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according to law" includes husband. Children may mean heirs where a testator devised lands "unto the heirs of my son B. that his wife S. has by him or may have by him hereafter," and a further provision was that "my son B. shall have his support and living out of the estate that I have hereby given to his children, so long as he shall live1o." Again, the word "heirs" may mean "children," where a will described certain beneficiaries as the heirs of another person, whom the testator assumes to be living11. Brothers and sisters, where the testator left no heirs, may be included in the term "heirs"12, so the widow may be an "heir," where a statute makes a widow of a husband dying intestate a distributee13. A husband may also be entitled to take as "heir". The word "heirs" when used in a popular sense by a testator designates and includes blood relations15. It is also used to denote issue, in which sense it made all parts of the residuary clause, and of the whole will operative so as to bring in perfect harmony all the parts of the will with what may be fairly deemed the meaning of the testator18.

§111. Children and Grandchildren.

"Children and grandchildren include unborn children who shall be in being at the time of the death of the daughter of

9. Turner v. Burr, 141 Mich. 106, 104 N. W. 379.

10. Rose v. Eaton, 77 Mich. 247, 43 N. W. 972.

11. See v. Derr, 57 Mich. 369, 24 N. W. 108; Fullager v. Stockdale, 138 Mich. 363, 101 N. W. 576.

12. Silvers v. Michigan Mut. Ben. Ass'n, 94 Mich. 39, 53 N.

W. 935.

13. Lyons V. Yerex, 100 Mich. 214, 43 Am. St. Rep. 452, 58 N. W. 1112.

14. Turner v. Burr, 141 Mich. 106, 104 N. W. 379.

15. Lyons V. Yerex, 100 Mich. 214, 43 Am. St. Rep. 452, 58 N. W. 1112.

16. Goodell v. Hibbard, 32 Mich. 47.

the testator where the will makes provision that after the death of the daughter of the testator he gives certain property to his children and grandchildren1. All the children. shared in an estate where the remainder read to his "children hereinafter named and their issue, share and share alike" and in a later item the testator mentioned all of his children by name18. A "child" includes en ventre sa mere when wife of testator died, where a bequest of a certain sum to each of the children of the daughter of the testator, in the event of the death of his wife, is made19, so under the same circumstances is included not only the children in being at the death of the testator, but those born subsequently during the lifetime of the widow 20.

§112. Disposition To a Class. Definition.

This mode of disposition does not confine itself to mentioning the members of the class by name or by description, but by the general name "children," "cousins," "nephews," etc. It is said that "in legal contemplation a gift to a class is an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number21. A child born after the death of a testator is allowed to take its share in a fund

17. Cheever V. Washtenaw Circuit Judge, 45 Mich. 6, 7 N. W. 186.

18. Sondheim v. Fechenbach, 137 Mich. 384, 100 N. W. 586. 19. McLain v. Howald, 120 Mich. 274, 77 Am. St. Rep. 597,

79 N. W. 182.

20. McLain v. Howald, 120 Mich. 274, 77 Am. St. Rep. 597, 79 N. W. 182.

21. In re Brown, 154 N. Y. 313.

which was given by will for the benefit of the children of a designated person22.

§113. Time of Taking as to Disposition to a Class.

Those children surviving at the death of the testatrix take, while those who were alive when the will was made do not take, where a devise of certain land was made "to the surviving children of testatrix's brothers"23.

§114. Time for Distribution.

Postponing the time of distribution to some period subsequent to the death of the testator in a devise renders the dispositions available to all who are in existence at the time allowed for the distribution24. Children "hereafter to be born or begotten" is given the construction to include those already begotten25.

§115. Distribution Per Stirpes or Per Capita.

In general per stirpes means according to representation and per capita means according to heads or individuals. The clause in a will providing that estate of testator "be equally divided among his heirs, to wit, J. B., the children of C. B. jr.," naming the other children, is construed to mean that the grandchildren of the testator are to take per stirpes the share of their deceased parents as legatees26.

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Where an estate was devised by a testatrix to her son and five grandchildren, naming them under the following clause: one-third to the son, and two-thirds to the grandchildren, the clause is construed to mean that the grandchildren are to take their share per capita27.

§116. Miscellaneous. Religious Societies. Municipal Coporations.

A bequest passed rightfully to the convention where the residuary clause read to the "Universalist Japan Mission Fund" for the support of the "Universalist Mission in Japan28" Where a bequest of fifteen thousand dollars in a will was made to a village for the purpose of erecting a school building, to be used as a high school, it was not deemed void for uncertainty or indefiniteness29.

§117. Shares and Division of Estates.

The construction as to the shares of the beneficiaries placed upon a will, where it divided the residue of the estate of the testator into seven parts, and devising one-seventh to a father and mother, and their son, “in equal shares to each of them," is to give the seventh to the collective legatees3o.

§118. Restrictions of Beneficiaries to Specific Amounts.

It is clear that a will, though often made while death is not contemplated for some remote period to come, is to take effect from the time of death of the testator and not

27. Wells V. Hutton,

Mich. 129, 43 N. W. 768.

77

28. Cook V. Universalist General Convention, 138 Mich. 157, 101 N. W. 217.

29. Hatheway v. Sackett, 32 Mich. 97.

30. Mann v. Hyde, 71 Mich. 278, 39 N. W. 78.

from the time of execution of the will. Therefore it may happen that a will made by a rich man, may take effect after he has died poor. If he was reasonably thoughtful and prudent in making it, it will probably be found that he made provision, while giving away what then promised to be a large fortune, for the possibility that a mere wreck of a fortune might be left for distribution. In such a case a disposition that when made seemed princely may dwindle into insig nificance and a provision for a small but certain legacy as the alternative to one probably worthless, may be a proper dictate of kindness and generosity. This change of circumstances may be contemplated in the making of a will by the testator, and he may make provision with a view to possible contingencies of change of fortune31.

§119. Exclusion of Heirs.

Where a man conveyed to one of his sons certain lands upon the consideration that he would release and relinquish all his rights to heirship, and later made a will disposing of his property to his wife and son who was to receive a certain amount of the estate when he arrived of age, the balance of the estate after the wife's death was to pass to the son who was to share in it "with the rest of the heirs," the latter clause was construed to mean that the conveyance made to the son was practically revoked by which the other son was excluded from any right of inheritance and it not only entitled him to share in the remainder of the estate but in any surplus left for distribution32.

31. Kinney v. Kinney, 34 Mich. 250. See Appeal of Turner, 48 Mich. 369, 12 N. W. 493,

in which case a similar question is involved.

32. Appeal of Turner, 48 Mich. 369, 12 N. W. 493.

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