McWhite v. Roseman

June 28, 1920. The opinion of the Court was delivered by This is an action to recover possession of certain tracts of land, under the will of Willis Benson, who died in 1865 (which will be reported).

The appeal is from the ruling of his Honor, the presiding Judge, directing a verdict in favor of the plaintiffs.

The provisions of the will which require special consideration are in substance as follows:

"I leave to my wife five hundred acres of land, to her during her natural life in lieu of her dower; after her death, then for an equal division to be made between my heirs here named — Maria Louisa Harrison, Frances Eleanor McWhite, James Monroe Benson, Willis Key Benson, Elizabeth Lucy Brooks, William Matthews Myers, and one share of this property I leave to William Henry Benson's three children — Mary Frances Virginia Benson, Willis Henry Benson, and James Floyd Benson. Land not to be sold. After the death of my three (children), Maria L. Harrison, Frances E. McWhite and Elizabeth L. Brooks, this property that I leave them, after their death goes to their bodily heirs. (If) William M. Myers dies and has no children, this property goes back to my heirs above named. If Willis H. Benson dies without an heir, his property goes to Mary Frances Virginia Benson; and if James Floyd dies without any heirs, there is to be an equal division made between the children; and after the death of Mary Frances Virginia Benson, the property goes to her bodily heirs."

James Monroe Benson and Willis Key Benson were sons of the testator; Maria Louise Harrison, Frances Eleanor McWhite, and Elizabeth Lucy Brooks were daughters; William Matthews Myers was a grandson; and Mary Frances Virginia Benson, Willis Henry Benson, and James Floyd Benson were grandchildren.

At the trial, the following stipulations were entered into between counsel:

"It is stipulated by and between counsel in this case that the defendants claim title through Frances E. McWhite, a daughter of Willis Benson, and that if under the will of Willis Benson Frances E. McWhite took a fee conditional the Court may direct a verdict in favor of the defendants; on the other hand, if under the said will the children of Frances E. McWhite took as purchasers the fee simple title after the expiration of the life estate in Frances E. McWhite, the court will direct a verdict in favor of the plaintiffs.

"It is further admitted that at the time of the execution of the will of Willis Benson Frances E. McWhite had living children.

"It is further admitted that Willis Benson died in 1865 and that Mrs. McWhite died in 1917.

"It is further admitted that Maria L. Harrison, Frances E. McWhite, and Elizabeth L. Brooks, named in the will of Willis Benson in the clause construed by the Court, divided the land which passed under said clause between them and that Frances E. McWhite, by fee simple deed with clause of general warranty, conveyed the land so held by her in severalty to the defendants' predecessors in title and that each of said defendants now holds in severalty, all the several tracts of land as stated above."

At the close of the testimony, his Honor, the presiding Judge, directed a verdict in favor of the plaintiffs, for the possession of the land held by the defendants.

The only question in the case is whether there was error on the part of the Circuit Judge in construing the words "bodily heirs" as synonymous with the word "children."

After the use of the words "my heirs here named" by the testator, in line 17 of his will, they were immediately followed by the names of his children and grandchildren, thus showing that those words were not used in their technical meaning.

The provisions in line 65, "Land not to be sold," means that the land was not to be sold by the three daughters.

Therefore, it cannot be held that Frances E. McWhite took a fee conditional without destroying the express provision of the will, that the land should not be sold by her; one of the incidents of the fee conditional being the right of the tenant to sell the land, upon the birth of issue.

The words "bodily heirs" in line 76, and the word "heir" in line 77, are used synonymously; and the word "heirs," which is used throughout the will, unquestionably has reference to children or grandchildren, but nowhere is it used as a word of limitation.

Affirmed.