30 Ga. 976 | Ga. | 1860
By the Court.
Delivering the opinion.
This case turns solely upon the construction of the last clause in the will. Did the testator intend to give the estate to certain persons whom he names, and who happened to be children of his two sisters ? or did he intend to give it to a class described as children of his two sisters, including all who fell within the class, and none who did not fall within it, the names of the children being mentioned only as a supposed correct enumeration of the individuals who composed the class? He says “it shall be divided with my two sisters’ children, Elizabeth Joice and Martha Lilly, to-wit,” naming the children, and Naomi Lilly among them. This is a gift to a class, “sisters’ children," and to individuals also, “Naomi,” etc., the two ideas being supposed by the testator to be so perfectly coincident and harmonious, that the one is really used as a description of the other. But we think the class was the leading idea. The blood seems to have been the motive, and we think the intention was that the gift should go to all who were children of those two sisters, and to none who were not children, that is to say, to all who answered the description, and to none who did not answer it, at the death of the testator, that being the time at which the will speaks. The blood of those two sisters being the motive of the gift, it is a fair inference that the description by enumeration of individuals, was subordinate to the general description which is necessarily precisely co-extensive with that motive. The motive of the gift throws a strong light upon the extent of it. We naturally expect the gift to go as far as the motive cai’ries it and no further. Naomi was
Judgment affirmed.