48 W. Va. 208 | W. Va. | 1900
James Mathews made the following will: “Being in feeble health but sound in mind, I do hereby bequeath to my wife, Nancy Mathews, the following described property viz: Lot No. 4 North Wheeling, McClure’s addition, on which is one two
This was not in any case a devise of an immediate estate in possession for the benefit of the heirs of Isabella Baer, but a devise of a future estate to her heirs limited upon a preceding estate for life in Haney Mathews. Therefore the word heirs must have its technical meaning as held in Campbell v. Rawdon, 18 N. Y. 412, cited by appellants. “The rule construing the word heirs used in a will in respect to a living person as merely designatio personum is inapplicable to the devise of a future estate. In such case the word has its strict legal meaning, and carries the inheritance, unless a different intention appears clearly from the context.” It is further said in Stuart v. Stuart, cited, “The word 'heirs’ is a word of well known legal signification, and when used in a will it ought to be given this strict legal meaning, unless from the context it clearly appears that it was used by the testator in a different sense. An instance, where the courts have given to the word heirs, another meaning than its strict technical and well-known meaning, is where a testator by his will makes a present and immediate devise to the heirs of a person known to be living; or where the devise is to heirs said in the will to be living. In such case it is apparent, that the word heirs, must mean heirs apparent or children, and that without violating the clear intention of the testator it cannot be construed as used in its ordinary legal signification;” and, citing James v. Richardson, 1 Vent. 534; 7 Jones 97; 3 Neb. 832; Bruchet v. Dordant, 2 Vent. 311; Goodright v. White, Black. W. 1010; Campbell v. Rawdon, 18 N. Y. 416; Conklin v. Conklin, 3 Sang. Chy. 70. In Cushman v. Horton, 59 N. Y.
The decree of the circuit court sustaining the demurrer is affirmed.
Affirmed.