132 So. 730 | Ala. | 1931
The sole question for determination upon this appeal is whether or not a grandchild of Margaret Hopkins took any interest in the income upon the death of said Mrs. Hopkins and which involves the interpretation of the following language as used in paragraph (c) of item 7 of the codicil to the will of J. H. Woodward:
"Upon the death of either of my children, the child or children of my deceased child shall take the share of the income which the parent would have taken if living."
In other words, was child or children used in the technical sense so as to exclude the grandchild of Mrs. Hopkins or in such a way as to include her descendants other than children?
It is a cardinal rule of interpretation that the entire will must be looked to in order to ascertain the intention of the testator, but it is equally as well settled that courts cannot disregard the plain and unambiguous language of a will in order to express a contrary intent for the testator notwithstanding said intent might appear to the court as more natural and just, for to do so would, in effect, be making a new will for the testator.
The primary, legal meaning of the words "child or children" is immediate offspring, descendants of the first degree, a son or daughter of the named ancestor. McGuire v. Westmoreland,
There are instances in which the courts have felt justified in extending the words "child or children" when used in a will so as to include grandchildren, usually when no one meets the description of child or children in the technical sense or where there are peculiarities in the will which clearly show it was the intention of the testator to use the words in the enlarged meaning. Authorities, supra, and Shuttle Co. v. Barker,
The decree of the circuit court is reversed, and one is here rendered to the effect that Margaret Spencer takes the income that went to her mother to the exclusion of Joseph W. Simpson.
Reversed and rendered.
SAYRE, THOMAS, and BOULDIN, JJ., concur. *489