100 Va. 552 | Va. | 1902
delivered the opinion of the court.
•We are called upon to construe the following brief will, dated December 21,1897:
“I, Thos. P. Fitzpatrick, of Nelson county, Va., do this day make my last will. I leave to my dear wife and our sweet little children all that I possess. I am nervous about my condition. I had intended to.make a long will to-day. I barely can write.”
It is contended on behalf of appellant that, under the line of decisions beginning with Wallace v. Fold, 3 Leigh, 258, and end
The view we have taken, that the language to “the mother and her children,” standing alone, does not create a fee simple in the mother, is vigorously maintained by the late Judge E. C. Burks in a note to Nye v. Lovitt, 2 Va. Law Register, p. 29, in which he says: “All the Virginia cases on this subject, we be
In. the case at bar, the testator, in disposing of his estate, employs the following language: “I leave to my dear wife and our sweet little children all that I possess.” This is the whole will. There is no other word to look to for aid in ascertaining the intention. "Where the gift of a joint estate is proposed, it would be difficult to express that purpose in clearer 'or more explicit terms than are here employed. To hold that this brief but apt and expressive language for creating in the mother and children a joint estate, was intended to vest a fee simple to the whole estate in the mother, would-be to destroy the testator’s will, and substitute one of our own making in its place.
For these reasons the deoree appealed from, which holds that the appellant and her four children took a joint estate in equal portions, under the will in question, must be affirmed.
Affirmed.