the will that the testator did not intend that title should pass to the remaindermen until the widow's death;30 and, second, the scheme of distribution of the testator as indicated by his will, and the rights of legatees and devisees, must not be injuriously affected.31 The statutory claim of the widow may be allotted from property other than that in which the will gave her a life-interest and thus, if the rule were applied, the interests of one or more beneficiaries would seriously suffer while those of others would be benefited. If such a condition arises, the interests relinquished by the widow should go to satisfy the losses of the disappointed beneficiaries.82

§ 839. Effect on Balance of Will of Election to Take Under the Statute.

Where a widow refuses to accept the provisions of her husband's will and takes her statutory rights, she thereby defeats the purposes of the testator only in so far as she personally is concerned. The other provisions

30 Muirhead v. Muirhead, L. R. 15 App. 289; Hinkley v. House of Refuge, 40 Md. 461, 17 Am. Rep. 617; Brandenburg v. Thorndike, 139 Mass. 102, 28 N. E. 575; Sawyer v. Freeman, 161 Mass. 543, 37 N. E. 942; Baptist Female Univ. v. Borden, 132 N. C. 476, 44 S. E. 47, 1007.

31 Wood's Admr. v. Wood's Devi sees, 1 Metc. (Ky.) 512; Hinkley v. House of Refuge, 40 Md. 461, 469, 17 Am. Rep. 617; Brandenburg v. Thorndike, 139 Mass. 102, 28 N. E. 575; Matter of Lawrence, 37 Misc. Rep. (N. Y.) 702, 76 N. Y. Supp. 653; Estate of Vance, 141

Pa. St. 201, 23 Am. St. Rep. 267, 12 L. R. A. 227, 21 Atl. 643; Estate of Portuondo, 185 Pa. St. 472, 39 Atl. 1105; McReynolds v. Counts, 9 Gratt. (Va.) 242.

32 Firth v. Denny, 2 Allen (84 Mass.) 468; Matter of Lawrence, 37 Misc. Rep. (N. Y.) 702, 76 N. Y. Supp. 653; Jones v. Knappen, 63 Vt. 391, 14 L. R. A. 293, 22 Atl. 630.

Contra: Estate of Ferguson, 138 Pa. St. 208, 20 Atl. 945; Estate of Vance, 141 Pa. St. 201, 23 Am. St. Rep. 267, 12 L. R. A. 227, 21 Atl. 643.

See § 837.

of the will still remain in full force and effect and are administered so as to effectuate, as far as possible, the expressed intent of the testator.33 This rule, however, is limited to those cases in which it can be applied without defeating the manifest intention of the testator. If the assertion by the widow of her statutory rights so changes the condition of the estate that the remaining portions of the will can not be enforced consistent with the testator's intent, they must be disregarded and the residue of the estate will be distributed as in the case of intestacy.3 34 The principle applicable is the same as where any clause of a will is declared void. If the will, with such clause omitted, may still be administered conformable to the wishes of the testator and the scheme of distribution set forth, the remaining portions of the will will stand; but if the omitted clause is so connected with the testamentary scheme as outlined by the testator that it can not be separated therefrom, the entire will is invalidated.35

33 Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. $47, 71 Pac. 815; Lilly v. Menke, 126 Mo. 190, 210, 28 S. W. 643, 994.

34 Fennell v. Fennell, 80 Kan. 730, 18 Ann. Cas. 471, 106 Pac. 1038.

35 Matter of Pichoir, 139 Cal. 682, 73 Pac. 606; Cobb v. Battle, 34 Ga. 458; Reid v. Voorhees, 216 III. 236, 3 Ann. Cas. 946, 74 N. E.

804; Johnson's Trustee v. Johnson, 25 Ky. L. 2119, 79 S. W. 293; Andrews v. Lincoln, 95 Me. 541, 56 L. R. A. 103, 50 Atl. 898; Niles v. Mason, 126 Mich. 482, 85 N. W. 1100; Lord v. Lord, 44 Misc. (N. Y.) 530, 90 N. Y. Supp. 143; Matter of Trotter, 104 App. Div. (N. Y.) 188, 93 N. Y. Supp. 404; Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225.

CHAPTER XXX.

WORDS DESCRIPTIVE OF CLASSES OF BENEFICIARIES.

§ 840. Gifts to "children," who included.

§ 841. The same subject.

§ 842. Children en ventre sa mere.

§ 843. Illegitimate children: When may take under will.

§ 844. After-born illegitimate children: When may take under

will.

§ 845. Effect of marriage of parents of illegitimate child.

§ 846. Illegitimate child as heir of the mother.

§ 847. Adopted children, how considered.

§ 848. Who included in term "issue": Strict rule.

§ 849. The same subject: Modern tendency.

§ 850. Who included in the term "heirs."

§ 851. The same subject.

§ 852. "Heirs" as a class: As to the date which determines who are included.

§ 853. Who included in the term "next of kin.'

§ 854.

The same subject: With reference to the statutes of distribution.

§ 855. "Next of kin" as a class: As to the date which determines who are included.

§ 856. Who included in the term "relatives" or "relations." § 857. "Relatives" or "relations" as a class: As to the date which determines who are included.

§ 858. Who included in the term "representatives" or "legal

representatives."

§ 859. Who included in the term "nephews" or "nieces."

§ 860. Who included in the term "cousins.'

§ 861. Who included in the term "family."

§ 862. Neither husband nor wife is heir or next of kin of the

other.

§ 863. "Husband" or "wife": Effect of an illegal marriage.

(1220)

§ 864. The same subject: Effect of divorce.

§ 865. Gift with limitation over in event of death of beneficiary. § 866. The same subject: "Die without issue": English rule.

§ 867. The same subject: American decisions.

§ 868. In what proportion beneficiaries collectively designated take; per capita or per stirpes.

§ 869. The same subject: When reference is had to the statutes of distribution.

§ 870. The same subject: Directions by the testator as to division.

§ 871. The same subject: Where testator directs division "equally" or "share and share alike."

§ 872. The same subject.

§873. Gifts to a class defined.

§ 874. Effect of statutes to prevent lapse.

§ 875. The same subject: Circumstances considered.

§ 876. Members of class dying before testator, are excluded. 877. Where beneficiaries are designated both by individual names and as a class.

§ 878. Manner of designating beneficiaries as a class: Where share of each is mentioned.

§ 879. Mistake in designating number in class.

§ 880. As of what date members of a class are determined.

§ 881. Effect of additional words of description of beneficiaries designated as a class.

§ 882. Where gift is to those of a class who attain, or when they attain, a certain age.

§ 883. The same subject.

§ 884. The same subject: Where contingency which determines membership of class occurs during testator's lifetime. §885. The same subject: Where the contingency is "youngest" of class attaining specified age.

§ 886. Where right to share in benefits depends upon an indefinite future event.

887. Where right to share in benefits depends upon termination.

of a preceding estate.

§ 888. The doctrine generally where enjoyment of benefits depends upon a contingency.

§ 889.

The same subject: As to after-born members of class.

§ 890. Remainder over to a class upon termination of life estate: Vested and contingent remainders.

§ 891. When word "survivor" is construed to mean "other." § 892. The same subject: Where gift to survivors depends upon a contingency.

§ 893. When gift is direct, words of survivorship refer to testator's death.

§ 894. To what date words of survivorship refer when gift is preceded by a life estate: English rule.

§ 895. The same subject: American decisions.

§ 896. The same subject: Intention of testator.

§ 897. Accrued interest of one survivor generally does not pass at his death to remaining survivors.

§ 840. Gifts to "Children," Who Included.

A testamentary gift to "children," if there be children in existence, does not include grandchildren,1 stepchil

1 Pride v. Fooks, 3 De Gex & J. 252; Radcliffe v. Buckley, 10 Ves. Jun. 195; White v. Rowland, 67 Ga. 546, 44 Am. Rep. 731; Cummings v. Plummer, 94 Ind. 403, 48 Am. Rep. 167; Pugh v. Pugh, 105 Ind. 552, 5 N. E. 673; Sheets v. Grubbs' Exr., 4 Metc. (61 Ky.) 339, 341; Osgood v. Lovering, 33 Me. 464, 469; Tucker v. Stites, 39 Miss. 196, 213; Feit's Exrs. v. Vanatta, 21 N. J. Eq. (6 Green C. E.) 85; Kirk v. Cashman, 3 Demarest (N. Y.) 242; Hone v. Van Schaick, 3 N. Y. 538, 540; Palmer v. Horn, 84 N. Y. 516, 521; Womack v. Eacker, 62 N. C. (Phill. Eq.) 161; Hallowell v. Phipps, 2 Whart.

(Pa.) 376, 380; Castner's Appeal, 88 Pa. St. 478; Webb v. Hitchins, 105 Pa. St. 91; In re Reynolds; 20 R. I. 429, 39 Atl. 896; Moon v. Stone's Exr., 19 Gratt. (Va.) 130; Waring v. Waring, 96 Va. 641, 32 S. E. 150; White v. Old, 113 Va. 709, Ann. Cas. 1913E, 586, 75 S. E. 182.

The words "children," "issue," and "heirs" are not synonymous terms. The rule of construction is that technical words or phrases which have acquired a peculiar and appropriate meaning in law shall be construed according to such peculiar and appropriate meaning, unless it appears that