Davis v. . Parker .

Counsel

Smith Strong , for defendant, Hollowell, submitted: The defendant, Jesse Hollowell, excepts to the ruling of his Honor that the property devised and bequeathed by the will of Sarah Davis to John Thomas Hollowell, upon his death vested to her nearest relations, and did not descend to or vest in the said Jesse as heir at law and personal representative of the said John Thomas. The facts as shown by the case agreed are, that the whole of her property, after payment of debts, was given by the said will to the said John Thomas, and his heirs, and if he should die and leave no lawful heir of his body, then all of her property remaining after a legacy of $200 was given to her nearest relatives; that the said Sarah Davis died in the year 1869, and that the said John Thomas died intestate and without issue, in the year 1871. Hilliard v. Kearney , Busb. Eq. 221. See at page 229, near the bottom, the very able opinion of Chief Justice PEARSON, where the authorities are cited and the reasoning elaborately gone into. Morrisey , for plaintiff, Indiana Parker: The plaintiff, Indiana Parker, excepts, because his Honor ruled that she was entitled to no part of the property devised and bequeathed by the will of Sarah Davis, but that the plaintiff, Mary E. Davis, and the defendant, Joshua Parker, were entitled to the whole thereof. The facts as shown by the case agreed are, that the testatrix upon the death of John Thomas Hollowell, devisee and legatee, without heir of his body, devised and bequeathed the whole of her property, excepting a legacy of $200, to her nearest relations, all except Joshua Davis, who was a nephew of the said testatrix, and the children of said Joshua's brother, John Davis, deceased, to each of whom she gave ten cents, and provided further that all the balance of her property should be divided amongst the balance of her nearest relations; that the said Indiana was a grand neice [niece] of said testatrix at the date of said will, whose father, a nephew of said testatrix, was then dead; that Matthew Davis, a nephew of said testatrix, was living at the date of said will, but died after the death of said testatrix, leaving the plaintiff, Mary E. Davis, his only issue; that the defendant, Joshua Parker, was a nephew of said testatrix, living at the date of said will, and that there were no nearer relatives, of the said testatrix at the date of said will, nor at her death, than said Matthew Davis, Mary E. Davis, Joshua Parker and Indiana Parker, the plaintiff. The plaintiff insists that the exception from the general words of the gift of the children of her nephew, John Davis, shows the meaning in which the testatrix used the words, and that she supposed, that but for that exception said children would have been embraced within theirs. In cases like this the ordinary grammatical sense has been adopted as the rule of construction "unless it shall appear from the other part of the instrument that a different meaning was intended." Harrison v. Ward , 5 Jones Eq. 240; Simons v. Gooding , 5 Ired Eq. 382. Here it is clear that a different meaning was intended. That Matthew Davis, father of defendant, Mary E., was entitled at the death of testatrix. See Jones v. Oliver , 3 Ired Eq. 369.