evidence; by which are meant those which do not arise out of the presumable intention, or the moral and conscientious relations of parties; but out of an artificial system of jurisprudence, the maxims of which can be neither steady nor clear unless pursued to their consequences, and kept uniform in their application. This observation holds especially with respect to the rules which govern the succession to property; to which some equitable canons apply of a merely positive nature, and which are grounded on accident and habit, rather than principle or presumption. Such appears to be the rule which favours the real representative, by applying the personal estate in exoneration of the land, though expressly charged by the testator-a rule derived to us from the ancient policy of our ancestors, which has impressed on the law of landed property, its inveterate preferences in favour of the heir, whom it was anxious to qualify with the means of sustaining the duties of the feudal relation. Though it may be observed that the abolition of the feudal tenures, and the growing interests of commerce, have made the courts very ready to take cases out of a rule, which is considered as not agreeable to the situation of the times; still, however, it is left standing, and though living in dishonour, is of general obligation in courts of equity.

So too, the rules which apply to and modify the titles to real and personal property, (wherein the courts of equity hold a perfect agreement with courts of law), as, for example, such as concern the rights of representation and administration, the quantity of estates expressed by certain legal idioms, the compass and effect of limitations, and the descriptive

of rules of

force of technical expressions (3), are not to be shaken by extrinsic evidence. Thus, that rule of Examples construction which makes void a remainder of per- construcsonal estate, limited upon a prior gift or assignment he opposed of the same to a man and the heirs of his body, and sic evi

tion not to

by extrin

dence.

in constru

ing a be

quest to

(3) That parol evidence cannot be admitted to contradict such legal signification and compass of words, see Kelly . Paulett, Ambl. 605. The sense of words as fixed by legal authority, is not to be altered by external proofs of contrary intention. Thus, for example, the sense and scope of the word Relations, where Of the rule there is a devise to persons by that general name, without any words of more specific designation, have been adjusted to the statute of distributions in courts of equity, and adjudged to comprehend only the nearest of kin, to the extent of the degrees within that statute; and extrinsic evidence will not be let in to shew that a greater or less compass was intended to be given to the word by the testator; vide Whithorne v. Harris, 2 Vez. 527. Roach v. Hammond, Prec. in Chan. 401. Harding v. Glyn, 1 Atk. 468. Green v. Howard, 1 Bro. C. R. 31.

It may be useful as the point has occurred, to collect for the reader the decisions upon it, which are rather curious.

The construction does not render the will inofficious and nugatory, since the wife is excluded, not being within the meaning of the next of kin, but provided for by the statute by the name of wife. The statute of distributions marks the distinction between the next of kin and the widow. And the ordinary legal sense of the next of kin is never held to include the wife. Thus where a man devised his residue to be divided among his next of kin, as if he had died intestate, the words "as if he had died intestate,” were rejected as surplusage, and the next of kin by blood only were held intitled under the will, Gartick v. Lord Camden, Patton v. Jones, 14 Vez. Jun. 372. So the marital right of the husband as administrator by law, is excluded by a limitation to the next of kin of the wife. Anderson v. Dawson, 15 Vez. Jun. 537. Neither is it without effect, though the persons to take under this construction be the same and only such as would take under the statute, for still their shares may be different; as if a testator di

relations.

vests the absolute and ultimate interest in the first grantee or devisee, cannot be opposed by parol evidence. Accordingly in Stratton v. Payne, where the testator devised his personal as well as real estate to A. P. and the heirs of her body, with a limitation

rects a sum to be equally divided among his relations, it must go to them per capita, and not per stirpes, see Thomas v. Hoole, Cas. Temp. Talbot, 251. Philips v. Garth, 3 Bro. C. R. 64. Butler v. Stratton, 3 Bro. C. R. 367. The rule of division is the same also where the bequest is to the next of kin, and there are brothers and brother's children. Though it is to be observed that under a bequest to the next of kin in equal degree if brothers or sisters are living, they will take in exclusion of the child or children of a deceased brother or sister. Wimbles v. Pitcher, 12 Vez. Jun. 433. If a legacy be given to the descendants of A. and B., equally, children and grandchildren take per capita. Northey v. Strange, 1 P. Wms. 342. and Blackler v. Webb, 2 P. Wms. 383. But Jones v. Beale, 2 Vern. 381. which carried a bequest to relations to the children of a cousin-german, living the parent, cannot be law; for the statute does not carry the representation among collaterals beyond the children of brothers and sisters.

At the conclusion of the case of Maitland v. Adair, 3 Vez. Jun. 232. we find a dictum of Lord C. Loughborough, that where a person bequeaths among his relations, those by affinity are not included. If however, the testator mark an intent to carry the word 'relations' beyond the extent of the statute, the court will effectuate the disposition, the statute being only adopted from necessity. But a legacy for a mourning ring to each of the testator's relations, by blood or marriage, was confined by the court to nearest of kin, according to the statute of distributions, and to those who had married persons entitled under it. See Davison v. Mellish, 5 Vez. Jun. 529. It has been held that an exclusive appointment, under a power of appointing to and among such of testator's relations as shall be living at the time of testator's death,

over in default of issue of A. P., the limitation over was adjudged void both by the Court of Chancery and the Lords, who concurred in rejecting parol evidence, (though it was the evidence of the person who drew the will), to shew an intention in the testator opposed to this construction.

Again, it is a rule of construction in courts, both of law and equity, that a devise to a man and his

in such shares as the appointer shall please, is good, 1 T. R. 435. and where a trustee has the power of selecting, he may go beyond the statute of distributions, see Crewys v. Coleman, 9 Vez. Jun. 319. So where a person has a power of distribution among poor relations, he may distribute among all poor relations however remote but wherever the court is called in to distribute, in failure of the person so empowered, it will confine itself to relations within the statute of distributions, Mahon v. Savage, 1 Ca. temp. Lord Redesdale, 111. and see Spring ex dem. Titcher v. Biles, 1 T. R. 435, note (f). If a testator give to his poor relations; one who is poor at the time of the death, but becomes rich before distribution, seems not to be entitled; and if a poor relation so entitled die before distribution, his claim is held not to be transmitted, id. It is to be observed, that as the property in these cases does not pass by virtue of the statute, (the court only taking it as their guide in ascertaining the persons to take), the shares and proportions are to be regulated according to the intent of the testator, Brunsden v. Woodridge, Ambl. 507. Butler v. Shalton, 3 Bro. C. C. 367. and in the late case in the Common Pleas, of Doe ex dem. Thwaites and others v. Over and others, 1 Taunt. 263. the statute was adopted as the guide for ascertaining the relations, to satisfy that term in a will where the subject was real property.

The word family denotes as definite an object of a devise as the word relations, and shall be expounded in like manner, Crewys v. Coleman, 4 Vez. Jun. 319. and observe that under a disposition by will to A.'s and B.'s families, the children are entitled exclusively of their parents, Barnes v. Patch, 11 Vez. Jun. 604.

3

heirs and assigns, or a bequest to one and his executors, administrators and assigns, conveys no original interest to the representatives, but by transmission only, and that consequently the devise or legacy fails if the devisee or legatee die before the testator; and this construction, though it operates to destroy pro tanto the will, cannot be opposed by parol evidence of the testator's contrary intention as to the devisee; which point was decided so long ago as in the case of Brett v. Rigden, in Plowden's Commentaries (4) upon the statutes 32 and 34 H. VIII. of wills, (which, like that of the 29 Car II. require a will to be in writing;) where, the evidence offered of the testator's declaration of his bountiful intention towards the heir of the deceased devisee was rejected, as being in derogation of those statutes of H. 8.; and the same point in respect to a legatee under similar circumstances, may be seen in the case of Maybank v, Brooks".

1 Bro. C. R. 84.

(4) 345, 3d point, and see the case of Doe dem. Turner v. Kett, 4 T. R. 601. A. devised to B. and the heirs of her body, B. died in the life-time of A. A. by a codicil confirmed his will, held that the heir of B. took nothing, although it appeared that A. knezo of the death of B. and of the birth of her son before he made his codicil.