or

vivor of

to be dis

vor as she

may

will devise:

held that

the sisters

sur

did not

sis

take as tecommon in fee; nor, supposing

nants in

tenants in

for life with

a contin

"On the 7th of September, 1802, John Tomkinson being to the surseised in fee of the premises in question, by his will, after them, and directing his debts and funeral expences to be paid, devised posed of by thus: My will and desire is, that all my real and personal the survi estate wheresoever and whatsoever, be left equally to my sisters, Mary and Elizabeth Tomkinson, of Forsbrooke, to the survivor of them, and to be disposed of by the vivor, as she may by will devise,' and made his said ters his executrixes. The testator died in 1810, leaving the said Mary and Elizabeth (who thereupon took possession of the estate) and also another sister, Anne, him surviving. them Afterwards, on the 9th of July, 1810, Mary made her will, common and thereby devised all her messuages, lands, tenements, hereditaments, and real estates whatsoever, situate at Forsbrooke, or elsewhere in the county of Stafford, to her sisters Elizabeth and Anne, successively for life, and from and after the decease of the survivor of them, she devised all such part of her real estate which was devised to her by the will of her late brother J. Tomkinson, to the defendants, their heirs and assigns, as tenants in common, and not as joint tenants. Elizabeth Tomkinson was living at the time when Mary made this will. Mary survived both E. and A. Tomkinson, but died without having re-published her will. The lessors of the plaintiff, Jane, Anie, and Sarah, are the heirs at law of Mary, and also of John, Elizabeth, and Anne Tomkinson.

en

mainder in

fee to the

survivor,

or with a

the survivor to disfee by will,

power to

pose of the

was it such

a

contingent re

mainder as

was devisable by a will made

by one in

the lifetime of both the

sisters, nor was the

executed by such

"The question for the opinion of the court is, whether the power well plaintiff is entitled to recover; if the court shall be of opinion that he is entitled, the verdict is to stand; if not, a nonsuit is to be entered,

"Lord ELLEN BOROUGH C. J. It may be somewhat difficult, upon a will framed like this, to say what the estate given by it is; but, it is not equally so, to say what it is not. If it be not a tenancy in common in fee, it is clear that the defendants are not entitled to any part, under the will of M. Tomkinson. Now, to put this construction on the will of J. Tomkinson, would defeat the intention of the testator, because his intention was to give the whole to the

survivor. But then it is said, that this is a contingent re mainder to the survivor, and such as is devisable; but supposing it to be a contingent remainder, I think it cannot be considered as devisable, because the person who is to take, is not in any degree ascertainable before the contingency happens; it cannot be said in whom the interest is, during the lives of the two sisters, nor consequently that it is in either of them during that period; and it is only in the event of survivorship that it becomes certain. Admitting therefore, the enlarged construction put on the statute of wills by Lord Kenyon and the other Judges in Roe v. Jones, how can a person be said to have a contingent interest, when it is uncertain whether he is the person who will be entitled to have it or not. And as to the case cited from Viner, to shew, that if this be a power to the survivor, it has been well executed, the distinction between that case and the present is, that there the power was given to a designated person to be executed upon a contingency; here it is given to a contingent person. Therefore, without determining what the precise estate given is, it appears to me sufficient to say that the defendants are not entitled,

"LE BLANC J. The defendants must support their case by shewing that this was a tenancy in common in fee, or such a contingent interest as was devisable by M. Tomkinson. On reading the words of the will, I think it is impos sible to say that it is the first, without rejecting material words. The words are, that all my real and personal estate be left equally to my sisters, Mary and Elizabeth, or to the survivor, and to be disposed of by the survivor as she may by will devise.' In order to construe this to be a tenancy in common, it would be necessary to strike out the words, to the survivor, and to be disposed of by the survivor,' which are inconsistent with a tenancy in common, and thus to take away from the survivor the power of disposing of it. But as it is impossible to reject such material words, so we cannot intend that the devisor meant to give a tenancy in common in fee. Upon a will framed like this, I should perhaps feel great difficulties in determining what

3

precise estate was given, but I think it is quite clear, that we cannot put that construction on it which would reject material words.

“DAMPIER J. In Selwyn v. Selwyn, the person who was to take was apparent; there was, therefore, persona designata; and so it is evident Lord Mansfield considered, from what he said of that case in Roe v. Griffiths. I am not aware of any decision which reaches a case where the person is uncertain.

Per Curiam,

Judgment for the Plaintiff."

WILKINSON v. ADAM.

1 Vezey and Beames, 422.

Natural Children-under what words entitled.

The opinions of the judges, and the judgment of the Lord Chancellor will inform the Reader sufficiently of the circumstances, and points of the case.

"The following written opinion was sent by Baron Thompson, and the Justices Le Blanc and Gibbs, to the Lord Chancellor.

"The question to which our present opinion will be confined, is, whether the three natural children of John Wilkinson, by Ann Lewis, born before the making of his will of November 29th, 1806, are entitled to take his real estate by force of that will alone.

"The facts, out of which this question arises, are these: Mr. Wilkinson being seised of a very considerable real estate, and possessed of personal property to a very large amount, on the 29th November 1806, made his will, duly executed and attested for passing real estates. At this time he had a wife, Mary Wilkinson, still living, but no children

by her. A woman of the name of Ann Lewis was living with him, by whom he had three natural children: Mary Ann, born July 7th, 1802; Jonina, born August 6th, 1805; and John, born October 8th, 1806. All these children, at the time when the testator made his will, had acquired the character and reputation of being his natural children by Ann Lewis. The testator's wife, Mary Wilkinson, died in December 1806. Subsequent to her death, the testator re-published his will, in the presence of three witnesses. On the 14th of July 1808, the testator died, leaving the said Ann Lewis, and his said three natural children by her, surviving him.

"From the material parts of this will, as they bear upoп the present question, we think it most certainly appears that the testator meant the above-mentioned devise to operate in favour of his illegitimate children, born, and to be born, by Ann Lewis, and that he had illegitimate children only in his contemplation.

"The manner in which he describes the children themselves, and Ann Lewis, their mother, as living with him, whilst his wife was then alive, the mode in which he appoints her guardian of such children, the limiting her annuity, and the compensation for the guardianship, to the time of her conti nuing single and unmarried, together with many other passages in the will, appear to us to place this intention beyond all possible doubt.

“It has been said that the testator might, when he made his will, have looked to the possibility of his wife's dying before him, of his marrying Ann Lewis, and of his having children by her; and that such children may have been the objects of his intended bounty, under the above bequest: but it is impossible for any man, looking through the whole of this will, to suppose that he entertained any such intention; or that he had any such objects in view; and it is observable, that he has evidently contemplated a state of things, in which the event of his marriage with Ann Lewis would have been impossible; and yet his children by her are still to take, for he has bequeathed his mansion-house at Castle-Head, and certain other parts of his property, to his wife for her life, and after her decease to Ann Lewis, for her life, and after

the decease of both, to his children, by Ann Lewis. Now, supposing these several bequests to take place in the order in which they stand, the wife of the testator must have survived him, and his children by Ann Lewis must consequently have been illegitimate. We think therefore, that his illegitimate children, born, and to be born of Ann Lewis, were the intended, and probably the sole intended objects of his bounty. We also think, that if he had any illegitimate children by her, after his will was made, such future children could not have taken for the reason which is to be found in all the authorities upon this subject; that an illegitimate child can only take by his reputed name of child; and that, until he is born, he cannot acquire that name by reputation. "But with respect to the three children, who were born before the making of the will, the depositions prove most abundantly, that they had then acquired the reputation of being the children of the testator, by Ann Lewis; and thinking for the reasons above given, that they were the intended objects of the testator's bounty, we think that they are intended to take the real estate under the will itself, without the aid or explanation of any other papers.

"It has been argued, though not much pressed, that this devise applies only to future illegitimate children; and is therefore void: but, looking to the different parts of the will, we think it clearly appears (if that were necessary,) that the testator had in his actual contemplation the illegitimate children, who were then born, as well as those whom he might afterwards have by Ann Lewis. It was also urged, that as the testator re-published his will after the death of his wife, and when the event of his marrying Ann Lewis was thereby brought within his own power, it is fairly to be presumed, that, under the description of his children by Ann Lewis, he meant such children as he might have by her, if he should afterwards marry her; but we think, that in the construction of this devise, the intention of the testator is to be collected from the state of things at the time when he made his will, not when he re-published it; and we also think, that if the alteration which took place in the interval between the making and re-publishing his will, were taken into the account, enough would still remain to shew that his