Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-05-05
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
vIRcINlAM-PiLoT.
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
PEYToN v. PERK1NsoN.

PEYTON v. PERKINSON.
Supreme Court of Appeals of Virginia.
March Is. 1900.
A CLEARLY EXPRESSED INTEN-
TON IN ONE PART OF A WILL
DOES NOT YIELD TO A DOUBT
Full CONSTRUCTION OF AN
OTHER PART.
ITEM IN THIS WILL HELD NOT TO
DIMINISH ESTATE OF BENEFIT
CARRIES.
The court says:
The words used by the teStator in the
9th Item of his will are appropriate
words for creating an absolute estate
and are all that are necessary for that
purpose; and that provision of thew
must be construed as clearly giving to
VirginiuS r. Williams fee simple in
the lands devised by him. and an abso-
lutte estate III the personally bequeathed
him. unless the 18th Item" limits or
diminishes that interest.
The 18th item of David G. Williams
will. by which it is contendcd the tesla
tor cut down the absolute estate con-
fcrred upon his son. Virginius r. Will
liams, in the 9th item. to Il life estate,
upon his dying leaving his daughter.
Ellen G. Peyton. surviving him. is as
follows:
"lf any of my children should depart
this life leaving a child or children,
such child or children are to be enti-
tied to the father or mothers share,
under the provisions of this will"
Reading the 18th item of the will in
connection with the items or clauses
preceding. it is at least not clear that
the testator intended by the 18th item
to diminish or limit the absolute estate
conferred upon V. r. Williams by the
9th item of the will. and this being so
the result is the same as if It was clear
| that he did not intend to diminish or
| limit it,
The rule by which this is to be deter
mined is clearly stated by Buchanan,
j.. In Gdskin's U. Hutton, % Va. SOL. as
follows: Both in deeds and wills, If an
estate is conveyed or an interest given,
or benefit bestowed in one part OF an
| instrument. by clear. unambguous and
explicit words. such estate, interest, or
benefit is not diminished or destroyed
by words in another part of the instru-
| ment, unless the terms which diminish
or destroy the estate before given be
as cellar and decisive as the terms by
which 1t was created.
"A clearly expressed intention in one
| portion of the will is not to. yield to n
doubtful construction In any other por-
ton of the instrument
| we 90 not, however, rest the decision
reached in the case solely upon this
ground. We are of opinion that the
| testator intended by the 18th item of
| his will only to cover the period be-
| tween the execution of his will and his
| own death. and that this item or clause
should be interpreted as though 1t read :
IF any OF my children should depart
this life. before ! do or before my death,
| leaving a child or children. such child
or children are to be entitled to the
father or mothers share which here
| by give them and their heirs under the
| provisions of this WILL"
If this is not what was Intended by
the testator in the 18th Item OF his will,
| 1t cannot be explained why he took so
| much pains to use appropriate words
for creating an absolute estate in the
items or clauses of his will in which he
| makes provisions for his children, if by
the 18th item he intended to cut down
the estate conferred upon them respec-
| lively, from an absolute or fee simple
| estate to n life estate. should they die
at any time leaving a child or children
| surviving them.
We are, therefore. further of opinion
that Virginius r. Williams took under
the will OF his father. David G. Will
liams, n fee simple estate in the lands
devised him and arr absolute estate in
the personality bequeathed him; and
| this being the construction placed upon
| the will by the Circuit Court it's decreee
| must be affirmed.