construed in favor of the legatee as a gift of the larger sum. Seale v. Seale, I P. Wms. 290; Thompson v. Thompson, I Coll. 395; Cope v. Wilmot, I Coll. 396n; Gough v. Bult, 16 Sim. 45. Upon similar principles, the gift of the rest of a fund, if the rest cannot be ascertained, is void; as in a devise of such houses as she shall elect to A, and the others to B, where A dies before the testator. Boyce v. Boyce, 16 Sim. 476; Jerningham v. Herbert, 4 Russ. 388. Where an estate was devised to one generally, without expressing what estate, and the direction was added, that if he should die without children all the property remaining at his death should go over, it was held that the description of what went over was sufficiently certain. Burton v. Black, 30 Ga. 638. A devise of "what shall remain "be left" at the death of a legatee, where the property, or a part of it, is household furniture, farming utensils, and farm stock, expressly limited to the first taker for life, is not void for uncertainty, since these words may be construed as referring to the expected diminution of the property from its perishable nature, or by the use and wear of the first taker. Sarle v. Probate Court, 7 R. I. 270.

or

In the case of a fund bequeathed upon trust, to apply a portion to a purpose which is void and the surplus to charity, it seems the whole fund may be applied to charity, though the amount applicable to the invalid object may not be ascertainable. For instance, if a fund is given upon trust to apply the income in repairing a tomb, and to give the surplus to a charitable object, the charitable object is entitled to the whole fund. Fisk v. Atty. Gen'l, L. R., 4 Eq. 521; Hunter v. Bullock, L. R., 14 Eq. 45; Dawson v. Small, L. R., 18 Eq. 114; In re Williams, 5 Ch. Div. 735; In re Birkett, 9 Ch. Div. 576. See Fowler v. Fowler, 33 Beav. 616; Kirkman v. Lewis, 38 L. J. Ch. 570.

Possibly, if the invalid object is such that the whole fund might fairly be expended upon it, the whole gift will be void. Chapman v. Brown, 6 Ves. Jr. 404; Cramp v. Playfoot, 4 K. & J. 479.

The court will, if possible, ascertain the amount necessary for each object, in order to prevent the gift of the surplus from being void for uncertainty. Mitford v. Reynolds, 1 Ph. 185; Dundee v. Morris, 3 Macq. H. L. Cas. 134; Fisk v. Atty. Gen'l, L. R., 4 Eq. 521.

A direction that a legatee shall be maintained according to her condition in life, is not void for uncertainty. Cresap v. Cresap, 34 W. Va. 310.

A testator, by his will, gave to his wife absolute control of his estate, as to the settlement or income thereof, trusting that she "would advance the best interests of herself and children," and ordered that, if either of the children should treat her with disobedience or disrespect, such child should have no benefit of the property until his return to duty; also, that, upon the second marriage of the wife during the minority of the children, a person named in the will should have full power to invest the property for the benefit of the testator's heirs, the income to be subject to the control of the widow; also, that, upon the marriage of either of the children without the consent of the mother, he should forfeit all benefit arising from the estate; and, finally, that, upon the decease of the wife during the minority of the children, the before-mentioned trustee should be sole executor, to invest and dispose of the property so as to advance the interests of the heirs of the testator. It was held that the will contained no valid disposition of any part of the property of the testator. Bayeaux v. Bayeaux, 8 Paige (N. Y.) 333

Where There Are Two Subjects, One of Which Partially, and the Other Entirely, Satisfies the Description.- Where a subject is found that fits and satisfies a description in every particular, and another is found that does not satisfy the description in an important particular, the former, it is to be presumed, is the subject for which the description was intended. Thus M., by will, devised and bequeathed to his wife all the property, both real and personal, "that I made a deed of gift unto her dated Sept. 17, 1851." There were two deeds of gift to take effect at his decease, one of a number of negroes, and the other of real estate, horses, stock, farm utensils, etc. It was held that the property mentioned in the latter instrument alone passed by the will. Booker v. Booker, 20 Ga. 786.

For a careful classification of the recent cases, upon the subject of uncertainty, see 1 Jarm. on Wills (6th ed.) 369.

Uncertainty as to Objects of Gift.A testator, by one clause of his will, gave to "C. and D., sons of M., $500 each; " by another clause, "to the seven children of R., $200 each; " by another

clause, to the heirs of F., $600 each. F. was still living. It was held that the devise to the heirs of F. was void for uncertainty. Timberlake v. Harris, 7 Ired. Eq. (N. Car.) 188.

A testator domiciled in New York, devised and bequeathed certain property to "five persons who shall be named and appointed as trustees by the supreme court of Vermont, to establish an institution for the education of females," to be located in Middlebury, Vermont. It was held that the bequest was void for uncertainty as to the objects of the gift. Bascom v. Albertson, 34 N. Y. 584.

A testatrix made the following devise: "I desire that, at my decease, after my just debts are paid, my property may be divided in the following manner,-To the Bible Society, Education, Colonization, and Home Missionary Societies, each five hundred dollars." It was admitted that these societies were not described by their proper corporate names, though they were well known and usually called by those names. It was held, the descriptions not being correct on the face of the will, so as to designate with certainty what were the objects of her bounty, that the legacies were void for uncertainty in the description of the persons who were to take. Taylor v. American Bible Soc., 7 Ired. Eq. ( N. Car.) 201.

A testator devised and bequeathed to his executors real and personal estate, for the purpose of creating three institutions of learning, in certain places specified, and ordered that any overplus of the property given for that purpose should" be used for the education of such youth as are not able to pay teachers fees," and that his "relations be admitted as students, free of tuition fees," at any of such seminaries. It was held that the devise and bequest were void for uncertainty as to the beneficiaries thereof. Literary Fund v. Dawson, 10 Leigh (Va.) 153.

A bequest in the following language: "Any surplus income that may remain, to the extent of $1,000 per annum, I direct to be expended, by my trustees, for the support of indigent, pious young men preparing for the ministry, in New Haven, Connecticut," is void for uncertainty. White v. Fisk, 22 Conn. 31. A devise to the persons who at the time constitute a voluntary association, is not void for uncertainty, but they will take in their individual and not in

their associate character. Bartlet v. King, 12 Mass. 537.

A legacy to an unincorporated society is good, if there be enough to identify the party intended. Parker v. Cowell, 16 N. H. 149.

A bequest of the proceeds of a certain estate for a son and his family, or such of them as the trustees may think proper, in such manner and at such times as the trustees may think proper, support in this clause being meant to include education as to the children, is not void for uncertainty, "his family' being construed to mean his children. Whelan v. Reilly, 3 W. Va. 597.

A clause in a will, in the words, "the remainder of my estate I do hereby devise to the poor and needy, fatherless, etc., of (two townships named), to such poor as are not able to support themselves, to be divided as my said executors may think proper without any partiality," is a valid bequest. Landis 7. Wooden, I Ohio St. 160.

A will, after appointing an "administrator," and making provision for the sale of certain lands, ordered the proceeds to be divided as follows: "Onehalf shall go to the school district in which the farm lies, and shall be under the control of one person elected by the people of the district, and he shall be elected for four years at one time, and be required to give security for the faithful trust put in his hands, and no one shall receive any per cent. for their trouble; this shall be loaned out, and none of it shall be used except the interest, and it for no other purpose than for schooling the children; and the other half shall go to the support of the poor of Madison county, but none of it shall be used but the interest; but first the administrator shall have a reasonable pay out of the proceeds of the land for his labor." It was held that these bequests were not uncertain as to object or recipient. Heuser v. Harris, 42 Ill. 425.

A testator made the following bequest: "I give and bequeath to M., N., and G., and to their successors forever (who shall, as a board of trustees, add to and perpetuate their number, so long as in their opinion the objects of this bequest shall require it), all my estate, to be held by them in trust, for the promotion of education among the Indian and African children and youth of the United States or elsewhere, as in their judgment they shall deem best. I leave it entirely with them to decide

in what manner to expend the bequest to secure this object, either by using the principal for the education of a number of youth, and thus prepare them for immediate usefulness; or to use only the annual interest, and educate a smaller number, and thus continue; or if they shall judge it best, let them use the whole amount and establish an academy, to be a lasting benefit to that class of my fellow-men for whose benefit I have given all my property; wishing it to be used in that way, time, and place which they shall judge best, after due consideration, upon the condition that the people of color shall be in, in the United States, at the time that this bequest shall be at their disposal." It was held that the bequest was not void for uncertainty, either as to the objects of the charity, or as to the mode of carrying the charity into effect. Treat's Appeal, 30 Conn. 113. See further, on this question, Carter v. Balfour, 19 Ala. 814; State v. Wiltbank, 2 Harr. (Del.) 18; State v. Walter, 2 Harr. (Del.) 151; Sweeney v. Sampson, 5 Ind. 465; State v. McDonogh, 8 La. Ann. 171; Preachers' Aid Soc. v. Rich, 45 Me. 552; Trippe v. Frazier, 4 Harr. & J. (Md.) 446; Dashiell v. Atty. Gen'l, 5 Har. & J. (Md.) 392; Phillips Academy v. King, 12 Mass. 546; First Universalist Soc. v. Fitch, 8 Gray (Mass.) 421; Dexter v. Gardner, 7 Allen (Mass.) 243; Atty. Gen'l v. Reformed Protestant Dutch Church, 33 Barb. (N. Y.) 303; State v. McGowen, 2 Ired. Eq. (N. Car.) 9; Hester v. Hester, 2 Ired. Eq. (N. Car.) 330; Bridges v. Pleasants, Ired. Eq. (N. Car.) 26; Witman v. Lex, 17 S. & R. (Pa.) 88; Gallego v. Atty. Gen'l, 3 Leigh (Va.) 450.

Misnomer as to Object or Subject-matter. A gift by a will to a corporation

by an erroneous name, will not be defeated where the description of the corporation given by such name, or otherwise, is sufficient to enable the court to identify the legatee with certainty by the aid of extrinsic evidence. Moore v. Moore, 50 N. J. Eq. 554; Tallman v. Tallman (Super. Ct.), 23 N. Y. Supp. 734.

A devise in a will of land described as the southeast quarter of a certain section of land, which southeast quarter did not belong to the testator, will pass the title to the southwest quarter of such section, which testator did own, where, in the preceding clause, the testator had accurately described the property which he owned, and the identification of such southwest quarter as the subject of the devise would be complete, if the reference to the southeast quarter were rejected without any substitute therefor. Eckford v. Eckford (Iowa, 1894), 58 N. W. Rep. 1093.

1. See the remarks of Lord Westbury in Parker v. Tootal, 11 H. L. Cas. 161; Onseley v. Anstruther, 10 Beav. 459; Ives v. Dodgson, L. R., 9 Eq. 401; Ex p. Wynch, 5 De G. M. & G. 221; Langston v. Langston, 2 Cl. & F. 194; Matter of Vower, 113 N. Y. 569. See Deering v. Adams, 37 Me. 264; Chinn v. Respass, 1 T. B. Mon. (Ky.) 25; Peckham v. Lego, 57 Conn. 559; Bentley v. Kaufman, 12 Phila. (Pa.) 435; Metcalf v. First Parish, 128 Mass. 370; Masterson v. Townshend, 123 N. Y. 458; Sibert v. Cox, 100 Ind. 392; Hollingsworth v. Hollingsworth, 65 Ala. 321; Boston Safe Deposit, etc., Co., 7. Coffin, 152 Mass. 98.

2. Lord Eldon in Wilkinson v. Adams, 1 Ves. & B. 466; McKeehan v. Wilson, 53 Pa. St. 77; Piper's Estate, 33 Leg. Int. (Pa.) 228; DeSilver's Estate, 142 Pa. St. 75; Jacob's Estate, 140 Pa

St. 268. See Post v. Hover, 33 N. Y. 593; Sutherland v. Sydnor, 84 Va. 880; In re Reinhardt's Estate, 74 Cal. 371; Grout v. Hapgood, 13 Pick. (Mass.) 164; Ferson v. Dodge, 23 Pick. (Mass.) 287; Hayden v. Stoughton, 5 Pick. (Mass.) 536; Denise v. Denise, 37 N. J. Eq. 163; McCoury v. Leek, 14 N. J. Eq. 70; McMichael v. Pye, 75 Ga. 191; Rusing v. Rusing, 25 Ind. 63; Waugh 2. Riley, 68 Ind. 482; Kelly v. Stinson, 8 Blackf. (Ind.) 387; Howard v. American Peace Soc., 49 Me. 288; Hollingsworth v. Hollingsworth, 65 Ala. 321; Ridgely v. Bond, 18 Md. 448; Edens v. Williams, 3 Murph. (N. Car.) 27; Eneberg v. Carter, 98 Mo. 647.

1. Pullen v. Randell, 1 J. & W. 196; Wright v. Denn, 10 Wheat. (U. S.) 204; McLellan v. Turner, 15 Me. 436; More v. Diamond, 5 R. I. 126; Bowers v. Porter, 4 Pick. (Mass.) 198; Crane v. Doty, Ohio St. 279; Burkhart v. Bucher, 2 Binn. (Pa.) 455; Dewitt v. Eldred, 4 W. & S. (Pa.) 414; Dixon v. Ramage, 2 W. & S. (Pa.) 142. See Den v. Cook, 7 N. J. L. 41; In re Reinhardt's Estate, 74 Cal. 365; Dudley v. Mallery, Ga. 52; Kelly v. Stinson, 8 Blackf. (Ind.) 387; Matter of Herrick's Estate (Surrogate Ct.), 12 N. Y. Supp. 105; Manigault v. Holmes, 1 Bailey Eq. (S. Car.) 298; Carr v. Porter, i McCord Eq. (S. Car.) 60.

2. 1 Jarm. on Wills (5th ed.) 525; Harris v. Harris, Ir. L. R., 3 C. L. 294; Circuitt v. Perry, 23 Beav. 275; Wigram, V. C., in Adams v. Adams, 1 Hare 540; Lord Brougham in Yates v. Thomson, 3 Cl. & F. 572; Wright v. Wyvell, 2 Vent. 56; Right v. Hamond, 1 Stra. 427; Dashwood v. Peyton, 18 Ves. Jr. 27; Williams v. Allen, 17 Ga. 81; Benson v. Hall, 150 Ill. 60; In re Swenson's Estate, 55 Minn. 300. See Box v. Barrett, L. R., 3 Eq. 244; Langslow v. Langslow, 21 Beav. 552; Lane v. Wilkins, 10 East 241; Ralph v. Watson, 9

L. J. Ch. 328; West v. Culliford, 3 Hare 265; Poulson v. Wellington, 2 P. Wms. 533; Hunt v. Evans, 134 Ill. 496; Clamorgan v. Lane, 9 Mo. 446; Gaines v. Spann, 2 Brock. (U. S.) Ši.

A testatrix recited in her will that she wished to place all her children on an equal footing as to their worldly advancement, and that, inasmuch as her son B had been better provided for by his uncle A than she could do for her other children, she therefore gave him nothing. It appeared that the property devised by A to B was in fact the property of the testatrix. It was held that the above recital was not a ratification of the will of A, and did not adopt such devise, and that the heirs of the testatrix were not estopped by it to deny the validity of the will of A. Clamorgan v. Lane, 9 Mo. 446.

Upon the same principle, a gift to A cannot be implied from a recital that the testator is about to make a conveyance to him. Hurlbut v. Holton, 42 Ñ. J. Eq. 16.

3. Wigram, V. C., in Adams v. Adams, 1 Hare 540; Lord Brougham in Yates v. Thomson, 3 Cl. & F. 572; Bibin v. Walker, Ambl. 661; Hunt v. Evans, 134 Ill. 496; Marsh v. Hague, I Edw. Ch. (N. Y.) 174; Hyatt v. Pugsley, 23 Barb. (N. Y.) 285; Atwood v. Geiger, 69 Ga. 498.

"Thus a gift alleged to be 'in addition' to a prior gift, where there is, in fact, no such prior gift, is sufficient evidence of an intention to confer the supposed prior gift. Jordan v. Fortescue, 10 Beav. 259; Farrar v. St. Catherine's College, L. R., 16 Eq. 24. So a statement that the testator does not give a legatee a certain sum because she is absolutely entitled to it, when, in fact, it is in the disposition of the testator, amounts to a gift of the sum in question. Hall v. Leitch, L. R., 9 Eq. 376. But a mere recital in a codicil of

a supposed gift by will, will not amount to a gift. In re Arnold's Estate, 33 Beav. 171." Theobald on Wills (2d ed.) 574.

1. Theobald on Wills (2d ed.) 574; Sherratt v. Oakley, 7 T. R. 488; Smith v. Fitzgerald, 3 Ves. & B. 2; Mackenzie v. Bradbury, 35 Beav. 620; Nugent v. Nugent, Ir. R., 8 Eq. 78; Ives v. Dodgson, L. R., 9 Eq. 401.

The principle will not be applied where its effect would be to take away an express bequest by an earlier in strument to some one else. Thus, in Re Smith, 2 Johns. & H. 594, a testator gave by will £3,000, upon trust for A and her children, and after the decease of A, without issue, for the children of B. By a codicil of later date, the testator recited that he had, by his will, given the £3,000 to A for life, with remainder to her children, and afterward to B for life, with remainder to his children, and revoked the will as to £2,000, part of the £3,000, from and after the devise to A and her children, and, instead of giving the said sum of £2,000 to B and his children, bequeathed the same to C. It was held that the erroneous recital in the codicil that the £3,000 was given to B for life, did not amount to a gift of a life estate in the £1,000 which remained unrevoked. Wood, V. C., said: "It was clear, therefore, that he intended to raise the whole legacy to £2,000, though he made a mistake in reciting the amount of the previous gift. But in this case I am asked to deprive a class of legatees of a clear specific gift, by force of an erroneous recital in a subsequent instrument. The codicil does not purport to give anything additional to the objects of the original gift, but to take away part of what the testator supposed himself to have given. It would be a perversion of the principle, that an erroneous recital of a gift by the same instrument may be equivalent to an actual gift, to apply it so as to take away an express bequest by an earlier instrument to some one else,

and this where the codicil is not intended to confer any bounty upon the real or supposed objects of the original gift."

An

References to a Person as Heir Held to Create a Devise by Implication to That Person." Where the testator has evidently mistaken the law respecting the devolution of his property, yet, if he has by his will shown very clearly an intention that it shall devolve according to such mistaken notion, the intention will prevail. early case presents a very nice question of this nature. A testator having issue, by C., three daughters, S., A. and E., devised to C., for life, all his freehold wherever, until S., his heir came to twenty-one, paying to the heir 10 s. during the term, and to the rest, after fifteen years old, 20 s. apiece, and the heir to pay A. and E. £100 apiece, £40 at the decease of the wife, etc.; and if S., his heir, died without heir before twenty-one, so that the lands descended and fell to A., and then A. to pay to E., etc. It was argued that S. took nothing under the will by implication, there being no express devise to her. But, on the other side, it was contended that S. was the sole heir; for it was all one to devise to her as to make a stranger heir of his land; and here the daughter S. was not sole heir unless made so by the intent of the will, which six times called the eldest daughter his heir; otherwise, A., the younger daughter, would have equal share in the land, and also the legacies. Hale, C. J., said: "The testator was mistaken in his intent that the eldest daughter was his heir; also she that is called heir is to pay the portions to the younger daughters, and no provision is made for her. Therefore, albeit there is no express devise to S., yet, she being named his heir, this is sufficient to exclude the rest, and to make her sole heir.'" 1 Jarm. on Wills (5th ed.) *530. See Taylor v. Webb, Sty. 331; Parker v. Nickson, 1 De G. J. & S. 177. Compare Jackson v. Craig, 15 Jur. 811.

2. 1 Jarm on Wills (5th ed.) *528;