and whether sons of sons or of daughters.50 And the addition of the words "begotten by" a certain person does not necessarily confine the construction of the word to "children."51 But when reference is made to the "parent" of the issue, as in a direction for the substitution of issue in the place of their "parent" in the event of his dying before a certain time, the word "issue" is deemed to mean children.52

§ 849. The Same Subject: Modern Tendency.

There are other authorities, however, holding that the word "issue," when not used as a term of limitation, is ambiguous in meaning, being capable of meaning descendants generally, or children only; and whether it shall be construed to mean one or the other depends upon the intention of the testator as derived from the context of the whole will or from such extrinsic circumstances as can be considered.53

At an early day it was held in England that, in its primary sense, when not restricted by the context, the word "issue" was synonymous with and comprehended "descendants" of every degree.54 But inasmuch as such a construction frequently defeated the intention of the tes

50 Wistar v. Scott, 105 Pa. St. 200, 51 Am. Rep. 197.

51 Evans v. Jones, 2 Coll. C. C. 516.

52 Bradshaw v. Melling, 19 Beav. 417; Smith v. Horsfall, 25 Beav. 628; Maynard v. Wright, 26 Beav. 285; Pruen v. Osborne, 11 Sim. 132; Sibley v. Perry, 7 Ves. Jun. 522; Buckle v. Fawcett, 4 Hare 536 (where the direction was that the issue should take their father's

Bronson, 1 Demarest (N. Y.) 217; Barstow v. Goodwin, 2 Bradf. 413, 416.

See, also, Ross v. Ross, 20 Beav. 645.

53 Palmer v. Horn, 84 N. Y. 516, 519; s. c. 2 Am. Prob. Rep. 92, citing, Orford v. Churchill, 3 Ves. & B. 59, 67; Ralph v. Carrick, 11 Ch. Div: 873; Cannon v. Rucastle, 8 Com. B. 876.

54 Palmer v. Horn, 84 N. Y. 516, 519.

tator, the tendency of the later cases is strongly in favor of holding the word to be equivalent to "children" unless the context indicates a contrary intention.55 It is always allowable for the testator, by a clear expression of intention in his will, to limit the word "issue" to "children. 56 The tendency is to seize upon slight indications in other parts of the will as manifesting an intention on the part of the testator to limit the meaning of the term and to confine it to "children."57 For example, where the term "issue" has been used in a prior part of the instrument and is subsequently referred to by the words "said children," it is held that the testator thereby explains the sense in which he employed the former term, and the children will take to the exclusion of grandchildren.58 So where a testator devises land to his son for life, and after his decease to

55 In

re Wells, 3 Demarest (N. Y.) 86; Palmer v. Horn, 84 N. Y. 516, 519.

56 Coyle's Appeal, 83 Pa. St. 242; Miller's Appeal, 52 Pa. St. 113; Wistar v. Scott, 105 Pa. St. 200, 215, 51 Am. Rep. 197.

57 Bryan v. Mansion, 5 De Gex & S. 737; Morgan v. Thomas, 9 Q. B. Div. 643; Thomas v. Safe Deposit, etc. Co., 73 Md. 451, 21 Atl. 267, 23 Atl. 3; Jackson v. Jackson, 153 Mass. 374, 25 Am. St. Rep. 643, 11 L. R. A. 305, 26 N. E. 1112; Palmer v. Horn, 84 N. Y. 516, 519; Soper v. Brown, 136 N. Y. 244, 32 Am. St. Rep. 731, 32 N. E. 768; Pearce v. Rickard, 18 R. I. 142, 49 Am. St. Rep. 753, 19 L. R. A. 472, 26 Atl. 38.

In Wistar v. Scott, 105 Pa. St. 200. 51 Am. Rep. 197, the court

says: "The word 'issue,' in a will, prima facie means the same as 'heirs of the body,' 'lineal descendants, indefinitely,' and is to be construed as a word of limitation; but the prima facie construction gives way if there is anything on the face of the will to show that the word was intended to have a less extended meaning, and to be applied to children only, or, as in this case, to lineal descendants of a particular class, in being at a specified time." To the same effect, see Palmer v. Horn, 84 N. Y. 516.

58 Baker v. Bayldon, 31 Beav. 209; In re Hopkins' Trusts, 9 Ch. Div. 131; King v. Savage, 121 Mass. 303; Palmer v. Horn, 84 N. Y. 516; Taylor v. Taylor, 63 Pa. St. 481, 484, 3 Am. Rep. 565.

his lawful issue and their heirs forever, if any, and if the son "should die without leaving any children," etc., then over, it is held that "issue," as used by the testator, means "children."'59 The general rule is that where the issue is to take the share of a deceased parent, the word is construed to mean only the children of such parent;60 and a gift to a certain person for life and on his death to his lawful issue, will be limited to his children.61

§ 850. Who Included in the Term "Heirs."

At common law an heir was he upon whom the law cast the estate immediately upon the death of the ancestor.62 "Heirs" and "heirs at law," in a legal sense, are the same.63 The word "heirs" may be interpreted in two ways, one technical, embracing the whole line of heirs; the other popular or colloquial, denoting the persons who may come under the denomination of heirs at a particular time, and in common speech often used as synonymous with children.64 Strictly speaking, the term "heirs" means the persons in whom real estate vests by opera

59 Morgan v. Thomas, 9 Q. B. Div. 643.

Go Fairfield v. Bushell, 32 Beav. 158; Madison v. Larmon, 170 Ill. 65, 62 Am. St. Rep. 356, 48 N. E. 556; King v. Savage, 121 Mass. 303, 306; Cochrane v. Schell, 140 N. Y. 516, 35 N. E. 971; Parkhurst v. Harrower, 142 Pa. St. 432, 24 Am. St. Rep. 507, 21 Atl. 826.

61 Palmer v. Dunham, 125 N. Y. 68, 25 N. E. 1081; Shalters v. Ladd, 141 Pa. St. 349, 21 Atl. 596.

62 2 Bl. Com. 201; Black V. Jones, 264 Ill. 548, Ann. Cas. 1915D, 1173, 106 N. E. 462.

In Meadowcroft v. Winnebago County, 181 Ill. 504, 54 N. E. 949, the common law meaning of the word "heir" is stated as follows: "Heir, at common law: he who is born or begotten in lawful wedlock and upon whom the law casts the estate in lands, tenements or hereditaments immediately upon the death of his ancestor."

63 Black v. Jones, 254 Ill. 548, Ann. Cas. 1915D, 1173, 106 N. E. 462.

64 Feltman v. Butts, 8 Bush (71 Ky.) 115; Flint v. Wisconsin Trust Co., 151 Wis. 231, Ann. Cas. 1914B, 67, 138 N. W. 629.

tion of law on the death of the one last seised.65 Of course, no one can be the heir of a living person, but the term "heirs" as used in wills, when the living are referred to, contemplates the heirs apparent or those who will be the heirs at the time the devise takes effect.66 However, there is a distinction between a direct gift to "heirs" and one where they are substituted in the place of another. In England, if the testator gives a legacy to his heir or to the heir of another, the proper sense of the word as meaning heir at law is not necessarily changed because the subject of the bequest is personal estate.67

65 Seabrook's Ex'rs v. Seabrook, McMull. Eq. (S. C.) 206; Dukes v. Faulk, 37 S. C. 255, 34 Am. St. Rep. 745, 16 S. E. 122.

In Templeton v. Walker, 3 Rich Eq. (S. C.) 543, 550, 55 Am. Dec. 646, it is said: "No one can take as heir of the body of another unless he fulfill the description, and is not only such person as would take the real estate of that other under our act of distributions, but, likewise, a líneal descendant."

In the case of In re Cowley, 120 Wis. 263, 266, 97 N. W. 930, 98 N. W. 28, it is said that the words "my lawful heirs" are not ambiguous and that the authorities overwhelmingly "support the rule that reference in a will to heirs or legal heirs of the testator means the persons who at his death are by law entitled to inherit the realty; that such significance can be overcome only by clear and conclusive evidence of a different intent or

meaning. See, also, Flint v. Wisconsin Trust Co., 151 Wis. 231, Ann. Cas. 1914B, 67, 138 N. W. 629.

66 Goodright v. White, 2 W. Bl. 1010; Darbison v. Beaumont, 1 P. Wms. 229; Barber v. Pittsburg, F. W. & C. R. Co., 166 U. S. 83, 41 L. Ed. 925, 17 Sup. Ct. 488; Heard v. Horton, 1 Denio (N. Y.) 165, 43 Am. Dec. 659.

67 De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524; Mounsey v. Blamire, 4 Russ. 584.

This seems also to be the rule in Maryland.-Gordon v. Small, 53 Md. 550.

It would seem to be the rule in Massachusetts, that where the gift is directly to the heirs of a person, as a substantive gift to them of something which their ancestor was in no event to take, the element of succession or substitution being wanting, the heirs take in their own right as the persons des

But if the gift is to the heirs by way of substitution for a legatee upon his death before the time of payment, it is inferred that the testator intended such persons as would inherit the personal estate under the statute of distribution.cs

In the United States generally those who succeed to the property of an intestate decedent are fixed by statute, the common law rules having been abrogated, and the same persons usually succeed to both the real and personal estate. Therefore, as a general rule, the American courts construe the word "heirs" according to the kind of property given, whether the gift be to the heirs directly, or by way of substitution in the event of the death of the first taker. A bequest of personal estate to "heirs" goes to those who are entitled under the statutes of distribution, while a bequest of real estate, or of

ignated in the instrument; "and in such cases the courts have usually held that the word 'heirs' must receive the meaning which it bears at common law, as the persons entitled to succeed to real estate in case of intestacy."-See Fahens v. Fahens, 141 Mass. 395, 299, 400, 5 N. E. 650, citing, De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524; Forster v. Sierra, 4 Ves. Jun. 766; Swaine v. Burton, 15 Ves. Jun. 365; Mounsey v. Blamire, 4 Russ. 384; Clarke v. Cordis, 4 Allen (86 Mass.) 466, 480.

68 Jacobs v. Jacobs, 16 Beav. 557; In re Craven, 23 Beav. 333; In re Porter's Trust, 4 Kay & J. 188.

Compare: Newton's Trusts, L. R. 4 Eq. 171, 173; Rees v. Fraser, 25 Grant Ch. (U. C.) 253.

As to substituted legacies generally, see §§ 772-776.

69 Eddings v. Long, 10 Ala. 203, 205; Hascall v. Cox, 49 Mich. 435, 13 N. W. 807; Scudder's Ex'rs v. Vanarsdale, 13 N. J. Eq. 109; Wright v. Trustees of M. E. Church, 1 Hoff. Ch. (N. Y.) 202, 212; McCormick v. Burke, 2 Demarest (N. Y.) 137; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1; McCabe v. Spruil, 16 N. C. (1 Dev.