109 S.W. 1145 | Tex. App. | 1908
The suit is one for the construction of item 5 of the will of Hiram H. McLane. The case is before us on the findings of the trial judge. The clause of the will in question reads: "Item 5. The remaining portion of my estate I will and direct shall be equally divided between my brother, W. J. McLane, and sister, C. A. Williamson, or their heirs, and the heirs of my deceased sisters, Ann Dunihue and Emily J. Kelley."
The findings show that when the will was executed (on August 25, 1905,) the brother, W. J. McLane, and sister, Mrs. C. A. Williamson, were alive, but that the former died since the death of the testator and the latter died before the testator. That the other persons named as sisters in the clause were dead when the will was executed.
That W. J. McLane left eight heirs; that Mrs. Williamson left as *362 heirs two children and one grandchild; that Mrs. Emily Kelley has heirs, one son and three daughters; and Ann Dunihue left as heirs eight children, one of whom died prior to the death of the testator leaving five daughters, and a son who died subsequent to the death of the testator leaving as his heirs a widow and two children. The findings name the parties who stand in the relation of heirs and all of the parties appear to have been before the court.
The court construed the clause as vesting one fourth of the residue of the estate in Wm. J. McLane, one fourth in the heirs of Mrs. C. A. Williamson, one fourth in the heirs of Mrs. Ann Dunihue and one fourth in the heirs of Emily J. Kelley.
Appellants contend that W. J. McLane, Mrs. Williamson and the heirs of Ann Dunihue and Emily J. Kelley are entitled to takeper capita, that is to say, that the words "shall be equally divided between my brother, W. J. McLane and sister C. A. Williamson or their heirs" show the intention to be that said brother and sister, or the heirs of either, should take perstirpes, but that the words "and the heirs of my deceased sisters, Ann Dunihue and Emily J. Kelley" denote the intention that each of the heirs of said sisters were to take the same interest as would the said W. J. McLane and C. A. Williamson have taken were they still alive. That they, per capita, and W. J. McLane and C. A. Williamson or their heirs respectively perstirpes, were entitled under the clause to share equally, the result of which would be as appellant contends, a division of the estate into fourteen equal parts, the heirs of W. J. McLane and C. A. Williamson taking two parts, the heirs of Mrs. Kelley four parts, and the heirs of Mrs. Dunihue eight parts.
In determining who were the heirs of the persons named in the clause the court had recourse to the statute of descent and distribution, which was proper. This is because the will did not define whom the testator intended to designate by the use of the word "heirs." How the heirs, when ascertained, should take is to be determined, if possible, from the terms of the will itself.
The principal reason which governed the District Judge in the interpretation reached by him is that in the same clause and in the same connection, the testator clearly uses the words "heirs" to designate a class and in the substitutional orper stirpes sense. The devise to W. J. McLane and C. A. Williamson by name, "or their heirs" makes it manifest that in this disposition, at least, the testator was dealing with the heirs of a brother and sister as a class and not as individuals, and it is the natural conclusion that he had the same scheme in mind when he deals with the heirs of his other sisters. The purpose being to ascertain the intention of the testator where this is obtainable, though faintly (Van Houten v. Hall, 67 Atl. Rep., 1052), from the context of the will itself, the technical rules governing the construction of wills, which upon their face afford no such indication, are of no consequence. We, therefore, deem it unnecessary to discuss the conflicting cases cited in the briefs. The judgment is affirmed.
Affirmed.
Writ of error refused. *363
