Fenby v. Johnson

Bartol, J., delivered the opinion of this Court: The main question arising upon this appeal, and as it appears by the opinion of the Judge of-the Circuit Court, the only question submitted to him at the hearing of the cause, involves the construction of the will of James Johnson, deceased. The particular clause of the will, which has given rise to this controversy, after giving to the wife of the testator one third of his estate and property during "her life or widowhood, is as follows: “I give, devise and bequeath the other two undivided thirds to my children equally. But it is my will, that in case both my children shall die in their minority, unmarried, without issue, and intestate, that the portion so given and devised to them, shall go to, and be held by my aforesaid wife, if she shall be then living, so long as she shall live and remain a widow, and at her death or subsequent marriage, then I give and bequeath the same to my right heirs.” The testator left two children — a son and a daughter; after his death the daughter died in her minority, intestate! The widow, who is the complainant in this cause, renounced under the will, and elected to take according to law. ¹¹⁶ Richard D. Eenhy and James Stirrat, the executors named in the will, qualified as such, returned an inventory and accounted with the Orphans’ Court.

On the 5th of August 185^, letters of administration were granted to the appellee on the estate of her deceased daughter, and on the 3d of December 1851, she was duly appointed and qualified as guardian of her son. The bill in this cause was filed by her in her own right, as administratrix of the daughter, and as guardian of her son, charging “that by the true construction of the will, she is entitled as distributee to one-half of the personal estate of her daughter; and as widow and administratrix, to an account of the administration by the executors, and to an allowance as guardian for the support of her son; and the prayer of the bill is for an account, and for general relief.” The answer of the executors denied the jurisdiction of the-Court, and alleged that they had accounted in the Orphans’ Court; but admitted the material facts alleged in the bill. The Circuit Court decreed that “an account should be taken, &c., and awarded to the appellee as administratrix of her daughter Emma Johnson, deceased, the one-third part of the personal estate of James Johnson, deceased, to be held and administered according to law.” The Circuit Court-in the opinion accompanying the decree, decided that the daughter took under the will a vested estate in fee, in the moiety of two-thirds of her Lather’s estate, which, at her death, passed to her heirs and personal representatives, and not to her surviving brother by way of cross-remainder, by implication; and that consequently the appellee was entitled, as distributee,' to one-half the personalty of her said daughter acquired under the will. The account of the auditor being stated in conformity with the opinion and decree, exceptions were filed thereto,* and this appeal.was taken from the decree.

An examination of the cases cited in argument, has led us to the conclusion that the construction put upon this ¹¹⁷ danse of the will by the judge of the Circuit Court, was correct. In the opinion of this Court the children took under this devise as tenants in common in fee in the lands, and an absolute estate in the personalty, which vested upon the death of the testator; and the limitation over upon the contingency named in the will, was good as an executory devise. In such case the weight of authority, as well as of reason, is, that there is no implication of cross-remainders between the devisees, but in case of the death of one, the event which has actually happened, her estate devolved upon her heirs and personal representatives, subject however to be afterwards defeated by the happening of the contingency named in .the will. The authorities cited in the opinion of the judge of the Circuit Court, and which may be found collected in Jarman on Wills, vol. 2nd, ch. 44, fully establish this conclusion.

An examination of all the cases cited in the argument, has satisfied us that the