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the administrator subsequeptly appointed in that ju- in several towns, but acquiring no settlement in them, risdiction, bis opinion has not been acquiesced in.

and finally settling in N., where he resided till after L.
In Vroom v. Van Horne, 10 Paige, 549, 556-7: Klein became of age. After reaching his majority L. resided
v. French, the courts incline to the view that payment more than six years in N., self-supporting and paying all
would not discharge the debt if there were creditors assessed taxes. Held, that L. was a citizen by birth, and
of the decedent in the domicile of the debtor where that in coming from another town in the State to N. he
the payment was made. · But in Parsons v. Lyman, 20 came as an "inhabitant."
N. Y. 103, Judge Denio gave utterance to a dictum
that the presence of creditors in the debtor's State | ACTION to recover for supplies furnished to a pau-

per. The opinion states the case.
would make no difference. In this case the payment
was made in New York to a Connecticut administra- L. B. Dean and W. B. Smith, for appellant.
tor of a debt owing to the decedent by a resident of

A. H. Fenn, for appellees.
New York. The court held that the same administra-
tor, being subsequertly appointed in the State of New PARDEE, J. La Fayette Parrott was born in 1836 in
York, could not be called upon in that State to ac- Massachusetts, his father being an alien resident there.
count again for the debt, he having already accounted Some five years thereafter, the father removed
for it in Connecticut. The case however does not de- with his family, including La Fayette, into this
cide whether the payment would have been good State, residing first for about two years in Colebrook,
and the administrator either required to account for then for about the same length of time in Winchester,
it again in New York or to sue the debtor for the going thence to Norfolk, where he resided until 1868.
debt, had there been creditors in that State to be pro- In 1855, in Norfolk, he was naturalized, Lafayette be-
tected. Judge Denio says, at page 113: “The fact that ing then a minor. After attaining majority the latter
those assets were at one time within one jurisdiction, resided more than six years in Norfolk, presump-
or had existed in the shape of a debt owing by a resi- | tively self-supportiug and paying all assessed taxes.
dent of this State, is of no legal consequence. In stat- In 1879 he came to want in the town of New Hart-
ing this position, I of course exclude any consideration ford, but had not then acquired a settlement there
of cases where a lien by way of attachment or other- under the pauper laws. The latter town expended
wise had been fasteued upon the property, or where money for his support, and claiming that the town of
any claims of a domestic executor or administrator Canaan is his place of settlement, brought this suit
had attached to it before it had passed into the hands for re-payment.
of the party claiming under the foreign title. I might In Lynch v. Clarke, 1 Sandf. Ch. 584, it is said as fol-
also exclude the case of beneficiaries of a trust residing lows: “Upon principle therefore I can entertain
in this State as legatees or creditors of a testator whose no doubt but that by the law of the United States,
executors, appointed in another State, had come here every person born within the dominion and allegiance
and received by voluntary delivery or payment the of the United States, whatever was the situation of
personal assets of the estate, for in the case before us his parents, is a natural-born citizen. It is surprising
the respondent received in Connecticut and invested that there has been no judicial decision upon this
the moneys for which he had been adjudged liable to question. None was found by the counsel who argued
account to the surrogate of New York, while every per- this cause, and so far as I have been able to ascertain,
son interested in the estate was a resident of the State of it never has been expressly decided in any of the
Connecticut. But if that were otherwise, I conceive courts of the respective States or of the United States.
that it would make no difference." See also Trecothick This circumstance itself, in regard to a point which
V. Austin, 4 Mason, 33.

must have occurred so often in the administration of Where a debt is evidenced by an instrument as a justice, furnishes a strong inference that there has bond or note, the actual situs of the instrument is the never been any doubt but that the common-law rule situs of the debt, irrespective of the domicile of the was the law of the land. This inference is confirmed debtor. Goodlet v. Anderson, 7 Lea (Tenn.), 286; St. and the position made morally certain by such legisJohn y. Hodges, 9 Baxt. (Tenn.) 334; Beers v. Shannon, lative, judicial and legal expositions as bear upon the 73 N. Y. 292; Byron v. Byron, Cro. Eliz. 472; Doolittle question. Before referring to these I am bound to v. Lewis, 7 Johus. Ch. 44; Whitehurst v. Whitehurst, 6 say that the general understanding of the legal proVa. L. J. 54; Speed v. Kelly, 59 Miss. 47.

fession, and the universal impression of the publio In Doolittle v. Lewis the chancellor held that the mind, so far as I have had the opportunity of knowing foreign executor or administrator of a non-resident it, is that birth in this country does of itself constimortgagee might in his own name enforce the power tute citizenship. Thus when at an election the incontained in the mortgage of sale in case of default, quiry is made whether a person offering to vote is a without taking out letters in the State where the citizen or an alien, if he answers that he is a native of mortgaged property lay, the bond and mortgage being this country, it is received as conclusive that he is a in the possession of the decedent at the time of his citizen. No one inquires further. No one asks death in the State in which the personal representative whether his parents were citizens or were foreigners. was appointed, and being in the possession of such rep- It is enough that he was born here, whatever was the resentative in such State all the time subsequent to status of his parents. I know that common consent his death.

is sometimes only a common error, and that public

GUY C. H. CORLISS. opinion is not any authority on a point of law. But POUGHKEEPSIE, N. Y.

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 CITIZENSHIP" INHABITANT.

in this instance is a part of the historical evidence of

the state and progress of the law on the subject, inCONNECTICUT SUPREME COURT OF ERRORS. dicates the strength and deptb of the common-law MAY 3, 1886.

principle, and confirms the position that the adoption

of the Federal Constitution wrought no change in that TOWN OF NEW HARTFORD V. TOWN OF CANAAN. principle." L. was born in 1836 in Massachusetts, his father being an in McKay v. Campbell, 2 Sawy. 118, it is said: “By

alien resident there. When L. was five years old his the common law a child born within the allegiance of father removed with his family to Connecticut, residing the United States is born a subject thereof without

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

Iu 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 Sandi. Ch. 584, 639.” In this last case the doctrine relative to the distinction betweev alieus 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 upion of the States was consummated; and the general rale above stated is consequently the governing principle or common law of the United States, and pot 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, and 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 cbild 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 boru 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 Sandt. Ch. 583, the question was precisely as hero, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native-boru 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, amoug other facts found is the following: R. L. Ludlam, the father of Maximo M. Ludlaın, 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 wbich I find established, in a double allegiance to this couistry 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 site uated 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 Hawle'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 batural-born cit

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izen within the sense of the Constitution, and entitled | parted to him. It is true he did not remove from one to all the rights and privileges appertaining to that residence to another in the right and power of an adult capacity.”

to determine for himself where he would live, but beAgain, neither in Ludlam v. Ludlam, nor in Munro cause of the power to the father to command him. v. Merchant, supra, did the court undertake to decide But the subjection of the son to the father did not dethe political question as to the extent to wbich the stroy, or even affect, the citizenship of the former; all United States would be compelled to go in defense of the privileges and all the duties pertaining to that persons born here of aliens; in each case it was defin- right were his; he might be called from under the ing private pecuniary rights under State laws. Such father's authority to serve and defend the United is the nature of the question in the case at bar. Prac- States or the State of his residence. And wherever he tically it is, under our statutes, from what town resided, although there by the command of his father, he is La Fayette Parrott entitled to receive aid if in was an “inbabitant”in the fullest sense and by all want?

definitions. The statute does not require him to come Moreover, if as is suggested, he was born to the ad- | into Norfolk an adult iubabitant; nor does it require vantages of a double allegiance, upon attaining his ma- that the six years of self-supporting and tax paying jority he exercised the right which was his of electing residence shall begin simultaneously with his coming the government to which he would give allegiance, from another town. And althongh while a minor in and tbat election related back to the time of his birth. his father's family he could not acquire a settled inUpon these authorities La Fayette had by birth what habitancy, because in the matter of receiving aid his father did not then have, citizenship of the United from the public, the father is the representative of and States and of the State of Massachusetts. This priv- recipient of the minor, yet after he had attained mailege neither needed nor had any strengthening by re- jority and had subsequently completed six years of flection from the subsequent paturalization of his self-supporting and tax paying residence, it was his father; be held it to the fullest extent in his own, and right to take advantage of any fact as to his status at that the highest right.

birth, and as to subsequent inbabitancy, iu establish-
In Town of Bridgeport v. Town of Trumbull, 37 Conn. ing bis legal settlement in Norfolk. His minority is
184, the court, speaking of a minor born in New York not a blank.
of aliens, brought by her parents into this State, and The cases of Huntington v. Oxford, 4 Day, 196; Sals-
here residing during six years, said of her that she was bury v. Fairfield, 1 Root, 132; and Sterling v. Plain-
not an inbabitayt of this State within the meaning of field, 4 Conn. 115, decide nothing more tban that a mi-
a cited statute. The obvious meaning of the court is nor cannot gain a settlement for pauper purposes by
that she was not a settled inhabitant. When this case commorancy; they do not decide that he may uot be
was previously before this court (52 Conn. 158), the an inhabitant.
finding was that he came directly from Massachusetts In Scott v. Sandford, 19 How. 422, it is said: “Un-
to Norfolk. The court said: “La Fayette was born doubtedly a person may be a citizen, that is, a mem-
in Massachusetts in June, 1836, and resided there with ber of the community who form the sovereignty,
his father until 1847, when both removed to Norfolk although he exercises no share of the political power,
in this State, where they resided until 1868. These and is incapacitated from holding particular offices.
facts, we think, make La Fayette a citizen of the Women and minors, who form a part of the political
United States and of the State of Massachusetts by family, cannot vote; and when a property qualifica-
birth. 2 Kent Com. 1, note a. When he went to Nortion is required to vote or bold a' particular office,
folk he had the same right as any other inbabitant of those who have not the necessary qualifications cau-
another State. Under the decisions in Town of Bridge- | not vote or hold the office, yet they are citizens."
port v. T'oun of Trumbull, supra, and Toun of Morris Therefore LaFayette Parrott, as an inhabitant of
v. Toun of Plymouth, 34 Conn. 270, this right was sus- Winchester removing to Norfolk, became and contin-
pended while be was a member of his father's family ues to be a settled inhabitant of the last-named towi.
during his minority. But the record shows that be This conclusion renders it uunecessary to discuss other
becanie of age in June, 1857, and resided thereafter in questions presented.
Norfolk until 1868; but the further facts that are es- There is error in the judgment of the court below.
sential to bring bim under the provisions referred to
in the second class are not found "-meaning thereby
that possibly upon another trial it might be proven, WILLS-CONSTRUCTION- CHILDREN'S REPRE-
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 pre- VERMONT SUPREME COURT, AUG. 28, 1886.
scribed 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

A. bequeathed an annuity of $200 to his sister, and made it a came from Massachusetts as a citizen there, and be

charge upon certain real estate. He further directed that came a resident citizen or inhabitant of this state,

at her death $3,300 should be paid to her children, and first in Colebrook, then in Winchester, going thence to Norfolk. Of course if the acquisition of a settlement

their representatives, if deceased, except W. At the date in Norfolk may be made to rest upon his residence

of the will eight of the sister's children were living and

two had deceased, each leaving issue, one of which was while a minor in Massachusetts it may be made to

W., who was made an exception in the will.
rest upon his residence while a minor in Comect-

Held, that the representative of the two children who had

died before the date of the will, excepting W., were In 1857 ho attained majority in Norfolk and then

included in the bequest. and there began and completed a longer period than six years, self-supporting and tax paying. In deter- XCEPTIONS from County Court, Chittenden mining the question whether he thereby acquired a pauper settlement in Norfolk, we are to ask from The was an appeal from a decree of the Probate whence did he come to that town? He came from

Court making distribution of an estate as prayed for another town in this State. Of course during minor- in the petition. Heard by the County Court, Chittenity he was obliged to serve and obey his father, and den county, September term, 1885, Taft, J., presiding, under pauper laws, the residence of the father was im- upon an agreed statement of facts. Judgment that the

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

of said will, are not entitled to share in said beC. W. Withers, for petitioner.

quest, and claim that said bequest is a gift to a class

living at the date of the will, and the representatives A. P. Hodges, for defendants.

of such of the class as are dead at the time of pay

ment, and that the representatives take, not by way of WALKER, J. Timothy P. Phelps, late of Milton, original substantive gift, but by way of substitution, died in 1864, leaving a will dated October 8, 1863, which and that none are capable of taking by way of substiwas duly probated. The questions presented for de- tution except such as represent members of the class cision arise under the following clause of said will, who could have taken as original legatees at the date to-wit:

of the will. But the petitioner does uot found her “I give to my sister Clarissa Hodges the sum of two claim to share in the bequest on e. right to take ber hundred dollars annually, during her life, for her sole portion of a share which was given to her mother, and and separato use, to be paid to her by the said George | which her mother was capable of taking at the date Whittemore, or the legal owner or occupant of that of the will, but on the ground that sbe is entitled, as part of my home farm situate iu said Milton, and I

an original primary legatee, to her portion of such a make the payment of the said last-mentioned annuity share of the bequest as her mother would have taken a charge upon the said part of my home farm situate if she had been capable of taking at the time of the in said Milton; and at the decease of the said Clarissa payment or enjoyment of the bequest. I give to the children of the said Clarissa, and their

It is not questioned that the words “ their represen. representatives, if deceased, excepting George Wilber, tatives” are used for and mean "their issue,” and the sum of three thousand three hundred dollars, to have reference to certain issue of Clarissa's children, be paid to the said children in the same manner as said so far as they take under the clause of the will. And last-mentioned annuity, and in a like manner of said the question is, whether under the words, “at the deannuity, to constitute a charge upon that part of said

cease of said Clarissa I give to the children of said home farm situate in said Milton."

Clarissa, and their representatives, if deceased, exEight of said Clarissa Hodges' children were living cepting George Wilber," the issue of the children of at the date of said testator's will. Two of her daugh-Clarissa who died before the making of the will are ters had died before that date, leaving issue, namely: included as objects of the gift. The answer to this Caroline Hodges Romaine, who died seventeen years questiou depends upon the construction given to the before said will was made, leaving one child named language of the bequest. Clarissa Romaine; and Sophia Hodges Wilber, who The cardinal rule in the construction of wills is the died fourteen years before said will was made, leaving intent of the testator; and that intent must prevailif three obildren, to-wit, Wallace Wilber, George Wilber it can clearly be perceived from the will, and is not and Jane Wilber, the petitioner in this case, all of contrary to some positive rule of law. It is apparent whom are mentioned in said will. Clarissa Hodges from the other provisions of the will that there was died in March, 1883, leaving the eight children who no intention on the part of the testator to exclude the were living at date of the will, or their represen- issue of the children of Clarissa who were deceased tatives, and the representatives of the two daughters when the will was made from sharing in his estate, who were deceased at the date of said will. In 1883 the against George Wilber, one of the brothers of the peProbate Court, ou due application, decreed that if the titioner, to whom he gives no specific pecuniary or resi. said Clarissa deceased leaving lawful children, or their duary legacy, and whom he expressly excludes from representatives, the legal owner or occupant of that sharing in the bequest in question. part of the home farm of said Phelps situated in Mil- In another clause of the will he gives pecuniary legatou shall pay to said children, or their representatives cies to Wallace Wilber and Clarissa Romaine, and the sum of $3,300, and that the payment thereof shall also, in another clause, he gives an annuity to Jane be a charge on that part of said farm situated in Milton. Wilber, the petitioner, who was a member of his famWhich decree, on appeal and exceptions, was in 1884 ily after the death of her mother, and $1,600 to her affirmed by the Supreme Court. The legal owner or heirs at her death if she shall have children born in occupant of said farm failed to pay said sum of $3,300, lawful wedlock. The $3,300 given under the clause in and surrendered said farr.. to the children and heirs question is to be paid to and divided among the class of said Clarissa under and by virtue of said will' and taking at a time subsequent to the death of the testadecree.

tor, to-wit, at the decease of Clarissa. In 1885 Jane Wilber, in the name of Jane Wilber It is the general rule of construction that words of Bronson, she having married, brought ber petition to survivorship in bequestf of personal estate are to be the Probate Court, setting forth therein, that as one referred to the period of division and enjoyment, unof the represeutatives of Sophia Hodges Wilber, a less there is a special intent to the contrary, and legadaughter of said Clarissa Hodges,she is entitled to one- cies given to a class of persons vest in those who answer twentieth part of said farm, aud praying the court to the description and are capable of taking at the time of make such decree as will secure to her her right in distribution, or when the legacy takes offect. They said premises. Said Probate Court adjudged and de- who thus answer the description are deemed to be the creed that said Jane Wilber Bronson was entitled to objects of the gift. share with the children of said Clarissa Hodges, and The testator kuew of the death of Sophia Wilber tbe other representatives of her deceased children, and Clarissa Romaine at the time he made his will, except George Wilber, iu that portion of said Phelps' and that they had left children surviving them; that estate, which he willed to them under the foregoing it is very evident that if he intended to exclude their clause of his will. The defendants appealed from said issue from sharing in the bequest he would not have order of Probate Court to the County Court, which used the general language adopted by nim in making court affirmej the order and decree of the Probate it. If he had intended to limit the gift to the chilCourt, and the question is now before this court on dren of Clarissa living at the date of his will and their exceptions to the judgment of the County Court.

particular representatives, he would have used words The defendants, the eight children of said Clarissa, apt to such limitation, and made the bequest to the who were living at the date of said Phelps' will, and children living at the time, and to the representatives their representatives, contend that the representa- of such of the then living children as shall decease betives of Sophia Wilber and Caroline Romaine, the two fore the time of enjoyment; thereby making it an

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original gift to the living children, and a substantial The leading cases in England and America support oue to their issue.

this conclusion.
The general words of the bequest must receive their In Tytherleigh v. Harbin,,6 Şim. 329, where a testa-
ordinary interpretation, and be used in their ordi- tor devised an estate to trustees in trust for R. T. for
nary 'sense and meaning, unless some other is life, and at his decease to convey the same “unto or
clearly indicated. As there are expressions among all and every of such one or more of the child
in this or any other clause of the will showing or children of the said R. T. who shall be living at the
any intent of the testator to use the words conferriug | time of his decease, and the issue of such of them as
the bequest in a narrow or restriced sense, they can- shall be then dead leaving issue," the question was
not be construed as a limitation to the living children, whether the issue of a child of R. T., who was dead at
and the issue of such. Without any studied effort to the date of the will, was included in the devise, and
restrict its meaning, the language used indicates that Sir L. Shadwell, V, C., decided that the gift included
the testator contemplated all the children, and both these objects, and that the devise was au original sub-
future and past deaths of such children, and an ascer- stantive gift to the children of R. T. living at the
tainment, at a future period of distribution, of those time of his decease, and the issue of such of them as
who might then be dead, and a consequent provision ) should be then dead leaving issue.
for their issue, if any; and that necessarily would in- In Clay v. Pennington, 7 Sim. 370, where a testator,
olude, among the objects of the gift, the issue of such in a certain event, bequeathed a residuary fund unto
of her children as were dead at the date of the will. the children of his brother B., and their lawful issue,
The words of the clause referred to, all taken together, some of the children of B. were dead at the date of
show that the testator had in mind Clarissa's deceased the will, but it was held that the issue of such children
children and their representatives, and intended that were entitled to participate with the other children
her said representatives, excepting George Wilber, and their issue; it being considered that the gift in-
should share in the bequest as objects of the class to cluded all the descendants of the brother who were
whom the gift was primarily made. If not so, it may living at the period in question.
well be asked, why did he expressly exclude George In Rust v. Baker, 8 Sim. 443, a testator gave a frac-
Wilber alone? The exception of one of said issue bas tion of his residuary persoual estate to A., B. and C.,
irresistible weight and force in reaching the conclu- and the children of D., and the issue of such of his
Bion that the testator intended the bequest as a gift children as should have departed this life. Long
to all the children of Clarissa living at her decease,and before the date oi the will, D. had had a child
to the issue of such of her cbildreu as had then de- who went abroad, and had not been heard of for
ceased, excepting George Wilber, as a class, intending twenty years. It was held he must be presumed to
the issue of each deceased child to take such share as have been dead at the date of the will, and that his
their parents would have taken if capable of taking. children were entitled uuder the bequest.

The words their representatives, if deceased," are In Bebb v. Beckwith, 2 Beav. 308, under a similar be-
connected by the copulative conjunction "and" wi'h quest, it was held that the issue of a child at the date
children, showing that the representatives and chile of a will was entitled to share in the same.
dren are embraced as a class to whom the gift was pri- In Teed v. Morton, 60 N. Y. 502, the proceeds of cer-
marily made, and that the gift was clearly intended tain real estate at the death of the testator's son Wil-
to include the representatives of all the deceased cbil- | liam, without issue, were to be paid to and divided
dren at the time of enjoyment, without regard to equally among the surviving children of the testator,
whether they died before or after the date of the will. and the issue of such of them as may have died lear-
The word “their” refers to "all” of Clarissa's chil- ing issue, such issue to take the share their parents
dren, and not to those only who were living at the would have taken if living. At the time of the execu-
date of the will.

tion of the will, and at the time of his death, the testaThe words of the clause following the gift, "to be tor had five children living, and the issue of five chil. paid to said children," eto., are not to be construed as dren who had previously died were also living. Williving the bequest to living children of Clarissa, but liam died without issue after the death of the testator. as indicating that the bequest is to be divided among Four other children of the testator, who survived the legatees according to the number of children, and him, died leaving issue, before the death of William. families of deceased cbildren, who are entitled to And the question was, whether under the words “my take; so that the issue of any deceased child would surviving children, and the issue of such of them as take among them the share only which their parent may have died leaving issue,” the issue of the chilwould have been entitled to it living at the time of dren of the testator who died before the making of distribution.

the will are included. The court held that the issue We think the bequest clearly falls within the rule of the testator's deceased children living at the death of a gift to such of a class as shall be living at a stated of his son William took as primary legatees under the time, or their issue, and is therefore to be construed clause in question, without distinction as between as introducing the issue of such of the class as at the those whose parents died before and those who died time stated for the enjoyment shall be dead; and this after the making of the will, and that the word by way of addition to the class, and not by way of "them” referred to all his children, and not to the substitution, and thus admitting the issue of persons surviving children only. dead at the date of the will, excepting those expressly Was there any doubt as to whether this bequest was excluded. 3 Jarm. Wills, 032, 636; Adams v. Adams, an original and independent gift to the children of 14 Fq. Cas. 246; ITheeler v. Allen, 54 Me. 232. And Clarissa living at her decease, and the issue of any we are of the opinion that the bequest is an original children who had deceased before that time, whether substantive gift to the children of Clarissa living at before or after the date of the will? And if the peti. the time of her decease, and the issue of such of them tioner's claim was apparently founded upon mere subas should be then dead, leaving issue, except the one stitution, her right to share in the bequest as the repexpressly excluded, and that the issue of Sophia Wil- resentative of her deceased mother is substantiated by ber and Caroline Romajne, excepting George Wilber, numerous authorities. Observing the rule that in the are entitled to share in the bequest as primary lega- construction of wills the intentions of the testator must tees, taking the share their mothers would have taken prevail if they are conformable to the principles of law, if living.

and that the language used should receive its ordinary

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