Hayne v. Irvine

25 S.C. 289 | S.C. | 1886

The opinion of the court was delivered by

MR. Chief Justice Simpson.

This case was heard below upon an agreed statement of facts, from which it appeared that one Daniel McMahan, by will dated in 1845, bequeathed certain property to his two daughters, Mary and Elizabeth. Thereafter, in 1846, by codicil to this will he directed “that in case Mary and Elizabeth, or either of them, should die without lawful issue, at their death, or at the death of either of them, then in that case the said property * * * which they may have left, shall be given to the lawful heirs” of two of his other daughters, Mrs. Nancy Hill and Mrs. Francis Irvine, to be equally divided “between the children” of his said two daughters, “to them and their heirs forever share and share alike.” Mrs. Francis Irvine died before either Mary or Elizabeth; a son of her’s, Pinckney, also died before Mary or Elizabeth, but after his mother; then both Mary and Elizabeth died without issue. Upon these facts, the question submitted to the court below was, whether the children of Pinckney (defendants) could take the share that their father would have taken, had he survived Mary and Elizabeth, or do the children of Mrs. Francis Irvine living at the death of Mary take to the exclusion of Pinckney’s children ? The Circuit Judge held, that the children of Mrs. Irvine living at the death of Mary took to the exclusion of the children of Pinckney. The appeal renews this question before us.

The difficulty arises upon the use of the terms, “heirs” and “children” in the codicil. Had either of these terms alone been used, there could not have been much doubt as to the construction. For instance, take the term “heirs," as employed by the testator without the subsequent use of the term “children”; then Mrs. Irvine having died before Pinckney, he, Pinckney, would probably have been one of her heirs and, therefore, entitled to a share in the property, which upon his death would have descended to his children, the defendants. Or take the term “children” alone; then under the case cited by the Circuit Judge, Wessenger v. Hunt (9 Rich. Eq., 464), where it was held that a bequest to be distributed at a future time to the death of the testator, to wit, at the death of an intermediate life tenant, all who answer the description at the time of the distribution are the parties alone entitled. The children of Pinckney not answering the description of the «term children of Mrs. Irvine, at the death of Mary could not take, but her children, then in existence, would take to the exclusion of Pinckney’s children, as held by the Circuit Judge.

Both of these terms, however, are used in the codicil, producing a conflict, unless they can be harmonized. The Circuit Judge construed the word heirs as synonymous with children. We are inclined to think this is the correct construction, and in accordance with the intention of the testator; otherwise the division of the property could not have taken place until the death of Mrs. Irvine, as no one can have heirs before death. It is true, Mrs. Irvine is dead now, and the difficulty suggested does not arise here; but suppose that she was still alive. If the word “heirs” is to have its technical effect, none of the parties could claim, although Mary and Elizabeth have both died without issue living. The time, however, for the distribution has arrived, and in the event that no one could take but heirs, if Mrs. Irvine was still alive, there could be no distribution.

We must conclude, that the testator intended that the division should be made at the death of Mary and Elizabeth, one or both, and as the children of Mrs. Irvine and Mrs. Hill could take at that time whether their mothers were dead or alive, when “heirs” could not, the intention of the testator could not be carried out except by the construction of the Circuit Judge, to wit: that the term “heirs” was not used in its technical sense, but was used synonymously with the term “children.” Having reached this conclusion, we are of opinion that the case of Wessenger v. Hunt is conclusive of the question involved.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.