Dickinson v. Lee

The opinion of the Court was delivered by Gibson, C. J. —Where it is necessary to effectuate a manifest intent, grandchildren may undoubtedly take by the designation of children, though that is by no means the legal acceptation of the word. They are suffered to do so principally, if not exclusively, in two cases: where the word is used evidently as co-extensive with issue, which is a word of very general import; and where there are no children literally to answer the description, and then grandchildren are let in ut res magis valeat quam pereat. Here the testator had children, and there is no room to declare the grandchildren entitled on that ground. Then as to the description in other respects. The residue is ordered to be divided among all the testator’s “children, their heirs or assigns in equal shares, share and share alike.” There is but one word in this (heirs) that can, by any construction whatever, have the remotest relation to the children as constituting separate stocks; and that word, used as it is without words of restriction, is too general to be equivalent to issue, as it would equally let in collaterals. It is, however, coupled with a word (assigns) which, if it is to have any effect at all, certainly cannot be a restrictive one. Even putting that difficulty aside, there is another, and a more formidable one, in the nature of the office these two words were evi [84] dently intended to perform. To speak analogically, they were used as terms, not of purchase, but of limitation; or at least of perpetuity, to indicate that the bequest was in full property. This being their apparent meaning, there is no reason to strain them, in order to let in parties in whose favour there does not seem to have been a clear, plain and manifest intent. Judgment affirmed.