2. It is proposed to consider, 1. Who may be a legatee. 2. Under what description legatees may take.
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 Desauss. 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 Scho. & 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; Alleyn, 36; Styl. 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. Husb. and Wife, 326; 2 Rop. Husb. and. Wife, 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 designatae, 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 ú1000 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 relation-ship. 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, nomin-atim, 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 sbow 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 establisbed 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 uncer-tainty 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; GrimkÇ on Exec. ch. 5; Toll. on Executors, ch. 4.