93 W. Va. 689 | W. Va. | 1923
This is a partition suit brought by James McKown, one of the devisees under the will of James McKown deceased, against the other four surviving devisees under said will; making the children of one of the survivors parties to same, which suit involves the construction of the will of the said James McKown deceased. It appears from the pleadings, that Fannie McKown, one of the devisees, had departed this life before the institution of this suit, and that John S. Mc-Kown was the'only one of the surviving devisees who had living children, viz: Fred McKown and Catherine Foster. The court below over-ruled the demurrer of John S. McKown, one of the defendants, contrued the will, and partitioned the land and four of the defendants, to-wit; John S. McKown, Ella Perry, Lucy King and Sallie Board, assign eight errors to the rulings' of the court below and bring the case here.
Tt appears, from the record, that the defendants Ella
That portion of said will, the construction of which is in controversy, is as follows: “I give, devise and bequeath unto my sons John S. McKown, and James McKown, and to my daughters Ella Hardman, Sallie Board, Lucy King and Fannie McKown, to be held, owned and enjoyed after the death of my said wife by said two sons and four daughters in equal shares; that is to say each is to have one-sixth part of my real and personal estate, after the death of my said wife; but if either one of my said six children, above named should die before the death of my wife, or after her death, without living children, or without a living child, I give, devise and bequeath the share and portion of such of my said six children as may so die to the survivor of my said six children.” There does not seem to be any serious objection to the ruling of the court in over-ruling the demurrer to the bill, and we fail to see any reason why the demurrer should be sustained. Our statute and the decisions of this court confer upon courts of equity -jurisdiction in partition suits: ‘ ‘ Tenants in common, joint tenants and coparceners, shall be compellable to make partition and the Circuit Court of the County wherein the estate or any part thereof may be, shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings.” See. 1 Ch. 79 Barnes Code, Warren v. Boggs, 85 W. Va. 84; 97 S. E. 589. “Equity has jurisdiction in cases of partition to settle all questions of title arising in the case.” Moore v. Harper,
In this case we hold that the estate of one of the original devisees, in case of death, without living children or without a living child passes, under the will, to the survivors in fee simple; that there are persons in being in whom this estate vests. “In a case where a life estate is devised to John, remainder to the heirs of Richard, the inheritance is plainly neither devised to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis; it remains therefore in waiting or abeyance, during the life of Richard.” 1 C. J. (Note 8-a) 302, and in a case of that character there could be no partition until the vesting of the estate, but that is not the character of estate devised by the will in controversy. This will plainly sets forth to whom the estate passes after the death of the first taker without living children or without a living child, viz: “to the survivor of my said six children.” It appears, however, from the briefs of the .parties filed in this case-, that all of the parties to the suit, except John S'. McKown, accept the decision of the
John S. McKown, in his brief, cites in support of his contention, Daniel v. Lipscomb et als, 110 Va. 563 66 S. E. 850. It will be observed that the court, in that case, was passing upon quite a different will to the one in controversy in this case. In that- case Mrs. Spencer bequeathed to her grandsons John S. and William Daniel an amount of money; her will providing that “if either of them should die leaving no child or descendants surviving, the share he receives under this will, to go to his surviving brother, and if both should die leaving no -child or descendants, to be equally divided between the testatrix’s children”, John S. died without having a child and the court held that by the terms of the devise the estate passed to his surviving brother Wm. Daniel, subject to the same condition; that is, if William Daniel should die leaving no child or descendants surviving him, the estate would pass to the children of the testatrix. And, in discussing that case, the court draws a clear and well defined distinction between it and other cases decided by the Supreme Court of Virginia on apparently similar testimentary papers, and in discussing the case of Pettyjohn Exors, v. Woodroofs Exors. et als 77 Va. 507, says “It is greatly relied upon ta sustain appellant’s contention that William Daniel took a life estate, and his children a remainder in the land in controversy”. In that case, the testator divided his estate equally between his six children and grandson, Seth Wood-roof, and provided that “if any of the children should die without leaving lawful issue then the share of this child
In Armstead v. Hart, 97 Va. 318, the court says: “That the law is well established that only original and not accrued shares survive in the absence of a positive and distinct indication of intent in the will that the. latter shall survive.” 2 Jarman on Wills (Vol. 2) 2115; Brooks v. Croxton, 2 Grat. 509.
The will in controversy in this case, devises to each of the original devisees one-sixth of said lands which interest will be divested only upon the condition that he or she die “without living children ur without a living child”; and on condition that if he or she shall die before any of his or her co-devisees, and upon the death of any one of said devisees without a living child, his or her interest passes, under the will, to the survivors, share and share alike, in fee simple.
These commissioners, after being sworn, and after giving notice to all the parties in interest, went upon the land on April 25, 1922 and partitioned and laid off to the plaintiff James McKown 93 acres and 37 square poles, of said land; and the residue -thereof containing 329 acres and 93 square poles was laid off and alloted to the defendants John McKown Lucy King, Ella Perry and Sallie Board in one tract, and each of said allotments were definitely described by metes bounds, corners, courses and distances, and said report was returned in court on the 6th day of May 1922.
To this report there were exceptions, but just what these exceptions were do not appear; however, the court upon motion of the defendants appointed two additional commissioners to assist in dividing and partitioning said lands and the court, by consent of the parties, appointed G-. W. Swisher- and Wade Hickman, 'and directed all of said commissioners to go upon the premises and partition the same among the several parties in accordance with the former decree, and report to a special term of said court, to be held on the 13th day of May 1922, to hear and determine the cause”. In pursuance of the said order all of said commissioners, after all the parties had accepted notice, “that said commissioners would on the 13th day of May 1922, proceed to execute said order.” on that day after being duly sworn, went upon the land, all the parties except John McKown being present either in person or by counsel, and after looking over said premises and having carefully considered same, adopted the report made by the commissioners and returned to court on
The lower court overruled these exceptions and confirmed the ■ report and ordered the land partitioned according to same and the defendants assign as error, the action of the court in overruling said exceptions and refusing to give defendants time to procure affidavits and proofs of the same.
These defendants had ample notice that this matter would be determined on the day this report was submitted, by an order of the court, they had also accepted notice that the commissioners would make the 'report on that day; and, on that day, they were unprepared to meet by affidavits or proof the allegations set forth in their exceptions. We do not think that the defendants used that degree of diligence which is required under such circumstances to continue the case, and there being no proof of the exceptions, the court committed no reversible error, in overruling the same and decreeing a partition of the land.
“The report of the cqmmissioners in such suit is not final .and may be set aside by the court. But when the court is asked to quash or set aside the report, on the ground that the commissioners erred in making their allotments, whereby .an unequal partition has been made, it will not do so except in extreme cases — cases in which the partition is based on wrong principles, or it is shown by a very clear and decided
We therefore, affirm the decision of the lower court.
Affirmed.