145 Va. 116 | Va. | 1926
delivered the opinion of the court.
This suit was instituted for the purpose of construing the will of P. J. Sterne, and to determine those entitled thereunder to the proceeds of sale of certain real estate thereby directed to be sold.
The testator devised two tracts of land and bequeathed certain personal property thereon to his sister, Nannie P. Moon, for life, and concludes the clause with this language: “the said property I give unto Nannie P. Moon during her life and that of her husband, Nathan S. Moon, and at their decease, I direct the same to be sold and equally divided between the living heirs of my brothers and sisters.” This quoted clause is that which is to be construed. Both Nannie P. Moon and her first husband, Nathan S. Moon, are dead.
As two wills rarely use the same language, and every will is generally unlike all other wills in some particular, the adjudicated cases frequently afford little aid. My Lord Coke said, over three hundred years ago, that “wills and the construction of them do more perplex a man than any other learning; and to make a certain construction of them, this excedit jurisprudentum artem.” Such questions continue to' puzzle the courts. The reasoning applied in construing previous wills is much relied on in construing later and different wills, in the effort to follow beaten paths and thus to establish some general rules. Such laudable
The real controversy in this case is whether the fund is to be divided into six equal parts and distributed to the descendants of the six brothers and sisters of the testator per stirpes, or is to be distributed per capita to the children of these brothers and sisters, twenty in number, living at the death of the life tenant. The trial court took the latter view and held that each of these twenty children takes equally. The appellants are here assigning error and alleging that the fund should be distributed per stirpes.
The first thought which is suggested is that the doctrine of equitable conversion applies, because the land is directed to be sold and the proceeds divided among those indicated as the objects of the testator’s bounty. Carr v. Branch, 85 Va. 601, 8 S. E. 476; Moore v. Kernachan, 135 Va. 211, 112 S. E. 632.
We then have to determine what the testator meant when he directed that the fund should go to the “living heirs” of his brothers and sisters.
It appears that the life tenant, his sister, never had any children, but at the time of his death he had six other brothers and sisters who were married and had children.
In Walker v. Webster, 95 Va. 377, 28 S. E. 570, a will directed the testator’s estate to be “divided in equal parts among those who would be my heirs at
In this will, then, we have the words “living heirs” applied to his brothers and sisters who were themselves then living. This use of the word “heirs” applied to persons then living seems to make it manifest that the word was not used in a technical sense. While the general rule is that technical words are presumed to be used technically and words having a definite legal significance are to be understood as used in their definite legal sense, nevertheless when expressions are used in the instrument in conjunction with such technical words which plainly indicate the intention and also that such intention was not in accordance with the technical signification, the manifest intention will control the legal operation of the words.
Applying this rule to a deed conveying land to the “heirs” of a living person, this court, in Roberson v. Wampler, 104 Va. 380, 51 S. E. 835, 1 L. R. A. (N. S.) 318, held that the word “heirs,” as used in that
Then we come to another question. That this is a gift to a class, the living children of the testator’s brothers and sisters, appears manifest, for it meets the accepted definition, namely, that it is “a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number.” 28 R. C. L., sec. 233, p. 260.
Being a gift to a class, it is necessary to determine the time when the membership in that class is to be ascertained.. Here, too, we have little difficulty, because of the precedents. The general rule is, that the time for fixing the membership in a class taking under a will is the death of the testator; but where the distribution is to be made among a class at a time subsequent to the testator’s decease, then only those who belong to the class when such time arrives are entitled, to share in the distribution. 28 R. C. L. p. 264, sec. 238; Collin v. Collin, 1 Barb. Chy. (N. Y.) 630, 45 Am. Dec. 420; Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 78 N. E. 697, 116 Am. St. Rep. 536; Thompson v. Garwood, 3 Whart. (Pa.) 287, 31 Am. Dec. 502; Coggin’s Appeal, 124 Pa. St. 10, 16 Atl. 579, 10 A. S. R. 565.
2 Jarman on Wills (6th Ed., Bigelow) 675, (1547), supports the same view thus: “In this state of the authorities, one scarcely need hesitate to affirm that the rule which reads a gift to survivors simply as applying to the objects living at the death of the testator, is confined to those eases in which there is no other period to which survivorship can be referred; and that where such a gift is preceded by a life, or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only.”
As has been shown in this case, this gift to the class is preceded by the joint life estate of Nannie P. Moon and her husband, and the period of distribution is clearly fixed—that is, at the time of the death of the survivor.
In Coveny v. McLaughlin, 148 Mass. 576, 20 N. E. 165, 2 L. R. A. 448, the language was, “ * * but on her decease I give and devise the same to my surviving children, to be divided equally between them,” and the court stating the same question which is raised here said: “The question is whether the word ‘surviving’ relates to the time of the testator’s death, or to that of his wife’s death. According to the natural use of language, it has reference to the latter event.
It seems unnecessary to say more, for here the meaning of the will is plain and fixes the death of the life tenant as the date for determining the membership of this class of beneficiaries under this will.
The real controversy between these litigants is whether the property should be divided per capita or per stirpes.
The primary maxim is, that effect must be given to the expressed intention of the testator. If, however, there is nothing in the instrument to be construed which shows an intention to have the property divided per stirpes, the general rule is that the beneficiaries take per capita, and this is true in this jurisdiction, so well expressed in Walker v. Webster, 95 Va. at p. 381, where Riely, J., said: “ ‘Where a bequest is made to several persons,’ said this court in Hexton v. Griffith, 18 Gratt. [59 Va.] 577, ‘in general terms, indicating that they are to take equally as tenants in common, each individual will, of course, take the same share; in other words’, the legatees will take per capita. The same rule applies where a bequest is to one who is living, and to the children of another who is dead, whatever may be the relation of the parties to each other, or, however the statute of distributions might operate upon those relations in case of intestacy. Thus where property is given “to my brother A, and to the children of my brother B,” A takes a share only equal to that of the children of B. So where the gift is to A’s and B’s children, or to the children of A and the children of B, the children take as individuals,
Here this intention is also evidenced and emphasized by the direction that the property is to be equally divided, and in this connection a quotation from Tuttle v. Pruitt, 68 N. C. 543, may be repeated: “It is too fully settled by authority to admit of question, that where a testator directs his property, whether real or personal, to be equally divided among his heirs, the division must be per capita and not per stirpes.”
While it is not often that we find two wills in which the language used is precisely the same, we find in Kalback v. Clark, 133 Iowa 215, 110 N. W. 599, 12 L. R. A. (N. S.) 801, 12 Ann. Cas. 643, a will which is quite similar to that of this testator. The language there was, to “the heirs of my four children, George P., John A. and Edgar B. Clark and Mary C. Wolcott.” The court thus expresses itself: “On the one hand it is contended that, as Geo. P. Clark is not dead, and, technically speaking, has no heirs, the provision of the will as to his heirs cannot be carried out and is void, under the old maxim, Nemo est haeras viventis. It is
The decree of the trial court is in accordance with these views and is well supported by reason and precedent.
Affirmed.