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The same rule of construction is applied to gifts of real estate, the word including those who would have inherited the realty had there been no will.17 In a broad sense it may be applied to those connected either by affinity or consanguinity,18 but the general rule is that the word "relations" or "relatives," as used in wills, the context showing no contrary intention, is limited to include only those related by consanguinity.19

320; Thompson v. Thornton, 197 Mass. 273, 83 N. E. 880; Varrell v. Wendell, 20 N. H. 431, 435; Bramell v. Adams, 146 Mo. 70, 89, 47 S. W. 931; Snow v. Durgin, 70 N. H. 121, 47 Atl. 89; Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746; McNeilledge v. Galbraith, 8 Serg. & R. (Pa.) 43, 11 Am. Dec. 572; Templeton v. Walker, 3 Rich. Eq. (S. C.) 543, 55 Am. Rep. 646.

17 Doe d. Thwaites v. Over, 1 Taunt. 269; Handley v. Wrightson, 60 Md. 198; McNeilledge v. Barclay, 11 Serg. & R. (Pa.) 103.

So, also, under a gift to "those

related

to A."-Rayner v. Mowbray, 3 Bro. C. C. 234.

V.

The word does not receive this restricted construction in charitable gifts (Attorney-General Price, 17 Ves. Jun. 371); nor in of appointment authorizing a selection from among “relaWendell, 20

powers

tions."

Varrell V.
N. H. 431, 435; Harding v. Glyn, 1

Atk. 469.

But

a power of appointment

authorizing distribution only, must be confined to those within the V. Whitcomb, 3

statute. Pope Mer. 689.

"Near relations" are

And even though there be a power of selection with no gift over in default of appointment, upon a failure to exercise the power, only those within the statute will take.-Harding v. Glyn, 1 Atk. 469; Grant v. Lynam, 4 Russ. 292, 297.

18 Davies v. Bailey, 1 Ves. Sen. 84; Simcoke v. Grand Lodge, 84 Iowa 383, 15 L. R. A. 114, 51 N. W. 8; Snow v. Durgin, 70 N. H. 121, 47 Atl. 89; Lewis v. Mynatt, 105 Tenn. 508, 58 S. W. 857.

In a devise by a testator to his wife wherein he adds, "believing she will do justice between her relatives and mine at her death," the word "relatives" will not be limited to those by consanguinity only. Hill v. Page, (Tenn.) 36 S. W. 735, 741.

19 Rayner v. Mowbray, 3 Bro. C. C. 234; Harvey v. Harvey, 5 Beav. 134; Hibbert v. Hibbert, L. R. 15 Eq. 372; Thompson v. Myers, 95 Ky. 597, 26 S. W. 1014; Elliot v. Fessenden, 83 Me. 197, 13 L. R. A. 37, 22 Atl. 115; Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320; Supreme Council v. Bennett, 47 N. J. Eq. 39, 19 Atl. 785; Blos

those who take under the statute of distribution,20 but "nearest relations" is more restricted and excludes those who would take by representation under the statute, although admitting all who are in an equal degree of consanguinity.21

The statute of distribution not only determines who are meant by "relations," but also regulates the proportions which they take, the distribution of the whole being per stirpes and not per capita. The distribution is proportional among the classes that take, not equally among the various persons who may be benefited.22

§ 857. "Relatives" or "Relations" as a Class: As to the Date Which Determines Who Are Included.

As a general rule, the relations are to be ascertained as of the date of the death of him to whom they are related, or at the time of the testator's death, if the person has predeceased the testator, whether the gift be in remainder or immediate.23 But this rule does not, perhaps, apply so strictly as in gifts to next of kin ;24 and if the estate can not vest at the death of the testator,

som v. Sidway, 5 Redf. (N. Y.) 389; Storer v. Wheatley's Ex'rs, 1 Pa. St. 506.

It does not include a stepson (Kimball v. Story, 108 Mass. 382); nor an illegitimate niece who, in another part of the will, is designated as a "niece."-Hibbert v. Hibbert, L. R. 15 Eq. 372.

20 Whithorn v. Harris, 2 Ves. Sen. 527; Handley v. Wrightson, 60 Md. 198.

21 Pyot v. Pyot, 1 Ves. Sen. 335; Smith v. Campbell, 19 Ves. Jun.

400; Marsh v. Marsh, 1 Bro. C. C. 293; Stamp v. Cooke, 1 Cox 234; Ennis v. Pentz, 3 Bradf. (N. Y.) 382, 385.

22 Roach v. Hammond, Prec. Ch. 401; Masters v. Hooper, 4 Bro. C. C. 207; Thompson v. Thornton, 197 Mass. 273, 83 N. E. 880; Templeton v. Wallace, 3 Rich. Eq. (S. C.) 543, 55 Am. Dec. 646.

23 Rayner v. Mowbray, 3 Bro. C. C. 234.

24 Tiffin v. Longman, 15 Beav.

275.

the time of ascertainment may be postponed.25 Where a power of appointment in remainder among the testator's relations is given to a tenant for life, whether the power be by way of selection or of distribution, with no gift over in default of appointment, and the power be not exercised, the estate will pass to those who would have been the testator's next of kin had he died at the time of the death of the tenant for life, and not to the survivors of those who were his next of kin at the actual date of the testator's death. 26 Although the power be one of distribution only, the donee may exercise the power in favor of any who are next of kin according to the statute at the date of the appointment, although they were not such at the death of the testator.27

8858. Who Included in the Term "Representatives" or "Legal Representatives."

In a strict sense the terms "representatives," "legal representatives," "personal representatives," and "legal personal representatives," signify executors or administrators.28 Should a testator make a gift simply

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Trusts, L. R. 18 Eq. 686; In re Henderson, 28 Beav. 656; Chapman v. Chapman, 33 Beav. 556; Morehouse v. Phelps, 21 How. (U. S.) 294, 16 L. Ed. 140; Briggs v. Walker, 171 U. S. 466, 471, 43 L. Ed. 243, 19 Sup. Ct. 1; Sullivan v. Louisville etc. R. Co., 128 Ala. 77, 30 So. 528; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Tarrant v. Backus, 63 Conn. 277, 28 Atl. 46; Warnecks v. Lembca, 71 Ill. 91, 12 Am. Rep. 85; Gruenewald v. Neu, 215 Ill. 132, 141, 74 N. E. 101; Preston v. Connecticut Mutual L.

to one of the classes mentioned, or to his executors, the recipient will be the one appointed by the court to represent the testator after his death; but in the absence of an intention to the contrary, he will take the property only as part of the estate of the person whose representative he is, and not beneficially.29 However, the terms referred to may be used in the sense of "heirs" or "next of kin," as determined by the language of the will. Thus, where the word "representatives" is qualified by other words, as in the phrase "next personal representatives, "30 or is followed by directions that they are to take "share and share alike," or "per stirpes and not per capita,' or that the property is to be divided "equally amongst my personal representatives, "'33 or where the intention of the testator is evidently to provide for the family of a deceased devisee,3 the primary meaning of the word is excluded, and it will be inferred that the testator intended distributees under the statute as in

1932

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Ins. Co., 95 Md. 101, 51 Atl. 838; Lodge v. Weld, 139 Mass. 499, 2 N. E. 95; Halsey v. Paterson, 37 N. J. Eq. 445; Geoffroy v. Gilbert, 5 App. Div. 98, 38 N. Y. Supp. 643; Leonard v. Harney, 63 App. Div. 294, 71 N. Y. Supp. 546; United States Trust Co. v. Mutual Ben. L. Ins. Co., 115 N. Y. 152, 21 N. E. 1025; Lyon v. Fidelity Bank, 128 N. C. 75, 38 S. E. 251; Ralston v. Waln, 44 Pa. St. 279, 287; Osborn v. Athens First National Bank, 175 Pa. St. 494, 34 Atl. 858.

29 King v. Cleaveland, 4 De Gex & J. 477; Saberton v. Skeels, 1 Russ. & M. 587; In re Crawford's Trusts, 2 Drew 230, 234; In re Best's Settlement Trusts, L. R. 18

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case of intestacy. In this sense the word "representatives" is equivalent to "heirs" taking by way of distribution35 where the statute is referred to in order to ascertain the persons who are entitled to take as "representatives," it will also determine the proportion of their shares, unless a contrary intent appear in the will.36

The true rule in determining the meaning of the terms. mentioned, when used in wills, is to take the intention of the testator as expressed in the instrument and as affected by the situation of the parties and surrounding circumstances.37

$859. Who Included in the Term "Nephews" or "Nieces." The general rule of construction is that the word "nephew means the son, and "niece" the daughter, of a brother or sister, grandnephews or grandnieces not

35 Smith v. Palmer, 7 Hare 225; In re Hall, 2 Demarest (N. Y.) 112; Watson v. Bonney, 2 Sand. (N. Y.) 405, 417.

V.

Under the statute in Georgia, a widow was held to be within the meaning of the term "personal representatives."-Johnson Champion, 88 Ga. 527, 15 S. E. 15. To the same effect, see Holloway v. Radcliffe, 23 Beav. 163; Farnam v. Farnam, 53 Conn. 261, 2 Atl. 325, 5 Atl. 682; Griswold v. Sawyer, 125 N. Y. 411, 26 N. E. 464; Rose v. Wortham, 95 Tenn.

505, 30 L. R. A. 609, 32 S. W. 458.
In Brent v. Washington's Admr.,

18 Gratt.
(Va.) 526, 535, it was
held that under a gift to "repre-
sentatives
according to the Stat-

utes of Distribution," the husband,
although
not a distributee, was

entitled to take. To the same effect, see Robinson v. Smith, 6 Sim. 47.

36 Thompson v. Young, 25 Md. 450, 461.

Compare: Bullock v. Downes, 9 H. L. Cas. 1.

37 Staples v. Lewis, 71 Conn. 288, 41 Atl. 815 (construing "legal representatives" to mean "lineal descendants." See, also, Sullivan v. Louisville etc. R. Co., 128 Ala. 77, 30 So. 528; Greene v. Huntington, 73 Conn. 106, 46 Atl. 883; Delauney V. Burnett, 9 Ill. 454; Gruenewald v. Neu, 215 III. 132, 141, 74 N. E. 101; Albert v. Albert, 68 Md. 352, 370, 12 Atl. 11; Howell v. Gifford, 64 N. J. Eq. 180, 53 Atl. 1074; In re Rankin's Estate, 13 Pa. Co. Ct. 617, 621.

In Johnson v. Edmond, 65 Conn.

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