Graham v. DeYampert

106 Ala. 279 | Ala. | 1894

McCLELLAN, J.

— The 12th item in the will of M. Louise Kenan contains the following bequest: “I bequeath to Charles DeYampert the sum of one thousand dollars either in stocks or money. ” It is shown that testatrix, at the time of making her will and at the time of her death, owned sundry stocks of variant market values. The legatee insists that he is entitled to money or stocks at his election and that, electing to take stocks, he is entitled to shares of the face or nominal value of one thousand dollars regardless of the market value thereof. This view is unsound. It seems clear to us that this legacy is not specific, but general and pecuniary: the legatee is not entitled to any specific stocks, but to one thousand dollars, and this one thousand dollars, but not more, he may take in money or in stocks of that value, not nominal but real. The authorities are so clear to this conclusion that we deem it only necessary to cite some of them. — 3 Pomeroy’s Eq. Jur., §§ 1130, 1132 : 13 Am. & Eng. Encyc. of Law, pp. 10 et seq.; Myers’ Extr. v. Myers, 33 Ala. 85; Hooper v. Bibb & Falkner, Extrs, 47 Ala. 547 ; Gilmer’s Legatees v Gilmer’s Executors, 42 Ala. 9 ; Brown et al. v. Grimes, 60 Ala. 647; Maybury et al. v. Grady et al., 67 Ala. 147; Kelly v. Richardson, Extr., 100 Ala. 584.

In a codicil to Mrs. Kenan’s will is this provision: “Should there be a residue of my estate still remaining, let it be divided pro rata, among the heirs resident in the State of Alabama.” The evidence shows that the testatrix had no heirs resident in the State of Alabama. But the will refers to certain nephews and nieces to testatrix’ husband, who reside in Alabama, as her nephews and nieces. These are named in the will as legatees. So also, as we have seen, is Charles DeYampert, who resides in Alabama, but who is not, and is not referred to as, a nephew or other next of kin of the testatrix. The question on this item is whether said nephews and. nieces alone are intended, or whether it has reference to the legatees residing in Alabama. This provision itself, when taken with the fact that the testatrix had no heirs residing'in Alabama, affords evidence that the will was not drawn by one acquainted with the significance of the word “heirs.” "We know that this word is. commonly used by laymen to indicate all persons entitled by will or otherwise to share in the estates of decedents, and in cases like this as a synonym of legatees. We think it must be given that interpretation here. The nephews and nieces of testatrix’ husband are nowhere by those designations referred to in the instrument as her heirs. The fact that the property devised and bequeathed had come to her from her deceased husband, and the consideration that of consequence there was in some sort a moral obligation resting on her to devise and bequeath it to his next of kin are deprived of probative force to show an intention on her part to divide the residue among his next of kin residing in Alabama, in that that consideration would have led her to include in this provision his next of kin, also referred to in the will as her nephews, nieces &c. residing in North Carolina ; and this she did not do ; and it would have prevented the several dispositions which she made to persons — and, among the rest, that considered first above to Charles DeYampert— who were not of next of kin to her husband. Or, in other words, the will itself demonstrates that the moral consideration referred to did not control the testatrix in other devises and bequests, and we do not feel justified in according any influence to it upon the inquiry as to her intention in the use of the word “heirs” in the clause under consideration. But it is said that if we hold the word heirs to epibrace DeYampert, or any legatee other than the husband’s next of kin, it would have also to include certain church corporations to which bequests are made. If this were true, it would not follow that the other interpretation should be adopted : we are not aware of any insuperable obstacle to a testamentary interpretation which would entitle a corporation to take as a residuary legatee. But the word “heirs” even in the broader sense, as used by laymen to designate those who share in an estate, does not, it is safe to say, embrace other than natural persons ; and it might well be said to be intended to cover individual legatees to the exclusion of corporate legatees.

The decree of the chancery court is in line with the foregoing views on each of the points we have discussed; and it must be affirmed on each of the appeals.