Syllabus.

[113 S. C.

There is no minimum fixed by statute.

This is wisely

left to the discretion of the trial Court, and it seems to have been wisely exercised. This exception is overruled. The judgment is affirmed.

10361.

LEMMON v. MCELROY ET AL.

(101 S. E. 852.)

1. WILLS-INTENTION OF TESTATOR GOVERNS.-In all cases calling for the construction of a will, the intention of the testator must be sought and given effect, if it is lawful.

2. WILLS-INTENTION MUST BE ASCERTAINED FROM LANGUAGE AND SURROUNDING CIRCUMSTANCES.-The intention of testator must be ascertained by the language used, aided by the surrounding circumstances, viewed in the light of the settled principles of construction.

3. WILLS-PRIMARY MEANING OF "FAMILY" IS CHILDREN.-Though "family" may, under different circumstances, mean a man's household, consisting of his wife, his children, and servants, or may mean wife and children, or only children, the last meaning is the primary meaning, which will be given to the word when used in a will, unless the context indicates a contrary intention.

4. WILLS-CONTEXT HELD TO SHOW THAT FAMILY MEANT CHILDREN.Where the testator made a gift for the use of his sister and her children, if she should have any, but, if not, then to her brothers and sisters or their families, and another paragraph of the will likewise made a gift to a brother of testator and his children, the context indicates an intention to include by the term "families" only children, not the wife, of a brother.

5. WILLS GIFT OVER TO BROTHER OF LEGATEE AND HIS FAMILY CONTINGENT ON DEATH OF LEGATEE WITHOUT ISSUE.-Under a gift for the use of a sister of testator and her children, with a gift over, in the event she have no children, to her brothers and sisters and their families, the gift over is contingent on the death of the sister without children, and on the brother being in existence or having children at the death of a sister, so that his widow cannot take as devisee or legatee of her husband, who died before the first beneficiary.

6. WILLS GIFT TO CLASS VESTS AT TIME OF DIVISION.-Where the devisees in remainder compose a class, and the only words of devisee are a direction to divide the property at a specified time, the gift will not vest until the time of division.

Before GARY, J., Fairfield, Spring term, 1919. Affirmed.

Suit by James T. Lemmon, as administrator of the estate of Sarah McElroy, deceased, against Janie Ferguson McElroy and others, for the construction of a will. From a decree construing the will unfavorably to her, defendant, Janie Ferguson McElroy, appeals.

The decree of Judge Gary, in the Court below, was as follows:

This is an action to construe the will of Robert McElroy, deceased, under which Sarah McElroy received the funds which are now in the hands of her administrator. The will is dated July 19, 1873, and was admitted to probate in 1890 by the Judge of probate for Berkeley county. The contest is as to the proper construction of the first clause of the will, which is as follows:

"I hereby give and bequeath to my sister, Sarah McElroy, the sum of ten thousand dollars in cash, to be invested in first mortgage bonds of any solvent railroad company; to be invested from time to time as mortgages become due, as I consider this the safest investment. This does not include her share in the policy of my life, namely, twenty-five hundred dollars, which I wish invested in the same way. Should she marry, the whole amount is to be held by her to her sole and separate use, and to the use of her children, should she have any, free from the interference and control of her husband; should she died without children, this amount is to be equally divided among her brothers and sisters, or their families."

She

Sarah McElroy never married and had no children. died in 1917. Alexander McElroy, a brother of testator who was married twice, died in 1907; his children by his first marriage having predeceased him, leaving Fannie Ferguson McElroy, his widow by his second marriage. The defendant, the said Fannie Ferguson McElroy, claims in her answer that, as the family of Alexander McElroy, deceased, she is entitled, under the terms of the will of said Robert McElroy,

Circuit Decree.

[113 S. C. to one-fourth interest in the said fund. The question in the case is: What was the intention of the testator, as gathered from his will? Was she included in the term "family?" It is contended by the other parties that the word "family" must be construed to mean children of the brothers and sisters; that it means blood relationship, and excludes the said Fannie Ferguson McElroy from any interest in said estate.

Alexander died

The testator, Robert McElroy, was a bachelor, and at the date of his will he had three brothers, Alexander McElroy, James McElroy, and William McElroy, and three sisters, Sarah McElroy, Isabel McElroy, and Margaret A. Lemmon. James McElroy died about 1871, predeceasing the testator, leaving a widow and one child, Connor McElroy. His widow has since died, and the said defendant, Connor McElroy, is the sole surviving heir at law of his father and mother. Isabel McElroy died in 1885, unmarried and without issue. The testator died in 1890. in 1907. Williaim died in 1915, and his children and heirs at law are Nora Tillery, Hattie Graham, Mary West, Lillie Edington, William McElroy, and Robert McElroy. Sarah McElroy died in 1917 without children. Hence, at the death of the testator, he left surviving him his sisters, Sarah McElroy and Margaret A. Lemmon, his brothers, Alexander and William McElroy, and his nephews, Connor McElroy (son of James McElroy). Alexander McElroy married the second time in 1891, a year after the death of the tes

tator.

The term "family," when used in the Constitution and statutes of South Carolina with reference to the homestead exemption, has undergone judicial construction, and if we were called upon to define the word when so used, we would have but little difficulty. See Moyer v. Drummond, 32 S. C. 165, 10 S. E. 952, 7. L. R. A. 747, 17 Am. St. Rep. 850; Moore v. Parker, 13 S. C. 486; Bradley v. Rodelsperger, 3 S. C. 226. But when it comes to construing the word, when used in a bequest in a will, a more difficult question is presented.

Here, as in all cases calling for the construction of a will, the intention of the testator must be sought, and, when it is ascertained, effect must be given to it, if it is lawful. 1, 2 This intention must be ascertained by the language

used, aided by the surrounding circumstances, viewed in the light of well-settled principles of construction. We have quoted above the language to be construed.

The word "family" is used in various significations, some more restricted, others more extended; the general scope and purview of the statute or of the will having to be con

sidered in each. It is used to indicate, first, the whole 3 body of persons who form one household, thus including also servants; second, the parents, with their children, whether they dwell together or not; and, third, the whole group of persons closely related by blood. Curt. Dict. It may mean a man's household, consisting of himself, his wife, children, and servants; it may mean his wife and his children, or his children, excluding his wife; or, in the absence of wife and children, it may mean his brothers and sisters, or next of kin; or it may mean the genealogical stock, from which he may have sprung.

Which of these various and varying significations did the testator have in mind? "The word 'family' is not a technical word, and, being of flexible meaning, it must be construed according to the context of the will. As was said above, in one sense, it means the whole household, including servants, and even boarders and lodgers. In another, it means all the relations who descend from a common ancestor. Its primary meaning, however, is 'children,' and so it must be construed in all cases, unless the context shows that it was used in a different sense.'

An authority upon this point is the case of Pegg v. Clarke, L. R. 3 Ch. Div. 672, in which the Master of Rolls, in delivering judgment, said: "Every word which has more than one meaning has a primary meaning, and, if it has a primary meaning, you want a context to find another." What, then, is the primary meaning of "family?" "It is children;

that is clear, upon the authorities which have been cited." See, also, 2 Jarman Wills, 90, et seq. And, again: "In a bequest or a devise for the benefit of one and his family, it has been held that the word 'family' prima facie means children, and that a gift to A. and his family should be read as a gift to A. and his children." Am. & Eng. Enc. Law, vol. XIII, p. 870, text, and citing numerous English and American decisions. "On the whole," says Schouler, "the word 'family' is one of variable meaning, and for its true import in any case we must consider the general language of the will." Volume I, p. 682.

Studying the general language of the will before us, we see that the testator has been very particular to provide that the bequest in the first clause of the will should be for the use

of Sarah and her children, should she have any chil4 dren, but in no event could her husband receive any portion of it, presumably because he was no blood. relationship to the testator; in case Sarah had no children, then the bequest was to her brothers and sisters, or their families. It is hardly to be believed that the testator would be so particular to provide that the bequest should be free from interference or ownership by one who was not of the same blood, while the bequest was in the hands of Sarah and her children, and yet be so indifferent upon that point if the bequest should fall into the hands of her brothers or her sisters. This being inconceivable, we must conclude that the testator used "families" in the primary sense, and as interchangeable with and equivalent to children.

The same idea is carried out in paragraph 2 of the will. This construction is borne out by the disposition made in paragraph 3, where the testator bequeaths $8,000 in cash to his brother, William McElroy, to be invested in land for himself and his children, thus excluding the possibility of a participation in the bequest by a wife who was not of the blood. The evident desire of the testator to recognize his children and their children as the beneficiaries of his bounty,