Ellsworth, J.
We think the order of the probate court [622]*622is erroneous, and should be set aside: the error is, in excluding the appellant, Caroline E. Gold, from an equal share in the residuum of David Judson's estate.
The language of the will, giving this residuum, is as follows: “I give to the heirs of my brother Roswell Judson, deceased, the heirs of my sister Nancy Lockwood, the heirs of my brother Agur Judson, the heirs of my sister Hannah Sterling and the heirs of my sister Sally Sterling, the residue of my estate, to be equally divided between said heirs, each individual alluded to having an equal portion of the same.”
One of the principal questions raised in the case, is, from what date the will is to be held to speak ; from its execution, or the death of the testator? We had occasion to examine this question in the case of Canfield's appeal, tried at Litchfield, on the present circuit. Canfield v. Bostwick & al. ante, 550. We there held, that the general rule is, that a will speaks from the death of the testator. We see nothing that distinguishes this from that case, or that relieves it from the rule stated.
For some purposes, a will is considered to speak from its execution, and for others, from the death of the testator; the former being the period of inception, and the latter that of the consummation of the instrument. To determine to which of these the language points, is not generally attended with difficulty, and certainly not, where the language used, is, as in this case, general, and not limited, and is broad enough in describing the subject matter of the bequest, to embrace all the residuum, and as to the devisees, all the persons who claim to take. Wherever a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word now. Thus, to the descendants now living of a person, means those living at the date of the will, exclusive of such as come into being between that period and the death of the testator. Crosby v. Close, Amb. 397. Abney v. Miller, 2 Atk. 593. Blundell v. Dunn, 1 Madd. 433. All Souls College v. Coddrington, 1 P. Wms. 597. And the same is true, where the word now is combined with a term which could not have full effect according to its technical import, unless used prospectively, as [623]*623in the case of a devise to the heir male of the body of A, now living; under which the heir apparent of A, living at the date of the will, has been held to be entitled. 1 Eq. Ca. Abr. 214. 1 Vent. 334.
So words in the present tense have a similar effect: thus, all the property I am possessed of, at this date, (5 Ves. 816.) the devisee takes only what the testator then had. So in Bridgeman v. Dove, 3 Atk. 201. it was held, that a charge of all the debts I have contracted since 1735, extended to all debts owing by the testatrix, at her decease, including those she contracted after the period referred to. So in the description of the thing given, and the person or persons to whom given, it may be such as to embrace only the specific thing or persons described; as thus, the stock I now hold in Hartford Bank, or the children of my brother already born. But if the language is general, not specific, and not limited, the will speaks from the testator’s death, and of course disposes of whatever property the testator had, at that time, or to such persons as answer the description. So a general bequest of any particular species of personal property, as “my furniture and effects,” has been held to embrace property of this description belonging to the testator at his death. 3 P. Wms. 325. 1 Eq. Ca. Ab. 200. A will also is held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons, as to children, descendants, or next of kin, which apply to the persons answering the description, at the death of the testator, irrespective of those to whom the description was applicable, at the date of the will, but who died in the testator’s life-time. And where property is given to classes, or fluctuating bodies, to be divided at a future time, those in esse, at the testator’s death, answering to the description, will take the whole, and the estate will open for others of the class born afterwards, but before the period of distribution. Bowers v. Porter, 4 Pick. 198. and the cases there cited. 5 Cush. 153. 232.
The language of the present statute in England, (1 Vic. 26.) is, “That every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” This statute was passed to get [624]*624rid of the principle in their law, that a will spoke from its date, as to real estate; for by their law, no real estate passed by a will, but what the testator had, when he made his will; but as to personal property, the law of England and of this state now is, and has ever been otherwise. We have a statute in relation to real estate, substantially like the English statute above referred to.
If, then, this will is to speak from the death of David Judson, the testator, the next enquiry is, did the appellant, Caroline A. Gold, at the death of the testator, answer the description, “the heirs of my sister, Nancy Lockwood ?” We think she did ; the said Nancy was dead, and the appellant and her sister were her grand-children, and Charles Lockwood, their father, was likewise dead. Why then is she not an heir of the said Nancy? She answers fully to the description.
There was no question made, on the trial, but that the word “heirs” was used in this will, as a word of purchase, descriptio personœ. Certainly as to the “ heirs” of Charles Lockwood and the “heirs” of Philo Judson, and the “ heirs” of Roswell Judson, this is so; for the will speaks of the ancestors as dead; and so a legacy of 1,200 dollars is given to Sally Sterling, and then the heirs take their share in their own right. Doubtless this construction of the word is correct throughout; and we are not disposed to make any distinction to the contrary, if it were less obvious. If the word “heirs” was held to be used otherwise, and in its strict technical sense, as one of limitation, and not of purchase, it might be difficult to see how the heirs of Hannah Sterling and of Agur Judson and of Sally Sterling can take at all; for these several parents were living at the death of the testator; and according to the familiar maxim, nemo est hares viventis, there were no such heirs in being. Bowers v. Porter, 4 Pick. 208. This distinction is here, however, of no importance; for the appellant’s father and her grand-mother, Nancy Lockwood, were both dead, at the death of the testator; so that she was the heir of both, according to the most technical accuracy.
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Ellsworth, J.
We think the order of the probate court [622]*622is erroneous, and should be set aside: the error is, in excluding the appellant, Caroline E. Gold, from an equal share in the residuum of David Judson's estate.
The language of the will, giving this residuum, is as follows: “I give to the heirs of my brother Roswell Judson, deceased, the heirs of my sister Nancy Lockwood, the heirs of my brother Agur Judson, the heirs of my sister Hannah Sterling and the heirs of my sister Sally Sterling, the residue of my estate, to be equally divided between said heirs, each individual alluded to having an equal portion of the same.”
One of the principal questions raised in the case, is, from what date the will is to be held to speak ; from its execution, or the death of the testator? We had occasion to examine this question in the case of Canfield's appeal, tried at Litchfield, on the present circuit. Canfield v. Bostwick & al. ante, 550. We there held, that the general rule is, that a will speaks from the death of the testator. We see nothing that distinguishes this from that case, or that relieves it from the rule stated.
For some purposes, a will is considered to speak from its execution, and for others, from the death of the testator; the former being the period of inception, and the latter that of the consummation of the instrument. To determine to which of these the language points, is not generally attended with difficulty, and certainly not, where the language used, is, as in this case, general, and not limited, and is broad enough in describing the subject matter of the bequest, to embrace all the residuum, and as to the devisees, all the persons who claim to take. Wherever a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word now. Thus, to the descendants now living of a person, means those living at the date of the will, exclusive of such as come into being between that period and the death of the testator. Crosby v. Close, Amb. 397. Abney v. Miller, 2 Atk. 593. Blundell v. Dunn, 1 Madd. 433. All Souls College v. Coddrington, 1 P. Wms. 597. And the same is true, where the word now is combined with a term which could not have full effect according to its technical import, unless used prospectively, as [623]*623in the case of a devise to the heir male of the body of A, now living; under which the heir apparent of A, living at the date of the will, has been held to be entitled. 1 Eq. Ca. Abr. 214. 1 Vent. 334.
So words in the present tense have a similar effect: thus, all the property I am possessed of, at this date, (5 Ves. 816.) the devisee takes only what the testator then had. So in Bridgeman v. Dove, 3 Atk. 201. it was held, that a charge of all the debts I have contracted since 1735, extended to all debts owing by the testatrix, at her decease, including those she contracted after the period referred to. So in the description of the thing given, and the person or persons to whom given, it may be such as to embrace only the specific thing or persons described; as thus, the stock I now hold in Hartford Bank, or the children of my brother already born. But if the language is general, not specific, and not limited, the will speaks from the testator’s death, and of course disposes of whatever property the testator had, at that time, or to such persons as answer the description. So a general bequest of any particular species of personal property, as “my furniture and effects,” has been held to embrace property of this description belonging to the testator at his death. 3 P. Wms. 325. 1 Eq. Ca. Ab. 200. A will also is held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons, as to children, descendants, or next of kin, which apply to the persons answering the description, at the death of the testator, irrespective of those to whom the description was applicable, at the date of the will, but who died in the testator’s life-time. And where property is given to classes, or fluctuating bodies, to be divided at a future time, those in esse, at the testator’s death, answering to the description, will take the whole, and the estate will open for others of the class born afterwards, but before the period of distribution. Bowers v. Porter, 4 Pick. 198. and the cases there cited. 5 Cush. 153. 232.
The language of the present statute in England, (1 Vic. 26.) is, “That every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” This statute was passed to get [624]*624rid of the principle in their law, that a will spoke from its date, as to real estate; for by their law, no real estate passed by a will, but what the testator had, when he made his will; but as to personal property, the law of England and of this state now is, and has ever been otherwise. We have a statute in relation to real estate, substantially like the English statute above referred to.
If, then, this will is to speak from the death of David Judson, the testator, the next enquiry is, did the appellant, Caroline A. Gold, at the death of the testator, answer the description, “the heirs of my sister, Nancy Lockwood ?” We think she did ; the said Nancy was dead, and the appellant and her sister were her grand-children, and Charles Lockwood, their father, was likewise dead. Why then is she not an heir of the said Nancy? She answers fully to the description.
There was no question made, on the trial, but that the word “heirs” was used in this will, as a word of purchase, descriptio personœ. Certainly as to the “ heirs” of Charles Lockwood and the “heirs” of Philo Judson, and the “ heirs” of Roswell Judson, this is so; for the will speaks of the ancestors as dead; and so a legacy of 1,200 dollars is given to Sally Sterling, and then the heirs take their share in their own right. Doubtless this construction of the word is correct throughout; and we are not disposed to make any distinction to the contrary, if it were less obvious. If the word “heirs” was held to be used otherwise, and in its strict technical sense, as one of limitation, and not of purchase, it might be difficult to see how the heirs of Hannah Sterling and of Agur Judson and of Sally Sterling can take at all; for these several parents were living at the death of the testator; and according to the familiar maxim, nemo est hares viventis, there were no such heirs in being. Bowers v. Porter, 4 Pick. 208. This distinction is here, however, of no importance; for the appellant’s father and her grand-mother, Nancy Lockwood, were both dead, at the death of the testator; so that she was the heir of both, according to the most technical accuracy.
If, then, the appellant was heir of Nancy Lockwood, she takes by the description of heir in the will, unless there be something in the other parts of the instrument, which shows that the word “heir” is not used in its usual and legal acceptation. On the argument it was contended, that this was [625]*625the case. But evidence of such intent must be clear and decisive, or we cannot admit it to have such an effect. We are bound to suppose the testator used language in its usual and legal sense, and a devise to the heirs of a person generally, does not mean some of them, but all of them. The burden of proof lies upon the appellees.
And there is another familiar rule of law, which is applicable to this case, and must not be overlooked, viz., all parts of the will must, if possible, be allowed to have effect.
Now, the three circumstances which have been referred to, to prove the words “ heirs of Nancy Lockwood,” do not include the appellant and her sister, are, first, that the appellant and her sister, as the descendants of Charles Lockwood, take, by the will, a pecuniary legacy of 300 dollars; and if said Charles had lived, so as to have taken this portion himself, it is said, it would have been about 600 dollars. This accidental circumstance is of little weight; for, at the best, the amount of the testator’s property, at the date of his will, might have been different from what it was at the time of his death, and so the 600 dollars gives us no satisfactory rule. And so we perceive that the families of the brothers and sisters are not to participate with exact equality. Sally had a legacy of 1,200 dollars; yet her one child takes, as her heir, as much as the children severally of any of the other families, &c. We know not, nor can we speculate upon, the motives and purposes which influenced the testator in distributing his estate as he did, beyond what we find expressed in the will itself. We have no right to assume, that 600 dollars given to these grand-daughters, was, in the view of the testator, to exclude them from taking their shares of the residuum under the clear and unambiguous description of “the heirs of Nancy Lockwood.”
Nor does the second circumstance urged strike us with any more force, viz., that the appellant has this legacy of 300 dollars given her, in the first instance, in the will, and therefore she is not to participate in the residuum. Nothing is more common than for a testator to give legacies to the objects of his bounty, for the very purpose of making a distinction in their favour, and then order the residuum to be equally divided among all the devisees. He may have rendered unequal assistance to them while in life, and takes this method, [626]*626as the last opportunity, to equalize their shares; or he may have thought it judicious, or there may have been other considerations, for this seeming partiality. The case of Holloway v. Holloway, 5 Ves. 399. if authority was necessary, is most decisive. The testator devised 5,000 l. in trust for his daughter for life, and then 1,000 l. of it after that, for another person, and the 4,000 l. in trust “for the person or persons who should be his heirs at law.” She and two other daughters were the testator’s heirs at law. Sir R. P. Arden, M. R., held the heirs, at the time of the testator’s death, to be entitled, from the absence of any expression showing that these words were something very especial. See 8 Ves. 42. Doe d. Garner & al. v. Lawson & al. 3 East, 278.
The third circumstance urged, is the fact, that these grand-daughters are, in the fore part of the will, called heirs of the testator’s nephew, Charles Lockwood, and, it is said, ought not, therefore, in the after part of the will, be held to be heirs of the grand-mother. It is true, they are first called “heirs,” but in the same clause, they are called children, and were it of importance, the language used in both places is matter of description, and nothing more. Certain it is, they are not the less heirs of Nancy Lockwood, and none the less included in that description, though they be heirs of said Charles. They are heirs of both; and this cannot be denied or evaded; and any inference to the contrary, drawn from this slight circumstance, is mere speculation.
We need not remark, that the devisees are to take per capita, this being the express language used in the will.
We advise, that there is error in the decree of probate, and that it be reversed.
In this opinion the other judges concurred.
Decree reversed.