Poaug v. Gadsden , 2 S.C.L. 293 ( 1801 )

The judges took time to consider this case, and after» wards th“ if the court was delivered by

Mr. Justice Watif.s, ac ¡:

Th: qu«. •>' > , iíí ?’■ v ■ ■ ■ he said, was, whether the grrad-child of a deceased ¡.roitn-v or sister of the in.estate was entitled to a distributive share of his estate in right of representation i Such a right was claimed under the following words ; u the children of a deceased brother or sister, “ (where there are no lineal descendants) shall take among 11 them respectively, the share which their respective an-i(' cestors would have been entitled to, had they survived the a intestate,” It is contended, for the claimant, that the word children included grandchildren, and a great number of cases were cited of wills and deeds in which this word had been so construed, but he could see nothing in those cases which ought to govern the present case; in all of them, the word children was construed to mean ‘‘ grande “ children,” in order to effectuate the intentions of the donors ; but they all shew, that this was a strained construction, and contrary to the proper import of the word. It is true, that the intention of a law, like that of a private deed of an individual is to govern it; but there is a wide difference between them ; a law is to be construed according to a general intent, and not a particular one ; in a deed or will the object is special, and the court' may therefore control or even change the proper meaning of words. But a law contemplates no single case, its object is general, its construction therefore must also be general, and not made to suit particular pases.

What, then, is the meaning, or general import of the word children ? Why certainly the first descendants. This construction has been given to the same word in the British statute of distributions ; and the only difference be» tween that act and ours, is, that the first defines negatively the right of representation in collaterals, and the last defines this right by affirmative words. The reason of the proviso in the former, is, that the preceding clause gave this right without any restriction, and it was necessary by a proviso to limit the extent of it ; but in our act, the extent of the act is declared at once, and a proviso was unnecessary. By this, the representation of a collateral is expressly confined to the children of brothers and sisters, and there are no other words in the act, which shew an intention in the legislature to extend it further ; the contrary may be very fairly inferred. In making a will for persons who should die intestate, the legislature no doubt intended to make such a distribution, as it presumed, would be agreeable to the general wishes and sentiments of intestates. He said, he believed that generally, persons, circumstanced as the intes» tate in the present case was, would not carry their views of distributions beyond surviving brothers and sisters, or the first descendants of those who were deceased. The attachments of blood was much diminished to collaterals after the first degree ; a man may indeed be willing to put the first descendants on the same footing as their parents, but a grand nephew or a grand niece is not usually regarded by him as objects of equal concern, and without some particular cause for partiality towards them he will not be disposed to let them share equally in the division of his estate. It is unnecessary, however, to inquire into the reasons of the legislature for limiting the distribution in this way; the words of the act require this construction, and we have no right to look any further. The right of property by descent is not a natural one ; it is conferred by society, or depends upon the regulation of law; and we are bound to give effect to the will of the legislature, without admitting any speculations to the contrary.

It was therefore ordered, that the writ of partition should issue, to divide the intestate’s estate into five equal parts among the petitioners, agreeably to the prayer of the petition, and that the claim of Mrs. Poaug be rejected.

Present, Grimke, Waties, Johxscm and Trezevant.