Heyward v. Hasell

2 S.C. 509, 1871 S.C. LEXIS 31

• Court: Supreme Court of South Carolina
• Decided: August 9, 1871
• Status: Published

Opinion

The opinion of the Court was delivered by

Willard, A. J.

The only question raised by the present appeal involves the construction of the following- clause of.the will of John Ashe: “ But if it should so happen that, at, the time of the death of both my said sons, there should be no lawful lineal descendant of either to take the estate, according to the foregoing limitations, then, and in that caso, I give and devise all and singular the lands, tenements and hereditaments -which are so, as aforesaid, devised, to be equally divided among all such of my grandchildren begotten, or to be begotten of my daughters, as may be alive at the time of the death of the survivor of my sons, to be divided, share and share alike, among such of my grandchildren by my daughters, and to their several and respective heirs and assigns forever.”

The contingency expressed in this devise happened, namely, the decease of both of the sons of the testator, having no lineal descendant of either to take the estate, according to the limitations that preceded in the will the devise in question. Accordingly, the limitation over to grandchildren begotten of his daughters living at the death of the surviving son took effect. At this time there were living persons answering accurately the description, namely, grandchildren of the testator begotten of his daughters. There were also living, at that time, children whose parents answered that description, and who, accordingly, were great grandchildren of 'the restator, and grandchildren of his daughters. Of these great grandchildren of the testator there were two classes, namely, those whose parents had deceased prior to the death of the surviving son, and those whose parents survived that event. A claim is made under this devise in behalf of each of the last named classes. It is claimed that the term grandchild, as employed in the devise, must be taken in an enlarged sense, that would include great grandchildren. The consequence of allowing this term in an enlarged sense has been discussed in a two-fold aspect. According to one of these theories, grandchildren and great grandchildren take indifferently together, as a class,’ share and share alike, or, in other words, a great grandchild, living at the death of the surviving tenant for life, takes the same share with the grandchild, and this, without regard to whether the parent of such great grandchild survived the tenant for life, so as to take under the devise, or died before him. The other theory excludes great grandchildren whose parents survived the life tenant and are still living. The first and most comprehensive of these theories is based broadly on the idea that great grandchildren are described within the term grandchildren, and take as purchasers under that description, and that all persons living at the death of the surviving life tenant, answering either to the description of grandchildren or of great grandchildren, take together, share and share alike. The last and narrower theory appears to be designed to meet a criticism to which the more comprehensive one is exposed. The ground of this criticism may be simply illustrated. A testator devises an estate by way of remainder to his children, A, B and C, living at a certain event that must happen subsequent to his death, share and share alike. At the happening of that event, A is living, having no children; B is living, having four children; C is dead, leaving four children living. Now, if the grandchildren are equally described with children under the term “ children,” then, at the vesting of the estate in remainder, there are living ten persons answering that description, namely, A, B and his four children, and C’s four children ; now, B and his children would take five out of the ten shares, C’s children would take four of the remaining five, leaving to A but one share of the ten. Such a disposition could not flow from the motives that ordinarily influence parental conduct, for it negatives the idea of the force of preference and natural precedence. We would expect to find such an intent clothed in expressions of a somewhat peculiar character, and such as would not ordinarily be employed when dispositions in consonance with the ordinary parental feeling are intended. The fact that grandchildren are under the scheme of the present devise, the ultimate objects of the testator’s bounty, instead of children, would not divest the foregoing illustration of force, in its application to the case in hand, for grandchildren are not descendants of so remote a character as to preclude the idea that preference and natural precedence influenced the intention of the testator towards them. It may well be said, then, that if this is the effect of giving ' the enlarged sense claimed for the term “grandchild,” instead of enforcing the presumed intent of the testator, it will tend to engraft upon it consequences that, if contemplated by the testator, would doubtless have been guarded against. In view of the obvious force of these considerations, an attempt has been made to retain the enlarged sense of the term “grandchild,” without letting in great grandchildren to take, as purchasers per capita, with grandchildren.

It has been argued that all the children of a grandchild, deceased, at the death of the surviving tenant for life, take a grandchild’s share — that is, taken together, they are, as a class, a grandchild -within the meaning of the devise. Not that they take as representing their parent, for the parent, dying before the happening of the contingency on which the estate vested, had no transmissible interest. If the first mentioned theory impaired the presumed intent of the testator, for the sake of satisfying the sense of the words, the latter assumes to trace that intent beyond the limits of the expressions employed to. convey it. -The testator understood the force and effect of allowing the children of a deceased object of his bounty to take, as a class, their parents’ share, and knew how to express such an intent in appropriate language, for such a provision is made in that portion of the will that creates the estates precedent to that limited by the devise in question. The unanswerable argument against implying such an intent from the devise in question is that the testator has undertaken to distinguish the cases in which the principle of representation should be employed in ascertaining the objects of his bounty, and has excluded the devise in question from that category. If, therefore, we are to read the term grandchild, according to the intent and understanding of the testator, as embracing great grandchildren, we must conclude that all who take under that designation, whether grand or great grandchildren, take as purchasers, share and share alike, a child taking an equal share with a living parent — brothers and sisters taking shares diminished according to the extent of the respective families.

The general rule is, that the language of the testator should be construed according to its primary and ordinary meaning, unless he has manifested his intention in the will itself to give a more extended signification. — Howe vs. Van Schaick, 3 N. Y., 538, per Gardner, J.

So long as there are persons in being to take according to the description, the foregoing statement of the rule is complete. Such is the present case.

The questions are: First. What is the primary and ordinary import of the term grandchild, in reference to its including or excluding great grandchildren ? Second. Does the will manifest an intent to use that term in a sense more extended thán its primary and ordinary sense, so as to include great grandchildren?

What, then, is the primary and ordinary import of the term grandchild ? But for the expressions in Hussey vs. Berkley, it would be unnecessary to bestow much attention to the discussion of this question. A grandchild is certainly understood by all who use the English language as one in the degree of relationship in the second step. Lord Northington says, however, that “ grandchild,” without explanation, comprehends great grandchild, for, says he, “ in common parlance,” * * “ the word grandchildren is used rather in opposition and exclusion of children than as confined to the next of descent, the children of children, and must, I think, have the effect of comprehending both, unless the intention appear to the contrary.” Had that case distinctly ruled that proposition, and been followed to the present time, it might be difficult to free ourselves from the force of precedent and to determine the point in reference to the sense of the term prevailing at the present day. But such was not the case, as the decision of the Court finally rested on the fact that the testator had included a great grandchild by name and special designation in the class of grandchildren, the objects of the devise. Nor does it appear that any later case has authoritatively ruled the point. All we have to consider, then, is the sufficiency of its reasons. It may be just to conclude that where the testator is looking to “children,” and says “grandchildren,” he means something in opposition to and exclusive of children. But the same reasoning would lead us to conclude that when, as is claimed in the present case, he is looking to great grandchildren, and says “grandchildren,” he means something in opposition to and exclusive of great grandchildren.

A contrary doctrine to that stated by Lord Northington was applied in Earl of Oxford vs. Churchill, (3 Ves. & B., 59.) Chancellor Walworth, in Howe vs. Van Schaick, (3 Barb. Ch., 488,) says: “Nor does the term grandchildren, without something further to extend its natural signification, include great grandchildren.” Again, he says: “Such is not the natural sense of the term grandchildren.”

As this is clearly an open question, so far as the Courts of this State are concerned, we must look to the sense of the term as commonly employed at this day. In this point of view we find no difficulty arising at the conclusion that, in its primary and ordinary signification, the term grandchild is applicable strictly to the degree of relationship in the second step from the ancestor.

The second question then arises, does the will manifest an intent to use that term in a sense more extended than its primary and ordinary sense, so as to include great grandchildren ?

In construing an instrument, resulting from the concurrence of two or more minds, we are compelled to refer the terms and expressions employed to a common standard ; but as a bequest or devise stands on the purpose of the testator solely, which is ambulatory until finally executed, and a large latitude is allowed, and the testator may make his own vocabulary, if his intention to do so is clearly made out. In such an inquiry, we may resort to the rules of interpretation to fix the sense intended to be applied to the terms and expressions employed, and to construction to test the appropriateness of the assumed sense by the general and particular objects and intents disclosed. Before departing from the ordinary sense, we must find a reasonable necessity for so doing in the text of the will, or the designs of the testator, as therein set forth.

If the testator has given his own definitions, or has used terms eonvertibly, or has employed a term in two or more relations, so as to characterize its intended sense, we have certain rules to go by.

Looking, then, into the devise before the Court, the question arises, whether a reasonable necessity appears for departing from the ordinary sense of the term “ grandchild,” as employed by the testator.

The testator has not, in any part of the will, supplied the definition of the term “grandchild,” but clearly assumes that his intention will be understood without such particular definition. Nor has he, anywhere, used the term “grandchild” as convertible with any other terms, such as “greatgrandchild,” “issue,” or “descendants.” It was argued that such an instance occurred in the respective devises to sons of the testator, but the expressions referred to have a different import. After limiting an estate over, on the death of his respective son®, to their children surviving them, and to the children of a child dying before that event, he says: “ But if it should so happen that,,at the time of the death of both of my said sons, there should be no “lawful lineal descendant” to take the estate “ according to the foregoing limitations,” then a further limitation is to take effect. It is said that the term, “ lawful lineal descendant,” describes the persons to take. If that view be correct, still, primarily, it would be regarded as an expression convertible with the previous expressions designating the persons to take under that particular devise, viz: grandchildren of the testator, children of his sons, together with great grandchildren, their children, in the case of a grandchild dying before the end of the life estate. To hold that the testator employed the term lineal descendant, in a particular sense, as convertible with grandchild and great grandchild standing together, would not be sufficient ground for holding it convertible with “ grandchild ” standing alone in a devise where great grandchildren are not named. But the construction put upon this expression by the Circuit Judge is more perfectly consonant with the true sense. It is not an instance of using terms con ver ti-bly ; the term “ lawful lineal descendant” refers to, and is limited by, the proper terms of description which includes children of a son, and the child of such child. We find that the testator has uniformly, throughout his will, employed terms of particular import to characterize the objects of his bounty, such as children, children’s children, grandchildren and grandchildren’s children, and, by means of such expressions, has clearly indicated the persons intended to take to a degree as low as that of his great grandchildren.

It is equally true that, apart from any attempt to construct the terms by the ultimate intention of the testator, grandchild is nowhere put in any relation suggestive that it is not employed in its, ordinary and primary sense.

It is noticeable, also, that grandchildren by liis daughters take by a double description; first, as testator’s grandchildren; second, as “begotten or to be begotten of my daughters,’' and again, as children “ by my daughters.” Both branches of this description ought to be satisfied, and if, on the one hand, they take as grandchildren,' on the other hand, they take as children. Taking them in the character of “children,” under a very exact description of that relation, the case is governed by Ruff vs. Rutherford, Bail. Eq., 7, and Snoddy vs. Snoddy, 6 Strob., 84, cases in consonance with the current of decisions, and with other similar cases, settling the law of this State, that grandchildren cannot take under the description of children in the primary and ordinary sense of that term.

It only remains'to consider whether the ultimate intention of the testator, as manifested by the whole will and all its parts, taken together, creates any reasonable necessity for taking the term in question beyond its ordinary sense.

It has been argued that it was the intention of the testator to exhaust the whole line of succession under such devise in fee before the limitation should take effect. The argument supporting .this view must mainly depend upon the reasonableness of such a disposition, as it has little foundation in the text of the will. The Courts do not undertake, in construing wills, to satisfy the general conviction as to what is a reasonable devise. The testator has, clearly, a right to make an unreasonable disposition of his estate, so far as this test is concerned, and if he has done so the Courts cannot inter-' fere. The testator has interposed a limit to his bounty in the direction of the succession of. his descendants. In the case of sons and their descendants, the limit is his own great grandchildren^; in the case of daughters, it is his grandchildren. The clue to the reason of this doctrine is afforded by the argument in behalf of the succession of great grandchildren, namely, that the line may be longest . preserved in the direction in which the name of the testator would be associated with his estate.

We are not at liberty to assume an intention opposite to these formal limits given in particular language by the testator himself, evidently aided by sagacious legal counsel. The contingency of the death of a grandchild bearing children was before testator’s mind. Twice he referred in terms to it, and made provision in case of such an event. Where, therefore, he does not so provide, such omission was intentional.

The decree of the Circuit Judge must be affirmed and the appeal dismissed.

Moses, C. J., and Wright, A. J., concurred.