August 10, 1916. The opinion of the Court was delivered by John C. Horton died leaving of force, his last will and testament, dated the 28th day of November, 1906. In the first clause thereof, he devises the tract of land therein described, to his son, G.F. Horton, "to him and his heirs in fee simple absolutely forever." He also made similar devises of other tracts of land, described in the second, third, fourth and fifth clauses, to his daughter, Elizabeth J. Horton, and his sons, James J. Horton, and J. Martin Horton, and his wife, Cynthia L. Horton, who are parties defendant in this action. He then concluded his will, as follows:
"I desire to say that I make no provision in this will for my son, H.T. Horton, for the reason that I have, heretofore, conveyed to him a certain tract of land which I deem a sufficient share of my estate. It is my desire that any and all property, of which I may die possessed, and not disposed of by will, be divided among my heirs, as may be directed by laws of the State."
The plaintiffs are the children of the testator's two deceased daughters; and the defendants are his children, *Page 130 except James F. Gardner, who is a grandson, being the child of one of said deceased daughters. The following statement appears in the proceedings before the master:
"The matter to be submitted between parties present today is the construction of the will, in regard to the rights of Mrs. Cynthia L. Horton."
The testator did not own any other lands, besides those described in his will, and in the complaint herein, either at the date of his will or at the time of his death. In construing the will his Honor, the Circuit Judge, ruled that the defendant, Cynthia L. Horton, widow of the testator, was entitled to one-third of the lands described in the complaint, on the ground that the word "heirs" includes all those answering that description under the statute of distributions. The plaintiffs and the defendant, James F. Gardner, appealed.
In the case of Seabrook v. Seabrook, S.C. Eq. (1 McMul. Eq.) 201, the Court uses the following language:
"The Court is unable to find any better definition of an heir than the person in whom real estate vests by operation of law, on the death of one who was last seized. * * * In order to ascertain who is the heir, it is necessary only to inquire, to whom, by the law of the land, would the estate pass in case of intestacy? * * * The testator must be understood to speak in reference to the laws of the country in which he resides, and to include all those who answer the description of persons whom that law points out to succeed to the estate."
In Templeton v. Walker, 24 S.C. Eq. (3 Rich. Eq.) 543, 55 Am. Dec. 646, the principle is announced that:
"The statute is the exponent of the full meaning of the donor, unless he has declared a contrary intent." (Italics added.) *Page 131
In commenting on the case last mentioned, the Court, inDukes v. Faulk, 37 S.C. 255, 16 S.E. 122, 34 Am. St. Rep. 745, said:
"In the case of Templeton v. Walker, supra, decided in 1850 by the Court of Errors, it was held that where no words were used in the grant or devise providing for a different distribution, the rule as laid down in our statute of distributions, in cases of intestacy, should not only determine the persons composing the class, but should also fix the share of each."
In Deveaux v. Deveaux, 20 S.C. Eq. (1 Strob. Eq.) 283, it is said:
"The first duty is to ascertain how many of the claimants before the Court come within the description given in the will; and the second is to discover whether all who do come * * * can be allowed, by the rules of law, to partake of the bounty intended.
All the foregoing cases are cited with approval in Rembert v. Vetoe, 89 S.C. 198, 71 S.E. 959, where many other authorities to the same effect are reviewed. When the word "heirs" is used in a will and it does not appear from the context who were intended to be included, then it becomes necessary to resort to the statute of distributions for the purpose of ascertaining those who are included within that term. There is nothing whatever in the will, indicating an intention on the part of the testator to define the word "heirs," and this fact alone would be sufficient to necessitate a resort to the statute of distributions. The testator, however, has placed this question beyond all controversy, by providing that the property not disposed of by his will should be divided among his heirs, as may be directed bythe laws of the State, which has reference to the statute of distributions.
In the case of Seabrook v. Seabrook, 31 S.C. Eq. (10 Rich. Eq.) 495, it was held that where there is a devise to the testator's heirs, they do not take under the will, but *Page 132 under the statute of distributions, and that the testator's widow is included under the term "right heirs," used in the will.
There is not a single expression in the will tending to show that the two daughters, not mentioned in the will, or their representatives, were intended to be the sole beneficiaries of the undisposed of property.
Judgment affirmed.