
    E. B. Ferguson and Wife vs. E. B. Mason.
    1. ffiu. Mights of Illegitimates. Not embraced by simple designation of child/ren. Evidence. If there be legitimate children to answer the description in a will, illegitimate children cannot take under the description of “ children,” although there may exist - grounds for strong implication or conjecture in their favor. In such cases extrinsic evidence is inadmissible for the purpose of raising a “ construction by circumstances,” except to establish the fact of illegitimate children having, at the date of the will, acquired the reputation of being the children of the testator, or of the person named in the will.
    
      2. Same. Case in judgment. Construction. Latent ambiguity. Where the testator bequeathed a slave to his daughter, Ellenore, for life, with remainder to his grand daughter, Harriet, having two grand daughters named Harriet, one of whom was illegitimate and the daughter of El-lenore, and the other legitimate, said remainder goes to the legitimate grand daughter, and parol proof cannot he heard to show that the testator^ meant the illegitimate grand daughter. Such case does not present a latent ambiguity, where two persons equally answer to the same description in the will. The term “grand children” in its established legal sense, applies strictly to the one, and to the other it does not apply. Totten, J., dissented.
    FROM MADISON.
    This action of trover, was instituted in the circuit court pf Madison county, by the plaintiffs in error against the defendant, on the 8th day of April, 1850, for the alleged conversion of a negro slave named Sylvia, claimed by the plaintiffs as their property. On the 15th day of July, 1826, Thomas Hines, of Chester district, in the State of South Carolina, made his last will and testament, which after his death was duly probated in the court of Ordinary of said district, and admitted of record. The fourth clause of the will is as follows: “ I bequeath to my daughter Ellenore, my negro woman, named Sylvia, during her life, and at her death to fall to and become the property of my grand daughter Harriet.” At the time of the execution of the will Ellenore Hines, the daughter referred to, was the mother of an illegitimate daughter, called Harriet. At the same time also, the testator had a son named Ignatius Hines, who had a legitimate daughter, named Harriet, who survived the testator many years, and died before the commencement of this suit. Upon the trial below, at September term, 1854, the plaintiffs offered in evidence the depositions of several witnesses to prove that the illegitimate grand daughter, and daughter of Elle-nore, was the “ grand daughter Harriet,” intended by the testator. This testimony was rejected by the court upon objection of defendant’s counsel. His honor, Judge Read, instructed the jury, that “if they found that the testator had a legitimate grand daughter named Harriet, and that the plaintiff was an illegitimate grand daughter, though of the same name, yet the legitimate grand daughter would be entitled to the property after the death of Ellenore, the tenant for life, and that it was not competent for the plaintiff to prove by the declarations of the testator, or other parol evidence, that the illegitimate grand daughter was meant by the testator, although she answered the description in the will, as well as the legitimate grand daughter.” There was verdict and judgment for the defendant, from which the plaintiffs appealed in error to this court.
    S. McClakahait, for the plaintiffs in error,
    argued:
    Parol evidence is admissible, to prove which of the two grand daughters the testator, Thomas Hines, meant, he having two grand daughters of the name of Harriet.
    The object in all cases is to ascertain the intention of the testator. 5 M. &. W., 363 — 'T, and 1 ■ Greenleaf’s Ev., § 289, and note.
    
    Courts of law admit extrinsic evidence of intention to make certain the person or thing intended, where that person or thing is described in terms equally applicable to more than one person. Vide, rule 1, for the admissibility of parol evidence in the interpretation of wills, by Mr. Wigram, in note. 1 Greenleaf Ev. §287.
    If Thomas Hines had not known his grand daughter Harriet, the daughter of Ignatius Hines, the bequest in the will could not have gone to her, for want of intention in the mind of the testator. 5 Meeson & Welsby, 371, in note; and Glayton vs. Eewgent, 13 Meeson & Weis., 200.
    Declarations of the testator, after the date of the will, are competent to explain a latent ambiguity such as, which of two persons was meant by the testator, when either will suit the description. 40 vol. E. 0. L. Rep., 92 — and also at page 83, where claim was set up by an illigitimate daughter; parol evidence was admitted to show the actual intention of the testator. Ward and wife vs. Espy, 6 Humph., 447, is not like this case. There, the bequest was to Cynthia Espy, during the life of her husband, William Espy, and at her death, to the oldest daughter of the said William. Espy had had two wives, and had a daughter by each, and the argument for the defence was, that the daughter by the second wife was the legatee intended by the testator, and desired to introduce parol proof that she was the individual meant by the testator. The court decide that this cannot be done, because that would enable one to take, who was not the oldest daughter; and therefore not filling the description in the will.
    But in the case before the court, the illegitimate grand daughter fills the description in the will as completely as the legitimate one. On the first point, vide § 2, Meeson & W., 129. 5 do. do., 363-6, and notes to both cases. 2 Williams on Executors, 989-90. 13 Meeson & Welsby, 200: and where one of the persons filling the description in the will is legitimate, the other illegitimate; parol evidence is competent to show that the testator actually intended the illegitimate to take. See 2 Williams Ex., 944. 40 English Com. L. Reports, 83.
    The declarations of the testator, Thomas Hines, should have been received in this case, and given to the jury, showing that the illegitimate grand daughter was meant, according to the authorities above cited. 40 English Com. Law R., 92.
    It is laid down in some of the books, that declarations made at the date of the will alone are admissible; but this is not sustained either by principle or authority. See the last book, page 83.
    MicajAh Bullock, for the defendant in error
    argued:
    1. Eor the defendant in error, it is insisted, there is no error in this charge of the court to the jury, and that it is not only substantially but technically correct in every part of it.
    2. It is an established rule of law, that whenever the general description of children (and we may well say grand children) in a will, will include legitimate children, it cannot also be extended to illegitimate children; in other words, where there are legitimate children to answer the description of “children” the- rule of law is, that legitimate children only will take. 2 Williams on Executors, 943, 944, 945.
    3. In the case of Cartwright vs. Yandry, it was held that an illegitimate child was not entitled to a share under a devise to children generally, notwithstand[ing a strong implication upon the will in favor of that child. 5 Yesey, 530, 532-34-35.
    4. Li the case of Godfrey vs. Dams, it. was held that an illegitimate child was not entitled under the description of children in a will, though the testator -knew the state of the family, viz: that there were several illegitimate children, and no legitimate children, 6 Yesey, 43, et seq.
    
    7. In the case of Mortimer vs. West, 3 English Condensed Chancery R., 442, the lord chancellor declared the- law to be, that where there is a bequest to children generally, legitimate children must be meant, unless it is shown by something in the will amounting to necessary implication, that the testator intended the bequest should be to illegitimate children.
    8. In the case of Swaine vs. Kenerly, the question in this ease'was directly decided: 1st, that under the description of “ children ” in a will, illegitimate children existing at the date of the will, are not entitled, unless proved by the will itself, to be intended, and that the will itself must prove that illegitimate children are intended: and 2nd, that extrinsic evidence can be received only for the purpose .of collecting who’ had acquired the reputation of being children of the person named in the will. 1 Yesey & Beam’s Chan. R., 469, 470-71.
    9. In Harris vs. Lloyd, it' was held that the illegitimate children are not entitled under the description of children in a will, the intention not being apparent upon the face of the will. 11 Con. Eng. Chancery R., 174, 176.
    
      10. Whenever the geneial description of children in a will would include legitimate children, it cannot also be extended to illegitimate children. 4 Condensed Eng. Chan. R., 562-4-5. Vide, Ward vs. Espy, 6 Humph., 447. We think there are no authorities in conflict with cases above cited, that they apply directly to, and are decisive of the case before the court, and that the judgment of the circuit court ought to be affirmed.
   McKinney, J.,

delivered the opinion of the court.

This was an action ^>f trover, brought in the cireuit court of Madison, to recover the value of a female slave named Sylvia, claimed by Eerguson and wife, which the defendant, on demand being made, refused to surrender to them. Judgment was for the defendant, and an appeal in error, by the plaintiffs to this court.

The plaintiffs set up claim to the slave under the following clause in the will of Thomas Hines, who departed this life, many years ago, in the State of South Carolina, viz: “I bequeath to my daughter Ellenore, my negro woman named Sylvia, during her life, and at her decease, to fall to and become the property of my grand daughter, Harriet.”

Ellenore Hines, to whom the life interest in the slave Sylvia, was given by the foregoing bequest, died sometime before the commencement of this suit, and the defendant is the administrator of her estate, and in that character received said slave into his possession.

The point of controversy in the case, grows out of the following state of facts: The testator1, Thomas Hines, at the time of making his will, had, in fact, two grand daughters, both of whom were called and known by the same Christian name of Harriet. One, the illegitimate child of his daughter Ellenore named in the foregoing bequest; the' other a legitimate child ■of his son Ignatius. Harriet, the natural daughter of Ellenore, afterwards intermarried with Ferguson, and she and her husband are plaintiffs in this action. The legitimate grand daughter, Harriet, died some time after the death of the testator, but before the termination of the life interest in the slave Sylvia, and Ignatius Hines, the father of the last named “Harriet,” claims the remainder interest in said slave, under the foregoing be-' quest in the will of Thomas Hines, as the distributee of his deceased daughter, l

Testimony was adduced on the trial, by the plaintiffs, which tends to establish' beyond all controversy, that, “ Harriet,” the natural child of Ellenore, was the person intended by the testator as the object of his bounty.

The circuit judge instructed the jury, that it was not competent to the plaintiffs to show, by parol evidence, that the illegitimate grand daughter was the person meant by the testator; and, that in law, the legitimate grand daughter was alone entitled to take interest, in' in remainder in the slave, under the will.

The question is, did the court err in this instruction? We think not. We have bestowed upon the case a careful consideration, and are thoroughly satisfied that the law was correctly laid down by the circuit judge. It would be a useless labor to notice, in detail, the numerous cases upon this subject which we have examined. Most of the authorities will be found collated or referred to, in the recent work of Jarmon on Wills, vol. 2, ch. 31. And upon a careful examination it will be found, that there is really no conflict of judicial opinion upon the question under consideration.

The stern rule of the common law is, that a bastard cannot take by inheritance, being looked upon as the son of nobody.” Neither can he take by deed or will, by any claim of kindred, haying no relations, and not being favored in' law; he can only take under such a description as sufficiently identifies him as the intended object of the testator’s bounty. The long established and uniform rule, therefore, is, that a gift to children, sons, daughters or issue imports prima facie legitimate children or issue, excluding those who are illegitimate. Nor will expressions, or a mode of disposition, affording mere conjecture of intention, be a ground for their admission. To entitle illegitimate children to take, the intention to include them under the description of children must appear from the will itself, either by express designation, or necessary implication collected from the instrument itself; in the construction of which, the terms children, issue, &c., are to be considered prima facie to mean legitimate children, issue, &c.

To entitle illegitimate children to take under the description of children, there must be a clear manifestation of an intention to use the word children in a sense different from its ordinary legal signification, and the same rule applies where the gift is to persons described as standing in other or different degrees of relationship to the testator.

This rule, that the intention to give to illegitimate children (as distinguished from legitimate) must appear on the face of the will,' is not, however, to be ¡ understood as precluding all enquiry into the state of. the testator’s family. In some cases it cannot be known from a mere perusal of the will, whether legitimate or illegitimate children were intended; and when it is ascertained, that there were no other than illegitimate children in existence, the conclusion that they were the contemplated objects of the gift, is irresistible. As where the devise or bequest is to the children “now living” of a person who had no other than illegitimate children at the date of the will, they will be entitled to take. And upon the same principle a gift to- the “children of the late C.” a person who at the date of the will was dead, leaving illegitimate, but no legitimate children, was held good as to such illegitimate children. So a legacy to “my son John,” or to “my grand daughter Mary,” the testator having no child or grand child of the name of John or Mary, except such as . are illegitimate, has been: held good. 1 Atk., 410. . Cited in 2 Jarmon on Wills, p. 135.

But it will be, borne in mind, . that the ground of distinction in these and similar cases, is, that according to the state of facts existing, at the making of the will, legitimate children never could have claimed under the bequest or. devise, and therefore, could not have been in the testator’s . contemplation. The rule, however,, is inflexible,; that if there. are legitimate children to answer the description in the will, illegitimate children. cannot take, under- the description of children, even although there may,, exist ground for. strong conjecture, or .implication in their favor. And in . such cases,, extrinsic evidence is inadmissible for the purpose of “raising a construction by circumstances.” except to establish the fact of illegitimate children, having at the date of the will acquired the reputation of being the children of the testator, or of the person named in the will.

In the case under consideration, it must be taken, that by the term grand daughter, the testator meant a legitimate grand daughter. In ascertaining the intention and meaning of the testator, it must be presumed that a term employed in the will, of definite legal import, was used and intended to be understood in its legal signification, unless from something in the context, it sufficiently appeared that a different meaning was attached to it. There is nothing on the face of this will that indicates with sufficient certainty, that by “grand daughter” he meant any thing different from what the law imports. The circumstance that the interest in remainder, in the slave, to his “ grand daughter, Harriet,” after the death of his daughter Ellenore, is coupled in the same clause of the will, with the gift of the life interest to the mother of the illegitimate grand daughter, might give rise to a plausible conjecture or inference, that the person in the contemplation of the testator to take in remainder, was the daughter of the donee of the life interest. But this, to say the most of it, is mere conjecture: and all the authorities concur that mere inference or conjecture cannot be admitted to re■pel the stern and positive implication of law against 'the claim of illegitimate persons.

The case then upon the law is clearly against the claim of the plaintiffs. The legitimate grand daughter, Harriet, fully and exactly answers the description in the will; and more than this, there was no other person in existence at the date of the will, who, in view of the law, did, or conld fall within such description. This, then, is no case of latent ambiguity; and the doctrine upon that subject has no application. This is. not a case of two persons equally answering to the description in the will. Here, one of the persons clearly falls within the description; and the other as clearly does not. The term “grand daughter” in its established legal signification, applies strictly to the one; and to the other it does not apply.

Ho authority can be found to sanction the admission of extrinsic parol evidence, in such a case, that the illegitimate grand daughter was the object of the testator’s bounty; because it would be to .contradict what a positive rule of law pronounces to be the plain, settled meaning and intention of the testator from the words of the will. Eor the principle hero laid down, we refer to 2 Jarmon on Wills, 129 to 155. _ 2 Williams on Exe-ecutors, 944, 945, and cases referred to.

The judgment will be affirmed.

Totten, J.,

dissented: I agree that where the legatee is designated as child or grand child, a legitimate will take to the exclusion of an illegitimate. The law presumes that a legitimate child was intended, and in general, it is not competent to show a different intention by-evidence extrinsic of the will.

But that is not the present case. The testator gives the slave to his daughter Ellenore, for life, remainder to his '■'•grand daughteHarriet.” The legatee in remainder is designated not only as grand daughter,, which in point of fact is true, but Toy her proper name: and extrinsic evidence is competent to identify the person to whom the legacy is given by name. It is not a question of preference, but merely of intention and identity.

There being two persons of the same name, a latent ambiguity is raised, and parol evidence is competent to remove it. If there were but one, gnd that the illegitimate, would she not take the bequest? Most certainly she would. But because there are two named Harriet, it is a case of latent ambiguity, and therefore the parol proof is competent. The proof clearly shows that Harriet, the daughter of Ellenore, was intended. The present judgment extends the rule, as I think, to a new case, and violates a lawful intention of the testator.  