MacLean v. Williams

• Decision Date: 08 August 1902
• Citation: 42 S.E. 485,116 Ga. 257
• Parties: MacLEAN et al. v. WILLIAMS.
• Court: Georgia Supreme Court

42 S.E. 485

116 Ga. 257

MacLEAN et al. v. WILLIAMS.

Supreme Court of Georgia

August 8, 1902

Syllabus by the Court.

1. A will contained the following item: "I give, devise, and bequeath all the rest and residue of my estate, of every description and kind, and wherever situate, and not by this will fully disposed of, as follows: I direct that two-thirds thereof be distributed in equal shares to such persons in life at the time of my decease who would then be the heirs at law of my deceased husband had he survived me, and that the other one-third be distributed in equal shares to my own heirs at law then in life." Held, that the distribution provided for among the heirs at law of the testatrix should be per stirpes, and not per capita.

Error from superior court, Chatham county; Pope Barrow, Judge.

Action by R. T. Williams by next friend against Malcom MacLean and others, executors. Judgment for plaintiff, and defendants bring error. Reversed.

Adams Freeman, Denmark & Adams, for plaintiffs in error.

Groover & Johnston and Walter G. Charlton, for defendant in error.

COBB J.

The single question involved in this case is, what is the proper construction to be placed upon the eighth 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 grand nephews 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 determined is whether, under this item, those persons who answered 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 of distributions, when the decedent dies intestate. When the expression "heirs at law" is used in a will, and is unaccompanied by any qualifying or explanatory language there is but one place to which resort must be had to ascertain what persons are within the meaning of this descriptive term, and that is the statute of distributions. Those falling within the description are entitled to the estate of the decedent, unless there is some law declaring to the contrary, or the decedent has died testate, and the language of the will is such as to indicate that the intention of the testator was that some other persons than those who would take under the statute of distributions should take, or, if, under the will, the estate goes to those who would take under the statute, the testator intends that they shall take in a different manner than that provided in the statute. The will of a testator is the law which controls the question as to who shall take the property of the decedent; and this law, if clearly manifested by the terms of the will, will be allowed to prevail over the provisions of the statute of distributions, both as to what persons shall take the property and as to the interest which they will take therein, if there is nothing in the provisions of the will which contravenes the general policy of the state. The intention of the testator is to absolutely control. Not only may the rules of grammar be entirely disregarded in order to carry into effect the manifest intention of the testator, but even well-defined technical terms of the law will be given an unusual meaning, or will be held to be meaningless, when it is clear from the provisions of the will that the testator did not use them in their technical sense, or when, to carry out his intention, it is necessary to entirely disregard such technical terms. If, however, the will uses words which have a well-settled, definite meaning in the law, and there is nothing in the will itself to indicate that it was the intention of the testator that such words should be given any other meaning than that which the law gives them, then it is to be presumed that it was the intention of the testator that the words should be construed in that sense in which the law would ordinarily construe them.

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 only the persons will come within the class thus described who would take the property of the decedent under the statute of distributions if there had been no will. See Page, Wills, § 556. If the item of the will under consideration had simply provided that the property thereby bequeathed should go to the heirs at law of the testatrix at her death, it would seem to be clear that those who would take under the will would be those persons who were then in life answering to that description under the statute of distributions. But the will provides that the persons answering the description of heirs at law of the testatrix at the date of her death shall take in equal shares. All individuals who may take under the statute of distributions do not necessarily take in equal shares; and it is therefore insisted that, while we must go to the statute to find who are the persons within the descriptive terms, after having determined this the statute has no further bearing upon the question; and that the individuals coming within this class are each to take an equal share in the property which passed under the item of the will. It is the general rule that a devise to named individuals in equal shares would call for a per capita distribution, and that a devise to a class, such as "all my nephews," and the like, would also call for a per capita distribution. When the words "heirs at law" are used in a will, unless there is something to indicate a contrary intention, it is to be presumed that the testator intended not only that the persons taking should be those who would take under the statute of distributions, but that the quantum of interest of each should be what each individual would take under the statute. Is the use of the expression "equal shares" alone sufficient to overcome this presumption? The shares under the statute of distributions are equal. As was said in Odam v. Caruthers, 6 Ga. 42, persons standing in unequal degrees are allowed to take per stirpes "to fulfill the equity of the statute, which contemplates an equal distribution." If all the heirs at law stand in the same relation to the decedent, they take equally per capita. If some stand in different degrees from others, they take per stirpes, but they take equally nevertheless. The estate in either event is divided into shares, and equal shares, although in the one case each share goes to an individual, and in the other case the equal shares go to a class of individuals. The statute of distributions sets forth the settled policy of the law as to where the estate of a decedent shall go. While a testator is allowed to ignore, either in part or altogether, the rules laid down in that statute, it will not be presumed that it was the intention of the testator to disregard the law as it is contained in the statute in any part, unless the terms of the will are such as to make this intention manifest. Mr. Page says: "A devise to 'children and heirs' of two persons named, to be divided among them 'equally,' was held to call for a distribution per stirpes, since the word 'heirs' so strongly implies representation that it overcomes the force of the word 'children' and 'equally,' both of which call for a distribution per capita." Page, Wills, § 556. In 15 Am. & Eng. Enc. Law, p. 322, we find the rule stated in these words: "A devise to heirs, whether to one's own heirs or to the heirs of a third person, designates not only the persons who are to take, but the manner and proportion in which they are to take. Where there are no words to control the presumption, the law presumes the intention to be that they take as heirs would take by the rules of descent." See, also, Schouler, Wills (3d Ed.) § 538 et seq.

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...