2 W. Va. 62 | W. Va. | 1867
This is a supersedeas to a judgment of the circuit court of Preston county.
The action Avas ejectment by the plaintiffs in error Avho claimed as devisees under the will of John Jenkins, against the defendants in error, aaJio held under a deed from John Smith and Rebecca, his wife, and John Jenkins Smith, and Clarissa, his Avifc, also claiming as devisees under the same Avill of John Jenkins.
The third clause of AA’hich Avill is as folloAvs, viz. “ Thirdfy, The lauds Avhich I uoav live on, exclusive of that which I have bequeathed to my son, Jonathan Jenkins, I give and bequeath to John, my son-in-law, and Rebecca Smith, my daughter, after my Avife’s decease, fully to be possessed and enjoyed by them during their natural lives, and after their decease, the said land to fall to their son, John Jenkins Smith, and in case of his death, the land is — fall to the rest of John Smith and Rebecca Smith’s children.”
It is manifest from the coutext that it Avas the intention of the testator after limiting a life estate in the land, first to his Avite; then to his daughter Rebecca and her husband, John Smith, to give the remainder in foe to his grandson, John Jenkins Smith, contingent, however, upon some event, and if the contingency happened, then remainder in fee to the brothers and sisters of the said John Jenkins Smith.
The intention of the testator is to be sought in the will, and Avhere he does not use proper technical words to express his meaning, the court may supply them, in order to effectuate the manifest intention of the testator, and for such purpose only. Sedden vs. King, 2 Call, 72. There can be
I think, therefore, that upon the death of John Jenkins Smith, leaving issue living at his death, the contingency failed on which the bequest over to the plaintiffs was intended
The judgment, therefore, of the circuit court was right and should be affirmed with costs to the defendants in error.
Judgment affirmed.