127 Va. 368 | Va. | 1920
delivered the opinion of the court.
This appeal brings before this court for construction the will of John G. Kello, a citizen of Southampton county. The will is herewith reproduced in full:
“I, John G. Kello of the county of Southampton, and State of Virginia, being of sound and disposing mind, do hereby make, publish and declare this to be my last will .and testament, hereby revoking all other wills by me at any time made:
“First. I desire all my just debts to be paid if I should ■owe any at my death.
“Second. I give to Alex. Bradshaw and his sister Antonette Bradshaw, the farm on which they have lived for •a number of years and on which they now live, during their lives, and at their deaths to be sold and divided between my then living nearest heirs.
“Third. I give to my brother, Everett D. Kello, one thousand dollars.
“Fourth. I give to my niece, Maggie P. Barrett, one thousand dollars.
“Fifth. I give to my niece, Aleas Simmons, one thousand dollars.
“Sixth. I give to my neice, Mary Mary O. Kello, one thousand dollars. .
“Seventh. The balance of my estate I desire to be divided equally between all of my then living nearest heirs.
“Eighth. I give to my executors hereinafter mentioned, full power to sell all of my real estate except that left in*371 section two, of this will, to Alex and Antonette Bradshaw, for purposes of equal partition among all of my then living nearest heirs.
“Ninth. I do hereby nominate and appoint my nephew, John G. Kello, Jr., and Thomas S. Kello, as my executors of this, my last will and testament.
“In witness whereof, I hereunto subscribe my name and affix my seal to this my last will and testament on this 30th day of March, 1916.
“JOHN G. KELLO, (Seal).”
The testator, who was a bachelor about seventy years old, left surviving him heirs in three different degrees of kinship, as follaws:
1. A brother, E. D. Kello.
2. Seven nephews and nieces, viz: John G. Kello, Jr., S. T. Kello (in the will T. S.' Kello), J. R. Kello, Jr., Elise Simmons (in the will Aleas Simmons), Mattie O. Kello (in the will Mary O. Kello), Samuel H. Delk and Maggie U. Barrett (in the will Maggie P. Barrett). John G. Kello, Jr., S. T. Kello, J. R. Kello, Jr., Mattie O. Kello and Elise Simmons are the children of J. R. Kello, a brother of the testator; and Samuel H. Delk and Maggie U. Barrett are the children of Mrs. Delk, a sister. This brother and sister predeceased the testator.
3. One great-niece, Mary O. Davis, and two great-nephews, John D. Delk and Thomas E. Delk. The latter two are the children of “Buggy” Delk, a dead son of Mrs. Geo. Delk. Mary O. Davis is the daughter of Nettie Kello Davis, a deceased daughter of J. R. Kello.
The testator left an estate valued at about thirty thousand dollars. The executors construed the will to mean that the estate should be divided equally between the brother and the nephews and nieces, to the exclusion of the more remote kin, and were proceeding to settle the estate upon
This bill, was taken for .confessed as to the adult defendants, no answer or appearance of any kind having been made by them. An answer was filed for the infants, Mary O. Davis, John D. Delk and Thomas E. Delk, by a regularly appointed guardian ad litem. This answer challenged the contention that the will, properly construed, lodged the residuum in the brother, Everett D. Kello, and insisted that according to the true intent of the testator this residuum should be equally divided between all his heirs, living at the time of his death, to-wit: the above recited brother, nephews and nieces, and great-niece and great-nephews.
In August, 1919, the Circuit Court of Southampton county entered a final decree in the above- cause, directing the executors to divide the residuum into eleven equal parts, and give one part each to the brother of the testator, to the nephews and nieces, and to the great-nephews and great-niece, as above described. To this decree, on the petition of E. D. Kello, the plaintiff in the suit in the circuit court, an appeal and supersedeas was allowed by one of the judges of this court.
In the very elaborate and able brief filed, in behalf of the appellant, many authorities ¿re cited, chiefly from the English courts. The precise question presented for determination in the instant case, namely, the construction of a devise to one’s “nearest heirs,” appears to be one of first impression in this State, and of comparatively rare occurrence in other jurisdictions. Many cases have been cited in which the testators have described the objects of
“In order the better to comprehend the scheme which the testator had in his mind for the disposition of his estate, the judicial expositor is permitted to place himself, figuratively speaking, in the very shoes of the person, whose will he is called on to construe, and with the aid of such extrinsic evidence as is admissible for the purpose, possess himself of the condition of the testator and his family and of such surrounding facts and circumstances as may be reasonably supposed to have influenced him in the disposition of his property. Wootten v. Redd, 12 Gratt. 205; Hooe v. Hooe, 13 Gratt. 245; Williamson v. Coulter, 14 Gratt. 398. With the lights thus afforded him,' he is prepared as well as it is possible for him to be, without letting in evidence of the testator’s actual intention as contradistin
Apparently, the testator, in the instant case, was on-terms of equal affection with all of his relatives concerned in this controversy, and there is nothing to indicate that he had any reason to make exceptional preferences in the disposition of his estate, or to arrange a scheme of succession under which the brother would take first to the exclusion of all others, and, secondarily, the nephews and nieces to the exclusion of the great-nephews and great-niece. These nephews, nieces and others were not as close in blood to the testator as the brother, but they were the offspring of ancestors who bore the same degree of relationship to him, and so far as the court knows, were regarded by him' with the same affection as the surviving brother. While the brother is,' apparently, a man of independent means, the pecuniary condition of the others is not revealed.
The traces of the testator’s intention must be sought in every portion of the will, and the whole carefully weighed together. The intent apparently indicated by the word or words used in one paragraph is often put in doubt by words used in other portions of the instrument, and equally entitled to be given effect. In such cases one, or more, of the conflicting words must yield to the general intent considered to be revealed by the entire instrument.
The appellant, in the instant case, insists that the words “nearest heirs,” mean the nearest in blood to the testator living at'the time of his death, and that as he alone falls within that description, he is entitled to the entire residuum. If the words, “nearest heirs,” were synonymous with the words, “nearest of kin,” the contention would be irresistible. As it is, it is a persuasive one. But there is other
Of course, in law the word “heir” is interchangeable with the plural term, “heirs,” and conversely, when such a construction is justified by the context; but if the context indicates that the testator had “heirs” in its plural sense, definitely in contemplation as the first takers, and not an heir, then that intent must be made effective. The testator at three different places in his will uses the words, “my then living heirs,” associated with the words “divided,” or “di
It has been pointed out that there is nothing in the state of facts under which the will was made to indicate that the testator intended to provide in exceptional degree for any one of his kin. Hence, a construction of his will which would give the brother, a man of independent means, the entire residuum, in addition to his specific legacy of $1,000, cannot be derived from those facts. It must be derived exclusively from the language of the will. The difficulties in the way of such a derivation have been indicated.
In one of the cases cited by the appellant, that of Brandon v. Brandon, 3 Swans. 312, (36 Eng. Reprint 876), the court construed the words, “nearest and next of kin.” After stating that the question for resolution was whether ** property belonged to the persons who were next of 1. cording to the rule and measure established by the sta of distribution, or to those who were next of kin in a m. strict and natural sense, the court concluded that the wor. .
In the case of Gwynne v. Muddock, 14 Ves. p. 488, the court construing the words “nighest heir at law” held: “It would be contrary to the intention to divide them (i. e., the real and personal property devised), and it would be contrary to the words to give the whole to the next of kin. Therefore, the court has no alternative but to adhere to the words of the will, and permit the person who answers the description of heir at law to enjoy the whole.”
This case would seem in point as the next of kin were before the court as claimants. The court awarded the estate to the heirs at law apparently upon the theory that the persons who would take as heirs at law were necessarily the nearest heirs at law. Having in mind that the word “heirs” means the next of kin according to our stat
The word “heirs” when unexplained and uncontrolled by the context, must be interpreted according to its strict technical import, in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in case of intestacy. 2 Jarman (5th ed.), p. 61; Tillman v. Davis, 95 N. Y. 24, 47 Am. Rep. 1.
The conclusion reached, that the testator did not use the words “nearest heirs” to indicate that his relatives living at his death should take his estate in the order of their blood relationship, but did use them with the intent to designate a collective group to include all of those relatives, is in harmony with the general intent disclosed by the entire instrument. In the group of relatives who would have taken the estate, in the event of intestacy, are individuals
In the opinion of the court, there is no error in the decree of the Circuit Court of Southampton county, and the same must be affirmed.
Affirmed.