person named in it, being inadmissible; and by no means to be received for the purpose of raising a construction by circumstances.

In Swaine v. Kennerley, (i) the case just referred to; the bequest was of 2100l. to be invested in land to be settled to the use " of all and every the child and children of his (the testator's) late son Thomas," as tenants in common in tail. At the date of the will, the children of Thomas were three in number; one legitimate, and two illegitimate: and it was determined that the natural children could not take with the lawful child, because the will itself did not prove that the testator meant an illegitimate child.

We shall now proceed

SECONDLY, to consider instances in which a will was deemed to afford sufficient evidence of the testator's intention to include natural children in the expression "children."

66

Two propositions have been proved by the preceding authorities : first, that the will itself must show the testator's intention to include natural children in the term children," either by express designation, or a necessary implication, collected from the instrument itself: and secondly, that evidence is inadmissible to show such intention, when it is not to be clearly discovered in the will.

It has been decided by great authority, that where a man (married at the date of his will, and without having had a legitimate child) provided by his will for his wife, who he considered would survive him; and also made provision, to commence after his wife's death, for another woman with whom he cohabited, and by whom he had, when the will was made, natural children, reputed to be his own, and provided for by him as his children by that woman, such children were capable of taking that provision; upon the ground that the above circumstances raised so strong a probability of the testator's intent to provide for them, that it would be absurd to suppose the contrary.

Such was the case of Wilkinson v. Adam, (k) determined by Lord Eldon, assisted by three Judges. The form of bequest was, " to the children which I may have by Ann Lewis, and living at my decease," &c. The testator had provided for his wife, and for Ann Lewis after his wife's death; and the only children he ever had were three illegitimates by Ann Lewis, all of whom were living when the will was made, and had at that period acquired the character and reputation of being his natural children, as appeared from the depositions in the cause. Under those circumstances, and the intention collected from the will, it was decided that the three illegitimate children were entitled under the terms of the description in the will.(l)

The last determination was founded upon the will alone, and the depositions establishing the reputation acquired by the illegitimate children of being children of the testator. Certain memoranda entered by him in a book, proved in the Ecclesiastical Court, as explanatory of the will, were rejected, (part of the subject of disposition being freehold estate,) on the ground that the contents of the book were not to be considered as incorporated in the will. Upon the

Ves. &

469.

(k) Ibid. 422.

(1) See also Bayley v. Snelham, 1 Sim, & Stuart, 78.

subject of evidence admissible in those cases, Lord Eldon expressly confines it to the fact of the children having obtained by reputation the name and character of the testator's children. His Lordship expressed himself to the following effect: "In all the cases I have seen in relation to this question, illegitimate children, if they were to take, must have done so, not by any demonstration arising out of the will itself, but by the effect of evidence dehors read or attempted to be read with a view to establish, not out of the contents of the will, but by something extrinsic, who were intended to be the devisees; and if my judgment upon this case is supposed to rest upon any evidence out of the will, except that which establishes the fact, of there being individuals who had gained by reputation the name and character of the testator's children, the conclusion is drawn without sufficient attention to the grounds upon which the judgment is formed: my opinion being, that, taking the fact as established, of there being children who had gained the reputation of being his children, it does necessarily appear upon the will itself, that he intended those children."(m)

In a case of Blundell v. Dunn, (n) decided at the Rolls a short time before the last, the testator vested stock in trustees upon the following trusts: "to pay my wife or reputed wife Sarah 40l. a year for life, and to educate my children, &c." The trust of his residuary estate was declared: "to divide the interest among my children that are now living, and also the child or children that my wife is now enceinte with," at their ages of twenty-one; and to divide the principal among them at those periods. When the will was made, the testator had two children by Sarah, to whom he was not married; and she was then enceinte with another, which was born after the testator's death. His Honour decreed the residue to be distributed into three parts corresponding with the number of children, declaring the share of one of them, who died, to be vested in the Crown.

It is apparent from the whole context of the will, that the testator intended to make provision for persons then, in existence, and a child en ventre sa mere. He describes the mother as his reputed wife, and having none but illegitimate children, he refers to them as then living; so that the will clearly showed the intention of the testator to provide for his two natural children then in esse. And with respect to the child en ventre sa mere, it is observable that the testator does not bequeath to it as his child by Sarah, but as the child of Sarah, a description, by which, as we have seen, an illegitimate child unborn is capable of taking.

In the following case, Sir Thomas Plumer, V. C. expressed a strong opinion that the words, "to my children," contained in the will of a bachelor, then having illegitimate children, reputed to be his own, would include them; the terms being sufficient to mark them as persona designatæ. But the case was not solely determined upon that point, as the will in other parts afforded evidence in conjunction with those words sufficient to show that those natural children were meant to take under them.

The case alluded to is Beachcroft v. Beachcroft.(o) There a single man resident in India, having five natural children at the time of

(m) 1 Ves. & Bea. 462.

(n) Cited in 1 Mad. 433. (0) 1 Mad. 430.

making his will; (three of whom he had acknowledged to be his children, given his name to, and sent to this country to be educated,) bequeathed in this manner; " to my children 5000l. sterling each; and to the mother of my children 6000 sicca rupees;" then giving the residue to his brothers and sisters. Sir Thomas Plumer declared, that the illegitimate children were entitled to the legacies, as being sufficiently designated by the will. He concluded his judgment in these words; "After examining this case according to established principles and authorities, I think ex visceribus of the will, the legatees whom this testator must have intended to describe, were not the possible progeny of a future marriage, but existing persons children already born, uniformly designated and recognized by him in that character."

The grounds of his Honour's decree appear to have been these: that the words "my children" explained by the subsequent gift to "the mother of my children," and the portions of 5000l. bequeathed to each child, showed distinctly that the testator could only mean children then in existence, which he had by the person described as their mother, and for whom individually he intended first to provide portions, after which he designed the residue of his property for his legitimate relations.

In the last case the intention of the testator prevailed, notwithstanding the possibility of his subsequent marriage, and his having legitimate issue. It follows, therefore, if there be no possibility of the person described having lawful children, and a legacy be given to his children generally, all those born at the date of the testament, although illegitimate, will be entitled; because it is manifest that they were intended, since there never were any lawful children to which the words of the will could be applied. Suppose then a bequest to be made to the children of A. by a will noticing A's death, and evidence be given that he never had any lawful child, but left at his decease natural children; those children would take upon establishing by proof their title by reputation as children of A., and that he never had any legitimate children to whom the term children could apply.

Such was the case of Lord Woodhouselee v. Dalrymple, (p) determined by Sir William Grant, M. R. There Sir James Craig bequeathed "to the children of the late Charles Kerr who should be living at his (the testator's) death, 2000l. in equal shares." It appeared in evidence that Charles was married, had five children by his wife before marriage, but no child after that event: that the five were baptized as the children of Charles and Mary Kerr, and the testator, acquainted with the circumstances of Charles's family, well knew the claimants, three of those children who survived him, the testator, and were the persons intended in the bequest made "to the children of the late Charles Kerr," and that Charles never had a legitimate child. His Honour decided in favour of the three natural children, upon the principle that the death of Charles being noticed in the will, and it being proved that previously to his decease he never had any but the five illegitimate children, who had acquired the reputation of being his children, it clearly appeared from the (p) 2 Meriv. 419.

will, (the above collateral points being established) that the testator meant to designate the natural children of Charles living when the will was made; for there never were nor could be any children of Charles to whom the words of the will could be applied at its making or afterwards, except to those five natural children.

SECT. III. The construction of the word "HEIRS," when

applied to personal Estate.

1. A legacy to A. and his heirs, is an absolute bequest to A. and the whole interest in the money vests in him for his own use.(q) But when no property in the bequest is given to A. and the money is bequeathed to his heirs, or to him, with a limitation to his heirs, if he die before the testator, and the contingency happens, then if there be nothing in the will showing the sense in which the testator made use of the word heirs, the next of kin of A. are entitled to claim under the description, as the only persons appointed by the law to succeed to personal property.

We accordingly find Lord Alvanley in Holloway v. Holloway, (r) expressing an opinion, (although it was unnecessary for him to decide the point) that the word "heirs," when applied by testament to personal estate, must be understood to mean next of kin, for the reason before mentioned.

So in the case of Lowndes v. Stone, (s) the residuary bequest was to the testator's next of kin or "heir at law," whom he appointed executor. The Court determined that the next of kin were entitled to it.

And in Vaux v. Henderson, (t) Alexander Coutts bequeathed 200l. to Edward Vaux; but if he died before the testator, then to Edward's "heirs." Edward did not survive the testator, but by will disposed of all his personal estate, appointed executors and left a widow and seven children. Sir William Grant, M. R. determined that the legacy belonged to the next of kin of Edward who were living at the death of the testator Alexander Coutts.

2. The above authorities are sufficient to establish the proposition, that a bequest to the heirs of an individual, without addition or explanation, will belong to his next of kin. The rule however is subject to alteration by the intention of testators. If then the contents of the will show, that by the word "heirs" the testator meant other persons than next of kin, those persons will be entitled. Children, therefore, may take under the word "heirs," as in the following case:

"I

Elizabeth Letheuillier bequeathed in the following manner: give to my sister Loveday's heirs 6000l. I give to my sister Brady's children 1000l. equally." Mrs. Loveday had two daughters only, and both were living when the will was made. One of them died before the testatrix, leaving three children, and the other survived her and claimed the whole 6000l. The question was, whether the children of the deceased daughter should participate with the surviving daughter, which depended upon the construction of the word "heirs." And Sir Thomas Clarke, M. R. was of opinion that the

(q) Crawford v. Trotter, 4 Mad. 361. (8) 4 Ves, 649.

(r) 5 Ves. 403.
(t) 1 Jac. & Walk. 388.

testatrix had explained that word by the term "children" in the bequest which immediately followed. So that the word "heirs" was to have the same and only meaning as "children," a construction that entitled the surviving daughter to the whole 6000l.(u)

The intention of testators to use the term "heirs" in the sense of "children" equally appears in instances where the direction as to the distribution of the property is inconsistent with construing that word in its usual acceptation, viz. as a word of limitation.

Suppose then A. to give a legacy to B. for life, and then " to the heirs, or the heirs of the body of B. to be divided among them as B. shall appoint by deed or will;" this delegated authority of distribution shows that the word "heirs" was substituted for children; for it was the obvious intention that the legatees were to take distributively and as purchasers, not in succession as heirs, but together as children. A contrary construction of the words would defeat that intention; for if the expression "heirs" was considered a word of limitation, B's life-estate must necessarily be enlarged; it would give him the absolute interest in the fund, to the disappointment of his children, and in contradiction to the power of appointment, which would be rejected, and struck out of the will.(x)

The construction will be the same if a bequest be made to a person for life, and afterwards "to the heirs or heirs male of his body as tenants in common." In such a case, "heirs" must be considered synonimous with "children;" because it appears to be the intention of the testator to give the legatees interests distinct and independent of that bequeathed to their parents, and in a class, and not successively, as is the manner in which heirs take. Besides, were the word "heirs" interpreted in its natural sense, it would defeat the testator's intention by vesting the absolute interest in the person whom he only intended to take the property for life.(y)

So also, if the bequest were to A. for life, and to the "heirs or heirs male of his body, their executors, administrators, and assigns;" the inconsistency between the natural import of the word "heirs," and the expressions grafted upon them, so clearly shows the testator's meaning by that term to be children, (individuals to take per capita in their own rights, and not as heirs successively and by descent) that the word "heirs" will be considered the same as if the testator had used the word children.(z)

It is to be remarked, that in the three last instances the bequests to "heirs" were preceded by interests for lives expressly given to the parents; yet the construction of "heirs" to mean children will equally prevail, although that term be not preceded by an express limitation to the parent for life, if sufficient appear from the will to show that the word "heirs" was used in the sense of children. And such is the effect of the term "heirs," where it appears to have been used in that sense, whether it be so explained by the testator in words, or the intention be inferentially collected from the context, that the word ex vi termini will give by implication an estate for

(u) Loveday v. Hopkins, Ambl. 273.

(x) Target v. Gaunt, 1 P. Will. 432. and see 5 Maule & Selw. 100. (y) Jacobs v. Amyatt, 4 Bro. C. C. 542. Doe v. Wright, 5 Maule & Selw. 95. (z) Donne v. Merrefield, cited Forrest, 56. Hodgeson v. Bussey, 2 Atk. 89.