Smith v. Martin's Ex'rs

18 Ala. 819 | Ala. | 1851

PARSONS, J.

The testator’s legatees are his wife and children, and several grand-children, who are the children of one of his living daughters. After specific legacies to each, he disposes of the residue thus : “ The remainder of my property not before enumerated, and what I may hereafter come into possession of, I give to be equally divided among my legatees, agreeably to the laws of the Stale in which I reside;” and he resided, it appears, in this State. If the word “ legatees” is to be taken in its literal sense, it applies to and includes his wife, children and grand-children who are mentioned in the will, to all of whom, by a previous part of the will, he had given legacies. But we think it appears by the will itself, that the testator intended the residue of his estate for such of his legatees as it would have gone to in case he had died intestate — his wife and children only. The residue consisted of personal estate. It was bequeathed “tobe equally divided among my legatees, agreeably to the laws of the State in which I reside.” The word, legatees, which otherwise would have included all, was restricted, we think, to such of bis legatees as might have claimed the residue under the statutes of distribution, in the event of his dying intestate, by the words that followed, “ agreeably to the laws of the State,” &c. Those words related either to the division or to the legatees. If to the division, they had neither meaning nor effect; for the division was to be equal, according to the express language of the testator. But if they related to the legatees, then they have both meaning and effect, as they are restrictive of the number of his legatees who are to lake the residue. We do not feel at liberty to reject words which have a clear meaning and effect, and which are consistent with what he probably intended. We could only reject them upon the clear impression that they were used without meaning and without an object.

The children claim the whole residue, and their counsel refers us to Bell & Wife v. Hogan, 1 Stew. 536; Heirs of Capal v. McMillan, adm’r, 8 Port. 204; Eddings et al. v. Long, 10 Ala. 203, and Bell & Wife v. Mason’s Adm’r, 10 ib. 334, and other authorities, and contends that the parol evidence which was given in the Orphans’ Court, and which consisted of the testator’s declarations that he intended the residue for his children, was admissible to explain an ambiguity in the will, the counsel contending that there is an ambiguity in respect of the word “ legatees.” But the authorities cited by the counsel for the grand-children are conclusive, in our judgment, against the admissibility of parol evidence of the testator’s declarations. There was certainly no latent ambiguity. There was error, therefore, in admitting the evidence and in excluding the testator’s widow, but she is no party to this writ of error, and this error has worked no injury to the grand-children, since they are excluded by the will, according to the construction we have above placed upon it. The decree of the Orphans’ Court is consequently affirmed.