88 Va. 533 | Va. | 1892
delivered the opinion of the court.
The record shows that James M. Paul, of Augusta county, Virginia, died in January, 1891, leaving a Avill, Avhich was duly
The testator left, three sons, John ~W. Paul, James C. Paul, and Lamartine H. Paul; and two daughters, Mrs. Louisa S. McComb, and Victoria V. Mosby.
The questions presented arise on the proper construction of the devises and bequests to the said daughters of the testator, made in the first, third, and eighth clauses of the will, as follows : “ 1st. I bequeath to my daughter, Louisa S. McComb, and her children, the tract of land upon which I now reside, containing about one hundred and forty-seven acres, valued at six thousand dollars. I also give them the one-half interest in the plantation in Louisa county, Virginia, on which W. A. B. McComb and family now live.” The third clause reads: “I desire that my son, James C. Paul, have the homo place in Port Bend county, Texas, estimated at ten thousand dollars, three thousand dollars of which he is to pay to my daughter, Victoria V. Mosby, and her childrefi, in trust.” By the eighth clause the testator divides the residuum of his estate into-five equal parts, and gives one part to each of his children. In giving to his daughters he uses this language: “ Louisa S. McComb and her children, one share; Victoria V. Mosby and her children, one share.”
The court was invoked in the bill to construe these devises and legacies to the daughters and their children, and to determine wdrat is the estate of the mothers, and what the interest, if any, of their children under the will.
The court, by its decree of June 2d, 1891, reaffirmed by its
The guardian ad litem of the infants and counsel for the children contends that the ancient common law rule as established in Wild's Case, 6 Coke R. 17, shall be applied to the language used by the testator, which would give these devises and legacies to the mother and the children jointly in each case.
The appellant, Mrs. Victoria V. Mosby, contends that the whole of these devises and legacies goes to the mother, the children being named simply “ to show the motive for the gift ”; that the words, “ and her children,”, annexed to the gift to the daughter, are words of limitation and not words of purchase; and that they were not intended by the testator, nor do they operate in law, to diminish the portion given to the daughter.
The court below, by its construction, ignores both of these contentions, and makes the mother a life-tenant, and “ her children. ” vested remainder-men in fee — a construction which is untenable and unprecedented; and all that is left for this court to do is to adopt the construction claimed by the appellant, or to apply the old rule in Wild’s Case, and say that the children have, by the will, present equal rights as tenants in common, or joint tenants, with their mother, to the exclusion of after-born children. At the date of her Avill Victoria V. Mosby AAras, and she yet is, a young married Avoman, and she may yet haA'e many more children. There are many cases decided by this
In the third clause of the will the testator says: “I desire that my son, James 0. Paul, have the home-place in Port Bend county, Texas, estimated at $10,000, $3,000 of which he is to pay to my daughter, Yictoria Y. Mosby, and her children, in trust,” thereby indicating and directing that his daughter was the hand to receive the money which his son wTas directed to pay to the mother, and not to hold in trust, though, even had he heen interposed and constituted a trustee, it would not have altered the case. In Waller v. Catlett the testator, Thurston, gave to Catlett $1,000 in trust for the sale and separate use o Uannie Waller and her children ; and in that case it was held, Judge Lacy delivering the opinion of the court, the gift to the wife and her children was a gift to the wife of the entire estate, and that the reference to the children only indicated the motive for the gift. In Mauzy v. Mauzy, 79 Va., Lewis, P., says: £‘ The language (wife and children) merely indicated the motive for the conveyance to her.”
Under this unbroken line of decisions by this court we are of opinion to annul and reverse the decrees complained of as wholly erroneous in the construction given to the third and eighth clauses of the will of James M. Paul, and our judgment is that the appellant, Yictoria Y. Mosby, is entitled, under the will, to the absolute fee-simple estate in the devises and legacies to her and her children, who are named merely to indicate the motive of the gift to her.
The case will be remanded, with directions to the circuit court of Augusta county to proceed in accordance with this opinion.
Decree reversed.