legate 音标拼音: [l'ɛgət]
vt . 当做遗产让与
n . 罗马教皇的使节,特使,使节,使者
当做遗产让与罗马教皇的使节,特使,使节,使者
legate n 1 :
a member of a legation [
synonym : {
legate }, {
official emissary }]
Legate \
Leg "
ate \ (
l [
e ^]
g "[
asl ]
t ),
n . [
OE .
legat ,
L .
legatus ,
fr .
legare to send with a commission or charge ,
to depute ,
fr .
lex ,
legis ,
law :
cf .
F .
l ['
e ]
gat ,
It .
legato .
See {
Legal }.]
1 .
An ambassador or envoy .
[
1913 Webster ]
2 .
An ecclesiastic representing the pope and invested with the authority of the Holy See .
[
1913 Webster ]
Note :
Legates are of three kinds : ({
a })
Legates a latere ,
now always cardinals .
They are called ordinary or extraordinary legates ,
the former governing provinces ,
and the latter class being sent to foreign countries on extraordinary occasions . ({
b })
Legati missi ,
who correspond to the ambassadors of temporal governments .
({
c })
Legati nati ,
or legates by virtue of their office ,
as the archbishops of Salzburg and Prague .
[
1913 Webster ]
3 . (
Rom .
Hist .)
(
a )
An official assistant given to a general or to the governor of a province .
(
b )
Under the emperors ,
a governor sent to a province .
[
1913 Webster ]
38 Moby Thesaurus words for "
legate ":
ambassador ,
ambassadress ,
apostolic delegate ,
attache ,
career diplomat ,
chancellor ,
charge ,
commercial attache ,
commissar ,
commissary ,
commissionaire ,
commissioner ,
consul ,
consul general ,
consular agent ,
delegate ,
diplomat ,
diplomatic ,
diplomatic agent ,
diplomatist ,
emissary ,
envoy ,
envoy extraordinary ,
foreign service officer ,
herald ,
internuncio ,
messenger ,
military attache ,
minister ,
minister plenipotentiary ,
minister resident ,
nuncio ,
plenipotentiary ,
resident ,
secretary ,
secretary of legation ,
vice -
consul ,
vice -
legate LEGATES .
Legates are extraordinary ambassadors sent by the pope to catholic countries to represent him ,
and to exercise his jurisdiction .
They are distinguished from the ambassadors of the pope who are sent to other powers .
2 .
The canonists divide them into three kinds ,
namely :
1 .
Legates A latere .
2 .
Legati missi .
3 .
Legati nati .
3 .-
1 .
Legates latere hold the first rank among those who are honored by a legation ;
they are always chosen from the college of cardinals ,
and are called a latere ,
in imitation of the magistrates of ancient Rome ,
who were taken from the court ,
or side of the emperor .
4 .-
2 .
The legati missi are simple envoys .
5 .-
3 .
The legati nati ,
are those who are entitled to be legates by birth .
LEGATEE .
A legatee is a person to whom a legacy is given by a last will and testament .
2 .
It is proposed to consider ,
1 .
Who may be a legatee .
2 .
Under what description legatees may take .
3 .-
1 .
Who may be a legatee .
In general ,
every person may be a legatee .
2 Bl .
Com .
512 .
But a person civilly dead cannot take a legacy .
II .
Under what description legatees may take .
4 .-
1 .
Of legacies to legitimate children .
1 .
When it appears from express declaration ,
or a clear inference arising upon the face of the will ,
that a testator in giving a legacy to a class of individuals generally ,
intended to apply the terms used by him to such persons only as answered the description at the date of the instrument ,
those individuals alone will be entitled ,
although if no such intention had been expressed ,
or appeared in the will ,
every person failing within that class at the testator '
s death ,
would have been included in the terms of the bequest .
1 Meriv .
320 ;
and see 3 Ves .
611 ;
Id .
609 ;
15 Ves .
363 ;
Ambl .
397 ;
2 Cox ,
291 ;
4 Bro .
C .
C .
55 ;
3 Bro .
C .
C .
148 ;
2 Cox ,
384 .
5 .-
2 .
Where a legacy is given to a class of individuals ,
as to children ,
in general terms ,
and no period is appointed for the distribution of it ,
the legacy is due at the death of the testator ;
the payment of it being merely postponed to the end of a year after that event ,
for the convenience of the executor or administrator in administering the assets .
The rights of the legatees are finally settled ,
and determined at the testator '
s decease .
1 Ball &
B .
459 ;
2 Murph .
178 .
Upon this principal ,
is founded the well established rule that children in existence at that period ,
or legally considered so to be ,
are alone entitled to participate in the bequest .
1 Bro .
C .
C .
532 ,
n .;
2 Bro .
C .
C .
658 ;
2 Cox ,
190 .;
1 Dick .
344 ;
14 Ves .
576 ;
1 Ves .
jr .
405 ;
1 Cox ,
68 ;
3 Bro .
C .
C .
391 ;
Amb .
448 ;
1 Ves .
sen .
485 ;
5 Binn .
607 .
6 .-
3 .
A child in ventre sa mere takes a share in a fund bequeathed to children ,
under the general description of "
children ,"
or of "
children living at the testator '
s death ."
1 Ves .
sen .
85 ;
and see 1 P .
Wms .
244 ,
341 ;
2 Bro .
C .
C .
63 ;
1 Salk .
229 ;
2 Cox ,
425 ;
5 Serg . &
Rawle ,
38 .
See tit .
In ventre sa mere .
7 .-
4 .
When legacies are given to a class of individuals ,
generally ,
payable at a future period ,
as to the children of B ,
when the youngest shall attain the age of twenty -
one ,
or to be divided among them upon the death of C ;
any child who can entitle itself under the description ,
at the time when the fund is to be divided ,
may claim a share ,
viz :
as well children living at the period of distribution ,
although not born till after the testator '
s death ,
as those born before ,
and living at the happening of that event .
1 Supp .
to Ves .
jr .
115 ,
note 3 ,
to Hill v .
Chapman ;
2 Supp .
to Ves .
jr .
157 ,
note 1 ,
to Lincoln v .
Pelham .
This general rule may be divided into two branches .
First ,
when the division of the fund is postponed until a child or children attain a particular age ;
as ,
when a legacy is given to the children of A ,
at the age of twenty -
one ;
in that case ,
so soon as the eldest arrives at that period ,
the fund is distributable among so many as are in existence at that time ;
and no child born afterwards can be admitted to a share ,
because the period of division fixes the number of legatees .
Distribution is then made ,
and nothing remains for future partition .
1 Ball &
Beat .
459 ;
3 Bro .
C .
C .
402 ;
5 Binn .
607 ;
2 Ves .
jr .
690 ;
3 Ves .
730 ;
3 Bro .
C .
C .
352 ,
ed .
by Belt ;
14 Ves .
256 ;
6 Ves .
345 ;
10 Ves .
152 ;
11 Ves .
238 .
Second ,
when the distribution of the fund is deferred during the life of a person in esse .
In these cases ,
when the enjoyment of the thing given ,
is by the testator '
s express declaration not to be immediate by those ,
among whom it is to be finally divided ,
but is postponed to a particular period ,
as the death of A ,
then the children or individuals who answer the general description at that time ,
when distribution is to be made ,
are entitled to take ,
in exclusion of those afterwards coming in esse .
1 Ves .
sen .
111 ;
1 Bro .
C .
C .
386 ;
Id .
530 ;
Id .
582 ;
Id .
537 ;
1 Atk .
509 ;
2 Atk .
329 ;
5 Ves .
136 ;
3 Bro .
C .
C .
417 ;
1 Cox ,
327 ;
8 Ves .
375 ;
15 Ves .
122 ;
1 Madd .
R .
290 ;
1 Ball &
Beat .
449 .
8 .-
5 .
The word "
children "
does not ,
ordinarily and properly speaking ,
comprehend grandchildren or issue generally ;
these are included in that term only in two cases ,
namely ,
1 .
From necessity ,
which occurs where the will would remain inoperative unless the sense of the word "
children "
were extended beyond its natural import ;
and ,
2 .
Where the testator has shown by other words ,
that he did not intend to use the term children in its proper and actual meaning ,
but in a more extended sense .
1 Supp .
to Ves .
jr .
202 ,
note 2 ,
to Bristow v .
Ward .
In the following cases ,
the word children was extended beyond its natural import from necessity .
6 Rep .
16 ;
10 Ves .
201 ;
2 Desaus .
R .
123 ,
in note .
The following are instances where by using the words children and issue ,
indiscriminately ,
the testator showed his intention to use the former term in the sense of issue so as to entitle grandchildren , &
c .
to take .
1 Ves .
sen .
196 ;
S .
C .
Ambl .
555 ;
3 Ves .
258 ;
3 Ves . &
Bea .
68 ;
4 Ves .
437 ;
2 Supp .
to Ves .
jr .
158 .
There is another class of cases wherein it was determined that grandchildren , &
c .
were not included in the word children .
2 Vern .
107 ;
4 Ves .
692 ;
10 Ves .
195 ;
3 Ves . &
Bea .
59 ;
see 2 Desauss .
308 .
9 .-
2 .
Of legacies to natural children .
1 .
Natural children unborn at the date of the will ,
cannot take under a bequest to the children generally ,
or to the illegitimate children of A B by Mary C ;
because a natural child cannot take as the issue of a particular person ,
until it has acquired the reputation of being the child of that person ,
which cannot be before its birth .
Co ,
Litt .
3 ,
b .
10 .-
2 .
Natural children ,
unborn at the date of the will and described as children of the testator or another man ,
to be born of a particular woman ,
cannot take under such a description .
1 Peere ,
Wms .
529 ;
18 Ves .
288 .
11 .-
3 .
A legacy to an illegitimate child in ventre sa mere ,
described as the child of the testator or of another man ,
will fail ,
since whether the testator or such person were or were not in truth the father ,
is a fact which can only be ascertained by evidence that public policy forbids to be admitted .
1 Meriv .
141 to 152 .
12 .-
4 .
A child in ventre sa mere described merely as a child with which the mother is enceinte ,
without mentioning its putative father ;
or if the testator express a belief that the child is his own ,
and provide for it under that impression ,
regardless of the chance of being mistaken ;
then the child will in the first place be capable of taking and in the second ,
as presumed ,
be also ,
entitled in consequence of the testator '
s intent to provide for it ,
whether he be the father or not .
1 Meriv .
148 ,
152 .
13 .-
5 .
Natural children in existence ,
having acquired by reputation the name and character of children of a particular person ,
prior to the date of the will ,
are capable of taking under the name of children .
1 P .
Wms .
529 ;
1 Ves . &
Bea .
467 .
But the term child ,
son ,
issue ,
and every other word of that species ,
is to be considered as prima facie to mean legitimate child ,
son ,
or issue .
Id .
14 .-
6 .
Whether such children take or not depends upon the evidence of the testator '
s intention ,
manifested by the will ,
to include them in the term children ;
these cases are instances where the evidence of such intention was deemed insufficient .
5 Ves .
530 ;
1 Ves . &
Bea .
454 ;
6 Ves .
43 ,
48 ;
1 Ves . &
Bea .
4619 ;
and see 1 Ves . &
Bea .
456 ;
2 East ,
530 ,
542 .
In the following ,
the evidence of intention was held to be sufficient .
1 Ves . &
Bea .
469 ;
Blundell v .
Dunn ,
cited in 1 Madd .
433 ;
Beachcroft v .
Beachcroft ,
cited in 1 Madd .
430 ;
2 Meriv .
419 .
15 .-
3 .
Of legacies of personal estate to a man and his heirs .
1 .
A legacy to A and his heirs ,
is an absolute legacy to A ,
and the whole interest of the money vests in him for his use .
4 Mad .
361 .
But when no property in the bequest is given to A ,
and the money is bequeathed to his heirs ,
or to him with a limitation to his heirs ,
if he die before the testator ,
and the contingency happens ,
then if there be nothing in the will showing the sense in which the testator made use of the word heirs ,
the next of kin of A ,
are entitled to claim under the description ,
as the only persons appointed by law to succeed to personal estate .
5 Ves .
403 ;
4 Ves .
649 ;
1 Jac . &
Walk .
388 .
16 .-
2 .
A bequest to the heirs of an individual ,
without addition or explanation ,
will belong to the next of kin ;
the rule ,
however ,
is subject to ,
alteration by the intention of the testator .
If then the contents of the will show ,
that by the word heirs the testator meant other persons than the next of kin ,
those persons will be entitled .
Ambl .
273 ;
1 P .
Wms .
432 ;
Forrest ,
56 ;
2 Atk .
89 ;
See ,
also ,
1 Ves .
jr .
145 ;
4 Madd .
361 ;
14 Ves .
488 ;
1 Car .
Law R .
484 .
17 .-
4 .
Legacies to issue .
1 .
The term issue ,
is of very extensive import ,
and when used as a word of purchase ,
and unconfined by any indication of intention ,
will comprise all persons who can claim as descendants from or through the person to whose issue the bequest is made ;
and in order to restrain the legal sense of the term ,
a clear intention must appear upon the will .
3 Ves .
257 ;
Id .
421 ;
1 Meriv .
434 ;
13 Ves .
344 .
18 .-
2 .
Where it appears clearly to be a testator '
s meaning to provide for a class of individuals living at the date of his will ,
and he provides against a lapse by the death of any of them in his lifetime ,
by the substitution of their issue ;
in such case ,
although the word will include all the descendants of the designated legatees ,
yet if any person who would have answered the description of an original legatee when the will was made ,
be then dead ,
leaving issue ,
that issue will be excluded ,
because the issue of those individuals only who were capable of taking original shares ,
at the date of the will ,
were intended to take by substitution ;
so that as the person who was dead when the will was made ,
could never have taken an original share ,
there is nothing for his issue to take in his place .
1 Meriv .
320 .
19 .-
3 .
When it can be collected from the will that a testator in using the word issue ,
did not intend it should be understood in its common acceptation ,
the import of it will be confined to the persons whom it was intended to comprehend .
7 Ires .
531 ;
3 Ves .
383 ;
7 Ves .
522 ;
1 Ves .
jr .
143 .
20 .-
5 .
Of legacies to relations .
1 .
Under a bequest to relations ,
none are entitled but those ,
who in the case of intestacy ,
could have claimed under the statute of distribution .
Forrest .
251 ;
4 Bro .
C .
C .
207 ;
1 Bro .
C .
C .
31 ;
3 Bro .
C .
C .
234 ;
5 Ves .
529 ;
Ambl .
507 ;
Dick .
380 ;
1 P .
Wms .
327 ;
2 Ves .
sen .
527 ;
19 Ves .
403 ;
1 Taunt .
263 ;
1 T .
R .
435 ;
n .
See the following cases where the bequests were to "
poor relations ;"
1 P .
Wms .
327 ;
8 Serg . &
Rawle ,
45 ;
1 Sch . &
Lef .
111 ; "
most necessitous relations ;"
Ambl .
636 .
21 .-
2 .
To this general rule there are several exceptions ,
namely ,
first ,
when the testator has delegated a power to an individual to distribute the fund among the testator '
s relations according to his discretion ;
in such an instance whether the bequest be made to "
relations "
generally ,
or to "
poor ,"
or "
poorest ,"
or "
most necessitous "
relations ,
the person may exercise his discretion in distributing the property among the testator '
s kindred although they be not within the statute of distributions .
1 Scho . &
Lef .
111 ,
and 16 Ves .
43 ;
1 T .
R .
485 ,
n .;
Ambl .
708 ;
16 Ves .
27 ,
43 .
Secondly .
Another exception occurs where a testator has fixed ascertain test ,
by which the number of relatives intended by him to participate in his property ,
can be ascertained ;
as if a legacy be given to such of the testator '
s relations as should not be worth a certain sum ,
in such case ,
it seems ,
all the testator '
s relatives answering the description would take ,
although not within the degrees of the statute of distributions .
Ambl .
798 .
Thirdly .
Another exception to the general rule is ,
where a testator has shown an intention in his will ,
to comprehend relations more remote than those entitled nuder the statute ;
in that case his intention will prevail .
1 Bro .
C .
C .
32 ,
n .,
and see 1 Cox ,
235 .
22 .-
3 .
The word "
relation "
or "
relations ,"
may be so qualified as to exclude some of the next of kin from participating in the bequest ;
and this will also happen when the terms of the bequest are to my "
nearest relations ;"
19 Ves .
400 ;
Coop .
275 ;
1 Bro .
C .
C .
293 ;
and see 1 Ves .
sen .
337 ;
Ambl .
70 ;
to testator '
s relations of his name 1 Ves .
sen .
336 ;
or stock ,
or blood ;
15 Ves .
107 .
23 .-
4 .
The word relations being governed by the statute of distributions ,
no person can regularly answer the description but those who are of kin to the testator by blood ,
consequently relatives by marriage are not included in a bequest to relations generally .
1 Ves .
sen .
84 ;
3 Atk .
761 ;
1 Bro .
C .
C .
71 ,
294 .
24 .-
6 .
Legacies to next of kin .
1 .
When a bequest is made to testator '
s next of kin ,
it is understood the testator means such as are related to him by blood .
But it is not necessary that the next of kin should be of the whole blood ,
the half blood answering the description of next of kin ,
are equally entitled with the whole ,
and if nearer in degree ,
will exclude the whole blood .
1 Ventr .
425 ;
Alley .
L .
D .
of Mar .
36 ;
Sty .
74 .
25 -
2 .
Relations by marriage are in general excluded from participating in a legacy given to the next of kin .
18 Ves .
53 ;
14 Ves .
376 ,
381 ,
386 ;
and ,
see 3 Ves .
244 ;
18 Ves .
49 .
But this is only a prima facie construction ,
which may be repelled by the contrary intention of a testator .
14 Ves .
382 .
26 .-
3 .
A testator is to be understood to mean by the expression "
next of kin ,"
when he does not refer to the statute ,
or to a distribution of the property as if he had died intestate ,
those persons only who should be nearest of kin to him ,
to the exclusion of others who might happen to be within the degree limited by the statute .
3 Bro .
C .
C .
69 ;
19 Ves .
404 ;
14 Ves .
385 .
See 3 Bro .
C .
C .
64 .
27 .-
4 .
Nearest of kin will alone be entitled under a bequest to the next of kin in equal degree .
12 Ves .
433 ;
1 Madd .
36 .
28 .-
7 .
Legacies to legal personal representatives or to personal representatives .
1 .
Where there is nothing on the face of the will to manifest a different intention ,
the legal construction of the words "
personal representatives ,"
or "
legal personal representatives ,"
is executors or administrators of the person described .
6 Ves .
402 ;
6 Mead .
159 .
A legacy limited to the personal or legal personal representatives of A ,
unexplained by anything in the will ,
will entitle A '
s executors or administrators to it ,
not as representing A ,
or as part of his estate ,
or liable to his debts ,
but in their own right as personae designated by the law .
2 Mad .
155 .
29 .-
2 .
In the following cases the executors or administrators were held to be entitled under the designation of personal ,
or legal personal representatives .
3 Ves .
486 ;
Anstr .
128 .
30 .-
3 .
The next of kin and not the executors or administrators ,
were ,
in the following cases ,
held to be entitled under the same designation .
3 Bro .
C .
C .
224 ,
approved by Lord Rosslyn in 3 Ves .
486 ;
3 Ves .
146 ;
19 Ves .
404 .
31 .-
4 .
The same words were held to mean children ,
grandchildren , &
c .
to the exclusion of those persons who technically answer the description of "
personal representatives ."
3 Ves .
383 .
32 .-
5 .
A husband or wife may take as such ,
if there is a manifest intention in the will that they should and if either be clothed with the character of executor or administrator of the other ,
the prima facie legal title attaches to the office ,
which will prevail ,
unless an intention to the contrary be expressed or clearly apparent in the instrument .
See 14 Ves .
382 ;
18 Ves .
49 ;
3 Ves .
231 ;
2 Ves .
sen .
84 ;
3 Atk .
758 ;
1 Rop .
on H .&
W .,
326 ;
2 Rop .
on H .&
W .,
64 .
33 .-
8 .
The construction of bequests when limited to executors and administrators .
1 .
Where personal estate is given to B ,
his executors and administrators ,
the law transfers to B the absolute interest in the legacy .
15 Ves .
537 ;
2 Mad .
155 .
34 .-
2 .
If no interest were given to B ,
and the bequest were to his executors and administrators ,
it should seem that the individual answering the description would be beneficially entitled as personal designatee ,
in analogy to the devise of real estate to the heir of B ,
without a previous limitation to B ,
whose heir would take by purchase in his own right ,
and not by force of the word "
heir "
considered as a term of limitation .
2 Mad .
155 .
See 8 Com .
Dig .
Devise of Personal Property ,
xxxvi .
35 :-
9 .
Legacies to descendants .
1 .
A legacy to the descendants of A ,
will comprehend all his children ,
grandchildren , &
c .;
and if the will direct the bequest to be divided equally among them ,
they are entitled to the fund per capita .
Ambl .
97 ;
3 Bro .
C .
C .
369 .
36 .-
10 .
Legacies to a family .
1 .
The word family ,
when applied to personal property ,
is synonymous with "
kindred ,"
or "
relations ;"
see 9 Ves .
323 .
This being the ordinary acceptation of the word family ,
it may nevertheless be confined to particular relations by the context of the will ;
or the term may be enlarged by it ,
so that the expression may ,
in some cases ,
mean children ,
or next of kin ,
and in others may even include relations by marriage .
See 8 Ves .
604 ;
Dy .
333 ;
5 Ves .
166 ;
Hob .
33 ;
Coop .
122 ;
5 M . &
S .
126 ;
17 Ves .
263 ;
1 Taunt .
266 ;
14 Ves .
488 ;
9 Ves .
319 ;
3 Meriv .
689 .
37 .-
11 .
Legacies to servants .
1 .
To entitle himself to a bequest "
to servants ,"
the relation of master and servant must have arisen out of a contract by which the claimant must have formed an engagement which entitled the master to the service of the individual during the whole period ,
or each and every part of the time for which he contracted to ,
serve .
12 Ves .
114 ;
2 Vern .
546 .
38 .-
2 .
To claim as a servant ,
the legatee must in general be in the actual service of the testator at the time of his death .
Still a servant may be considered by a testator as continuing in his employment ,
and be intended to take under the bequest ,
although he quitted the testator '
s house previous to his death ,
so as to answer the description in the instrument ;
and to establish which fact declarations of the testator upon the subject cannot be rejected ;
but testimony that the testator meant a servant notwithstanding his having left the testator '
s service ,
to take a legacy bequeathed only to servants in his employment at his death ,
cannot be received as in direct opposition to the will .
16 Ves .
486 ,
489 .
39 .-
12 .
The different periods of time at which persons answering the descriptions of next of kin ,
family relations ,
issue ,
heirs ,
descendants and personal representatives , (
to whom legacies are given by those terms generally ,
and without discrimination ,)
were required to be in esse ,
for the purpose of participating in the legatory fund .
1 .
When the will expresses or clearly shows that a testator in bequeathing to the relations ,
&
c .
of a deceased individual ,
referred to such of them as were in existence when the will was made ,
they only will be entitled ;
as if the bequest was ,
"
I give �
1000 to the descendants of the late A B ,
now living ,"
those descendants only in esse at the date of the will can claim the legacy .
Ambl .
397 .
40 .-
2 .
But ,
in general ,
a will begins to speak at the death of the testator ,
and consequently in ordinary cases ,
relations ,
next of kin ,
issue ,
descendants , &
c .,
living at that period will alone divide the property bequeathed to them by those words .
See 1 Ball &.
Beat .
459 ;
1 Bro .
C .
C .
532 ;
3 Bro .
C .
C .
224 ;
5 Ves .
399 ;
1 Jac . &
Walk ,
388 ,
n .;
3 Meriv .
689 ;
5 Binn .
607 ;
2 Murph .
178 .
41 .-
3 .
If a testator express ,
or his intention otherwise appear from his will ,
that a bequest to his relations , &
c .,
living at the death of a person ,
or upon the happening of any other event ,
should take the fund ,
his next of kin only in existence at the period described ,
will be entitled ,
in exclusion of the representatives of such of them as happened to be then dead .
3 Ves .
486 ;
9 Ves .
325 ;
1 Atk .
469 ;
15 Ves .
27 ;
4 Vin .
Abr .
485 ,
pl .
16 ;
8 Ves .
38 ;
5 Binn .
606 ;
see 6 Munf .
47 .
42 .-
13 .
When the fund given to legatees ,
by the description of "
family ," "
relations " "
next in kin ," &
c .,
is to be divided among them either per capita ,
or per stirpes ,
or both per stirpes et capita .
1 .
Where the testator gives a legacy to his relations generally ,
if his next of kin be related to him in equal degree ,
as brothers ,
there being no children of a deceased brother ,
the brothers will divide the fund among them in equal shares ,
or per capita ;
each being entitled in his own right to an equal share .
So it would be if all the brothers had died before the testator ,
one leaving two children ,
another three , &
c .,
all the nephews and nieces would take in equal shares ,
per capita ,
in their own rights ,
and not as representing their parents ;
because they are sole next of kin ,
and related to the testator in equal degree .
Pre .
Ch .
54 ;
and see 1 P .
Wms .
595 ;
1 Atk .
454 ;
3 P .
Wms .
50 .
But if the testator '
s next of kin happen not to be related to him in equal degrees ,
as a brother ,
and the children of a deceased brother ,
so as that under the statute the children would take per stirpes as representing their parent ,
namely ,
the share he would have taken had he been living ;
yet if the testator has shown au intention that his next of kin shall be entitled to his property in equal shares ,
i .
e .
per capita ,
the distribution by the statute will be superseded .
This may happen where the bequest is to relations ,
next of kin , &
c .,
to be equally divided among them ;
or by expressions of like import .
Forrest .
251 ;
and see 1 Bro .
C .
C .
33 ;
8 Serg . &
Rawle ,
43 ;
11 Serg . &
Rawle 103 ;
1 Murph .
383 .
43 .-
2 .
Where a bequest is to relations , &
c .,
those persons only who are next of kin are entitled ,
and the statute of distributions is adopted ,
not only to ascertain the persons who take ,
but also the proportions and manner in which the property is to be divided ;
the will being silent upon the subject ,
if the next of kin of the person described be not related to him in equal degree ,
those most remote can only claim per stirpes ,
or in right of those who would have been entitled under the statute if they had been living .
Hence it appears that taking per stirpes ,
always supposes an inequality in relationship .
For example ,
where a testator bequeaths a legacy to his "
relations ,"
or "
next of kin ,"
and leaves at his death two children ,
and three grandchildren ,
the children of a deceased child ;
the grandchildren would take their parents '
share ,
that is ,
one -
third per stirpes under the statute ,
as representing their deceased parent .
1 Cox ,
235 .
44 .-
3 .
Where a testator bequeaths personal estate to several persons as tenants in common ,
with a declaration that upon all or any of their deaths before a particular time ,
their respective shares shall be equally divided among the issue or descendants of each of them ,
and they die before the arrival of the period ,
some leaving children ,
others grandchildren ,
and great grandchildren ,
and other grandchildren and more remote descendants in such case the issue of each deceased person will take their parents share per stirpes ;
and such issue ,
whether children only ,
or children and grandchildren , &
c .,
will divide each parent '
s share among them equally per capita .
1 Ves .
sen .
196 .
45 .-
14 .
The effect of a mistake in the names of legatees .
1 .
Where the name has been mistaken in a will or deed ,
it will be corrected from the instrument ,
if the intention appear in the description of the legatee or donee ,
or in other parts of the will or deed .
For example ,
if a testator give a bequest to Thomas second son of his brother John ,
when in fact John had no son named Thomas ,
and his second son was called William ;
it was held William was entitled .
19 Ves .
381 ;
Coop .
229 ;
and see Ambl .
175 ;
Co .
Litt .
3 ,
a ;
Finch '
s R .
403 ;
3 Leon ,
18 .
When a bequest is made to a class of individuals ,
nominatim ,
and the name or christian name of one of them is omitted ,
and the name or christian name of another is repeated ;
if the context of the will show that the repetition of the name was error ,
and the name of the person omitted was intended to have been inserted ,
the mistake will be corrected .
As where a testator gave his residuary estate to his six grandchildren ,
by their christian names .
The name of Ann ,
one of them ,
was repeated ,
and the name of Elizabeth ,
another of them ,
was omitted .
The context of the will clearly showed the mistake which had occurred ,
and Elizabeth was admitted to an equal share in the bequest .
1 Bro .
C .
C .
30 ;
see 2 Cox ,
186 .
And is to cases where parol evidence will be received to prove the mistakes in the names or additions of legatees ,
and to ascertain the proper person ,
see 3 B . &
A .
632 to 642 ;
6 T .
R .
676 ;
2 P .
Wms .
137 ;
1 Atk .
410 :
1 P .
Wms .
421 ;
5 Rep .
68 ,
b ;
6 Ves .
42 ;
7 East ,
302 ;
Ambl .
75 .
46 .-
15 .
The effect of mistakes in the descriptions of legatees ,
and the admission of parol evidence in those cases .
1 .
Where the description of the legatee is erroneous ,
the error not having been occasioned by any fraud practiced upon the testator ,
and there is no doubt as to the person who was intended to be described ,
the mistake will not disappoint the bequest .
Hence if a legacy be given to a person by a correct name ,
but a wrong description or addition ,
the mistaken description will not vitiate the bequest ,
but be rejected ;
for it is a maxim that veritas nominis tollit errorem demonstrationis .
Ld .
Bac .
Max .
reg .
25 ;
and see 2 Ves .
jr .
589 ;
Ambl .
75 ;
4 Ves .
808 ;
Plowd .
344 ;
19 Ves .
400 .
47 .-
2 .
Wherever a legacy is given to a person under a particular description and character which he himself has falsely assumed ;
or ,
where a testator ,
induced by the false representations of third persons to regard the legatee in a relationship which claims his bounty ,
bequeaths him a legacy according with such supposed relationship ,
and no motive for such bounty can be supposed ,
the law will not ,
in either case ,
permit the legatee to avail himself of the description ,
and therefore he cannot demand his legacy .
See 4 Ves .
802 ;
4 Bro .
C .
C .
20 .
48 .-
3 .
The same principle which has established the admissibility of parol evidence to correct errors in naming legatees ,
authorizes its allowance to rectify mistakes in the description of them .
Ambl .
374 ;
1 Ves .
jr .
266 ;
1 Meriv .
184 .
49 .-
4 .
If neither the will nor extrinsic evidence is sufficient to dispel the ambiguity arising from the attempt to apply the description of the legatee to the person intended by the testator ,
the legacy must fail from the uncertainty of its object .
7 Ves .
508 ;
6 T .
R .
671 .
50 .-
16 .
The consequences of imperfect descriptions of ,
or reference to legatees ,
appearing upon the face of wills ,
and when parol evidence is admissible .
These cases occur ,
1 .
When a blank is left for the Christian name of the legatee .
2 .
When the whole name is omitted .
3 .
When the testator has merely written the initials of the name ;
and ,
4 .
When legatees have been once accurately described ,
but in a subsequent reference to one of them ,
to take an additional bounty ,
the person intended is doubtful ,
from ambiguity in the terms .
51 .-
1 .
When a blank is left for the Christian name of the legatee ,
evidence is admissible to supply the omission .
4 Ves .
680 .
52 .-
2 .
When the omission consists of the entire name of the legatee ,
parol evidence cannot be admitted to supply the blank .
2 Ch .
Ca .
51 .;
2 Atk .
239 ;
3 Bro .
C .
C .
311 .
53 .-
3 .
When a legatee is described by the initials of his name only ,
parol evidence may be given to prove his identity .
3 Ves .
148 .
When a patent ambiguity arises from an imperfect reference to one of two legatees correctly described in a prior part of the will ,
parol evidence is admitted to show which of them was intended ,
so that the additional legacy intended for the one will depend upon the removal of the obscurity by a sound interpretation of the whole will .
3 Atk .
257 and see 2 Ves .
217 ;
2 Eden ,
107 .
See further ,
upon this subject ,
Lownd on Leg .
ch .
4 ;
1 Roper on Leg .
ch .
2 ;
Com .
Dig .
Chancery ,
3 Y ;
Bac .
Abr .
h ..
t .
Vin .
Abr .
h .
t .;
Nels .
Abr .
h .
t .;
Whart .
Dig .
Wills ,
G .
P .;
Hamm .
Dig .
756 ;
Grimk .
on Ex .
ch .
5 ;
Toll .
on Executors ,
ch .
4 .
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