Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1896-02-04
INTERESTING DECISION.

INTERESTING DECISION.
In the Court of Appeals on Thursday
Judge Buchanan rendered the decision
in the case of Chesapeake and Ohio
Railway Company against American
and Exchange Bank, from Circuit Court
of Lynchburg.
In this case the plaintiff brought suit
for damages alleged to have been done
to horses shipped in 1890 by G. II. Con-
rad, of Danville, through gross neglect
of the railroad company in failing to
have the stock properly fed and water
ed. Some of the stock died, it is alleged,
from such neglect, and one was killed
in unloading. Suit WIS brought and
the plaintiff got verdict. Defendant
pleaded that the stock was shipped at
RI duo / rate on ondition that plaint-
iff would, at his oW risk, load and un-
load, feed and water his stock. While
this, says the Court of Appeals, may
have been binding contract, it was,
nevertheless, the duty of the railroad
70 provide suitable and safe facilities
for loading and unloading, and also for
| watering and feeding the stock while
being carried over its line. The court
below is affirmed.
The opinion in the will case of Gas-
kin and others against Kunton was
very interesting one. 1t was prepared
by Judge Buchanan. The decision de-
pended upon the proper construction OF
The provisions of the will of William
Hunton, deceased, which stipulated
that one piece of land should be equal
ly divided between two of his sons, and
that certain city property in New Bal
timore should be divided between two
other sons, etc., and that after these di
visions, and a certain apportionment to
Mildl ID Jane Hunton, daughter of the
deceased, the residue of the property
be equally divided among the four sons
and one daughter of the deceased. The
will further provides, however, that if
either should die before the division, or
without an heir, the estate of such an
one should be equally divided among
the living children.
The opinion states that two of the
sons and the daughter died without is
sue, and that one of the other sons died
leaving children. The contention of
the appellee was that the four sons and
the daughter took fee simple estate
in the lands, and an absolute estate in
the personally bequeathed, while the ap-
pellants contended that the whole estate
was taken subject to what may be
called the residuary clause Of the will.
The words used by the testator in
that portion of his will in which the
general or principal distribution of his
estate was made were appropriate
words for creating an absolute estate,
and all that were necessary for that
purpose. By the subsequent provision
of the will the testator directed what
must be done with the residue.
The court discusses the feature of
the instrument es follows: "This pro.
vision of the will does not say that if
either of the children should die before
the division or distribution provided
for in the will, then his share should
be divided among the other children;
but it says after the above mentioned
| divisions and distributions are made
the residue of the estate is to be divid-
ed equally between them within year
after the testator's death; but if either
should die before the division, then
his share should go to the surviving
children. The division referred to
must mean the division of the residue
of his estate provided for in this por-
ton of his will, and the limitations
contained in that provision only apply
to the residue of the estate disposed of
Dy it. This, we think, is the natural
and proper construction of the resid-
uary clause or portion of the will. At
| least, it is not clear that the testator
intended by this latter provision of his
will to diminish or limit the absolute
estate created by the former provision,
and this being SO, the result is the same
as if it was clear that he did not intend
to limit or diminish it.
eve ere of the opinion, therefore,
that each of the children of William
Hunton, deceased, took under his will
fee.simple estate in the lands devised
them, and an absolute estate in the per-
sonal property bequeathed them, ex-
cept in the property devised and be-
queathed them in the residuary pro-
vision of his will-in which last prop
erty they took an estate subject to be
defeated by the death of either before
the division provided for in that clause
had been made, or in the eve It of
either dying without ISSUE" The con-
stl uction placed upon the will by the
Circuit Court of Fauquier was therefore
affirmed.