
    Richmond.
    Walker & Others v. Webster & Others.
    December 2, 1897.
    
    1. Wills — Construction—Case at Bar — Per Stirpes or Per Capita. — A will contains tlie following residuary clause: “All the rest and residue of my estate, real, personal and mixed, I desire shall go to and be divided in equal parts among those who would be my heirs at law under the statute of descents and distributions in Virginia, in case I had died intestate.
    Held: The heirs take per capita, and not per stirpes.
    
    2. Wills — Construction—Effect to be given to the Words Used. — The prime object in construing a will is to ascertain the intention of the testator. This intention is to be gathered from the language of the will itself, as far as possible, and effect should be given to every word of the will, if any sensible meaning can be assigned to it, not inconsistent with the general intent apparent on the whole will taken together.
    Appeal from a decree of the Chancery Court of the city of Richmond pronounced December 2, 1895, in a suit in chancery wherein Elizabeth Webster was the complainant, and other heirs of Churchill Doggett, and his widow, were the defendants.
    
      Reversed.
    
    The widow of Churchill Doggett renounced the provision made for her by the will of her husband, and this suit was instituted by his daughter, Elizabeth Webster, for the purpose of having dower assigned to his widow, and partition of the residue of his real estate. In the progress of the suit it became necessary to refer the cause to a commissioner to settle the account of the executrix of the estate of Churchill Doggett, and also to make certain inquiries. Amongst the inquiries was one to ascertain who were the heirs of Churchill Doggett, deceased, and in what proportion they were entitled to the residuum of his estate. In response to this inquiry, the commissioner reported that the heirs were two sisters, a niece, and three great nieces, naming them, and that they took the residuum per capita. To this report the two sisters excepted, and the court sustained their exception. From the decree sustaining said exception this appeal was taken.
    
      Sol Cutchins and Leake & Carter, for the appellants.
    
      Meredith & Cocke and J. R. V. Daniel, for the appellees.
   Riely, J.,

delivered the opinion of the court.

The whole controversy in this case is as to the proper construction of the third clause of the will of the testator, Churchill Doggett, which is in the following words:

“All the rest and residue of my estate, real, personal, and mixed, I desire shall go to, and be divided in equal parts, among those who would be my heirs at law, under the statute of descents and distributions in Virginia, in case I had died intestate.”

The Chancery Court decided that the heirs at law of the testator took the estate given by the above clause per stirpes, and not per capita.

Wills are to be construed- according to the intention of the testator. This is the cardinal rule. And when the court is satisfied as to his intention, it must give effect to it, no matter what may be the disposition he has made of his property, unless it violates some rule of law. We are not to be influenced in the least in the interpretation of the will by what we may think the testator ought in justice to have done. Having a perfect right to the property, his will is the sole law of its disposition.

The first object of the judicial expositor is, therefore, to ascertain the intention of the testator. While extrinsic evidence may be resorted to for the purpose of showing all the circumstances surrounding the testator at the time of making his will, his situation, the state of his family, and of his property, and any facts known to him which may reasonably be supposed to have influenced him in the disposition of his property, and thereby place the expositor, as near as possible, in the situation of the person whose language he is called on to interpret, he must, nevertheless, under the light of the extrinsic facts, ascertain the intention of the testator from the words of the will itself. And in thus ascertaining the intention, effect must be given to every word of the will, if any sensible meaning can be assigned to it, not inconsistent with the general intention apparent on the whole will take together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible, • or unmeaning, for want of any subject to which they may be applied. Wootten v. Reed, 12 Gratt. 196.

Guided by these simple rules, the intention of the testator, as disclosed in the clause of his will, which has given rise to this controversy, seems to us free from doubt. He has used apt and precise words to describe the objects of his bounty. They are those persons who would be his heirs at law under the Virginia statute of descents and distributions, if he had died intestate. His beneficiaries are thus specifically and definitely described and designated. And his language directing how the division shall be made is no less clear and specific. They are to take the estate comprehended by the gift in “equal parts”; they are to share it equally. His manifest intention was to give an equal share of the residuum of his estate to all those persons whom the statute law of Virginia made his heirs at law; that is, they should take the property per capita. This is the manifest meaning of the words used by the testator. It follows, naturally, from giving effect to his every word, as the rule of interpretation requires.

The reference to the statute of descents and distributions was simplyto designate the persons who were to take the residuum of the estate. The testator did not thereby intend to prescribe also the manner of the division. He does not say that the persons designated were to take as if he had died intestate, which would give some color to the contention that they take in the manner prescribed by the statute, but merely that those persous should take who would be his heirs in case he had died intestate. The reference to the statute ascertains who shall take, but not how they shall take. Sow they are to take is otherwise prescribed; they are to take “in equal parts.”

If the testator had meant that both the persons who were to take, and the manner of the division should be in accordance with the statute as if he had died intestate, then this clause in his will was entirely useless, for, in that case, the same persons would take, and in the same manner, as if he had indeed died intesttate. It is to be presumed that he had some object in inserting this clause in his will. That object is, we think, unmistakable. He meant that those persons' who would be his heirs at law under the statute in case of intestacy, should have the residuum of his estate, yet he did not intend that they should take it in the manner prescribed by the statute, but equally. While the fact, that one of two constructions of a provision in a will of doubtful meaning would only accomplish that which the law would do in the absence of such provision may not be entitled to much consideration in construing the provision, yet it is a circumstance to be weighed against that construction of the provision which would make its insertion in the will a useless act, and in favor of a different disposition of the estate manifested by the words of the provision, but which would not have been accomplished by the operation of the law, if the testamentary disposition had not been made. The argument to be drawn from its uselessness under one construction should strengthen the other interpretation.

In order to hold that the beneficiaries take per stirpes, the mode of division, prescribed by the testator would have to be disregarded. In that construction, no effect would be given to the direction that the residuum should be divided “in equal parts” among those to whom it was given. If they were held to take per stirpes instead of per capita, then they would take in unequal, instead of “equal parts.” Helen Kemple and Mary E. Webster, sisters of the testator, would each receive, under that construction, one-third of the residuum, while Elenia P. Walker, a daughter of Eliza Brannon, a deceased sister of the testator, would receive one-sixth, and Lena Leadbetter, Mariana Hew-man, and Bessie Eewman, children of Eliza Hewman, deceased, another daughter of Eliza Brannon, would divide the remaining one-sixth between them, making the share of each of them one-eighteenth, in direct violation of the principle of equality of division expressly prescribed by the testator in the clause of his will making the gift.

The construction we have placed on the will is not only the plain and natural meaning of the language used by the testator, but is in conformity with the general rule for construing gifts of this character. “Where a bequest is made to several persons,” said this court in Hoxton v. Griffith, 18 Gratt. 577, “in general terms, indicating that they are to take equally as tenants in common, each individual will, of course, take the same share; in other words, the legatees will take per capita. The same rule applies where a bequest is to one who is living, and to the children of another who is dead, whatever may be the relations of the parties to each other, or however, the statute of distributions might operate upon those relations in case of intestacy. Thus where property is given cto my brother A, and to the children of my brother B,’ A takes a share only equal to that of each of the children of B. So, where the gift is to A’s and B’s children, or to the children of A, and the children of B, the children take as individuals, per capita. The substance of this rule of construction is, that, in the absence of explanation, the children in such a case are presumed to be referred to as 'individuáis, and not as a class, and that the relations existing between the parties, and the operation which the statute would have upon those relations in case of intestacy, are not sufficient to control this presumption. The general rule is well established and has been fully recognized by the decisions of this court. Brewer v. Opie, 1 Call. 212; Crow v. Crow, 1 Leigh 74; McMaster v. McMaster, 10 Gratt. 275.”

Judge Joynes, in delivering the opinion of the court in that case, stated it is true, that the rule enunciated above was not inflexible, and that where an intention can be gathered from the whole will, that the children of a deceased parent are to take as a class, the general rule must yield to that intention, which is simply saying that the intention of the testator must govern, as the cardinal rule in the construction of wills requires. But here there is not the least indication in the will of a contrary intention. The gift is to the objects of his bounty as individuals and not by classes, and is to be equally divided between them. Therefore, the general rule of construction in a case of this character, and the plain and natural meaning of the words used by the testator in making the gift in controversy, are in exact accord.

If we seek light from the decided cases in interpreting the provision in question authority is abundant to support the construction wé have placed upon it.

The bequest construed in Crow v. Crow, 1 Leigh 74, was as follows: “I devise and direct that the balance of my slaves shall be equally divided between my children, to wit, the heirs of William Grow — namely, William, Robert, Patsey, Haney, Henry, Ennis and John (heirs of William Grow, deceased), Thomas, Moses, John Crow, and the children of my deceased daughter, Massey J ones, and the children of my deceased daughter, Sarah Grane, to them and their heirs; but the children of my daughter, Massey J ones, are to take only such part as their mother would take if she was still alive; that is to say, a child’s part; and in like manner the children of my daughter, Sarah Crane, are to take only suck part as tkeir mother would take if she was still alive, tkat is to say, a child’s part.” Tke question presented for tke decision of tke court was whether, under the words of tke will, tke ckildren of William Crow, deceased, took per capita, equal skares with Thomas, Moses, and John, the ckildren of tke testator, or per stirpes, tke share of tkeir father, as tke ckildren of Mrs. Jones and Mrs. Crane took. It was held that they took per capita. “It seems to me,” said Judge Carr, who delivered tke opinion of tke court, “tkat tke plain, natural, meaning of tke words, and tke rules drawn from tke cases, lead us to tke same conclusion.” And tkis conclusion, as will he seen from tke opinion, was reached independently of tke explanatory clause as to how tke ckildren of tke testator’s daughters, Massey Jones and Sarah Crane, should take.

In McMaster v. McMaster, 10 Gratt. 275, tke following was tke bequest brought under construction: “I will and bequeath to tke ckildren of Arthur McMaster and David McMaster, and to Robert B. McKee McMaster, all tke funds remaining after every just claim against my estate has been satisfied, to be equally divided between them.” Arthur McMaster had five ckildren, of whom Robert B. McKee McMaster was one. David McMaster also bad five ckildren. Tke court held tkat tke fund should be divided into ten skares, one of which was to be given to each of tke ckildren of Arthur McMaster, and to each of tke ckildren of David McMaster. Tke language of Judge Samuels, in delivering tke opinion of tke court in tkat case, is strikingly applicable to tkis. “Tke amount of tke bounty,” said he, “is the residuum. Tke objects of the bounty are the ckildren of Arthur McMaster and those of David McMaster, designated by a general description, and, we may add, by tke particular description. It only remains to ascertain tkeir respective interests; and tkat question is determined by tke direction tkat tke bounty is To be equally divided between them.’ ”

In Freeman v. Knight, 2 Ire. Eq. 72, tke following, among other bequests, was tke subject of construction: “It is also my will that Big Sam and Isaac shcrald be sold, and the proceeds equally divided between my legal heirs.” 'The court, in construing this clause, said: “It was there determined” (referring to a former decision of the court), “that when a testator makes an immediate gift of personal property to ‘his heirs,’ he means a gift to those whom the law has appointed to succeed to the personal estate of dead men, who have made no appointment themselves. If so, it includes the widow, and it includes the children of a deceased child. We consider it as a consequence resulting from the adoption of this rule of construction, that where personal property is given simpliciter to ‘heirs,’ the statute of distributions is to be the guide, not only for ascertaining who succeed, and who are the ‘heirs,’ but how they succeed, or in what proportions they respectively take. But as the donees claim not under the statute, but under the will, if the will itself directs the manner and the proportions in which they are to take, the directions of the will must be observed, and the guidance of the statute is to be followed no further than where the will refers to it, that is to say, for the ascertainment of the persons who answer to the description therein given. The testator has here directed the manner of distribution — the proceeds are to be ‘equally divided.’ The division directed by the will must be obeyed, and the children of the deceased child take equal shares with the widow and surviving children.”

In Tuttle v. Pruitt, 68 N. C. 543, the testator, John Pruitt, devised-a certain tract of land, describing it, to his son, Daniel M. Pruitt, and annexed to it this condition: “Dow, in case the said D. hi. Pruitt and the balance of my heirs cannot agree in the price of the above described and bounded lands, the parties can choose a mutual board of valuation, and if the said D. hi. Pruitt is not willing to abide by the valuation thus obtained, then, in that case, I will that the above bounded lands be sold, and the proceeds equally divided among all my heirs, &c.” The court held that the division among his heirs must be per capita, and added: “It is too firmly settled by authority to admit of a question, that where a testator directs ¿is property, whether real or personal, to he equally divided among his heirs, the division must be per capita, and not per stirpesMany other cases might be cited to the same effect, but it is deemed unnecessary.

"We are of opinion that the Chancery Court erred in holding ■ that the residuum of the estáte of the testator should be distributed per stirpes, and not per capita, and for such error its decree must be reversed.

Keith, P., dissent,

Reversed.  