Stonebraker v. Zollickoffer

Bartol, C. J., delivered the opinion of the Court. The question in this case arises upon the construction of the will of Samuel Stonebraker. The appellant, son of the testator, claims the proceeds arising from the sale of certain timber, which had been prostrated by a storm on a farm devised by the will. It is conceded in the argument that the right of the appellant depends entirely upon the question, whether his interest and estate under the will is in fee or for life only.

Our brother Alvey sitting in the Circuit Court, decided that the appellant took under the will an equitable estate in the farm, for his life only ; and we entirely concur in this conclusion. The decision of the case may very well he rested upon the reasoning contained in the opinion of Judge Alvey and the authorities therein cited. The will does not in express terms limit the estate devised to the appellant, to his life only, and hence it is argued that under the Code, Art. 93, sec. 305, (Act of 1825, ch. 119,) he takes the absolute estate in fee. ¹⁷¹ There being no words of perpetuity, the devisee would at the common law, take a life estate. The Code provides that a devise without words of perpetuity or limitation shall operate to pass the entire and absolute estate, “unless it shall appear by devise over or by words of limitation or otherwise, that- the testator intended to devise a less estate and interest.” In the will under consideration, we think the intent to limit the estate of the appellant to his life, clearly appears from the terms employed; whereby the estate is disposed of after the death of the appellant, both in the event of his dying leaving a child or children, and of his dying without leaving child or children.

In the former contingency the gift is to the child or children of the appellant, “to be equally shared among them if more than one, their heirs and assigns; and in the latter event, that is of his dying without children, the estate is devised to the surviving child or children of the testator, and to the children of any child who may he dead.” The position that the devise over to the children of the first devisee enlarges his estate by the operation of the “ Eule in Shelly’s Case ” is altogether untenable, because it is well settled that the word children is not to he construed as a word of limitation, unless such clearly appears to he the intent of the testator, and in this will no such intent appears. We need refer on this point to no other authorities except those cited in the opinion of the learned Judge by whom