint to next of kin will Gift under authorise an appointment to statutory next of kin. Snow v. Teed, 9 Eq. 622. Under a gift to next of kin ex parte materná, next of Nextof kin

ex parte kin ex parte paterna, who happen to be also next of kin materna. ex parte materna, will not be excluded, except by express words. Gundry v. Pinniger, 14 B. 94 ; 1 D. M. & G. 502; Say v. Creed, 5 Ha. 580.

If there is an express reference to the statute or The effect intestacy, all kindred entitled under the statute, including ence to the those who take by representation under the statute, will statutecor

power.

a

of a refer

come in. Bullock v. Downes, 9 H. L. 1; Nichols v. Haviland, 1 K. & J. 504.

Neither the wife nor the husband take as next of kin under the statute. Garrick v Lord Camden, 14 Ves. 372; Kilner v. Leech, 10 B, 362.

And a gift to persons, entitled as next of kin or otherwise under the statute, will not include the husband. Milne v. Gilbart, 2 D. M. & G. 715; 5 D. M. & G. 510.

If a husband has been expressly excluded in a gift to next of kin under the statute, a widow will be admitted under a subsequent gift to next of kin by statute where there is no such exclusion. In re Collins' Trusts, W. N. 1877, 87.

If only an intention is declared of leaving property to next of kin according to the statute, which is not carried out, the property goes as in an intestacy, and a widow

would therefore be admitted. Ash v. Ask, 33 B. 187. What will A person is not excluded from taking property under a exclude one of the gift o next of kin by the fact, that a life interest in the

kin from a cift property is expressly given to him. Gorbell v. Davison, to next of 18 B. 556.

But if the gift is to the “other the next of kin,” one of the next of kin to whom an interest is expressly given by

the will will be excluded. Cooper v. Dennison, 13 Sim. 290. Whether If there is a reference to the statute, the statute regulates the statute regulates

the nature of the interest, as well as the persons, who are the nature to take under it. Bullock v. Downes, 9 H. L. 1; Ranking's of the interest as Settlement Trusts, 6 Eq. 601. well as the persons to The above proposition seems to be justified by the take.

opinions expressed in Bullock v. Downes, and would probably be now adopted. However, the cases go to this:

1. Where there is a reference to intestacy, as well as to the statute, the statute fixes the proportions as well as the persons. Bullock v. Downes, supra; Martin v. Glover, 1 Coll. 270; Jenkins y. Gower, 2 Coll. 537.

kin.

2. So, where the gift is to persons “entitled under," or “under and according to” the statute. Horn v. Coleman, i Sm. & G. 169; Ranking's Settlement, supra.

3. If the gift is merely to persons according to the statute, the better opinion seems to be, that the same result would follow. Mattison v. Tanfield, 3 B. 131 ; Lewis v. Morris, 19 B. 34. On the other hand the contrary was held in In re Greenwood's Trusts, 3 Giff. 390.

4. Words importing or directing a tenancy in common will not prevent the statute from fixing the proportions. Mattison v. Tanfield, supra; Lewis v. Morris, supra. Richardson v. Richardson, 14 Sim. 526, must be considered overruled; see Bullock v. Downes.

5. It would seem, that a gift equally among the persons entitled under the statute, would prevent the statute from fixing the proportions; see Phillips v. Garth, 3 B.C. C. 69.

But if there are words importing that the distribution is to be according to the statute, the word equally will be rejected. Holloway v. Radcliffe, 23 B. 163; see Fielden v. Ashworth, 20 Eq. 410.

A devise of land to the nearest of kin by way of heir- Nearest of ship goes to the heir. Williams v. Ashton, 1 J. & H. 115. of heirship.

A gift to “next of kin or heir at law” would probably go according to the nature of the property. Lowndes v. Stone, 4 Ves. 649 ; see In re Thompson's Trusts, 9 Ch. D. 607.

In Boys v. Bradley, 10 Ha. 389; 4 D. M. & G. 58; 5 Next of H. L. 873,"next of kin in the male line in preference to male line. the female line,” was held to mean next of kin ex parte puterna. A devise of land to the “next” or “nearest” of a par- Devise to

“ nearest" ticular class of relations goes to the eldest of the class, of a class. Perriman v. Pearce, Co. Lit. 10b., n. 2; Power v. Quealy, 2 L. R. Ir. 227; 4 ib. 20, where the devise was to the “ nearest, and most deserving male cousin, and a regular Power of the family.”

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