After the introductory part, and a request that tombstones may be purchased for his grave, the testator proceeds:
"To Buckner Henderson, I have this day made a deed to all the lands I intend to give him, witness by the above-named witness.
"To Urban Henderson, I have this day transferred a deed from Buckner Henderson to me, for a tract of land on the Southwest side of New River, it being all the lands I intend to leave or give him.
"To my wife Margaret Henderson, I lone, during her natural life, the lands on which my dwelling stands, with the lands I purchased of Thomas Jarman, including all my lands, with the exception of the two tracts or parts that I this day have given to Buckner and Urban Henderson, separately, and after her death, I give it to my youngest son, William Henderson, to have and to hold, free from the claims of any person whosoever.
"Also, to my wife Margaret Henderson, I loan, during her natural life, negro woman Molly, and after her death to be sold, and equally divided between all my heirs, excepting Christeney Henderson. My man Peter I want to be hired to such person or persons as he wishes to live with, until my son William Henderson becomes eighteen years of age, and the hire of said Peter, to go to the use of my two youngest children, viz: William and Nancy, and the time my son William arrives at the age of eighteen years old, I then give my man Peter to Nancy Henderson, my youngest daughter, to have and to hold, free from all right or title of any person whosoever.
"To Christeny Henderson, I give one dollar, and the rest of my property, such as the family utensels, household and kitchen furniture, to be sold, and equally divided among all my heirs, after paying for said tomb-stones, with the exception of Christeny Henderson, to whom I have given one dollar, in full of all I intend to give her.
"Witness, c."
The widow and some of the children are the plaintiffs, and the executors and the remaining children are defendants. The defendants answered, and replication entered. The defendants insisted, among other things, that the plaintiff Margaret was not entitled to come in with the children, under the word heirs. The prayer is for an account and payment of the legacies.
The case was heard on the petition, answers and exhibit, and upon consideration thereof, his Honor made a decree, dismissing the petition; whereupon, the plaintiff prayed and obtained an appeal to the Supreme Court.
NASH, C. J.
The petition is filed for the purpose of recovering a legacy under Wm. Henderson's will. The petitioner, Margaret Henderson, the widow of the testator, claims a child's part of the property disposed of by the residuary clause. The clause of the will, set forth in the petition, is as follows: "And the rest of my property, such as the stock, farming utensels, household and kitchen furniture, to be sold and equally divided among all my heirs, after paying for the said tomb-stones, with the exception of Christeny Henderson, to whom I have given one dollar, in full of all I intend to give her."
The petitioner Margaret insists that the word heirs, as used by the testator, means distributees, and that the division is to be made under the Statute of Distributions, and she is entitled to one seventh part, as her share. The construction put upon the word "heirs," in the connection in which it stands, with the subject matter of the bequest, is correct.
When it is used to denote succession, it may be understood, as in the case of a legacy to one and his heirs, to mean such person or persons, as would legally succeed to the property, according to its nature and quality. Williams Exr. 727. CORBITT v. CORBITT, decided at this term of the Court. But the main question, and perhaps the only one, is, did the testator mean to confine the succession to his children, or did he intend it should be under the statute? We are of opinion that, taking the other clauses of the will into consideration, his intention was to confine it to his children; and that the clause in question does not embrace the widow. In the construction of a testamentary paper, the Court is bound to look to the whole will, as it is one act — the ultimate disposition of the maker. In the second disposing clause of the will, is the following bequest: "Also to my wife, Margaret Henderson, I loan, during her natural life, negro woman Milly, and after her death to be sold and equally divided between all my heirs, except Christeny Henderson."
Here the succession, after the death of the widow, is designated, as it is in the clause under which she is now claiming: the word heirs is used in both sections, and must receive the same construction in both, unless there is something apparent in the will to vary it. In the disposition, in the second clause, the testator could not intend to include his wife, for the succession could not take place until after her death. By heirs, then, in this clause, he meant his children shall take, except Christeny. The residuary claim begins and closes with the same idea or intent. It begins: "To Christeny Henderson, I give one dollar, and the rest of my property,c., and it closes with the exception of Christeny.
Who then were in the mind of the testator? Clearly, we think his children, who take as his next of kin, of whom the widow is not one, and not under the Statute of Distributions, which would include her. He had given his wife all he intended her to take. If the word heirs had stood by itself, the widow would have been included, but it is controlled by the manifest intention of the testator to confine the succession to his children as such, and not as destitute. The case of CORBITT v. CORBITT, decided at this Term, differs from this. The question there arises under the will of Joseph Russell, the clause of the will is as follows: "The balance of my property to be kept together to the best advantage, for the purpose of raising and schooling my children, until my son William comes of age, and then to be equally divided between my lawful heirs." The Court decided that the widow was entitled to her equal share with the children. The Court say the word heirs is not appropriate to the disposition of personal property; and where used in reference to it, means those who take by law; that is, under the statute of distributions. "This is the rule when there are no other words to give it a different meaning; here," say the Court, "the other words fix that to be the meaning, for it is put in opposition to children." The testator, in the first part of the clause, speaks of his children; and when disposing of his property, designates the succession by the word `heirs.' In this case, there is no such opposition; the word `heirs' being alone used; — and, from the whole context of the will, we are satisfied that, by the word heirs, the testator meant his children as such, and to confine the succession to them, as his next of kin, and not as distributees under the statute.
There is no error in the opinion of the Court, and the same is affirmed at the cost of the plaintiff.
Judgment affirmed.