8

dren, or adopted children. Nor does a gift to "grandchildren" embrace great-grandchildren. Neither does a bequest to nieces include a grand-niece. Thus, where a testator by one clause of his will gave the residue of his estate to his children and to a grandchild by name, in another clause made certain provisions as to the shares of his "children" or those who took as their substitutes, and in still another made a different provision for the share of his grandchild, it was decided that the reference to "children" did not embrace the grandchild. But where there are no persons to answer the description of "children," grandchildren may be allowed to take, and so,

the words were not used in their technical sense. When words and phrases have received a fixed legal interpretation by repeated deci sions, such words and phrases, when employed in deeds or other written instruments, are to receive such fixed legal interpretation as a long line of decisions attached to them. Clarkson v. Hatton, 143 Mo. 47, 65 Am. St. Rep. 635, 39 L. R. A. 748, 44 S. W. 761.

2 Fouke v. Kemp's Lessee, 5 Har. & J. (Md.) 135; In re Hallett, 8 Paige Ch. (N. Y.) 375; Sydnor v. Palmer, 29 Wis. 226.

3 Schafer v. Eneu, 54 Pa. St. 304. 4 Orford v. Churchill, 3 Ves. & B. 59; Cummings v. Plummer, 94 Ind. 403, 48 Am. Rep. 167.

Nor to the widow of a grandson. -Hussey v. Berkeley, 2 Eden Ch. 194.

5 Campbell v. Clark, 64 N. H. 328, 10 Atl. 702.

6 Brabham v. Crosland, 25 S. C. 525, 1 S. E. 33.

In Low v. Harmony, 72 N. Y. 408, the testator had in one clause made provision for the appellant, describing her, as the daughter of his late daughter Sarah Ann, and in a later clause gave his residuary estate to his "wife and living children." It was held that this language manifested an intention not to include the representatives of a deceased child. See, also, In re Woodward, 117 N. Y. 522, 7 L. R. A. 368, 23 N. E. 120.

7 Crook v. Whitley, 7 De Gex, M. & G. 490, 496; Berry v. Berry, 9 Week. R. 889; Ewing's Heirs v. Handley's Exrs., 4 Litt. (14 Ky.) 346, 349, 14 Am. Dec. 140.

"The technical legal import of the word 'children' accords with its ordinary and popular signification. It does not denote grandchildren; and, though sometimes used with that purpose and effect, there is no warrant for thus enlarging its meaning in construing

also, when it appears that the testator did not intend to use the word strictly as indicating issue in the first degree. 8

§ 841. The Same Subject.

remote." See, also, Estate of Sander, 126 Wis. 660, 5 Ann. Cas. 508, 105 N. W. 1064.

The fact that the person to whose children the bequest is made was dead at the date of the will, leaving only grandchildren, and that the testator may be presumed to have known the circumstances, may extend the word "children" to include grandchildren or descendants." a will, unless indispensably necessary to effectuate the obvious intent of the testator. It may be regarded as well settled that such enlarged or extended import of the word 'children,' when used as descriptive of persons to take under a will, is only permissible in two cases. First, from necessity, where the will would be otherwise inoperative; and, second, where the testator has shown by other words that he did not use the word in its ordinary and proper meaning, but in a more extended sense." Churchill Churchill, 2 Metc. (59 Ky.) 466.

V.

In Re Scholl's Will, 100 Wis. 650, 76 N. W. 616, speaking of the word "child," it was said:

"Where there are no immediate children to whom the term can apply, or where it is manifest from other words in the will that it was used in the broad sense of issue or descendants, it may be construed to include grandchildren, stepchildren, illegitimate children or descendants, however

8 Utz's Estate, 43 Cal. 201; Hughes v. Hughes, 12 B. Mon. (51 Ky.) 115, 121; Beebe v. Estabrook, 79 N. Y. 246; Sorver v. Berndt, 10 Pa. St. 213.

9 Crooke v. Brooking, 2 Vern. 107; Berry v. Berry, 3 Giff. 134.

In Bond's Appeal, 31 Conn. 183, the devise was, "I give to my children and their heirs respectively, to be divided in equal shares between them." At the date of the will and at his death the testator had four children living, and four others had previously died, all leaving children. No reason appeared for supposing that the testator had any preference for his surviving children over these grandchildren, and it was held that the estate in question was to be distributed in equal shares among the surviving children and the representatives of the deceased ones. See, also, Raymond

Thus a bequest to the "children" of the testator's sister was held to refer to grandchildren, the testator knowing at the date of the will that his sister and all her children had been dead for many years.10

The rule limiting the meaning of the term "children" will yield to any indication of an intention to include more remote descendants,11 as where in other parts of the will such word is used interchangeably with others of more extended meaning,12 or where the bequest is to "children, excepting" one who is a grandchild.13 Where there is a gift over in default of "children" of the first taker, the presumption is in favor of the more remote descendants of the first taker in preference to the remainderman.14 Again, grandchildren may take under a devise to one and his children, where their parent has

V. Hillhouse, 45 Conn. 467, 29 Am.
Rep. 688.

10 In re Schedel, 73 Cal. 594, 15 Pac. 297.

11 Prowitt v. Rodman, 37 N. Y. 42; Barnitz' Appeal, 5 Pa. St. 265; Tipton v. Tipton, 1 Cold. (41 Tenn.) 252, 255.

In Outcalt v. Outcalt, 42 N. J. Eq. 500, 8 Atl. 532, it appeared that the testator directed that the residue of his estate after the death of his wife should be divided "among my several children, share and share alike, and in the event of any of my said children dying before my said wife and leaving issue them surviving, then such issue shall be entitled to and receive their parent's share, the same as said parent would receive

were he or she then living." It was held that by "my several children" the testator meant not only his several children then living, but all of his children, and that the issue of a child who was dead at the date of the will was entitled to a share in the residue. See, also, Pimel v. Betjemann, 183 N. Y. 194, 5 Ann. Cas. 239, 2 L. R. A. (N. S.) 580, 76 N. E. 157.

12 Hughes v. Hughes, 12 B. Mon. (51 Ky.) 115; Dunlap v. Shreve's Exrs., 2 Duvall (63 Ky.) 334; Prowitt v. Rodman, 37 N. Y. 42; Houghton v. Kendall, 7 Allen (Mass.) 72, 75.

13 Dunlap v. Shreve's Exrs., 2 Duvall (63 Ky.) 334; Pemberton v. Parke, 5 Binn. (Pa.) 601, 606, 6 Am. Dec. 432.

14 Prowitt v. Rodman, 37 N. Y. 58.

survived the testator and the estate has once vested in him.15

§ 842. Children en Ventre sa Mere.

It is now fully established that a child en ventre sa mere is within the intention of a gift to children "living" or "born" at a designated time,16 and the same con

struction has been given to devises to grandchildren designated as living at a certain time.17 But a child en ventre is considered as born only when such a construction will result to his advantage.18

§ 843. Illegitimate Children: When May Take Under Will.

Where legatees and devisees are described as the children, sons, issues, etc., of the testator or of another person, such words will be deemed to refer only to those legitimately begotten, unless the contrary appear from the language of the will or by necessary implication.19

of a near relative, and not necessarily applicable where the devise was to the children of a stranger in blood to the testator.-See Lamar v. Crosby, 162 Ky. 320, Ann. Cas. 1916E, 1033, 172 S. W. 693.

17 Loockerman v. McBlair, 6 Gill (Md.) 177, 46 Am. Dec. 664; Hall v. Hancock, 15 Pick. (Mass.) 255, 26 Am. Dec. 598; Swift v. Duffield, 5 Serg. & R. (Pa.) 38; Smart v. King, Meigs (19 Tenn.) 149, 33 Am. Dec. 137.

Contra: Hone v. Van Schaick, 3 N. Y. 538, reversing s. c. 2 Barb. Ch. (N. Y.) 488.

And the rule has been held not to extend to great-grandchildren en ventre at testator's death.Freemantle v. Freemantle, 1 Cox

248.

Nor to the children of nephews and nieces.-Blasson v. Blasson, 10 Jur. N. S. 1113, s. c. 2 De Gex, J. & S. 665, reversing 10 Jur. N. S. 165.

For a copious enumeration of the cases on these points, see note to

Randolph v. Randolph, 40 N. J. Eq. 73, 5 Am. Prob. Rep. 406.

18 McKnight v. Read, 1 Whart. (Pa.) 213; Armistead v. Dangerfield, 3 Munf. (Va.) 20, 5 Am. Dec. 501.

"That the fiction or indulgence of the law which treats the unborn child as actually born, applies only for the purpose of enabling the unborn child to take a benefit which if born it would be entitled to, and is limited to cases de commodis ipsius partus quaeritur."— Lord Westbury in Blasson v. Blasson, 2 De Gex, J. & S. 665.

19 I can not concur in the contention that Lord Westbury's judg ment in Blasson v. Blasson, 2 De Gex, J. & S. 665, is not a decision in the point involved in this case. In my opinion it is a direct decision that, for the purpose of ascertaining the period of distribution of a fund, the words "born and living at the time of my decease" do not include a child in utero, but that for the purpose of