children, then over, gave other property on trust to be conveyed equally among such children of A, the context not showing what limit was intended to be put on the class of children; it was held that all took. (d) So a gift to the testator's "aforesaid nephews and nieces," none having been previously named, was held to include all; (e) and a bequest to the children of A, including who

*of A, was held, on the same principle, to be a good bequest to the legitimate children of A, (f) but to include no illegitimate child.] (g)

Again, where one having (h) three sons, J, E, and W, and lands in three counties, devised the lands in A to J, the lands in B to E, and the lands in C to W; and added, that if three, the one any of his said sons died, then the one of them to be heir the other." unto the other. A, the eldest son having died, the land devised to him was claimed by the other two; but the court (Fleming, C. J., doubting) decided that nothing passed by the clause in question, as it

was not certain what issue should have it. Some stress was laid on the fact that the original devise conferred only an estate for life.

On the other hand, where (i) the testator devised to his eldest son Blackacre, to his second son Whiteacre, and to his third son Greenacre, in tail; and further willed that, in case any of his said sons should die without issue, the survivor to be each other's heir. The eldest son died without issue; and the question was, whether one or both the surviving brothers should have Blackacre? And the court, on the first hearing of the case, was in great doubt; but it was afterwards holden that the surviving brothers were joint tenants; and, although the word "survivor" was in the singular number, yet, in sense, upon the whole matter it should be taken and construed as for the plural number: (survivor should be each other's heir) i. e. each survivor, i. e. all the survivors.

An instance of a bequest held void for uncertainty on account of the vague use of the word "survivors" occurs in a modern case, (k) where the words were, "I give to my executors the sum of £1000 upon trust to be invested in the funds of the Bank of England, during the lives of the survivors or survivor, for the widows of John Sayce and Thomas Draper, to be divided between them, share and share alike." It was contended for the two legatees that the words "survivors or survivor" applied to the executors, and did not affect the gift to the widows, who, *therefore, were absolutely entitled; but Sir J. Leach, M. R., observed that it was impossible to put any rational construction upon the bequest, which, therefore, was void for uncertainty.

Uncertainty is sometimes produced by the mention of several Gift to several objects alternatively, as in the case of a gift to A or

alternatively.

B. (1)

In the early case of Beal v. Wyman, (m) where a question arose on

(i) Hambledon v. Hambledon, 1 Leon. 262, Saville 92, 93, Cro. El. 164, Owen 25; see also Brook, title Devise, pl. 38.

(k) Hoffman v. Hankey, 3 My. & K. 376. Although the similarity of expression seemed, in some degree, to connect this with the preceding case, yet it rather belongs to the class of cases in which bequests have been held to be void on account of the uncertainty as to the extent of interest the gift was intended to comprise.

(1) In the case of a gift to several persons alternatively, there is a fatal uncertainty unless the secondly named person can be considered as intended to be substituted for the first in some event, or unless the word "or" can be changed into "and," which has been often vexata quastio. (See ch. XVI.)

(m) Styles 240, 2 Danv. 514, pl. 4; [and see Marwood v. Darrell, Lee's Cas. t. Hard. 91.]

males of any of my sons or next of kin."

these words, viz. "I give and bequeath one half of my lands to my wife, and, after her death, I give all my lands to the To "heirs heirs males of any of my sons or next of kin;" it was contended that the words "heirs males of any " of his sons were words certain enough to create an estate, for it was all one as if he had said, "to the heirs males of all his sons, if they have heirs males, or to those who have heirs males;" (n) and the words, "or to the next of kin," were also certain enough, being joined with the preceding words, and should be meant to the next of kin and their heirs males, if his sons had no heirs males: for in a will, if there be words to express the meaning of a testator, it is sufficient though the words be not apt. On the other side, it was argued that this devise was void; for it appeared not what heir male should have the land, whether the heir male of his son or the heir male of his next of kin, for the words were disjunctive; and the court seems to have inclined to this opinion, but how the case was ultimately disposed of does not

appear.

To "next of

kin or heir at

So, in Lowndes v. Stone, (o) where a testator, by an unattested will, gave the remainder of his estate to his next of kin or heir at law. The personalty was claimed by the next of law." kin and the heir respectively; the latter contending that the testator used the term "heir at law" as explanatory of the former expression meaning "such next of kin as shall be my heir at law." Lord Loughborough:-"You have a fair retort upon each other. On the one side, it is contended that next of kin' means 'heir at law;' on the other, that'heir at law' means 'next of kin.' It must be distributed according to the statute." [But in In re Thompson's Trusts, (p) where, after a life estate to A, a testator directed his real and personal estate to be sold, and the proceeds paid, "one-third to the heirs "Heirs or next or next of kin of B deceased, one-third to the heirs or next of kin of C deceased, one-third to the heirs or next of kin of D deeeased;" Sir G. Jessel, M. R., held that the statutory

(n) Such, it is probable, would now be held to be the construction of this devise. The other question, on the words "sons or next of kin," is more difficult. Probably they would be construed as meaning 'my sons, or such other persons as may happen to be my next of kin."

(0) 4 Ves. 649. And see 7 Sim. 363.

of kin" held to mean statutory kin.

[Lord Loughborough's expressions are hardly reconcilable with the notion (2 K. & J. 735) that he construed the words as implying heirship according to the nature of the property, and as intimating an intention that the rule of the statute should prevail.

(p) 9 Ch. D. 607.

next of kin were entitled, they being the persons indicated by the word "heirs" when used with reference to personalty.] (9)

To A "or his heirs, execu

tors, administrators, or 'assigns."

Again, in Waite v. Templer, (r) where a testator, resident in India, bequeathed a share of his personalty to A, "who resided at L. when I left England, or to his heirs, executors, administrators, or assigns forever;" Sir L. Shadwell, V. C., held that A, having died in the testator's lifetime, the legacy failed, his Honor being of opinion that the additional words were too uncertain to create a substitutional gift.

Reference to uses of other estates, there being more than one.

Uncertainty sometimes arises from property being devised to the same uses as the testator's other estates, of which there are several, that are devised to different uses. (s) It may also be occasioned by the testator's apparent misapprehension of the law regulating the devolution of property; as in Thomas v. Thomas, (t) where a testator, after charging his real and personal estate with the payment of his debts, and giving it to his wife during widowhood, after her decease or marriage willed that all his real and personal estate "be divided according to the statute of distribution in that case made and provided;" and it was held that the real estate did not pass to the next of kin under this clause, the court thinking it not clear that the testator intended the real estate to be distributed according to the statutes of distribution regarding personalty, but that he must have referred to some statute which he supposed applied to real

estate.

No objection

that devisee is

to be ascertained by

future act of testator.

Id certum est quod certum reddi potest, is a rule no less applicable to the objects than (as we have seen) it is to the subjects of disposition; and, therefore, it is no objection to a gift that it is so framed as to make the objects dependent upon some extrinsic circumstance, though it be an act performed, or even to be performed, by the testator himself in his lifetime. As in Stubbs v. Sargon, (u) where a testatrix directed her trustees to dispose of and divide the proceeds of certain property unto and *amongst her partners, who should be in copartnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as her said trustees should think fit and deem

(q) See ch. XXIX.]

(r) 2 Sim. 524; see also Stone v. Evans, 2 Atk. 86. [But Waite v. Templar was disapproved of by Lord St. Leonards, 3 H. L. Cas. 557.]

(8) Leslie v. Duke of Devonshire, 2 B. C. C. 187.

(t) 3 B. & Cr. 825.

(u) 2 Kee. 258, 3 My. & Cr. 507.

advisable. It was objected that the gift was void for uncertainty; but it appearing that the testatrix was, at the date of her will, in partnership with certain persons, to some of whom, conjunctively with another person, she on the dissolution of such partnership, disposed of her business, Lord Langdale, M. R., [and on appeal, Lord Cottenham,] held that these latter persons were those among whom the trustees were to divide the property in such shares as they might deem advisable.

Gift to several not saying in

successively,

what order.

In many cases devises to several persons successively have been contended to be void on account of the uncertainty respecting the order in which the objects are to take. (a) Where the devise is to several specified individuals in succession, the obvious rule is, to hold them to be entitled in the order in which their names occur. If it be to a class of persons, constituted such in virtue of birth, (y) as to children, sons, or brothers, (z) then priority according to seniority of age may be presumed to be intended. And the circumstance of a condition being imposed on the devisees has been held not to vary the order in which they are successively entitled.

Thus, where (a) a testator devised to A and his brothers successively, but not to be entered on or enjoyed until one month after their marriages, it was held that the devise was not (as contended) void for uncertainty; for as the testator named A first, who was the eldest son, the word "successively" implied that the estate was to go to his next brother after him; and the court agreed that the clause about marriage made no alteration in the exposition of the will, but only added a restriction to the devise, which before was general; and, therefore, if the second son had married before the eldest, yet he could not have taken.

[On the other hand, in Thomason v. Moses, (b) where the bequest was of the interest of a sum of money to the testator's father for life, then to his brother for life, and then to be continued to the testator's next nearest heir, and so on, and neither the *father nor the brother was the testator's heir, the gift of the fund after the death of the brother was held void for uncertainty.]

(x) See an instance of a limitation in a deed held to be void on account of uncertainty of this nature, Windsmore v. Hobard, Hob. 313.

(y) This qualification, though it may sound strangely, seems requisite in order to exclude from the position in the text

gifts to some other classes, such as executors; as to which vide ante p. *342.

(2) Ongley v. Peale, 2 Ld. Raym. 1312, 2 Eq. Cas. Ab. 358, pl. 8; [Young Sheppard, 10 Beav. 207.

(a) Ongley v. Peale, supra.
(b) 5 Beav. 77.]