Lemmon v. McElroy

101 S.E. 852, 113 S.C. 532, 1920 S.C. LEXIS 27

• Court: Supreme Court of South Carolina
• Decided: January 27, 1920
• Docket: 10361
• Status: Published

Opinions

January 27, 1920. The opinion of the Court was delivered by For the reasons therein stated, the judgment of the Circuit Court is affirmed.

MESSRS. JUSTICES HYDRICK and WATTS concur.

MR. JUSTICE FRASER. I dissent. It is conceded that the word "family" is one of very broad signification, and may include, not only the wife, but even the servants. InBradley v. Rodelsperger, 3 S.C. 227, we find:

"The Constitution has not given any definition of the term `family,' nor indicated any of its necessary ingredients; the term must, therefore, be taken in its ordinary sense. In this sense, it is not essential that it should include children."

There were no children in that case, and the widow was declared to be the family. In Garaty Armstrong v.DuBose, 5 S.C. 500, it was said that this provision must be strictly construed. Under a strict construction of our laws, the word "family" includes a childless widow. It is not profitable to review all the cases. It is enough to say that time and again a childless widow is the family. There seems to be conflict of authorities in other jurisdictions, but none of them are binding. The decisions of this State which are binding declare that in its ordinary sense the word "family" includes a childless widow, as here.

It is said, however, that the context shows that the word "family" means "children." I see nothing in the context to show it. When different words are used, the indication is that the different words are used to convey different ideas. It is not conclusive, as many people are obsessed with an idea that they should use supposed synonyms to convey the same idea; but the use of a different word indicates a different meaning, and the indication here is that the use of the word "children" and "family" mean different things. There is nothing in this will that provides that the share given to a sister shall go to the children, except the share given to that particular sister; i. e., the share given to Miss Sarah goes to the children of Miss Sarah, if any, and the share to Miss Isabel to the children of Miss Isabel, if any. In the event of the death of either without children, then the share is to be divided among her brothers and sisters, or their families. This provision is made as to both. Different words are applied to different conditions, and I see no internal evidence in the will that the two words are intended to mean the same thing; i. e., that "family" should be construed to mean "children." Unless controlled to binding authority, I am as unwilling to exclude the wife from the word "family" as I am to exclude her from the institution for which the word stands. This will is not the work of an unskilled blunderer, who makes confusion. The language of the will is simple and excellent English, and unless there is uncertainty in the use of the word "family," is perfectly clear. It will be observed that the remainder is not given to "my brothers and sisters," but to the brothers and sisters of the legatees. The same persons would take, but the personal relation to the testator is secondary to the personal relation to the legatees. The widow of the deceased brother is within the word "family" as used in its ordinary sense, and as there is nothing in the will or record to suggest that the word was not used in its ordinary sense, I think it should be construed.

For these reasons I dissent.

MR. JUSTICE GAGE. I concur in this opinion; in my judgment it is plainly right. Had Janie Ferguson children by Alexander and now living, nobody will deny that such children and Janie would take as the family. The case is not altered that the family is limited to Janie alone.