75 W. Va. 401 | W. Va. | 1914
Lead Opinion
The decree complained of on this appeal was pronounced on a hill in the nature of a bill of interpleader, filed by the holder of leases on valuable gas lands, praying a construction of the will and codicil of -Solomon IT. Shriver, the lessor, who died testate, after the lands had been developed and were yielding large gas rentals. At the time of the. institution of the suit, the operator under the leases held, for distribution, only $750.00 of rentals; hut the properties involved are likely to yield them to the extent of many thousands of dollars. Devisees whose contentions as to the construction of the will were overruled in the decree have appealed from it.
The will was executed, Jany. 12, 1906, and the codicil, Apr. 22, 1907. Being childless, the testator bestowed his estate upon his nephews, Leroy R. Taylor and Henry D. Shriver, the latter of whom he described as his adopted son, and their children. His widow for whom' no provision was made in the will and who seems never to have claimed an,y of the estate, being now dead, the devisees under the will are the only interested persons.
After having provided for payment of his debts and funeral expenses and cost of administration, the testator made the following disposition of his estate: “It is my will that after payment of all debts &e, as provided in the first clause of my will, then all my estate both real and personal shall be taken and held for life by my nephew Leroy R. Taylor and my adopted son Henry D. Shriver in equal portions, that is to say one half thereof shall go for life to the said Leroy R. Taylor for life and the other half to the said Henry D. Shriver for life. At the death of the said Henry D. Shriver the share .of my estate hereby willed and devised to him shall go to his children share and share alike. At the death of the said Leroy R. Taylor the share of my estate hereby willed and devised to him for life shall go to his children if he shall leave a child or children. But if said Leroy R. Taylor shall die without children and the said Henry D. Shriver shall survive him then the share of my estate so
It is my will that my real estate shall not be sold until after the death of the said Leroy R. Taylor and Henry D. Shriver, but it shall be held by them in manner and form as above and at their deaths respectfully shall descend and pass as above "herein provided to their children.
And I hereby will, devise and bequeath all my estate of which I may die seized or possessed as above. ’7
Formal parts omitted, the codicil reads as follows: "I Solomon H. Shriver of Wadestown, W. Va. do hereby make this my first codicil to my last will and testament, which last will bears date on the 12th day of January, 1906, and is on the same sheet of paper on which this codicil is written. This Codicil to said will is as follows that is to say: Since my said will was made my said nephew Leroy Taylor has had a child born unto him and it is now my will that my estate willed and devised to him and my said nephew Henry D. Shriver shall after my decease be taken and held by them for life and then to their children in manner and form as the same is in and by said will devised and bequeathed, except that after the death of both the said Leroy Taylor and Henry D. Shriver, then all of said estate real and personal shall go to the children of said Leroy Taylor and Henry D. Shriver per capita, or share and share alike, the real estate in fee and the personalty absolutely. In all other respects my said last will and testament is to stand and the same is hereby reaffirmed, as and for my last will except only in so far as the same is herein and hereby changed and altered.7 7
At the date of the will, Leroy Taylor had no children, but a child, Martha Virginia Taylor, was born to him, March 16, 1907. Henry D. Shriver had children at the date of the will, and now has five. Leroy Taylor died, Oct. 11, 1910, and the testator, Oct, 30. 1912, without issue. He had taken Leroy Taylor and Henry D. Shriver into his family in their infancy, and reared them to manhood, but never adopetd either of them in the manner prescribed by the statute. The
In behalf of Henry D. Shriver, the doctrine of survivor-ship is invoked. The will and codicil are interpreted as having vested in Leroy Taylor and Henry D. Shriver a joint estate for their lives. If this assumption is well founded, he must prevail and the decree-is wrong. But the will, unaided by the codicil, manifestly did not create such an estate. It gave each of them an estate for life in one-half of the estate and then expressly provided, as to the half given Leroy Taylor, that, at his death, it should go to his child or children if any he should have; and, as to the other half given to Henry D. Shriver, that, at his death, it should go to his children. Though it did, in the first instance, give the whole estate to Taylor and Shriver for life, the gift was immediately qualified and explained thus: “that is to say one half thereof shall go to the said Leroy R. Taylor for life and the other half to the said Henry D. Shriver for life.” Such a gift so explained and limited does not create a joint estate. 2 Min. Inst. 401; Bla. Com. 180n; Hoxton v. Griffith, 18 Gratt. 574. This explanatory matter is not eliminated or nullified by any subsepuent provision of the original will. On the contrary, it is reaffirmed, in the clause inhibiting sale of the property, until after the death of both life tenants, in these words: “it shall be held by them in manner and'form as above and at their deaths respectively shall descend and pass as above herein provided to their children.”
The codicil, however, is the principal substructure of the
Whatever the effect of this codicil may be, the occasion of the making thereof is perfectly clear. It was made slightly more than one month after the birth of Leroy Taylor’s child and recites the circumstance as the cause moving the execution thereof. This child had been provided for in the original will and would have taken, under it, just'what the decree complained of has given her. It had discriminated against Taylor presumably, because at the date thereof, he was childless. A remainder for life in his share of the estate was given to Shriver, in the event of his death without children: but no such remainder in Shriver’s share was given to him, in the event of Shriver’s death without children. If, after the birth of the child, he had let his will alone, ample provision would have been made for her. Having recited her birth, as the occasion of the alteration in his will, he did not withhold his estate from her, but, on the contrary, still provided for her, making her interest, however, less certain and definite, to say the least of it, than it was before. Under one theory of interpretation, she would get nothing, until after the death of Henry Shriver which may not occur for many years, and then possibly only one-sixth of the estate, or even less, after the gas wells, constituting its chief value, shall have been exhausted. This child for whose welfare the testator manifested solicitude would be left wholly without support, just at the time of life in which it is, most essential, the tender years of childhood, a period of utter helplessness,- the period of growth and development, physicial, mental and moral, the age in which the basis of character is laid. The two men for whom provision was made were both nephews of the testator. Bach had been reared from infancy by him. ■ They were, in actual relation and affection, his adopted sons, not one more than the other. In their circumstances, at the date of the will, they differed in only one substantial respect.
In the execution of these papers, both the will and the codicil, two things seem to have burdened the testator’s mind as weighty and determining factors, controling his dispositions, children and deaths terminating the estates for life. The tenor and substance of each paper bespeak equal enshrinement of the adopted sons in the testator’s heart. Clearly his dispositions are not affected by any difference in sentiment or affection toward them. In the original will, only one slight difference was made, and that for a plain and good reason. He did not want to die inestate as to the fee simple title to one-half of his estate. So he gave it contingently to Shriver for life and then to his children in fee. Perceiving no danger of his intestacy as to the other half, in view of the existence of the Shriver children, he made no provision for such contingency as to it. There he rested on the presumption in favor of life. On the birth of the Taylor child, he executed a codicil in which the same presumption seems to have been a controling factor. Seeing no further contingency, he, at least, apparently eliminated the provision he had made for one and declared the estate should go to the children, “the real estate in fee and the personalty absolutely”.
Thus far, the intention seems to be clear, but it is obscured, to say the least, by the phrase “after the death of both the said Leroy Taylor and Henry D. Shriver” and the declaration, “then all of said estate real and personal shall go to the children of said Leroy Taylor and Henry D. Shriver per capita, or share and share a like.” His original will did not contemplate coincident deaths of the life tenants. On the contrary, it assumed their more probable deaths at different times, necessitating a choice between alternatives, termination of the life estate in each moiety, by the death of the tenant, a gift over of that life estate to the other tenant, postponing the right of possession in the remaindermen until
If the terms of the exception are susceptible of an interpretation accordant with the general intent expressed in the original will, as to provision for the Taylor child, such interpretation must be adopted, though they are susceptible of another variant from such plan; for, in that case, it would be uncertain or doubtful, and, for that reason, not permitted to defeat a devise or bequest previously given in clear and unequivocal terms. GeneraUs clausala non porrigitur ad -ea quae antea speciaUter simt comprehensa. Martin v. Martin, 52 W. Va. 381; LeSage v. LeSage, 52 W. Va. 323; Smith v. Schlegel, 51 W. Va. 245 ; Bartlett v. Patton, 33 W. Va. 71; Broderick v. Broderick, 35 W. Va. 620; Houser v. Ruffner, 18 W. Va. 244.
Read in connection with the repeated reaffirmations of the
Though less frequently applicable and used than some others, this rule embodies reason and common sense. It recognizes and allows for the convenient use of general, indefinite and loose terms applicable to things not requiring definite specification or discrimination, because the meaning is obvious without it from their nature, or from their having been previously made definite and certain, or from being subsequently made so in the instrument. A command or direction to go to London by rail and steamer would not be understood as requiring the use of both railroad and steamer at the same time and on the same portions of the route. The order would be interpreted and acted upon, Reddendo singula singulis. In execution thereof, the railroad would be employed to New York, the steamer from New York to Liverpool and the railroad again from Liverpool to London. An order to attack a hostile country by land and sea would not be construed as requiring the army to attack by or from the sea nor the navy to attack by or from the land, but, Reddendo singula singulis, the army by land and the navy by sea. A statute of this state directs sheriffs to sell delinquent tracts of land by tracts or separate parts of tracts and delinquent town lots by lots or undivided parts of lots. By a subsequent section, the purchaser is required to have the quantity or undivided interest so purchased, surveyed and laid off at
The rule permitting and requiring such analysis is not limited to the construction of statutes. Chancellor Kent resorted to it, in seeking the intent expressed in a contract. Ludlow v. Bowne, 1 Johns, (N. Y.), 13 Am. Dec. 277, 289. "Wills also fall under its influence. Akers’ Ex’rs. v. Akers. 23 N. J. Eq. 26, 31; Kayes v. King, 37 N. J. Eq. 1, 2; Forster v. Civill et als., 20 Hun. 282; Thornton v. Thornton, L. R. 20 Eq. 599, 604.
Such interpretation subjects general expressions of words plainly susceptible of definition or obviously lacking it, because obscure, to the controling influence of the context, a process or method of analysis widely recognized and adopted by the courts. A gift of the testators “effects” prima facie carries all of his personal estate, but the context may limit its meaning. Page, Wills, 478. “Furniture” does not prima facie include certain articles, but the context may so enlarge its meaning as to make it carry them. Id. 492. A gift of
These rules of interpretation apply to the codicil just as effectually as if its terms and provisions had been inserted in the original will. It is by no means a new will. A codicil, not revoking the original will, is a mere addition to it, which may, or may not, substantially alter its provisions. It is merely amendatory or explanatory of the original paper. If it partially revokes the will, by express provision or necessary implication, it is amendatory; but it may be merely explanatory. Jarman, Wills, 6th Ed. 629. “Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be distributed only as far as are absolutely necessary to give effect to the provisions of .the codicil; and in other respects such will and codicil are to be construed together,” Page Wills, 462. In such cases, the two papers constitute the wiil and are read together and interpreted, under the rules of interpretation, as a single instrument. Bouv. Law Diet., title “Codicil,” citing numerous authorities.
The making of the codicil implies some purpose on the part of the testator respecting his estate or previous dispositions thereof, of course, but not necessarily, intent to alter them; for he may have intended merely to explain the paper first executed. “It appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil; but, rather, that, the will and the codicil being all
A good illustration of it is found in Houser v. Ruffner, 18 W. Va. 244. In that case, no codicil was involved; but, as has been shown, a codicil, containing no clause of revocation, is, in law, merely an additional clause of the will. By the second clause of the will, the testator gave his wife such interest, in all of his property, as the law would have given her, in the absence of a will. That was a life estate in all the land and slaves and absolute ownership of all the other personal estate, under the provisions of the Virginia Code, chs. 110, 123, sees. 1 and 10 respectively, as it then was. By the third clause of the will, he directed appraisement of his whole estate, the assignment of one-third thereof, after payment of some legacies, to his wife and division of the residue among his children. The court denied any effect to said third clause, inconsistent with the second, and adjudged the widow to be entitled to a life estate in all the land and slaves and to absolute ownership of the other personal property. The reasons for the decision in the cause, made apparent by principles already stated and authorities cited, need not be repeated here.
The testator’s knowledge of the ambulatory character of
By reason of the death of Taylor before that of the testator, which prevented the vesting in him of the life estate, the remainder in fee to his child might be void, under common law principles, 2 Min. Inst., 434-5, 1 Lomax Dig. 570-1, but, if so, it is good under the statute, sec. 11, ch. 71, Code, serial sec. 3750, saying “A contingent remainder shall in no case fail for want of a particular estate to support it.”
The decree goes far beyond the scope of the bill, which embraced only the rentals and royalties, and adjudges to Martha Virginia Taylor title to one-half of the entire estate, real and personal, and the right to have partition of the real estate. In this respect only, it is erroneous. Buskirk v. Ragland, 65 W. Va. 749; McDonald v. Jarvis, 64 W. Va. 62; Martin v. Martin, 52 W. Va. 381. Modification of it by
Upon the principles and conclusions stated, the decree will be modified as indicated, and, as so modified, affirmed.
Modified and affirmed.
Dissenting Opinion
(dissenting) ■.
Testator’s intention is the guiding star in the construction of his will, and when it is clearly expressed there is no occasion, or authority in law, to resort to legal presumptions 'and technical rules of construction. They are intended to guide the court in ascertaining his intention when the testator has obscured it by using terms of doubtful meaning or by making inconsistent provisions. Rules of construction must yield to clearly expressed intention. Couch v. Eastham, 29 W. Va. 784; Cresap v. Cresap, 34 W. Va. 310; Couch v. Estham, 69 W. Va. 710; Hinton v. Milburn’s Ex’rs., 23 W. Va. 166; Tebbs v. Duval, 17 Grat. 349. When the intention is clearly expressed all the courts can do is to give effect to it, unless to do so would violate some positive rule of law. In the present ease the testator’s intention is clearly expressed. The difficulty is one of the court’s own making, and grows out of the impossible task, which it has undertaken to perform, of trying to harmonize repugnant provisions contained in the will and the codicil, respectively. That repugnancy was designedly made for the purpose of altering or changing the will, and testator never intended the codicil to harmonize in all respects with the will. The repugnancy was one of design and not of accident. Testator made his codicil to alter his will in material respects, and not simply to reaffirm it, although he did expressly reaffirm it in part. Led by a charitable desire to provide for a contingency, against which testator himself did not provide, the majority of the court have lost sight of the guiding star of testator’s intention, and in their effort to produce harmony, where he intended there should be conflict, they have violated one of
That testator intended his codicil to effect a change in the
The codicil was intended to produce two material alterations in the will. First, testator wished to postpone the remaindermen until the death of the surviving life tenant; and second, he desired that they, as a class, should share equally in his bounty. The alteration first mentioned was necessary to insure the carrying into effect of the second, which was his chief purpose in making the codicil. He intended it to correct an inequality which he saw would likely result among the remaindermen, if his will was left unchanged. No doubt the thought that his will produced inequality was impressed upon his mind by the birth of Taylor’s child. He then realized, as never before, what might happen, and .he wanted to insure equal provision for all the children, as he had done for their respective fathers. The gift over, in the original will, to Henry D. Shriver for -life, of the half of his property which he had given to Taylor, in the event of Taylor’s death without children, and the failure to make a similar provision for Taylor in the event of Shriver’s death without children, would seem to indicate that, at the date of making his will, testator thought it highly improbable, either that Taylor would leave a child, or that Shriver would leave none, and, therefore, he did not then contemplate the inequality between the two families of children, which his will might produce. I do not think he intended thereby to favor Shriver more than Taylor. The birth of Taylor’s child was an event which, although he had provided for, he evidently had not seriously thought would happen,- and when the child was born he saw clearly what he had not fully appreciated before. He saw that it was possible for the Taylor child to get one half of his princely estate, whereas the five Shriver children, who were equally related to him in blood, would receive only a one-tenth each. To avoid such inequality he then made his codicil. Observe, that in his codicil he does speak of Taylor’s children, and Shriver’s children as constituting distinct classes, but he speaks of the two sets of children as composing one class, and be gives the remainder of all his estate to them per capita. Those are technical words, and must be given their technical meaning,
“When an estate is devised to persons composing a class related in the same degree by blood to the testator, the presumption naturally arises, nothing to the contrary appearing, that equality was intended; and a will made in such condition should never be so construed as to work greater inequality than the language used unequivocally requires.” Munday v. Broaddus’ Ex’r., (Ky.) 40 S. W. 926. Grant v. Mosely, (Tenn.), 52 S. W. 508; Taylor v. Taylor, 23 Conn. 579; Wilcox v. Beecher, 27 Conn. 134; Button ¶. Button, 57 N. Y. App. Div. 297; France’s Estate, 75 Pa. St. 220; and 30 A. & E. E. L. 669. But I insist that the intention of
That testator did not provide for the Taylor child during the time between its father’s death and the death of Henry D. Shriver, is not a matter that the court can properly correct. Many contingencies arise, against which testators have failed to provide, but they can not, and do not, justify the courts in failing to give effect to a will so far as made. Testator showed no favoritism or partiality toward either family. He made the same provision for the children of one that he made for the children of the other. If Shriver had died before Taylor, his children would be in like stiuation to the Taylor child. It is simply the happening of a contingency for which the testator did not provide. How can the court make a provision which he omitted? How are we to know "that he did not -intentionally omit to provide for such contingency as has happened ? To my mind it is wholly a matter of speculation to try to determine his intention otherwise than by the language he has used.
The will did not create a joint estate in the life tenants. Bach was given an undivided half severally. True their estates possess unity of time and equality of interest, but they do not have that entirety of interest which is an indispensable element in joint estates. Neither was given an interest in the whole, but only an entire interest in the undivided half. 4 Minor’s Inst., (2nd ed.) 425. Hence, the doctrine of survivorship does not apply. Is there not, then, partial intestacy? I think so, clearly. Taylor’s death before testator caused his devise to lapse; more accurately speaking prevented the estate intended for him from ever coming into existence, for the' estate could only come into existence at the death of testator and was to be measured by the duration of Taylor’s life, and he wa.s then dead. But the lapsing of the life estate did not defeat the remainder in the half to Taylor and Shriver’s children. A remainder no longer needs to be supported by a particular estate. The gift over to Shriver for life, provided for in the original will, could only take effect in case Taylor left no child, and his leaving a child has defeated it. There is no residuary clause making dispo
The gift to the children of both Taylor and Shriver, per capita, after the death of both Taylor and Shriver, no child being named, prevented the vesting of any estate in them until the death of the surviving life tenant. “After tne death of both,” means after both are dead, or when the last of the two has died. Only those who fill the description of the class, at the time th e gift is to take effect, can take; until then they are not ascertainable. Hence, the children of both Taylor and Shriver took a contingent, not a vested estate, contingent on their being alive on the death of the surviving life tenant. Their estate did not have the present capacity to take effect in possession upon the death of one life tenant only, but had to await the death of both, and hence it lacked the essential element of a vested estate. 2 Minor’s Inst., (2nd ed.), 339. Any one of the children was liable to be defeated by its death before the time for the enjoyment of the estate. Each child’s share was also liable to be reduced in quantity by the birth of other children subsequent to the death of testator. Henry Shriver may leave more than five children, or some of the five that he now has may die before he does; and, in either event, the shares of the remaining ones, including also the Taylor child, will be affected accordingly. It must be admitted that, if the Taylor child took a vested remainder, the Shriver children did also, because the vesting of an estate does not depend on the present enjoyment
“Under a gift to children by way of remainder, all are entitled who are in existence at the period of distribution, to the exclusion of those who may come into existence at any time afterwards, or who may die previous to that time.” 30 A. & E. E. L., (2nd ed.) 721.
“If a legacy be given to an individual, nor by name or other special designation', but by reference to certain characteristics at a particular time, the person who has the characteristics at that time is the person entitled to the legacy, and it will then vest in him.” Voorhies v. Otterson, 66 N. J. Eq. 172, 57 Atl. 428. See also McArthur v. Scott, 113 U. S. 340.
A testator bequeathed to his “son, W. T. Jones the farm on which he now lives during his lifetime, then to his children, if any, if none, to his nearest relatives.” A son of W. T. Jones died and a daughter was born to him, both after the death of the testator. The supreme court of Maine held that the devise created a contingent remainder in W. T. Jones’ children, as a class, that his deceased son took no interest, and that the after born daughter was let in. The time for determining the contingency, that is whether or not there are children, was held to be at the death of the life tenant, and not at the death of testator. Webber v. Jones, 94 Me. 429. The decisions supporting that proposition are numerous. The following ones are in point, viz: Nicholas v. Guthrie, 109 Tenn. 535; Cole v. Creyon. 1 Hill’s Chan’y., (S. C.), 311;
Our own case of Lazier v. Lazier, 35 W. Va. 567, is also in point. There the testator directed his executors to- invest the proceeds from the remainder of his estate, and pay the interest derived therefrom to two single daughters, naming them, “during .their lifetime, or as long as they remained single, and at their death or marriage” he directed the amount so set apart for them to be equally divided among all his children, including a granddaughter named. It was held that the fund was not distributable as long as either of the two daughters was alive and single, and that on the death-of one of them unmarried the whole of the income was to be paid to the survivor. Thus, in effect, construing the words “at their death,” to mean at the death of the last survivor.
Of course it can not be implied that testator intended a gift over to Henry D. S-hriver, the surviving life tenant, for life. The language will not warrant such an implication. The contingency of Taylor’s death leaving no child had been provided for, but that contingency did not arise. It can not be said that he intended the same provision snould apply in another contingency. Henee, as I see it, it is not possible to avoid partial intestacy and, at the same time, give effect to testator’s plainly expressed will, and there is certainly no authority for altering his will.