Zimmerman v. Briner

The opinion of the court was delivered by

Strong, J.

The testator by his will set apart a portion of his property for his widow, to be enjoyed by her during her life. The portion thus set apart was the house and lot described in the will, and a fund of $1000. In this he created for her an estate for life, and he disposed of the remainder by directing that after her death, the house and lot should be sold, and that the proceeds of the sale, together with the $1000 fund, should be equally divided among his heirs. In regard to the residue of his property, probably the bulk of it, he gave no such directions. That he ordered to be divided equally, after the deduction of a few small legacies, among ten persons named, nine of whom were his children, and the tenth was the wife of another child. There is a clear difference between his intentions respecting the part of his property devoted temporarily for the use of his widow, and the proceeds of sale of his farm and woodland and of his personal property. The former he gave to his heirs generally, subject to the particular estate of the widow. The latter he gave not to his heirs generally, but to the ten persons named, and excluded his son John. The will can be construed in no other way, without denying effect to some of its provisions. There is no sufficient reason found in the language of the testator, to warrant a belief that he intended to use the word heirs in any other than its legal sense. He did not attempt to define it. The court below was therefore right in holding that John Zimmerman, as one of the heirs of the testator, is entitled to a proportionate part of the $1000 fund, and of the proceeds of sale of the house and lot devised to the widow for life.

The other point raised, on behalf of the plaintiff in error, is put at rest by Strouse’s Executor v. Becker, 8 Wright 206, if, indeed, it can be raised at all, in a writ of error sued out by the garnishee.

The judgment is affirmed.