137 Va. 502 | Va. | 1923
delivered the opinion of the court.
Rebecca H. Burton, a spinster of seventy-six years, made a will by which she gave to her natural son one dollar, and disposed of the residue of her estate as follows:
“After the payment of my debts and funeral expenses, and the above legacy of .one dollar, Í devise and bequeath all the rest and residue of my estate, of every kind and nature, to those who shall take care of me during my last days, whoever they may be.
“I cannot now name them by name, as I at this time have no home and will do the best I can to find a place to spend my last days, and it is to those who shall take care of me during my last days that I want the said residue of my estate to go in fee simple.”
The will bears date February 18, 1920. At that time she was staying at the home of the appellant, and was in normal health. On March 18, 1920, she went to the home of her sister in the neighborhood, to attend the funeral of her brother-in-law, and on March 21 she was taken suddenly ill and appellant was notified of the fact, and he and his wife went after her in an automobile and brought her to their home, where she died
“Your complainant is further advised, believes and charges that there is no person in existence who could claim properly to come under the provisions' of said paper, if- it should be construed to be as valid and legal will of the said Rebecca H. Burton.
“Your complainant, however, has heard and been advised that one, L. B. Bosserman, a resident of the city of Staunton, claims that the paper above named is a good and valid will, and that he is entitled under said paper to the entire estate of the said Rebecca H. Burton.
“Under this state of facts, your complainant is advised that he is entitled to come into a court of equity and have the court construe said paper and advise him as to how he shall administer and settle the estate of the said Rebecca H. Burton, dec’d.”
J. E. Burton, the illegitimate son of the testatrix, and appellant were made parties defendants, and filed their several answers in which they set forth their respective claims to the estate. Evidence was taken,
In the brief of counsel for the appellee, John E. Burton, it is said: “The two clear-cut and distinct grounds upon which our claims of invalidity is based are:
“First. That the will is so vague and uncertain that it must be declared null and void; and, further, that it does not satisfy the requirement of our statute requiring every part of a will to be in writing; and, second, that the evidence conclusively shows that it was not the purpose or intention of testatrix, either at the time the will was drawn or at any time thereafter, that appellant should become the beneficiary of her will.
“The learned court below did not pass upon the first question for the reason that the evidence demonstrated to its satisfaction that the second ground was so well taken that it was not necessary to pass on any other question.”
The will is not void for vagueness or uncertainty, nor because not wholly in writing. It is not essential to the validity of a will that a legatee or devisee shall be designated by name in the will. It is sufficient if he be so described therein as to be readily ascertained and identified by the aid of extrinsic evidence. The extrinsic evidence in such cases does not create the legatee or devisee, but simply points out the person de
“Nor is it essential that the testator have in mind the particular individual upon whom his bounty may fall. If he makes the particular object of his bequest ascertainable with certainty that will be sufficient.” Lear v. Manser, 114 Me. 342, 96 Atl. 240; Knowles v. Knowles, 132 Ga. 806, 65 S. E. 128.
In Dennis v. Holsapple, 148 Ind. 297, 47 N. E. 631, 46 L. R. A. 168, 62 Am. St. Rep. 526, 530, in speaking of a very similar bequest to that here under consideration, it is said: “It is true, as insisted, that it did not name any particular person as devisee, nor was there anyone at the time of its execution who occupied the status, or answered to the beneficiary therein described; still, however, it so designated the person whom the testatrix contemplated and intended should have the estate bequeathed, that he or she, by means thereof, at her death, could be clearly identified and ascertained by the aid of extraneous facts. It was at least in this respect sufficiently certain as to fall within the principle of the ancient maxim of the law, id certurn est quod cerium reddi potest.”
Lear v. Manser, supra, is on all fours with the case in judgment. In that case the testator devised and bequeathed all the residue of his estate “to my said executor in trust to be paid by him to such person or persons, or such institution, as shall care for me in my last sickness, such payment to be made to the person or persons, or institution, or any or all of them as may in the dis
See also 1 Redfield on Wills (4th ed.) 275.
In 28 R. C. L. 275, the law on this subject is stated as follows: “It is not necessary for a testator to give the full name or description of a legatee or devisee, in order to give effect to the bequest. It is sufficient if the beneficiary is designated with reasonable certainty; and in such a case the beneficiary may be identified by parol evidence of surrounding facts and circumstances. Such
In Summers v. Summers, 198 Ala. 50, 73 So. 401, L. R. A. 1917C, 597, a different conclusion was reached, but the only opinion delivered was that of the minority judge, whose whole argument is adverse to the conclusion of the majority, and it is said by the annotator in L. R. A. 1917C, supra, that the conclusion of the majority of the court is “not in accord with other eases involving a similar situation.”
Early v. Arnold, 119 Va. 500, 89 S. E. 900, is relied on by the appellees in support of the contention that the bequest in the case in judgment is too vague and uncertain to be enforced. In that case there was a devise to a son, with a remainder over, if he died without heirs, “to whoever has been his best friend.” The son made a will declaring that his uncle and aunt had been his best friends. The court held that the devise of the remainder over was void for uncertainty, that who had been the best friend of the son in his lifetime was not susceptible of proof, and that even the will of the son showed an inability on his part to discriminate between his uncle and his aunt. The case is not helpful in construing the will here in controversy.
Sims v. Sims, 94 Va. 584, 27 S. E. 436, 64 Am. St. Rep. 772, and Sprinkle v. Hayworth, 26 Gratt. (67 Va.) 384, are relied upon to support the proposition that every part of a will must.be in 'writing. That proposition is not disputed, but it has no application to the case in judgment. Every part of the will is in writing, and
Having determined that the will is not void for uncertainty, we pass to the inquiry whether there are any persons who answer the description of the residuary legatees given in the will.
The testatrix was seventy-six years of age, and had by her own labor and strict economy accumulated an estate of $1,800.00. She was in a normal condition of health and vigor for one of her years, but she had no home where she could expect the care and attention which her advancing years admonished her would soon be needed, and she had no near relatives who were in condition to provide the same for her except her natural son who lived in Kentucky. She had a maiden sister, Kate Burton, who was also advanced in years and practically without means; a brother, Wm. C. Burton, who lived at Parnassus, in Augusta county, who had a family of his own, but was not in condition to provide her a home; and a sister, Susan Alexander, the wife of J. W. Alexander, who lived in Augusta, but were both old and feeble and had contracted with a neighbor to give him their property in consideration of the fact that he would look after and care for them the residue of their lives. She also had two nephews living in West Virginia, one of whom had for some years provided a house at Parnassus for her and her sister Kate, at a nominal rent. From 1912 till the fall of 1919, .she and her sister Kate had lived together and had occupied this house. In October, 1919, she determined to “shake the dust of Virginia from her feet,” and go to Kentucky and make her home with her son. She accordingly packed
For a number of years prior to 1912 the testatrix and her sister Kate had made their home with their brother-in-law, William Y. Fauver, in the city of Staunton, and upon his death in 1912, they moved to the house at Parnassus hereinbefore mentioned. While in Staunton they lived next door to Mrs. Tribbett, and a very close intimacy subsisted between the two families. The testatrix became very much attached to Miss Blanche Tribbett, a daughter of the family, who afterwards married the appellant, L. B. Bosserman, in 1914. This, attachment continued during the life of the testatrix, and, after removal to Parnassus, the testatrix made the Bosserman home her headquarters whenever she came to Staunton, and when she started on her trip to Kentucky she left from the Bosserman home. The attachment was mutual and she was always cordially received as a welcome visitor. She called Mr. Bosserman Luther
“Well, we got the machine and went up after her— went up to see about her, and as soon as she saw me she said, ‘Oh, Blanche, I am so glad you have come,’ and caught hold of my hand and wouldn’t let loose of me while we were getting her ready. She said ‘please taka me with you,’ and kept begging me to take her. She wouldn’t let me loose long enough to put her wraps on because she was afraid I was not going to bring her*514 home with me. She said she wanted to come back with me to iny house.”
When, asked how they came back, Mrs. Bosserman says: “Well, we were in the back seat and I fixed her as comfortable as I could, kind of propped her up, and held her as good as I could in the machine and she stood the trip fine and talked all the way home, and every now and then she would say, T am so glad you all came for me; I am glad to get away from that place.’ ”
Mr. Bosserman’s statement on the subject was: “On Monday evening, March court, 1920,1 took my machine and my wife and we went down there and found the old lady in pretty bad shape. She was conscious and knew everything that was going on, and I says, ‘Miss Beck, do you want to go home with me, or what do you want to do?’ She says, ‘For God’s sake, Luther, take me away from this place.’ I gathered her up in my arms and carried her out and put her in the machine, and brought her home and called Dr. Parkins and got a nurse. She lapsed into unconsciousness that night and was never conscious any more ”
The evidence is replete with evidence that the testatrix had determined that her son’s family should not have any portion of her estate, and that she would never again attempt to live with any of her relations. It is also, clear that Bosserman and his wife had been very kind to her and had offered her a home with them. The probability that she “would spend the rest of her life in the home of Mr. L. B. Bosserman,” spoken of by her at the time her will was drawn, seems to have been confirmed by her subsequent conduct, and is not removed by the testimony as to the proposal made by Mrs. Miller or that declined by Mr. Ellis. There is serious conflict in the testimony as to the Miller proposal, and it is doubtful if the testatrix’s mental condition at the
Reversed.