Opinion
(June Term, 1851.)
1. A testator by will gave and bequeathed "to the heirs of S. J. six hundred dollars." In another clause of his will he gave to A. and B., "sons of W., five hundred dollars each," and, in another clause, to the seven children of J. T. two hundred dollars each." S. J. is still living.
2. Held, that the bequest "to the heirs of S. J." was void for vagueness and uncertainty.
CAUSE removed to Supreme Court, by consent of parties, from the Court of Equity of FRANKLIN, at Fall Term, 1850.
Busbee for the plaintiff.
B. F. Moore for the defendant.
Drury Jones died in January, 1847, having made his last will and testament, which was duly admitted to probate. The only clauses of the will, material in this suit, were the following: 1st, I give and bequeath to Julius Sidney and Algernon Joyner, sons of William H. Joyner, $500 each,c." "3d, I give and bequeath to Sarah Ann Baker, daughter of Kemp, $200. 4th, I give and bequeath to William Jones, son of Benjamin, $200. 7th, I give and bequeath to the seven children of Julius Timberlake, deceased, $200 each. 13th, I give and bequeath to the heirs of Samuel Jones $600.
The question submitted by the pleadings in this case, was whether the bequest to the heirs of Samuel Jones was or was not valid.
The will of Drury Jones has this clause:
"Item 13: I give and bequeath to the heirs of Samuel Jones, (189) $600." Samuel Jones is living, and, of course, has no heirs — "nemo est hares viventis"; and the question is, what did the testator mean?
He says: "Item 1: I give to Julius and Algernon Joyner, sons of William H. Joyner, $500 each"; and in "item 7, I give to the seven children of Julius Timberlake, deceased, $200.
The general rule is, that a will or other writing cannot be added to, varied, or explained by parol evidence, but must speak for itself. In fitting the description to the person or thing, of course parol evidence must be resorted to; as, if a deed say, "beginning at a black oak and running thence," c., what black oak, must be determined by parol evidence. So, if a testator says, I give to my nephew, John," what individual was meant, must be determined by parol evidence; or "I give my white horse," what horse was meant, must be determined in the same way. So, if a testator says, I give to the "captain," who was meant by this sobriquet or nickname must be ascertained by proving, that he was in the habit of calling a certain person "captain."
In our case the difficulty is not in fitting the description to the person or thing, but in ascertaining what the description means. What did he mean by the heirs of Samuel Jones? Taken literally, Samuel Jones had no heirs, because he was alive. Admitting it to be competent to prove, by way of explanation, that the testator knew that Samuel Jones was alive, can any one say, what he meant by "the heirs of Samuel Jones?" In speaking of the Timberlakes, he says, "the children of Julius Timberlake, deceased," and in speaking of Joyners, he says, "the sons of William H. Joyner." We cannot suppose, that by the words, "heirs of Samuel Jones," he meant the children of Jones; for, if so, why did he not say "children," as he had done in reference to the Timberlakes. He must have had some reason for varying (190) the expression. At all events, we are not at liberty to depart from the proper meaning of the word "heirs," and give to it the same meaning as to the word "children," which the testator had just before used.
It may be, he meant by the word "heirs," to include the children and grandchildren, or the descendants of Samuel Jones. We cannot say — and are obliged to declare, that we are unable to say what the testator meant; and the legacy is void for vagueness and uncertainty.
The will must be construed as if item 13 were stricken out. There is no other difficulty suggested.
PER CURIAM. Decree accordingly.