Marsh v. Metz

Harold Marsh brought this action in partition, claiming an undivided 1-4 part of real estate, as devisee under the last will and testament of Joseph Jones, deceased. Gertrude and Marty Metz filed an answer claiming to be the owners of the real estate in fee simple; that they were the devisees under the will of their father, Edward Metz, deceased, who purchased the property from Harriet Marsh; said Harriet Marsh having received the real estate by devise under the will of her father, Joseph Jones. Harold Marsh is the grandson of Harriet Marsh; and in bringing this action for partition relies on the construction of an item in the will of Joseph Jones, deceased. “I do hereby will and devise to my daughter, Harriett Marsh, my 2 three story houses of West 4th and 5th streets.”

The item in question provided: “Also my three story house on John street to my daughter, Harriet Marsh, during her natural life and at her death to her issue then living in fee; but if no issue servive her, then to my other children or their issue in the same manner as other property herein specially devised to them.”

Harold Marsh claims that the 2 three story houses on 4th and 5th streets were given to Harriet Marsh for life only, under the will. Metz claims it was an estate in fee simple. The court of appeals held:

1. Section 10,580 GC provides: Every devise in a will of lands, tenaments or heredi-taments shall convey all the estate of the devise therein, which he could lawfully devise unless it clearly appears by the will that the devisor intended to convey a less estate.

2. Estates tail are not favored. The presumption is against the intention to create them and that presumption must be overruled by language entirely free from' ambiguity. Collins v. Collins 40 OS. 353.

3. The language in the second part of the item does not cut down the devise in the first part of the item. Petition for partition dismissed.