Driskill v. Carwile

• Decision Date: 17 June 1926
• Citation: 133 S.E. 773
• Parties: DRISKILL et al. v. CARWILE et al.
• Court: Virginia Supreme Court

133 S.E. 773

DRISKILL et al.

v.CARWILE et al.

Supreme Court of Appeals of Virginia.

June 17, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Heirs.]

[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Gift to a Class.]

Appeal from Circuit Court, Charlotte County.

Suit to construe.a will between Nannie E. Driskill and others and Mary P..Carwile and others. From the decree, the former appeal. Decree affirmed.

A. S. Hester, of Lynchburg, for appellants.

K. L. Woody, of Charlotte, for appellees.

PRENTIS, P. This suit was instituted for the purpose of construing the will of P. J. Sterne, and to determine those entitled thereunder to the proceeds of sale of certain real estate thereby directed to be sold.

The testator devised two tracts of land and bequeathed certain personal property thereon to his sister, Nannie P. Moon, for life, and concludes the clause with this language:

"The said property I give unto Nannie P. Moon during her lite and that of her husband. Nathan S. Moon, and at their decease, I direct the same to be sold and equally divided between the living heirs of my brothers and sisters."

This quoted clause is that which is to be construed. Both Nannie P. Moon and her first husband, Nathan S. Moon, are dead.

As two wills rarely use the same language, and every will is generally unlike all other wills in some particular', the adjudicated cases frequently afford little aid. My Lord Coke said over 300 years ago, that— "Wills and the construction of them do more perplex a man than any other learning; and to make a certain construction of them, this excedit jurisprudentum artem."

Such questions continue to puzzle the courts. The reasoning applied in construing previous wills is much relied on in construing later and different wills, in the effort to follow beaten paths and thus to establish some general rules. Such laudable efforts frequently fail because it is from the will then to be construed that the court must ascertain the intent of the particular testator and if his purpose be legal to give it effect. Such efforts to apply general principles have frequently obscured the truth by overmuch speaking, and this favorite pastime often darkens counsel by words without knowledge. In this case, however, we have no such confusion, and can safely follow the precedents.

The real controversy in this case is whether the fund is to be divided into 6 equal parts and distributed to the decendants of the 6 brothers and sisters of the testator per stirpes, or is to be distributed per capita to the children of these brothers and sisters, 20 in number, living at the death of the life tenant. The trial court took the latter view and held that each of these 20 children takes equally. The appellants are here assigning error and alleging that the fund should be distributed per stirpes.

The first thought which is suggested is that the doctrine of equitable conversion applies, because the land is directed to be sold and the proceeds divided among those indicated as the objects of the testator's bounty. Carr v. Branch, S5 Va. 601, 8 S. E. 476; Moore v. Kernachan, 133 Va. 211, 112 S. E. 632.

We then have to determine what the testator meant when he directed that the fund should go to the "living heirs" of his brothers and sisters.

It appears that the life tenant, his sister, never had any children, but at the time of his death he had 6 other brothers and sisters who were married and had children.

In Walker v. Webster, 95 Va. 377, 28 S. e. 570, a will directed the testator's estate to be "divided in equal parts, among those who would be my heirs at law, under the statute of descents and distributions in Virginia, in case I had died intestate." In holding that the devisees in that case took per capita and not per stirpes, Riely, J., discusses certain cardinal rules. The controlling words in that devise were held to be the direction that the property should be "divided in equal parts, " and in this connection it is said:

"And in thus ascertaining the intention, effect must be given to every word of the will, if any sensible meaning can be assigned to it, not inconsistent with the general intention apparent on the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible, or unmeaning for want of any subject to which they may be applied."

In this will, then, we have the words "living heirs" applied to his brothers and sisters who were themselves then living. This use of the word "heirs" applied to persons then living seems to make it manifest that the word was not used in a technical sense. While the general rule is that technical words are presumed to be used technically and words having a definite legal significance are to be understood as used in their definite legal sense, nevertheless, when expressions are used in the instrument in conjunction with such technical words which plainly indicate the intention and also that such intention was not in accordance with the technical signification, the manifest intention will control the legal operation of the words.

Applying this rule to a deed conveying land to the "heirs" of a living person, this court, in Roberson v. Wampler, 104 Va. 380, 51 S. E. 835, 1 Ij. R. A. (n. S.) 318, held that the word "heirs, " as used in that deed, meant children. That case and the numerous cases cited in the opinion by Buchanan, J., are ample support for the view of the trial court that, in devising the proceeds of this property to the living heirs of his brothers and sisters, the testator intended to give it to their children, and so the word "heirs" in this will is to be construed as meaning children. Other pertinent cases are Commonwealth v. Wellford, 114 Va. 376, 76 S. e. 917, 44 L. R. A. (n. S.) 419; Halsey v: Fulton, 119 Va. 574, 89 S. e. 912.

Then we come to another question. That this is a gift to a class, the living children of the testator's brothers and sisters, appears manifest, for it meets the accepted definition, namely:

That it is "a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions; the share of each being dependent for its amount upon the ultimate number: " 28 R. C. L. § 233, p. 260.

Being a gift to a class, it is necessary to determine the time when the membership in that class is to be ascertained. Here, too, we have little difficulty, because of the precedents. The general rule is, that the time for fixing the membership in a class taking under a will is the death of the testator; but, where the distribution is to be made among a class at a time subsequent to the testator's decease, then only those who belong to the class when such time arrives are entitled to share in the distribution. 28 R. C. L. p. 264, § 238; Collin v. Collin, 1 Barb. Ch. (n. Y.) 630, 45 Am. Dec. 420; Gilliam v. Guaranty Trust Co., 186 n. Y. 127, 78 n. e. 697, 116 Am. St. Rep. 536; Thompson v. Garwood, 3 Whart....