Godwin v. Kemp

¹⁶⁰ Pattison, J., delivered the opinion of the Court. The bill filed by the appellees in this case asks for the construction of the last will and testament of Clarence M. Kemp,, who at the time of his death, on the 24th day of July, 1911, resided in the City of Baltimore. He left an estate valued at $165,000, consisting of both real and personal property. In the second item or paragraph of his will, dated the 4th day of April, 1910, he expressed a desire to make an equitable and fair distribution of his estate among his wife and children, and to that end directed that his estate be divided into, ten parts, which he therein proceeded to dispose of as follows r “(a) Pour-tenths of which I give, devise and bequeath unto my wife, Hannah Prances Kemp, if she be living at the time of my death, for and during the term of her natural life only. “(b) One and one-half tenths thereof I give, devise and bequeath unto my son, William Wallace Kemp, absolutely. “(c) One and one-half tenths thereof I give, devise and bequeath unto my son, Edgar S. Kemp, absolutely. “(d) One-tenth thereof I give, devise and bequeath unto my'daughter, Katherine M. Kemp, absolutely. “(e) One-tenth thereof I give, devise and bequeath unto my daughter, Henrietta E. Kemp, absolutely. “(f) One-tenth thereof I give, devise and bequeath unto my daughter, Alice W. Kemp, absolutely. “Thirdly—Prom and after the death of my said wife, Hannah P. Kemp, I direct that the four-tenths of said estate held by her for life shall be divided equally among my five children above named, the child or children of any of my said children who may be deceased at the date of my said wife’s death to take • the share or shares its or their parents, respectively, would have taken, if living. “Fourthly—In the event of the death of any of my five children unmarried and without leaving issue surviving at the time of their respective deaths, their respective share shall go to and become the property ¹⁶¹ absolutely of the survivors, and if any shall die without issue living, hut leaving a surviving husband or wife, such surviving husband or wife shall have a life estate only in the share of the one or more so dying.

And in the event of any or all of my said children dying leaving issue surviving at the date of their respective deaths, the share of said child so dying shall go to and become the property of the child or children so dying.” Afterwards on the 20th day of July, 1911, a codicil was made to the will which, however, has no effect upon the question before us. The testator was survived by his widow and all of his sons and daughters mentioned in the will. The appellants, Alice Virginia Kemp, infant daughter of William Wallace, and Edgar J. S., infant son of Edgar J. S. Kemp, Sr., and grandchildren of the testator, contend through their guardian, that by a true construction of the will, “the children of the testator took a life estate only with the remainder to his grandchildren”; while the appellees contend that they took, upon the death of their father, absolute* vested estates, in fee simple, in the* lands, property and estate devised to them, and this* is the view expressed by the Court below in its decree* from which this appeal is taken. That which gives rise' to the present controversy is the expression of the testator found in the fourth clause of the will where it is. said that “in the event of the death of any of my five children unmarried and without leaving issue surviving at the time of their respective deaths, their respective share shall go to and become the property, absolutely of the survivors, and if any shall die without- issue living, hut- leaving* á surviving husband or wife, such surviving husband or wife shall have a life estate only in the share of the