61 W. Va. 488 | W. Va. | 1907
This case has been several times before this Court, upon appeals prosecuted by one or more of the parties from decrees of the circuit court. A clear understanding of the entire case may be obtained by referring to the published decisions of this Court on those appeals, beginning with 34 W. Va. 240. This is an appeal by John D. Pickens, a brother of Dever Pickens, and by May Pickens Davisson, his niece and a daughter of his deceased brother Alexander H. Pickens, co-devisees with others under the will of the late James Pickens, from the decree of the circuit court pronounced on the 23rd day of February, 1905. Other appeals from this decree have heretofore been disposed of as follows: The first by A. Gr. Dayton and others, decided March 13, 1906; the second by Susan C. Dent, the plaintiff, decided at the present term of court on the 26th day of January, 1907, and not officially reported. The present appellant John D. Pickens was a co-petitioner with A. G-. Dayton and others in the first appeal from said decree; but as that appeal was limited by the order of this Court awarding it to certain specified matters assigned as errors in said decree, the present appellants were, by an order of this Court of March 6, 1906, as modified by a subsequent order of March 8, 1906, on their joint petition allowed an appeal from so much of said decree as adjudged that by said will an estate in fee simple indefeasible became vested in said Dever Pickens in the 396M acres devised to him, and adjudging the same to be
The point is made in the brief of- counsel for the appellee that she is not before this Court upon any process issued or served upon her, or upon any appearance by her to this appeal, and that, to save her rights in respect thereto if necessary, she appears here only for the purpose of taking advantage thereof. What the necessity here suggested is we do not quite comprehend. If by this saving it is meant to save this point onty in the event of a decision adverse to her, we do not think the point should prevail. Notwithstanding this point, counsel has proceeded to discuss the case on its merits, in quite an able and elaborate brief. We find, however, by reference to the papers in the cause in the clerk’s office of this Court, that as a matter of fact no process regularly issued upon this appeal. We do find, however, that copies of the order allowing the appeal were mailed at their request to counsel in the case; and it seems to
Counsel for the plaintiff, in one of the briefs filed, makes the point that the appellants, having failed to answer the third amended bill'or to make any motion in the court below to correct the errors now complained of, have, by section 6, chapter 134, Code, no standing in this Court upon this appeal. The record will show that the original bill did not put in issue the quality of the estate of Dever Pickens in the 396 24 acres. In the first amended bill the plaintiff charged that his interest in said 3962Í acres under the will of his father was a defeasible estate, and that the same was wholly insufficient to pay the plaintiff’s judgment. In the second amended bill the plaintiff re-affirmed in extenso all the material allegations of her original and first amended bills. The prayer of this second amended bill, among other things, was that his interest in the real estate therein mentioned might be ascertained and subjected to the plaintiff’s judgment and execution. In the third or last amended bill the plaintiff has taken a different position with respect to the quality of said estate. After setting out the provisions of said will devising said land to said Dever Pickens and the limitations thereon, the plaintiff charges that the said Dever Pickens, having survived the testator and now having lawful issue living — namely, the defendants Coburn Pickens aud Paul Pickens, born of his marriage with the defendant Minnie Coburn Pickens — has an absolute estate in fee simple in said land, and that his estate therein became such upon the death of his said testator; and the prayer of this bill, among other things, is that the said will in respect to such estate therein devised to him may be judicially construed and said estate determined. The answer which the appellants’ counsel makes to this point in the brief of counsel for the appellee- is,
We are not referred by counsel for either of the parties to any authority upon this important question of practice. In the case of Gates v. Cragg, 11 W. Va. 300, this Court corrected an error made by the court below in a decree subsequent to the issuing of the rule on overruling defendant’s demurrer, and in default of answer, without any previous motion being made in the court below to correct such error; but, as noted in the case of Watson v. Wiggington, 28 W. Va. 533, 554, this error was clearly independent of those resulting merely from giving effect to the order overruling the demurrer. The case of Gates v. Cragg seems not to have been called to the attention of the Court in Steenrod v. Railroad Co., 25 W. Va. 133. In the latter case it was held that a demurrer is an affirmative admission of the allegations of the bill — itself a confession that, if facts alleged in the bill entitle the plaintiff in lavr and equity to the relief prayed for', then such relief may be given, and, in order to avoid the effect of this admission, it is imperative that a plea or answer denying or avoiding those allegations be filed, before a decree on its merits is entertained, and that when in such cases the demurrer is overruled the bill stands in the court overruling .it precisely as ’ if no demurrer had been entered, and that a subsequent decree' is necessarily on bill taken for confessed as it originally stood at rules, and an order entered before the demurrer was filed and over
After further commenting upon Steenrod v. Railroad Co., and discussing some authorities which hold that, although the principles of the cause may be settled by the overruling of the demurrer to the bill, an appeal therefrom can not be taken until after a decree has been entered carrying into effect these principles, Judge Green, says (page 554): “The truth is, this Court in Gates v. Cragg failed to note the distinction, which is well pointed out by this Court in the case of Steenrod v. Railroad Co., between the cases where the errors complained of by the defendant in his appeal are errors necessarily resulting from the decree erroneously overruling the defendants demurrer, and the cases where the errors complained of by the appellant, the defendant, include also other errors independent of those resulting from such order overruling the defendant’s demurrer. There is to my mind after duly considering the subject a clear distinction between the two cases. In the one the only error complained of in the final decree is an error necessarily resulting from the court’s correctly carrying into effect a previous interlocutory order settling the principles of a cause and erroneously overruling the defendant’s demurrer to the bill; such final decree, though no answer had been filed, not being a decree on a bill taken for confessed, but really simply a decree on the previous interlocutory order. From such a final decree an appeal lies, though no previous motion has been made in the court below to correct the errors in it. In the other case the appellant complains not only of the error committed in such interlocutory order, but also of errors in the subsequent final decree, which errors are independent of those resulting merely from giving effect to an erroneous order overruling a demurrer to a bill. Such a final decree as this is, where no answer has been filed, a decree on a bill taken for confessed, and therefore a decree, which can not be appealed from, till after a motion has been made in the court below to correct such errors.” Referring to the first point of the syllabus of this case for a more succinct statement of the conclusion of Judge Green under the facts
Measured by these rules, what is the position of the appellants here? Does the error in the final decree complained of necessarily arise from the error in the decree overriding defendants’ demurrer? If so, under these authorities the appeal lies without motion first made in the court below to correct the error; otherwise not. The question is a close one; but when we consider the facts in this case in connection with the pleadings, we think that the case is within the rule authorizing appeals without previous motion to correct the error under section 6, chapter 134, Code. It will bo observed that the appellants are in nowise interested in this litigation, except in so far as it is the purpose, in construing the will of James Pickens, to estop them from hereafter asserting, as against the plaintiff and the prospective purchaser of the land devised to Dever Pickens by the will of his father, a different construction thereof. If, as the second amended bill of the plaintiff charged, Dever Pickens took by this will a defeasible estate,- and not an estate in fee simple indefeasible as charged in the third amended bill, these appellants would have no interest in the subjects of controversy. These appellants were not parties to the original suit, nor to the first and second amended bills. They were brought in on the third amended bill, for the one purpose of having determined the estate of Dever Pickens in the tract of land to be sold. This last bill pleaded the terms and provisions of the will relating to the devise to Dever Pickens, with the limiting clause thereof, which will be hereafter more particularly referred to; and the bill then undertook, by way of conclusion from the facts pleaded in relation to said will, to charge, contrary to the allegations of the second amended bill, that Dever Pickens took by said will a fee simple estate indefeasible. This question rested substantially upon the provisions of the
The only other question presented upon this appeal is: What estate in the tract of 39624 acres of land proceeded against did Never Pickens take by the will of his father, James Pickens? The appeal which was allowed upon the petition of. the appellants confined the same to this sole and single question. The question is a legal one, presented by the testamentary document itself— coupled of course with the date of the death of the testator, the subjects and.objects of his bounty, as presented by the record.
James Pickens died testate January 22, 188Y. His will was dated December 8, 1884, and was probated in the clerk’s office of the county court of Barbour county March 1, 188Y, He left a widow, Ann Mariah Pickens,- to whom he devised his household and kitchen furniture and the sum of $5000 in money, in full satisfaction of her distributive share of his personal estate, and provided that she was to retain dower
In the third item he says: “ Having heretofore given and advanced to my son, John I). Pickens, the sum of six thous- and dollars, for wlrich I hold his receipt, and also the sum of thirty eight hundred and fifty eight dollars and sixty four cents, being the balance due to me from him on his obligation for four thousand one hundred and twelve dollars, dated the 20th day of September, 1878, I hereby release him from all liability to me for the sum of $6000 and $3858.64, and in addition thereto I devise to him all that certain tract of land conveyed to me by Simon White, containing 73 and 3-4 acres, which I charge and estimate to him at the price of twenty five hundred and fifty-five dollars, making in all the sum of $12,413.64.”
In the fourth item he charges his daughter, Rachel Margaret Pickens, the wife of Nathan D. Boring, with the sum of $6000 in money and $6000 in land, with which “she shall be charged in the final settlement of my estate,” aggregating the sum of $12,000. He then proceeds by the fifth, sixth, seventh, eighth, ninth and tenth items to make specific devises of lands: to his grandchildren May Pickens and Albert Pickens, the children of his deceased son Alexander H. Pickens, 295 acres; to his daughter Jennie Pickens, 238 acres; to his daughter Mollie Pickens, 284 1-2 acres; to his daughter Emma Pickens, wife of Samuel Walker, four several tracts, and finally by the tenth item, to his said son Dever Pickens the 396 3-4 acres involved in this suit. Item 10 of said will, omitting the descriptive boundaries, is as follows: “To my son, Dever Pickens, I devise one tract of land'con-
He then proceeds by the eleventh item to impose a limitation upon the estates thus devised, as follows: “All of the lands hereinbefore devised to my said children and to my said grandchildren, May Pickens and Albert Pickens, except the tract of 13 and 3-4 acres of land hereinbefore devised to my son, John D. Pickens, are to be taken and held by them subject to the following limitation — that is to say, that if any of my said children or grandchildren hereinbefore mentioned shall die without children, or the lawful issue of such children, living at the time of his or her death, or born within ten months thereafter, then in that case the land herein devised to each child or grandchild so dying without such children, or the lawful issue of such children, living at the time of his or her death, or born within ten months thereafter, shall descend to each of my surviving children, and to the lawful issue of my deceased children and grandchildren, the descendants of each of my deceased children and grandchildren taking the portion which my deceased child or grandchild would have taken if living at the time of such death.”
As bearing upon the proper construction to be given to this will, the twelfth, thirteenth and fourteenth items are pertinent; they are as follows: “Item Twelfth: After the payment of all my debts and funeral expenses, including the costs of suitable monuments to mark the graves of myself and my said wife, and the charges of administration of my said estate and after the payment of the legacy of five thous- and dollars and of the delivery of the property hereinbefore specifically bequeathed to my wife, Ann Mariah Pickens, I direct my executors hereinafter named out of the residue of my personal estate to pay to my said children and grandchildren such sums of monej^ as with the value of the lands
The proper construction of this will, and the solving of the issue thus presented, depend upon the time to which, by the provisions of the will and the rules of law applicable thereto, the words of survivorship in the will shall be referred — whether to the date of the death of the testator, or the date of the death of the first devisee before or after the death of the devisor. The decree of the court below seems to have been based, in part at least, upon the fact .that there were born to Dever Pickens after the death of ' the testator two children, ivho are still living, an event happening after the death of the testator. It is argued by counsel for the appellee, as a general rule of construction, that whenever there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and if such devisee survive the testator lie takes an absolute fee; that the words do not create a remainder over to take effect on the death of the devisee at any time, nor an executory devise, but are merely substitutionary and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the testator’s death. It is further contended by them that this construction is uniformly adopted, unless there is some language in the will indicative of a different intention on the part of the testator. We are referred by counsel for this rule to In re N. Y. L. & W. Ry. Co., 105 N. Y. 89, opinion by Rapallo, Judge, and to two Virginia cases as binding upon us — namely, Hansford v. Elliott, 9 Leigh 78, and Martin v. Kirby, 11 Grat. 67. In the case of Martin v. Kirby, cited, Judge Lee says: “What
It would serve no good purpose to refer by way of criticism to these Virginia cases, but it may be confidently asserted that their authority has been very much shaken by the later case of Cheatham v. Gower, 94 Va. 386. One judge, Keith, President, dissented. The provision of the will involved in that case was: “I give to my nephew, T. M. Cheatham, during his life my mansion house, and at his death to his surviving children. My money and bonds I wish to be equally divided between L. L. Lester’s and T. M. Cheatham’s children. All the balance of my estate, both real and personal, I wish to be equally divided betweemT. M. Cheatham’s and L. L. Lester’s children.” And it was held that the remainder, after the termination of the life estate created by the first clause, passed to the children of T. M. Cheatham at his death, whether being in the testator’s lifetime or not, but the estates given by the other two clauses of the will passed to the children of Lester and Cheatham living at the death of the testator. The court, discussing the case, referring to the other Virginia cases cited by counsel, said: “In the case at bar the word ‘surviving’ is not used by the testatrix except in the first clause of her will, and had she intended that only the children of T. M. Cheat-ham who were living at her death should take under that clause, it would seem reasonable to suppose that she would have used such words as would show beyond question what she meant, and not such as she does use, which by their common and ordinary meaning, in the sense in which they would be understood by persons of common understanding, mean that only such children of T. M-. Cheatham as might be living at his death were to take an interest in the property.” It will appear from an inspection of these Virginia authori
Inasmuch as the Virginia court in Cheatham v. Gower, supra, did not feel itself bound by the prior decisions of Hansford v. Elliott and Martin v. Kirby, neither do we feel bound thereby to adhere to the ancient rule, which is now opposed to the weight of authority; and in Schaeffer v. Schaeffer, 54 W. Va. 681, though the point is there only mooted, yet Judge Braknon, who anticipated the adoption by us of the better and more modern rule of construction, referring to the rule of Martin v. Kirby, says: “Speaking for myself, I am at present ready to say that the rule is not sound. Once it was, but not now. Numerous English decisions once upheld it. ” And referring to the discussion by Mr. Jarman, star page 1547, Judge Brannon quotes this
Summers v. Smith, 21 N. E. 191, and Smith v. Kimball, 38 N. E. 1029, Illinois cases, and Britton v. Thornton, 112 U. S. 526, are leading cases and all in accord with the modern rule of construction. Smith v. Kimball was upon a bill for specific performance of a contract for the sale of real estate. The first point of the syllabus is: “A testator devised land to his daughter, in language that carried the fee, and then declared: ‘Should the said daughter die leaving no heirs, I will and direct that all of the above described property shall be equally divided between my sisters. ’ Held, that the devise to the sisters was a valid executory devise, dependent upon the daughter dying without issue surviving her. ” Commenting on the New York and Pennsylvania cases cited contrary, the Illinois court says: “The3r are not ai> plicable here, for the reasons involved in the observations alreadjr made. When the death of the first taker is coupled with other circumstances, which may or may not ever take place — as, for instance, death under age or without children —the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, ‘upon death, ’ under the circumstances indicated, at any time, whether before or after the death of the testator.”
In Britton v. Thornton, supra., the will of Joseph Thornton provided: “To Eliza Ann Thornton, natural daughter of my said son Nelson, I give and devise all that plantation
It seems unnecessary to further burden this opinion, ai-read,y too long, by referring to or discussing other authorities. The difference between the old and the modern rule of construction which we adopt is the difference between giving the words of the testator a technical meaning not intended by him, in order to aid the earliest possible investment of the estate devised, and construing the words of the testator according to their ordinary and common acceptation to accomplish the purposes of the testator. The old rule was not founded upon proper principles, and, as Jarman says with reference to the growth of the new doctrine, as quoted by Judge Brannon in Schaeffer v. Schaeffer at page 683: “The sequel will serve to show that no rule of construction, however sanctioned by repeated adoption, is secure of permanence, unless founded in principle. ”
It onl,y remains to apply the proper rule of construction to the will of the testator involved in this case. Holding this document up by its four corners, and reading therefrom the
Several reasons, attempted to be drawn from the provisions of the will, are assigned by counsel for appellee against the construction we place upon this will. First, it is claimed that by the second item the testator has evinced an intention that all of his children and his two grandchildren should share equally in the final distribution of his real and personal estate. The expression is “children now living,” etc., referring to his children and grandchildren living at the date of the will; but if the death of any of these children and grandchildren had occurred prior to the death of the testator, the literal fulfillment of this expressed wish of the testator could not have taken place. But if it be said that the last
Second, it is claimed that the provision in the devise of of the 396^4 acres charging said land with a lien in favor of the testator’s estate for the sum of $2000 was an inequitable provision, inconsistent with the testator’s expressed desire that his estate should be divided equally between his children and grandchildren; for, it is argued, if Dever Pickens took only a life estate in the 396 % acres, or took an estate in fee de-feasible by an executory devise over, as claimed by the appellants, it is possible that he might have enjoyed the use of the devise for a day only. The answer to this is, that the testator did not anticipate such a contingency. He was looking forward to the enjoyment by his children of the lands and property respectively devised to them for the usual term or expectancy of life, and in the division of his lands this seemed to him to be the only way of equalizing Dever Pick-ens with his other children, so that they might remain in enjoyment during their several lives of equal portions of his estate, subject to the contingency of the eleventh clause of the will.
Third, another argument is drawn, on the theory of inequality, against our construction of this will — that the testator in the first clause of the will bequeathed a large bequest of $5000 to his wife, and by the eleventh clause thereof provided that in case she should die during the testator’s life
We hold that by the terms of the will of said James Pick-ens the defendant Never Pickens took and holds thereunder an estate in fee in said tract of 3962Í acres, defeasible by an executory devise over upon his dying without children, or the lawful issue of such children, living at the time of his death, or born within ten months thereafter, to his surviving brothers and sisters and the lawful issue of such deceased brothers and sisters, the descendants of such brothers and sisters to take such portion as such brother or sister would have taken if living at the time of such death. We are therefore of opinion that there is error in the decree of the circuit court, in adjudging that the said Dover Pickens by the devise to him of said tract of land took thereunder an inde
We therefore reverse the said decree in this respect, with costs to the appellants; and this case is remanded to the circuit court, with directions to modify its decree aforesaid in accordance with the opinion of this Court, and to be therein further proceeded with according to the principles herein enunciated and the rules of equity.
Reversed in part. Remanded.