employment at his death, cannot be received, as it is in direct opposition to the will.(f) All these points were discussed and settled in the case of Herbert v. Reid, g) which was first determined by Sir W. Grant, and afterwards confirmed by Lord Eldon upon appeal. Robert Bretcliff bequeathed to the plaintiff, Jane Herbert, "if in his service at the time of his death," a specific legacy of 500l. three per cent consols; and he gave his residuary estate to his executors, Reid and Rogers. Jane quitted the testator's house a few days before his death; yet she claimed the legacy, upon the ground that although she had left the dwelling of the testator, she did not leave his service, but was considered by him as his servant up to the period of his decease. This was the fact established. Reid and Rogers (who were defendants) did not assert in their answers, that Jane, in leaving the testator's house, quitted his service, but confined their direct allegation to her leaving his dwelling. Jane produced three witnesses who proved declarations of the testator, that she was to return home again when he got better; and that he had left her 500l. by his will; also that the testator, in conversation with one of them upon the question whether he should leave Jane's legacy weekly, or as he had left it by his will, resolved, upon the advice of the witness, not to alter his will. The result of this testimony, if admissible, proved that Jane, although out of the testator's house, was still considered by him to be in his service, and a legatee in his will. Upon such testimony, Sir W. Grant determined that Jane was entitled to the legacy, a decision approved of and confirmed by Lord Eldon; and upon the following grounds-1. That the evidence was admissible to prove that Jane was in the testator's service at his death; justice requiring the reception of it, since no person except the master and servant could furnish evidence upon that fact; and from necessity the master must explain quo animo he sent his servant from his house, viz. whether as putting an entire period to the relation between master and servant, or merely as suspending the performance of service: 2. That the evidence proved that Jane's departure from the house was only a suspension of her service and lastly, that evidence would have been inadmissible to show the testator's intention that Jane should have the legacy, notwithstanding she might not be in his employ as a servant in his house at the time of his death. Having now brought to a conclusion our review of the authorities fixing and establishing the construction of words referring to individuals in classes as to relations, &c. so far as relates to the persons answering those descriptions; it will be useful to collect the cases dispersed through the preceding sections in order to ascertain : SECT. XV. The different periods of time at which persons answering the descriptions of family, relations, next of kin, personal representatives, issue, heirs, and descendants, (to whom bequests were made by those terms generally, (g) Ibid. 481. (ƒ) 16 Ves. 486. 489. and without discrimination) were required to be in esse, for the purpose of participating in the legatory fund. In the different classes of persons just enumerated, children are omitted, since the present subject, so far as it relates to them, has been minutely considered in the first section of this chapter; to which, therefore, the attention of the reader is directed. Most of the rules, constructions, and distinctions there laid down and taken, are equally applicable to bequests made to persons by the words before enumerated. We shall proceed, as in the first section to consider, 1. When next of kin, &c. living at the date of the will are solely and exclusively entitled. If the will express, or clearly show that a testator, in bequeathing to the relations, next of kin, or descendants of a deceased individual, referred to such of them as were in existence when the will was made, they only will be entitled; as if the bequest was. "I give 1000l. to the descendants of the late A. B. now living," those descendants only in esse at the date of the will can claim the legacy.(h) 2. But, in general, a will begins to speak at the death of the testator, and, consequently, in ordinary cases relations, next of kin, issue, descendants, &c. living at that period will alone divide the property bequeathed to them by those words. (i) Such is the general rule of construction when the legacy is immediate to relations, &c.(k) That rule will not be altered, although the fund be given to one or more persons for life, previously to the limitation by the testator to his own relations, &c. If, then, he bequeath his residuary estate to his relations, or next of kin, after first limiting it to B. for life; next of kin living at the death of the testator, and not at the demise of B. will alone be entitled, and that construction will be adopted, although B. the tenant for life, may be one of the next of kin,(l) except a contrary intention appear from the will as after mentioned in this section. So also, if a general power of appointment had been given to B. and in the event of his not making any, remainder to the next of kin to the testator A. those next of kin only living at the death of A. will be entitled.(m) Or if the power had not been general, but restricted, to the ascertaining of the shares of persons to whom the bequest was made by the word relations, &c. the testator's next of kin in esse at his decease would be exclusively entitled, and not the persons only answering the description of his next of kin, living at the death of B. (h) Crossly v. Clare, Ambl. 397. ante, p. 115. and see sect. 1. of this chapter, p. 45 to 52. (i) Vide sect. 1. pl. 2. p. 48. to 52. (k) Bridge v. Abbot, 3 Bro. C. C. 224. ante, p. 110. Holloway v. Holloway, 5 Ves. 399. supra, p. 85. Vaux v. Henderson, 1 Jac. & Wal. 388, note; supra, p. 85. (1) Rayner v. Mowbray, 3 Bro. C. C. 235. Masters v. Hooper, 4 Bro. C. C. 207. Doe v. Lawson, 3 East, 278. Harrington v. Harte, 1 Cox. 131, and see the Master of the Rolls' observations in Jones v. Colbeck, 8 Ves. 38. See also Bird v. Wood, supra, p. 107. (m) See the case last referred to. Suppose then the bequest be to relations, in such shares and proportions as B. shall appoint. If B. make no appointment, the testator's next of kin in esse at his, (the testator's) decease, will be solely and exclusively entitled.(n) To the general rule before stated, the intention of testators or necessity, may create exceptions, which we will consider under the following head: 3. When relations, next of kin, &c. living at the death of a stranger, or a tenant for life of the property, will be entitled to it in exclusion of the representatives of those next of kin, surviving the testator, but dying before the fund becomes distributable.(0) If a testator express, or his intention otherwise appear from his will, that a bequest to his relations, &c. living at the death of a person, or upon the happening of any other event, should take the fund his next of kin only in existence at the period described, will be entitled, in exclusion of the representatives of such of them as happened to be then dead. An instance of this kind occurred in the case of Long v. Blackall,(p) before in part stated, where the testator gave lease-hold property upon death of his last surviving son, without leaving issue male, &c. (to whom he had limited the estates,) "to such persons as should then be his, (the testator's) legal representatives." The event happened upon which its last limitation was to take place; and it was determined, that the testator's next of kin living at the death of the survivor of the sons, were entitled in exclusion of the personal representatives of persons, next of kin to the testator at his decease, who did not survive the son. So if the testator delegate a power to a person to select and appoint to his relations, &c. his residuary estate, and the donee omit to execute the power, the next of kin of the testator living at the death of the donee, will be the only persons entitled to the property, (q) a necessary construction founded upon the circumstances of the case; for since the persons to take, are uncertain, while the donee of the power lives without executing it, in consequence of their being dependent upon his will and pleasure, no interest could vest in any of the testator's next of kin, prior to the execution of such power, or the death of the donee, a circumstance distinguishing the present case from that before mentioned, of the donee's power being limited to ascertaining the shares of the next of kin; for the next of kin in existence at the testator's death, took vested interests, liable only to be devested in regard to the proportions they were to take, if the donee should exercise his power. Suppose, then, a legacy to be thus bequeathed: "to such of my relations or family, as my wife in her discretion shall think proper to appoint by will, &c." If the widow make no appointment, or an invalid one, the testator's next of kin living at her death, will be the only persons entitled to the fund.(r) (n) Pope v. Whitcombe, 3 Meriv. 689. ante, p. 96. (q) See ante, sect. 5. p. 98. (r) Cruwys v. Colman, 9 Ves. 325. Harding v. Glyn, 1 Atk. 469. supra, p. 100. Cole v. Wade, 15 Ves. 27. 43. ante, p. 99, Or if such power be committed to more than one person, and it by any means become extinct during the lives of the donees, it should seem that as the testator's next of kin would take vested interests at that period, of the power becoming extinct, those then in existence would be the only persons who could make a title to the property.(s) It has been noticed, that although property were bequeathed to one or more persons for life, prior to the ultimate limitation by the testator to his own relations, yet his next of kin living at his death, would be entitled. But since the intention of a testator, is the leading consideration in the construction of his will, if his meaning appear in the context, to refer to relations, &c. at that period, when the fund is distributable, viz. upon the happening of an event to occur after his decease, his next of kin in existence at that time, and not when he died, will be solely and exclusively entitled to the bequest.(t) Accordingly, in Jones v. Colbeck,(u) Thomas Dawson bequeathed his residuary estate to trustees, to pay out of the interest an annuity of 20l. to his brother, William Dawson, for life, and the surplus interest for the support and education of the children of his (the testator's) daughter, Mary Overton, during the life of William, and after William's death, to pay the capital among such children equally, at twenty-one, with benefit of survivorship: but until Mary had a child or children, or if she survived them, or if she had none, the trustees were to pay to her (subject to the annuity) the interest for life to her separate use; and after the death of Mary and of her children under twenty-one, he gave the residue to be distributed "among his relations," in a due course of administration. Mary was the testator's only child, and sole next of kin living at his death; but had she been then dead, his next of kin would have been certain nephews and nieces (to whom he had given legacies by that description in his will,) and all of whom died before Mary; and she also died without issue, leaving great nephews and great nieces, children of the nephews and nieces before referred to, the only next of kin of the testator living at her (Mary's) death. The question was, what class of next kin was entitled? If the testator's next of kin at his decease, Mary's personal representatives would be entitled unless she were excluded by taking the interest of the whole for life, under the will, as contended by the representatives of the nephews and nieces, who would have been the sole next of kin, if Mary had not survived the testator. But if the testator's next of kin living at the death of Mary were only entitled, then his grand nephews and grand nieces were those persons; and in whose favour Sir W. Grant determined upon the apparent intention of the testator, to refer to relations not at his own death, but at that of Mary Overton. His Honour conceived that Mary could not possibly be meant by the terms "my relations," she being an only child, and the distribution of the fund directed to be made among relations; and that had she been intended, the testator would have given to her the residue in direct terms, and not by so strange and circuitous a phraseology. (8) Doyley v. .Attorney General, 4 Vin. Abr. 485. pl. 16. Marsh v. Marsh, 1 Bro. C. C. 293. ed. by Belt. (u) 8 Ves. 38. The representatives of Mary being thus excluded, those of the nephews and nieces could not be more successful; for the testator supposed that Mary would, as she did, survive him, and he knew that she was his nearest relation: so that had he intended his nephews and nieces to be substituted in Mary's place, as next to her in relation to himself, he would not have used an expression which necessarily included her, but would have given expressly to the nephews and nieces, all of whom were previously mentioned as legatees by that description; and in addition to these remarks, the nephews and nieces did not answer the description of next of kin at the death of the testator, a character which was indispensable to their making a good title to the bequest. Under such circumstances, the Master of the Rolls was of opinion, that the testator meant his relations, i. e. his next of kin in existence at the death of Mary; an intention which entitled the grand nephews and grand nieces to the whole residue. His Honour remarking at the same time, that in the absence of such an intention referring to relations, at a period beyond the death of the testator, the case of Holloway v. Holloway, (x) was an authority that the mere gift of an interest for life to the daughter, would not have been sufficient to exclude her from taking the residue under the description, and in the character of sole next of kin of the testator living at his decease. The next subject of our consideration will be SECT. XVI. When the fund given to Legatees, by the description of "family,". "relations," "next of kin, &c." is to be divided among them either per capita, or per stirpes, or both per stirpes et capita. Upon questions of this kind, the expressions in each will must be attended to; for according as the distribution is directed by the testator, so it must be made. We shall consider, 1. Instances in which the legatees will take per capita. When the bequest is to "relations," "family," &c. without mentioning the proportions in which the fund is to be divided, the Statute of Distributions (y) will regulate the number and manner in which the legatees (who are next of kin) are to take the property. Suppose, then, a legacy to be given to the testator's relations generally. If his next of kin be related to him in equal degree, as brothers, there being no children of a deceased brother, the brothers will divide the fund among them in equal shares, i. e. per capita; each being entitled in his own right to an equal share. So it would be if all the brothers had died before the testator, one leaving two children, another three children, &c. all the nephews and nieces would take equal shares per capita in their own rights, and not as representing their parents; because they are sole next of kin, and related to the testator in equal degree.(z) But if the testator's next of kin happen not to be related to him in equal degree, as a brother, and the children of a deceased brother, so as that under the statute the children would take per (x) 5 Ves. 399. (y). 22 & 23 Car. II. chap. 10. (z) Walsh v. Walsh, Pre. Cha. 54. and see 1 P. Will. 595. Durant v. Prestwood, 1 Atk. 454. Davers v. Dewes, 3 P. Will. 50. Lloyd v. Teach, 2 Ves. sen. 213, and Mascall's Intest. 73. in which a variety of cases is collected. |