it took an equal share with each of the other two natural children of the testator." 354. 343. The words child, issue, and the like, must be digtaken primâ facie to mean legitimate offspring; so that if there is a bequest to children, and there arest by 581. both legitimate and illegitimate children to answer the description, the legitimate ones will take in exclusion of the others. And where there was a dument bequest of the first annuity, that dropped in, to the eldest child of W. H.; and it was proved that the testator knew that W. H., with whom he was very intimate, was a bachelor, and had no legitimate child, but had an illegitimate daughter, and other children, who were treated by him as his children: it was held that the daughter was not entitled as the eldest child of W. H. It has been observed that W. H. being a single man, the event of his marrying and having legitimate children might fairly be looked to, and there was nothing apparent upon the face of the will which showed that the testator meant by the word child to describe an illegitimate child. For evidence is not admissible where the conflict is between the two claims of existing legitimate and illegitimate children; the will must be taken to mean the former. But where there is no legitimate off when the spring to claim, evidence may be received to show whom the testator meant by the term children. Thus where a testator gave to his children 5000l. each, and to the mother of his children 6000 rupees; and died a bachelor, but left illegitimate children, who were born at the date of the will; the Vice-Chancellor held, that evidence was admissible to show the state of the testator's family when he made his will; and taking that into consideration, he thought the legatees, whom the testator must have intended to describe, were not the possible progeny of a future marriage, but existing persons, children already born." In Wilkinson v. Adam," the Judges seemed to think, that where a devise evidently points at illegitimate children, and the words are large enough to include legitimate ones, they might both take together; but that if it was an established and inflexible rule that they could in no case take together under the description of children, they would rather be disposed to say, in the case before them, that legitimate children could not take, notwithstanding the generality of the words, than that illegitimate children should be excluded, to the disappointment of the clear and manifest intention of the testator. Lord Eldon, however, said it would be very difficult to persuade him that legitimate and illegitimate children could take under the same description. II. Some few persons, by the common law, are incapable of taking a legacy. Thus all traitors are said to be subject to this disability. A bequest to a bankrupt belongs to his assignees, if left to him before his certificate has been allowed by the Lord d excluded makers of wills, heretics, &c. &c. see Swinb. P. 5. Touch. 414. Godolph. 85. 277. a Toulson v. Grout, 2 Ver. 432. Chancellor, notwithstanding it may have been signed by the creditors and commissioners, and been delayed in consequence of a petition that is afterwards dismissed; unless the proceeding to stay the certificate was without foundation, and merely for that purpose. And if a legacy is given to a bankrupt upon a contingency, which does not happen till after he has obtained his certificate, it will belong to his assignees; provided the contingent interest is such as may be assigned or released. The express provisions of the legislature have also in a few instances created a disability as to legacies. Thus all children or persons sent beyond seas to be instructed in the popish religion, or to reside in any religious house, are disabled and made incapable, as to themselves only, to inherit, purchase, take, have, or enjoy any lands or tenements, legacies or sums of money, within the realm of England, until they conform themselves and take the oath prescribed. All persons after having been a second time convicted in a court of justice of having denied the Trinity, or the truth of the Christian religion, or the divine authority of the scriptures, were also rendered incapable of any legacy or deed of gift. But the more liberal and enlightened spirit of modern times has caused the с Tudway v. Bourn, 2 Burr. 716. Ex parte Ansell, 19 Ves. 208. Higden v. Williamson, 3 P. W. 132. Brandon v. Brandon, 3 Swanst. 312. 2 Wils. C. C. 14. Contra Jacobson v. Williams, 1 P. W. 382. 1 Eq. Ab. 54. Gilb. Eq. R. 144. See 6 Geo. IV. 16. 63. See Moth v. Frome, Ambl. 394. e 2 Jac. I. 4. 6. 3 Jac. I. 5. 16. The act of 3 Car. I. 2. (3.) which is much to the same purpose, seems in effect repealed by 31 Geo. III. 32. 4. See, on the acts affecting Roman Catholics, Mr. Butler's note to Co. Lit. 391, a. Burn. E. L. Popery. f 9 and 10 W. III. 32. removal of some of the legislative disqualifications; and this act, as far at least as regards persons denying the Trinity, is repealed," Artificers going abroad to exercise their trade, or who, being abroad, should not return within six months after warning given them, were rendered incapable of taking any legacy, or being an executor or administrator. This is now also repealed. Persons, again, in certain official situations, and others, not taking the oaths of supremacy and allegiance, or the sacrament, in the manner prescribed, are declared upon conviction in a court of justice incapable of any legacy or deed of gift. The annual indemnity acts, which are prospective, seem to render these disqualifications of little moment. d Two species of incapacity actually in force remain to be noticed. First, for putting an end to doubts that had arisen who were to be deemed legal witnesses to the execution of wills under the statute of frauds, it is enacted, that if any person shall attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate, except charges on land for payment of debts, shall be thereby given, such devise, legacy, &c. shall, so far only as concerns such person attesting the execution of such will or codicil, or any person claiming under him, be utterly null and void. The express words of this enactment, it has been held, are not restrained by the preamble of the statute, so 53 Geo. HI. 160. Extended to Ireland, 57 Geo. III, 70. b 5 Geo. I. 27. 3. 5 Geo. IV. 97. d 25 Car. II. 2. 5, Test Act. 1 Geo. I. 13. S. 8. 17. In the matter of Steavenson, 2 B. and C. 34. f 25 Geo. II. 6. 1. 3 i 40. that a legacy given to a subscribing witness of a will, where the testator has no real estate, is void.nelone 2ndly. It is enacted by the last mortmain act," that no lands or tenements, or money to be laid out eventhereon, shall be given for or charged with any cha ritable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution, (except stocks in the public funds, which may be transferred six months previous to the donor's death,) and unless such gift be made to take effect immediately, and be without power of revocation or reservation for the benefit of the donor; and that all other gifts shall be void. A charity has been defined to be a gift to a general public use, which extends to the poor as well as to the rich. The preamble to the statute of Elizabeth regarding charitable uses, specifies as such, gifts for relief of aged, impotent, and poor people; for maintenance of sick and maimed soldiers. and mariners, schools of learning, free schools, and scholars in universities; for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways; for education and preferment of orphans, and marriages of poor maids; for maintenance of houses of correction; for support and help of young tradesmen, handicraftsmen, and persons decayed; for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants in payment of levies and • Lees v. Summersgill, 17 Ves. 508. 9 Geo. II. 36. See on the former mortmain acts, Wilm. 9. Lord Hardwicke said it was a reproach to the law that such construction was put upon them as prevented their © Ambl. 652. |