92 W. Va. 663 | W. Va. | 1923
Plaintiff, who is the widow of Thomas Blake, deceased, and a residuary legatee under his will, brought this suit against the decedent’s administrator with the will annexed and his four children, who are the remaining devisees and legatees under the will, to recover the legacy bequeathed to her. A demurrer to the bill was overruled. Defendants filed a joint and separate answer; the cause was heard on bill and answer and the court decreed in favor of plaintiff. The defendants appealed.
The testator in the first clause directed that all his just debts and funeral expenses be fully paid. By the second and last clause he gave a farm to each of his children in fee. Then follows the following provision: “I also bequeath and devise to my beloved wife Huida A. Blake all of my property both real and personal situated in the village of Rosby’s Rock, consisting in houses and lots and household goods to have and to hold to her during her natural lifetime and at her demise I direct that the real estate in Rosby’s Rock shall be sold and the proceeds thereof be divided equally between my three daughters, and the household goods be equally distributed among my four children, three daughters and one son. I further give and bequeath to my wife Huida A. Blake all the resadue of my personal property consisting in money credits or bonds, to have and to hold to her for her own individual use during her lifetime, and at her demise after paying all Tie just d^bts and funeral expenses the resadue, if any, be left to be equally divided among my four children, it is also my will that my daughters Jennie D. Bonar, Sarah F. Lancaster and May A. Gorby each pay to my wife Huida A. Blake the sum of Fifty ($50) dollars per year and my son Thomas E. Blake pay her Sixty ($60) dollars per year during her natural lifetime as an annuity or rental for Her dower interest in the farms hereby devised to them these Sums to be paid 'to her my said wife in addition to the property left to her in the village of Rosbys Rock W. Va.”
There is no controversy about the property in Rosby’s Rock. The controversy relates solely to the personal estate in the administrator’s hands, consisting of moneys, notes and bonds. Plaintiff claims that this personal estate under the will is hers, or if not hers absolutely, that she has the right
We think this case may be easily distinguished from Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5, in which the testator gave his wife his estate, real and personal, “for her own use during her natural life ”; in another provision he requested her “to administer all the estate for the benefit of herself and the heirs ’ ’ named in the will; by another; he provided that his grandson should “have everything, real or personal whatsoever what may be left”' and if he, the grandson, should die without leaving any child or children of his own, then “the estate left over shall be divided in equal shares between the first cousins of my widow, ’ ’ also named. In discussing the estate that the wife took under the will, Judge Poffenbarger says: “In express terms, her estate is defined
In that case no provision was made for payment of all tbe just debts of tbe legatee out of tbe property devised, as there is in the present case, nor is there in tbe present case any requirement that tbe wife shall administer the estate for the benefit of her four children. There is nothing said about its administration for the benefit of anybody. It is given to her for her own individual use, for life, with the right to contract debts which may be paid out of it. If there were no provision for the payment of all her just debts, then we would be constrained to hold that plaintiff’s interest would be limited to a life-estate and she would be entitled to the income only, but the fact that it is given to her for her own individual use, with her right to contract debts to be paid out of it, gives her absolute right to the corpus or principal, and that she may use it as her own.
In Cole v. Cole, 79 Va. 251, the will provided: ‘‘I give to my wife all my estate during her lifetime, and at her death half of the real estate and half of the personal property that may be on hands to do with as she may see proper, and the other half of my real estate and personal property to go to the heirs of my brother. ’ ’ The widow claimed only the personalty in absolute right; the court held that the words “that may be-on hands”, fairly construed, impliedly gave the wife the absolute disposal of the personal property at least, and the limitation over to the heirs of the brother is repugnant and void. The Virginia decisions in line with the Cole ease, notably Farish v. Wayman, 91 Va. 430, 21 S. E. 810, and Rolley v. Rolley’s Ex’x, 109 Va. 449, 63 S. E. 988, are criti-
But little remains to be said. Defendants do not deny the allegation of the bill that there are no debts owing by the estate. It is tacitly admitted that the administrator has possession of the personal property which was devised to plaintiff. The remaining defense is that she is not, owing to her advanced years, fitted to take charge of and invest properly the personal estate and that to tax her energies with such a burden would result in harm to her rather than a benefit. Defendants’ counsel argue that this statement must be taken as true, since no replication was made to the answer, over-, looking the statement in the bill that plaintiff is of sound •mind and discreet conduct. But whether she be a good business woman, or not, makes no difference. Under the will the property belongs to her and she has a right to it. We will therefore affirm the decree.
Affirmed.