The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1877-12-27
The Jackson VIII Case.
WESTON, December ~

! this county, was decided to-day Dy jugs
John Blair Hoge, of the Berkeley Cir
cult.
The amount involved and the ques-
tions raised by the pleadlngs ELECTED the
sblest and most ingenious legal srgu-
ments ever made at this bar.
The points disputed grew out OF the
construction of the second item OF
the will of Major Jacob }. jackson,
which reads: 81 desire that my
home farm" This farm is near this
town, containing 1000 acres and now OF
great value, "on which l now reside,
whether held by one or more titles, shall
remain undivided until my youngest
child shall arrive at Il years OF age; that
during that time said farm is TO be
farmed for the support and maintenance
OF my wife and five children, for whom
no provision has been made, viz Mary
Elizabeth Miles, and in case OF her death
to her children, and to my four infant
children, George Washington, Margaret
Drusila, Cecilia Beverly and Jacob
William: my wife to have one-thlrd OF
said farm for life, or one-third OF Its
rents and profits, al her discretion, and
the use or rents and profits oI the re-
naming two-thirds 10 my said devlsees,
and If any surplus, to be used in i'm
proving said farm. AT the time my SAID
Youngest child shall arrive at the age OF
Il wears, said farm is TO be owned and
held, either jointly or separately, by my
said FIVE children, and in case OF the
Death of any of them, his or Ler share
shall pass TO his or her hears, IN the same
manner it would under the law without
this devise"
This will was made in 1859. -Four
days after making the will, the testator
died. In 1861 Mrs Miles died leaving
two children. In 1868 Jacob William,
the youngest child, died an infant and
without issue. In 1871 Margaret Dru-
siiia inter-married with Robert K. Bush,
and on the 10Th day Of April, 1872, she
died IN childbirth, an infant and without
issue surviving her, and before the
youngest child of the tes.ator (who waa
then Cecilia Bevorlyl, arrived at2l years
of age.
Alter the youngest child became OF
age, VIZ: on the Doth day of May, 1875,
Robert E. Bush brought suit for one
fifth of said farm, his wife's original
share, and two-ninths of the share OF
| Jacob William, which descended TO her
on his death, making together 244 acres.
Bush claimed in his bill, this land, both
| by the will OF the testator and the statute
OF descents, us contained in the Code OF
West Virginia, which will be seen pro-
| : la lap1 n.
testste and without issue, the land shall
90 to the bust and. In 1878 the Legisla-
ture o, this State repealed this provision
of the Code, and gave the land OF one so
dying, as IN this case. to the mother.
! brothers and sisters.
In the argument of the case VIM. Il.
Arnold, Esq, ,nd Judge Matthew Edmis.
| tor Tor Bush, maintained that upon the
death of MsjCr jackson, the devlsor, the
land in the hGmo farm rested in the said
! We cnildren; that upon the death OF
any ot the five, and such as has
! happened in this case, the interest
or share of that one dying went from
that one 10 the heirs of that one accord
| ing to the laws IN force a. the time OF
such ones death. That when Margaret
| DTusiLia died, sl her estate, whether
vested or contingent, in the said tarm,
went to her husband, Robert +. Bush
that if her child had been then living, IL
would have gone to the child; that the
child being dead, the statute OF descents
gave it to Bush, her husband; and that
the word heirs, as used by the testator,
in case of Margaret Drusllla's death, to
whom he gave the estate, was used by
him IN its legal, original and primary
sense, and must be so construed.
The defendants, by their counsel,
Judge Edwin Maxwell, Mr. George Ben
nett, Henry Brsnuon and j. M. Ben
netts contended that. no estate UeSted III
the five children on the death of the tes-
tstor-that the devise to the five chill
dren was executor that the word
| heirs meant brothers and sisters of Jacob
William and Margaret Drusills at the
time of their deaths, end that
| their interests In said home
farm went to their brothers and
sisters under the law as it
was at the time of the death OF Major
Jackson, or as it now Is, and as 1t was,
when the youngest child became of age
in 1875 when the law under which Bush
claimed on the death of his wife I0aS re-
pealed They claimed that not until
then did the estate ever veSt, and not ur-
til then, had Margaret Drusils lived,
would she have hal any right to said
home farm. The teststor appoint
ed j. NJ. Bennett executor with
| NJ hat
they conteu del the title of the farm was in
| Bennett, the executor or trustee, and no
estate in the land could vest in the five
children until the time for division came,
and the youngest child arrived at Il
years o. age.
The reioi1der OF Bush's counsel, backed
by numerous authorities, sustained the
proportion that the estate in the home
farm on the death of the teststor, vested
in the five children, Subject, of course,
TO the lite estate of the widow and the
chsttle interest of the trustee, Bennett
that when Margaret Drusllla died, on
the 26th day OF April 1872, her one-flth
of the home farm and two ninths which
she inherited from her brother Jacob
William of his one-ifth of the home
farm, passed and descended from her by
the will and by the statute Of descents
then IN force, to Robert Z. Bush, her
husband and her heir, ana that no sub
sequent repeal of the statute o. descents
could effect his right to said estate.
Judge Hoge, after delivering 81 able
and elegant review of the case and the
authorities cited on both sides, rendered
decision giving the land to Robert +.
Bush.
As this is case where, by change in
the statute OF descents, al estate ls given
to one not contemplated by the teststor
al the time OF making his will, l conclud.
ed to report it for publication, thst it
might be preserved for future reference
o. P. O.
Inspector Wilson, Of Wheeling, Rsiu
| stated.