| W. Va. | Dec 8, 1883
Nathan Milburn by his last will and testament made the following provisions:
“1st. I desire that after my death my body be buried in a respectable manner.
“2d. 1 desire that the whole of my property both real and personal (my slave Torry excepted) be sold, and the proceeds of the same together with all debts owing to me after paying all my just debts be loaned and kept at interest till after the death of my slave Torry, and the marrying or death of my daughter Rebecca Bryson or Rebecca Clark.
“3d. T desire that my slave Torry have a comfortable support out of my estate, so long as she lives, and the priv-
*168 ilege of chosing a home to live at if the same may be deemed prudent by my executors.
“4th. I desire that my daughter Rebecca Bryson, daughter of Rebecca Clark, after the death of my slave Torry, if she be married, receive the whole of my estate, but should she not be married, I desire that she receive from time to time, so much of the same as she may need for a comfortable support and education, to be judged of by my executors, till she marries, or so long as she lives. Should, she die without heirs any of my estate that npiy be, left after supporting Torry I desire to be equally divided between my brothers and sisters. I do appoint James Harvey and Thomas Fowler to be the executors of this my last will and testament, hereby revoking all former wills. In testimony whereof I have hereunto set my hand and seal this 29th day of August, 1836.”
The will was admitted to probate in the county court of Monroe county on the 19th day of September, 1836.
In 1840 Rebecca Bryson married Augustus Ball, and died in 1842 or 1843. She had two children, one of whom died in infancy, and the other married James Brammer, and died in 1857 or 1858, childless, having died in child-bed the child not being born. The slave Tony outlived them all and died in February, 1862, over one hundred years old.
Soon after Nathan Milburn’s death the executors after paying the debts, collecting what was due to the estate and selling the real estate, had in their hands three thousand and seven dollars and nine cents which they loaned to the defendant, Augustus Ball, taking therefor his bond with security, dated February 32, 1841. This bond is still unpaid and represents the fund in controversy in this suit. The representatives of the brothers and sisters of the testator, filed their bill in the circuit court of Monroe county in 1870, to have said will construed, and have said fund paid to them under the provisions of said will. The defendants resisted this construction of flie will, claiming that the said Rebecca Clark on her marriage with Augustus Ball had a vested remainder in the said fund, and therefore the provision for the testator’s brothers and sisters was defeated. On the 19th day of May, 1880, the cause came on to be heard, and the court held, that “it appearing to the court that the said Rebecca men
From this decree the plaintiffs appealed. It is insisted in ■ argument that the brothers and sisters of the testator took nothing under the will; that as soon as Rebecca Bryson married she had a vested remainder in the fund. On the other hand it is contended, that Rebecca only had a contingent interest in the estate, which contingency never happened, so that the estate never vested in her or her children, and that at the death of the slave, lorry, Rebecca and her children being all dead, the estate at once under the will went to the brothers and sisters of the testator.
All the authorities cited by the learned counsel for appel-lees present cases essentially different from the case before us.
In Toothman v. Barrett, 14 W. Va. 301, it appeared, that the testator gave to his son J. after the decease of his daughter E. all his lands to him or his heirs subject to the payment of four hundred and sixty-on'e dollars of legacies within five years after her decease, and in ease J. shall die previous to the death of E., or fail to pay the legacies on account of inability on the part of J., in either case the land to be sold, and proceeds equally divided between certain other persons. It was held, that J. took a contingent remainder in fee in the lands of the testator, after the death of E. which was liable to be divested on his failure to discharge the four hundred .and sixty-one dollars of legacies, and that the word “or” as used in the will could not be construed to mean “and.”
In Augustus v. Seabolt, 3 Metc. (Ky.) 155, it appeared, that a testator bequeathed to his wife his farm “during her natural life,” also two slaves, (naming them) “during her natural life should she remain a widow,” also “during her natural life” sundry articles of personal property naming them. The will then pi-oceeds, “It is my desire, that in case my beloved wife shall marry, she is only to hold that part of the tract of
“But it is said that the remainder'interest of the devisee was.,a vested one and took effect as completely upon the marriage of the widow, as if she had died. This view is clearly erroneous. The remiander is manifestly contingent in one respect and cannot therefore be properly denominated a-vested remainder.
“Estates are contingent, which are limited to take effect, upon the happening of an uncertain and doubtful event, or where the persons, to whom they' are limited, are not ascertained, or yet in being. Eearne on Remainders, vol. 1 page 5; 3 Mon. 537, 18 B. Mon. 368.
“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 then bo alive or, if so, how many' is of course uncertain and cannot be known, until the event occurs.
*171 “ Tlie precise character of estate which, the children take under the will, it is not now important to determine, further than to say that it is not a vested remainder taking effect upon the marriage of the widow, and thus excluding the heirs from their interest in the land in controversy during the period intervening between her marriage and death.”
In Jiggetts v. Davis, 1 Leigh 420, Judge Carr says: “Personal property cannot be entailed. But if it he granted or bequeathed in such a maimer, as that, if it were real estate, the grantee or devisee would take an estate tail, in such case the full and entire interest passes to the grantee or legatee, as it would have done, if the grant or bequest had been in the most absolute forms known to the law. Nor can there be in personal property, a remainer in the strict sense of the word, and therefore every future bequest of personal property, whether preceded or not by a prior bequest, or limited on a certain or uncertain event, is an executory devise or bequest and falls under the rules, -by which that mode of limitations is regulated. Butler’s Fearne 401, One of the most important of these rules is, that the contingency on 'which an executory devise or bequest is to take effect, must be such, that it must happen if at all within the compass of a life or lives in being and twenty-one years and some months thereafter. And it matters not whether a term or other personal property be limited to the first devisee or legatee, indefinitely, or for life expressl}’, or to him and his heirs, or the heirs of his body, or to his issue or children, for the limitation over,will be equally valid, under any of these circumstances, -provided the contingency on which the limitation over is to take effect, be restricted to the period aforesaid.”
I quote this to show in the view we take of this will, that this rule of law is not violated.
It is true as claimed by counsel for appellees, that estates in remainder vest at the earliest possible period; but the rule is subject to the qualification, “unless there is a clear manifestation of the intention of the testator to the contrary.” (Doe v. Considine, 6 Wall. 458" court="SCOTUS" date_filed="1868-03-23" href="https://app.midpage.ai/document/doe-v-considine-87940?utm_source=webapp" opinion_id="87940">6 Wall. 458; Raney v. Heath, 2 Patt. & H. 218; Corbin v. Mills, 19 Gratt. 438" court="Va." date_filed="1869-01-15" href="https://app.midpage.ai/document/corbin-v-mills-exors-8481720?utm_source=webapp" opinion_id="8481720">19 Gratt. 438.) The intention is to be ascertained by taking the whole will together. In construing a will the court will be aided in the interpretation ot
With these principles governing the construction of wills and with others announced by this Court in Graham v. Graham, supra, what was the intention of Nathan Milbnrn manifested by his will? The scheme of the will was evidently first to provide for the support and maintenance of his slave, Tony, and second, if his natural daughter Rebecca was living and married at the time of the death of Torry, she was to have the whole of his property, but if at that time she was living and unmarried, she was to have a comfortable support out of the interest arising from the fund, until she married, in which event she -was then to have the whole of his property, or if she died without heirs, which clearly means children taking the whole will together (2 Jarman on Wills 86 and cases cited; Dew v. Barnes, 1 Jones Eq. 151), the third object of his will was to be accomplished by the bequest going to his brothers and sisters. Evidently he intended, that, if she married before the death of Torry and had children or heirs of her body, who should or any ot whom should be living at the dcatli of Torry, in which event the property was then to vest, it would go to such children; but the testator clearly intended, that, if at the time Torry died, Rebecca although she had been married and had had children, yet, if at the death of Torry, she was dead, and the heirs of her body ■were all dead, the estate should then vest in his brothers and sisters. This is the event that did take place, and the one it seems to us which was clearly provided for in the will. >
After providing for converting the estate into money, he directs that it “be loaned and kept at interest till after the death of my slave Torry and the marrying or death of my daughter Rebecca Bryson.” Before the estate could vest in Rebecca, two events must happen: the death of Torry and the marriage of Rebecca. The two events are conjunctively united in the will. Ihey must both occur and exist at the same time. She must have been married, and must be living at the death of Torry, or after the death of Torry become married, or the
But it is said, the brothers and sister were not to take, unless Rebecca died “without heirs,” and the fact is she left two children surviving her, when she died. The obvious answer is, that, as the estate did not vest and was not by the testator intended to vest in Rebecca, until the happening of the two events already considered, it is clear from the whole will, that the intent of the testator was, that if at the death of Tony Rebecca should be dead and no children of hers were then living, the brothers and sisters should take the estate, or if she married after the death of Torry and died •without issue, the estate was then in that event to go to the brothers and sisters. The presumption is, that the testator intended to dispose of his whole estate, unless the contrary appears.
It is admitted by the parties to the suit, first, that after the debts of Nathan Milbnrn were paid his executors, Thos. Fowler and James Harvey, loaned the balance of his estate to Augustus Ball taking his bond with the persons named in the amended bill and the answer of Fowler, executor, as sure
The amended bill sets up the fact of the selling the real and personal property of the testator by the executors, the paying -of the debts, and the loaning of the money and exhibits the bond, which is as follows :
“We, or either of us, promise and oblige ourselves, our heirs, &c., to pay to.Thomas Bowler and James Harvey, executors of Nathan Milburn, deceased, three thousand and seven dollars and nine cents, with interest from Bcbruary 1, 1841, for value received. Witness our hands and seals,, this 12th day of February, 1841.
$3,007.09. ' “Augustus Ball, [seal.]
“J. M. Byenside, [seal.]
“John Peters, [seal.]
“PaRkison Shumate, [seal.]”
To the original bill some of the heirs (not plaintiffs) of the brothers and sisters of Nathan Milburn were made defendants, and also the executors of James Harvey, who was one of the executors of Nathan Milburn, deceased, and also the executors of Thomas Bowler, the other executor of Nathan Milburn, deceased, and John H. Vawter, administrator de bonis non, with the will annexed of Nathan Milburn, deceased. To the amended bill, J. M. Byrnside, the executors of Parkison Shumate and the executors of John Peters were made defendants. Afterwards the death of J..M. Byrnside was suggested, and by consent of parties the suit was re
These same defendants afterwards filed another answer, in which they rely upon the statute of limitations. They deny that the executors of Nathan Milburn executed and delivered to said Ball and his sureties as a part of said contract a paper writing to the effect that said money should not he collected until the death of the slave Torry, provided the slave Torry was comfortably supported by said Ball apd his sureties, &e. “They admit, that a contract was made by the said executors of Nathan Milburn with said Ball, that said money should not be collected until the death of said Torry, provided she was supported comfortably by said Ball, but said agreement was made without the assent or agreement of said sureties, and they are advised that by said contract they were released from all liability as such sureties,” &c. To this answer there is a general replication.
"Without deciding in this cause, on whom rests the burden of proof to show, that the said agreement with Ball was not made with the consent of the sureties, I am fully satisfied from the pleadings and proofs in the cause, that the said agreement by said executors of said Nathan Milburn not'to collect said bond until tlie death of the slave Torry was made with the
This disposes of the question of the statute of limitations or . presumption of payment, 'which was insisted upon by counsel for appellee.
There should be no decree against the estates of James Harvey or Thomas Fowler, the executors of Nathan Milburn, they having discharged their duty. But Augustus Ball, and the estates of J. M. Byrnside, John Peters and Parkisoii Shuma+e are liable to the representatives of the brothers and sisters of the said Nathan Milburn, deceased; and a decree should in the court below be rendered against the executors of said estates to be paid out of the estates of their several testators in their hands to be administered, the sum of three thousand and seven dollars and nine cents with interest thereon from February 1, 1841, until paid, subject to be credited with the costs of supporting the slave Torry. The demurrer to the bill was properly overruled. It was necessary to resort to a court of equity, to have the will construed and the fund distributed.
The decree of the circuit court is reversed with costs; and
Reversed. Remanded.