Stonebraker v. Zollickoffer ( 1879 )

Bartol, C. J.,

delivered the opinion of the Court.

The question in this case arises upon the construction of the will of Samuel Stonebraker. The appellant, son of the testator, claims the proceeds arising from the sale of certain timber, which had been prostrated by a storm on a farm devised by the will.

It is conceded in the argument that the right of the appellant depends entirely upon the question, whether his interest and estate under the will is in fee or for life only.

Our brother Alvey sitting in the Circuit Court, decided that the appellant took under the will an equitable estate in the farm, for his life only ; and we entirely concur in this conclusion.

The decision of the case may very well he rested upon the reasoning contained in the opinion of Judge Alvey and the authorities therein cited.

The will does not in express terms limit the estate devised to the appellant, to his life only, and hence it is argued that under the Code, Art. 93, sec. 305, (Act of 1825, ch. 119,) he takes the absolute estate in fee.

There being no words of perpetuity, the devisee would at the common law, take a life estate.

The Code provides that a devise without words of perpetuity or limitation shall operate to pass the entire and absolute estate, “unless it shall appear by devise over or by words of limitation or otherwise, that- the testator intended to devise a less estate and interest.”

In the will under consideration, we think the intent to limit the estate of the appellant to his life, clearly appears from the terms employed; whereby the estate is disposed of after the death of the appellant, both in the event of his dying leaving a child or children, and of his dying without leaving child or children. In the former contingency the gift is to the child or children of the appellant, “to be equally shared among them if more than one, their heirs and assigns; and in the latter event, that is of his dying without children, the estate is devised to the surviving child or children of the testator, and to the children of any child who may he dead.”

The position that the devise over to the children of the first devisee enlarges his estate by the operation of the “ Eule in Shelly’s Case ” is altogether untenable, because it is well settled that the word children is not to he construed as a word of limitation, unless such clearly appears to he the intent of the testator, and in this will no such intent appears. We need refer on this point to no other authorities except those cited in the opinion of the learned Judge by whom this case was decided below. From these authorities it is clear that the “Eule in Shelly’s Case” has no application to the will before us. And we do not understand the appellant’s solicitor as so contending.

The ground upon which they seek to maintain that the appellant takes the absolute estate in the farm devised, is that the limitation over in the event of his death is to he construed as referring only to the contingency of his death happening during the life-time of the testator, and many authorities have been cited by them to show that if the will be so construed, then the devise to the children becomes a substitutionary devise, and the first devisee, if he survives the testator takes an absolute estate.

We have examined the cases cited in argument, and are of opinion that they do not support the construction of this will, for which the appellant contends. It appears to us to be quite plain from the terms of the will, that the contingency upon which the limitation over is to take effect, refers not to the death of the first devisee during the life of the testator, but to his death whenever it may occur at a subsequent time. The contingency is not simply the death of the devisee, but his leaving children or not leaving children at the time of his death. The effect of this construction is to limit the estate of the first devisee to the term of his life.

We refer to the decision of Sir J. Leach, V. C., in Allen vs. Farthing, stated in 2 Madd., 310, and more fully reported in 2 Jarman, 168 m. That case is very analogous to this. The will there under consideration was, in its provisions, almost identical with the will before us, and the decision of the Vice-Chancellor appears to us to be consistent with reason and authority, and quite conclusive of the present case.

We refer also to Child vs. Giblett, 3 Mylne & Keen, 71, which was a decision to the same effect by the same learned Judge while Master of the Rolls.

Many other cases might be cited in support of this construction of the will, but we think it is plain from the words of the will itself.

It follows that in our opinion, the decree of the Circuit Court ought to be affirmed.

Upon the question as to the right to the timber, we have said that it has, been conceded on the part of the appellant, that if his estate under the will, is a life estate only, he is not entitled thereto.

(Decided 20th June, 1879.)

This branch of the case is rested upon the opinion of the Judge sitting in the Circuit Court, and need not be further discussed.

Affirmed and remanded,.