Thompson v. Green , 145 Miss. 365 ( 1927 )

^* Corpus Juris-Cyc. References: Perpetuities, 30Cyc, p. 1522, n. 16; Wills, 40Cyc, p. 1462, n. 24. This suit was for the purpose of selling certain lands and dividing the proceeds between the complainants and defendant below.

The determination of the case depends upon the construction of the will of John Silas Thompson, deceased. The appellants contend the will is void because it violates the rule of perpetuities. The lower court held otherwise; hence this appeal. The part of the will necessary to be construed reads as follows:

"Item 2. I desire that at my death my two oldest sons or either one of them, children of my first wife shall select one man, and my wife shall select another and the two selected shall select a third person and they the commission or arbitrator shall divide all my property both real and personal and mixed equally between my wife and each of my children share and share alike and the real estate that falls to each one, shall descend to their children that is my heirs shall not dispose of this land during their lives, but it shall descend to their heirs at their deaths."

We think the construction put upon the will by the chancellor was correct. The provision does not violate the rule against perpetuities, because it is plain that the testator intended the word "heirs," used in the provision of the will, to mean "children;" and therefore it will be seen the two donee statute (Hemingway's Code, section 2269) is not violated. The law seems to be universal that, in construing testamentary provisions of this character, it is not only permissible, but it is the duty of the courts, to hold that the word "heirs" means "children," where it is manifest that such was the intent of the testator.

The judgment of the lower court is therefore affirmed.

Affirmed.