being included.38 The terms refer to those related by consanguinity, not by affinity; thus primarily a legacy by a testator to his "nephews" or "nieces" means those related to him by blood, not such relatives of his wife.3° 492, 498, 33 Atl. 503, in holding that the words "legal representatives" meant executors and administrators, the court says: "It is one of those ambiguous terms the meaning of which can often be determined only by the context and the situation of the testator with reference to the natural objects of his bounty." As to "personal" or "legal representatives" being construed as "next of kin," see Bridge v. Abbot, 3 Bro. C. C. 225; Davies v. Davies, 55 Conn. 319, 325, 11 Atl. 500; Brokaw v. Hudson's Exrs., 27 N. J. Eq. 136; Lee v. Dill, 39 Barb. (N. Y.) 516, 521. As to "legal representatives" meaning "issue," see Clark v. Cammann, 160 N. Y. 316, 326, 54 N. E. 709. As to "legal representatives" being construed as "heirs," see Bowen v. Hackney, 136 N. C. 187, 67 L. R. A. 440, 48 S. E. 633. As to legal or personal representatives meaning those who take under the statutes of distribution, see Farnam v. Farnam, 53 Conn. 261, 290, 2 Atl. 325, 3 Atl. 682; Brokaw v. Hudson's Exrs., 27 N. J. Eq. 136. 38 Shelley v. Bryer, Jacob 207; Crook v. Whitley, 7 De Gex, M. & G. 490; Lewis v. Fisher, 2 Yeates (Pa.) 196; Willard v. Darrah, 168 Mo. 660, 9 Am. St. Rep. 468, 68 S. W. 1023; Matter of Woodward, 117 N. Y. 522, 7 L. R. A. 367, 23 N. E. 120; In re Harrison's Estate, 202 Pa. St. 331, 51 Atl. 976; White v. Old, 113 Va. 709, Ann. Cas. 1913E, 586, 75 S. E. 182. In Falkner v. Butler, Amb. 514, the testator empowered his wife to appoint his estate to be paid to his sisters and their children. The court held that "the power was confined to nephews and nieces, and could not be extended to great-nephews and greatnieces." In Cromer v. Pinckney, 3 Barb. Ch. (N. Y.) 466, the general rule is repeated that the testator must be presumed to have used words in their ordinary primary sense or meaning, and that the words "nephews and nieces," in their primary sense, mean the immediate descendants of the brother or sister of the person named, and do not include grand-nephews and grand-nieces or more remote descendants. 39 Smith v. Lidiard, 3 Kay & J. 252; Merrill v. Morton, 17 Ch. Div. 382; Wells v. Wells, L. R. 18 Eq. 504; Goddard v. Amory, 147 Mass. 71, 16 N. E. 725; In re Green's Appeal, 42 Pa. St. 25, 30; In re སྐུ།། And as a general rule, the fact that a nephew or niece The rule must yield to intention as shown by the situa- Root's Estate, 187 Pa. St. 118, 40 40 Thompson v. Robinson, 27 Compare: In a case in which there was a gift to two greatnieces by name, with the additional description, "my niece, the daughter of my nephew B," it was held that as the testatrix had defined her meaning of the word "niece" so as to indicate that she included under it great-nieces, under a subsequent bequest to all and every my "nephews and nieces," nephews and nieces in the second degree might take.James v. Smith, 14 Sim. 214. 41 Grieves v. Rawley, 10 Hare 42 Hogg v. Cook, 32 Beav. 641; Where the gift was to "my 44 Goddard v. Amory, 147 Mass. 71, 16 N. E. 725. §860. Who Included in the Term "Cousins." Cousins are related by collateral consanguinity; the cousins of "A" are all those so related to him except brothers and sisters and their descendants, and the brothers and sisters of any ancestor, but they vary in degree. First cousins are those who have the same grandfather or grandmother, second cousins those who have the same great-grandfather or great-grandmother The child of one of two first cousins would stand toward the other as a first cousin once removed, a grandchild twice removed. However, the term "cousins" when used in wills and no contrary intention appearing, means "first cousins" only.45 But first cousins once removed will take under a bequest to cousins where the will shows that such was the testator's intention.16 And a bequest to "all the first and second cousins" is deemed to embrace all within such degrees, and accordingly first cousins once or twice removed will be included. If the bequest is to second cousins, first cousins either once or more 45 Stoddart v. Nelson, 6 De Gex, M. & G. 68; s. c. 25 L. J. Ch. 116; Stevenson v. Abingdon, 31 Beav.. 305; In re Parker, 15 Ch. Div. 528, 17 Ch. Div. 262; Caldecott v. Harrison, 9 L. J. Ch. 331. In Howland v. Slade, 155 Mass. 415, 29 N. E. 631, the leading case in that state on the subject, the decision that under a gift to "all my first cousins," the issue of first cousins deceased before the making of the will could not take, while the issue of those who died intermediate the will of the testator and his death could take, pro 47 ceeded not on the principle that a legacy to a dead person was void, but on the ground that under well-settled authority such a gift indicated no intention on the part of the testator to include cousins already deceased. See, also, Pimel v. Betjemann, 183 N. Y. 194, 5 Ann. Cas. 239, 2 L. R. A. (N. S.) 580, 76 N. E. 157. 46 Wilks v. Bannister, 30 Ch. Div. 512. 47 Mayott v. Mayott, 2 Bro. C. C. 125; Charge v. Goodyear, 3 Russ. 140; Silcox v. Bell, 1 Sim. & St. 301. removed are excluded;18 yet if the testator has no second cousins, but has first cousins once or more removed whom he commonly calls his second cousins, such relatives may take.49 8861. Who Included in the Term "Family." Under different circumstances the word "family" may mean "a man's household, consisting of himself, his wife, children, and servants; it may mean his wife and children, or his children excluding his wife, or in the absence of wife and children it may mean his brothers and sisters or his next of kin, or it may mean the genealogical stock from which he may have sprung. All these applications and some others are found in common parlance."'50 The term, however, should be construed according to the intention of the testator as shown by the language of the will and the circumstances of the case.51 Where a testamentary gift is to the "family of A,” the word "family" is primarily equivalent to "children.''52Such a gift would not include "A" or his cepted in many decisions. See 51 Green v. Marsden, 1 Drew. 52 Gregory v. Smith, 9 Hare 708; Barnes v. Patch, 8 Ves. Jun. 604; In re Terry's Will, 19 Beav. 580; wife. A gift to "the A family" would not embrace "A,"54 but to "A and his family" would include him jointly with his children.55 If the reference is to the family of a single person, the heirs or next of kin are naturally presumed to have been intended.56 The term "family" will be differently construed if the testamentary gift is for the purpose of education and support. Thus, where the testator left a widow and a daughter fourteen years of age and a son thirty years old who was capable of supporting himself, provisions for the testator's "family" were considered not to include the son. Under a devise in trust for the support of the Burt v. Hellyar, L. R. 14 Eq. 160; In re Hutchinson, 8 Ch. Div. 540; Raynolds v. Hanna, 55 Fed. 783; Taylor v. Watson, 35 Md. 519; Dominick V. Sayre, 3 Sandf. (N. Y.) 555; Heck v. Clippenger, 5 Pa. St. 385, 388; White's Exr. v. White, 30 Vt. 338; Stuart v. Stuart, 18 W. Va. 675. Bequests to the families of A and B will create a joint tenancy between their children.-Gregory v. Smith, 9 Hare 708, 711. A gift to the "family" of a person living at the death of the testator and having children, includes such children only and excludes grandchildren.-Barnes v. Patch, 8 Ves. Jun. 604; Burt v. Hellyar, L. R. 14 Eq. 160; Pigg v. Clarke, 45 L. J. Ch. 849; In re Muffett, 56 L. J. Ch. 600. 53 Barnes v. Patch, 8 Ves. Jun. 604. But see Bradlee v. Andrews, 137 Mass. 50, where A's "family" was construed to embrace children and the wife so long as she continued to live with A. 54 Gregory v. Smith, 9 Hare 708, 711. 55 A legacy to A and his family creates an estate in joint tenancy between A and his children living and capable of taking at the testator's death. In re Parkinson's Trusts, 1 Sim. N. S. 242; Bowers v. Bowers, 4 Heisk. (51 Tenn.) 293. A devise to A and his family confers upon A an estate tail.Lucas v. Goldsmid, 29 Beav. 657. 56 Cruwys v. Colman, 9 Ves. Jun. 319; Grant v. Lynam, 4 Russ. 292. 57 In re Simons' Will, 55 Conn. 239, 11 Atl. 36. Adult children living separately from their parents are generally not included in the term "family." -Wood v. Wood, 63 Conn. 324, 28 Atl. 520; Phelps v. Phelps, 143 Mass. 570, 10 N. E. 452. |