Estate of Fitzgerald

THE PACTS.

Petitioner is the only child and heir at law of the deceased. She had not, at the time of the death of deceased, and has not, any heirs of her body.

Deceased left a will, of which the part pertinent to this inquiry is as follows:

By her petition for partial distribution, which affects one of the two parcels of real property belonging to the estate, petitioner asks the court to adjudge that the foregoing provision is in effect an absolute devise, and, to that end, to hold that the remainders therein created are void.

The executor and the parties represented by Mr. Carson insist upon the entire validity of the will.

SUMMARY OP PETITIONER’S ARGUMENTS.

Petitioner’s arguments may be summarized as follows:

*174 THE FIRST POINT

involves the construction of the words “my heirs then surviving,” as used in the foregoing provision. Petitioner contends that no such remaindermen do or can exist, for the reason that, she being testatrix’s heir, no one of remoter degree of kinship can be her heir.

It is impossible to deny the force of this construction, provided the word “heirs” be technically construed and the testatrix’s manifest intention ignored, for it is manifest from…