Merowitz v. Whitby

Stockbridge, J., delivered the opinion of the court. The bill of complaint in this case was filed by the appellee for the specific enforcement of a contract of sale of a lot of ground on East Lexington Street under the terms of an agreement entered into between the parties on the 26th of October, 1920. The defendant refused to carry out the contract be ²²³ cause of the alleged non-merchantability of the title of the plaintiffs. The supposed defect- arises under the twenty-second clause of the will of Maria Shackelford.

That clause reads as follows : “To my niece, Minnie Hunt Mullen, in trust for the benefit, of the children of my niece, Annie Whitby, who shall be living at tbe time of my death, all those properties known as one hundred and thirteen (113) and one hundred and fifteen (115) North Eden Street and fourteen hundred and five (1405) East Lexington Street, and the sum of One Thousand Dollars ($1,000) cash, to be paid her by my executor hereinafter named out of the proceeds of sale of a certain Government Bond, said properties and cash to be held by said Minnie Hunt Mullen in trust for the use and benefit of the children of my niece, Annie Whithy, until the youngest of said children reaches the age of eighteen years, when said trust shall cease, and said properties and cash shall he equally divided, share and share alike, between said children or those surviving.” Annie Whitby, tbe niece mentioned in Mrs. 'Shackelford’s will, had three children, of w£om two only are living at the present time, the eldest, Katherine Grace, who was living at the time of Mrs. Shackelford’s death, having died August 10, 1906, leaving surviving her1 one child, Katherine Grace Whithy, and it is now suggested as constituting a defect in the title, because of the provision contained in the last paragraph of the twenty-second clause, that the property devised and bequeathed passed to the surviving child under the language, “shall be equally divided share and share alike be^ tween said children or those surviving,” and that this minor child is not a party to the case. It is always dangerous to attempt to lay down a hard and fast rule for the construction of a will of a testator, and .some courts have been led to an adoption of the principle of ascertaining as closely as it was practicable the real intent of the ²²⁴ testator, in order that the wishes of the testator might be carried out. In this condition it is not unusual to find different courts