* Headnote 1. Wills, 40 Cyc., p. 1463. The suit involves the title to about three hundred acres of land, and depends upon the construction of the will of Sarah Caldwell, deceased, as to whether the complainants, who were the descendants of the brothers and sisters, and therefore heirs, of the decedent, take the land by inheritance, or whether the appellees have superior title thereto by purchase from Mrs. Lillian Wilkinson (nee Perry), illegitimate daughter of Lutie M. Perry, niece of the testatrix, Sarah Caldwell, and to whom the land here in question was devised by the will of Sarah Caldwell, deceased.
If the clause in the will, which we shall presently set out, is construed to mean that Lillian the illegitimate daughter of Lutie M. Perry, takes nothing by the will of Sarah Caldwell, then the title to the property would go by descent to the descendants of the brothers and sisters of the testatrix, complainants herein; but, if Lillian, the illegitimate daughter of Lutie Perry, took the remainder estate as the child of Lutie Perry, under the will, then the purchasers from her, appellees, must prevail in title as against the heirs of the testatrix. *Page 735
The clause, of the will to be construed by us is as follows: "To my niece, Lutie M. Perry, I give my real estate during her life, and if married to her heirs, if any, if not, to go to her husband. In case, she should die without husband or heirs then to the church," etc.
It is conceded by counsel on opposite sides that "to her heirs" as used here means "to her children." This construction is reached on the theory that the language of the will plainly demonstrates that the words are not of limitation, but are of purchase, and it was intended that the remainder estate go to the children of the life tenant, Lutie M. Perry. It is also conceded that the provision in favor of the church was void. Under the statutes of this state it is also settled that a bastard inherits from the mother.
The exact point to be decided, then, is whether the testatrix intended that an illegitimate child of Lutie M. Perry should take under the will, or whether she meant that only legitimate children of Lutie Perry should take; the testatrix having used the language "and if married to her heirs," which it is contended by the appellant precludes illegitimates from taking under the will, while the appellees maintain that any child of Lutie Perry was entitled to take under the will, and that the words "if married" were not intended by the testatrix to be a condition precedent and bar illegitimate children.
The facts and circumstances surrounding the execution of the will are in evidence to show the intent of the maker. It seems that Lutie Perry was a favorite niece of the testatrix, Sarah Caldwell, and that the testatrix devised the property to Lutie for life, with the remainder to the children (heirs) of Lutie.
About two years after the will was executed Lutie gave birth to the illegitimate Lillian, and the testatrix knew of this, but did not change her will, and it was some years afterwards before she died. She must have known that the property would go to the illegitimate child unless she made some change in her will before she died. This fact *Page 736 is not controlling, but throws some light on the intention of the testatrix, and aids us in reaching the conclusion that the words "if married" used by her in the will were not intended to bar an illegitimate child from taking the remainder estate after the death of Lutie.
It may be reasonably assumed that the testatrix knew that an illegitimate child is an "heir" of the mother under our statute, which overcomes and dispels the common-law rule that such devises to children unborn contemplate only legitimate children. It seems to us that the dominant thing in the mind of the testatrix was that Lutie was to have the property during her life; then it was to go to her offspring. Lillian was the offspring and legal heir of Lutie, and therefore took the remainder estate at the death of the life tenant.
It appears to us that it would be reasonable to construe this clause of the will as meaning that the testatrix intended that the children of Lutie should take the estate, regardless of whether or not they were legitimate. The use of the words "if married" was merely the expression of the testatrix in assuming that, of course, there would be no children, unless there was a marriage, and to provide for her husband, if she had one; but it was not thought, in our opinion, by the testatrix that there ever would be children born of Lutie except in lawful wedlock, and therefore the question of whether illegitimate children would take under the will never arose in the mind of the testatrix, unless two years afterwards, when she knew that Lutie had had the illegitimate daughter, she refused to change the terms of her will.
It may be that the testatrix would have provided against illegitimates taking after Lutie's death if she had thought such a thing as illegitimacy might occur; but we are thoroughly convinced that the testatrix had no such thought in mind, and simply meant to provide in her will that Lutie was to enjoy the property during her lifetime, and then her children (her heirs, her offspring) should take the remainder. *Page 737
We think this is the true construction of the clause involved, and it follows that the decree of the lower court was correct and should be affirmed.
Affirmed.