Lott v. Thompson , 36 S.C. 38 ( 1892 )

The opinion of the court was delivered by

MR. JustiCe McGowan.

S. J. Thompson departed this life, leaving surviving his widow, Charlotte, and nine children, all still living, viz., Ann Hiott, Mary Warren, Jane Gill, Ellen Thompson, Lovey Crosby, James Thompson, Martha Crosby, Elizabeth Herndon, and W. 0. Thompson. The deceased left a will, which contained the following clause: “Such property as God has blessed me with I give and bequeath to my beloved wife Charlotte during her natural life at her decease the property to be divided in the following manner my colt to James to my son William four head of cattle with their increase also my watch the balance of my property to be equally divided between my heirs only Betsy and Martha the heirs of their body to have an equal share with the rest of my heirs,” &c. The ‘-Betsy” mentioned in the will is the mother of C. L. Lott, one of the plaintiffs, and is still alive; the ‘‘Martha” mentioned in the will is the mother of O. P. Crosby and L. W. Crosby, the other two plaintiffs, and she is also still alive. The life tenant, Charlotte, is now dead, and the whole question is as to the construction of the will as to the interests of the remaindermen.

The proceeding was instituted by the children of Betsy and Martha for partition of the tract of land left by the testator, insisting that they have an interest in the lands of thoir grandfather, who never intended to cut them and their mothers off from all interest in his lands, but merely to substitute them in the partition for their respective mothers. The defendant, W. 0. Thompson,-before the master, interposed two defences: .(1) That the plaintiffs have no cause of action, in that the property, after the falling in of the life estate, was to be divided between the children or heirs of the testator and heirs of the body of “Betsy” and “Martha,” and that inasmuch as Betsy and Martha were still alive, the plaintiffs were not “the heirs” of their body, under the maxim, Nemo eat hares viventis. And (2) that if this was error, the plaintiffs will only’take such shares as their mothers, “Betsy” and “Martha,” would have been entitled to ; that is to say, C. L. Lott would take an undivided ninth, and 0. P. Crosby and L. W. Crosby would each take one-half of one undivided ninth; so that the whole estate would be divided in such manner as that he, W. 0. Thompson, would get his proper proportion, as if Betsy and Martha took their respective shares, without bringing in their children.

The Circuit Judge held that the first defence was well taken— .that the plaintiffs took no interest under their grandfather’s will, and dismissed the complaint. From this decree the plaintiffs appeal to this court upon the ground that the Circuit Judge committed error in his construction of the will of the testator.

1 The only question in the case is as to the proper construction of the will of S. J. Thompson. A will is the formal declaration in writing, by which the maker provides for the distribution of his property after his death. This being the case, it necessarily follows, that in its construction the first and great object should be to inquire what was the intention of the testator. That intention must be gathered from the paper itself, the whole paper taken together, and read in the light of the circumstances surrounding the testator at the time he executed it. Sometimes, from the inaccurate use of words, which have a technical, as distinguished from the ordinary meaning, there may be difficulty in ascertaining the meaning. Bannister v. Bull, 16 S. C., 227; Durant v. Nash, 30 Id., 184.

2 It is manifest that the will of the testator was written by himself, without counsel, without any regard to, or possibly knowledge of, the technical meaning attached to certain legal terms and phyases. For instance, in disposing of property, mostly land, he does not say ‘’devise,” but “I give and bequeath.” But it seems to us that it is not very difficult to understand what he really intended. It is quite clear that his general intention was to maintain equality among the beneficiaries of his bounty — “to be equally divided between my heirs.” To this general purpose, it seems that he desired to make a special provision as to the shares which would be going to his widowed daughters, “Betsy” and “Martha,” by giving to them, at the end of the provision for an equal division, as follows: “Only Betsy and Martha, the heirs of their body to h.ave an equal share W'ith the rest of my heirs;” being equivalent, as the plaintiffs claim, to saying “except Betsy and Martha, whose shares shall go to their respective children, then in esse, in such manner as to give them an equal share with the rest of my (heirs) children.”

As we understand, it was agreed at the bar, and, as we think, correctly, that the word “only” should be interpreted “except”— the effect being to exclude Betsy and Martha from all interest personally under the will; and it seems to us that we should not make a strictly technical construction of the words, “heirs of their body,” in order to exclude their children also from all interest under the will, against the clear and manifest intention of the testator, that they should have “an equal share with the rest of my (his) heirs.” It is quite true that, in a strict sense, no person can sustain the character of “heir,” in the life time of the ancestor, according to the familiar maxim, “Nemo est Imres viventis,” but it is always open to inquiry, whether the testator used the words according to the strict and proper acceptation, or in a more inaccurate sense, to denote “children,” “next of kin,” &c. Bailey v. Patterson, 3 Rich. Eq., 158. In discussing that case, Chancellor Dunkin said: “The testator takes notice that the ancestor was alive at the making of his will. There can be no doubt that the testator did not intend that the words, ‘lawful Heirs,’ should be taken in their technical meaning, but he intended to designate a class of persons who could take immediately on his death,” &c. (See the authorities cited.) He adds: “I think the words, ‘to be divided equally among them,’ also indicate that the words were used in their ordinary and not technical sense.”

We think it is manifest, that in this case the testator did not employ the word “heir” in its technical sense. The tenor of the will shows it. The word “heirs” occurs four times in the will, and in every instance it is used as synonymous with “children.” The testator always uses the word “heirs” when speaking of his own immediate offspring, his children, who take as devisees under his will, and is it strange that he should do so, when speaking of the children of his daughters, who were excluded from all interest under his will? The test is, that if the word “heirs” is used as a word of purchase and not of limitation, it will always be construed in its ordinary untechnical sense. Now, is it not absolutely certain that all these parties take under the will as de-visees ? Certainly the testator’s children do, although they, bya misnomer, are called “heirs,” and even more certainly the children of the two excluded daughters do. If they get anything, it will be as purchasers under the will, for nothing whatever was given to their mothers, which they could now or hereafter inherit from them as heirs. They were all incorrectly, but in accordance with common parlance, designated as “heirs,” but that was merely descriptio personarum, and did not, and could not, alter their true character. The maxim, Nemo est Imres viventis, has no proper application whatever to the case. See Bailey v. Patterson, supra; Ramsay v. Joyce, McMull. Eq., 252; and Lemacks v. Glover, 1 Rich. Eq., 141.

3 Then, how much and how do the plaintiffs take, per capita or per stirpes ? Upon this subject there is some very nice learning, which, if we had time, it might be pleasant to pursue ; but we do not think it is necessary to enter upon it in this case, as the question is settled by the.will itself. Our construction of the will is, that the testator intended that each set of his grandchildren, styled “heirs of their body,” should stand in the place of their excluded mother. That is the interpretation which we give to the awkward sentence, “only Betsy and Martha, the..heirs of their body to have an equal share with the rest of my heirs.” The plaintiffs as the “children” of Betsy and Martha, take the shares of their mothers per stirpes, that is to say, C. L. Lott takes one-ninth, and O. P. Crosby and L. W. Crosby divide another ninth between them. See Cole v. Creyon, 1 Hill Ch., 311; and Conner v. Johnson, 2 Hill Ch., 41.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and the cause remanded to the Circuit Court for such other orders as may be deemed necessary to carry out the conclusions herein announced.