Hamilton v. Stuart

2 Ohio Law. Abs. 588, 1924 Ohio Misc. LEXIS 1716

• Court: Ohio Court of Appeals
• Decided: March 24, 1924
• Docket: No. 5375
• Status: Published

Opinion

LEVINE, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas brought] by Walter J. Hamilton, executor of the estate of Elizabeth Thompson Stuart, to obtain a construction of the second paragraph of the will, which was as follows:

“After all my just debts are paid, I give and bequeath all of my property, whether real or personal, to my husband, James William Stuart, and after he is done with same, all property whether real or personal to. be divided equally among our children.”

The question was what interest the husband and the children took respectively in the real estate and personalty thus disposed of. The case came on appeal to the Court of Appeals, which held:

It appears that during the life time of the deceased> her husband acquired six dwelling houses, four of which were held in his wife’s name for convenience, and that he used them as if they were his own. Considering the circumstances, it seems that the intent of the testatrix must have been to convey him to go on as he did before she died. By 1102 GC., every devise of lands shall convey all of the estate of the devisor which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.

It is a settled rule that where the language of a will introduces a doubt as to the kind of estate devised by the will, the doubt will be resolved in favor of a fee simple. Prom the language of a will, it does not clearly appear that the devisor intended to convey a less estate than that of fee simple to the husband.' This court holds that the testatrix intended to devise to the husband all of her real estate in fee simple, and to bequeath all of her personal property absolutely.