Lobe v. Goldheim

Digges, J., delivered the opinion of the Court. Lazarus Goldheim died in 1878, leaving a last will and testament, duly admitted to probate by the Orphans’ Court of Baltimore City. The first item of the will is in the following language: “I give and devise unto my beloved wife a life interest in the property now occupied by me, on the north side of West Pratt Street, with all the appurtenances thereunto belonging or in any wise appertaining, and after the death of my said wife, it is my will, that the said property shall go unto all my children who may survive my said wife, for life; and after the death of the last survivor, then to the heirs of all my children absolutely.” The record discloses that the testator left surviving him his wife and four children, all of whom are now deceased. There are living ten grandchildren, four of them the children of one of the testator’s children, three the children of another such child, two the children of still another, and one the child of still another of the testator’s children.

In the distribution of the estate among these grandchildren, the auditor stated two alternative accounts; account “A” provides for a distribution of the ²⁵⁰ estate per stirpes, while account “B” distributes the same per capita,. Exceptions were filed to both of these accounts. The chancellor ratified account “A” and sustained exceptions to account “B.” Ebom that action this appeal is prosecuted. The question which we are asked to decide is whether, by the true construction of the first item of the will of Lazarus Goldheim, the absolute remainder, which has now vested in the ten grandchildren of the testator, passes to them per stirpes or per capita.

A decision of this question turns upon the meaning given the word “heirs,” as used by the testator in the item of his will above quoted. The general rule, supported by the great weight of authority, is that where the terms “heirs” or “heirs of the body” are used in a will or deed, without any other language changing or modifying their meaning, they are to be given their technical or legal sense. In 40 Oyc. 1459 it is said: “The word ‘heirs’ in a will primarily is used in its legal or technical sense, and, unless the context shows a contrary intention, must be construed as meaning all those who, in ease of intestacy, would be entitled by law to inherit on the death of the testator or ancestor named.” In 15 Amer. & Eng. Encyc. of Law (2nd Ed.), 320, the rule is thus stated: “The term ‘heir5 or ‘heir of the body’ has assigned to it by judicial determination its appropriate, peculiar, and technical import and meaning, and that import and meaning it is to receive unless there is, something in the instrument clearly excepting it from this general rule, and showing that when used it was designed that this technical import should not be applied to it.

In its legal import or signification it is not a word of purchase, nor a designatio personae, but nomen collectivum, and used as a word of limitation, and will carry the land devised or conveyed not only to the immediate heir or issue, but to all those who descend from the devisee or grantee.” In Guthrie’s Appeal, 37 Pa. St. 13, the court said: “When the term ‘heirs’ or ‘heirs of the body’ is used by a testator, the law presumes that he used it in their legal sense, that he intended not individuals but quantity of estate and descent. Whenever these terms are employed, therefore, the burden is thrown upon ²⁵¹ him who contends that they are words of purchase, to rebut this presumption and to show that they were used in the particular grant or devise to designate persons.” We find the general rule also laid down in 9 R. C. L. 22, and 28 R. C. L. 223, 247; the last citation being: “The common