141 Va. 726 | Va. | 1925
delivered the opinion of the court.
By the will of Mrs. Sarah A. Oakes she devised a tract of land, containing 133 acres, in three several parcels, to three of her children, as follows:
“Second, I give and bequeath to Julia A. Oakes, wife of my son John S. Oakes, and their children, sixty (60) acres of the Woodall tract of land south of spring, said tract adjoining Frank Carter on the east and R. C. Oakes estate on south, this tract contains the house in which they now reside. Spring to be on line that they may use of same also an outlet to public highway at or near M. C. Mickle’s.
“Third, I give and bequeath to my son C. P. Oakes (33) thirty-three acres of the Woodall tract of land containing house and orchard, also use of spring.
“Fourth, I give and bequeath to my daughter Christie Anne Dickerson, wife of A. L. Dickerson, (40) forty acres of the Woodall tract joining J. A. Oakes on the west.”
The exact date of testatrix’s death does not appear, but it was evidently a short time prior to the probate of her will which took place on the 10th day of January, 1919.
The devisees mentioned in the will being unable to agree upon a partition of the total area of 133 acres, so as to assign each of the three tracts of the number of acres mentioned in the will, in severalty, a suit in equity was instituted by Christine Ann Dickerson, to whom forty acres were given, to have the three tracts located and laid off by metes and bounds, the other devisees being made defendants.
Upon the maturing of the cause on the bill and answers the trial court appointed five commissioners with authority to any three to act. The decree directed the commissioners to “go upon the premises in the bill and proceedings mentioned, and take with them a copy of the will of Sarah Oakes, and the said commissioners are directed to ascertain what lines in their opinion constitute the proper lines of division of the real estate in the said last will, etc.; and the said special commissioners are further directed to call upon some competent civil engineer to make survey and plat of the lands in accordance with the lines of division so determined upon by them.”
These commissioners made two reports, one signed by four of them, to which the appellee, Mrs. Dickerson, ex
The division of the whole tract devised reported by the final commissioners and approved by the court is as follows:
The division for which the appellants contend appears upon the following plat:
These two plats represent the division of the land for which the appellants, on the one hand, and Mrs. Dick
The testimony of John S. Oakes, Mrs. Julia Oakes, and C. P. Oakes was taken on behalf of the defendants, the appellants here.
The boundaries of the tracts on each of the two plats correspond sufficiently in a general way with the boundaries in the will so far as they are indicated in that instrument.
It appears from the testimony that on the plat approved by the court some of the arable land theretofore cultivated by Mrs. Julia Oakes would be allotted to C. P. Oakes as it lay north of the straight line running west to east through the spring, and that Mrs. Oakes’ sixty acres being extended over to J. S. Oakes line would embrace next to that line a goodly portion of wooded land. It is further shown that by the other plat, carrying the northern line of Mrs. Oakes’ sixty acres obliquely westwardly to within 249 feet of C. P. Oakes’ western line, C. P. Oakes would lose several acres of arable land theretofore cultivated by him, and the eastern line of Mrs. Dickerson’s forty acres would be advanced so far west as to take in beyond the wooded land some of the arable land before that time in the possession and cultivated by the other parties. And it is contended by the appellants that the testatrix intended that C. P. Oakes and Mrs. Julia Oakes should remain in possession of the arable land cultivated by them respectively for many years and that only the wooded land adjoining James A. Oakes should go to Mrs. Dickerson, who lived several miles distant from the 133 acre tract. It is apparent, however, that a division of the property into three tracts of the number of acres to be contained in each, and which at the same time would carry out this suggestion with any degree of exactness, is impracticable.
The will was executed on the 12th day of August, 1912, during the life of the husband, and just preceding the three clauses above transcribed containing the devises in question, the first clause is as follows:
“First, It is my will that my estate be kept together for the benefit of my husband, S. P. Oakes, during his life, should he survive me—after his death the following-distribution is to be made.”
After the death of the husband no change in the will was made. It is manifest from the will itself that the testatrix contemplated the necessity of a partition of the 133 acres of land into three tracts of the stated number of acres, and that she left this partition to be made in some usual method of dividing landed property. Her manifested desire was that each of her sons, that is, C. P. Oakes and J. S. Oakes’ wife, should have a homestead and the surrounding land of the number of acres for each one stated in the will, and that a division should so be made as to give both families access to the spring. By failure to designate in her will the boundaries of the tracts the devisees were to take, she knew that a determination of those boundaries would be essential in order to fix the title in the devisees respectively.
The court below seems to have made earnest efforts to have the tracts fairly located and laid out in severalty. The court, however, cannot approve the procedure to which resort was had in this case, in the en
The main desire of the testatrix is carried out in the division approved by the court below, and we perceive no error in its decree. The lower court’s decree is therefore affirmed.
Affirmed.