McGuire v. Westmoreland , 36 Ala. 594 ( 1860 )

STONE, J.

The word children, in its general signification, includes only those persons who are descended from an ancestor, or propositus, in the first degree. There are two classes of eases, in which the word children, in a devise or bequest, will be construed to include grandchildren : 1st, from necessity — where the will would remain inoperative, unless the sense of the word “children” were extended beyond its natural import; and, 2d, where the. testator has clearly shown that he did not intend to use the term children in its proper and actual meaning, but in a more extensive sense. — Morris v. Owen, 2 Call, 520; Phillips v. Beall, 9 Dana, 1; Mowatt v. Carow, 7 Paige, 328; Cutter v. Doughty, 23 Wendell, 513; Stubs v. Stubs, 11 Humph. 43 ; Dickinson v. Lee, 4 Watts, 82; 2 Williams on Executors, 935; 1 Roper on Legacies, 68.

‘In the present case, the language employed does not convey the idea, that the testator used the word children in any other than its ordinary sense. The time when the children are to take, is fixed at the dissolution of the marriage, either by death or otherwise, between Edwin B. and Lucy Westmoreland. The persons who are to take, are the present and future chiidren of said parties, who may be living at the dissolution of said marriage. The words, uthe offspring of,” do not enlarge the meaning of the word children. They are synonymous with born of, or the fruit of ; and can have no other effect than to make more definite the persons who are described 'as children— namely, those who are the fruit, the offspring, of Edwin B. and Lucy Westmoreland. We find nothing in this deed, which authorizes us to give to the word children .the more enlarged meaning, so as to include grand-children. McCroan v. Pope, 17 Ala. 612 ; Johnson v. Culbreath, 19 Ala. 348; Scott v. Nelson, 3 Porter, 452.

Decree of the chancellor affirmed, at the costs of .the appellants’ next friends.

R. W. Walker, J., not sitting.