68 W. Va. 393 | W. Va. | 1910
This is a. writ of error from a .judgment upon agreed facts in favor of the defendants in an action of ejectment- in the circuit court of Cabell county, in which Letha Dolan and others are plaintiffs and James Eskridge and others defendants..
Both plaintiffs and defendants claim title from the will of Ralph Smith, under a clause giving “To my beloved wife and obedient daughter, c Johanna, all my lands and appurtenances' situated thereon, known as the land on which -I now reside,situate on the borders of Heath’s Creek, in the County of Cabell, W. Va. And 'all the rest, residue aiid -remainder of my real and personal estate, with my land named, to be divided equally between them, share and share alike, during the life time of my wife; after her death hei interest and estate, real and personal, goes to my daughter, Johanna, and'her heirs.” The wife was Levila Smith, and the'daughter'ivas Johanna McMullen. Levila' Smith 'died intestate, and the plaintiffs are her heirs, contend-'' that the will gave Levila Smith one half-in fee in the tract of land mentioned in the will, and that at her death it passed to the' plaintiffs as her heirs.' Johanna McMullen, after Levila Smith’s death, conveyed the tract, as sole owner, to Swann, and the defendants claim derivatively under her, contending that under the will Levila Smith and Johanna McMullen did not take a joint estate in fee, but 'that Levila Smith took an estate for her life in a moiéty, with remainder in fee to Johanna McMullen in that moiety. The counsel for plaintiff's argues that the will by clear words, as if a separate clause, vests in the wife and Johanna a joint estate in fee, and relies on the legal rule of construction of wills, that “an express bequest cannot be cut down by a subsequent clause of doubtful meaning.” 10 Anno. Oases, 176. See 3 Anno. Cases, 615. The rule is thus stated in 30 Am. & Eng. Ency. L. 687. “It has become a settled rule of construction that when the words of -a will in the first: instance distinctly indicate an intent to make a clear gift, such gift is not to be Cut-down by any subsequent provision which' is am-, biguous or inferential and which is not equally as distinct-as' the'former; or, the rule may be stated that a clear gift is not to be cut down by anything, which .does not, with reasonable cer-taiiffy, indicate an .intention to cut it 'down. •'Whichever form of language be adopted,' however, the plain intention of the
• We’affirm the judgment. Affirmed. ■