and qualities of the said premises. [ADD declaration that trustees' WILLS. Will, devising Freehold Leasehold Estates to Trustees, fc. IN WITNESS, &c. No. XXVIII. WILL, DEVISING ALL TESTATOR'S FREEHOLD ESTATES TO USES FOR THE BENEFIT OF HIS THREE NATURAL CHILDREN, AS TENANTS IN COMMON IN FEE, ON THEIR ATTAINING TWENTY-ONE, WITH CROSS REMAINDER, IN CASE ANY OF THEM SHALL DIE IN TESTATOR'S LIFETIME, OR UNDER AGE; ALSO PROVISIONS FOR MAINTENANCE AND ADVANCEMENT OUT OF THE YEARLY INCOME, WITH DIRECTIONS TO INVEST THE SURPLUS UPON TRUSTS FOR ACCUMULATION. ALSO BEQUESTS OF LEGACIES OF NINETEEN GUINEAS TO EACH OF THE CHILDREN. THE TESTATOR BEQUEATHS ALL HIS LEASEHOLD ESTATES AND PERSONAL PROPERTY UPON TRUST FOR THE SEPARATE USE OF HIS LEGITIMATE DAUGHTER FOR LIFE, WITH POWER OF APPOINTMENT AMONGST HER CHILDREN, AND IN DEFAULT OF APPOINTMENT, AMONGST ALL HER CHILDREN IN EQUAL SHARES. 1. General devise of freehold estates to trustees. 2. Habendum to trustees to uses to be hereinafter declared. 3. Bequest of leasehold and personal estate. 4. Habendum. 5. As to freehold premises, to the use of trustees until the youngest of 6. To the use of the three natural 7. Gross limitations in favour of survivors, in case of any of testator's natural children dying in his lifetime, or under twenty one. 8. Provisions for maintenance out of 10. Bequest of legacies of nineteen guineas to each of testator's three natural children, with directions that trustees shall apply same for the benefit of such of them as are under age. 11. Trustees to get in personal estate. 12. To stand possessed of leasehold estates and trust moneys. 13. Upon trust to pay income to testator's legitimate daughte during her life, for her separate use. 14. Appointment of trustees as ere cutors. [COMMENCE will, ut ante, No. I., clause 1, p. 632.] 1. I GIVE AND DEVISE unto (trustees) and their heirs, all my freehold estates, lands, tenements and hereditaments, whatsoever and wheresoever, to which I am, or any person or persons in trust for me, or for my benefit, is or are, seised or entitled. WILLS. No. XXVIII. Will devising all Testator's Estates to Uses for Benefit of his Three Natural Children, &c. Freehold of freehold 2. TO HOLD the same with the appurtenances, unto the said (trustees), their heirs and assigns for ever, to the uses, upon the General devise trusts, and for the ends, intents and purposes hereinafter limited, estates to expressed and declared, of and concerning the same. trustees. Habendum to trustees in fee to uses herein personal estate. 3. I ALSO GIVE AND BEQUEATH unto the said (trustees) all after to be my leasehold estates and property whatsoever and wheresoever, of declared. Bequest of which I, or any other person or persons in trust for me, or for my leasehold and benefit, am or are possessed of or entitled to. AND ALSO all my goods, chattels, moneys and securities for money, debts, and all and singular other my personal estate and effects, whatsoever and wheresoever, of which I, or any person for my benefit, shall be possessed at the time of my decease. 4. TO HOLD the same unto the said (trustees), their executors, Habendum. administrators and assigns, upon the trusts, and for the ends, intents and purposes hereinafter declared. use of trustees 5. AND AS TO, FOR AND CONCERNING my said freehold here- As to freehold ditaments and premises, TO THE USE of the said (trustees), their premises, to the heirs and assigns, until the youngest of my three natural children until the (SET OUT names of reputation by which the children are usually testator's three known, (a) and their respective ages), or the youngest of them for the time being, shall attain the age of twenty-one years; and when twenty-one, youngest of natural children shall attain and then, (a) Whenever a testator intends to make a disposition in favour of illegiti- In bequests to mate children, whether they be his own or of any other person, care must be illegitimate taken to describe them by the names they have acquired by reputation, or by children they such other description as will identify them; for although it is established should be that illegitimate children in esse may take under any disposition, either by clearly deed or by will, adequately describing them (Meltham v. Duke of Devon- described. shire, 1 P. Wms. 529; Mortimer v. West, 3 Russ. 370), it is an equally established rule, that a gift to children, sons or daughters, or issue, imports primâ facie, legitimate children, and will not comprehend those who are illegitimate: (Hart v. Durand, 3 Anstr. 684; Harris v. Hainscote, 1 Ves. & Bea. 434.) WILLS. No. XXVIII. Will, devising all Testator's Freehold Estates to Uses for Benefit of his Three Natural Children, fc. Gifts to children primâ facie means legitimate children only. Circumstance of there being no other than illegitimate vary the rule. the said (youngest child), or the youngest of my said three natural children for the time being, shall have attained the age of twentyone years, then, Neither will the circumstance of a testator having made use of expressions, or adopted a mode of disposition affording a highly reasonable conjecture of intention, and notwithstanding all the children, as well legitimate as illegiti mate, are by the same mother, afford sufficient ground for varying the rule. Hence, where a testator had four children, three legitimate and one illegiti mate (the latter being a child of himself and wife, but born before their marriage), bequeathed to all and every such child or children, as he might happen to leave at his death, for maintenance until twenty-one or marriage, and then in trust to pay such child or children one fourth part of the income of his estates; but in case there should be only one such child who should attain that age or marriage as aforesaid, then to pay the whole income to such only child, if the others should have died without issue; and there was a limitation to survivors, in case of the death of any of the children under age, unmarried and without issue: it was contended that the distribution into fourths plainly indicated that the illegitimate child was in the testator's contemplation, there being four children, including her, when the will was made, and that all the expressions applied to females, showing that he meant existing daughters, not future issue, which might be male or female. But Lord Loughborough decided against the illegitimate daughter; observing that it was impossible that an illegitimate child could take equally with lawful children in a devise to children: (Cartwright v. Vawdry, 5 Ves. 530.) The direction to apply the income in fourths, only afforded conjecture; for if between the time of his will and his death one or two of those children had died, the division into fourths would have been just as applicable as it was in the case that happened. The question, therefore, only comes to this, whether the single circumstance of his directing the maintenance in fourths compelled the necessary implication, that the illegitimate child was to take with the others, as much as if she had been in the plainest and clearest terms persona designata; and this circumstance Lord Eldon (when commenting upon the arguments in the above-mentioned case) said, is by no means sufficient (see the judgment in Wilkinson v. Adam, 1 Ves. 646); "The will," his lordship continued to observe, “would have operated in favour of all his children, however numerous they might have been, and in favour of subsequent legitimate children, even if every legitimate child he had before had died. It was therefore impossible to say he necessarily means the illegitimate child; as it is not possible to say he meant those legitimate children. That will would have provided for children living at the time of his death, though not at the date of his will. It could not be taken to mean two classes of children, both legitimate and illegitimate. Without extrinsic evidence it was impossible to raise the question. The will itself furnished no question whether legitimate or illegitimate children were intended; the question upon which the court was to decide was furnished by matter issuing out of, not in the will:" (see 3 Jarm. Wills, 130, 181.) Neither will the fact of there being no other than illegitimate children, warrant the application of the term "children" to any other than such as are legitimate: (Mortimer v. West, 370), and any moral obligation of a testator providing for his illegitimate offspring, will be sacrificed to the general principle, that "children children will not in its primary and unexplained sense, means legitimate children only: (2 Jarm. Wills. 134.) And even where a testator gave the residue of his property equally between the children of his son W., and of two other children, it was held that an illegitimate child of W. was not entitled to a share in the residue, though the testator in the same will had made a specific bequest to her, by the description of the only surviving child of his son: (Meridith v. Farr, 3 You. & Coll. 525.) But the circumstance of illegitimate children being styled “children,” will not prevent their taking, where they are so particularly pointed out by the testator t 6. TO THE USE of them the said (three children by name), and their respective heirs and assigns for ever, in equal shares as tenants in common. WILLS. No. XXVIII. Will, devising all Testator's Freehold Estates to Uses for Benefit of his Three Natural Children, &c. To the use of as to show that they are manifestly and incontrovertibly the persons intended, though in point of law not standing in that character; as, if a testator were to bequeath a legacy to "my son John," or "to my granddaughter Mary," and he had no child, or grandchild of those names, excepting such as are illegitimate, the bequest would be good (Rivers's case, 1 Atk. 410), for under such description no legitimate child could possibly have claimed the bequest. Upon natural this principle, also, a gift to the children of the late C., a person who at the date children as of the will was dead, leaving illegitimate, but no legitimate, children, was holden tenants in good as to such illegitimate children; for here the gift being to the children of common in fee. the three children may a person deceased, the impossibility of the gift being ever applicable to children Illegitimate born subsequently to the will was unquestionable (Lord Woodhouselee v. Dalrymple, 2 Mer. 419); and this doctrine has also been extended to children take when so "now living" of a person who has no other than illegitimate children at the date pointed out as of the will: (Blundell v. Dunn, cited 1 Mad. 433.) "But it is doubtful whether to leave no this construction would now be adopted as to wills made subsequently to the doubt of their year 1838; since the Wills Act (1 Vict. c. 26), all wills within the operation of being the that act speak from the time of the death of the testator, and not as formerly persons from the date of the will, so that, if legitimate children should be born intended. between the time of any will made subsequently to 1838 and the testator's death, the terms "children now living" would answer the true legal acceptation of those terms. children come So far, indeed, has this doctrine been carried, that it has been held that When the whenever the claims of legitimate and illegitimate children come in competition, claims of under the description of children, the claims of the former shall wholly supersede legitimate and the claims of the latter, a bequest thus made to the sons and daughters of the illegitimate late J. D., who had only one legitimate child, a daughter, is insufficient to let in in competition, an illegitimate son and daughter then existing, although it was contended that the claims of the words "sons and daughters," in the plural number, could not apply to the the former will single legitimate daughter only, and that, therefore, the illegitimate son and generally daughter must be also admitted; but the Lord C. B. Macdonald observed, that prevail. even the introduction of these latter objects would not satisfy both the words, i. e., sons and daughters. And Lord Eldon determined that under a devise to all and every the child and children of the testator's late children, a single legitimate child was entitled to the exclusion of two children who were illegitimate, both of whom were living at the date of the will. But the strictness of this rule seems now relaxed, and it is doubtful whether Strictness of the either of the two cases above cited would now be followed. (See Gill v. Shelley, rule in favour at the Rolls, 28th January, 1831, cited in Wigram on Ambiguities" in extrinsic of legitimate evidence, p. 31, 2nd edit.; and also in 2 Jarm. Wills. 136, 137.) Hence, where children now A. by a testamentary appointment gave her real and personal estate to her relaxed. husband M. for his life, and directed that, after his death, such residue should be divided amongst certain classes of persons mentioned in her will, adding, "amongst whom I include the children of the late Mary Gladman." Mary Gladman was then dead, having left two children, one legitimate, and the other, being born before her marriage, illegitimate. Sir John Leach, M. R. said, that if Swaine v. Kennersley, and Hart v. Durant, had not been distinguishable from the case before him, he should have felt no hesitation in overruling them, and decreed that the illegitimate child was entitled to share in the residue. Nor have instances been wanting in which the courts, from feelings of compassion towards the innocent victims of the law's stern, but salutary, policy, have not scrupled to depart from the rule altogether. Whether correctly or not seems questionable. Beachcroft v. Beachcroft (1 Mad. 430), is a case of this description. |