Page:Harvard Law Review Volume 12.djvu/67

47 CLAIMS UNDER ALTERNATE AMBIGUITIES. 47 house," but " a specific house " in each case, so that selection by the devisees is out of the question. The testator has himself made the selection. What has he selected? The lawyer answers, "Nothing;" and the four houses, unfortunately unnumbered at the date of the will, will go to the heir at law, however friendly and eager to pool their claims A, B, C, and D may be. In Asten v. Asten,^ one of the devisees was the heir at law, and he of course claimed all the houses. The claims of the other devisees would not have amounted to unity, if joined, so no attempt was made to join them. But it is fairly certain, as the law stands, that if the heir at law had been a different person altogether, the four devisees could not have combined against him. And yet those four devisees would have represented every one of the twenty-four possible allocations of the four houses. The curious thing is that claimants entitled under the various possible constructions of a will are entitled to join their claims and ask for a declaration of intestacy as against the heir or next of kin, without troubling the court to construe the will as between them- selves in the first instance. That may be left for a future occasion, when the claimants under an intestacy are out of the way. This course is allowed because it is perhaps somewhat too hastily assumed that the court could construe the will if it tried. For instance, in Forester, In re, Jervis v. Forester,^ a testatrix left her residue for such charitable purposes as she should by codicil appoint, and by codicil directed that it should be paid to The Forester Charity Trustees, to be applied for the purposes of a cottage hospital and a convalescent home, the sites to cost ^2,000 and ;^5,ooo, and the building and furnishing ;^io,ooo and ;^30,ooo respectively. The residue, being about half a million, was largely in excess of the most extravagant requirements of a hospital and home built on such a small scale. The Forester Trustees and the Attorney-General joined forces against the next of kin, and suc- cessfully contended that there was a general dedication to charity, and no intestacy, as indeed was tolerably obvious. The actual destination of the surplus funds is still sub judice, and no doubt capable of decision if necessary ; but it was a distinct advantage to get rid of the next of kin at as early a stage as possible. A case in which the court has said that on a careful consideration of the 1 63 L. J. Ch. 838 ; [1894] 3 Ch. 260.
 * 13 Times Law Reports, 555.