sions;(0) and a court of equity will even correct the instrument, if necessary, to give effect to such intention.(p) If then the words "personal representatives in the course of administration," be sufficient in a will (as before supposed) to designate relations described in the Statute of Distributions, there seems no reason why the same words appearing in a settlement, should not receive the like construction.

Before proceeding to the consideration of the next authority, it seems expedient to remark the difference when the bequest is to the personal representatives of a stranger, and when to those of the testator himself, as in the foregoing case. In the first instance, we have seen that the persons taking under the description, do so not only as persona designatæ, but also that they take the property in their own rights, discharged from the debts, &c. of their testator. In the second, however, it is otherwise, for since the subject bequeathed is the personal estate of the testator, to whose own personal representatives he ultimately limits it, it follows that although the persons entitled under the description, whether they be executors, administrators, or next of kin, may succeed to the property as persona designata, they nevertheless hold it subject to all the equities which it was liable to in consequence of belonging to the individual bequeathing it. After these observations, we shall proceed to the next instance, where the title of the next of kin was preferred to that of an executrix.

In Long v. Blackall, (q) the testator bequeathed leasehold estates to his widow durante viduitate, remainder to his sons in succession, including a child en ventre sa mere, if a son, for life, remainder to their respective issue male, or descendants from issue male. And if all his sons died without leaving issue male or descendants from such issue, remainder upon the death of the last surviving son "to such persons as should then be the legal representatives" of the testator; and he appointed his wife sole executrix. As the will originally stood, the ultimate limitation was in trust for the executors and administrators of his son Thomas, who was the first son named in the will; but those words had been erased with a pen, and the expressions, "such persons as shall then be my legal representatives," were interlined. It was one of the questions whether the widow, as executrix, or the testator's next of kin were entitled to the leaseholds? And Lord Rosslyn determined in favour of the latter.

It is very improbable that the testator intended his wife to take under the limitation to his legal representatives, merely on account of her being executrix, because having named her in the commencement of his will, it might have been expected that he would have bequeathed to her the property, by the description of wife or of executrix, had he meant that she should succeed to it. And it is also observable, that the testator had appointed a period, that might have been very distant, for his legal representatives to take the property, viz. upon the death of his sons, without leaving issue male, or descendants from such issue. Whoever then answered the de

(0) Touchst. 86. et seq. 4 Maule & Selw. 433, 1 Ves. sen. 196. 18 Ves. 49.
(A) 1 Ball & Beat, 253, 256, 260.
(g) 3 Ves, 486.

scription of his legal representatives, were to have the estates. He could not therefore mean his executrix by these words, a person who, upon every reasonable calculation, might be supposed to be long previously dead. The latter was the ground upon which the Court founded its decree in favour of the next of kin.

The last case seems to be an authority for considering that an executor or administrator will be excluded from taking beneficially, under the description of legal representative, personal estate ultimately limited by the testator to his legal representatives living at the failure of several prior dispositions of it; and upon the inference arising from the distance of time which may elapse before the event happens, that the testator meant by those words, other persons than his executor or administrator strictly answering the legal description.

We have seen that the apparent intention of the testator has led to the construction of the words "personal" or "legal personal representatives," in favour of the next of kin in preference to the executors or administrators. We proceed to observe,—

3. That a similar reason has induced the Court of Chancery to construe the same words to mean, children, grand-children, &c. to the exclusion of those persons who technically answer the description of "personal representatives."

An instance of this kind occurred in the case of Horsepool v. Watson,(r) in which a fund was ordered to be distributed after the death of the survivor of two parents "among all their issue, child or children, male or female, and their representatives" equally. Lord Rosslyn, after deciding that "issue" was explained by the words "child or children," declared that the expression "representatives" was also explained by the term "issue," to mean children, and descendants of deceased children; his Lordship reading the will in this manner; "among all the issue, child and children, male or female, and their representatives being issue," a word, as we have seen, comprehending ex vi termini descendants, however remote, from the persons described. (8) He therefore decreed in favour of the issue of a deceased child in preference to its administrator.

4. As to the title of a husband or wife under a limitation to the personal" or "legal personal representatives" of each other.

It has been shown in the fifth and sixth sections that neither husband nor wife regularly answers the description which would entitle either of them to take under a bequest to the relations, or to the next of kin of the other; but in order to include them in such limitations it must appear from the instruments, that they were in the contemplation of the settlors or testators, and intended by the description as persona designatæ. In the present case, however, it is presumed, there is this difference, that if either be clothed with the character of executor or administrator of the other, the prima facie legal title attaches to the office, which will prevail unless an intention to the contrary be expressed or clearly apparent in the instrument,(t) and then if the words "personal representatives" be considered synonimous with "next of kin," the husband or wife must be excluded, since neither of them, as before shown, answers that de(r) 3 Ves. 383. and before stated, p. 90. (8) See sect. 4. (t) See 14 Ves. 382.18 Ves. 49. 3 Ves. 231-244. 1 Ves. sen. 84. 3 Atk. 758.

scription. But as this subject is discussed in the treatise of "the law of property arising from the relation of husband and wife,"(u) the reader is requested to refer to it.

The subject next in order is:

SECT. VIII. The construction of bequests when limited to "EXECUTORS and ADMINISTRATORS."

If personal estate be given to B. his "executors and administrators," the law and the testator's intention concur in transferring to B. the absolute interest in the legacy, (x) so that if B. die before the testator the bequest will lapse, and cannot be claimed by the executors or administrators of B. as will be shown in the eighth chapter which treats of lapsed legacies. And if an interest for life were given to B. with the ultimate limitation, after prior dispositions, or subject to his appointment, to the executors and administrators of B. it seems that the absolute interest would vest in him if he survived the testator, and his executors or administrators could not claim beneficially by virtue of the express limitation to them; the intention being that they should take the property to be distributed as part of B's. estate, with which the law agrees, such a limitation of personalty being analogous to a limitation of real property to the right heirs of a devisor.(y) But if no interest were given to B. and the bequest were to his executors and administrators, it should seem that the individuals answering the description would be beneficially entitled, as persona designatæ, in analogy to the devise of real estate to the heir of B. without a previous limitation to B. whose heir would take by purchase in his own right, and not by force of the word "heir" considered as a term of limitation.(z) A fortiori the construction must be the same when a testator, in addition to the gift to the executors and administrators, declares it to be "for their own use and benefit." Accordingly in Sanders v. Franks, (a) it was determined by Sir Thomas Plumer, that a limitation of personal estate to a widow, by her husband's will, for life, with a power of appointment, and in default of such disposition "to her executors or administrators for their own use and benefit," did not vest the absolute interest in the property in the widow; but that she had an estate for life only, with a power to dispose of the fund, upon the principle, that the executors and administrators took as purchasers, in their own rights, and not by representation.

It was noticed in fifth and sixth sections, that neither husband nor wife is regularly entitled under a bequest to the relations or next of kin of the other; but it would seem that if the ultimate limitation of personal property be made to the executors or administrators" of either of them, then if the husband or wife be invested with either of those characters, he or she will be entitled to the bequest, as answering the description in the instrument.(b)

SECT. IX. Legacies to "DESCENDANTS."

Attempts have been made to induce the Court of Chancery to put the same construction upon the word "descendants" as upon the

(u) 1 vol. 326. 2 vol. 64-66.

(y) 15 Ves. 537.

(x) 15 Ves. 537. 2 Mad. 155.
(z) 2 Madd. 155.

(a) Ibid, 147. and see "Law of Husband and Wife,” 2 vol. 215, &c.

(b) 15 Ves, 537.

term "relations," but the Court has constantly refused the application, since the principle which applies to the latter case does not apply to the former; for when a bequest is made to "relations" unless the Court were guided by the Statute of Distributions in ascertaining the legatees, the disposition would be void from the generality and uncertainty of the term; but when the word "descendants" is used, there is no necessity for resorting to the statute to fix or limit the objects of the bequest, as the natural import of the term is sufficient to include every individual proceeding from the stock or family referred to by the testator; so that a legacy "to the descendants of B." will comprehend all his children, grand-children,

&c.

Thus in Crossly v. Clare,(c) Mr. Ince devised his real estate to three persons for their lives, and the life of the survivor of them, with remainder "to the descendants of Francis Ince, now living in and about Seven Oaks in Kent, or thereafter living any where else, to be sold, and the money to be equally divided amongst them." He then gave 4000l. "to the descendants" of Francis Ince, in the same words. Kindred in the second and third degrees were the claimants, as also one in the fourth degree, who was born after the date of the will. But Sir Thomas Clarke. M. R. decided against the latter, because not in esse when the will was made; and he determined that great grand-children were entitled with the grand-children to shares of the fund, since they answered the description of descendants of Francis Ince, and the distribution must have been per capita.(d)

So also in Butler v. Stratton, (e) Mrs. Stratton devised her residuary real and personal estates to trustees, in trust to sell the former, and divide the proceeds with his personal property "equally between the descendants of Thomas Fairbank, deceased." When the testatrix died, Thomas Fairbank had three sons and eleven grand-children; and Lord Thurlow determined that all Fairbank's descendants, as well grand-children as children, were entitled to the fund and per capita.

We shall next proceed to consider,—

SECT. X. What persons may claim under the word "FAMILY."

The word "family," when applied to personal property, is synonimous with "kindred" or "relations." If it be asked, of what family is A.? the question will be answered in being informed from what person he is descended; and whoever is related by blood to that stock, is related to and of the family of A.(f) This being the ordinary acceptation of the word "family," it may nevertheless be confined to particular relations by the context of wills, or the term may be enlarged by it, so that the expression may in some cases mean children, or next of kin, and in others may even include relations by marriage. In discussing this subject, the first consideration will be that class of cases

1. Where the bequest is immediate and absolute.

If a legacy be given to or for the benefit of "A.'s family," the word "family" may be so explained by the context of the will, as to (c) Ambl. 397. and see Pierson v. Garnet, 2 Bro. C. C. 38. 230. S. P.

(d) 3 Bro. C.C. 369.

(e) 3 Bro. C. C. 367.

(ƒ) 9 Ves. 323.

be construed to mean the children of A. and A. will take no interest in the fund.

Accordingly, in Barnes v. Patch,(g) the testator Jefferson, after declaring his intention to provide for his children, devised his residuary estate equally between his two natural children Thomas and Arabella, to be paid at their ages of twenty-one, with benefit of survivorship, but if both died before that period, (which event happened,) he gave "the remainder of his estate to be equally divided between his brother Lancelot's and his sister Esther's families." Lancelot was living, and had eight children at the testator's death. Esther died before the testator, leaving ten children; and it was decided by Sir W. Grant, M. R. that by the word "family," children were intended, and that the distribution was to be made per capita, a construction which excluded Lancelot.

So also in M'Leroth v. Bacon,(h) Lord Alvanley said, that where a legacy is given to trustees for a married woman and her "family," the construction of such a bequest, without other circumstances, would be, that it should be applied for her and her children.

And if the word "family" be used in devising freehold estates, as to A. for life, with remainder to his family, it seems that A's heir at law will be entitled under that description.(i)

It is not so clear when the fund is a mixed one, consisting of real and personal estates, and the limitation is to the "family" of J. S. or J. S. for life, remainder to his "family ;" or, after several dispositions, the ultimate limitation is "to the family of the devisor," whether the heir will take the whole fund or only the real estate, and the next of kin the personalty. Lord Eldon, in Wright v. Atkyns,(k) appears to have intimated an opinion, that since it had been decided at law, that under the word "relations,"() next of kin should take freehold estate; and since the heir had been held by law to be entitled to the land under the word "family," it was only fair that the heir should be at liberty to take the personal fund, under a limitation of both real and personal estate, to the "family" of A.

The only decision upon this point appears to be the short note mentioned below, and referred to in Wright v. Atkyns.

Regularly, the person designated by law to take real property upon intestacy, is the heir; and the persons to take personal estate are next of kin. Hence, it seems a consequence, when real and personal property are devised together in such a manner, as to render it uncertain who are the individuals intended by the description adopted, that the law will give the freehold estate to the heir, and the personal to the next of kin. Such appears to have been the opinion of the Master of the Rolls from the following short note: "1732, under a limitation to the family of J. S. the real estates descend to the heir at law; the personal estate goes to the next of kin."(m) Also, in the same case of Wright v. Atkyns,(n) Sir W. Grant observed, that the word "family," when applied to personalty, could (h), 5 Ves. 166. Chapman's case, Dy. 333. Counden v. Clerke, Hob. 33. Wright v. Atkyns,

) 8 Ves. 604--607.

126.

Coop. 122. Doe v. Smith, 5 Maule & Selw. (1) Supra, sect. 5. p. 92.

(K) Coop. 123.
(m) 1 Taunt. 266. 17 Ves. 263.

(n) 17 Ves. 263.