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2(](]).

Where the donn'cile is in a country where there is no
le.c loci as to legitimacy, but merely a personal law depen-
dent on the rcdigion of the ))arties, the court, in (he
aljsence (d' <'\ idence of religion, will not follow the
technical rules of Fnglish law, but a<h>j)t a \('ry lilici.il
construction in deciding who are to l)e included under
terms ex|»ressi\e of n-lationsliip (/>'-//•/->//• \. ( hd,- { iS'ii) ),

].. n. ;; \\ c nuj.

The rule that in construing will- and deed> rcdationship liuK- hh to

I • ,. I I I •. • . 1 . • 1 • • . Iinitiinncy

always is to be read jegitunafe reiationslnp i^ not now so ,„7„ ,.,,inxe(I.

.strictly observed a~ it (jn(;o was. Many of ibr old.r

decisions have been ex|»resslv overruled or dis>enled Irom.

Thus, ill In re W'al/.er, Wally-r \. /.'il//,ns, [\S\)1 ] 2 ('\i.

23M, Uo.MKU, . I., declares that /{,t;d,>/ v. .!/.<//*/ n/ ( I K30),

1 Uu.ss. tV .M \ . ."»>»l. which lay> ilouii thai '" w luiiev er the



82



Vmvv it. — Drsckh'tion of Donkes



Art. 13.



Rule applies,
save where
rclnitted b\'
surrounding
circumstance'
or context.



Examples of
rebuttal by
surrounding
circum-
stances.



uciicral (l('>('ri|iti<)ii of children will iiichiiic k'nitimatc
cliildrcii it cannot also lie extended to illoiiitimate
children " is no lono;er jS,ood hiw. And in In re Dcakin,
Slarkey v. E>ives^ [ISUi] 8 V\\. oD.j, Stiklino, J., declined
to follow /// rr Slan,U,'ii\-< Estate (IbOS), ") E(|. liUii. wjiich
lield that a o;il'r to an ille<i"itiinate person tor lite and
on her death without children to her next of kin, did not
])ass to the jxTsons who W(Hild lia\c heeii liei- next of kin
had sIk; l)een legitimate, and which has since been over-
ruled in In re Wood, Wood v. Wood, [liHj2] 2 ('h. 'At.
Anil, independently of decisions expressly overruled. th<'
strong tendency of recent decisions has been, in the words
of Kekewich, J., in In re Pdrker, Parker v. Osborne,
[1897] 2 Ch. 208, at p. 211, "'more and more to open the
door for the admission of those born out of wedlock, and
in particular to sanction a construction in their favour, if
it can fairly be extracted from the language of the will,"
or it may be added if it is fairly suggested by the sur-
rounding circumstances.

At the same time, the rule that terms of relationship
mean prima facie legitimate relationshij), still remains, and
is to be applied to the construction of all written instru-
ments where there is nothing to })revent its application.
And nothing will prevent its application except proof,
either arising out of the condition of things with reference
to which the instrument was made, or arising out of
the instrument itself that illegitimate relationship was
intended.

A good example of the condition of things wliich proves
that the instrument was meant to ai)])ly to illegitimate
relationshij) is given bv Lord Caikxs in ///// v. Crook
(187:i;, L. U. {] H. L. 2i]'>, at p. 283: "Suppose there is a
bequest 'to the children of my daughtci- daiie." .lane being
dead, and having left illegitimate cliildivn, Ijut having left
no legitimate children. There, inasmufdi as the testator
must be taken to have intended to benetit some children of



Chap. II, — Relationship. 83

his iJau^^iter June, and inasmuch as she hail no children Art. 13
who could be benefited except illegitimate children, rather
than that the becjuest should tail altogether, the courts will
hold that those illegitimate children are intended, and they
will take under the term ' children.' "'

Another recent example of a condition of things which
proves the instrument was intended to apply to illegitimate
relations is the case of In re Deakin, Starhey v. J\i/res,
[1894] 3 Ch. .Jtio. There a testator left the income of
his estate to his widow during her life, and gave her power
on her death to appoint a moiety of the rorjin.'; among
*• her relations." The widow, as the testator knew, was
illegitimate, and therefore couhl have no legitimate
relations except her own issue, and she had at the date of
the will been married many years, was forty-seven years
of age and still childless. On the other hand, her father
and mother had subsequently to her birth married and
had a family, with whom she had been brought up, and by
whom she was treated and regarded as a sister. On her
death, she, being still childless, appointed by her will a
moiety of her husband's estate to her brothers and sisters
and their children — among the latter being one who was
the natural chiM of a deceased sister : — J/eld, that bv
iM'ci'ssary implication, as defined by Eluox, ( '.. in
WHIan.wii \. Adam, siiju'a, "wife's relations" here iim-t
have Ix'cn iiicaiit to iiicludt' the natural relations wlio
would have been her legitimate relations had she been
legitimate, and that therefore the aj»|iointment was good
a'* to these. I'ut Ar/^/. fiirtliei. i li;ii the appointment to the
natural child of the decease<l >ister was bad, since there
was nothing in the surrounding circumstances, or nn the
face of th<! will, to -how thai it wa- inlendi-d l)Vllie le-ialor
to includrr the natural cliildreii of the wife"- relations
among the wife's relalion>.

It i- inipo^-ilile to lay <lown anv rule as to what l he KxampliH nf

... I • I ,«. "• • !• '• -I -w • , .irlillttul 1>V

court will tliMiK a Humcient Midicalioii in tlie will itsdi ,.,„,,,.,^, '



}S4 1*ai;t II. |)i>( iiirnoN <•!•• Donkks.

Art. 13. that the ti-.-tator intciidiMl to incliulc illc;^it iiiiatc a- well as
~^ Icgitimati- rclatioii- iimliT a term ol rrlat i(iii>lii|i. A lew

cxaiiijilcs ot" what has hccii so held ina\', however, he ^iveii.
rile nioth'ni law on the sul)jeet inav he said to date IVom
///// \. ('rn,,h (is;;)). L. \\. r, ll. L. l'i;.'). There, one
fl. ( ". wa> the widower of a deceased dau;^hter of the testator.
With the t(>stator's consent, he went throu^ih tlu^ ceremony
of niarria;:,)' with .Mar\'. another dau^^liter of the testator,
and at the date of the will Maiv was livino- witli him a.s
hi> wife. The testator in hi> will, after descril)in<;" J. ( '.
as Ids son-in-law, bequeathed his lea.seIioIds in trust for
•■ Marv the wife of J. ( ■.," for lite, for her sole and se})arate
use, in(lei)endent of the debts or control of " her present or
any after taken husband,'' and subject to certain other
trusts, on the death of Mary, " to the child if only one or
all the children if more than one of my said daufjhter
Mary 0, . . . P.ut if there shall not i)e any child of
niv dau;j^^hter M. ( '."" then over. ]\larv ( '. had several
children by d, ( ". durin;j; the testators life, as was known
to the testator, who treated them as his ij^randehildren :-
JIeld,X\\:\\ the>e children, tliounh iUei^it iniate. were entitled
to take under the eit't on their mothers death. Lord
( "AiitN'S, in his judgment, at j). 2<SG, says : '"It a])])ears to
me that the terms 'husband* and "wife." 'father* and
"mother.* and ' children,' are all correlative terms. If a
father knows that his dauiihter has children bv a connection
which he calls a 'marriage' with a man wlioin he calls her
"husband." termini;" the daughter the 'wife' of that
husband, 1 am at a loss to understand the meaning ot"
language if you are not to imjuite to that same }>erson,
when he speaks of the 'chihlren* of his daughter, this
meaning, that, as he ternu'd his daughter and the man
with whom she was living "wile" and " husband," so also
he means to term the offspring born of that so-called
"marriage* the children, according to that nomeiiclatuic.
That is all that vonr lordships have to find. If vou find
that that i^ the nomenclature use(l bv the testator, taking



Chap, 11. — Relationship. <S.'>

bis will as the iliotioiiary tVoni which you are to find the Art. 13.
nu'anino- ot the terms ho lias used, that is all which the
law, as I understand the cases, requires."

In SfaU'-Ihvinv v. JodrelU [1801] A. C. 304, the will
described various persons not legitimately related to the
testator as " bis cousins."' and subsequently there was a
residuary tjit't over to "my relatives hereinbefore named":
■ — IleliL that "hereinbetbre named" meant not hereinbelbre
mentioned by name but hereinbefore specified, and that
the illegitimate persons previously described in the will as
the testator's cousins were included aniono; the "relatives
hereinbefore named."

In /// re J\u-ktv, Parker v. (hborne, [1897] 2 Ch. 1^08,
the testator, after giving a legacy to an illegitimate nephew
of his wife, under the description of '" my wife's nephew
]{.."" left a residuary gift to his wife's " nejihews and
nieces " equally : — Held, that K. was included in the
residuary gift.

In In re Walker, Walker v. Liitf/en^s [1807] 2 Cll. 2:)i>,
the testatrix described G. S. A., the illejritimate daughter
«>f the testatrix's niece M. A., as " ^I. A.'s daughter
G. S. A.," and also as the; testatrix's '' grandniece." By
the terms of the will, on the death of a niece leaving issue,
the incoiii'' given by the will to the niece during a certain
periofl wa< to go over to such nieces issue. M. A. tiied
during this [teriod : — //> hi, that (1. S. A. was entitled to
the iii<M»mc during tin' rtniainder of it. And >ee I/i re
,Snulter, liedford \. Ihtnlu-.^ \VMY.\\ \ ('h. j'.I.S. and In re
Kiddl,-. C.nt V. K'nitle. ri'.IO:.^ W. \. .SI.

1' \lCA<;itAPH (2).

I nd< |t«'ndfntly of (piestions of eon^l rnclion. and on llir Wliai illc^-iti
ground that it is contrary to th.' pulicv nl tin- law ,^j """'• •■'"•'l'«'"

'^ . I . , ,111 liikr,

permit such gifts, gift> ma |e expressly or by neeosarv
ini|)li'aii(»n to iMe;:il iniati- jn-r-on- not begotttMi at the



'"^ti Pai;i' I L- - I)i-:sc'i;ii'i'ii'N (i|- Uonkks.

Art. 13. time tlic will (ir (iced como into opcriil ion that i>. at
tile (lato ot" cxofutioii ill the case of a ilccd. or tlici death
of the tcstatoi- in the cax' of a will arc \(ii(l ( Croo/: v.
///// (lS7('i ). ;irh. I). 77."')). This i- iin|Hni;mt when the
<rih is made to the ill(';i,it iiiiatf persons a- a fliiss — -as " ta
( ". n.'s cjiihlrcn hooottcii or to ix' b('<i<)tt('ii on tlio hody of
A. !'.." As will ])(' seen in tlic caso of a ^ift sitcli as tliis,
it" ( '. I), were niarricil to A. F>.. and the cnjoyMicnl of
the ^ift were jtostponcd, all the children horn hefore the
^itt took etiec't in enjoyment nii<;ht participate in it. See
p. 105, infra. But if G. D. were not niairied to A. B.^
only the illeo;itiniate children horn and (suhject to what
follows) those en ventre fa mh-c when the will oi- di^ed
came into operation could take, whether the ^ift was
immediate or postponed.

Example of A recent example of the exclusion of after-born illegiti-
mlgkimau- '"'"^^^ children where after-born legitimate children would
children fake is fn re Harrison, Ifarrisov \. Iliaxon, [l>Si»4] 1 Ch.

excluded. •'»^^1- There the testator h-l't the income of jiart of his
estate to his daughter A. J. H. for life. He described
A. J. H. as the wife of J. H., although to his knowledge
she was not legally d. H."s wife. d. 11. having ])reviously
l)een married to a sister of hers, then deceased. Upon the
death of A. J. H., the rorjnis of the gift was directed to
be divided among lier cln'ldren. At the date of the will.
A. J. H. had one child l)y d. H. After the testator's death
she had two more children l)y d. H. -. - Jleld. tliat though
it was clear from the terms of the will and the condition of
things with reference to which the will was nuide. that the
testator intended all A. J. H.'s children by d. H, to take,
and though under the gift if A. J. H. had contracted a
valid marriage and had legitimate children after the
testator's death, thev would take, yet tlie illegitimate
children born after the testator's death wer<' excluded,

Paragrajih 2, however, deals with a different point, and
one which can onlv arise in the case of iiifts made bv will.



Chap. II. — Relationship. ^^7

That point is. whcrlier illeoitiniate chiUlren begotten after •^^- ^^
the will wa? made. l)ut before it came into operation, can
take under a gift to children as a class ? It seems to be
clearly settled that where the gift is exj)ressly to reputed
children by a particular person afr(M - l)orn children so
reputed will take, whether they are described by their
relationship to the natural father or mother, provided, in
case of the father, he has before the will came into
operation acknowledged them as his children.

Thus, in Orrleston v. FuUahce (1874), 9 Ch. 147, a
te>tator made a bequest to his reputed children (•. and
E. and all other children whom he might have, or be
reputed to have, by M. L. (his deceased wife's sister),
then born or thereafter to be born. A third child, of
whom 31. L. was enceinte when the will was made, was
born durino; the testator's lifetime but after the date of
the will : — Held, that the third child was entitled to share
in the bequest. In In re Goodwin.'^ Trust (1874),
17 Kq. ;>!.">. Jessel, M.R.. interpreted this decision as
meaning that '" a gift by a testator oi- testatrix to one of
\\U or iier children by a particular j)erson is perfectly
good if the child has acquired the reputation of being such
a child as deserii)e(| in the will bet'ore the death (»f the
totator or testatrix.*"

A- pointeil out. however, by ('(•iToN. L..I.. in In re
linlhin. Jiv.nn, V. liolton (188(]), ;51 ch. I». .")12. at y. :)52,
( frrle.sfon \. FiilLdnrf. .<iif>r<i. "leaves untouched the rule
that there <-annot be a valid gift t(» a future illegitimate
child described onlv bv reier<'nce to pateniil\." The gift
there was not !(» a ••liilil liut to a re|iiiird child ol the
testator, and all the cotuM decided was that a child who
wa> begotten at tin- date of the will and was before the
t<-latoi'- death hi~ acknow |e(l;_'cd child, wa^ lii^ re|iiite(|
chilli within the meaning of the will. Where, howcxer,
the gift is to the '"idiild" of a man thec<iiirt will ne\er
hold that -iirroiindin;; ciicimi-ianco are sulli'icntly -lr«»ng



8tS l*AKi- !1. — Desckh'I'ion ov Donkes.

Art. 13. \{) ciialilc the (•(UiiM to drciilc lli.it 1)\' iiccc-sa r\ iiii|ili(':it ioii
tiiliirc illi'M it iiiiiii,. cliilih-cii wci'c iiitrmlcil io lie incliiilcd
ill the i;iri.

Tlili<, ill //I rr /yo/loii. livotvii v. Ii()ltiiii,( I.S.S,")). ;;i ( 'li. J).
nil', tlic t'licts were :i> follows: TIh' testator had <i;oii('
tiii'otii^ji ilic (•(■rcnionv of iiiarria^c with .1. ( '.. who hail
prcviuiisly Ix-cii married to (J. i>. The testator knew that
there \ver(> doubts as to wliethor (J. 1>. was dead, and a> a
matter of tact (J. !>. was fotuid to he li\iiit; alter ilie testa-
tor's death. Consequently the testator's ehildreii hv •!. < ".
were illegitimate. The testator, in his will, deserihed .).('.
as " his dear wife." He left her a life interest in his estate,
and subject thereto the estate was to be divided e(|ually
between "all and every my child or children." In th(»
t2;ift to the children, it will be noted, there was no refer-
ence to their being his children by .J. ( '. At the date of
the will, the testator had no children by d. ( '., but before;
his death she became enceinte of a child who was born
after the testator's death. The court held that this child
could not take under the gift to all and e\cry the testator's
child or chiUlren.

This decision was followed in /// /v- Slhur, l'i)liiii.<()n \.
Shau\ [1894] 2 (^h. "t'.\. and in /// rcdii Horlu^l , M<in.<cll \.
Allen, [1901] 2 Ch. 4-11. The latter was a very strong
case. A testatrix bequeathed her residuary estate in trust
(among others) for the children of her nephew, being
daughters who attained the age of twenty-one years. At
tlui date of the will the nej)hew' was living with a woman
who was his reputed wife and whom the testatrix believed
to be his wife, but in fact he was not married to hei-. The
nephew had two daughters bv his i-e|iuted wife at the date
of the will, and sub-eqiiciitl\- had a lliii'il ijaiigliter liv her,
who was born before the death of the testatrix : IL4d,
that the third dauijhter was not entitled to share in the <iift.

There are two grounds gi\-eii for these decisions. The
first is that an illegitimate child cannof take under a <rift



CnAP. II. Relationship. 89

to children unless, in the words of .Iamrs, L.J.. in Crook \. Art. 13.

Jlill (1871), L. ]{. (■) eh. ;m. at J). ;U5, '"there is so strono;

a ])rol)al)ility ot" intention to include, or not to exclude, the

children in cjuestion as that a contrary intention cannot be

supposed.*' Another ground is that stated by Cotton, L. J.,

in /// re Bolton, Brown v. Bolton (1880). 31 Ch. D. 542, at

p. 552, '• to ascertain whether a child is the testator's child

we should have to inquire into circumstances which the

law does not permit to be iiuiuired into " — that is. the

actual paternity ot" the child. It is difficult tor an ordinary

mind to see how either ot these ijrounds applies more

tjtronijly to after-l)orn children who are acknowledged by

their father than to previously born children not identified

l)y name. However, the second ground does not apply in

the case ot" relationship described 1)V uiatcrnitv. and

-accordingly the after-born illegitimate children so described

are admitted to claim under a gift to her children more

freely than those described l)y reference to their paternity.

See /// rr I last!,' .■< TrNst.'^ (1887), '^'j ( 'li. J). 7 2.S.

Tliu-. /// t/w Estate of Sarah Fro,ile;i. [1*105] P. lo7,
an unmarried woman by her will made in 187G left her
property in trust tor all the children who might " belong
to "' her at the date of her death. in l.S7<S she gave birth
to an illegitimate child who survived liei- : Held, that
the child was entitled. And see /// re Lorrlaml, Lorrlaml v.
Lnn-land. [UMM;] 1 Ch. 5 12.



Aur. 11. Wlure " Ifmue " is to hr read " Cliildreii."

Pri/nd facie the term " issue " of a certain person
includes all such person's lineal descendants. But
the teiin may be restricted by tb«' cnntcxi f>\' tlu;
instrument so as to inchuh; only tlic cliildnn of such
person ; and will be so restricted where in the case of
an original gift the person whose *' issm; " is spoken
of, or, in the case of a substitutional gift. tb<' lirst



iM) P.\i;t II. — Desckiition (U - Donees.

Art. 14. taker, is described as the " parent," " father," or
" mother" of the " issue."

Authoiitius. *• Although if is true that among lawyers 'issue' is
generally taken to mean descendants, we must not allow
ourstdvcs to l»e misleil 1)V that. We must not start with
any predis[)Ositioii to read the word in that way, hut we
must look at the will and ti-y and see whctlici- the testator
has shown what he meant when he used the word. The
word ' issue " is said to have a tlexil)l(> meaning — it may
mean ' children ' or it may ukmu descendants of any
degree. There is no hard and fast rule " (^pev Lindley,
L.J., in In re Birks, Kenyan v. Birkf, [1900] 1 (Jh. 417,
at p. 418).

'■ Of course, if the word ' issue * is used in a general
sense, it must liave the larger nuMiiing of ' descendants '
given to it ; hut it may be gathered from a will in a
particular case that the testator meant the word to have a
more restricted meaning, or that in one place he intended
it to have a restricted meaning and in other places the
wider " (^per Romer, L.J.. ihid.^ at p. 420).

The rule of interpretation by which " issue '' is to be
read as " children," where the ])erson whose "issue" are
in question is described as the " issues " ])arent, is usually
called the rule in Sihley v. Perry (1802), 7 Yes. 522,
though, as James, L.J., points out in Ralpli v. Carrick
(1879), 11 Oh. D. 873, at p. Siy2, it is rather Pruen v.
Osborne (1840), 11 Sim. 132, which decided it ; but it is
only one of many circumstances whicli may be sufficient
to restrict tiie meaning of " issue " to eliihh-en.

Thus, in In re Birkx, .<uj>ra, there were twelve distinct
legacies containing iiifts over to the "issue" of legatees
dying in the testator's lifetime. p]xcej>t in the case of the
eleventh legacy, the gift over in each contained words
clearly restricting " issue " to " children." In the eleventh
case the gift over to " issue " contained no words of



Chap. II. — Relationship. 91

restriction wharovcr :- -/AV(/. reversing the tlecision of Art. 14.
Kekewich, J., tluit in the ehnenth legacy "issue '" nuist ~^
also be read "children." (\j'. In n- WtiiiuJi. WaiKih v.
Ci'/ppa, [liH);i] 1 C'h. 741, where the word was not
'• issue " hut " heirs."

But tile rule will not \h' iipplicd where the gift is
substitutionary and the i)ers()n described as parent is not
the original legatee. Thus, in I^alph v. Carrir/c, supra, a
share of a testatrix's estate was given " to the chiUlren of
my late aunt Mrs. AVingate equally among tlu'ni, the
de-cendants (if any) of those who may have died being
entitled to the benefit wliieh their deceased jiarcnt would
have received had he or she been then alive " : — Jleld,
that " descendants "' is not as flexible a word as '• issue," but
that even if Mrs. Wingate's children's "issue" had been
referred to, the substitutionary gift would not have been
restricted to their children. And see Berty v. F/'s/ier,
[1903] 1 1. K. 4^4.



( i>2 )



ClIAl^'rHll III.
CLASSES.

AKT. I'A(;E

15. — Description of a rluss - - - - U2

16. — Gift siihjirt to (( poirer of tii'lrttiott - - - !)i")

17. — Gift to irroiiijlij <')i>i)nenited I'ldss ... - - <(i>

18. — Periixl of di!<tril>iitio)t (Ohoikj riass - - - \(\2

lit. — A.sceHainment uf chis.-i iiJk'ii' (jift is sjti'rlfir - - - 1()4

20. — Ascctininmcnt of ihiss irlurr i/iff is iinnr'tl - - - 1((5



Art. 15. — Descripfimi of a Class.

A GIFT is made to a class when (whether the donees
are individually named or not) it appears from the
instrument of gift :

(1) That they are to take as persons coming within

a general description {i.e., as a true class) ; or

(2) That although one general description will not

cover the donees, yet that the donor intended
them to take not as individuals, but as mem-
bers of a body of persons.

Ill l\l,i,ish„rii\. \V<dt,','. [I'.IOI] A. C. 1.S7, Lord Davky,
ill iliscii<>in;^ wliat is mciiiit by a class, says (at p. \\)'l) :
" I'rimd facie a class gift is a gift to a class consisting of
persons who are included and coiniirrlicndcd under some
general description and hear a certain relation lo the testa-
tor . . . But it may be none the less a class l)ecause some
of the individuals of the class are named. For example,
if a gift is made to 'all mv nephews and nieees inchiding
A.,' or if a gift is niaile ' to ( '. and all (itlier niv ne|)]ie\vs



ChAI'. III.— CLAS^SES. Oo

and nieces,* each of rliDM' would he a class gift. Stanhopes Art. 15.

Case (1850), 27 Beav. 201, is an cxainplc. . . . There

may also be a composite class, such as, tor instance, children

ot" A. and children of 13.: that would he a good class. Ou

the other hand, a gift to A. and all the chiUlren of B. is, in

my opinion, not a class gift. . . . But it is perfectly

plain that a gift in this form may be a class gift, if there

is to be found in the will a context which will show that

the testator intended it to lie a class gift."

In Be C/ut,>lins Trasfs (186:5), 12 W. B. 147, 8ir W. -M'-^ming ..f
, ,, ,. , . '• taking as a

r. \\ GOD, \ .-C, says that a gift to a class is "a gitt to dass."'
one set of persons all tilling one common character or
holding some definite position, and a gift to a number of
residuary legatees does not thereby constitute them a
class." The first part of this definition is hanlly accurate.
The principle laid down by Sir J. Bomilly, in Re Stan-
hope's Trusts (1859), 27 Beav. 201, and approved by
Chitty, d.. in Re Jackson, Shiers v. Ashu'orth (1883),
2.") ( 'li. I). 1112. i- iiioi-c in accordance with the decisions,
namely, tiiat a tcstatoi- ((luld make a gift in effect to a
class if from the turni t.t the gift it ajtpears that the
legatees are to take as a clas>. In other words the (pie>-
tion alwavs is, how did the donor intend the donees to
take, as disclosed liy the instrument itx'lf? if he intended
them to take as indi\ idiial-. e\cn tliougli they all cuinr



Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 13 of 42)