Summary
In Churchill v. Miller, 90 Wn. 694, 156 P. 851, after reviewing a number of cases from this court and other courts, we said: `35 Cyc. 311, 312, is cited to the effect that the general rule is that the delivery must consist of an actual and continuous transfer of property.
Summary of this case from McFarland v. WendorfOpinion
(January Term, 1878.)
Will, Construction of — Natural Heirs.
Where a testatrix bequeathed a certain sum each to her two sisters, M. and N., "and in the event of the death of either without natural heirs, the amount I have bequeathed shall go to the survivor": Held, that the words "natural heirs" mean children or issue; and upon the death of M. without issue, the bequest to her goes to N.
CONTROVERSY without action (C. C. P., sec. 315), involving the (373) construction of a will, submitted at Fall Term, 1877, of RUTHERFORD, to Kerr, J.
The only part of the will of the testatrix (Ann E. Birchett) material for the decision of the Court is as follows: "I bequeath to my sisters Nancy (plaintiff) and Martha (defendants' intestate) each $1,000 . . . and in the event of the death of either without leaving natural heirs, the amount I have bequeathed shall go to the survivor." Martha died without issue, and the question to be decided is, whether Nancy takes her legacy as her survivor.
His Honor being of opinion with the plaintiff, gave judgment in her favor for the amount of said legacy, to be paid by the defendants out of the assets in their hands belonging to the estate of their intestate. From which judgment the defendants appealed.
Shipp Bailey for plaintiff.
W. J. Montgomery for defendants.
The word "heirs" is nomen generalissimum, and in a comprehensive sense may include all kinds of heirs; and so, natural heirs may do the same thing. The common understanding would say at once that natural heirs meant children, and looking at the situation and relation of the parties and all the circumstances, we think this was the meaning of the testatrix. She well understood that no one could have unnatural heirs; and as the word heirs alone might include both lineal and collateral, we think she intended something less than the whole class, and that she meant "children or issue" by the term natural heirs.
Again, if it be understood to mean heirs generally, then the proposition is fatal to itself, inasmuch as it was impossible for either to die without an heir. Upon the death of either one, the other was her (374) collateral heir. Reductio ad absurdum. Our conclusion derives force from Battle's Revisal, ch. 42, secs. 3, 5.
PER CURIAM. Affirmed.