Lloyd v. Rambo , 35 Ala. 709 ( 1860 )

A. J. WALKER, C. J.

That the sixth clause of the will of Redding Simms, standing alone, would, by' virtue of the rule in Shelley’s case, have created an estate tail, if the subject of the bequest had been laud; and that the subject-matter being personalty, ;t vests the first taker with the absolute property, are propositions well sustained by the decisions of this court, and the reasoning and authorities adduced in those decisions. We therefore assert those propositions, on the authority of the cases cited below. — Ewing v. Standifer, 18 Ala. 400; Machen v. Machen, 15 Ala. 378; Hamner v. Smith, 22 Ala. 433; Lenoir v. Rainey, 15 Ala. 667; Dunn v. Davis, 12 Ala. 135, (which, it is said in Ewing v. Standifer, would have been decided differently, if the wrord children had been omitted;) Darden v. Burns, 7 Ala. 363.

None of our decisions will justify the conclusion, that any thing contained the sixth clause of the will so qualifies Ethe words “lawful heirs of her body,” as to make them words of purchase. — McVay v. Ijams, 27 Ala. 238; Flinn v. Davis, 18 Ala. 122; Powell v. Glenn, 21 Ala. 468; Williams v. Graves, 17 Ala. 62; Doyle v. Bouler, 7 Ala. 246 ; Bell v. Hogan, 1 St. 536.

[2.] The word heirs occurs in a clause preceding, and in one succeeding the sixth; and it is argued, that the words in those clauses must mean children, and that the testator must be supposed to have used the word in the same sense in the sixth clause. It is a general, but not a universal rule, that the same word is to be understood in the same sense, when it occurs more than once in the same will. A well-established exception to the rule is, that if .a word has a technical meaning in the law, and is accompanied by a context, in one clause, which shows the intention of the testator that it should be understood in a different sense, while in another clause it is used in reference to a different subject, being accompanied by nothing explanatory of it, the word is to receive in the latter clause its technical meaning. — Flinn v. Davis, supra; Carter v. Bentall, 2 Beavan, 522; Doe d. Cadogan v. Ewart, 7 Ad. & El. 636; Stratford v. Buckley, 2 Vesey, sr., 170-181; Doe d. Chattaway v. Smith, 5 M. & S. 126-131; Sheffield v. Orrery, 3 Atk. 282-288; Forth v. Chapman, 1 P. Williams. 664; 2 Williams on Ex. 928; 2 Lomax on Ex. (marg.) 76 ; Mazyck v. Vanderhorst, 1 Bailey’s Eq. 48; 2 Jar. on Wills, 419. It is not an unreasonable inference, that the omission of a qualification in one clause is the result of a design to leave the word in that instance to its technical meaning. This case falls precisely within the exception.

Decree affirmed.