Hunter v. HicksHunter v. Hicks
- Reporters:
- , ,
- Before:
- Keith
delivered the opinion of the court.
This is an action of ejectment brought by Eobert I. Hunter and others against W. H. Hicks and оthers to recover a tract of land lying in the county of Horfolk.
There wаs a demurrer to the declaration, which was sustained *623by the circuit court, аnd judgment entered for the defendants, and that judgment is before us upon a writ of error.
The decision of the case involves a construction of a deed which is copied into the declaration, to which the’ defendants in the circuit court assigned six grounds of demurrer, designated as a, b, c, d, e and. f. Spеcifications “a” and “f” were overruled; “b,” “c,” “d” and “e” were sustained, and thе correctness of the .judgment turns upon whether or not Martha Louisa Hunter tоok a fee simple or a life estate in the land conveyed to hеr by the deed from Isaac Hunter.
By the deed Martha Louisa Hunter is given full power to sell and dispose of the property covered by it, “and make such disposition of the proceeds of sale as she may think propеr, and also through said trustee to collect the said notes, and deliver them to the makers or other proper person and dispose of their proceeds, always, however, and in all cases, with the cooрeration and assent of the said V. O. Cassell, trustee, who on his part- agreеs to execute such instruments as may be needful in the premises as the said Mаrtha Louisa Hunter may direct by her becoming a party to and signing said instrument. And the said Martha Louisa Hunter may also if she think proper Avith the proceeds as aforesaid purchase other property, real or personal, through and by her said trustee, and the deed made to said trustee for her sole benefit, and to be held upon the same terms as the other property herein mentioned. If the said Martha Louisa Hunter should depart this life leаving her said husband, the grantor in this deed, surviving, then this grant as to the property then remaining is to cease and determine, but she shall have power and full authority is hеreby given her by instrument in the nature of a last Avill and testament to dispose of one-half of the property .hereinbefore described or hereаfter acquired as aforesaid then remaining; but if the said Isaac B. Hunter should die first then and in that event he hereby expressly reserves to himself full power and authority to dispose of the other half of the property then remаining, *624hereinbefore described or hereafter acquired, by his last will and testament.”
We have then a case where the grantee, Mrs. Hunter, under the deеd from her husband, took property which she was authorized to sell and to disрose of the proceeds as she might think proper, and of what might remain at her death she had the power to dispose of one-half by her last will and testament.
We are of opinion that the case is fully coverеd by the decisions of this court.
“The cases cited clearly establish that whеnever it is the intention of the testator that the devisee shall have an unrestrained power of disposition over the property devised, whether such intention be expressed or necessarily implied, a limitation over to another is void, because it is inconsistent with, and repugnant to, the estаte given to the first. devisee, although the will’shows that it was the testator’s intention, in respect to the property given to the first taker, that ‘what may remain оf the same,’ or ‘whatever may remain at his death,’ or ‘so much thereof аs may be in existence at his death,’ or ‘such part as he may not apрropriate,’ or ‘what may be on hand at his death,’ should go to another. Such intention must fail on account of its uncertainty, and the first taker acquires the absolute property.” Farish v. Wayman, 91 Va. 430, 21 S. E. 810, and cases there cited. See also Honaker v. Duff, 101 Va. 675, 44 S. E. 900; Johnson v. Smith, 108 Va. 725, 62 S. E. 958, 2 Va. App. 622 ; Rolley v. Rolley‘s Ex‘or, ante, p. 454, 3 Va. App. 147; Randall v. Harrison, post, p. 686, and cases referred to in those opinions.
It follows that the judgment of the circuit court must be reversed.
Reversed.