
    No. 405
    BUDD v. KLAISS et
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1512.
    Decided Feb. 2, 1925.
    1271. WILLS—A limitation over, on a fee simple devise, is void for repugnancy.
    Attorneys—Stahl and Price, Toledo, True & Crawford, Port Clinton, for Budd; George C. Bryce, Toledo, for Klaiss.
   YOUNG, J.

This case grows out of an action in petition brought in the Lucas common pleas, which necessitated a construction of the wording of the last will and testament of Joseph Klaiss, deceased. The common pleas rendered judgment in favor of the devisee, Christiana Klaiss. The case was taken up on appeal and the agreed statement of facts show that the wording in question was:

“I give and devise to my wife, Christiana Klaiss, all my property, real and personal, of every character whatsoever, absolutely.” This was followed by a clause which created a limitation over to three children at Christiana Klaiss’s death. Wm. Budd contended that by reason of this second item the wife was devised a life estate, and not a fee simple.

The court of Appeals held:

When by the terms of a will a fee is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted.  