Hurt v. Hurt

| Va. Ct. App. | Sep 20, 1917

Sims, J.,

after making the above statement, delivered the opinion of the court.

The claim of the widow — the appellee — is that under said will she is entitled to and is the absolute owner of the intangible personal property aforesaid. This claim rests chiefly upon the construction placed upon that portion of the second clause of the will which provides, inter alia, that “they (the executors) shall take charge of my personal estate and convert the same into money, except so much as my wife may desire to keep for her useand it is contended that by the same clause the wife is to be the judge of the amount she may need. That is to say, it is contended for appellee that the language “personal estate” quoted, includes the intangible as well as the tangible personal estate, and that the jus disponendi thereof is in effect given to her by the provisions of the will allowing her “to keep for her use” so much thereof as she “may desire” and making her “the judge of the amount she may need,” bringing the case within the familiar rule laid down in the May and Jones Case, 20 Grat. (61 Va.) 692, and subsequent Virginia cases applying such rule.

The position is also taken in behalf of the appellee that when the “four corners” of the will are examined in the light of the facts and circumstances surrounding the parties at the execution of the will and prior thereto, the will-shows that the testator intended his widow to take and use the personalty (intangible as well as tangible) in such manner as she might elect and that this would give her the absolute title thereto.

In the view we take of the ease, it will be unnecessary for us to discuss the rule of May and. Joynes, or the affect of the amendment to section 2418 of the Code of Va. (see Acts 1908, p. 187) upon that rule.

Counsel for appellee cite a number of authorities to the effect that the ianguage “personal estate” used in the clause of the will under consideration is. broad enough to cover intangible personal property. This is undoubtedly correct. They also cite authority (Ross v. Ross, 115 Va. 374" court="Va." date_filed="1913-09-11" href="https://app.midpage.ai/document/ross-v-ross-6812835?utm_source=webapp" opinion_id="6812835">115 Va. 374, 79 S. E. 343), to the point that such, indeed, is the technical and accurate meaning of the language “personal estate” and that “when technical words are used they are presumed to be used technically and words of a definite legal signification are to be understood as used in their definite legal' sense, unless the contrary appears on the face of the instrument” — to quote from the syllabus of the last cited case. This, too, is well settled law. But—

It is also well settled that while it is true that in the conjstruction of wills, the intention of the testator, if not inconsistant with some established rule of law, must control, yet that intention must be found in the language of the testator used in the will; in the meaning of the words used by the testator, when properly interpreted, rather than his presumed or supposed intention. Ross v. Ross, supra.

As said in Allison v. Allison, 101 Va. 543-4, 44 S. E. 906, 63 L. R. A. 920: “The object in construing wills is to arrive at the true intent of the testator, but that intent is to be gathered from the language used, for the object of construction is not to ascertain the presumed or supposed, but the expressed intention of the testator; that is, the meaning which the words of the will, correctly interpreted, convey.”

Another statement of the well settled rule on this subject is contained in the syllabus of the case of Lindsey v. Eckels, 99 Va. 668" court="Va." date_filed="1901-11-21" href="https://app.midpage.ai/document/lindsey-v-eckels-6810509?utm_source=webapp" opinion_id="6810509">99 Va. 668, 40 S. E. 23, and is as follows" “In construing a deed or will, the object is to ascertain the intention of the maker as gathered from the language used and the general purpose and scope of the instrument, in the light of surrounding circumstances; and when such intention clearly appears by giving the words their natural and ordinary meaning, technical rules of construction will not be invoked to defeat it.”

Approaching the will in the case before us, with the guidance of these rules and in the light of the situation and circumstances surrounding the testator, it clearly appears from the language used in the will that he made two provisions “for and during the life of” his-wife, for “her use” and “comfortable support.” It will be observed, in the first place, that nowhere is she expressly given any power of disposition of the corpus of any of the property; a clear and definite disposition by the testator himself being made in the will of such corpus in remainder “after the death of my wife” to certain other persons and their descendants. Secondly: the provisions made for the wife are two-fold— she is (1) left in possession merely of “so much” (of thte personal estate) as she “may desire to keep for her use;” (2) certain income derived by the executors from the rental of real estate and the interest from the personal estate is to be paid by the executors to the wife “as she needs it so ’much as will give her a comfortable support, my wife to be the judge of the amount she may need.” The executors are directed to “take charge of” all of the personal estate, except that directed to be left in the possession of the wife, “and convert the same into money * * * and shall loam out the same upon proper security.” It is clear that the provision of the will making the wife “the judge of the amount she may need” refers, not to the personal estate which is to be left in her possession for “her use,” but to the income from rental and interest the executors are to pay her and to that alone. «

Now with respect to the personal property to be left in the possession of the wife for “her use”: The word “use” does not in its ordinary meaning import any power of disposition of the corpus referred to — the jus disponendi of the corpus — but the contrary; indeed, only the right to use and enjoy the benefit of the corpus is implied by the word “use.” In re Moore’s Estate, 163 Mich. 353" court="Mich." date_filed="1910-11-11" href="https://app.midpage.ai/document/nageli-v-mcmorris-7946171?utm_source=webapp" opinion_id="7946171">163 Mich. 353, 128 N. W. lt)9. The only proper “use” to which the intangible personal estate could be put by the wife would be to enjoy the income from it. This “use” of it the will itself expressly provides for, if it was not meant by the will that this property should be left in the possession of the wife, in that it directs that the executors shall convert all of the personal estate not left in the possession of the wife into money “and shall loan out the same upon proper security” and pay over the income therefrom-to the wife, “as she needs it,” etc. Hence it was not necessary that the intangible personal property should be left in the possession of the wife in order that she might obtain the use of it. The conversion of it into money and the lending of it out by the executors would not have at all interfered with the only proper “use” she could have of it. Not so as to the tangible personal estate. The conversion of that into money by the executors would have destroyed the benefit to the wife of the natural use to which such property could and would be put by her if she- retained possession of it.

It seems clear therefore that the personal estate design nated by the will as being that of which the executors should not “take charge,” but should leave the possession thereof in the wife, was tangible personal property only.

Further: It is true that the tangible personal property kept by the widow for her use, because of its perishable nature may be consumed in the use, and if so consumed, her estate will not be responsible therefor to the remainder-men under said will. But the intangible personal property is not of like perishable nature and need not be consumed in ifs use. Hence no logical inference can be drawn from the inherent nature of tangible personalty aforesaid that the testator meant to include intangible personalty in the property of which the executors should not take charge.

The foregoing conclusions give effect to the whole will, its purposes and intention as expressed therein, in favor both of the life tenant and the remaindermen, and do not allow the technical rule of construction of the language “personal estate” to be invoked to defeat the natural and ordinary meaning with which the language is used in the will before us, in so far as it refers to the property of which the widow is to retain possession.

Again: When it is remembered that the will is to be construed as of the date of the death of the testator, such construction gives effect too to the provision in his will, which the testator then properly regarded as being ample to insure “comfortable support” for his widow during her life. As noted in the statement of facts above, the preponderance of the proof is that, at the time of testator's death, the provisions made in his will for the support of his widow were sufficient to afford her a comfortable support in that mode of and situation in life to which she had been accustomed to live. If the increased cost of living since that time has rendered such provisions made by express provision of the will inadequate for such comfortable support, or should the future increased cost of living induce that result, it is to be deeply regretted, but we cannot on that account change the provisions of the will to meet a contingency not foreseen by the testator. We are satisfied that had he foreseen such a contingency the testator would have made a more ample provision for his widow, to the extent of allowing her the right to the jus disponendi of a portion, and perhaps all, of the corpus, of his estate, if needed for her comfortable support. But clearly he did not do so by his will as he expressed it. We cannot change the expression of it for him, however much we might like to do so.

For the foregoing reasons we are constrained to the opinion that there was error in the decree complained of, in so far as it adjudged that the appellee was entitled to elect to “keep for her use” the intangible personal property and estate aforesaid, and hence such decree must to that extent be reversed.

Reversed, in part.