Heir or next of kin not to be ousted on conjecture. title of the pointed out by the testator with equal distinctness. The principle of construction here referred to has found expression in the familiar phrase, that the heir is not to be disinherited unless by express words or necessary implication; which, however, must not be understood to imply that a greater degree of perspicuity or force of language is requisite to defeat the heir to the real estate of a testator, than would suffice to exclude the claim of the next of kin *as the successor to the personalty; for though undoubtedly, on some points, a difference of construction has obtained in regard to these several species of property, that difference is ascribable, rather to the diversity in their respective nature and qualities, than to any disparity of favor towards the claims of the heir and next of kin. In modern times instances of testamentary gifts being rendered void for uncertainty are of less frequent occurrence than formerly; which is owing probably, in part, to the more matured state of the doctrines regulating the construction of wills, which have now assigned a determinate meaning to many words and phrases once considered vague and insensible, and in part to the more practiced skill of the courts in applying these doctrines. Hence the student should be cautioned against yielding implicit confidence to any early cases, (c) in which a gift has been held to be void for uncertainty, the principle whereof has not been recognized in later times. To the validity of every disposition, as well of personal as of real estate, it is requisite that there be a definite subject and object; and uncertainty in either of these particulars is fatal. II. A simple example of a devise rendered void by uncertainty as to the intended subject-matter of disposition,2 is af- Uncertainty forded by the early case of Bowman v. Milbanke, (d) of gift. construed "and," in order to effectuate the intention of the testator, Janney v. Sprigg, ubi supra. See also Beall v. Deale, 7 Gill & J. 216; Butterfield v. Haskins, 33 Me. 398; Bostick v. Lanton, 1 Spears 258; Kindig v. Smith, 39 Ill. 300; Turner v. Whitted, 2 Hawkes 613; Watkins (d) 1 Lev. 130, Sid. 191, T. Raym. 97; but in another early case (Taylor v. Webb, Styles 301, 307, 319; S. C., nom. Marret a. Sly, 2 Sid. 75), the words, "I make my as to subject v. Sears, 3 Gill 492; Raborg v. Hammond, 2 Harr. & G. 42. (c) Pride v. Atwicke, 1 Keb. 692, 754, 773; Price v. Warren, Skinn. 266, 2 Eq. Cas. Ab. 356, pl. 2. 2. Cases of gifts held void for uncertainty in description of the subject mat cousin, Giles Bridges, my sole heir, and my executor," were held to constitute the cousin devisee in fee of the testator's lands: it being observed, that the testa Gift of "all" held too indefinite. where the words, "I give all to my mother, all to my mother," were adjudged insufficient to carry the testator's land to his mother, as it was wholly doubtful and uncertain to what the word "all" referred. ter, are of comparatively rare occurrence in the United States. In Whipple v. Adams, 1 Metc. 444, a desire expressed by the testator that A might provide a chaise, &c., for testator's widow for suitable compensation, if she should desire it, was held to be too uncertain and void. So in Kelly v. Kelly, 25 Penna. St. 460, a bequest "unto my all my just debts and demands all my funeral and burying cost first balance to S. K. brother my mother and J. M. to have their maintenance and burying charges out of it," was held to be void for uncertainty. So, in Armistead v. Armistead, 32 Ga. 597, a gift of "one equal share of whatever property real and personal remains,” to one, and to another "a full share of whatever property remains," and to another a fourth of " a share of the property remaining after each child shall have received the amounts specified" above; and in Weatherhead v. Sewell, 9 Humph. (Tenn.) 272, a devise of "a small tract of land." See also Adams v. Chaplin, 1 Hill (S. C.) Ch. 265; Faribault v. Taylor, 5 Jones Eq. 219. In other cases the uncertainty has not been held sufficient to preclude full identificaof the subject matter, and the gift has been upheld. Thus in Brown v. Brown, 1 Dana 39, "all that is hereby given" has been held to refer to and intend all that is given by the will, and not by the single clause in question; so, in Brown v. Dysinger, 1 Rawle 408, "any earthly property which God hath been pleased to give me," was shown by extrinsic evi dence to include personal property only; in Carter v. Balfour, 19 Ala. 814, a a "remainder" given was held to mean the residue after payment of debts and legacies; in Maeck v. Nason, 21 Vt. 115, a bequest of the right to live in testator's house and enjoy "the same privileges as she now does," was held to be capable of identification by parol evidence; so, too, in Willett v. Carroll, 13 Md. 459; in Rom. Cath. Orph. Asylum v. Emmons, 3 Bradf. 144, where the bequest was of shares in the Mechanics' Bank, “so usually called," in the city of New York, it was held to be a gift of shares in the City Bank, the testator having none in the Merchants' Bank; so, in Smith v. Wyckoff, 3 Sandf. Ch. 77, "my bond for $1500 given to A," was held to indicate a bond for that amount made by the testator to B and given to A as B's agent; so, in Elder v. Ogletree, 36 Ga. 64, a gift of a certain number of "dollars" was held to mean Confederate money; and in Swift v. Lee, 65 Ill. 336, "all my interest in a certain suit pending in DeKalb county in which I am plaintiff and one Lee is defendant," was held to mean a suit in the county of that name in the State of Illinois. The most frequently-occurring uncertainty is in misdescriptions of land devised. The general rule is that such misdescriptions are good and effective if there is enough in them to identify the land intended. See Kenny v. Kenny, 3 Litt. 302, in which case the uncertainty was caused by an omission apparent in "heir" was said to imply two things: first, that he should have the lands; secondly, that he should have them in fee simple. [See also Parker v. Nickson, 1 D., J. & S. 177, "I acknowledge A to be heir."] In Mohun v. Mohun, (e) the will consisted merely of these words: "I leave and bequeath to all my grandchildren, and share and share alike." By a codicil the testator appointed certain persons to be trustees for his grandchildren and nieces: Sir T. Plumer, M. R., held that this was too uncertain to create a devise. It had been contended that the whole difficulty would be removed by the transposition of the context. See, too, Bellows v. Copp, 20 N. H. 492; Winkley v. Kaime, 32 N. H. 268; Tilton v. Tilton, 32 N. H. 257; Bear v. Bear, 13 Penna. St. 529; Coleman v. Eberly, 76 Penna. St. 197; Douglass v. Blackford, 7 Md. 8. Thus in Woods v. Moore, 4 Sandf. 579, a devise of land, where the testator had no interest but that of a mortgagee, was held to pass that. In Best v. Hammond, 55 Penna. St. 409, a tract beginning "at a chestnut oak corner north west near Wolf's field, thence running in a straight line to the mountain," was held to be unequivocally described, and extrinsic evidence was not admitted to show how the testator intended the line to be drawn. In Otis v. Smith, 9 Pick. 293, a devise of three houses in S. street, "with all the appurtenances," was held not to embrace a small tenement adjoining the stable to one of the houses, and rented and occupied with part of the stable by a tenant of the testator; but a devise of a "grist mill and appurtenances" will carry all appurtenances at the time of testator's death, Blaine v. Chambers, 1 Serg. & R. 169. In Piper's Appeal, 73 Penna. St. 112, a devise of "all that certain grist mill in Springfield township, Montgomery county and all the real estate in the county of Montgomery, and lot of land in Philadelphia, now used with the mill property, and all the premises and appurtenances thereto belonging," was held to embrace a lot in Philadelphia, adjoining to and used with the mill property, but not a distinct tract in the same township, one mile distant from the mill and in no (e) 1 Sw. 201. way connected with it. Neither will a devise of a farm or tract of land, "whereon I now live," carry with it a wood lot used with the farm, but distant from it a half mile or more, Allen v. Richards, 5 Pick. 512; Brendlinger v. Brendlinger, 26 Penna. St. 131. Nor will a devise of testator's "house lot" embrace adjoining premises let by the testator to a tenant, Perkins v. Jewett, 11 Allen 9. And "my homestead farm in B. that I now live on, it being the same land conveyed to me by C.," will not embrace adjoining farm property used with the homestead farm, but not so conveyed, Barnard v. Martin, 5 N. H. 536; Woodman v. Lane, 7 N. H. 241. But in Harris v. Harris, 1 Metc. 400, a devise of "all my real estate lying west of Shirley Road except what belongs to the B. place" was held not to embrace property on the west side of the road adjoining the B. place without any fence separation and used with it for many years, which property was held to be embraced in the exception. See, also, Winkley v. Kaimė, 32 N. H. 268, in which case a devise of "36 acres in lot 37 in the division of B. which I purchased of I. P.," was held to carry a lot in No. 97, answering the description otherwise, there being no such lot 37. So, in Coleman v. Eberley, 76 Penna. St. 197, "the part of the McKinstry farm at present occupied by B., containing 8 fields," was held to embrace the whole farm (9 fields) occupied by B. And a devise of a tract of land by name, described as lying in Baltimore county, will pass the whole tract, though a part of it * * * the word "all," which, in its present *situation, was without effect, the word "grandchildren" including all who correspond to that description; but his honor observed, that there was uncertainty both in the subject and object of the bequest, and the court could not transpose words for the purpose of giving a meaning to instruments that had none. transposition of words. To authorize the transposition of words, it is clearly not enough (as Remarks as to hereafter shown) (f) that they are inoperative in their actual position: they must be inconsistent with the context. In the case just stated the word "all," though silent where the testator has placed it, was not repugnant; and it is observable that the transposition of the word "all," even if justifiable, would not, according to Bowman v. Milbanke, have supplied a definite subject of disposition. "After legacies, &c., are paid, I leave to A," resi [But were, after giving several legacies, the will proceeded, “after these legacies and my funeral expenses are paid, I leave to my sister A, without any power or control of her husband; in case of her death to be equally divided amongst her children or grandchildren:" this was held by Sir J. Bacon, V. C., to be a good gift of the residue to A.] (g) due held to pass. lies in another county, Hammond v. Ridgely, 5 Harr. & J. 245. So, too, where the number of acres exceeds the number mentioned in the will, Woods v. Woods, 2 Jones Eq. 420; Dorsey v. Hammond, 1 Harr. & J. 190. But in Bishop v. Morgan, 82 Ill. 351, it is said that a devise of the southeast quarter of section 10, containing forty acres, more or less," is too uncertain, and the court will not read it as the southeast quarter of the northwest quarter, although that was owned by the testator and contained forty acres. So, too, Fitzpatrick v. Fitzpatrick, 36 Iowa 674. But in Missouri, township 60 was held to signify, township 59, under similar circumstances, Riggs v. Myers, 20 Mo. 239. In Jackson v. Sill, 11 Johns. 201, a devise of "the farm which I now occupy" was held to embrace another adjoining farm occupied by a tenant of the testator. And in Drew v. Drew, 28 N. H. 489, "all my homestead farm, being the same farm whereon I now live and the same which was devised to me by my father," was held to embrace a part of the farm which did not come from testator's father. See, too, Hall v. Hall, 27 N. H. 275, where a devise of "all lots south of Bridge street and west of Pleasant street except lot 17," (which lot 17 lay south of Bridge street, but east of Pleasant street,) was held to embrace all lots which were south of Bridge street, whether east or west of Pleasant street, and all lots west of Pleasant street, whether north or south of Bridge street. So, "all my land on the north side of Plain street consisting of about 60 acres," will embrace a sixtyacre tract and also a six-acre meadow lying some distance from the sixty-acre tract and from Plain street, but north of Plain street, Hunt v. Braintree, 12 Metc. 127. [(ƒ) Ch. XVI., § 2. (g) In re Bassett's Estate, L. R., 14 Eq. 54.] definite part Where the intended subject-matter of disposition consists of an indefinite part or quantity, the gift necessarily fails for Gift of an inuncertainty. On this principle, a bequest of "some of my void: best linen," (h) [or "of a handsome gratuity to each of my executors,"](i) has been held void. except where nishes grounds the will fur for estimating the amount. Bequest for maintenance, &c., of an infant or adult good, though no sum specified: [But a distinction seems to be taken when the will furnishes some ground on which to estimate the amount intended to be bequeathed. Thus, in Jackson v. Hamilton, (j) where the testator directed his trustees to retain a reasonable sum of money to remunerate them for their trouble, it was referred to the master to ascertain what would be a reasonable sum. So, where the bequest is for the maintenance, support, and education of an infant, or for the maintenance and support of an adult person, although no amount be specified, the court will determine the amount to be applied for that purpose. (k) And a bequest of "£3000 or thereabouts," to be raised by accumulating annual income, has been held good: the words "or thereabouts" being considered as used only to meet the difficulty which would arise *in accumulating up to the exact limit, and to render any little excess, occasioned by the addition of an entire dividend, subject to the same disposition as the specified sum. (1) So, where a Scotch testator expressed a wish (in effect) to establish in Dundee for founding a hospital for one hundred boys, like, but less than, Heriot's Hospital, but omitted to say how much was to be appropriated for the purpose, it was held in D. P., (m) that the testator had sufficiently defined his object to enable the court to determine the amount required for it. And where a testator creates a trust for the repair of an existing tomb, (n) or even for the building of a new one, (o) although this, as already noticed, (p) is a void trust, the court will determine what would have been required for it, if a determina (h) Peck v. Halsey, 2 P. W. 387. (k) Broad v. Bevan, 1 Russ. 511, n.; Pride v. Fooks, 2 Beav. 430; Kilvington v. Gray, 10 Sim. 293; Batt v. Anns, 11 L. J., Ch. 52; Thorp v. Owen, 2 Hare 610; Pedrotti's Will, 27 Beav. 583; and see 1 Sim. (N. S.) 103, and other cases noticed along with the above, post. a school. (1) Oddie v. Brown, 4 De G. & J. 179, diss. K. Bruce, L. J. (m) Magistrates of Dundee v. Morris, 3 Macq. 169; see also Adnam v. Cole, 6 Beav. 353. (n) Fisk v. Att.-Gen., L. R., 4 Eq. 521; In re Birkett, 9 Ch. D. 576; Fowler v. Fowler, 33 Beav. 616, contra, must be considered overruled. (0) Mitford v. Reynolds, 1 Phil. 185. (p) Ante p. *211, n. (k) |