DeBardelaben v. Dickson, 51 So. 986

DeBardelaben v. Dickson

51 So. 986 | Ala. | 1910

SIMPSON, J.

This is an action of ejectment by the appellant against the appellees. The property in ques*61tion was originally owned by P. H. De Bardelaben, Sr., who left a will in wbicb occurred these words: “All of the balance of my property, real, personal and mixed, I give and bequeath unto my beloved wife, Sophie E. De Bardelaben, during her natural life, and after her death to be divided equally between her heirs.” At the time of the execution of the will, and of the death of P. H. De Bardelaben, Sr., there were living his said wife and two sons, B. W. De Bardelaben and L. H. De Dardelaben, both of whom were married, but had no children. After the death of said P. H. De Bardelaben, his said wife and his' said two sons executed a deed conveying the land in question to W. H. Merritt, and hy successive convenyances the same came to the defendants. Subsequently both of said sons died; said L. H. leaving no children, and said B. W. leaving two children, who are the plaintiff’s in this case and the only heirs of said P. H. De Bardelaben, Sr., and of said Sophie E. De Bardelaben, who did not remarry and died November 22, 1908. It will be seen that, under the wording of the will, as provided by section 2183 of the Code of 1876 (section 3403, Code 1907), Sophie E. De Bardelaben took a life estate, and plaintiffs, who were her only heirs living at the time of her death, took the remainder as purchasers.

The contention of the appellee is that the word “heirs” should be read “children,” intending to refer to her children and his then living, and thus creating in them a vested remainder, so that the conveyance by said widow and her two said children carried the entire title to the property. The general rule is that, where the testator uses technical words, he is presumed to employ them in a technical sense, unless a clear intention to use them in another is apparent from the context.—30 Am. & Eng. Encyc. of Law, p. 671. It is true *62that the technical meaning of the word “heirs” must yield to the evident intent of the maker, where it is apparent that he intended to say children. But “this meaning cannot be assigned to the word, unless it clearly appears that it was employed in that sense.”—21 Cyc. 428. The court cannot infer, from any impression of its own, as to what would be natural to do; but there must be something in the context of the will to show that the testator did not understand the meaning of the word, or used it in a sense different from its correct meaning.—Shimer v. Maun, 99 Ind. 190, 50 Am. Rep. 82, 84, et seq.; Machen v. Machen, 15 Ala. 373, 375-6; Ewing v. Standifer, 18 Ala. 400; Mason v. Pate, 34 Ala. 379; Loyd v. Rambo, 35 Ala. 709, 712; Parish v. Parish, 37 Ala. 591, 594; Wilson v. Alston, 122 Ala. 630, 635, 25 South. 225. In the cases of May v. Ritchie, 65 Ala. 602, and Campbell v. Noble, 110 Ala. 382, 19 South. 28, it is said that the deed and the will showed on the face that it was written by an ignorant person, or one not acquainted with the use of technical words; and the case of Findley v. Hill, 133 Ala. 229, 32 South. 497, is based upon the fact that the incongruous provisions of the deed show “that the deed was written by a person unskilled in the use of technical words, and that the grantor must have used 'heir or heirs’ in the first limitation in the narrower sense of children, issue, or descendants.”

In the will now under consideration there is nothing to indicate that the notary public who wrote the will did not understand the meaning of the word “heirs.” There are no incongruous provisions, nor is there anything which would justify the court in supposing that the testator did not intend to devise the property as he did. It is just as natural to suppose that, as her heirs,, if her sons and their issue lived, would also be his *63heirs, his wish was, on failure of their issue, that the property should go to her heirs. It would be a violent presumption to suppose that the scrivener was so ignorant as as to not know the meaning of the word “heirs,” and yet was so skilled in philology as to- draw ■ the nice distinction between “between” and “among.” We hold that under the will in question a life estate was conveyed to Sophie E. De Bardelaben, with remainder to her heirs living at the time of her death.

It results that the court erred in giving the general affirmative charge in favor of the defendants, and in refusing to give said charge on the written request of the plaintiff. The -judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.