McKee's Appeal

Mr. Justice Clark

delivered the opinion of the court, January 7th 1884.

The question distinctly presented upon this record is, whether or not, the children of Eliza A. Crombie and of Rachel McKee are parties interested under the will of Samuel Henry, deceased, in the proceeds of the sale of his real estate.

The clause of the will out of which the contention arises is in the words following:

“I will and bequeath to all my living heirs an equal share, that is, share and share alike, that is, to my daughter Eliza A. Crombie and children, Rachel J. McKee and her children, Mary Ann Craig’s two children equal shares.”

In a bequest of personalty, unless a contrary intent is indicated by the will, the word “ heirs ” signifies the testator’s heirs, as ascertained by the statute of distribution: Baskins’ Appeal, 3 Penna. St. 304; Eby’s Appeal, 3 Norris 241; Bender’s Appeal, 3 Gr. 210. In this will the bequest is, in the first instance, “ to all my living heirs, an equal share, that is share and share alike.” Under the rule of construction referred to, if this clause ended here, no doubt whatever could exist as to the effect of the bequest; his “living heirs” when the will took effect were his daughters, Eliza and Rachel, and the two children of his deceased daughter Mary Ann.

The testator, however, proceeds, in the same clause, as if to designate with more certainty the objects of his bounty, and adds, “ that is to my daughter, Eliza A. Crombie and children, Rachel J. McKee and her children, Mary Ann Craig’s two children equal shares.” It is contended, that these words of the will show the testator’s intent to have been, that his living daughter’s children should be legatees, jointly with their parents, respectively ; but this would be inconsistent with the previous part of the same clause of the will, and the whole clause would involve a contradiction, as his daughter’s children were neither then, nor at the time of his death, in any sense, 1ns heirs. If this was the intention of the testator he would, doubtless, by name or number, or otherwise, have made some designation of those whom he intended to embrace in this provision of his will. We are not informed by anything which is contained in the will whether the testator had in view his daughters’ children in esse at the date of the will, or at his death, or at the distribution, or whether he had in mind all their children .then or thereafter to be born. When he speaks of the children of his daughter Mary Ann, who are certainly intended to be legatees, his designation is complete ; their bequest is to “ Mary Ann Craig’s "two children.” We do not of course regard it as essential, that he should have given this particular designation, but we do regard his failure so to do, as a circumstance which bears upon the fact of his real intent.

The subsequent clause of his will, in which the testator, referring to the note of E. C. McKee, says, that,“Eliza A. Crombie has as good right to a share of the profits as Eaehel Jane McKee,” although, perhaps, hot very potential, affords a slight indication, that their children were not legatees, taking jointly with their parents.

We are of opinion that the testator, in the writing of his will, was impressed with the belief, that he had embarrassed his meaning by the use of the words “living heirs,” his daughter Mary Ann being dead ; that the second member of this particular clause was introduced into his will, to show that he did not thus intend to exclude the children of such of his “ heirs ” as might be dead, from participation in his estate, and that the word “ children,” when used in connection with the making of the bequests to Eliza and Rachel, was introduced by way of substitution, or to indicate the succession which should result if death should also remove either or both of them. We cannot, therefore treat the word “ children ” as a word of purchase, in the connection here used.

The will is certainly obscure ; it was written by the testator himself, who seems to have been altogether unacquainted with the force of technical words ; and this, in our opinion, was the unfortunate cause of this obscurity. If he had understood the full legal effect of his first disposition, he would not, we think, have involved it in the doubt resulting from the explanation he gave of it. The intention of the testator, in the construction of wills, if lawful, must, of course, control every other consideration, and bear down every other rule of interpretation ; and we are inclined to adopt the views expressed by the learned court below, as we think this gives the whole will the most harmonious effect and follows the- manifest intention of the testator.

Decree affirmed, and it is ordered that the costs of this appeal be paid by the appellant.