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the administrator subsequently appointed in that jurisdiction, his opinion has not been acquiesced in.

In Vroom v. Van Horne, 10 Paige, 549, 556-7: Klein v. French, the courts incline to the view that payment would not discharge the debt if there were creditors of the decedent in the domicile of the debtor where the payment was made. But in Parsons v. Lyman, 20 N. Y. 103, Judge Denio gave utterance to a dictum that the presence of creditors in the debtor's State would make no difference. In this case the payment was made in New York to a Connecticut administrator of a debt owing to the decedent by a resident of New York. The court held that the same administrator, being subsequertly appointed in the State of New York, could not be called upon in that State to account again for the debt, he having already accounted for it in Connecticut. The case however does not decide whether the payment would have been good and the administrator either required to account for it again in New York or to sue the debtor for the debt, had there been creditors in that State to be protected. Judge Denio says, at page 113: "The fact that those assets were at one time within one jurisdiction, or had existed in the shape of a debt owing by a resident of this State, is of no legal consequence. In stating this position, I of course exclude any consideration of cases where a lien by way of attachment or otherwise had been fastened upon the property, or where any claims of a domestic executor or administrator had attached to it before it had passed into the hands of the party claiming under the foreign title. I might also exclude the case of beneficiaries of a trust residing in this State as legatees or creditors of a testator whose executors, appointed in another State, had come here and received by voluntary delivery or payment the personal assets of the estate, for in the case before us the respondent received in Connecticut and invested the moneys for which he had been adjudged liable to account to the surrogate of New York, while every person interested in the estate was a resident of the State of Connecticut. But if that were otherwise, I conceive that it would make no difference." See also Trecothick V. Austin, 4 Mason, 33.

Where a debt is evidenced by an instrument as a bond or note, the actual situs of the instrument is the situs of the debt, irrespective of the domicile of the debtor. Goodlet v. Anderson, 7 Lea (Tenn.), 286; St. John v. Hodges, 9 Baxt. (Tenn.) 334; Beers v. Shannon, 73 N. Y. 292; Byron v. Byron, Cro. Eliz. 472; Doolittle v. Lewis, 7 Johns. Ch. 44; Whitehurst v. Whitehurst, 6 Va. L. J. 54; Speed v. Kelly, 59 Miss. 47.

In Doolittle v. Lewis the chancellor held that the foreign executor or administrator of a non-resident mortgagee might in his own name enforce the power contained in the mortgage of sale in case of default, without taking out letters in the State where the mortgaged property lay, the bond and mortgage being in the possession of the decedent at the time of his death in the State in which the personal representative was appointed, and being in the possession of such representative in such State all the time subsequent to his death. GUY C. H. CORLISS.

POUGHKEEPSIE, N. Y.

CITIZENSHIP-" INHABITANT."

CONNECTICUT SUPREME COURT OF ERRORS. MAY 3, 1886.

TOWN OF NEW HARTFORD V. TOWN OF CANAAN. L. was born in 1836 in Massachusetts, his father being an alien resident there. When L. was five years old his father removed with his family to Connecticut, residing

in several towns, but acquiring no settlement in them, and finally settling in N., where he resided till after L. became of age. After reaching his majority L. resided more than six years in N., self-supporting and paying all assessed taxes. Held, that L. was a citizen by birth, and that in coming from another town in the State to N. he came as an "inhabitant."

ACTION to recover for supplies furnished to a pau

opinion states the case.

L. B. Dean and W. B. Smith, for appellant.

A. H. Fenn, for appellees.

PARDEE, J. LaFayette Parrott was born in 1836 in Massachusetts, his father being an alien resident there. Some five years thereafter, the father removed with his family, including LaFayette, into this State, residing first for about two years in Colebrook, then for about the same length of time in Winchester, going thence to Norfolk, where he resided until 1868. In 1855, in Norfolk, he was naturalized, LaFayette being then a minor. After attaining majority the latter resided more than six years in Norfolk, presumptively self-supporting and paying all assessed taxes. In 1879 he came to want in the town of New Hartford, but had not then acquired a settlement there under the pauper laws. The latter town expended money for his support, and claiming that the town of Canaan is his place of settlement, brought this suit for re-payment.

In Lynch v. Clarke, 1 Sandf. Ch. 584, it is said as follows: "Upon principle therefore I can entertain no doubt but that by the law of the United States, every person born within the dominion and allegiance of the United States, whatever was the situation of his parents, is a natural-born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective States or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common-law rule was the law of the land. This inference is confirmed and the position made morally certain by such legislative, judicial and legal expositions as bear upon the question. Before referring to these I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does of itself constitute citizenship. Thus when at an election the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever was the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important and more deeply felt in reference to political rights than rights of property. The universality of the public sentiment in this instance is a part of the historical evidence of the state and progress of the law on the subject, indicates the strength and depth of the common-law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle."

In McKay v. Campbell, 2 Sawy. 118, it is said: "By the common law a child born within the allegiance of the United States is born a subject thereof without

reference to the political status or condition of its parents."

In 2 Kent Com. (9th ed.) 1, it is said that "natives are all persons born within the jurisdiction and ¡allegiance of the United States." To the text is subjoined the following note: "This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of embassadors, who are in theory born within the allegiance of the foreign power they represent. Calvin's case, 7 Coke, 1; Lynch v. Clarke, 1 Sandf. Ch. 584, 639." In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed, and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States became the common law of the United States when the union of the States was consummated; and the general rale above stated is consequently the governing principle or common law of the United States, and not of the individual State separately considered.

The right of citizenship, as distinguished from alienage, is a national right, character, or condition, and does not pertain to the individual States separately considered. The question is of national and not in. dividual sovereignty, and is governed by the principle of the common law which prevails in the United States, and became, under the Constitution, to a limited extent, a system of national jurisprudence. It was accordingly held in that case that the complainant, who was born in New York of alien parents, during their temporary sojourn there, aud returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterward, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the States when the Declaration of Independence was made, and continued so until the establishment of the Constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained."

In Field's International Code, 132, it is said: "A legitimate child, wherever born, is a member of the nation of which its father at the time of its birth was a member." Upon this Morse, in his work on Citizenship, p. 17, thus comments: "This is the law in most European States (Westlake, p. 16; Foelix, p. 54), but not in England or in the United States. However in Ludlam v. Ludlam, 26 N. Y. 371, the court says: Citizenship of the father is that of the child so far as the laws of the country of the father are concerned.' And it has been held in the United States that the national character of the parent is of no importance, even in the case of a child born within the territory to a parent who has not been, and has not taken any steps toward becoming naturalized here, and who removes the child while an infant. Lynch v. Clarke, 1 Sandf. Ch. 585. But this decision seems not to be entirely approved (Munro v. Merchant, 26 Barb. 400) and probably would at the most be considered as authority only in regard to the right of succession to real property within that State."

But in Munro v. Merchant, supra, the marginal note is as follows: "A child born in this State of alien parents during its mother's temporary sojourn here, is a native-born citizen." And the court says: "It is further contended on the part of the defendant, that the plaintiff himself is an alien. He was born in Bal

ston Spa, in this State while his father was a resident of Canada, and returned to his father's domicile with his mother within a year after his birth. His mother was temporarily there without any actual change of residence, either on her part or that of his father. It is argued that at common law a natural born subject was one whose birth was within the allegiance of the king. The cases of children of ambassadors born abroad, and of children born in English seas, were considered exceptions. Chancellor Kent, in his Commentaries, defines a native-born citizen to be a person born within, and an alien one born out of the jurisdiction of the United States. 2 Kent Com. 37, 50.

In Lynch v. Clarke, 1 Sandf. Ch. 583, the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native-born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native-born citizen, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question. But admitting the plaintiff to be an alien, the cases already cited show that the term 'heirs or assigns,' in the ninth article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen." The court did not find it necessary to deny the doctrine of Lynch v. Clarke, but rested its decision upon other grounds.

In Ludlam v. Ludlam, supra, among other facts found is the following: R. L. Ludlam, the father of Maximo M. Ludlam, in 1822, voluntarily expatriated himself from the United States, where he was a natural-born citizen, for the purpose of becoming a permanent resident of Lima, in Peru, South America, and of establishing his permanent domicile there, and a few months thereafter did become such permanent resident and establish his permanent domicile there, and M. M. Ludlam was there born of a native of Chili. The court says: "If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be in that country regarded as a citizen of Peru. 1 Sandf. Ch. 583. This would involve him, according to the rules which I find established, in a double allegiance to this country and Peru; and it cannot be denied that inconveniences might result from such a condition. The case however is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions; their immunity in this respect resulting mainly, it may be presumed, from the liberality of civilized governments toward persons thus situated. * * * Practically the person so situated secures all the rights of citizenship, or at least the right of inheritance, in two countries, and discharges the duties of allegiance in only one."

In Morse on Citizenship, p. 241, § 203, is the following citation from an opinion of the secretary of State to the president: "The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to the duties with regard to this country which do not attach to the father. * ** Such children are born to a double character; the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of its birth, may acquire rights and owe another fealty besides that which attaches to the father."

In Rawle's View of the Constitution of the United States, p. 86, it is said: "Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born cit

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izen within the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."

Again, neither in Ludlam v. Ludlam, nor in Munro v. Merchant, supra, did the court undertake to decide the political question as to the extent to which the United States would be compelled to go in defense of persons born here of aliens; in each case it was defining private pecuniary rights under State laws. Such is the nature of the question in the case at bar. Practically it is, under our statutes, from what town is LaFayette Parrott entitled to receive aid if in want?

Moreover, if as is suggested, he was born to the advantages of a double allegiance, upon attaining his majority he exercised the right which was his of electing the government to which he would give allegiance, and that election related back to the time of his birth. Upon these authorities LaFayette had by birth what his father did not then have, citizenship of the United States and of the State of Massachusetts. This privilege neither needed nor had any strengthening by reflection from the subsequent naturalization of his father; he held it to the fullest extent in his own, and that the highest right.

In Town of Bridgeport v. Town of Trumbull, 37 Conn. 184, the court, speaking of a minor born in New York of aliens, brought by her parents into this State, and here residing during six years, said of her that she was not an inhabitant of this State within the meaning of a cited statute. The obvious meaning of the court is that she was not a settled inhabitant. When this case was previously before this court (52 Conn. 158), the finding was that he came directly from Massachusetts to Norfolk. The court said: "LaFayette was born in Massachusetts in June, 1836, and resided there with his father until 1847, when both removed to Norfolk in this State, where they resided until 1868. These facts, we think, make LaFayette a citizen of the United States and of the State of Massachusetts by birth. 2 Kent Com. 1, note a. When he went to Norfolk he had the same right as any other inhabitant of another State. Under the decisions in Town of Bridgeport v. Town of Trumbull, supra, and Town of Morris v. Town of Plymouth, 34 Conn. 270, this right was suspended while he was a member of his father's family during his minority. But the record shows that he became of age in June, 1857, and resided thereafter in Norfolk until 1868; but the further facts that are essential to bring him under the provisions referred to in the second class are not found "-meaning thereby that possibly upon another trial it might be proven, that during his residence in Norfolk after attaining a majority, he became a settled inhabitant, either by admission or by the ownership of real estate as prescribed by statute, in his capacity as a resident citizen coming from Massachusetts directly to Norfolk. But upon the new trial the fact came into the case that he came from Massachusetts as a citizen there, and became a resident citizen or inhabitant of this State, first in Colebrook, then in Winchester, going thence to Norfolk. Of course if the acquisition of a settlement in Norfolk may be made to rest upon his residence while a minor in Massachusetts it may be made to rest upon his residence while a minor in Connecticut.

parted to him. It is true he did not remove from one residence to another in the right and power of an adult to determine for himself where he would live, but because of the power to the father to command him. But the subjection of the son to the father did not destroy, or even affect, the citizenship of the former; all the privileges and all the duties pertaining to that right were his; he might be called from under the father's authority to serve and defend the United States or the State of his residence. And wherever he resided, although there by the command of his father, he was an "inhabitant" in the fullest sense and by all definitions. The statute does not require him to come into Norfolk an adult inhabitant; nor does it require that the six years of self-supporting and tax paying residence shall begin simultaneously with his coming from another town. And although while a minor in his father's family he could not acquire a settled inhabitancy, because in the matter of receiving aid from the public, the father is the representative of aud recipient of the minor, yet after he had attained majority and had subsequently completed six years of self-supporting and tax paying residence, it was his right to take advantage of any fact as to his status at birth, and as to subsequent inhabitancy, in establishing his legal settlement in Norfolk. His minority is not a blank.

The cases of Huntington v. Oxford, 4 Day, 196; Salsbury v. Fairfield, 1 Root, 132; and Sterling v. Plainfield, 4 Conn. 115, decide nothing more than that a minor cannot gain a settlement for pauper purposes by commorancy; they do not decide that he may not be an inhabitant.

In Scott v. Sandford, 19 How. 422, it is said: "Undoubtedly a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualifications cannot vote or hold the office, yet they are citizens."

Therefore LaFayette Parrott, as an inhabitant of Winchester removing to Norfolk, became and continues to be a settled inhabitant of the last-named town. This conclusion renders it unnecessary to discuss other questions presented.

There is error in the judgment of the court below.

WILLS-CONSTRUCTION - CHILDREN'S REPRESENTATIVES.

VERMONT SUPREME COURT, AUG. 28, 1886.

In 1857 he attained majority in Norfolk and then aud there began and completed a longer period than

six years, self-supporting and tax paying. In deter- EX

mining the question whether he thereby acquired a
pauper settlement in Norfolk, we are to ask from
whence did he come to that town? He came from
another town in this State. Of course during minor-
ity he was obliged to serve and obey his father, and
under pauper laws, the residence of the father was im-

BRONSON V. ESTATE OF PHELPS.

A. bequeathed an annuity of $200 to his sister, and made it a charge upon certain real estate. He further directed that at her death $3,300 should be paid to her children, and their representatives, if deceased, except W. At the date of the will eight of the sister's children were living and two had deceased, each leaving issue, one of which was W., who was made an exception in the will.

Held, that the representative of the two children who had died before the date of the will, excepting W., were included in the bequest.

XCEPTIONS from County Court, Chittenden county.

The was an appeal from a decree of the Probate Court making distribution of an estate as prayed for in the petition. Heard by the County Court, Chittenden county, September term, 1885, Taft, J., presiding, upon an agreed statement of facts. Judgment that the

decree of the Probate Court be affirmed. The facts daughters of said Clarissa, who died before the date are set forth in the opinion.

C. W. Withers, for petitioner.

of said will, are not entitled to share in said bequest, and claim that said bequest is a gift to a class living at the date of the will, and the representatives of such of the class as are dead at the time of payment, and that the representatives take, not by way of original substantive gift, but by way of substitution, and that none are capable of taking by way of substitution except such as represent members of the class who could have taken as original legatees at the date of the will. But the petitioner does not found her claim to share in the bequest on a right to take her portion of a share which was given to her mother, and which her mother was capable of taking at the date of the will, but on the ground that she is entitled, as an original primary legatee, to her portion of such a share of the bequest as her mother would have taken if she had been capable of taking at the time of the payment or enjoyment of the bequest.

It is not questioned that the words "their representatives" are used for and mean "their issue," and have reference to certain issue of Clarissa's children, so far as they take under the clause of the will. And the question is, whether under the words, "at the decease of said Clarissa I give to the children of said Clarissa, and their representatives, if deceased, excepting George Wilber," the issue of the children of Clarissa who died before the making of the will are included as objects of the gift. The answer to this question depends upon the construction given to the language of the bequest.

A. P. Hodges, for defendants.

WALKER, J. Timothy P. Phelps, late of Milton, died in 1864, leaving a will dated October 8, 1863, which was duly probated. The questions presented for decision arise under the following clause of said will, to-wit:

"I give to my sister Clarissa Hodges the sum of two hundred dollars annually, during her life, for her sole and separate use, to be paid to her by the said George Whittemore, or the legal owner or occupant of that part of my home farm situate in said Milton, and I make the payment of the said last-mentioned annuity a charge upon the said part of my home farm situate in said Milton; and at the decease of the said Clarissa I give to the children of the said Clarissa, and their representatives, if deceased, excepting George Wilber, the sum of three thousand three hundred dollars, to be paid to the said children in the same manner as said last-mentioned annuity, and in a like manner of said annuity, to constitute a charge upon that part of said home farm situate in said Milton."

Eight of said Clarissa Hodges' children were living at the date of said testator's will. Two of her daughters had died before that date, leaving issue, namely: Caroline Hodges Romaine, who died seventeen years before said will was made, leaving one child named Clarissa Romaine; and Sophia Hodges Wilber, who died fourteen years before said will was made, leaving three children, to-wit, Wallace Wilber, George Wilber and Jane Wilber, the petitioner in this case, all of whom are mentioned in said will. Clarissa Hodges died in March, 1883, leaving the eight children who were living at date of the will, or their representatives, and the representatives of the two daughters who were deceased at the date of said will. In 1883 the Probate Court, on due application, decreed that if the said Clarissa deceased leaving lawful children, or their representatives, the legal owner or occupant of that part of the home farm of said Phelps situated in Miltou shall pay to said children, or their representatives the sum of $3,300, and that the payment thereof shall be a charge on that part of said farm situated in Milton. Which decree, on appeal and exceptions, was in 1884 affirmed by the Supreme Court. The legal owner or occupant of said farm failed to pay said sum of $3,300, and surrendered said farm. to the children and heirs of said Clarissa under and by virtue of said will' and decree.

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In 1885 Jane Wilber, in the name of Jane Wilber Bronson, she having married, brought her petition to the Probate Court, setting forth therein, that as one of the representatives of Sophia Hodges Wilber, a daughter of said Clarissa Hodges, she is entitled to onetwentieth part of said farm, and praying the court to make such decree as will secure to her her right in said premises. Said Probate Court adjudged and decreed that said Jane Wilber Bronson was entitled to share with the children of said Clarissa Hodges, and the other representatives of her deceased children, except George Wilber, in that portion of said Phelps' estate, which he willed to them under the foregoing clause of his will. The defendants appealed 'from said order of Probate Court to the County Court, which court affirmed the order and decree of the Probate Court, and the question is now before this court on exceptions to the judgment of the County Court.

The defendants, the eight children of said Clarissa, who were living at the date of said Phelps' will, and their representatives, contend that the representatives of Sophia Wilber and Caroline Romaine, the two

The cardinal rule in the construction of wills is the intent of the testator; and that intent must prevail if it can clearly be perceived from the will, and is not contrary to some positive rule of law. It is apparent from the other provisions of the will that there was no intention on the part of the testator to exclude the issue of the children of Clarissa who were deceased when the will was made from sharing in his estate, against George Wilber, one of the brothers of the petitioner, to whom he gives no specific pecuniary or resi duary legacy, and whom he expressly excludes from sharing in the bequest in question.

In another clause of the will he gives pecuniary legacies to Wallace Wilber and Clarissa Romaine, and also, in another clause, he gives an annuity to Jane Wilber, the petitioner, who was a member of his family after the death of her mother, and $1,600 to her heirs at her death if she shall have children born in lawful wedlock. The $3,300 given under the clause in question is to be paid to and divided among the class taking at a time subsequent to the death of the testator, to wit, at the decease of Clarissa.

It is the general rule of construction that words of survivorship in bequestf of personal estate are to be referred to the period of division and enjoyment, unless there is a special intent to the contrary, and legacies given to a class of persons vest in those who answer the description and are capable of taking at the time of distribution, or when the legacy takes effect. They who thus answer the description are deemed to be the objects of the gift.

The testator knew of the death of Sophia Wilber and Clarissa Romaine at the time he made his will, and that they had left children surviving them; that it is very evident that if he intended to exclude their issue from sharing in the bequest he would not have used the general language adopted by nim in making it. If he had intended to limit the gift to the children of Clarissa living at the date of his will and their particular representatives, he would have used words apt to such limitation, and made the bequest to the children living at the time, and to the representatives of such of the then living children as shall decease before the time of enjoyment; thereby making it an

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original gift to the living children, and a substantial one to their issue.

The general words of the bequest must receive their ordinary interpretation, and be used in their ordinary sense and meaning, unless some other is clearly indicated. As there are no expressions in this or any other clause of the will showing any intent of the testator to use the words conferring the bequest in a narrow or restriced sense, they cannot be construed as a limitation to the living children, and the issue of such. Without any studied effort to restrict its meaning, the language used indicates that the testator contemplated all the children, and both future and past deaths of such children, and an ascertainment, at a future period of distribution, of those who might then be dead, and a consequent provision for their issue, if any; and that necessarily would include, among the objects of the gift, the issue of such of her children as were dead at the date of the will. The words of the clause referred to, all taken together, show that the testator had in mind Clarissa's deceased children and their representatives, and intended that her said representatives, excepting George Wilber, should share in the bequest as objects of the class to whom the gift was primarily made. If not so, it may well be asked, why did he expressly exclude George Wilber alone? The exception of one of said issue has irresistible weight and force in reaching the conclusion that the testator intended the bequest as a gift to all the children of Clarissa living at her decease, and to the issue of such of her children as had then deceased, excepting George Wilber, as a class, intending the issue of each deceased child to take such share as their parents would have taken if capable of taking. The words "their representatives, if deceased," are connected by the copulative conjunction "and" with children, showing that the representatives and children are embraced as a class to whom the gift was primarily made, and that the gift was clearly intended to include the representatives of all the deceased children at the time of enjoyment, without regard to whether they died before or after the date of the will. The word "their" refers to "all" of Clarissa's children, and not to those only who were living at the date of the will.

The words of the clause following the gift, "to be paid to said children," etc., are not to be construed as living the bequest to living children of Clarissa, but as indicating that the bequest is to be divided among the legatees according to the number of children, and families of deceased children, who are entitled to take; so that the issue of any deceased child would take among them the share only which their parent would have been entitled to if living at the time of distribution.

We think the bequest clearly falls within the rule of a gift to such of a class as shall be living at a stated time, or their issue, and is therefore to be construed as introducing the issue of such of the class as at the time stated for the enjoyment shall be dead; and this by way of addition to the class, and not by way of substitution, and thus admitting the issue of persons dead at the date of the will, excepting those expressly excluded. 3 Jarm. Wills, 632, 636; Adams v. Adams, 14 Fq. Cas. 246; Wheeler v. Allen, 54 Me. 232. And we are of the opinion that the bequest is an original substantive gift to the children of Clarissa living at the time of her decease, and the issue of such of them as should be then dead, leaving issue, except the one expressly excluded, and that the issue of Sophia Wilber and Caroline Romaine, excepting George Wilber, are entitled to share in the bequest as primary legatees, taking the share their mothers would have taken if living.

The leading cases in England and America support this conclusion.

In Tytherleigh v. Harbin, 6 Sim. 329, where a testator devised an estate to trustees in trust for R. T. for life, and at his decease to convey the same "unto or among all and every of such one or more of the child or children of the said R. T. who shall be living at the time of his decease, and the issue of such of them as shall be then dead leaving issue," the question was whether the issue of a child of R. T., who was dead at the date of the will, was included in the devise, and Sir L. Shadwell, V. C., decided that the gift included these objects, and that the devise was an original substantive gift to the children of R. T. living at the time of his decease, and the issue of such of them as should be then dead leaving issue.

In Clay v. Pennington, 7 Sim. 370, where a testator, in a certain event, bequeathed a residuary fund unto the children of his brother B., and their lawful issue, some of the children of B. were dead at the date of the will, but it was held that the issue of such children were entitled to participate with the other children and their issue; it being considered that the gift included all the descendants of the brother who were living at the period in question.

In Rust v. Baker, 8 Sim. 443, a testator gave a fraction of his residuary personal estate to A., B. and C., and the children of D., and the issue of such of his children as should have departed this life. Long before the date of the will, D. had had a child who went abroad, and had not been heard of for twenty years. It was held he must be presumed to have been dead at the date of the will, and that his children were entitled under the bequest.

In Bebb v. Beckwith, 2 Beav. 308, under a similar bequest, it was held that the issue of a child at the date of a will was entitled to share in the same.

In Teed v. Morton, 60 N. Y. 502, the proceeds of certain real estate at the death of the testator's son William, without issue, were to be paid to and divided equally among the surviving children of the testator, and the issue of such of them as may have died leav ing issue, such issue to take the share their parents would have taken if living. At the time of the execution of the will, and at the time of his death, the testator had five children living, and the issue of five children who had previously died were also living. William died without issue after the death of the testator. Four other children of the testator, who survived him, died leaving issue, before the death of William. And the question was, whether under the words "my surviving children, and the issue of such of them as may have died leaving issue," the issue of the children of the testator who died before the making of the will are included. The court held that the issue of the testator's deceased children living at the death of his son William took as primary legatees under the clause in question, without distinction as between those whose parents died before and those who died after the making of the will, and that the word "them" referred to all, his children, and not to the surviving children only.

Was there any doubt as to whether this bequest was an original and independent gift to the children of Clarissa living at her decease, and the issue of any children who had deceased before that time, whether before or after the date of the will? And if the petitioner's claim was apparently founded upon mere substitution, her right to share in the bequest as the representative of her deceased mother is substantiated by numerous authorities. Observing the rule that in the construction of wills the intentions of the testator must prevail if they are conformable to the principles of law, and that the language used should receive its ordinary

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