The Better Chancery Practice Blog

Based on the facts below, how do you think the court should decide? The answer is in the first comment.

Mary Martha Wiggs died on June 10, 1913, with a valid holographic will. The court is faced with the following provisions:

1st. I give my husband, Capt. J.A. Wiggs, the land known as my home place upon which I now reside, to have and to hold for his natural lifetime, and at his death same to be equally divided among my legal heirs.

2nd. I give my heirs the following described property, to wit: The land known as Chapel Hill place, the land known as my Outlaw place, and all my personal and mixed property to be divided as follows: One share to the children of my sister, Margaret Spencer, one share to the children of my sister Ella Harvey, and one share to be equally divided between my brother Dorsey Outlaw and his children.

The will uses the word “heirs” in each section. In the first section she does not qualify who is meant by “legal heirs”. In the second provision she leaves to her “heirs” but then sets out who she identifies as her “heirs.” The problem is that the individuals listed as her “legal heirs” in the second provision includes individuals who are not her next of kin under the statute of descent and distribution.

So here is the question: how should the court interpret the word “heirs” in the will. There are three options:

• (1) Interpret the word “heir” using its legal meaning under the statute of descent and distribution – disregarding those listed in the second provision who are not legal heirs;

• (2) Use the testator’s definition of “heirs” in the second provision and have that definition apply to the first provision as well so that the individuals listed in the second provision would also get the remainder interest after Capt. Wiggs dies (and her statutory heirs would get nothing if not listed).

• (3) Use the legal definition of “legal heirs” in the first provision to take the remainder interest after Capt. Wiggs dies and use the testator’s definition of “heirs” in the second part and allow those named to take the property identified.

Tagged: Will construction