2 S.C. 509 | S.C. | 1871
The opinion of the Court was delivered by
The only question raised by the present appeal involves the construction of the following- clause of.the will of John Ashe: “ But if it should so happen that, at, the time of the death of both my said sons, there should be no lawful lineal descendant of either to take the estate, according to the foregoing limitations, then, and in that caso, I give and devise all and singular the lands, tenements and hereditaments -which are so, as aforesaid, devised, to be equally divided among all such of my grandchildren begotten, or to be begotten of my daughters, as may be alive at the time of the death of the survivor of my sons, to be divided, share and share alike, among such of my grandchildren by my daughters, and to their several and respective heirs and assigns forever.”
The contingency expressed in this devise happened, namely, the decease of both of the sons of the testator, having no lineal descendant of either to take the estate, according to the limitations that preceded in the will the devise in question. Accordingly, the limitation over to grandchildren begotten of his daughters living at the death of the surviving son took effect. At this time there were living persons answering accurately the description, namely, grandchildren of the testator begotten of his daughters. There were also living, at that time, children whose parents answered that description, and who, accordingly, were great grandchildren of 'the restator, and grandchildren of his daughters. Of these great grandchildren of the testator there were two classes, namely, those whose parents had deceased prior to the death of the surviving son, and those whose parents survived that event. A claim is made under this devise in behalf of each of the last named classes. It is claimed that the term grandchild, as employed in the devise, must be taken in an enlarged sense, that would include great grandchildren. The consequence of allowing this term in an enlarged sense has been discussed in a two-fold aspect. According to one of these theories, grandchildren and great grandchildren take indifferently together, as a class,’ share and share alike, or, in other words, a
It has been argued that all the children of a grandchild, deceased, at the death of the surviving tenant for life, take a grandchild’s share — that is, taken together, they are, as a class, a grandchild -within the meaning of the devise. Not that they take as representing their parent, for the parent, dying before the happening of the contingency on which the estate vested, had no transmissible interest. If the first mentioned theory impaired the presumed intent of the testator, for the sake of satisfying the sense of the words, the latter assumes to trace that intent beyond the limits of the expressions employed to. convey it. -The testator understood the force and effect of allowing the children of a deceased object of his bounty to take, as a class, their parents’ share, and knew how to express such an intent in appropriate language, for such a provision is made in that portion of the will that creates the estates precedent to that limited by the devise in question. The unanswerable argument against implying such an intent from the devise in question is that the testator has undertaken to distinguish the cases in which the principle of representation should be employed in ascertaining the objects of his bounty, and has excluded the devise in question from that category. If, therefore, we are to read the term grandchild, according to the intent and understanding of the testator, as embracing great grandchildren, we must conclude that all who take under that designation, whether grand or great grandchildren, take as purchasers, share and share alike, a child taking an equal share with a living parent — brothers and sisters taking shares diminished according to the extent of the respective families.
The general rule is, that the language of the testator should be construed according to its primary and ordinary meaning, unless he has manifested his intention in the will itself to give a more extended signification. — Howe vs. Van Schaick, 3 N. Y., 538, per Gardner, J.
So long as there are persons in being to take according to the description, the foregoing statement of the rule is complete. Such is the present case.
The questions are: First. What is the primary and ordinary import of the term grandchild, in reference to its including or exclud
What, then, is the primary and ordinary import of the term grandchild ? But for the expressions in Hussey vs. Berkley, it would be unnecessary to bestow much attention to the discussion of this question. A grandchild is certainly understood by all who use the English language as one in the degree of relationship in the second step. Lord Northington says, however, that “ grandchild,” without explanation, comprehends great grandchild, for, says he, “ in common parlance,” * * “ the word grandchildren is used rather in opposition and exclusion of children than as confined to the next of descent, the children of children, and must, I think, have the effect of comprehending both, unless the intention appear to the contrary.” Had that case distinctly ruled that proposition, and been followed to the present time, it might be difficult to free ourselves from the force of precedent and to determine the point in reference to the sense of the term prevailing at the present day. But such was not the case, as the decision of the Court finally rested on the fact that the testator had included a great grandchild by name and special designation in the class of grandchildren, the objects of the devise. Nor does it appear that any later case has authoritatively ruled the point. All we have to consider, then, is the sufficiency of its reasons. It may be just to conclude that where the testator is looking to “children,” and says “grandchildren,” he means something in opposition to and exclusive of children. But the same reasoning would lead us to conclude that when, as is claimed in the present case, he is looking to great grandchildren, and says “grandchildren,” he means something in opposition to and exclusive of great grandchildren.
A contrary doctrine to that stated by Lord Northington was applied in Earl of Oxford vs. Churchill, (3 Ves. & B., 59.) Chancellor Walworth, in Howe vs. Van Schaick, (3 Barb. Ch., 488,) says: “Nor does the term grandchildren, without something further to extend its natural signification, include great grandchildren.” Again, he says: “Such is not the natural sense of the term grandchildren.”
As this is clearly an open question, so far as the Courts of this State are concerned, we must look to the sense of the term as commonly employed at this day. In this point of view we find no difficulty arising at the conclusion that, in its primary and ordinary
The second question then arises, does the will manifest an intent to use that term in a sense more extended than its primary and ordinary sense, so as to include great grandchildren ?
In construing an instrument, resulting from the concurrence of two or more minds, we are compelled to refer the terms and expressions employed to a common standard ; but as a bequest or devise stands on the purpose of the testator solely, which is ambulatory until finally executed, and a large latitude is allowed, and the testator may make his own vocabulary, if his intention to do so is clearly made out. In such an inquiry, we may resort to the rules of interpretation to fix the sense intended to be applied to the terms and expressions employed, and to construction to test the appropriateness of the assumed sense by the general and particular objects and intents disclosed. Before departing from the ordinary sense, we must find a reasonable necessity for so doing in the text of the will, or the designs of the testator, as therein set forth.
If the testator has given his own definitions, or has used terms eonvertibly, or has employed a term in two or more relations, so as to characterize its intended sense, we have certain rules to go by.
Looking, then, into the devise before the Court, the question arises, whether a reasonable necessity appears for departing from the ordinary sense of the term “ grandchild,” as employed by the testator.
The testator has not, in any part of the will, supplied the definition of the term “grandchild,” but clearly assumes that his intention will be understood without such particular definition. Nor has he, anywhere, used the term “grandchild” as convertible with any other terms, such as “greatgrandchild,” “issue,” or “descendants.” It was argued that such an instance occurred in the respective devises to sons of the testator, but the expressions referred to have a different import. After limiting an estate over, on the death of his respective son®, to their children surviving them, and to the children of a child dying before that event, he says: “ But if it should so happen that,,at the time of the death of both of my said sons, there should be no “lawful lineal descendant” to take the estate “ according to the foregoing limitations,” then a further limitation is to take effect. It is said that the term, “ lawful lineal descendant,” describes the persons to take. If that view be correct, still, primarily, it would be regarded as an expression convertible with
It is equally true that, apart from any attempt to construct the terms by the ultimate intention of the testator, grandchild is nowhere put in any relation suggestive that it is not employed in its, ordinary and primary sense.
It is noticeable, also, that grandchildren by liis daughters take by a double description; first, as testator’s grandchildren; second, as “begotten or to be begotten of my daughters,’' and again, as children “ by my daughters.” Both branches of this description ought to be satisfied, and if, on the one hand, they take as grandchildren,' on the other hand, they take as children. Taking them in the character of “children,” under a very exact description of that relation, the case is governed by Ruff vs. Rutherford, Bail. Eq., 7, and Snoddy vs. Snoddy, 6 Strob., 84, cases in consonance with the current of decisions, and with other similar cases, settling the law of this State, that grandchildren cannot take under the description of children in the primary and ordinary sense of that term.
It only remains'to consider whether the ultimate intention of the testator, as manifested by the whole will and all its parts, taken together, creates any reasonable necessity for taking the term in question beyond its ordinary sense.
It has been argued that it was the intention of the testator to
We are not at liberty to assume an intention opposite to these formal limits given in particular language by the testator himself, evidently aided by sagacious legal counsel. The contingency of the death of a grandchild bearing children was before testator’s mind. Twice he referred in terms to it, and made provision in case of such an event. Where, therefore, he does not so provide, such omission was intentional.
The decree of the Circuit Judge must be affirmed and the appeal dismissed.