52 W. Va. 381 | W. Va. | 1903
Lead Opinion
' This is a suit for partition, in which the granting, or refusing, of the relief sought, depends upon the construction of the will of Jesse Martin, of Marion County. The testator had no children born in wedlock, but left several illegitimate children born of Cinderella Koon, a woman who resided with him. For three of these children, Melissa Koon, Benjamin K. Martin and John Jefferson Martin, he provided in his will. The devise of a tract of land, lying in Marion County on the waters of Tygart’s Yalley River, to Benjamin K. Martin, is the clause involved, and reads as follows:
“4th. I will and bequeath and devise unto Benjamin K. Martin infant son of said Cindrella Koon single woman that now lives with me and to his child or children by him begotten in lawful wedlock all my real estate in Marion County on Booths Creek and its waters and on the waters of Tygarts Yal-ley river containing four hundred and eighty acres more or less which I hold under sundry titles purchased of different individuals together with all and singular the appurtenances thereunto belonging subject to the conditions and limitations hereinafter named.”
The conditions and limitations referred to in the foregoing clause are found in the eighth clause of the will and read as follows:
“If the said Benjamin K. Martin die without leaving any child or children living at the time of his death begotten by him in lawful wedlock then the above legacy and bequest of real estate is to go to the said John Jefferson or his lawful children if he be dead leaving at the time of the death of the*383 said Benjamin K. but if lie be dead leaving no lawful child or children at the death of the said Benjamin K. then the said legacy of the said Benjamin K. shall'descend to said George T. Martin.”
The bill for partition was filed by Jesse H. Martin, son of Benjamin K. Martin, against the said Benjamin K. Martin, Sarah B. Hnnsaker, Bertie E. Holt and Nettie Martin, sisters of the plaintiff, and alleges that the plaintiff is entitled to one fifth of the land, on the theory that, under the fourth clause of the will, the said Benjamin K. Martin and his four children take equal shares of the land in fee simple, each child born to tiic said Benjamin K. Martin taking his full equal share at his birth. Benjamin K. Martin having sold nine acres of land to John E. Bice, who afterwards conveyed the same to Charles Smith, and a tract of about fourteen acres to George W. Manle3r, which is now claimed by Harriett Manley and John R. Manlejq said Smith and Harriett and John R. Manley are also made parties defendant.
The bill shows that Benjamin K. Martin was born Eebruary 29, 1844; that the will was made April 2, 1852; that Jesse Martin, the testator, died May 1, 1859; that Benjamin K. Martin married April 5, 1866; that Jesse H. Martin, the plaintiff, was born of said marriage February 14, 1867; and that Sarah B. Hunsaker (nee Martin), Bertie Holt (nee Martin), and Nettie Martin were born of said marriage, respectively, • May 10, 1870, February 2, 1874, and November 1, 1881. So Benjamin Ed Martin had no child or children either at the date of the will ’or at the time of the death of the testator.
The demurrer of Benjamin K. Martin to the bill was' sustained and the bill dismissed on’ the 20th day of July, 1899. The plaintiff, Jesse H. Martin, died in April, 1901, after having made a will by which he devised his interest in the land to Charles E. Manley, Charles Powell, C. L. Shaver and Reuben Anderson, giving one-half to Manley, and the other half to the other three persons in equal shares. These devisees have appealed from the decree sustaining the demurrer and dismissing the bill. In their petition for the appeal they set out the death of the plaintiff and exhibit with it his will and the record of the probate thereof, and aver that they are the persons to whom the
Counsel for the appellee, Benjamin K. Martin, insist that, before an appeal could he taken, the suit must have been revived in the name of the personal representative of Jesse H. Martin in the court below, although it is admitted that there is no express provision in the statute relating to revivor in- a case in which there has been a final decree before the death of the plaintiff but no appeal taken prior thereto. As supporting this contention, Booth v. Dotson, 93 Va. 233, 24 S. E. 935, is cited. In that case, Booth recovered a judgment in an action of debt against Dotson, assigned the judgment to his brother, and after-wards died. A writ of error was allowed in his name, but it was dismissed, although it was agreed by the parties that the judgment had been assigned as aforesaid. What the court would have done had the assignee of the judgment procured the writ of error in his own name, after showing by his petition that he was the owner of the judgment, is not intimated. Had that been done the case would have been very much like this one. “Where one of the parties to a suit or action dies before the taking of an appeal or writ of error, if the cause of action survives, the appeal or writ should bo prosecuted by or against the legal representatives of the decedent. At common law, in both personal and real actions, when plaintiff in error dies before the assignment of error the writ of error will abate.” 2 Cyc. 769. The subject matter of this suit is real estate with which th* personal representative has nothing whatever to do. He has no title to it and no duty relating to it is devolved upon him by the will. All the testator’s right, title and interest are vested by the will in these appellants. In respect to it, they as fully represent him as his heirs would, had he died intestate, in which case his legal representatives, as to the land, would have been his heirs. The appellants therefore, are not only the only persons having any interest in the suit, but they have shown that fact in their petition. It could have been controverted here by the appellee,-but he has not done so and it must be taken as true. Phares v. Sanders, 18 W. Va. 336, 340. In that case it was held that a revival of the judgment in the court below was unnecessary and that, if the personal representative alleged in his petition that, since the judgment was rendered, the defendant had died and
Proceeding now to consider the main question, it is first to be noted that no case has been decided by this Court, which involved the construction of a will like this one. Graham v. Graham, 4 W. Va. 320, has been cited as sustaining the contention of counsel for the appellee, that Benjamin K. Martin took, under this will, an estate tail, which, by our statute, section 9 of chapter 71, is converted into an estate in fee simple. That section reads in part as follows: “Every estate in lands so limited that, as the law was on the seventh day of October, in' the year one thousand seven hundred and seventy-six, in the State of Virginia, such estate would have been an estate tail, shall be deemed an estate in fee simple.” If the words determining the estate of Benjamin K. Martin are such as would,under the law as it was in Virginia, prior to October 7, 1776, have created an estate tail, the theory of counsel for appellee is correct. There is no clause in the will which can be said to indicate a contrary intention. In fact, the various clauses all taken together strongly indicate an intention on the part of the testator to keep his estate, as far as possible, in the hands of certain of his illegitimate children, for these clauses are full of limitations over, upon certain contingencies, from one to’ another. The chief characteristic of an estate tail is, that it ties up the property in a family. The statute in which estates tail originated, and known as the statute de- bonis conditiondli-bus, was called a family law. 2 Min. Ins. 81. In clause eight of the will it is provided, as to the property given Melissa Ann Koon, that if she die before she marries, leaving no children alive at her death, it is to go to Benjamin K. Martin and John' Jefferson Martin in equal parts, if they be living; but, if either of them be dead without leaving lawful child or children, it
So the intent of the testator, as gathered from the terms of the will, does not, in any way, conflict with the idea or theory of a limitation in tail to Benjamin K. Martin. It remains, however, to determine whether, under the rules of construction, applicable to wills, the estate of Benjamin 3L Martin is so limited that, as the law was prior to October 7, 1776, it would have been an estate tail. The language of the will in Graham v. Graham, cited, is entirely different in some respects from that used here. In that instrument, there was no gift over in default of issue or heirs. Here, there is. So far as the report of that case discloses, there was no reference in the will to any default of issue. Here the will says, if the said Benjamin K. Martin die without leaving any child or children living at the time of his death begotten by him in lawful wedlock, the property «hall go to others named. In the Graham Gase there were clauses indicating an intention that the property disposed of should never go out of the family. As to all of the property so given, there was one clause which said: “I give unto them and their heirs forever, according to the way they are stated.” This language expressly creates an estate tail. No such language is found any where in this will. For these and other reasons which might be assigned, Graham v. Graham is not applicable here.
While an estate tail may be general, naming only one parent, by whom the heirs contemplated are to be procreated, and, in that, the sex may, or may not, be designated; or, special, naming both parents by whom the heirs who are to inherit shall be procreated, and, in that, they may be designated and limited by sex; it is essential to an estate tail that the instrument creating
That it does is contended for, however, upon what is known as tire rule in Wild’s Case, 6 Co. 17 A. & B. There, the devise was to a person and his children, and that person had no child at the time of the devise, and the- court held that the parent took an estate tail, saying, “the intent of the devisor is manifest and certain that the children (or issues) should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his (the devisor’s) intent, for the gift is immediate; therefore, such words shall be taken as words of
Uothing in the will militates against the view that the gift to Benjamin IL Martin and his children is immediate. Eo future time for distribution is fixed or indicated by any clause, nor does such intent appear from an analysis of the whole will. By the seventh, tenth, and eleventh clauses, provisions are made for the care and education of B. K. Martin and the care of the real estate until his attainment of the age of twentj'-one years, but this does not conflict with the vesting of the estate in him. His guardian and the executors of the will, charged with these duties, were required to stand in a trust relation toward him.
Being immediate and to a person and his unborn children, the devise cannot be considered as one to a class. One of the reasons for this is that the rule governing such devises would exclude the children and thereby defeat the clearly expressed intention of the testator. Its application in Wild’s Case would have wholly excluded the children. The long line of cases falling under the rule in Wild’s Case all condemn the theory that such devises are gift$ to classes. They also firmly establish the proposition that the children do not take as joint tenants or tenants in common with the parents under such devises. Could they have so taken, the courts would not have been driven to the necessity of devising another way of giving them anything at all under such wills. It was said that the devise was immediate, and that they could not take as immediate devisees, because they were not in being. While all these precedents deny the existence of a joint tenancy, or tenancy in common, none have been found which hold the other way. Hence, it is established that under a devise to a person and his children, he having no children at the time of the devise, neither a joint tenancy or tenancy in common between the parent and after-born children is created, unless by some other part of the will it appears that the testator so intended.
But, if the devisee has a child at the time of the devise, such child will take an equal share -with the parent. Hatterly v. Jackson, 2 Str. 1172; Moore v. Leach, 50 H. C. 88; Gay v. Baker, 58 N. C. 344; Hunt v. Satterwaite, 85 N. C. 73; Hampton v.
As it is manifest that the appellants have no present right to possession or enjoyment of any part of the land, it becomes wholly unnecessary to determine whether an estate in fee simple is vested in the appellee. If the will gives him a life estate only, and the remainder in fee to the children, the appellant is not entitled to have partition of the land. Merritt v. Hughes, 36 W. Va. 356, wth the array of authorities there cited, settles this question beyond controversy.
What estate the father does take is an interesting question. Under similar wills, some of the courts have held that he takes an estate in fee simple. Bentz v. Bible Society, 86 Md. 102; Hood v. Dawson, 98 Ky. 285; Gillispie v. Schuman, 62 Ga. 252; Silliman v. Dawson, 119 N. C. 89. On the other hand, some courts have held that the will vests in him a life estate, and the remainder in fee in the children. Carr v. Estill, 14 B. Mon. (Ky.) 309, holding that a devise “to Mary Baker Didlake and her children,” she having had no children at the time of the devise, gave her a life estate and the children the remainder in fee. Fales v. Currier, 55 N. H. 392, holding that a deed to a woman apd her children, she having had no child at the time, gives her a life estate only and remainder in -fee to her after-born child. Turner v. Ivie, 5 Heisk. (Tcnn.) 222, in which the will was peculiar.
It is claimed, however, that, although the appellants, if entitled to take by way of remainder, cannot have partition, the court may, in this suit, construe the will. A suit can never be entertained for the sole purpose of construing a will. There must be an actual litigation in respect to matters which arc proper subjects of equity jurisdiction, such as relief on behalf of an executor, trustee, ceslui que trust, or legatee. It is a special and limited jurisdiction incident to general equity jurisdiction over trusts and administrations. Pom. Eq. Jur., sections 1156, 1157. This being true, the Court cannot be called upon to interpret the will, further than is necessary to determine whether
For the reasons here given, the decree is right and should be affirmed.
Affirmed.
Concurrence Opinion
(Concurring) :
I concurr in the conclusion. My reason is, that by the mil Benjamin Iv. Martin took a life estate and his children, no matter when born, the remainder. These children cannot have partition until the life estate ends. I do not think that the question of fee tail arises, because by the will estates for life and remainder are created. It says “I will, bequeath and devise to Benjamin Iv. Martin and to his child or children.” If the testator had stopped there, the law given by Judge Poeeenbargeh to show that the children could not take because born after the testator’s death would apply; but the testator did not stop there; he wont on and told both Benjamin K. Martin and the children that the devise was “subject to the conditions and limitations hereinafter named.” Go on, then, down the paper to those “conditions and limitations” thus annexed to the devise, and we find the language, “If the said Benjamin K. Martin die without leaving any child or children living at the time of his death, then the above legacy and bequest of real estate is to go to the said John Jefferson or his lawful children.” Here he tells Benjamin that he has only a life estate, else why give it to John Jefferson, if Benjamin has no children? But how if he has children? The will answers that it goes to his children. Where else would it go? We might well say that if there were not above an express devise to the children, the limiting clause would by strong implication, give to the'children living at their father’s death, as there may be legacies by implication where there is manifest intent to do so. Bartlett v. Patton, 33 W. Va. 71; Schowler on Wills, sec. 561; Paige on Wills, sec. 468. But go back and we find an express devise to the children, and the last clause tells what is meant by that devise to them, tells that they take only at the death of the father. The question whether the