13 Gratt. 245 | Va. | 1856
This case turns upon the construction of the will of the late Alexander S. Hooe of King George.
For the plaintiffs it is contended that the devise of the lands called “ Dissington” and “Freidland” to the testator’s son George M. Hooe, operates to except them out of the estate the uses and profits of which had in the first clause of the will, been devised to the daughters who might remain unmarried. Or, if this
There are certainly no express terms of exception used in the will nor are any such to be supplied unless rendered necessary by the clear and plain intention of the testator. Indeed had there been express terms of exception no room would have been left for controversy. The argument is however that from the terms and succession of the several devises to the daughters and George M. Hooe, the subject of the latter is by necessary implication withdrawn and excepted from the former, because George M. Hooe was to take Dissington and Freidland immediately and no interest was intended to be given in them to the daughters. Thus the question is resolved into an enquiry as to what was the true meaning and intention of the testator, and this is to be ascertained by weighing the terms of the will themselves and by placing ourselves in the situation of the testator and considering the language he has used in the light reflected upon it by the circumstances surrounding him at the time his will was made, and the relative situation of the different parties. Kennon v. McRobert et ux. 1 Wash. 96; Wootton v. Redd’s ex’ors, 12 Gratt. 196.
The testator by the first clause of his will gives the use and profits of all his estate real and personal to his daughters who may remain single. By the next
This view of the testator’s intention as deduced from the general scope and context of the will is greatly strengthened when we come to consider the circumstances by which he was surrounded at the
Now it is most probable that the testator regarded
In this case I think there is no difficulty in reconciling the seemingly inconsistent devises. The devise
This construction will be found strongly supported by a decision of the Supreme court of North Carolina in a very similar case. The testator by his will gave to his wife a life estate in the land and plantation whereon he lived. After some other provisions, the will proceeded as follows : “To my son Aaron I give a horse &c. my land and plantation that I have before mentioned in this will with all the farming utensils &c.” It was contended that the devise of the estate for life to the wife was revoked by the subsequent devise to the son or at least was so far modified that the son became entitled to an immediate estate in the premises on the death of the testator and to a joint possession with the wife. But the court held otherwise and that the wife was entitled to an exclusive life estate. Ruffin, C. J. said “ that no contradiction was to be allowed of unless the several provisions are
In our case the devise to the daughters is of a life estate determinable as to each upon her previous marriage, and there is the additional circumstance evincive of the testator’s intention that there should be no interference between it and the devise to George M. Hooe, that the former is in terms of the use and profits of the estate, the latter is of the lands by the names which had been given to them.
The remaining ground upon which the right to recover in this action has been sought to be maintained, that the devise to George M. Hooe passes the legal title at least subject to accountability in ecpiity to the daughters for the rents and profits, is I think equally unsustainable. It is in vain to enquire what might be the technical import of the language used, or the nature of the limitations which it might create if employed in a deed. It is the language of a nonprofessional gentleman in the country" framing for himself the testamentary disposition of his estate. There is no room here for the application of technical rules or the niceties of conveyancing. The first and great rule in the exposition of wills, to which all other rules must bend, as said by Chief Justice Marshall, is that the intention of the testator shall prevail provided it be consistent with the rules of law. It is the polar star to guide us in the construction of wills. Smith v. Bell, 6 Peters’ E. 68, 75, 84. If the intention be apparent, no strict legal construction nor technical sense of any words whatever, shall prevail against it. 2 Wms. Ex. 710 ; Hodgson v. Ambrose, 1 Doug. R. 337, 342; Homer v. Shelton, 2 Metc. R. 195; Kennon v.
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Lee, J.
The judgment was as follows :
The court is of opinion, that by the first clause of the will of the said Alexander S. Hooe deceased, an estate for life was given to his daughters in the property therein described, determinable as to each, upon her marriage.
And the court is further of opinion that the devise of the lands called “ Dissington” and “ Freidland” to the testator’s son George Mason Hooe, by the third clause of the will, is not to be regarded as an exception out of the general devise in the first clause to the
And the court is further of opinion upon the true construction of said will that the daughters did not take a mere equitable right to the use and profits of the property devised dependent as to the lands called Dissington and Freidland upon a legal estate vested in possession in the said George Mason Hooe, but took such a legal estate in the use and profits of the testator’s whole estate including Dissington and Freidland as entitled them to retain the possession thereof until they should be married or die, .and that the estate given to George Mason Hooe in Dissington and Freidland will not become vested in possession as long as either of said daughters shall remain in life and unmarried.
And the court is therefore of opinion that as the defendant is one of the daughters of the said Alexander S. Hooe and is still unmarried, the plaintiffs are not entitled to recover in this action.
And so it seemeth to the court here that there is no error in the judgment aforesaid.
Therefore it is considered by the court that the said judgment be affirmed and that the defendant in error recover against the said Elizabeth M. A. G. Hooe, prochein ami of the plaintiffs thirty dollars damages according to law for retarding the execution of the said judgment, together with her costs by her in the defense of said writ in this court expended. Which is ordered to be certified to the said Circuit court.