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, 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 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

C. W. Withers, for petitioner.

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 Milton 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.

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

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 2 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.

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 residuary 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

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 Eq. 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 leaving 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