Words, in general, are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another can be collected.[348] Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. Thus, a testator, in a clause of his will, provided that the share of the estate of any of his children dying without issue should be equally divided among the survivors of his children or grandchildren, and it was held that a step-daughter was not a surviving child of the testator, within the intent and meaning of this clause of the will, so as to entitle her to a portion of the shares of one of the testator’s daughters, who died without leaving issue, even though this step-daughter was acknowledged to be of the family, and treated there as a child.[350]
And the word “children” does not, ordinarily and properly speaking, comprehend grandchildren or issue generally; these being included in that term is only permitted in two cases, viz., from necessity which occurs where the will would remain inoperative unless the sense of the word “children” were extended beyond its natural import, and where the testator has clearly shown by other words that he did not intend to use the term “children” in its proper, actual meaning, but in a more extensive sense. In Osgood v. Lovering,[351] the word was held to include grandchildren, it being apparent from the context, that this was the meaning given by the testator.[352]
This term imports legitimate children only;[353] but if it is notorious that a testator had no such legitimate children, but had others who went by reputation, and were acknowledged as his children, these can take under this term.[354]
In Lord Woodhouslee v. Dalrymple,[355] a legacy was given “to the children of the late C K, who shall be living at my decease”; C K being dead at the date of the will leaving illegitimate children, (of whom three were living at the testator’s death) and not having had at the date of the will, nor having ever had, any legitimate children, the three illegitimate children were held to be entitled.
The word “issue” is a term of more general signification than children; it includes not only children, but all lineal descendants, however remote, for successive generations. It has been called by Lord Holt a nomen collectivum;[356] but this word has frequently been construed to signify children, where it was so apparent from the context.[357]
The phrase, “dying without issue,” in wills, for a long time occasioned much obscurity, and was a fruitful source of litigation. Thus, if an executory devise were limited to take effect on a dying without heirs, or on a failure of issue, or “without leaving issue,” or “without issue,” the limitation was held to be void, because the contingency was too remote, as these phrases being interpreted to mean an indefinite failure of issue, the vesting of the estate would thus be suspended beyond the period allowed by law. But other words used in the will might control this construction, as to show that the testator intended to limit the vesting of the estate to issue living at the time of the death of the first taker. This contrary intent would be inferred by the use of the words “living,” or “leaving issue behind,” or “without children.” Unless such qualifying words, however, were used, the words “dying without issue” were construed as meaning an indefinite failure of issue.[358]
The statute law of New York, and many of the States, has settled the construction of this term, as it is provided under these statutes that it shall be construed to mean heirs or issue living at the death of the person named as ancestor.[359]
Gifts and devises are sometimes made to a “family,” and the decisions have given to the word the same construction as “kindred,” or “relations.”[360]
In Robinson v. Waddelon,[361] a testator gave all the residue of his effects to be equally divided between his two daughters and their husbands and families; the court rejected the words “husbands and families,” and held that the two daughters took the residue equally and absolutely as tenants in common.
Roper has the following observations on devises and bequests to a family: “The word family, when applied to personal property, is synonymous with “kindred” or “relations.” If it be asked, of what family is A, the question will be answered by being informed from what person he is descended, and whoever is related by blood to that stock is related to, and of, the family of A. This being the ordinary acceptation of the word, it may nevertheless be confined to particular relations by the context of wills; or the term may be enlarged by it, so that the expression may in some cases mean children, or next of kin, and in others may even include relations by marriage.”[362]