Harison v. Jones

The instrument presented for our construction is an ante-nuptial settlement in trust, executed in 1842. The conveyance embraced both realty and personalty, but realty alone is involved in the present controversy. The literal terms of the instrument aj>pear in the official report. So far as now material, the trusts created were substantially as follows: .First, for the separate use of the wife during her life; secondly, then for the use of the husband during his life; thirdly, then for the use of the children, if any, in fee ; and fourthly, if no children, then and in that case, upon his death, for the use of her right heirs by blood, forever. She, having had no child, died in 1869. He died in 1886. At the time of her death, her right heirs by blood were a brother and a sister, both of whom died before he died, and both *603left children, some of them (the plaintiffs in error) surviving when he died. The sole question for decision is, whether these children or their parents were her “ right heirs by blood,” within the meaning and legal effect of the settlement.

The general rule undoubtedly is, that heirs are those persons upon whom a descendible estate is cast by law, upon "the owner’s death. It must follow that “ right heirs by blood” are such and so many of the heirs general as would, by reason of blood, participate in such an estate were it so cast. All collateral inheritance is by reason of blood only. Brother and sister are collaterals; so are nephew and niece. It is not disputed that the former two are nearer in degree than the latter two. ¥e can see nothing in the settlement to indicate that the heirs are to be looked for at the death of the husband, rather than at the death of the wife. As soon as those in whom the ultimate remainder was to vest were ascertained, that remainder vested; and these persons were ascertained when the wife died, for then it became known with absolute certainty who were her “ right heirs by blood.” They did not, by dying, cease to be such heirs and admit a new set, but died without leaving any vacancy in the character, or any room for substitution.; Whatsoever their children acquired of the property embraced in this settlement came through them, and did not come over their heads or under their feet. If the children claim by descent, the propositus, as to them, is their parent, not their aunt; and if they claim by purchase, their title is the parent’s will, not the settlement. Here the nephews and nieces are not, and never have been, the heirs of their aunt. Her heirs by blood were her brother and sister, and she has not had, and never can have, any other heirs by blood. Indeed, as she left a husband, who according to our statute, *604there being no children, was her sole heir at law, even the brother and sister were not heirs, but only the persons who would have been heirs had blood alone been regarded. The designation, by the word “ heirs,” of persons who were not heirs, was intended as a description of a class of persons, and though not accurate, is perfectly intelligible, the meaning being such of the wife’s kindred as by the laws of inheritance would be her heirs were the husband already dead when she herself died. The intent was to exclude the husband as heir at law of the wife, and to substitute her next of kin at the time of her death ; and this intent was to prevail whether he survived her or not. The settlement, as we have said, contains no words indicating that the right heirs of the wife by blood were to be sought for at the death of the husband rather than at her own death. This being so, the general rule obtains. Denvers vs. Clarendon, 1 Vern. 35; Doe ex dem. Pilkington vs. Spratt, 5 B. & Ad. 731; Newkirk vs. Hawes, 5 Jones Eq. 265; Abbot vs. Bradstreet, 3 Allen, 587; Minot vs. Tappan, 122 Mass. 535; Dove vs. Torr, 128 Mass. 38; Hawkins on Wills, 94, 99, et seq.; Schoul. on Wills, §563. In Haddock vs. Perham, 70 Ga. 572, there was no dispute as to the persons filling the description of “heirs” of the testator (see page 575); and consequently there was no occasion to distinguish in that regard between any two groups or classes of persons. What was said upon the point was merely casual or incidental, and is, we think, to be treated as obiter.

We confine this opinion to the one question made in the briefs of counsel and above decided. The controlling effect of this question upon the main cause we understand as conceded.

Judgment affirmed.