116 Ga. 257 | Ga. | 1902
The single question involved in this case is, what is the proper construction to be placed upon the 8th item of the will of Elizabeth H. Mills, which is set forth in the headnote which precedes this opinion ? At the date of the death of the testatrix there were no brothers or sisters of her deceased husband in life, but there were then living children and descendants of children of three deceased brothers. The kindred of the testatrix at the date of her death consisted of two half-sisters on the paternal side,, nephews and nieces who were children of deceased sisters, and grandnephews and nieces. The will of the testatrix is a lengthy document, consisting of many items, some of them being subdivided into numerous sections. She died possessed of a large estate which came to her through her deceased husband, and, having no children, she divided the estate between her kindred and those of her husband. In more than one item of her will she distinctly provided for a distribution per stirpes among those who were to take under the items. The item which we are called upon to construe disposed of the residue of the estate after the greater part of the same had been disposed of by legacies both general and' specific. The question to be determinedis, whether under this item those persons who answer to the description of heirs at law of the testatrix take per stirpes or per capita. The heirs at law of a deceased person are those who are entitled to take the estate under the statute
The words “heirs at law” have in law the well-settled meaning above stated, and whenever these words are found in a will, unaccompanied by any qualifying or explanatory expressions, they will be given the meaning which the law ordinarily gives them, and
While adjudicated cases construing other wills are generally not-helpful in arriving at what is the proper construction to be placed upon a will under consideration in a given case, for the reason that no two wills are in exactly the same language, still rulings in other' cases serve to show what are the general rules to be resorted to in arriving at the intention of the testator in a given case, and the trend of judicial thought in reference to the proper application of such rules to devises or bequests of a similar nature to the one under consideration. In the following cases bequests or devises in language somewhat similar to the item of the will under consideration in the present case were held to require a distribution per stirpes: West v. Rassman, 135 Ind. 278; Taylor v. Fauver (Va.), 28 S. E. 317; Houghton v. Kendall, 7 Allen, 72; Balcom v. Haynes, 14 Allen, 204; In re Swinburne, 16 R. I. 208; Baskin’s Appeal,. 3 Pa. St. 304; Templeton v. Walker, 3 Rich. Eq. 543; Roome v. Counter, 1 Hals. (N. J.) 111, s. c. 10 Am. Dec. 390; Rivenet v. Bourquin (Mich.), 18 N. W. 537; Ferrer v. Pyne, 81 N. Y. 281; Thomas v. Miller (Ill.), 43 N. E. 848; Kelley v. Vigas, 112 Ill. 242; Raymond v. Hillhouse, 45 Conn. 467, s. c. 29 Am. Rep. 688; Bassett v. Granger, 100 Mass. 348; Minter’s Appeal, 40 Pa. St. 111; Dukes v. Faulk, 37 S. C. 255; Hoch’s Est., 154 Pa. St. 417. In the fol
In Sharman v. Jackson, 30 Ga. 224, the court had under consideration a deed which gave certain slaves to a person for life, and provided that at his death they were “ to be equally divided among the heirs of the body” of the grantee. It was held that the children of a daughter of the grantee took under the deed per stirpes, and not per capita. Judge Lyon, in referring to the words, “ equally divided among the heirs,” says: “ It is true, she says equally divided, but that is to be understood and construed as that equal
It is contended by the learned counsel for the defendant in error, and it was so held by the able judge whose decision is under review, that there is no authoritative ruling by-this court on the subject ; it being insisted that what is said in the case of Sharman v. Jackson, Fraser v. Dillon, as well as in others, was simply dicta of the judges writing the opinions. Be this as it may, the reasoning of the judges in the cases decided in this State in favor of the rule just referred to, and the reasoning of the judges in the cases decided in other States above cited, is more satisfactory to us than that which is found in the cases holding the contrary. Even if it
Judgment reversed.