cation to effectuate the manifest general intention of the testator, the first devisee must be deemed to take an estate tail male.78 Where the word "son" or "daughter" is used to designate the male or female descendants, it is manifest that the testator intends to give an estate tail and not to create an executory devise.79

§ 954. Children Not in Being: Rule in Wild's Case.

In the report of Wild's Case so it is said that if A devises his lands to B and to his children or issue, and B has no child or issue at the time of the devise, he takes an estate tail, for the intent of the devisor is manifest and certain that B's children or issue should take, and as immediate devisees they can not take because they are not in rerum natura, and by way of remainder they can not take for that was not the testator's intent, for the gift is immediate. Therefore such words shall be taken as words of limitation.81 But it was also resolved that if a man devises land to a husband and wife and after

78 Robinson v. Robinson, 1 Burr. 38; s. c., 2 Ves. Sen. 225; s. c., 1 Keny. 298; s. c., 3 B. P. C. Toml. 180; Doe v. Cooper, 1 East 235; Denn d. Webb v. Puckey, 5 Term Rep. 299, 303; Doe v. Smith, 7 Term Rep. 533; Doe v. Halley, 8 Term Rep. 5.

79 Mellish v. Mellish, 2 Barn. & C. 520.

To the same effect, see Doe v. Garrod, 2 Barn. & Adol. 87; Doe v. Davies, 4 Barn, & Adol. 43.

See, also, Seaward v. Wellock, 5 East 198.

80 6 Coke 17, (1599) 77 Eng. Reprint 277.

81 Seale v. Barter, 2 Bos, & P. 485; Broadhurst v. Morris, 2 Barn. & Adol. 1; McCroan v. Pope, 17 Ala. 612; Nimmo v. Stewart, 21 Ala. 682; Vanzant v. Morris, 25 Ala. 285; Beacroft v. Strawn, 67 Ill. 28, 33, Carr v. Estill, 16 B. Mon. (Ky.) 309, 63 Am. Dec. 548; Nightingale v. Burrell, 15 Pick. (32 Mass.) 104; Akers' Exrs. v. Akers, 23 N. J. Eq. 26; Rogers v. Rogers, 3 Wend. (N. Y.) 503, 20 Am. Dec. 716; Chrystie v. Phyfe, 19 N. Y. 344, 354; In re Guthrie's Appeal, 37 Pa. St. 9, 21; Haldeman v. Haldeman, 40 Pa. St. 29; Moon v. Stone's Exr., 19 Gratt. (Va.) 130.

their decease to their children, or the remainder to their children, in such case, although they have no child at the time, yet every child which they shall have thereafter may take by way of remainder, according to the rule of law, 82

83

The rule in Wild's Case is one of construction and not one of property, wherein it differs materially in its application from the rule in Shelley's Case. Inasmuch as it is only a rule for construing wills, resorted to in specific cases to carry out the manifest intention of testator, it can only have weight as a judicial precedent.84 But the rule, although announced in a case involving lands, applies equally to bequests of personalty.85

§ 955. The Same Subject.

According to the rule in Wild's Case, under a devise to "A and his children," and A has none living at the date of the will, the word "children" will be construed as equivalent to "heirs of his body," thus vesting in A an

82 Wild's Case, 6 Coke 16b, 17a. 83 Conover v. Cade, (Ind.) 112 N. E. 7; Turner v. Ivie, 5 Heisk. (52 Tenn.) 222.

84 In regard to this rule it was suggested in Heron v. Stokes, 1 Dr. & W. (Ir. Ch.) 76, by Sir Edward Sugden, that the more natural construction of a gift to one and his children, where there were no children in esse at the time, and that which he would have adopted in the absence of authority the other way, would be to hold it to be a good gift to the parent for life, with remainder to the children. It was said by Lumpkin J. in Miller's Lessee v. Hurt,

12 Ga. 357, 360, "That the intention of testators in ninety-nine cases out of a hundred, would have been furthered by adopting the suggestion of the Irish chancellor, instead of adhering to the rule of construction in Wild's Case, we entertain no doubt, still we feel ourselves bound to decide in conformity with this often recognized rule, which has been constantly followed as law from Lord Coke's day down to the present period."

85 Heron v. Stokes, 12 Clark & F. 161, 181-183; Byng v. Byng, 10 H. C. L. 171; State v. Welch, 175 Mo. App. 303, 162 S. W. 637.

estate tail. This construction, however, will not be had where it appears that the testator intended A to take a life estate only, with an executory gift in favor of the children.86

In Wild's Case, such children were in existence when the devise was made, so the rule stated is obiter dictum; but it has been consistently followed and is a recognized rule of construction. Thus the word "children" in a devise to one and his children, and there are none in being when the devise is made, strictly construed is a word of limitation.87 Even where there are children in existence at the date of the devise, the word will be construed as one of limitation if the intention of the testator, as shown by the context, would otherwise be defeated.88

§ 956. The Same Subject: Will Speaks as of Date of Testator's Death.

The rule in Wild's Case has reference to no children living at the date of the will. If the testator intends that

86 Wood v. Baron, 1 East 259; Davie v. Stevens, 1 Doug. 321; Wharton v. Gresham, 2 W. Bl. 1093; Nimmo v. Stewart, 21 Ala. 682; Sandford v. Sandford, 58 Ga. 260; Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322; Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Schaefer v. Schaefer, 141 Ill. 337, 31 N. E. 136; Williams v. Duncan, 92 Ky. 125, 17 S. E. 330; Nightingale v. Burrell, 15 Pick. (32 Mass.) 104; Akers' Exrs. v. Akers, 23 N. J. Eq. 26; Hannan v. Osborn, 4 Paige Ch. (N. Y.) 336; Chrystie v. Phyfe, 19 N. Y. 344; Silliman v. Whitaker, 119 N. C. 89, 25 S. E. 742; In

re McKee's Estate, 104 Pa. St. 571; Smith v. Fox's Admr., 82 Va. 763, 1 S. E. 200.

87 Shuttle & Weaver Land & Imp. Co. v. Barker, 178 Ala. 366, 60 So. 157; Wiley v. Smith, 3 Ga. 551; Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322; Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Nightingale v. Burrell, 15 Pick, (32 Mass.) 104; Jenkins v. Hall, 57 N. C. 334; Renwick v. Smith, 11 S. C. 294.

ss Wood v. Baron, 1 East 259; Webb v. Byng, 2 Kay & J. 669; Tyrone v. Waterford, 1 De Gex, F. & J. 613; Roper v. Roper, 36 L. J. Com. P. N. S. 270.

the children shall take equally with the parent or the remainder after the parent's death, then the word is one of purchase under the latter part of the rule of Wild's Case.89 If the children are to take as purchasers, their rights attach at the death of the testator or upon the happening of some contingency, according to the provisions of the will.90 The time from which a will speaks is now generally regulated by statute, it being prescribed that a will speaks as of the date of the testator's death."1 Although such statutes refer principally to the subject matter of testamentary gifts rather than to the beneficiaries,92 thus passing property acquired after the execution of the will,93 yet a will is ambulatory and not effective until the testator's death, and this fact, in connection with the statutes, has the general effect of limiting the rule in Wild's Case to one where the children are not living at the death of the testator.

89 See § 954.

90 See §§ 880-890.

94

91 Wills v. Foltz, 61 W. Va. 262, 12 L. R. A. (N. S.) 283, 56 S. E. 473.

See §§ 235, 236.

92 See § 237.

93 See §§ 229-234.

94 See §§ 237-239.

This is especially so as to gifts to a class such as children, brothers, or the like, see § 272.

As to what law governs the intention of the testator, see §§ 272274.

CHAPTER XXXIV.

TESTAMENTARY GIFTS OF LIFE ESTATES.

§ 957. Life estates defined.

§ 958. Common law rule and statutory changes. § 959. Words sufficient to create life estates.

§ 960.

§ 961.

§ 962.

Effect of the use of the word "loan," or "lend."

Gift of rents, issues, profits, income, etc., of land.

Gift of the right of use, enjoyment and occupation.

§ 963. Gift of a "home" on certain property.

§ 964. Devise "during widowhood," or "until marriage," confers a life estate.

§ 965. Creation of estates by implication.

§ 966. The same subject: Exceptions.

§ 967. Creation of life estate by implication.

§ 968. The same subject: Devise to A upon death of B.

§ 969. The same subject: Gift over if first taker "die without issue."

§ 970. The same subject: Where devise to first taker is a life

estate.

§ 971. The same subject: Where devise to first taker is in fee. § 972. Apparent devise of fee limited by additional provisions to a life estate.

§ 973. Life estate coupled with absolute power of disposition.

§ 974. The same subject: Statutory regulations.

§ 975. Life estate with limited power of disposition.

§ 976. Where power of disposition is not exercised.

§ 977. Express devise not affected by subsequent doubtful expressions.

§ 978. Life estate in personalty: Money.

§ 979. Gift of income of personal property.

§ 980. Life estate in personalty with power of disposition.

§ 981. Personalty consumable in its use: Specific and general or residuary bequests distinguished.

(1392)