It is the opinion of the Court, that the testator intended to designate the two children of the Rev. ¡T. Miles by age, and not by name ; and that those who answered that description at the time when the will took effect, are entitled to the legacies of fifty dollars apiece. John R. died before the testator made his codicil, which ratified his former will in all respects not altered by the codicil itself; and the codicil takes no notice of the legacies to the two oldest children of Mr. Miles. A codicil is considered as a republication of a will; so that lands bought after the will, and before the codicil, pass by the will. Barnes v. Crowe, 1 Ves. jun. 498. The plaintiff was one of the two oldest children of Mr. Miles when the codicil was made, and when the testator died.
In Viner v. Francis, 2 Bro. C. C. 658, a devise “ to the children of my late sister A,” was held to enure to two surv'Vmg children, although at the time when the will was made *217A had three children living. One of them died after the will was made and before the testator died.
But the case of Lady Lincoln v. Pelham, 10 Ves. 172, is more applicable. There the testator devised to the younger children of A. The second child having become the eldest, the only survivor was held entitled. The chancellor considering the persons as designated by age, and not by name, and that those should take who answered the description at the time of the testator’s death, the second, who had become the oldest child, was excluded.
In the case at bar the plaintiff was one of the two oldest children of Mr. Miles when the codicil was made and when the testator died ; and according to the sound construction of the will and codicil, we are satisfied it was the intention of the testator that the plaintiff should have the legacy in question.1
The defendant has made various objections to the right ol the plaintiff to recover in this suit, notwithstanding his right to the legacy.
It is objected, that no demand was made for the payment of the legacy. It appears that there was no other demand than is contained in the letters which the defendant acknowledged he had received from Mr. Miles. It is evident that the defendant considered Mr. Miles’s letter as a demand, for in his answer he says that he had been advised that it would be improper and unlawful for him to pay over the money, because the legacy had lapsed. It seems necessarily to be implied from the defendant’s answers, that the plaintiff had requested him to pay, and tiie refusal is put altogether upon another ground.
But it is objected further for the defendant, that the' plaintiff was not authorized to make the demand, and so it was merely void. If the defendant had originally made that objection and had persisted in it, it would have been fatal to this action. For the father, as the natural guardian, has no authority to demand and receive a legacy to his child.2 He had never obtained any letters of guardianship. In Com. Dig. Chancery, 3 G, 6, it is said indeed, that payment to the father of an infant, where the legacy is not of value to support the charge of a decree, shall be good, though the father afterwards fails ; and if it is a very small sum, the executor may pay it to the infant legatee, but not if it be a considerable sum. But such a rule is extremely uncertain. How much money will support the charge of a decree ? what is a considerable, and what a small sum ? To one man the amount in controversy would be very small, to another it would seem and be in truth very great. The rule could not, we think, be applied here at all, excepting in respect to sums obviously to be regarded as within the principle of de minimis &c., which would not extend to the legacy under consideration. In Dagley v. Tolferry, 1 P. Wms. 285, the testator gave £ 100 apiece to four infant children, and on his death-bed he said that his executor should pay the money to their father for the use of the infants ; but the payment was held invalid.1 In New York it is held that payment to the father as natural guardian is not allowable. Genet v. Talmadge, 1 Johns. Ch. R. 4. And that must be considered as the rule, in cases where there has not been a waiver of its application.
A demand by one having authority to receive and to discharge the legacy after it became payable, might have been insisted upon by the defendant. In the case of Prescott, Judge &c., v. Parker, 14 Mass. R. 431, it was held that no action on a bond given for the faithful performance of the trust of executor, would lie in consequence of his not having paid *218a legacy payable at a day certain, which had passed, but which legacy had not been demanded ; the executor in such case not being in any fault. And the Court intimated an opinion, that the same rule would apply, if the legatee should sue for his legacy according to the provision of the statute. And we are now of that opinion. The executor is not obliged to seek the legatee, but may properly wait until the money is demanded.2
But it s a familiar principle that a party may waive his rights. Quilibet renunciare potest juri pro se introducto.” If Mr. Miles had taken letters of guardianship and had sued as guardian, without having made any demand, the defendant would not have been obliged to make any exception on that account. He might have waived that matter, and rested upon some other point of defence, or have consented to have judgment rendered against him. But this suit is by prochein ami, and not by guardian, and the authority of the prochein ami is only commensurate with the writ; and so it never could have been in the power of a prochein ami to have made a demand prior to his admission to prosecute.
At the common law, infants were required to sue and to defend by guardian. Co. Lit. 135 b, note 220. The law has not been altered as to the manner in which they are to defend But by the statute of Westm. 1, c. 48, infants were authorized to sue by prochein ami in an assise, and by Westm. 2, c. 15, in all other actions. “ In omni casu quo minores infra cetatem implacitare possunt, concessum est fyc., quod propinquiores amici admittantur ad sequendum pro eis.” It was a cumulative remedy, leaving it optional for them to sue either by guardian or by next friend. Young v. Young, Cro. Car. 86; Goodwin v. Moore, ibid. 161. But whether the suit be by one or the other, he must be admitted by the court. If the suit be by guardian, it is not now necessary that there should be any other record of admission than the recital of the fact in the count;—•“ J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissus, queritur $•<:.” Rawlyn’s case, in Error, 4 Co. 53. It was formerly held that the defendant was not compellable to answer until the plaintiff showed a rule *219of court for his admittance ; Com. Dig. Pleader, 2 C, 1; but the rule now is, that the prochein ami, as well as the guardian, is to be admitted by the court without any other record than a recital in the count.1 Archer v. Frowde, 1 Str. 304. It must follow therefore, that the prochein ami, commencing his authority with the writ and declaration, can only maintain the suit for such causes of action as may be prosecuted without special demand ; as for personal injuries done to the infant, or for sums of money where the writ itself is considered as the demand. So that this objection would be fatal to the action, unless the defendant may be considered as having waived the necessity of any special demand.
And upon reviewing the letters of the defendant to the plaintiff, we are satisfied that he has waived all objections to the plaintiff’s right to recover, excepting only as to the construction of the will, viz. whether the testator intended that the infant for whom the plaintiff sues, should have the legacy as he claimed, or whether it was lapsed by the death of his brother John, as the defendant contended. In the defendant’s letter of December 16, 1822, after observing that his counsel had informed him, that “ another child could not.take the place of that which was one of the oldest when the will was made,” he says, “ if this is not a correct opinion, the money is at your service, and shall be paid to you without any further trouble on your part. My only object is to do the business as the law directs. It is equal to me — giving the plaintiff to understand, that he had no other desire than to have the correctness of that opinion ascertained by a legal adjudication. And in the defendant’s letter of the 28th February, 1823, the same point of controversy is stated. He says that he has been informed without hesitation that the legacy had lapsed. He made no other point or question. He did not call for a more formal or legal demand of payment. The plaintiff, lulled by these suggestions, took the mode that would be least expensive *220and troublesome, to obtain a legal decision of the only point in controversy. He purchased a writ and therein was legally admitted to sue for the infant. It is not fair or allowable, after a decision has been given against him upon the main, indeed upon the only question, to raise incidental and strict technical objections which would have been avoided, if the plaintiff had not been induced by fhe defendant to believe they would not be made. The plaintiff having been admitted by the Court to prosecute for the infant, may discharge this judgment, and it will bar any future action for the legacy.
For these reasons the Court is of opinion, that the defendant should be defaulted; and judgment is to be for the plaintiff for the amount of the legacy, with interest from the date of the writ. No interest is to be charged before that time, because the plaintiff was not authorized, before he was admitted to prosecute, to give a discharge that would be binding upon the infant, and if the defendant had paid it before suit he would have been entitled to have a bond of indemnity.1
See Lomax v. Holmden, 1 Ves. sen. 290; Emery v. England, 3 Ves. 232, Bowles v. Bowles, 10 Ves. 177; Ram on Wills, 50 to 52, (in Law Libr. No. 24, p. 28 to 30); Chadwick v. Doleman, 2 Vern. 528; Teynham v. Webb, 2 Ves. sen. 198, 210; Hall v. Hall, Ambl. 203; Broadmead v. Wood, 1 Bro. C. C. 77, Matthews v. Paul, 3 Swanston, 334; S. C. 2 Wilson’s Ch. R. 64; Savage v. Carrall, 1 Ball & Beat. 265.
Hyde v. Stone, 7 Wendell, 354; Cunningham v. Harris, cited in 3 Bro. C. C. 186; 2 Kent’s Comm. (2d ed.) 210, 220; Cooper v. Thornton, 3 Bro. C. C. 186; 1 Eq. Ca. Abr. 300; Gilb. Eq. Ca. 103.
See the remarks of Lord Hardwicke upon the case of Dagley v. Tolferry in Phillips v. Paget, 2 Atk. 80, in the course of which he says that “ the rule laid down in that case is too strict, and that Lord Cowper seemed, even by the report of the case, to have had a remorse of judgment at the time, for, by examining in the Register’s office, it appears that his lordship ordered the deposit to be divided between the parties.”
See Chapin v. Hastings, 2 Pick. (2d ed.) 362, note 1.
Judson v. Blanchard, 3 Connect. R. 579; Apthorp v. Backus, Kirby, 407; Stewart v. Crabbin's Guardian, 6 Munf. 280. In New York, by the Revised Statutes, (2 Rev. Stat. 446, § 2,) the appointment of a next friend is required before any process is issued in the name of an infant. Wilder v. Ember, 12 Wendell, 191.
See Daggett, Petitioner, post, 280.