It is to be observed, that though the statute is referred to for a definition of the class of persons intended by relations; yet the distribution will be per capita, if the testator directs a division equally, or share and share alike1. 4. Family.]-The word "family" has been construed to mean "children," to the exclusion of the parents2; but the "parents" may be included within its meaning, if the context clearly indicate that to have been the intention of the testator3. The term "family" has also been construed to mean "next of kin 4." 5. Descendants.]-Where the devise was to the testator's "descendants, now living in or about Seven Oaks, or hereafter living anywhere else," the estate was divided among the grandchildren and great grandchildren per capita 5. 6. Legal Representatives.]—Legal representatives in a will 320, n. point to the same persons as next of kin; but personal representatives mean executors 6. 6 Cotton v. Cot When a legacy is given to persons answering a particular de- ton, 2 Beav. 67. scription, as next of kin, relations, &c., to take effect at a remote period, after the expiration of prior interests, it seems to be settled that the bequest will be confined to the persons answering the description at the time they are to take7. 7 Colebeck v. 8 Crosley v. C. C. 367. 7. Mode of Distribution.]-Under a gift to issue or descendants, simpliciter, all the objects take equally as joint-tenants, unless there be words of severance, or other words importing division, which would make them tenants in common9. For the same reason, if a testator, having children and also grandchildren, make a gift in favour of his children A. and B., and also of the children of his late son, C., the distribution will be per capita, and not per stirpes; although it is highly probable in such a case, that the other construction would be more in accordance with the testator's intention 10. When the distribution among descendants or issue is per capita, children take concurrently with their parents 11; and a bequest to such of the children of A., B., and C., as should be living at the testator's decease, or (which Parsley, 3 Ves. was turned into and) the issue of such of them as should be married, in equal shares, has also been held to create a distribution per capita 12. 8. Gifts to younger Children.]—Gifts to younger children are generally intended for the unprovided branches of the family, as the eldest son, by the law of primogeniture and the ordinary mode of family settlements, usually takes the estate; hence the 10 Blackler v. Webb, 2 P. W. 383 (a). 11 Freeman v. 421. 12 Horridge v. Ferguson, Jac. 583. 1 Duke v. Doidge, 2 Ves. sen. 203; Hall v. Luckup, 4 Sim. 5. 2 Coleman v. Seymour, 1 Ves. sen. 209. 3 Lincoln v. Pelham, 10 Ves. 166. 4 Windham v. Graham, 1 Russ. 331. 5 Matthews v. Paul, 3 Swanst. 328. • Trafford v. term " to the period of vesting. se 9. Gifts to First or Second Son.]—Under a devise in trust for A. for life, remainder to the second son of his body in tail, cond" was held to mean second in order of birth, and to apply to a second son who had become an elder at the testator's decease. Ashton, 2 Vern. So, under a devise to A. for life, remainder to his first son in tail, Lord Hardwicke considered that first was to be construed as eldest, so as to let in a son who was the second in order of birth, but the eldest at the testator's decease 7. A gift to the " child" has been held to extend to an only child. 660. 7 Lomax v. Holmden, 1 Ves. sen. 290; and see Driver v. Frank, 3 M. & S. 25. 9 Emery v. England, 3 Ves. 232; and see West v. Primate of Ireland, 2 Cox, 258. youngest 10. Survivorship.]-Upon a devise to A. for life, and after his decease to B., C., and D., and the survivors and survivor of them, their or his heirs and assigns, it is a settled rule of construction, that the period of survivorship is to be referred to the death of the testator, and that such of the remainder-men as are then living will take, notwithstanding their afterwards dying in the lifetime of the tenant for life9; but a different rule applies in regard to an analogous bequest of personal estate, the survivorship Doe v. Prigg, 8 in that case being referred to the period of distribution. If there be no previous interest given in the legacy, then the period of distribution is the death of the testator, and the survivors at his death will take the whole legacy 10; but if a previous life estate be • Garland v. Thomas, 1 B. & P. N. R. 82; B. & C. 231. 10 Stringer v. Phillips, 1 Eq. Ca. Ab. 292. 1 Cripps v. Wolcott, 4 Gibbs v. Tait, Madd. 11; 8 Sim. 132. v. Wilson, 16 Ves. 170. Crozier v. 398. given, then the period of distribution is the death of the tenant for life, and the survivors at such death take the whole legacy1. Where, upon the language of the will the survivorship admits of being referred either to the time of distribution or the legatee's attaining twenty-one, the courts lean to the latter construction2; and, it has been said, will not, "unless forced by the plainest words," adopt a construction by which the interest of a child of full age and settled in life would be divested, if he happened to die before the period of distribution3. If the bequest to all children and grandchildren" of the testator or any other Fisher, 4 Russ. person be made in terms which vest the property in possession upon his death, none but those in esse at that time can take; for the property is then distributable: but though an interest in the subject of bequest be immediately given; yet, if the vesting in possession be postponed, so that no immediate distribution need then take place, all who answer the description, not at the death of the testator, but at any time before the fund is to vest in possession, will take. Notwithstanding this disposition on the part of courts of equity to include all the children of a family, where it is probable that all were equally within the intention of the testator5, still the rule of "exclusion," though it has been wondered at, and has repeatedly been termed an "artificial" one6, has Jones, 2 Madd. more frequently been declared to be founded on strong necessity, and must prevail when a distribution is to take place, before those binson, 2 Mer. who might otherwise be entitled, come into esse7. Ellison v. Airey, 1 Ves. sen. 111; Scott v. Harwood, 5 Madd. 335. 5 Hutcheson v. 129. 6 Leake v. Ro 383. 7 Gilbert v. Boorman, 11 Ves. 238. SECT. 11.-GIFTS TO ILLEGITIMATE CHILDREN. 1. Under a Gift to Children Illegiti- | 2. If sufficiently ascertained, Illegiti- 1. Under a Gift to Children Illegitimate Children cannot take.] -"Children” mean, primâ facie, legitimate children; and, therefore, under a gift to children simply illegitimate children cannot take; and, therefore, if a testator, being a bachelor having illegitimate children whom he has recognised and treated as his own, make a gift in favour of his children generally, they Godfrey v. Davis, 6 Ves. 43; Harris v. cannot take under it, the general rule prevails1. So, when a person having illegitimate children by an unmarried woman, proLloyd, T. & R. vides for them, and then makes a bequest in favour of all other 310. • Arnold v. Preston, 18 Ves. 288; Kenebel v. Scrafton, 2 East, 530. children he may have by her, it is presumed, that he contemplated marrying her, and future illegitimate children cannot take under this gift 2. If the testator were married at the time, the presumption would be, that he contemplated surviving his wife and marrying the woman in question, and the same rule would prevail; but if from the contents of the will it can be inferred, that he expected his wife to survive him, and such conclusion would be drawn from his giving her a legacy, this negatives the presumed contemplation of marriage, and lets in the illegitimate children3. Under a gift to the children of a person previously dead, leaving none but illegitimate children, such children will Woodhouselee take4; or to the children of a specified person "now living," such v. Dalrymple, person having no legitimate children at the time5. Wilkinson v. Adam, 1 Ves. & B. 422. 2 Mer. 419. 5 Blundell v. It has been determined even that the existence of a single leDunn, 1 Madd. gitimate child was sufficient to exclude illegitimate children, 433, cit. though the gift was to children in the plural6; but this doctrine, clearly unsound, has been in effect overruled 7. 6 Swaine v. Kennerley, 1 Ves. & B. 469; Hart v. Durand, 3 Anst. 689. 'Gill v. Shelley, Wigr. on Wills, 44. 8 Metham v. Devon, 1 P. W. 529; River's Ca., 1 Atk. 410. 9 Standen v. 167. 2. If sufficiently ascertained, Illegitimate Children may take.] -Illegitimate children may take under any description which they have acquired by reputation, and which sufficiently designates them8; and the designation of them as legitimate will not affect their claim, this being treated merely as an inaccurate superfluous description 9; and a gift to the children even of a living person, described as consisting of a certain number, will include illegitimate children, if necessary to make up the number 10. It is no objection to a gift to existing illegitimate children, that they are described as the children both of the reputed father and mother; but a gift to the future illegitimate children of a man is clearly bad. It has been doubted even, whether a gift to a child with which an unmarried woman is pregnant, described as the "Earle v. Wil- child of a particular man, be valid11. The question in such a case son, 17 Ves. turns upon the consideration, whether the testator intended that 528; but see the circumstance of the person named as father being actually so, should be an essential ingredient in the qualification; for if he did, the gift would be clearly invalid. If, however, in such a case the infant en ventre sa mère were described merely as the child of the woman, without reference to the father, the gift would be unimpeachable, that being sufficiently certain to ascertain the object intended to be pointed out 12. Evans v. Massey. 8 Pri. 22. 12 Gordon v. Gordon, 1 Mer. 141; Dawson v. Dawson, 6 Madd. 292. 1. Trust Estates.]—Under a general devise of real estates trust estates will pass, unless an intention to the contrary can be inferred from expressions in the will, or the purposes or objects of the testator1. If the purposes of the devise be manifestly inconsistent with the nature of the trust, as if the devise be to uses to prevent dower, to uses in strict settlement, subject to executory limitations, create a trust or general charge for the payment of debts, legacies, or any other monies, the legal estate will not pass 2. The question has frequently arisen in late years, whether the legal estate in mortgaged lands will pass by the words "mortgages" or "securities for money." The decisions have been conflicting; but, in the two latest cases3, these words were held to carry such estate, the court, however, in both cases, relying a good deal on the fact of the word "heirs" occurring as a word of limitation to the devise in question. Church v. Mundy, 15 Ves. 396; Doe v. Bartle, 5 B. & Ald. 492. 2. Remainders and Reversions.]-Under a general devise of lands, remainders and reversions will pass; and the later authorities have established, further, that some of the limitations of the devise being, in strictness, not applicable to an estate of this description, will make no difference; unless it appears that the testator, at the time of making his will, had the settlement by which the previous estates were created in his recollection, and the limitations of the general devise of the reversion would, in point of fact, be inoperative; for then the court draws the conclusion that the reversion was not intended to pass, and construes the will accordingly 5. If the testator having a remainder or rever-Goodtitle v. Miles, 6 East, sion in fee, makes a general devise, giving thereout an annuity to a person who has already a life-interest in such lands, this will not prevent the remainder or reversion passing by the devise6. Lord Tenterden in the case last cited observed, that "The more n dern doctrine is, that where the words are large enough to carry a remote reversion, it will pass, unless there be something directly shewing the intention to have been otherwise: the negative must be proved." mo 494. Doe v. Weatherby, 11 East, 322; Doe v. Fossick, 1 B. & |