Stubbs v. Stubbs

Stubbs v. Stubbs and others

Stubbs v. Stubbs, 30 Tenn. 43 (1850)

Court: Tennessee Supreme Court · State Highest Courts
Decided: September 15, 1850
Judges: McKinney
Citations: 30 Tenn. 43
Disposition: The widow appealed.

Cited by 0

Headnotes

'Stubba devised to his son George, a tract of land and a negro man and directed that at the death of the son, the said property “ should be divided equally amongst his children.” The word children is a word o? purchase and not of limitation, unless connected with other words so as to show an intention to control its meaning and limit the estate.

Summary

Jesse Stubbs died in the county of Roane, in 1822 ; haying made his last will. In that will he devised a negro man and the tract of land on which he resided at the time of his death to his son George, and directed that at the death of his son George it should be “ equally divided amongst his children.” George died intestate in 1844, leaving many children. They petitioned in the circuit court of Roane, for a sale of the real estate with a Anew to a just division of the proceeds. The widow of George filed her petition asking for dower. It was ordered by the court that the petition for sale and dower be heard together, and on the hearing it was determined by the presiding judge that by the terms of the will the children took the estate at the death of their father, the petition for dower was dismissed, and the sale of the lands for division decreed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — McKinney

Text extracted by OCR from a scanned original; check the original for exact wording.

McKinney J.,

delivered the opinion of the court.

This was a petition for Dower in the Circuit Court of Roane.

The only question in the cause arises upon the following clause in the last will and testament of Jesse Stubbs, deceased.

“ Fourthly, at my wife’s decease, I give to my loving son, *44 George Stubbs, all the parcel or tract of land I now live on, together with my negro man Abraham; and, at his decease, the property, to-wit; the land and negro man, to be divided equally amongst his children.”

George Stubbs, the tenant for life, died: and, upon the assumption that, by operation of the rule in Shelly’s case, he took an absolute estate in the tract of land mentioned in the foregoing devise, his widow brought this petition to have dower of the same.

This assumption is wholly erroneous. The word “children” is properly a word of purchase, and not of limitation; and is invariably so construed, unless it be used in such connection, or be so controlled by other words, as to show clearly that it was intented as a word of limitation. There is nothing in the present case to control the appropriate and technical meaning of the word children. Kay vs. Conner, 8 Hum. 633 .

The petition, therefore, was properly dismissed, and the decree will be affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 0 cases

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