Howe v. Lord Dartmouth, 7 Ves. 137; Benn v. Dixon, 4 Jur. 575. Alcock v. Sloper, 2 My. & Kee. 699. Bethune v. Kennedy, 1 My. & Cr. 116; Pickering v. Pickering, 2 Beav. 31; S. C. on App. 3 Jur. 743. leasehold estate, in order to effect this general purpose of the testator, such wasting property must be sold and converted into permanent property1; but though this intention of the testator is primâ facie to be inferred, it may plainly appear upon the whole context of the will, that the testator had not that meaning, but that his intention was, that the tenant for life should derive the same income from the residuary estate as he himself derived from his property up to the time of his death2. The question in every case is, whether the gift, though in form a mere residuary clause, does not amount to a specific gift of the fund for the benefit of the tenant for life: this question is one of intention, to be collected from a careful examination of the whole scope and context of the instrument3. 2. Residuary Devise.]-A will of real estate operates only upon such real estate as the testator is seised of at the date of his will, and therefore a residuary devise passes only such of his real estate undisposed of as he had at the date of his will, and does not affect his after-acquired realty. The effect, in fact, is the same as if the testator, instead of devising the residue, had specifically devised the lands undisposed of; and on this principle it has been established that, if a particular devise lapse by the death of the devisee in the testator's lifetime, the lands comprised in the lapsed devise do not pass to the residuary legatee4. The contrary, however, has been established in regard to devises originally void, as by Fludd, Ib. 184. the devisee being dead at the date of the will5; or the devise being upon trusts void at law 6. Where partial interests are devised, as an estate for life or in tail, the residuary devise will carry the reversion 7. So, where the fee-simple is disposed of contingently, the residuary devise will carry the fee in the alternative events 8. • Wright v. Hall, Fort. 182; Roe v. 5 Doe v. Sheffield, 13 East, 526. 6 Williams v. Goodtitle, 10 B. & C. 895. "Doe v. Fossick, 1 B. & Ad. 186. s Doe v. Scott, 3 M. & S. 300. ⚫ Stephens v. Stephens, Ca. tem. Talb. 228. 10 Duffield v. Duffield, 3 Bligh, N. S. 261. 11 Gibson v. Montfort, 1 Ves. sen. 491; per Hardwicke, C. 3. Intermediate Rents and Profits.]—On the same principle, where lands are devised in futuro, the residuary devise will carry such rents and profits as would otherwise descend to the heir at law9; and the circumstance even of the residuary devise containing a trust for sale will make no difference, where the language of the residuary devise is unambiguous 10. Where there is an executory devise, "all the rest and residue" of an estate, real and personal, will also take in the intermediate profits of the real estate so devised in contingency 11. The disposition of the unappropriated intermediate profits of personalty differs from that which is applicable to such profits when they arise out of realty; and the reason is, that, while personal property is regulated by the ecclesiastical courts which adopted the civil law, the disposition of real property is governed by the principles of the common law, which always favoured the owner of the inheritance. When courts of equity took cognizance of both species of property, the civil law furnished the rule by which personal property was distributed, as the common law did that by which real property was distributed. Hence, the intermediate unappropriated profits of personal property, between the death of the testator and the vesting of an executory devise, or from the determination of the first limitation to the vesting of a subsequent one, accumulate for the benefit of the person next to take by virtue of the limitation; but the intermediate unappropriated profits of real estate go to the heir. Where there is a residuary disposition, the intermediate profits, whether of personal or real estate, fall into and pass by such residuary disposition. If the intermediate profits accrue in consequence of the failure of the residuary devise, then the same rule prevails as if there had been no residuary devise. But, when the testator mixes up his real and personal estate together, for a particular purpose, the intermediate profits of both will go together 1. When money is directed to be laid out in the purchase of land, with all convenient speed, and in the mean time the interest to accumulate, the tenant for life shall be entitled to the interest from a twelvemonth after the testator's death. Thus, where A. bequeathed all his personal estate to his executors for payment of certain legacies, and subject thereto, with all convenient speed to lay out the residue of his personal estate in the purchase of manors, lands, &c., in England, of inheritance in fee-simple in possession, and directed that the interest of such residue should accumulate and be laid out in lands, to be settled in like manner as he had directed the residue of his personal estate to be settled. The testator's personal estate was outstanding in a variety of securities, and much time might be lost in calling it in, so as in fact to deprive the tenant for life of all benefit under the settlement; and the question was, whether the enjoyment of the tenant for life should be so indefinitely postponed, and if not, when it should commence. Lord Eldon, in an elaborate judgment, held the clause of accumulation to mean, not an indefinite accumulation, but such an accumulation of interest as would give the executors time to collect in the testator's personal estate with some degree 'Genery v. Fitzgerald, 1 Jac. 468. 1 Sitwell v. Bernard, 6Ves. 552; see also Kil 2 Sim. & Stu. 396; Parry v. Warrington, 6 Madd. 155. of forbearance. It might, therefore, be cut down to one year, and that restriction of the words of the will had this advantage, that it was analogous to the period at which executors were generally called on to pay legacies. The plaintiff must, therefore, wait one year. The question then would be, must he wait longer? And if so, whether he ought not of necessity to wait till the personal estate could be actually collected. Part might be collected in his lifetime, and he might enjoy the rents and profits of the estates purchased with that part. But it might happen, that no part was got in, in his lifetime. Suppose the debts on mortgage the only part of the personal estate to be got in, it was impossible to say when these funds could be realised. The court, therefore, was driven, either to take the end of the year upon the principle of general convenience, or to examine, in each case, what convenient speed and reasonable diligence would have done; what negligence, or the law of the country, or other circumstances would have prevented; and make these inquiries at the hazard of obtaining no clear result. His Lordship was therefore disposed to say, justice requires that the plaintiff should have the interest from the end of the year; and the more so, because he was clear, that in distributing that justice to the tenant for life, he was consulting the essential interests of the persons in remainder1. This doctrine, however, does not apply where the testator does vington v. Gray, not add a clause of accumulation, it being now clearly settled, that, in such cases, if the funds be adequate, the tenant for life is entitled to interest from the death of the testator. As where a testator merely directed his executor to invest the residue of his estate, after payment of debts and legacies, in the funds or upon securities, the interest to be paid to A. for life, and, after his death, the principal to be held upon trusts for his children; the tenant for life was held to be entitled to interest accruing within the year next after the testator's decease, upon funds in which the testator's property stood invested at the time of his death, Hewitt v. Mor- which were not required for the payment of debts and legacies 2. In a subsequent case, which underwent great consideration3, ris, 1 T. & R. 241. 3 Douglas v. Congreve, 1 Kee. 410. under a devise of the residue of the testator's real and personal estate to trustees upon trust, to convert the same into government securities in their own names, and to pay the interest and dividends thereof to A. for her life, and after her decease to pay and transfer such residue, in equal moieties, to the persons therein men tioned; it was held, that the tenant for life was entitled to the interest of the residue, making interest, as it stood at the time of the testator's death, until the end of one year, or so much of the year as should elapse before the conversion of the residue, according to the direction of the will. 1. Gifts to Children, &c.]—A gift to children generally includes children by any marriage, past, present, or future1. Under a gift to children, grandchildren cannot take2, unless, perhaps, under very special circumstances, such as shew, in point of fact, that the testator was labouring under a mistake3. For the same reason, a great niece cannot take under a gift to nephews and nieces. It has been determined, that a legacy to first and second cousins includes first cousins once removed 5,-first cousins twice removed6; and this, even though the testator had expressly mentioned a class of relations whom this liberal interpretation of the term «first cousins” include 7. Under a gift to issues, or descendants9, descendants of every degree will take, unless this construction be clearly narrowed by the context. 1 Critchett v. Taynton, 1 Radcliffe v. Bulkley, 10 Russ. & M.541. Ves. 195. Orford v. Churchill, 3 Ves. & Bea. 69; Bryer, Jac. 207. • Silcox v. Bell, 1 Sim. & Stu. 301. 7 Goodyer, 3 2. Next of Kin.]-The phrase "next of kin" occurs in the statute of 21 Hen. 8, c. 5, s. 3, where the class of relationship comprised in these words is sufficiently clear and determinate. On the passing of the Statute of Distribution 10, this expression was extended to two classes,-that which was entitled as next of kin in equal degree, and that which was entitled as next of kin by right of representation,—a circumstance which has been the principal occasion of the difficulties which have arisen on the construction of these words. The wife of a testator is not included in the meaning of the words "next of kin;" for she is non affinis c. 10; 1 Jac. 2, sed causa affinitatis. In the construction of a legal instrument, • Cook v. Cook, 2 Vern. 545. 9 Crosley v. 320, n. c. 17. 1 Brandon v. Brandon, 3 Swanst. 312. 2 Ib. Whimbles v. Pitcher, 12 Ves. 433; Worthington v. Statham, 1 Madd. 36. 4 Thomas v. Hole, Ca. Temp. Talb. 251; Roach v. Hammond, Pr. Ch. 401. Whithorne v. Harris, 2 Ves. sen. 527; Green 63 Bro. C.C. 7 Isaac v. De Widmore v. Woodroffe, Ib. 636. these words have a different meaning from that which they would receive on an intestacy: in the latter case they are referrible to the statute; but, in the former, they are received in their popular acceptation, and the right of representation is excluded1. The words "nearest and next of kin" have received the same construction2. If the testator himself uses the words "next of kin of equal degree," the right of representation will of course be excluded3. 3. Relations.]-The word "relations" is a word of much less defined acceptation; but the courts have interpreted it by the word "kindred" in the Statute of Distribution, admitting not only kindred by equal degree, but also kindred by right of representation1. The words "near relations," or "nearest relations," have received the same construction 5. So the words "my own relations," or persons related to me only," have been construed in the same manner. So, the words "poor," or "poorest relations," or, "the most necessitous of my relations," have received the same interpretation 7, though it was formerly held, that such relations only would take as were objects of charity. Children born after the testator's death, but before the period of distribution, are not entitled to any share under this general descripfriez, Amb.595; tions; nor are relations by marriage entitled, because the word "kindred" in the statute relates only to kindred by blood9; nor is the share of a poor relation, dying before distribution, transmissible to his personal representative, 10. But if the testator, by any specific description, designate the class of persons whom he intends to be objects of his bounty, as, if the bequest be "to his nearest relations," or to the "nearest relations of the deceased," 10 Mahon v. Sathe Statute of Distribution will not be referred to, but the nearest vage, 1 Sch. & kindred in equal degree will be entitled 11. If a testator give a discretionary power of selection and distribution amongst his relations, the courts will not compel a reference to the statute, but will consider the relations at large as objects among whom the 12 Sapple v.Law- distribution may be made 12. The statute is substituted only when son, Amb. 729; the intention of the testator cannot be discovered 13; but, if there Spring v. Biles, be no distribution by the person having the power, and the trust 13 Greenwood v. devolves on the court as to what relations shall take, the persons Greenwood, entitled must be the "next of kin" within the statute, for the Bro. C. C. 32, n. court must have some criterion to go by, and the statute is the 14 Mahon v. Sa- only rule the court can have 14. 8 Bennett v. Honeywood, 9 Maitland v. Adams, 9 Ves. 231. Lef. 111. " Pyot v. Pyot, 1 Ves. sen. 335; 1 T. R. 435, n.; vage, sup. |