Graham v. Graham , 4 W. Va. 320 ( 1870 )

Brown, Fresident.

In the construction of a will the first object is to ascertain the intention of the testator, for what he intended is to control, it is in fact the soul of the will; but it is to be drawn from the will, the whole will taken together, and not from an isolated clause. Kennon vs. McRobert, 1 Wash., 96; Reno’s Ex’or vs. Davis, 4 H. & M., 283; and Land vs. Atley, 4 Rand., 213. Looking then, to the will before ns, it is manifest from its various provisions taken together, and from the whole scheme of the will, that it was the intention of the testator to give to his daughter Rebecca an estate tail in the land and negro described in the tenth clause of the will.

The 10th clause is in these words: “I give unto my “daughter Rebeckah Graham and her children the plantation where she now lives, knowh by the name of Stephen- “ son’s cabin. Also I give unto her and her children my “negro girl named Dinah, the laud and negro never to be “disposed of out of the family, nor the increase of the ne“gro, if any she has.”

The first part of this clause by itself would give an estate in- fee to the mother and her children jointly, but the latter part of the clause is inconsistent with such an estate, and such an intent. What, then, was the intent? If the clause stood alone it might be difficult to ascertain the intent; but even then it is believed that the idea of an estate tail is the only one reconcilable with a sound construction of the whole clause. But when it is viewed in the light of the whole will, the meaning and intent of the testator becomes clearly apparent. For instance, in the 7th clause: “I give unto “my son Lanty Graham, the plantation on which I now live, “to him and to his heirs forever; but if he shall not have “ legal heirs of his own body, the said land is to go to his brother James,” &c.

Here the first part of this 7th clause creates an estate in fee, but the subsequent part of the clause is inconsistent with such an estate, and with such an idea, but it makes it equally plain, that the testator intended to limit the estate to his son Lanty and the lawful heirs of his body; in other words, an estate tail.

But the thirteenth clause removes all ambiguity. It is in these words: “All the before mentioned legacies thus “ bequeathed to my children, I give unto them and their “heirs forever, according to the way they are stated.”

The complainants would interpret children in this thirteenth clause to include grand-children, but that is unjustifiable, and clearly not the intention of the testator. But this thirteenth clause does clearly show that all the legacies thus bequeathed to his children, were to them, and not to their children; and when the testator says, “Thus bequeathed to my children,” — “unto them and their heirs forever,” it is manifest he does not mean that he gives the legacies to his children and their heirs forever, for that would be an estate in fee; but he goes further and limits the fee by the words “ according to the way they are stated;” and the way they are stated in the respective clauses taken together, shows that the word “heirs,” as used in this and the respective clauses, is not used in the sense of heirs general, but heirs special of their bodies.

The will then gives to Rebecca Graham an estate tail in' the land and slave before mentioned; under the operation of the statute that estate tail was converted into an estate in fee. Merriman vs. Merriman, 5 Munf., 440; 2 Munf., 263; Sydnor vs. Sydnor. And Lanty, Florence, John and James, children of Rebecca Graham, took nothing by the said tenth clause of the said will of their grandfather.

I think, therefore, that the decree of the circuit court should be reversed, and the bill dismissed, with costs to the appellants in both courts.

Berkshire, J., concurred with Brown, P.