76 Tenn. 569 | Tenn. | 1881
delivered the opinion of the court.
Bill filed by the executors of the last will and testament of James Wallace, deceased, against the heirs and distributees, who are also devisees and legatees, for a construction of the will. The testator died in October, 1881, about eighty-three years of age, without wife or child. He was the youngest of twelve chil
The testator provides by his will for the payment of his debts and for certain old servants who are named. His will then proceeds as follows:
“Fourth. I direct that the remainder of my estate, both real and personal, be divided among my heirs according to the laws of the State of Tennessee now in force, none preferred, none discriminated against.
Fifth. I desire and direct that no portion of my estate shall be subject to any supervision of, or liability to any court whatever.
Sixth. I hereby appoint my long tried and faithful friend, James Alexander, my executor, to take charge of my entire estate, and execute this, my last will and testament, and to do so without any bond, or any liability for errors and defects, either to my heirs or to any court, relying upon his integrity and judgment entirely.”
The impression made upon the mind by the language of the fourth clause of the will is, what the facts render probable, that the testator had no choice among the numerous ánd scattered descendants of his brothers and sisters, and was willing that they should take his property as the law would divide it. The words “ according to the laws • of the State of Tennessee,” would, in this view, not only ascertain the persons to take, but determine the quantum of estate or interest each of those persons' should receive. The testator, being himself indifferent, leaves all to the law.
The “heirs” of the testator, by the laws in force at his death, to inherit the realty, were the issue of his deceased brothers and sisters, such issue in each descending line taking by way of representation of a deceased parent, and therefore per stirpes, without any limit to the representation: Code, secs. 2420, 2421; The Miller wills, 2 Lea, 54. The distributees of the personal estate, by the same law, were the children of the brothers and sisters, to the exclusion of the re
In view of this inequality of benefit among the descendants of the same stirpes, able and exhaustive arguments have -been presented in support of a different •construction of the will. In the first place, it is contended that the word “heirs,” as used in the fourth clause of the will, must be taken in its strict technical sense, as designating the objects of testator’s bounty, and that the entire estate, real and personal, will go to the same persons. Like all other legal terms the word “heir” or “heirs,” when unexplained and uncontrolled by the context, is usually interpreted according to its strict and technical import, in which sense it designates the person or persons appointed by law to succeed to the real estate in- case of intestacy: 2 Jar. on Wills, 61 (5th Am. ed). But an intention actually expressed, or- to be gathered from the language used, will prevail over the technical meaning of the word. Where a mixed fund of realty and personalty
In this State we have held that the word “heirs”' is flexible, and may mean heir at law or next of kin, according to the nature of the property given, and the construction can be applied to a mixed devise redden-do singula singulis: Ward v. Saunders, 3 Sneed, 337; Ingram v. Smith, 1 Head, 412, 426; Gosling v. Cald
It is next contended that the will provides for equal division among the heirs. If the testator has introduced into the gift expressions requiring an equality of distribution, the statutory mode is in general excluded, and the class of heirs ór devisees designated take per capita: Puryear v. Edmondson, 4 Heisk., 43; Parrish v. Groomes, 1 Tenn. Ch., 581; Low v. Smith, 25 L. J. Ch., 293. But this, too, is controlled by the intention of the testator, and if that intention leaves it doubtful in what proportions the class is to take, and a fortiori, if it expresses or fairly implies the contrary, the rule of equality will not prevail: Harris’ Estate, 74 Penn. St., 452. And if it can be fairly gathered from the will that the testator intended that his property should go according to the statutes of descent and distribution, even the express use of the words “equally divided,” or “share and share alike,” will not change the result: Fielder v. Ashworth, L. R. 20 Eq., 410; Holloway v. Radcliffe, 23 Beav., 163; Booth v. Vicars, 1 Coll. C. C., 6; Flinn v. Jinkins, 1 Coll. C. C., 365; King v. Savage, 121 Mass., 303. In Holloway v. Radcliffe, ut supra, the division was to be: “Equally amongst my legal personal representatives, in such and the like manner as if the same had been to be paid
The obvious intention of the testator in the clause in the will now before us, was to refer to the laws
There is no ground in the language of the will for the contention of the executor that he is authorized to sell . the land of the estate. There is no conveyance of the land to him, nor any authority given to him to sell. The general power conferred upon the executor by the sixth clause is only such as would belong to him as executor, to take charge of the estate and execute the will. Whatever may have been the intention of the testator, the actual language used does not . admit of any other • construction. There is not the slightest indication of an intent to convert the land into money to be distributed as such.
There is no error in the chancellor’s decree, and it must be affirmed. The costs will be paid out of the estate, and the cause remanded.