124 Va. 548 | Va. | 1919
delivered the opinion of the court.
“Fourth—Upon the majority of my youngest child, my wife being alive and unmarried, I direct one-third of the net annual income from my entire estate, comprising that mentioned in the third as well as in the second clause hereof, to be paid over to my wife, as long as she lives, and remains my widow, and the remaining two thirds to be divided equally between my surviving children and the descendants per stirpes of such as may be dead leaving descendants.
“Fifth—Upon the death of my wife, or her marriage, my youngest child living being of age, I direct my entire estate to go to and be divided equally between my children then living and the descendants per stirpes of such as may be then dead with issue surviving.”
After accepting the provision of the will and enjoying the benefit thereof for a period of seven years, the widow executed, acknowledged and caused to be recorded the following paper:
“Know all men by these presents, That I, Ellen B. Rixey, widow of the late John F. Rixey, deceased, for reasons satisfactory to myself and which are known to my children, do hereby forever renounce and disclaim all my life estate in the estate of the said John F. Rixey, deceased, and all right, title and interest of whatsoever nature therein given to me by the provisions of the will of my late husband, the said John F. Rixey, which is of probate in the clerk’s office of the Cidcuit Court of Culpeper, Virginia. And I do renounce and disclaim all right, title and interest of whatsoever nature to which I am now entitled in said estate, whether under the said will or by way of dower or widow’s portion. I do hereby bind myself and declare that I will not accept, either at present or in the future, from the executors, their successors or assigns, any portion of the income of said
“In witness whereof, I hereunto set my hand and seal this ninth day of June, 1916.
ELLEN B. RIXEY (SEAL)
In McReynolds v. Counts, 9 Gratt, 242, the testator gave a tract of land to his wife for life with remainder in fee to his son, Isaac. He directed his personal estate to be divided into eight equal shares, one of which he gave to each of his seven living children, and the other to a child of a deceased
. Quite a number of such cases have come before the Supreme Court of Pennsylvania, some of which have been hereinbefore cited in another connection, but they all recognize the rule that the application of the doctrine must be in furtherance of the intention of the testator, and never in contravention thereof. Many of these cases were brought under review by that court in 1917 in the case of In re Disston’s Estate, 257 Pa. 587, 101 Atl. 804, L. R. A. 1918B, 62. In that case there was a life estate to the wife, with remainder after her death to the testator’s children, or if any of the children were dead leaving issue, the parent’s share was to go to such issue. If no issue, to certain nephews and nieces or their issue. The court regarded the gift over to the issue of the children or to the nephews and nieces as substitutionary. Referring to other cases, it said, among other things, that the fact that alternate remainders may be provided for in the event of the decease of such children in the life time of the widow, will not take a case out of the general rule, if on a view of the whole will or the particular part in question, such alternate remainders appear to be merely secondary or substitutionary in character. It was conceded all through the opinion, however, that if the intention of the testator can be gathered from the will, it must prevail, and, considering the facts of the particular
It was said, however, in the course of the opinion “Of course an intent that there shall be no acceleration may be shown by inevitable implications,” and among other instances given is “Where the contingency upon which the remaindermen are to take is such, that in the nature of things the person entitled can be ascertained only by the physical death of the widow.”
The same view was taken in Schulz’s Estate, 113 Mich., 592, 71 N. W. 1079, where there was a substitutionary provision. The holding is based on Woodburn’s Estate, 151 Pa. 587, 25 Atl. 145; Coover’s Appeal, 74 Pa. 143, and Small v. Marbury, 77 Md. 11, 25 Atl. 920.
There have been similar holdings in Maryland (Small v. Marbury, supra; Randall v. Randall, 85 Md. 430, 37 Atl.
The case of Blackford v. Newberry, 99 Ill., 11, involved a large estate and was most elaborately argued, and carefully considered. The testator gave his wife an estate for her life and provided that immediately after the decease of his wife, the trustees mentioned in the will should divide his estate into two equal shares and at once proceeded to distribute one of such shares among “the lawful surviving descendants of my own brothers and sisters, such descendants taking per stirpes and not per capita,” and the other to a public library. The widow renounced the will and took the provision made for her by the statute. During the lifetime of the widow, the then living descendants of the brothers and sisters, claiming that the renunciation of the widow was equivalent to her death, insisted that there should be acceleration of the enjoyment of their estates. The court said: “the question for determination is, can there be now, during the lifetime of Mrs. Newberry, a legal division of the estate, by the trustees, one half to the descendants of the tes
Further, “this doctrine of acceleration, however, is not an arbitrary one, but is founded on the presumed intention -of the testator that the remainderman should take on the failure of the previous estate, notwithstanding the prior do-nee may be still alive, and is applied in promotion of the presumed intention of the testator and not in the defeat of his intention. And when it is the evident intention of the testator that the remainder should not take effect till the expiration of the life of the prior donee, the remainder will not be accelerated.”
Three of the eight judges sitting in this case dissented, but the conclusion of the majority of the court seems to be approved in Slocum v. Hagaman, 196 Ill., 533, 539, 52 N. E. 332. In the latter case, there was a substitutionary gift, and the renunciation of the wife was held, under the circumstances, to be equivalent to her death, and acceleration was accorded in favor of those designated to take after the death of the wife.
In Augustus v. Seabolt, 3 Metc. (Ky.) 155, there was a gift of property to a wife for life, with remainder to the children of the testator’s brother, “or such of them as may he living at the time of her death.” The will also provided
“Here the estate in remainder is limited to take effect upon the happening of a certain event, that is the death of the widow; but it is limited to such of the children of the brothers designated, as shall be living at her death. Whether any of such class will be then alive, or if so, how many, is of course uncertain, and cannot be known until the event occurs.” The court refused to accelerate the enjoyment of the estate by the brother’s children, because it regarded their estates as contingent until the death of the widow.
In Brandenburg v. Thorndike, 139 Mass. 102, 28 N. E. 575, there was a gift to the wife for life, and upon her death “one share to each of my following nieces and nephew then surviving,” (naming them) and “one share to the issue of each of said nieces and nephew then deceased, and leaving issue then surviving, according to their right of representation.” The widow renounced the will and the nieces and nephew sought acceleration, but the court said “We must construe the bequest in favor of the nieces and nephew in the same manner as if the widow had accepted the provisions of the will. Referring to this bequest, it is clear that it cannot, now be determined who will take under it. It is a bequest to the nieces and nephew ‘then surviving,’ and to the issue of each niece and nephew ‘then deceased leaving issue then surviving.’. It cannot be known that any of the
To the same effect is Lovell v. Charlestown, 66 N. H. 584, 32 Atl. 160. We have examined many more cases from other States, but-those cited are sufficient to show the trend of the decisions in other jurisdictions.
In Poythress v. Harrison, 1 Pat. & H. 197, a testator devised to his wife for life all his property, and at her death to certain devisees upon the condition that said devisees should raise the sum of one thousand dollars to be paid at the death of said testator’s wife to Thos. P. Harrison, and in the event of his death before the said life tenant, the said sum was to be paid to his sister. Soon after the said will was probated, the widow renounced the provision made for her in the said will. Thereafter the said' Thos. P. Harrison instituted suit to recover the said one thousand dollars, claiming the same by reason of the renunciation of the widow, who was still living.
The court denied Harrison the right to recover the said legacy of. one thousand dollars for two reasons: “First, because the said legacy was not payable to him until after the death of Mrs. Poythress, the testator’s widow, although she had renounced the provisions made for her in her husband’s will; and, secondly, because the legacy, until after the death of Mrs. Poythress, was contingent, and if the appellee had died in her life-time, it would have been payable to his sister.”
The decree of the circuit court will, therefore, be affirmed
Affirmed.