84 W. Va. 393 | W. Va. | 1919
This suit was for partition of a tract of 126 acres of land devised by the will of Nancy Insco, made in 1862, and who-died shortly thereafter, whereby she devised all her land and certain personal property to Alexander Lively and Minty Lively, his wife, for life, and provided that after their, death the same should “pass over to the heirs of said Alexander lively and Minty his wife.”
The plaintiff Joseph Lively and the defendant Robert Lively, his brother, are children and heirs at law of Alexander Lively by his first wife. The defendants Frances Jane-Griffith (nee Lively), Samuel S. Lively and Margaret M. Lively are the children and joint heirs of Alexander Lively and Minty Lively, the latter being the second wife; and the claim of the plaintiff is that he and his brother Robert as heirs at law of Alexander Lively took under the will an estate in remainder along with the joint heirs of their father- and the said Minty Lively, which vested in right of possession on the death of their father, surviving life tenant, which occurred in August 1912, the said Minty Lively having died, as the bill alleges and the evidence shows, in November 1901.
The bill does not specifically allege in what proportions plaintiff and his brother took the land under said will, but the decree which their counsel seek to have affirmed adjudged to each a one-tenth part thereof, and that their co-partition-ers were each entitled to a four-fifteenth part thereof.
The main ground of error relied on by appellants, the children and joint heirs of Alexander and Minty Lively, Is that the court in decreeing any interest in the land to. Joseph and Robert Lively, misconstrued the will; but the first ground relied on for reversal, in logical order, is that the decree appealed from is a so-called nunc pro tunc decree and is erroneous upon grounds to be presently stated.
The rights of the court nunc pro tunc to make the record speak the truth as to what was actually done in a cause interlocutorily was affirmed by this court in Vance v. Railway Co., 53 W. Va. 338; Ex parte Coon, 81 W. Va. 532; Gauley Coal Land Association v. Spies, 61 W. Va. 19; and Scott v.
The right to so correct errors and omissions in judicial proceedings is not controverted. The contention before the lower court was, 'first, that the decree here in question, if originally pronounced, was not entered by the clerk because of the neglect of the plaintiff to pay the costs, as to which there is no proof; second, that at the time the cause was submitted and at the time the decision was announced by the trial judge, Robert Lively was dead and that the cause was never revived against his surviving heirs, whose names are also suggested on the record; third, that the decree was not a proper decree to be pronounced upon the bill and proceedings. And in argument here a fourth ground is urged, namely, that the nunc pro tunc decree entered on July 19,1917, was not entered with reference to any prior day or term of the court with respect to which it was to have effect, and is therefore without day or date, and erroneous.
The third ground involves the merits of the cause and will be postponed in the order of disposition. As there is no evidence in the record on which to predicate fault on the part of plaintiff, justifying withholding the decree from the record, we pass that point without further consideration. But if it be true as asserted and assumed in the second ground of ■ objection, and it so appeared, the point of error would be good, but we find nothing in the Record except the mere suggestion of counsel in the order of July 19, 1917, directing the nunc pro tunc decree, shoving when Robert Lively died; if indeed he be dead in fact, the date of his death is not shown. The final decree took no account of his death, but on the contrary decreed in his favor a one-tenth interest in the land to be partitioned.
The fourth point made against the entering of the decree presents a more serious, and we think a fatal, defect in the decree. That a final decree was pronounced some time prior to the order directing its entry nunc pro tunc was found
That there may be finality of the proceedings in the court ■ below, it is necessary that we should also construe the will. And we may say at once that in our opinion the court below has put the proper construction on the provision on which the rights of the parties depend. We think the principles enunciated in Irvin v. Stover, 67 W. Va. 356, are decisive of the question involved. The clause in the deed in that case, was: “To be held by them as a homestead for themselves, and after them to their heirs.” In the case here the provision is, “and after their death to pass over to the heirs of said Alexander Lively and Minty his wife.” The correctness of Irvin v. Stover is challenged by counsel^ but we think it founded upon well settled rules of construction, and principles of law applicable in such cases. Undoubtedly Alexander and Minty Lively took an estate for life in the land by entireties with right of survivorship, and unless there is something in the context
In support of their construction of the will counsel for appellants cite us to a number of cases, as follows: Brown v. Aetna Life Ins. Co., (N. C.), 93 S. E. 842; Crapo v. Pierce, 187 Mass. 141; Evans v. Opperman, 76 Tex. 293; Aetna Mut. Life Ins. Co. v. Clough, 68 N. H. 298; Lockwood v. Bishop, 51 How. Pract. Rep., (N. Y.), 221. We have examined all these cases carefully and find nothing in them materially conflicting with Irvin v. Stover. Without exception they all involve gifts -or devises to children of donors or devisors. In the North •Carolina case the assignment of a policy of life insurance was to the children of W. T. J. and B. H. J. It was rightly decided that the assignment carried the interest in the policy-to the children born to both and that no part thereof - went to the children of W. T. J. by a former marriage, for the description of the class named could not by proper construction include the children of each. The Massachusetts case involved a devise of a remainder to be"distributed “to and among the children of said F. and wife and the issue of any deceased child by right of representation.” It was rightly construed ■as limited to the children of their marriage, and as not including the child of F. by a former marriage. The other cases cited are of the same character.
In the Virginia case of Stigler’s Ex’x. v. Stigler et al., 77 Va. 163, the testator had insured his life for $5,000.00 “for the benefit of -his wife and their children. ’ ’ It was held that the description “their children” included an afflicted child by a former marriage, who was a member of the family and treated as one of the children of both, and was 'given the same care and consideration by her father and stepmother. In the case at bar the facts are very similar to those in the Virginia case. Besides, properly construed the words of the devise, '“over to the heirs of said Alexander Lively and Minty his wife, ’ ’ are plainly contemplative of the heirs of each. In the case of Lyon v. Acker, 33 Conn. 222, it is held to be a sound
For the error pointed out in entering the decree nunc pro tunc, it must be reversed and the cause remanded for further proceedings. If it turns out, as suggested on the record, that Robert Lively was dead at the time of the hearing of the cause, and necessarily at thé time the case was decided and the decree pronounced,, his heirs must be brought in by amendment of the bill, and will be entitled to a hearing on all the questions involved, before the entry of a final decree. On the other hand, if Robert Lively was living, either when the case was heard or at the time the decree was pronounced, nunc pro tunc decree may yet be entered with reference to either event in order to secure the rights of the parties.
Reversed and remanded.