Gardner v. Hoover , 1923 Ohio Misc. LEXIS 1756 ( 1923 )

WARDEN, J.

Epitomized Opinion

■ This was an action for a partition of real estate by one Gardner, who claimed an undivided one-half interest in 70 acres of land in Logan county under the will of Daniel Hoy. Hoy died testate, leaving surviving a widow, four daughters and two sons. Hoy died in 1856. One of the provisions of the will used the following language: “At the death of my said wife the real estate aforesaid I give and devise to my two sons, Isaac Hoy and Phillip Hoy and their children; if either of my sons should decease leaving no choldren, then in that case the surviving son shall have the deceasedd son’s part of my estate.” Neither son had any children at the date of making of the will or at the time of the death of the testator. Isaac died in 1917, leaving Rosa Gardner his only child. Phillip Hoy had five children, all of whom were made defendants in this action. Before Isaac Hoy died, Phillip Hoy and himself conveyed the land in question by warranty deed to the defendants, Anna Hoover and O. C. IJunter. Later this partition suit was commenced by Rosa Gardner. The defendants filed their answers and a demurrer was filed by plaintiff to some of the defenses set forth therein. Held:

1.That the word “children” as used in the will and other words used in the above provision of the will were words of limitation and not words of purchase, and that upon the death of the two sons or either of them, the undivided one-half of the realty vested in fee simple in the issue of each son at the time of his death as tenants in common.