#### *Eli Clark et al. vs. John Mosely.*

Testator devised all his ‘landed property’ to his wife for life, and at her death to he equally divided between his daughter Martha’s ‘lawfully begot, ten heirs’ by H. her husband, and his daughter Rebecca. Martha survived the tenant for life. Held, that the term *heirs*must be const] ued in its technical sense, and that, Martha being alive at the death of the tenant for life, and her children cpnsequently not being then her heirs, the limitation over of one moiety to her heirs failed, and that that moiety was distributable as intestate property. /

In construing wills, technical words are to be taken in their technical sense, unless from the context they appear to have been used in a different sense ; and the mere failure of the will to effect an intention conjectured from extrinsic circumstances, will not justify the court in departing from a technical construction.

*Before*Johnston, Ch. *at Edgefield, June,*1844.

The decree of his Honor the Chancellor is as follows:—

Alexander Stewart departed this life, the 25th of October, 1824, leaving a widow, Ann Stewart, and two daughters, Martha, the wife of Henry Barnes, and Rebecca, the wife of the defendant, Mosely. T he former of these daughters, Mrs. Barnes, had, at his death, several children. He left a will, duly executed, but without date, containing the following provisions : First, I lend to my wife, Ann Stewart, during her natural life, the following property, to wit: all my landed property, together with all the’advantages arising therefrom; my fishing places on Savannah river, known as the Cow Shoals, and all my stock of cows, hogs, sheep, and horses, together with all my household and kitchen furniture, and negroes, to wit: Charles, Tom, Pat, Kate, and Sam, together with the future issue of the females.

Second, I lend to my daughter, Martha M. Barnes, the following property, to wit: one bed, (fee., and the following negroes, during her natural life, and after her decease to be divided between her lawful *heirs*by Henry W. Barnes, now her husband, to wit: Nancy, Sarah, and Harriet, together with the future increase of the females; and the *disposal*of the negroes *to her lawful heirs*by Henry W. Barnes, *shall he at her own disposal.*Thirdly, I lend to my daughter, Rebecca A. Stewart, (afterwards Mrs. Mosely,) the following property during her natural.life, to wit: Margaret, Eliza, and Edward, together with the future increase of the females, (fee. (fee.

*397Now, my desire is, that if Rebecca A. Stewart should die without a lawfully begotten *living*heir, then, and in that case, all the property *that I leave loaned*her, shall be equally divided between the lawful heirs of Martha M. Barnes, begotton by Henry W. Barnes, now the husband of Martha M. Barnes. Now, my desire is, that all the property that I have *loaned to my*wife, Ann Stewart, shall, at her death, be equally divided between Martha M. Barnes’s lawfully *begotton*heirs, by Henry W. Barnes, now her lawful husband, and Rebecca A. Stewart.

Now, if Rebecca A. Stewart should die without *a lawful*heir, then, and in that case, all the prope'rty *that comes by her mother*to her, shall be equally divided between *the lawful heirs*of Martha M. Barnes by Henry W. Barnes, now her lawful husband.

From the pleadings it appears that Mrs. Mosely, formerly Rebecca A. Stewart, died the 18th of November, 1825, survived by her husband, the defendant, and by an only child, now the wife of Eli Clark; that Ann Stewart, the widow of the testator, died in September 1831; and that Henry W. Barnes, the husband of testator’s daughter, Martha, died in September, 1840, survived by his wife, and leaving five children by her, to wit: John S., Samuel M., James A., Henry W., and Robert G. Barnes, but the pleadings do not inform us how many of these were born prior to the execution of the will, or to the death of the testator, or prior *to'*the death of the testator’s widow.

The bill, which is brought by Mrs. Barnes and her children, and by Clark and his wife, is for a division of certain lands, of which the testator died seized, and for an account of the rents and profits which have been received by the defendant; as, also, for waste committed by him. There are several points raised in the answer, which it is unnecessary to notice, there being only one point submitted to me ; and that I shall proceed to explain. It appears from the pleadings, that of the lands of which the testator died seized, some were acquired before, and others after, the execution of his will. The parties are not exactly agreed as to which of the different tracts, owned by him, fall within the one category or the other ; and, besides, the defendant sets up an agreement with the testator, and a resulting trust, as to one of them. But be these matters as they may, these issues have not been submitted to me, and I am not to decide upon them. Nor am I to decide upon the rents and profits, or waste, all of which are contested.

*398The point submitted to me is this : As to such lands, whichever they may be, as were acquired by the testator before the execution of his will, the plaintiffs insist that they passed by the will, and upon the determination of the widow’s life estate, became divisable as follows : one-half to the children of Mrs. Barnes, by her husband Henry W. Barnes, in equal shares ; the other half to Mrs. Clark, as the only child of Mrs. Mosely, and to the defendant, Mrs. Clark taking two-thirds and the defendant one-third. The defendant, objecting to this, *“*submits, that such of the plaintiffs as are children of Henry and Martha Barnes have no proper standing in this cause, and cannot take, under the terms and description in the will of Alexander Stewart, as *Martha M. Barnes' lawfully begotton heirs by Henry W. Barnes her ' lawful husband,*inasmuch as the said Martha M. Barnes, being yet living, has no heirs; and the said plaintiffs were not even heirs of Henry W. Barnes, at the happening of the contingency, the death of Ann Stewart, upon which the heirs were to take: and, consequently, that the moiety, thus ineffectually given to the heirs of Martha M. .Barnes, is not devised by the will of Alexander Stewart, (except as to the life estate of Ann Stewart therein,) and descended, upon the death of Ann Stewart, in like manner as the real estate acquired by said Alexander after the execution of his will, to his heirs at law, namely, Martha Barnes, and Rebecca Mosely, the deceased wife of the defendant. If, however, the children of Martha Barnes shall be construed to take as heirs of their living’ mother, then, the respondent submits, that those of them, only, who were in existence at the death of the testator, or, at most, those of them who were in existence at the death of Ann Stewart, are entitled to take.”

This point includes three questions :

1. Whether any of the children of Mrs. Barnes can take under the designation of her heirs, she being still alive ?

2. If heirs are construed to mean children, whether any who were not born at the death of the testator can take ?

3. Whether, upon the same leading construction, the right is not restricted to such children as were born before the death of Ann Stewart *1*

Only the first of these questions was argued ; and that without reference to authorities. The word *heirs*has a technical meaning, which forbids its being applied to the children of a living person, unless, from the context of the instrument in *399which it is used, it seems to have been used in the latter sense. *Prima facie,*words must be understood according to their legal import; and when they have an obvious meaning, they are not to be rejected, (nor, by parity of reasoning, warped from their technical signification, when they are technical words,) upon a mere suspicion that he who used them did not know what they meant; 5. Yes. 401; 8. Yes. 306. But when, from the context, it is apparent that they have been employed in an arbitrary manner, to signify something contrary to their ordinary or legal signification, courts of justice, whose office it is to carry out the real intention of parties, are bound to give effect to them in the sense in which they have been used. In this will, if we restrict ourselves to the particular section in which the testator limits over the properey he had given his wife, we shall- be bound by the rules of law to declare that the remainder is given to Miss Stewart, and to special heirs of Mrs. Barnes.

If this had been a deed, and the gift had been direct,- and intended for immediate enjoyment, there would have been ground for the construction that children were meant. But in a paper which itself could have no present operation, and where the bounty is expressly postponed and made to depend upon a contingency that might not occur for many years, there is no *necessity*for putting a forced construction upon the words used; and without a strong necessity it cannot be done. The rule is pretty clear (as laid down by Wigram, in his excellent little work lately republished in this country) that when words in their primary sense can operate, they shall operate in that sense; and it is only where they cannot so operate, but are capable of a secondary construction, that extrinsic circumstances are let in for the purpose of giving efficacy to them according to the secondary meaning. But this doctrine does not prevent us from looking into the other parts of the will, for the purpose of seeing whether the testator used the word heirs as synonymous with children; and I do not perceive that he has done so. In the bequest to Mrs. Barnes, he has created a limitation over to her heirs, but that is expressly after her death, when the term aptly applies; and as to the disposal to these, which she is au-thorised to make, it is evidently nothing but a power of appointment among them, which she is enabled to execute notwithstanding her coverture. So again, when the heirs of Rebecca A. Stewart are spoken of, they are mentioned as persons to exist at her death. I do not doubt that if these children had, by the *400death of their mother, become her heirs, (meaning with us her distributees,) at any time before the death of the life tenant, they would have been entitled; the doctrine, as I apprehend it, being that he who answers the description at the time of distribution shall take. He who is to take at the death of the testator, must come up to the description then ; but he whose enjoyment is postponed to a distant period, shall enjoy, if he be *in esse*to enjoy. 1 Ball B. 459, et seq. 462, 483. I am of opinion, then, that the will in respect of the lands referred to, had no operation beyond the life estate of testator’s widow. If the parties have agreed upon the other points, they are at liberty to prepare and present a decretal order; otherwise the case will stand for further hearing on these points.

Having been put to' unnecessary trouble in stating this case, I will venture to order, that in such cases, in future, when points are to be argued upon a case stated, the counsel shall furnish the court with a statement, in writing, setting forth the facts and the questions.

The plaintiffs, John S., Samuel M., James A., Henry W., and Robert G. Barbes, children of Martha M. and Henry W. Barnes, appealed, on the following ground :

Because, under the will of the testator, they became entitled, upon the death of the widow, to one-half of the property lent to her for life.

*Griffin,*for the appellant.

*Wardlaw,*contra.

*Curia, per*Johnston, Ch.

It is not thought necessary to quote cases establishing *the*general proposition, that if property be given to the heir of a person living at the time of the gift, or when it comes to take effect, the gift must fail. *Brett vs. Rigden, Pl*owd. 341.

A few authorities, indiscriminately collected, will shew the strength of the rule, that technical words are to be taken in their technical sense, unless he who employs them appears, from the context, to have used them in a different sense; and that the mere failure of the instrument to effect an intention' conjectured from extensive circumstances, will not justify the court in departing from a technical construction.

*Prima facie,*words must be understood in their legal sense; unless by the context, or express words, plainly appearing, intended otherwise. 5 Yes. 401.

*401It is a rule of construction, not to make any intendment contrary to the plain and usual sense of the words, unless from other parts of the will plainly appearing not intended to have that extensive operation. 7 Ves. 368.

Words used by a testator shall be interpreted according to their legal effect and operation, unless it clearly appears that he intended to use them in a *different*sense. *Wilson vs. Tigler, 2*B. *&*B. 204.

In the construction of a will, it shall be presumed that the testator was acquainted with the rules of law. *Langham vs. Sanford, 2*Meriv. 22.

The court never alters nor adds to a will, without necessity. 7 Ves. 128.

Words having an obvious (or ascertained) meaning, not to be rejected (or warped) upon a suspicion that the testator did not know what they meant. 8 Ves. 306.

The mere improbability that a testator could have meant what he has expressed, neither authorizes the rejection of his words, nor renders the devise void for uncertainty. *Chambers vs. Brilsford, 2*Mer. *25.*

Though the testator may not have contemplated the event which has happened, that will not affect the construction. 7 Ves. 369.

If the meaning of a will (or of the words in it) be ascertained, any reasoning from supposed cases will not induce the court to make a different construction; but can only lead to a conclusion that the testator did not foresee all the consequences. 15 Ves. 103.

In *Attorney General vs. Grote,*3 Meriv. 316, (a) Sir W. Grant said : *“*To authorize a departure from the words of a will, (or from the accepted meaning of the words,) it is not enough to doubt whether they were used in the sense which they properly bear. The court must be quite satisfied that they were used in a *different*sense ; and ought to be able, distinctly, to say *what the sense is*in which they were meant to be used.” And Lord Eldon laid it down that “individual belief ought not to govern the construction ; it must be judicial persuasion.”

I think whoever will allow due weight to these authorities, will hesitate to adopt any construction based merely upon the reasonable intention of the testator, to be conjectured from the *402circumstances of his family at the time, directly at variance with the legal meaning of the words used by himself to express his intention, and unsupported by any contrary meaning annexed to the same words in the context of his will. To take such liberties with his words, is not to interpret his will, but to make it; and will throw the rules of law, and the rights of men under them, into an intolerable uncertainty.

As no part of the context of this will has been or can be pointed out in which the testator has not used the word “ heir” in its technical sense, upon what ground are we to infer that it was otherwise used in the clause in question ? Are we to infer it from the fact, that in the events which have happened, it could not take effect *1*The authorities referred to explicitly lay it down, that such a ground is quite insufficient.

If you reject the word *“*heir,” you must be able to say, with distinctness, what other word the testator meant to employ. Now what word will you substitute, which, in other events, might not as seriously have disappointed the supposed intention of the testator ? Did he mean “ children,” or *“ issue*1” If the former, then, in certain well krown events, some of the children might have been excluded, as if born after' the testator’s death, or after the death of the life tenant; and if some of the children had died leaving issue, the issue would not have taken. If he meant issue, then, according to *Campbell vs. Wiggins,*(a) children and their descendants, taking as purchasers, would have taken together and *per capita,*and thus have received shares very different from those intended.

Two cases have been relied on, to pervert the meaning of the testator’s word “ heirs” from its technical meaning. But in my opinion, the question presented here could not have occurred in one of them; and the other is an authority for a construction directly contrary to that contended for. The first of them is *Loveday vs. Hopkins,*Amb. 273. Testator devised as follows : “I give to my sister Loveday’s *heirs*£600.” “I give to my sister Brady’s *children,*equally, £1000.” At the making of the will, Mrs. Loveday had two children — the plaintiff and a daughter named Martha. Martha afterwards died in testator’s life time, leaving three children. Mrs. Loveday survived the testator, and was alive at the hearing of the cause. The plaintiff, one of the children, filed his bill against the executrix for the whole £600. The children of Martha were made defendants.

*403The executrix, who was residuary legatee, by her answer, and at the bar, disclaimed all right to the £600. Question ; whether the testator intended to include the children of Mrs Loveday, and *their*descendants, in the word “ heirs and whether the children of Martha, the deceased daughter of Mrs. Loveday, were entitled, as such, to a moiety of the £600, which (it was assumed) would have been their mother’s share, if she had survived the testator.

Sir Thomas Clark, M. R. was clearly of opinion that the testator intended to give the £600 to the children of Mrs. Loveday, the same as in the subsequent clause to Mrs. Brady’s children, and had not their descendants in view — and decreed the whole £600 to the plaintiff.

Now, it is evident from the brief report by Ambler, that the only person who could have raised the question whether “heirs” meant “ children” in this case, was the executrix and residuary legatee, and she disclaimed. Upon this disclaimer, the only ground upon which either the plaintiff or Martha’s children could contest the right as among themselves, was the- assumption that “ heirs” in this clause meant “ children and that construction was taken for granted by both parties. It was conceded, that if Martha had survived the testator, as well as the plaintiff, she, as well as he, would, as children of Mrs. Loveday, have been entitled to a share of the £600, notwithstanding their mother was still living. This construction being assumed, the only question in the case was whether the term “ children” extended to “grand-children,” the descendants of children. And the import of the decision was that it did not; and this is all that was decided in the case.

The other case is *Wilson vs. Vansittart,*Amb. 562. Testator made his will in India, in his own hand writing, and after several legacies, gave the residue of his estate, consisting of personalty, to his brother John, (the plaintiff) *and to his heirs*male, *equally to be divided among them,*share and share alike.

Three questions : 1. Whether the father shall take the whole, rejecting the words equally to be divided *1 2.*Whether the father and sons shall take at the same time, as tenants in common ? 3. Whether the father shall take for life, and after his death the residue shall go to all his sons equally *1*

Lords Commissioners Smith and Bathurst were clearly of opinion that, according to the true construction, the father shall take *404the whole for life, and *then to go*to the sons equally, and decreed accordingly.

Now, the plain import of this decision was, that by construction of the will, the gift to the sons was after their father’s death, when they were heirs and answered to the description. They were not allowed to take with their father, as tenants in common, because during his life they were not “ heirs wherefore they were postponed until they could come up to that description.

This case seems, to me, to support the principle of the decree in the present case. It is ordered that the decree be affirmed, and the appeal dismissed.

Harper and Dunkin, CC. concurred.

(a)

 Cited in Wigram on Wills, p. 30, pi. 45, and p. 200, App. No. 2.

(a)

[a] Rice Eq. 1Ó.