87 Va. 300 | Va. | 1891
delivered the opinion of the court.
By the first clause of said will, the testator directs that a sale of all his personal property shall be made, and that his debts and funeral expenses shall be paid out of the proceeds thereof. The second, third and fourth clauses read as follows:
“ 2nd. After the payment of my debts and funeral expenses, I desire that the remainder of the proceeds from the sale of the personal parts of my estate be equally divided amongst my children and my wife, Mary Biedler.
“3rd. I give to my two sons, Henry W. Biedler and Morgan L. Biedler, my undivided half interest in the ridge tract of land known as ‘Little Meadows tract,* now owned by L. C. Koontz and myself; to be enjoyed by them forever.
“4th. All the rest of my estate, both real and personal, of what nature or kind soever it may be, not hereinbefore particularly disposed of, I desire shall be disposed of as the law directs.”
The argument for the aDpellants is that the devise of the testator’s undivided half interest in the “ Little Meadows tract,” in the third clause of his will, to his sons Henry W. Biedler and Morgan L. Biedler, is not a specific devise to them, but an advancement; and that, as in their view, the testator died intestate as to all the property mentioned in the fourth clause, the case falls within the provisions of section 2561, Code 1887, and that the said Henry W. Biedler and Morgan L. Biedler shall be required to bring these advancements into hotchpot,, if they wish to participate in the distribution of the other estate.
Section 2561 of the Code of Virginia reads thus: “ Where any descendant of a person dying intestate as to his estate, or
Now, do all these things concur in this case? Let us see. It is not pretended that Morgan Biedler died without a -will, but the appellants insist that inasmuch as he disposes of the . property embraced in the 4th clause “ as the law directs,” that this part of his property will pass according to the law of descents and not by devise, and that as to this portion of his property he died intestate. In other words, invoking the old rule which, since the statute of 3 and 4 "Will., IV, ch. 106, sec. 3, has ceased to have any practical value in England, and
This doctrine; however, that where the devise is to the testator’s heir, to take in the same manner as he would take as heir, he must be regarded as taking by descent and not by purchase, was probably adopted, says Mr. Minor, to prevent a confusion of the title by descent with the title by purchase, in feudal times, when such confusion would have affected the tenure of lands, and at a later period would have impaired the interests of creditors, certain of whom could charge with their debts lands descended but not devised, only applies, according to all the authorities, where the devisee is sole heir to the land devised; for, if he is only one of several co-heirs, although the very same share be given him as he would take by descent, he does not take it in the same way; for, as co-heir, he would take it in co-parcenary with his fellows, whereas, as devisee, ho would take it in severalty if it was devised to him alone; and if devised to him along with others he would take as joint tenant or tenant in common. In like manner a devise to several co-heirs is not within the doctrine, but is good, because, as devisees, they will take as joint tenants or tenants in common; whereas, as heirs, they will take as co-parceners. 2 Minor’s Inst., p. 1054; 3 Lom. Dig., marg. p. 106; 1 Jarman on Wills (Randolph & Talcott’s ed.), p. 195; Powell on Devises, 428.
Notwithstanding, therefore, the peculiar language used in this case, no rights of creditors being involved, it might well
These views show that the lower court has, in its decree, correctly construed the will of Morgan Biedler, deceased, and the decree appealed from must therefore be affirmed, and the cause must be remanded to be further proceeded in to final decree.
Lacy, J., concurred in the result.
Decree affirmed.