Irvine v. Newlin

Campbell, J., delivered the opinion of the court. The proposition deducible from the authorities is that prima facie the word “heir” is to be taken in its technical sense, unless there is in the will a plain demonstration that the testator used it in a different sense, in which case effect will be given to his intention. [197] There is some support for the doctrine that if it is shown aliunde that the testator knew that the person whose heirs are mentioned was alive at the making of his will, it will have the effect to change the meaning of the word “heirs” from its strict legal to a less accurate and popular sense, but after careful examination we have found this support very feeble and unsubstantial. There is not a plain demonstration in the will of Martin C. Ross that he used the word “heirs ” in the third clause of his will in any other than its strict legal sense, and as Elinor Crabtree was alive at the termination of the life estate in Mahala S. Ross, and being alive had no heirs, no estate vested by virtue of said third clause, which failed for want of persons to take according to its terms. The third clause of the will is not helped by the preceding or any other. It is independent, and must be interpreted by its own terms alone. The claim that the conveyance by Elinor Crabtree passed title, if the third clause of the will did not, because in that event Martin C. Ross was intestate as to the estate mentioned in the clause which failed of effect and he was childless, and Elinor Crabtree was his sister and one of his heirs, is not maintainable, because Ross was nullius filius, and under the act of 1846, in force when he died, a legitimate sister could not inherit from him, as that law did not embrace legitimate brothers and sisters, but provided only for inheritance by and among illegitimates. These views dispose of the case and render unnecessary a consideration of the subordinate questions presented. Judgment reversed and new trial awarded.