
    CHARLESTON
    Wills v. Foltz.
    Submitted September 10, 1906.
    Decided February 5, 1907.
    1. WiLiiS — Construc-Uon—Nature of Estate.
    
    A devise to three daughters named “and their children,’’ the daughters having children at the date of testator’s death, confers upon the daughters and their children a joint estate in equal portions, and does not vest a fee in the daughters alone, (p. 263.)
    
      
      2.Same — 1"OMlclren.”
    The word “children” in a devise is a word of purchase, not of limitation, unl.ess different intent plainly appear in the will, (p. 263.)
    3. Same.
    In construing1 a will the inquiry is not what the testator may have intended to express, hut what do the words used ex- - press, (p.263.)
    4. Same.
    Where a will gives to a person named and his children, the point’' of time for inquiry as to when the children are living in order to • determine whether the person shall take a fee o>r all take a joint-estate, is the date of the testator’s death, (p. 266'.)
    5. Same — Joint Estate.
    
    Under a devise to three named daughters “and their children, r’the children living at testator’s death, daughters and children take a joint estate, and share per capita, and the children do not take per stirpes, though one of the daughters have more children than others, (p. 266.)
    Appeal from Circuit Court, Hampshire County.
    Bill by M. F. Wills against Beuben Foltz and others. Decree for plaintiff, and Lillian M. Grapes and John B. Grapes appeal.
    
      Affirmed..
    
    B. W. Monroe, for appellants.
    JOHN J. Cornwell, for appellee.
   Brannon, Judge:

Benjamin Foltz left a short will reading as follows:'

“ Hampshire Co. W. Va. This is my last will' and test'-onent, I give to M. F. Wills a support as long as she remains-single and the balance of my property I give to L. M. Grapes,. S. A. Wills & Minnie V. Wills and their children after all my just debts are paid. Given under my hand this 1st day of June, 1892.”

Foltz never married, but for some 36 years a woman, M', F. Wills, lived in his house with him and by him had three-children, Lillie, Sallie and Minnie Wills, they taking the name of their mother. Foltz recognized them as his natural children. Lillie married Grapes, and had three children; Sallie married Power and bad five children, and Minnie married Wolf and has five children.' One of Minnie’s children was born after the death of Foltz. Except this child all the daughters’ children had been then born. Sallie and Minnie Wills were not married at the date of the will, but were at their father’s death. Lillie had two children at the date, of the will. In a suit in Hampshire county for the purpose, among others, of construing this will, it was decided that the three daughters and their children took a joint estate in fee par capita, and Lillie Grapes appeals.

Mrs. Grapes contends that under the will she takes a fee, and at any rate, that the children of Foltz’s three daughters take per stirpes, not per capita. This short will is couched in plain language presenting little difficulty, it would be thought, and yet one who examines the matter will find it one of difficulty under the numerous authorities, more 'or less bearing upon it. Judge Story in Sisson v. Seabury, 1 Sumner 235, did not overstate when he said: “The difficulty of construing wills in any satisfactory manner, renders this one-of the most perplexing branches of the lawr. The cases almost overwhelm us at evei^step of our progress; and any attempt even to classify them.7 much less to harmonize them, is full of the most perilous labor. Lord Eldon has observed, that the mind is overpowered by their multitudes, and the subtility of the distinctions between them. To lay down any positive and definite rules of universal application in the interpretation of wills, must continue to be, as it has been, a task, if not utterty hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human language, the obscure and often inconsistent expressions of intention, and the utter inability of the human mind to foresee the possible combination of events must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, without being tied down to any technical or formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combinations, and thus involve an infinite variety of shades of meaning, as well as of decision.” What estate do the three daughters take under the will? Do they take fees simple? Counsel for Mrs. Grapes relies on Wild’s Case to support her claim to a fee. Of Wild’s Case, 2 Jarman 1235, says: . “The rule of construction commonly referred to as the- doctrine of Wild’s Case, is this, that where lands are devised to a person,and his children, "and he has no child at the time of the devise; the parents takeip an estate tail; for it is said,, ‘the intent of the devisor is manifest and certain thp,t the children (or issues) should take, and as immediate devisees they cannot take, because they are not'in natura, and by way of remainder thay cannot take, for that was not his (the devi-sor’s intent, for the gift is immediate; therefore such words shall be taken as words of limitation.’ ” Thus by that causé where there are no children in being at the date of the devise, it is fee tail, .but now a fee simple by the act converting estates tail in fee simples. Code, Chapter tl, section 9. But as one of the daughters had children at the date of the will, and all at the death of testator, how can the daughters take estate tail under the rule above stated an Wild’s Case? As in Wild’s Case Wild had children at the date of the devise, it seems that the above statement from Wild’s Case is ohiter, it not being a case where the devisee had no child at the date of devise, though as to, create an estate tail there must be no child to take at the date of the devise, under the statement of Wild’s Case, -it conversely follows that if at that date there is a child living-, the rule does not apply, and there is no estate tail. I understand the rule above stated in Jarman to have been held in Doe v. Anderson, 4 Leigh 118, a devise to a daughter and her children, she having no children at the date of - the devise, as Judge Carr states, and it was held an estate tail converted into fee simple. Wild’s Case was cited for the reason. The above rule, propounded in Wild’s Case in 1589, is regarded a sound la.w. English cases approve it. See 3 Lomax Digest, side p. 203 and citations. Opinion in Martin v. Martin, 52 W. Va. 389; 2 Miner’s Inst. 958. “An old and Avell recognized rule.” Page on Wills, section 567; Schouler on Wills, section 555. Wild’s Case was reconsidered by the House of Lords in 1880, and adhered to, with the declaration: “It isnot now tobe departed from.” Clifford v. Koe, 5 App. Cases, 447. In Silliman v. Whitaker, 119 N. C. 89, it is said it had been the law 300 years. ‘Many American cases approve it, a few disapprove it. Dev-lin on Deeds, section 860, cites many cases for the position'that “A conveyance to a woman and her children makes them joint tenants or tenants in common ” Freeman, Coten. & Partition, section 26. If a deed to two persons carries a' joint estate, why does the mention of' children change it? A Kentucky case denies the application of the rule of Wild's Case to a wife and children, but said it would apply to a devise to the testator’s child and his children. 63 Am. D. 548. This will would, even by that case, confer a joint estate. Judge Story in the case cited from 1 Sumner 242 said that Wild's Case “had been constantly admitted to be good law.” But though in Wild's Case there was not involved a case where at the date of the ■ devise no child of the devise existed, and therefore the above statement was not actual decision, there was involved and decided the very point .involved in this case. The devise was to “Rowland Wild and wife, and after their decease to their children,” and at the date of the devisee they had two children, as here at the date of the will one of Foltz’s daughters had two children, and at the date of his death all three had. 2 Jarman, side p. 1239 says: “It had been hitherto treated as an undeniable position, that in the devises under consideration, children, if there be any, will take jointly with their parents by purchase; and such certainty is the resolution in Wild's Case, as reported in Coke, who lays it down, ‘If a man devise land to A and to Ms children, or issue, and they then have issues of their bodies, there his express intent may take effect according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary and therefore, in such case, they shall have but a joint estate for life.’ And in conformity to this doctrine seems to be the case of Oates D. Hatterly v. Jackson, . where a testator devised to his wife J. for her life, and after her decease to his daughter B. and her children on her body begotten or to be begotten by W. her husband and thew heirs forever. B. had one child at the date of the will, and afterwards others; and it was held that she took jointly with them an estate in fee, and consequently that on their deaths (which had happened) she became entitled to the entirety in fee. This, it will be observed, was the case of a devise in fee. In Wild’s Oase a fee was denied, and a life estate was held for want of the word heirs.

ow it would be a fee simple, not because it would be a fee tail converted into fee simple, but because it is a direct devise to- A. and children, they taking by purchase, and taking a fee, though there be no word heirs, by reason of Code, chapter 71, section 8, saying that any conveyance or devise to a person without limitation shall pass a fee simple, thus dispensing with the word heirs or other word of limitation. Therefore, I think Wild's Case and Oates’ Case deny a fee to Foltz’s daughters. Other English cases could be cited. The syllabus in Graham v. Graham, 4 W. Va. 320, reads thus: “A clause in a will, among others, reads as follows: ‘Igive unto my daughter Beleekah Graham and her children, that plantation where she now lives, known by the name of Siephenson’s cabin. Also, I give unto her and her children, my negro girl named Dinah, the land and negro never to be disposed of out of the family, nor the increase of the negro if she has any.’ "Another and subsequent clause reads as follows: ‘all the before mentioned legasies thus bequeathed to my children, I give unto them and their heirs forever, according to the way they are stated. ’ Held. That the devise to Rebecca was an estate tail, and by operation of the statute was converted into an estate in fee.” The case was decided by two Judges only, Judge Maxwell dissenting, holding that the will conferred a joint fee upon Rebecca Graham and her children, which I think the correct opinion. In that case the will expressed an intent to tie up the property in the family, thus looking like an estate tail; but I do not think that was strong enough to do so. However, that will contained that expression, evincing intent to make an estate tail. If that expression had not been in the will, the decision would have been different. In Foltz’s will there is no such expression, no word to indicate intent outside the words of the devise, a direct one to the three daughters and their children. So the Graham Case does not give the daughters a fee, though on first impression it might seem to do so. On first view it might seem that Merryman v. Merryman, 5 Munf. 440, would sustain the claim of Mrs. Grapes to a fee. It was a bequest of slaves to a married woman, ‘ ‘ to her and her chil dren forever.” Held, that the mother took a fee to herself alone; The court said: “The court is of opinion, that, although-a devise to a married woman, ‘a/nd her children,, and their heirs,’ will give a joint estate of inheritance to her and such of ’ her children as a re living at the time, and although the term ‘children’ is not to be taken as synonymous with issue, except to effectuate the manifest intention of the Testator; and said term is so to be taken in this case; it not being intended to. denote the devisee or devisees, who were to take, nor to reduce the portion of the interest of the mother in and to the slaves, before given to her by the same clause, but to declare the duration of her interest therein to be to her and her and her children forever; that is to say, to her and her issue.” This opinion, notice, admits a joint estate in mother and children as a rule, but holds that the word children was not, in that case, a word of purchase, but of limitation, and therefore was like a simple deed to John Doe and his heirs, carrying a fee to Doe. Perhaps there was something in the case not in the report inducing such opinion. It is a poor opinion. I do not see but the conclusion was contrary to Judge Roan’s admission in the opening of his opinion, for the word “children” is a word of purchase except where the intent is plain to make it a word of limitation. Moon v. Stone, 19 Grat. 130; 13 Cyc. 662; 5 Am. & Eng. Ency. L. (2d Ed.) 1092. In this case we have a direct devise to three daughters and their children; no word at all to hint that the word “ children” has any other meaning than the technical import imputed to it by law, -and “technical words must be construed to have their proper meaning,, unless it appears from the will that the testator used them in a different sense. ” Hinton v. Milburn, 23 W. Va. 166. As Judge Poffenbarger says in Martin v. Martin, 52 W. Va. p. 387, the word is prima facie one “of purchase, vesting a new estate in those persons, not of limitation, ineffectual to vest an estate, but effectual to mark the limits of the ancestor’s estate.” So says Ball v. Payne, 6 Rand, 73. As Judge PofeeNBArger also says in the Martin Ouse, just cited, p. 391, where an estate is conveyed by one part of a will it cannot be cut down by raising a mist or doubt from another part. Gaskins v. Hunton, 92 Va. 528. Clear expression cannot be controlled by guess. But, in fact, in this case there are no other words to take from the children an interest plainly conferred by the straight devise to them as well as their mothers by the usé of the technical word “children.” It is to the daughters “and their children;” to the children as well as to the daughters, to the daughters as well as to the children; to all alike. Such are the words. We must go outside the words to change it. When by such language, under Wild’s Case, of authority for more than three centuries, and other authority plentiful following it, an estate has been conferred by‘the word “children” in its legal import, upon what theory can we destroy that estate by groping outside the will to surmise — that is all —another meaning for' that word, as we must give it a meaning, and the law tells us what meaning? The mothers and children take a joint fee. In Fitzpatrick v. Fitzpatrick, 100 Va. 552, it was held that “a devise to a wife and children, without more, vests a joint estate in wife and children in equal portions.” Wild's Case is there cited to prove that a devise to parents and children, living, the children will take jointly with the parent by purchase. It holds Wild’s Case as law in Virginia. In Nickell v. Handley, 10 Grat. 344, Judge Moncure asserts that case as ruled by Wild’s Case, and calls it undeniable authority. Vaughan v. Vaughan, 97 Va. 322, held a devise a fee in the mother; but it was admitted that a devise to wife and children, without more, vests a joint estate. Such is the admission also in Lindsey v. Eckels, 99 Va. 668. There are numerous cases from which it might be hastily concluded that a devise to one and his children gives a fee to the devisee, nothing to the children. This line of cases goes back as far as Wallace v. Dold, 9 Leigh 258. The Virginia cases are collected in Stace v. Bumgarner, 89 Va. 418. They do not apply in this case. In them there were not, as in this case, simple devises to a named devisee and children without more, but there was something besides to justify an intent of a fee to the'individual alone, as in our case of Wilmoth v. Wilmoth, 34 W. Va. 426, a bequest to a wife “to be hers absolutely to be used by her in any way or manner she may wish for her own comfort and the comfort of our two children.” Here was a bequest to her alone. The mention of the children only spoke the motive of the gift to the wife, not a bequest'to the children. In most of them the devise was solé to a named person, who took the vested estate and the words •did not, as here, make the child devisee taking- an actual estate. This is the view of these cases taken in the Fitzpatrick, Case, 100 Va. 552, it being- held that to vest a fee in the parent there must be more than a devise to parent and children.

Whilst, as shown above, Wild's Case is fixed law, yet some authorities hold that a deed to one and his children vests in the parent a life estate, with remainder to children. 13 Cyc. 662. But other cases there cited hold it a joint estate. The weight of authority sustains Wild's Case.

■At the date of the will one of the three daughters of Foltz had two children, and one was born after his death. At his death all three had children. If the date of the will is the time when we are to see what children the daughters had, still it would come under the rule of Wild's Case, though only one daughter then had children. I do not see that the one and her children could take a joint estate, the others a fee. Can the devise be so cut up? I think that the daughters then childless would take, and their estates open to vest shares in their children upon birth. Perhaps Vansant v. Morris, 29 Ala. 293, may support this view. But this question is not material, because the point of time at which we inquire whether the daughters had children is the testator’s death. That is the date at which we consider the situation in this matter. Wild's Case does fix this point of time at the date of the will. Jarman, 1237, says this is wrong, and that the testator’s death is the test time. A man intends to keep his property until death. But this matter is settled by Code, chapter 70, section 10, saying that “a will shall be construed, with reference to the real and personal estate comprised in .it, to speak and take effect as if it had been executed immedi.ately before the death of the testater, unless a contrary intention shall appear by the will.” Kain v. Carney, 40 W. Va. 758, point 11. So, we cannot find afee in Mrs. Grapes. I have struggled to come to a different conclusion. Whilst I am fixed in opinion, after patient effort to hold differently, .yet I am morally, though not legally, satisfied that Foltz, a plain unlettered man, not a lawyer, a former drawing the will with his own hand, without counsel, never intended to .give the children of his daughters shares with their mothers. He thought it either would confer on his daughters a fee or a life estate. He did not intend to give the children of one daughter twice as much as the children of another because one had four children, the other two. ’ But there are plain words. “In the interpretation of wills the true inquiry is not what the testator meant to express, but what do the words used express.” Pack v. Shanklin, 43 W. Va. 304. As above stated where an estate is conferred by plain words in one part of a will, it cannot be devested by another doubtful clause. ‘ ‘It is not sufficient to create a doubt from other terms in another part of the instrument. — Possibilities and even probabilities will not avail. If the benefit is to be taken away it must be by express words or necessary implication.” Barksdale v. White, 28 Grat. 224. Butthereisno other qualifjdng clause in the will.

But the appellant’s counsel contends that even if the daughters and their children took joint estates, they should take per stipes, not per capitci. She claims that one daughter’s children cannot take more than those of another merely because one has more than another. They would if the mothers took thirds. This will uses the word “children,” a word of purchase, making mothers and children joint purchasers, each taking an equal undivided share, mothers and children, When a deed is made to a dozen grantees they take equally, that is, per capita. What is in this will to make this case different? If the wall had given to the daughters and their “heirs,” it would be different under Ross v. Kiger. 42 W. Va. 402. But the word children is used, and they take per capita. Collins v. Feather, 52 W. Va. 107, 110. The devise is to individuals, not a class. Kent v. Kent, 55 S. E. 564.

These principles compel us to affirm the decree.

Affirmed.  