realty and personalty together, is a gift to those who inherit the real estate.70 The term "heirs," in its legal sense, comprehends those whom the law appoints to take the estate of the testator or ancestor named in the event of intestacy, and this technical meaning will be applied unless a contrary intent is plainly apparent." 8851. The Same Subject. While it is true that the word "heirs" is, strictly speaking, a word of limitation and not of purchase, and that if it be used in such technical sense, nothing can Eq.) 190; Corbitt v. Corbitt, 54 N. C. (1 Jones Eq.) 114, 117; Nelson v. Blue, 63 N. C. 660; Ferguson V. Stuart's Ex'rs, 14 Ohio 140;' Ward v. Sanders, 3 Sneed (35 Tenn.) 387, 391. Contra: Aspden's Estate, 2 Wall. Jr. 368, 442, Fed. Cas. No. 589. In Tennessee, however, it has been held that where a testator bequeathed the remainder of his property, both real and personal, to his heirs according to the laws of the state, the realty should pass to his heirs and the personalty to his next of kin.-Alexander v. Wallace, 8 Lea (76 Tenn.) 569. 70 Ireland v. Parmenter, 48 Mich. 631, 12 N. W. 883; Clarke v. Cordis, 4 Allen (86 Mass.) 466, 480; Loring V. Thorndike, 5 Allen (87 Mass.) 257, 269; Rogers v. Brickhouse, 58 N. C. (5 Jones Eq.) 301, 304; Hackney v. Griffin, 59 N. C. (6 Jones Eq.) 381, 383. If personalty be bequeathed to the testator's widow for life with remainder over to his "heirs," the word will not be held to indicate those who would take under the statutes of distribution, inasmuch as the widow herself would be thereby included.-See Richardson v. Martin, 55 N. H. 45; Henderson v. Henderson, 46 N. C. (1 Jones L.) 221; Jones v. Lloyd, 33 Ohio St. 572. Contra: Brown v. Harman, 73 Ind. 412; Weston v. Weston, 38 Ohio St. 473. As to where it was held to include all the distributees except the widow, see Bateman v. Bateman, 17 Grant Ch. (U. C.) 227. 71 In re Donahue, 36 Cal. 329, 333; MacLean v. Williams, 116 Ga. 257, 59 L. R. A. 125, 42 S. E. 485; Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235; Ewing v. Barnes, 156 Ill. 61, 40 N. E. 325; Smith v. Winsor, 239 Ill. 567, 88 N. E. 482; Nye v. Grand Lodge A. O. U. W., 9 Ind. App. 131, 32 N. E. 429; Phillips v. Carpenter, 79 Iowa 600, 44 N. W. 898; Hoover v. Smith, 96 avert the operation of the rule in Shelley's Case,72 yet the context may show that it was employed by the testator as descriptio persona. In the construction of a will greater latitude is allowed than in the case of a deed," and the technical meaning of the term "heirs" will not be allowed to defeat the obvious intent of the testator as gathered from the four corners of his testament.75 Md. 393, 54 Atl. 102; Lavery v. Egan, 143 Mass. 389, 9 N. E. 747; Lincoln v. Perry, (Perry v. Aldrich) 149 Mass. 368, 4 L. R. A. 215, 21 N. E. 671; Proctor v. Clark, 154 Mass. 45, 12 L. R. A. 721, 27 N. E. €73; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766; Jarboe v. Hey, 122 Mo. 341, 353, 26 S. W. 968; Howell v. Gifford, 64 N. J. Eq. 180, 53 Atl. 1074; Cushman v. Horton, 59 N. Y. 149; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1; Lawton v. Corlies, 127 N. Y. 100, 27 N. E. 847; Croom v. Herring, 11 N. C. 393; In re Porter's Appeal, 45 Pa. St. 201; In re Eby's Appeal, 50 Pa. St. 311; In re Dodge's Appeal, 106 Pa. St. 216, 51 Am. Rep. 519; Cook v. Providence First Universalist Church, 23 R. I. 62, 49 Atl. 389; Dukes v. Faulk, 37 S. C. 255, 34 Am. St. Rep. 745, 16 S. E. 122; Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161; Alexander v. Wallace, 8 Lea (76 Tenn.) 569; Brooks v. Evetts, 33 Tex. 732, 742; Flint v. Wisconsin Trust Co., 151 Wis. 231, Ann. Cas. 1914B, 67, 138 N. W. 629. 72 Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919. 73 Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919. 74 Webbe v. Webbe, 234 Ill. 442, 17 L. R. A. (N. S.) 1079, 84 N. E. 1054. 75 Blackmore v. Blackmore, 187 Ill. 102, 58 N. E. 410; Johnson v. Askey, 190 Ill. 58, 60 N. E. 76; Winchell v. Winchell, 259 Ill. 471, 102 N. E. 823; Black v. Jones, 264 Ill. 548, Ann. Cas. 1915D, 1173, 106 N. E. 462; Duke v. Faulk, 37 S. C. 255, 34 Am. St. Rep. 745, 16 S. E. 122. "That a case might arise where the word 'heirs' would be construed to mean children or heirs apparent may be admitted. But before a court should say that the word should not have its accurate and legal meaning, it should clearly appear that the testator did not use the word advisedly and that he intended to say something different from what he did say."— Flint v. Wisconsin Trust Co., 151 Wis. 231, Ann. Cas. 1914B, 67, 138 N. W. 629. Wherever the context of a will shows that the word "heirs" was used in the sense of children, it will be so construed.76 Where a devise was in trust for the benefit of one and his family, and upon his death leaving no "heirs" then over, the word "heirs" was construed as meaning children." The expression "nearest male heir" has been held not to have been used in the technical sense of referring to the testator's heir being a male, but as meaning the testator's nearest male relative. If the expressions used in the will show that the testator intended by the term "heirs at law" to include only his blood relatives, his wife will be excluded." But a devise to a sister for life with remainder over to her heirs in fee does not in itself show that the testator intended the word "heirs" should mean "children."'80 The testator's intention must be drawn from the language of the will; parol evidence will not be admitted to show what he might have meant.81 § 852. "Heirs" as a Class: As to the Date Which Determines Who Are Included. "A devise to 'heirs' or 'heirs at law' is always construed as referring to those who are such at the time of the testator's death, unless a different intent is plainly 76 Lockwood's Appeal, 55 Conn. See, also, Stuart v. Stuart, 18 77 Anthony v. Anthony, 55 Conn. 78 Lightfoot v. Maybery, (1914) A. C. 782. 79 Black v. Jones, 264 Ill. 548, Ann. Cas. 1915D, 1173, 106 N. E. 462. 80 Flint v. Wisconsin Trust Co., 151 Wis. 231, Ann. Cas. 1914B, 67, 138 N. W. 629. 81 In re Lester's Estate (Webb v. Johnson) 115 Iowa 1, 87 N. W. 654. manifested by the will."82 Although, strictly speaking, only the dead have heirs, yet a testamentary gift to the heirs of a designated person who is living, describes the beneficiaries with sufficient certainty and is held to refer to the heirs apparent of such person or those who will be his heirs when the gift takes effect.83 An immediate gift to the heirs of one recognized in the will as living, is a bequest to those who would be his heirs if he were dead at the time of the gift.84 Where the gift is not immediate, the rule will fail85 unless the heirs be referred to as persons already in being or to come into being during life of the first taker;se but a postponement for the life of a person other than of him to whose heirs the gift is made has been held to be within the rule.87 Thus, a remainder to the testator's own "heirs" upon the death of the particular tenant without issue, includes those who are heirs to the testator at the time of his death, and 82 Abbott v. Bradstreet, 3 Allen (85 Mass.) 587; Minot v. Tappan, 122 Mass. 535; Dove v. Torr, 128 Mass. 38. 1 83 Darbison Beaumont, V. P. Wms. 229; Goodright v. White, 2 W. Bl. 1010; Heard v. Horton, 1 Denio (N. Y.) 165, 43 Am. Dec. 659. 84 Shepherd v. Nabors, 6 Ala. 631, 636; Williamson v. Williamson, 18 B. Mon. (57 Ky.) 329, 370; Conklin v. Conklin, 3 Sand. Ch. (N. Y.) 64, 67; Campbell v. Rawdon, 18 N. Y. 412, 417; Ward v. Stow, 17 N. C. (2 Dev. Eq.) 509, 517, 27 Am. Dec. 238; Bailey v. Patterson, 3 Rich. Eq. (S. C.) 156, 158. 85 Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802; Campbell v. Rawdon, 18 N. Y. 412, 417; Reid v. Stuart, 13 W. Va. 338; Stuart v. Stuart, 18 W. Va. 675. 86 Roberts v. Ogbourne, 37 Ala. 174, 178; Woodruff v. Woodruff, 32 Ga. 358, 360; Conklin v. Conklin, 3 Sand. Ch. (N. Y.) 64, 67. 87 Dove v. Torr, 128 Mass. 38; Heard v. Horton, 1 Denio (N. Y.) 165, 43 Am. Dec. 659; Simms v. Garrott, 21 N. C. 393, 396; Knight v. Knight, 56 N. C. 167, 169; Ingram v. Smith, 1 Head (38 Tenn.) 411, 426. does not embrace those who might answer that description at the expiration of the particular estate. 88 In a gift to heirs by way of substitution, the persons are ascertained at the death of him whose heirs they are, and not at the time of distribution;89 if, however, the ancestor be dead when the will is made or die before the testator, those are entitled who, at the death of the testator, would have taken the property had their ancestor then died intestate.90 91 In construing a will, where the testator after certain life estates provided that the estate should "descend to those persons who may then be entitled to take the same as my heirs," it was said by the court: "The word 'then' is here inserted, not by way of description of the persons who are to take, but by way of defining the time when they shall come into the enjoyment of that which is devised to them. The word 'surviving' is not superadded, nor is the devise to those who would have been the testator's heirs if he had died at that time." Accord 88 Stokes v. Van Wyck, 83 Va. 724, 3 S. E. 387. 89 Gundry v. Pinniger, 1 De Gex, M. & G. 502. 90 Vaux v. Henderson, 1 Jacob & W. 388; In re Gamboa's Trusts, 4 Kay & J. 756. 91 As in Long v. Blackall, 3 Ves. Jun. 486; in Sears v. Russell, 8 Gray (74 Mass.) 86, and in Thompson v. Luddington, 104 Mass. 193. 92 As in Olney v. Hull, 21 Pick. (38 Mass.) 311, and in Hurlburt v. Emerson, 16 Mass. 241. In the construction of wills there are instances in which the word "then" as used in connection with a devise of property has been held to be an adverb of time, but this is not the general rule, which is, that it does not point to the time but indicates the event. It sometimes refers to the event upon the happening of which the legal heirs take, and not to the time when their right to take begins. To this effect can be cited the following cases: Buzby's Appeal, 61 Pa. St. 111; Ashton's Estate, 134 Pa. St. 390, 19 Atl. 699; Stewart's Estate, (In re Swann's Estate) 147 Pa. St. 383, 23 Atl. 599; McCrea's Estate, 180 Pa. St. 81, 36 Atl. 412; In re Fuller, 225 Pa. St. 626, 74 Atl. 623; Fitzpatrick's Estate, 233 Pa. St. 33, Ann. Cas. 1913B, 320, 81 Atl. 815. |