PHYFE US. PHYFE.

without issue, before the decease of testator's widow. And this intention we think is expressed in the will.

The construction of the will turns upon the meaning given to the words "legal representatives," as used by the testator. Did he by these words mean the executors or administrators, or the next of kin of his sons?

These words "legal representatives" are often construed to mean next of kin. They are used in this sense in our statute of distributions. (2 Rev. Stat., 96, sec. 75, 4th ed., p. 281, sec. 82.)

In the following cases the words "legal representatives" were held to mean the next of kin, not the executors or administrators of the legatee. (Bridge vs. Abbott, 3 Brown's Ch. C., 224. Jennings vs. Gallimore, 3 Vesey, 146. Long vs. Blackall, 3 Vesey, 486. Robinson vs. Smith, 6 Simons' R., 47. Walter vs. Makin, 6 Simons' R., 148. Cotton vs. Cotton, 2 Beavan R., 67. Booth vs. Vicars, 1 Collyer's Chy. C., 6. See also, 2 Jarman on Wills, p. 39; and Watson vs. Bonney, 2 Sandf. S. C. R, 405.)

That the testator used the words "legal representatives" as meaning next of kin, is entirely clear from the twelfth section or item of the will above quoted: and there is nothing in the whole will inconsistent with this construction.

THE SURROGATE.-The testator gave his wife the use of all his estate for life, and on her decease or marriage directed the property to be sold, and after the payment of his debts, the residue of the proceeds to be divided into eight equal parts. He then provided, that in case his wife should re-marry, one-third of the proceeds of the estate should be invested for her benefit for life. By the next clause he gave one eighth part of the residue of the proceeds" of his estate to his son, "Isaac M. Phyfe, and to his legal representatives;" and by the next five clauses, "one other eighth. part" of his estate to each of several sons "and his legal representatives" and "the two remaining eighth parts" he requi

PHYFE VS. PHYFE.

red to be invested for the use of his son, D. W. Phyfe. The next article ran in this way: "Twelfthly. From and after the decease of my said wife, it is my will and desire, and I do hereby direct that the share or proportion of my said estate so directed to be invested for the use and benefit of my said wife, during her natural life, be equally divided between all my said sons, except my said son Daniel Watson Phyfe, for whose use and support provision has already been made, in manner herein before mentioned, and the legal representatives of such of them as shall be living at the time when such distribution ought to be made, share and share alike; the legal representatives or children of my said sons to be entitled to receive such part only as the parent would have been entitled to receive if living at the time when such distribution ought to be made."

The testator died in 1827, leaving surviving him his widow and seven children. William, one of his sons, died in 1842, and the widow died in 1845, without having married.

The first question that arises relates to the construction of the bequest to "William and his legal representatives." It must be observed here that the conjunctive term "and" forbids the idea that the gift was intended for W., "or" in case of his death," his legal representatives." A legacy in the alternative to "A, or his issue," to "A, or his legal representatives," may denote that succession or substitution was intended. But a legacy to "A, and his legal representatives," contains words of limitation, and not of succession or substitution. The cases in which "legal representatives" have been construed as intending "next of kin," are cases where the decease of the legatee was contemplated, and his representatives were to be substituted. (2 Jarman on Wills, 42, 1 Roper, 128, Williams on Ex'rs., 970), or where the first taker had only a life estate or qualified interest. The word "or" generally speaking implies substitution, so as to prevent a lapse; but here the term "and" is used, and cannot be capriciously changed. I am therefore of opinion that the legacy given to William by the eighth clause of the testa

PHYFE US. PHYFE.

tor's will, vested in William absolutely on the testator's decease, was not divested by William's death, but passed to his executor or administrator.

The will is very obscurely expressed, but the intention to limit the interest of D. W. Phyfe to two-eighths of two-thirds of the estate is most clearly indicated in the twelfth clause. He is directly excluded from any share of one-third, directed to be invested, in case of the marriage of the widow; and that one-third is given among the other sons. It is true that this clause is constructed on the hypothesis of the marriage of the widow, but almost the entire will seems to be constructed on the same hypothesis; and if it is to be construed literally and strictly, might end in results far different from the testator's design. I must therefore adhere to the general intent, so far as it can be gathered. The one-third which is the subject of the twelfth clause, is directed to be divided. among the testator's sons (except D. W. Phyfe), "and the legal representatives of such of them as shall be living at the time when such distribution ought to be made, share and share alike; the legal representatives or children to receive such part only as the parent would have been entitled to receive if living at the time when such distribution should have been made." The words children and parent being correlative terms, and children being used convertibly for legal representatives-the substitution here intended was that of the children, and not the next of kin of the deceased son. (Barstow vs. Goodwin, 2 Bradford R., 417.) But on the other hand, the whole clause shows an intention to give to the sons who should be living and the legal representatives of such as should not be living-meaning by legal representatives, children. There being no children of William, his share has either lapsed, or devolved on the other legatees. It has not devolved on the other legatees, because they take as tenants in common, and consequently it must be distributed among the testator's next of kin living at his decease, and their legal representatives, as in case of intestacy.

TAYLOR US. TAYLOR.

TAYLOR v8. TAYLOR.

In the matter of the estate of ABNER TAYLOR, deceased.

Contracts outstanding at the death of the intestate, for the improvement of real estate by the erection of tenements, and only partially fulfilled, are a charge on the personal estate, in the first instance. The contractor has a right of action against the administrator of the deceased party; and although the law may give him a lien on the land, still, as between the heirs and the next of kin, the personal estate is the fund primarily to be charged.

GEORGE CATLIN, for Administratrix.

W. J. STREET, for Heirs.

Case as agreed.

In the month of November, 1852, and in the month of January, 1853, Abner Taylor entered into two several written agreements with one Henry Simonson, to build for him, the said Abner Taylor, two houses at Port Richmond, Richmond County.

By the first agreement, said Taylor agreed to pay for the house therein mentioned as follows:-$300 on the execution of the agreement, $350 when the house should be scratchcoated, and $500 when the building should be completed. And $150 additional, for a barn, as follows: $50 on signing agreement, $50 when scratch-coated, and $50 when done.

By the second agreement, the said Taylor agreed to pay for the house therein mentioned as follows:-$300 on the execution of the agreement, $300 when the house should be scratch-coated, and $600 when the building should be completed.

That the said Abner Taylor paid on account of said houses. in his life time the following sums :—

On the house referred to in the first agreement, $750; and on the second, $300.

That said Abner Taylor also contracted with one James Dempster to paint one of said houses, and that the said

TAYLOR US. TAYLOR.

Dempster claimed to be due to him the sum of forty-nine dollars, of which the sum of twenty-two dollars was paid to him by the administratrix.

That said Abner Taylor died in the city of New York, in the month of March, 1853, intestate, and his widow, Susan A. Taylor, has been appointed administratrix by the Surrogate of the City and County of New York-and that neither of the houses was finished at the time of his death.

That after the death of the said Abner Taylor, Martinus S. Taylor and his wife commenced a suit in the Supreme Court, for the partition and sale of the land on which the houses above referred to were being built; and such proceedings were thereupon had that, by an order of said court, the said premises were ordered to be sold, by or under the direction of Henry B. Metcalfe, referee; and out of the proceeds of such sale the said referee was directed to pay to the above-named Henry Simonson the amount of his claim against the said houses; and also to James Dempster the amount of his claim; and also a certain mortgage, executed by said Abner Taylor, which was a lien on said premises. That in pursuance of said judgment, the said property has been sold, and out of the proceeds thereof have been paid to Henry Simonson the sum of $1141 92, and to James Dempster the sum of $27 85, in addition to the sum already paid him by the administratrix. The mortgage, amounting to about $320, has not yet been paid.

The question now arises, and for the purpose of avoiding expense and litigation, is submitted by all parties to the Surrogate, by whom are the above amounts to be paid by the heirs at law or by the administratrix? They were paid out of the land sold in the first instance, as a matter of necessity— for being liens, a good title could not be given to the purchaser without paying them, but whether ultimately the amounts paid are to come out of the heirs at law or the personal estate of the deceased in the hands of the administratrix? In many, perhaps most cases, the question would be unimportant, but in this, there being no children, and the personal