Mobley v. Mobley

67 S.E. 556, 85 S.C. 319, 1910 S.C. LEXIS 270

• Court: Supreme Court of South Carolina
• Decided: March 18, 1910
• Docket: 7511
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Ci-iiee Justice Jones.

The appeal involves the construction of the ninth clause of the will of Samuel W. Mobley, who died October 15, 1889, which is as follows:

“Ninth. At the death of my said wife, or at my death, if she does not survive me, I will, bequeath and devise the property described in the eighth (8th) clause to the following designated persons, to wit: Erel Mobley, son of Mary Mobley, deceased, the children of Edward B. Mobley, the children of George Mobley, deceased, the children of Edward D. Mobley, the children of Samuel W. Mobley, the children of William D. Mobley, the children of Minnie Dixon (daughter of David Mobley, deceased), the children of Amelia Dixon, deceased, the children of Mary Dixon (wife of Tillman Dixon), the children of Catherine Mockbee, Susan Cunningham, Lilly Douglas, the children of Minnie Durham, the children of Eliza Kittridge, deceased, the children of Cicely Ward, deceased, the children of Mary (Robinson) Mobley, deceased, and the children of Edward H. Talliaferro, each one of the children of my nephews and nieces above named, who have children to take an equal share with my nieces, Susan Cunningham and Lilly Douglas, who have no children, and with each other.”

Susan Cunningham and Lilly Douglass are nieces of the testator. Erel Mobley is the only son of a predeceased niece, thirteen of the classes designated “children” are children of nephews and nieces, and the remaining class, “the children of Minnie Dixon, daughter of David Mobley, deceased,’' are children of a grandniece.

Judge Memminger construed the will as giving one share each to Erel Mobley, Susan Cunningham and Lilly Douglas, one share to the children of the grandniece, Minnie Dixon as a class, and one share to each of the children of the nephews and nieces.

We approve this construction. The will expressly forbids a construction which would give to Erel Mobley one seventeenth of the estate, because he is the child of a niece, and the will declares: “each one of the children of my nephews and nieces * * to take an equal share with my nieces, Susan Cunningham and Lilly Douglas * * and with each other.” There are many more than seventeen children of nephews and nieces, hence the share of Erel Mobley must be precisely the same as that of Susan Cunningham and Lilly Douglas and each of the children of nephews and nieces.

The real difficulty arises in determining whether the testator intended to give each of the children of Minnie Dixon, a grandniece, a share equal to that given to the nieces, Susan Cunningham and Lilly Douglas. We know that he meant to give each grandnephew, and grandniece the same share as each of the nieces, Susan and Lilly, because he ■expressly said so, but there is nothing to show that he intended to give each great-grandnephew, and each great-grandniece a share equal to each of the nieces.

As correctly held by the Circuit Court, the same rule of construction which, except under compelling circumstances, will not allow “children” to mean “grandchildren,” will not permit children of a nephew or niece to mean children of a grandnephew or grandniece.

Izard v. Executors, 2 Des., 312; Mathis v. Hammond, 6 Rich. Eq., 402; 2 Jarman on Wills, 697-8; Gray v. Woodward, 7 L. R. A., 367; Willard v. Darrah, 90 Am. St. Rep., 468; Downing v. Nicholson, 91 Am. St. Rep., 175.

It appears that testator did not make a mistake in supposing for the moment that Minnie Dixon was a niece instead of a grandniece, because he refers to her as the daughter of David Mobley, who was a nephew. Hence we are shut in to the construction that the devise was to the children of Minnie Dixon as a class to take among them one share equal to the share going to each of the nieces and children of nephews and nieces.

The judgment of the Circuit Court is affirmed.