Gibson v. Gibson , 113 S.C. 160 ( 1920 )

January 26, 1920. The opinion of the Court was delivered by The appellants, in their argument, say:

"This appeal presents but a single question for determination by this Court: Shall the word `heirs' in the will of Frances J. Salley, deceased, be changed by the Court to read and mean `children?' The master concluded that the word `heirs' should be changed to read and mean `children;' and, upon exceptions and against our objection, Hon. John S. Wilson, presiding Circuit Judge, confirmed without comment this conclusion by his decree."

The will of Frances J. Salley is as follows:

"State of South Carolina, Orangeburg County. In the name of God, Amen!

"I, Frances J. Salley, of the State and county aforesaid, being of sound mind and disposing memory, do make and declare the following to be my last will and testament, hereby revoking and annulling all other wills by me made.

"1st. It is my will and desire that my husband, N.W. Salley, shall have and keep all my property real and personal during his lifetime.

"2d. I will and bequeath my land in said county and State as follows, which contains three hundred and ninety-six acres, and divided in three tracts, known as A, B and C. The A tract to O. Brice Salley, the C tract to Boyce O. Salley, and the B tract to the heirs of my deceased daughter, Narcissa C. Gibson, the tracts commence to number from east.

"3d. The tract in Aiken county, South Carolina, containing four hundred and twenty-five acres, I will to my sons, O. Brice Salley and Boyce O. Salley, and the heirs of my deceased daughter, Narcissa C. Gibson, to be equally divided in three parts, by commissioners appointed by them, and to pass all necessary papers.

"4th. I hereby constitute my two sons, O. Brice Salley and Boyce O. Salley, testamentary guardian of the children of my deceased daughter, Narcissa C. Gibson, with the understanding that if either of them die, the other shall have his or her share and if all of them should die without issue the property to revert back to the direct heirs of the estate.

"5th. All the remainder of my estate not herein mentioned, both real and personal, and everything of value I may die possessed of, I give to O. Brice Salley, Boyce O. Salley, and the living children of my deceased daughter, Narcissa C. Gibson, to be divided among them, that is, one-third for O. Brice Salley, one-third for Boyce O. Salley and the other third between my daughter's living children.

"6th. I will that my executor during the infancy of my daughter's children shall allow them a sum sufficient for their support as they may seem best.

"7th. I nominate, constitute and appoint O. Brice Salley and Boyce O. Salley, executors of this my last will and testament. In witness whereof I have hereto set my hand and seal this 28th day of May, A.D. 1896. Frances J. Salley. (L.S.)."

Narcissa Gibson predeceased her mother, leaving a husband, Paul E. Gibson, and several children surviving her. If the word "heirs" is construed in its strict technical sense, then the husband, Paul E. Gibson, took under the will and his widow and the children of the second marriage takes as his If the word "heirs" is construed to mean "children," then heirs. If the word "heirs" is construed to mean "children," then the widow and children of the second marriage do not take.

The case was referred to Hon. And. C. Dibble, master for Orangeburg county, who made the report, in which he construed the word "heirs" as used in the will to mean "children," and excluded the widow and children of the second marriage from any interest under the will. Let the report of the master be reported.

The case was heard in the Court of Common Pleas before Judge Wilson, who confirmed the report of the master. From this decree this appeal is taken.

It is not denied by appellant that in proper cases the word "heirs" may be construed to mean "children." The question is, Is this such a case? The answer is, This is such a case. Where different words are used in an instrument, it suggests that different ideas were intended. The suggestion is not always to be followed. The question here is, what is the intention or meaning of the word as used in this will. The will provides for her husband and her own issue, except it may be for the use of this word "heirs." The fourth item of the will appoints her sons testamentary guardians of her grandchildren. It also provides for the disposition of the shares of the grandchildren, if they die without issue. There is no provision for a share for the son-in-law. A construction that gives a share to the son-in-law causes the testatrix to devise to the son-in-law an interest superior to that given to her own issue. That she had the right to do, of course. There may be cases in which a person may have a greater love for a son-in-law than for their own issue, and they have a right to prefer him in the will. That is not the case here. The will itself shows that there was a want of confidence in the son-in-law, at least as to his executive ability. The natural guardian of her grand-children was passed over and her own sons were appointed testamentary guardians for her grandchildren. The will not only deprives the father of the custody of his children's property, but reposes in the sons of the testatrix a discretion as to the propriety of assistance in their maintenance and support, and the extent of it. Taking the will as a whole, it is very clear that the word "heirs" as used in this will means "children," and it is so construed.

The judgment is affirmed.