Schnell v. Sottile ( 1920 )

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of his Honor, Judge Sease, which the following is pertinent to the question involved in this appeal:

“This is an action involving * *' * construction of the will and codicils of Ferdinand Leopold Schnell.

“Upon hearing arguments and considering questions of law arising in this case, I am of the opinion that a proper construction of the said will and codicils is to give Ferdinand M. A. Schnell a fee simple in the property described in the complaint; he being alive at the time of the death of the testator.”

The order appealed from must be reversed. A proper construction of the will and codicil makes clear the intent of the testator that the disposition of his property is to take place after testator’s death. If the son had predeceased him,, he could not take possession of the property. By his codicil he expressly provides after his death.

The son took a fee defeasible, on his dying without leaving children. This he ipay do, and, if he does, his fee will be defeated and the limitation over will take effect. Hence he cannot convey an indefeasible title.

Order appealed from is reversed.

Messrs. Justices Hydrick and Fraser concur. Mr. Chiee Justice Gary and Mr. Justice Gage absent on account of sickness.