Connor v. Biard , 1921 Tex. App. LEXIS 524 ( 1921 )

The question presented by the assignments may be stated as follows: Did the testator intend by item 6 of his will to devise a one-fifth undivided part of the land in controversy to Harvey Click as the only surviving child of his deceased brother C. M. Click, or did he intend, instead, to devise said part to said Harvey Click and appellants jointly as the heirs of said C. M. Click?

Appellants insist it appeared that the testator's intention was to devise the part to them and Harvey jointly, and that the trial court erred when he found to the contrary. The contention must be determined from the language used in said item 6, considered with reference to circumstances surrounding the testator, shown in the findings of the court referred to in the statement above; for other portions of the will furnish no evidence of the intention of the testator in making the devise.

In support of the insistence appellants assert that the language in the first sentence of the item showed the "general," "primary," or "dominant" intention of the testator to be to provide for his living brothers and sister and the heirs of his deceased brothers alike, and that the contrary intention evidenced by the devise in the last sentence of a share to Harvey Click alone was the result of a mistaken belief the testator entertained that Harvey Click was the only heir of said C. M. Click. Appellants argue that the case is therefore within a rule stated in 40 Cyc. 1393, as follows:

"In case of doubt a will should be construed in favor of a general or primary intention, rather than a particular or secondary one; and where in such a case a particular intention, or particular terms, as expressed in some part of the will, are inconsistent with and repugnant to the testator's general intention, as ascertained from all the provisions of the will, the general intention must prevail."

But we think the more reasonable view of the matter is the one the trial court evidently adopted, to wit, that the repugnancy between the first and last sentences of item 6 was apparent only, and due to the fact that the testator meant "child" where the word "heir," and "children" where the word "heirs," was used. The seeming repugnancy disappears when the words "child" and "children" are substituted for the words "heir" and "heirs," where the latter occur in the paragraph in question. That the words "heir" and "heirs" were used in their popular sense, meaning "child" and "children," and not in their technical sense, is shown by the use made of them in the sentence as follows:

"If either or both of these [the testator's sister and living brothers] should die before my wife, then the share devised to him or them shall go to his or their children, the intention being that the heirs of my sister, or any of my brothers, shall only take the share devised to the deceased father."

It will be noted that the words "children" and "heirs" were both used in the sentence quoted. It will also be noted that "heirs" was used as meaning "children." That this is true is shown by the part of the sentence declaring the intention of the testator to be that the "heirs" of his sister and brothers should take "the share devised to the deceased father."

It thus appearing that the words were regarded by the testator as synonymous, and that he meant "child" and "children" where the words "heir" and "heirs" were used, the duty of the trial court was plain. He should have read the words "heir" and "heirs," where they occur in said item 6, as meaning "child" and "children." 2 Alexander on Wills, 1245; 28 R.C.L. 222, 248; Lockwood's Appeal, 55 Conn. 157, 10 A. 517; Dawson v. Schaefer, 52 N.J. Eq. 341, 30 A. 91. So reading the paragraph, there was no doubt as to what the testator meant, and therefore there was no reason why that court, nor is there any why this one, should resort to technical rules for determining to whom the devise was made. Plainly it was to Harvey Click, the only living child, and not to him and appellants jointly, the heirs of C. M. Click, deceased.

As we see it, there is no error in the judgment; and it is affirmed.