testator's son and three daughters and of their "families," it was considered that the word "would include his son and daughters, together with their respective children, so long as they should live together and form a portion of the same household, or from their tender years be entitled to be treated as its members. It would also include the wife of the son if she continued to reside with or be entitled to support from him."'58 Under a devise to trustees for the use of the "family" of the testatrix's son and for his wife and when he ceased to have a family then over, it was held that children not living in the father's house were not entitled, and that the family ceased to exist when the wife had died, all the daughters had married or attained majority, and all the sons had become of age.59

8862. Neither Husband Nor Wife Is Heir or Next of Kin of the Other.

A wife is not a relation of her husband in the usual sense of the word,60 nor is she her husband's heir;61 neither is the husband the heir nor next of kin of his

758; Davies v. Bailey, 1 Ves. Sen. 84; Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320; Storer v. Wheatley's Exrs., 1 Pa. St. 506; Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30.

61 Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885; Brown v. Harmon, 73 Ind. 412; Phillips v. Carpenter,

A gift to the testator's widow, "to be for her support and support of my children," vests a beneficial interest in the children; and 79 Iowa 600, 44 N. W. 898; Lord

a girl of nineteen who left the
mother did
not thereby lose her
support.-Proctor v. Proctor, 141
Mass. 165, 6 N. E. 849.

60 Worsly

V. Johnson, 3 Atk.

v. Bourne, 63 Me. 368, 18 Am. Rep. 234; Wilkins v. Ordway, 59 N. H. 378, 47 Am. Rep. 215; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1; In re Dodge's Appeal, 106 Pa. St.

wife.62 A bequest by a husband to his "next of kin" would not prima facie include his wife as a beneficiary, and the converse is true should the wife make a similar gift to her husband. However, the court will inspect the entire will, and if from the whole there is manifested an intention to include the husband or wife under the term "next of kin," "relatives," or the like, the intention will be given effect.65 Where under the statute a surviving husband or wife succeeds to an absolute interest in the estate of the other upon his or her death, it has been held that the term "heirs at law" will include a surviving spouse as the statutory heir.66 This effect will always be given if the context shows that such was the intention of the testator.67

216, 51 Am. Rep. 519; In re Raleigh's Estate, 206 Pa. St. 451, 55 Atl. 1119.

62 In re Ivin's Appeal, 106 Pa. St. 176, 51 Am. Rep. 516.

63 Garrick v. Camden, 14 Ves. Jun. 372; Wilkins v. Ordway, 59 N. H. 378, 47 Am. Rep. 215; Murdock v. Ward, 67 N. Y. 387; Keteltas v. Keteltas, 72 N. Y. 312, 28 Am. Rep. 155; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1.

64 Garrick v. Camden, 14 Ves. Jun. 372; Wetter v. Walker, 62 Ga. 142; Wilkins v. Ordway, 59 N. H. 378, 47 Am. Rep. 215; In re Ivin's Appeal, 106 Pa. St. 176, 51 Am. Rep. 516.

A gift to the heirs of B's deceased wife does not include B.Wilkins v. Ordway, 59 N. H. 378, 47 Am. Rep. 215.

65 Garrick v. Camden, 14 Ves. Jun. 372; In re Steevens' Trusts, L. R. 15 Eq. 110.

66 Pace v. Klink, 51 Ga. 220, 223; Craig v. Ambrose, 80 Ga. 134, 4 S. E. 1; Fabens v. Fabens, 141 Mass. 395, 5 N. E. 650; Lincoln v. Perry (Perry v. Aldrich), 149 Mass. 368, 374, 4 L. R. A. 215, 21 N. E. 671; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766.

67 Mullen v. Reed, 64 Conn. 240, 42 Am. St. Rep. 174, 24 L. R. A. 664, 29 Atl. 478; Alexander v. Northwestern Masonic Aid Soc., 126 Ill. 558, 2 L. R. A. 161, 18 N. E. 556; Wilburn v. Wilburn, 83 Ind. 55; Lyons v. Yerex, 100 Mich. 214, 43 Am. St. Rep. 452, 58 N. W. 1112; Welsh v. Crater, 32 N. J. Eq. 177: Walsh v. Walsh, 66 Hun (N. Y.) 297, 20 N. Y. Supp. 933; In re Eby's Appeal, 84 Pa. St. 241, 245.

§ 863. "Husband" or "Wife": Effect of an Illegal Marriage. A beneficiary may be designated in a will by description or as partaking of a certain character; as, for instance, "my son's wife L.'"'68 The gift is not avoided merely because the beneficiary does not in fact legally Occupy the position. The words used are merely descriptive of the person who is to take, and do not define the capacity in which she may receive the benefit.69 Thus where the beneficiary was named as "T. W., the husband of my said daughter," it was said that the relationship could not have been the sole motive of the gift since it was an individual by name as well as by description, and that the court could not subject the gift to the condition that the donee should at the time it took effect, be the husband of the daughter.70 Where a testator makes a bequest in favor of one whom he designates as "my wife,' the gift will pass to the one occupying the position of or being treated as his wife, although never legally married to him.71 The designation of a beneficiary by description must not be confused with gifts to after-born illegiti68 In Anderson v. Berkley,

149; Marks v. Marks, 40 Can. Sup. Ct. 210.

In Re Petts, 27 Beav. 576, it was held that a woman who had a husband still living when she married the testator, was entitled to legacies given "to my wife" and "my said wife," by the will of him with whom she contracted this second and void marriage.

In Goods of Howe, 33 Week. Rep. 48, it was held, where separation by mutual consent had taken place and a ceremony of marriage gone through with another whom the testator had

mate children which are void as against the policy of the law.72

Although the statute may prescribe that every will shall speak as of the date of the testator's death, yet this applies only to the subject matter disposed of, not to the beneficiaries. As to the persons designated to take under the will, the instrument speaks as of its date unless a contrary intention be shown.78

§ 864. The Same Subject: Effect of Divorce.

74

Divorce will not cause a legacy or devise by one spouse in favor of the other to lapse. A will may be revoked at any time and its retention unaltered raises a strong presumption that the maker desired it to stand. This rule, however, may be changed by agreement and a property settlement between the parties at the time of the legal separation.75 The terms of the will may also preclude a

treated as his wife, that she took under the expression "my wife."

72 In Pratt v. Mathew, 22 Beav. 328, at page 338, Sir John Romilly, the master of the rolls, held the phrase "to my wife" carried a bequest to her whom the testator had gone through the form of marrying, but whom, by reason of her having been a deceased wife's sister, he could not legally marry. And in the same case he held void a bequest to "my children hereafter to be born" though the said wife, so-called, with whom he lived until death, was then far advanced in pregnancy.

73 See § 237. In re Jones' Estate, 211 Pa. St. 364, 107 Am. St. Rep. 581, 3 Ann. Cas. 221, 69 L. R. A. 940, 60 Atl. 915.

74 See § 765. In re Boddington, 22 Ch. Div. 597, 25 Ch. Div. 685; Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187; In re Brown's Estate, 139 Iowa 219, 117 N. W. 260; Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303; Smith v. Greeley, 67 N. H. 377, 30 Atl. 413; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Irish v. Smith, 8 Serg. & R. (Pa.) 573, 11 Am. Dec. 648; Brown v. Ancient Order United Workmen, 208 Pa. St. 101, 57 Atl. 176; In re Jones' Estate, 211 Pa. St. 364, 107 Am. St. Rep. 581, 3 Ann. Cas. 221, 69 L. R. A. 940, 60 Atl. 915.

75 Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 N. W. 699; Donaldson v. Hall (In re Hall), 106 Minn. 502, 130 Am. St.

divorced wife from taking, as where an annuity was given for the support for life of the "widow" of the testator should she survive him and remain unmarried. The divorced wife was held not to be the "widow" of the decedent.76

$ 865. Gift With Limitation Over in Event of Death of Beneficiary.

It is a settled rule of construction that where a legacy or devise is given to one person and in case of his death to another, the contingency referred to is the death of the first named beneficiary during the lifetime of the testator. If he survive the testator, he takes an absolute interest. One purpose of the substituted beneficiary is to prevent a lapse. This construction is adopted where no contrary intention is indicated in the will. The words of contingency can only be satisfied by referring them to a death before some particular period. If none other is mentioned it is presumed that the time intended was the death. of the testator; otherwise the first-named devisee could take but a life estate, since his death at some time is certain.77

§ 866. The Same Subject: "Die Without Issue": English Rule. Where a devise is given to one with an alternative gift over in case the first-named devisee die "without issue,"

Rep. 621, 16 Ann. Cas. 541, 20 L. R. A. (N. S.) 1073, 119 N. W. 219. And see Wirth v. Wirth, 149 Mich. 687, 113 N. W. 306.

Contra:

Baacke v. Baacke, 50

Neb. 18, 69 N. W. 303.
76 Bell v. Smalley, 45 N. J. Eq.
478, 18 Atl. 70.

77 Edwards v. Edwards, 15 Beav.

357; Briggs v. Shaw, 9 Allen (91) Mass.) 516; Crossman v. Field, 119 Mass. 170, 172; Whitney v. Whitney, 45 N. H. 311; Kelly v. Kelly, 61 N. Y. 47; Quackenboss v. Kingsland, 102 N. Y. 128, 55 Am. Rep. 771, 6 N. E. 121; Matter of New York, Lackawanna & W. R. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492.