J. A. Osborne, a citizen of Kanawha county, died August 4, 1927, survived by his widow Sarah C. Osborne. There were no children. By his will, dated November 13, 1918, he charged his estate with a trust of $10,000.00 in favor of the First Methodist Episcopal Church, South, of Clendenin; bequeathed certain personal property to his wife, and devised to her certain real estate for life with the remainder to his estate; bequeathed certain shares of bank stock to his brother David F. Osborne; devised a one-half interest of a certain farm to his brother Millard F. Osborne; bequeathed $2,000.00 to his sister Mary F. Taylor; bequeathed $1,000.00 to Clinton Shamblin, a son of his deceased sister Susan Shamblin, and $10.00 each to others of the Shamblin children; to each of nine named children of his sister Rosina Jackson, he bequeathed *Page 482 $1.00; and to his niece Catherine Koontz he devised a half interest in a lot in Clendenin. The residuary clause is as follows: "I desire that the residue of my estate both real and personal, of whatsoever it may consist of wherever found of which I may die seized and possessed, be divided according as the law directs among my legal distributees * * *."
This suit was instituted in October, 1928, by J. O. Jackson and other heirs against Sarah C. Osborne and others for the purpose of having the will construed. A supplemental bill was later filed. K. J. Shamblin and other heirs filed both an original and an amended answer and cross-bill.
Sarah C. Osborne demurred to both the original and supplemental bills and cross-bills. The circuit court sustained her demurrers. Both the plaintiffs and answering defendants prosecute this appeal.
The position is taken by the plaintiffs and by the defendants in the cross-bill answers that the effect of the residuary clause is to direct a division of the residue of the estate among the heirs of the testator. The only difference between the positions of the plaintiffs and the said defendants is as to the proportions in which they claim the heirs should take. The plaintiffs contend that the division should be made among the heirs at law living at the time of the testator's death in shares and proportions according to the law of descent. The position of the said defendants is that the division should be made per capita and in equal proportion among all the persons specifically named in the will as objects of the testator's bounty. The contention of Sarah C. Osborne is that the words "legal distributees" used in the residuary clause must be given a technical interpretation, and that she being the only person of that class is thereby vested with the entire residuum both real and personal. We do not adopt any of those contentions, because, we think, for the reasons herein stated, that none of them is consistent with the intention of the testator as disclosed by the language used by him in the residuary clause.
There is no more basic rule of construction to be applied in the consideration of a will than that the inquiry must be directed not to what the testator may have intended to express, "but what do the words used express." Wills v. Foltz, *Page 483 61 W. Va. 262; Hobbs v. Brenneman, 94 W. Va. 320. Adhering strictly to that wise rule, let us examine the phraseology of the residuary clause. It is to be noted that the testator there provides for the division not only of personal property but of both real and personal property, "according as the law directs among my legal distributees."
Another basic rule in the construction of testamentary instruments is that "technical words are presumed to have been used in the technical sense and are so construed; and words of an established, definite legal signification are presumed to have been used in their definite legal sense, and should be so construed; unless from an inspection of the whole instrument a different meaning clearly appears." Hobbs v. Brenneman, supra. See also Cowherd v. Fleming, 84 W. Va. 227. Now, considering the words of the testamentary clause in their technical signification, inconsistencies are manifest. It provides for the passing of both real and personal estate "as the law directs among my legal distributees." But the law of descent and distribution does not direct nor contemplate the division of real estate among distributees. "Distributees" in its technical sense means those among whom the personal estate of an intestate is distributed. "The word distributees as used in section 2639 (Code) means those who would be entitled under the statute of distribution to the personal estate of the decedent if he had died intestate." Smith v. Lurty, 107 Va. 548. This definition is general. 18 Corpus Juris, 803; Bouvier's Law Dictionary (3rd Ed.) p. 896. If the law does not direct the division of real and personal property among distributees, how then does the law direct such division? It directs the division of real estate among legal heirs, and the division of personal property among distributees. True, they may be the same parties, and again, they may not, as in this case. Evidently the dominant intent of the testator as disclosed by the language of the residuary clause was to direct disposition of the residuum of his real and personal estate in the manner provided by law. That is what he said. Now if the adding of the words "among my legal distributees", when technically construed and applied, adds inconsistency, as already demonstrated, and it appears *Page 484 that those same words ("among my legal distributees"), as used in the said clause, if non-technically construed, do not contribute to inconsistency, it follows that they should be construed in the latter manner. Now, construing these words as applying to those persons who under the law of descent and distribution would be entitled to take the property, both real and personal, the meaning is clear, that is, legal heirs and distributees; the real estate to be divided among the heirs in the manner provided by law and the personal property to be distributed among the distributees in the manner provided by law. "Ordinarily, however, the technical signification of words and technical rules must yield to the obvious intent of the testator as gathered from the instrument as a whole. All rules are designed for that purpose. Couch v. Eastham, 69 W. Va. 710. Rules of construction have their legitimate function when they are needed to understand the purpose intended to be embodied in the language used in the will." Totten v. Dawson, 104 W. Va. 274.
"A primary or dominant intent must prevail over a secondary intent where the two are inconsistent. This rule as to the primary or dominant intent is expressed in different language by different authorities. By some the primary intent is termed the general intent, by others the paramount intent. * * * The effect of this rule is that where two clauses are inconsistent, they must be construed so as to give effect to the intention of the parties as collected from the whole instrument."Morgan v. Morgan, 60 W. Va. 327.
It is true that this construction will operate to pass valuable property to persons who apparently had been cut off by the will with one dollar or ten dollar bequeaths, and thereby there would seem to be inconsistency between the residuary clause and those bequeaths; but on the other hand, the construction adopted by the circuit court and urged in our conference, passing to Sarah C. Osborne the entire residuum, would involve the inconsistency of vesting in her the remainder in the particular real estate in which she had been specifically devised only a life estate. There is inconsistency inherent in the will. All cannot with legal property be eradicated, and we do not attempt it. *Page 485
In the light of the foregoing we are of opinion to reverse the decree of the circuit court and to remand the cause for further proceedings to be had in conformity herewith.
Reversed and remanded.