23 S.E. 766 | Va. | 1895
delivered the opinion of the court.
The main question to be determined is the nature of the estate taken under the will of John C. Hardy by his widow in his personal property. This depends upon the true construction of that instrument. And to this end it is only necessary to consider the first,- second, and fifth clauses, which are as follows: £ £(1) * * * I do at my death loan the tract of land on which I at present reside, and known as the £dower tract, ’ * * * to my beloved wife, during her natural life, with all the property, of whatever nature or kind soever it may be, for the benefit of her and my three youngest children, for their support and education; and, at her death, I give the said tract of land to my son, William Joseph Newton Hardy, and the heirs of his body. * * * (2) All the personal property remaining at my wife’s death, of whatever kind or nature, shall be sold, and equally divided between my three daughters, viz. Loubinia A. Tucker, wife of Robt. W. Tucker, Sarah A. B. Hardy, and Etta Wilburn Hardy, and my son, William Joseph Newton Hardy ; Emeline C. Spain and Caroline A. Hurt included equally in said division.” ££(5) My beloved wife, Sarah A. Hardy, shall have the right to give any of the above-named children anything that she may be able or think proper to give, whenever they leave her or need assistance.”
Under the first clause, the land is expressly given to her for life ; and, at her death, it is devised to the testator’s son, William Joseph Newton Hardy. It is perfectly clear that she took only a life estate in the land. By the same clause, the personal property is given to her ; and, by a fair and reasonable construction, it is embraced within the limitation imposed upon the devise to her of the land. So that, if this were all touching the bequest to her of- the personalty, she would have taken only a life estate in it also. £ £A11 the personal property remaining at my wife’s death, of whatever kind or nature,” says the
It was claimed by the counsel for the appellants that the language of the fifth clause negatives the construction that the testator intended to invest his wife with the power of absolute or unlimited disposition over the personal property, in that it authorizes her to give anything that ‘ ‘she may be able or think proper to give” to certain of their children, “whenever they leave her or need assistance, ’ ’ as this would be unnecessary and superfluous if she had the absolute estate; but this is not sufficient to repel the plain implication from the words of the second clause of the gift of the absolute estate.
No restriction of the gift of the personal property can be inferred from the use of the word “loan” in the first clause. The significance and effect of the use of this word in a will was much considered by Judge Moncure in the case of Parker v.
It is conceded by the parties, and rightly so, • that the item of $143.25, claimed by Mrs. Hardy as her own money, belonged under the law to her husband. It was consequently embraced by his bequest to her. There is no good ground for holding that he died intestate as to it. The court properly distributed it as a part of her estate, along with the other personalty.
There is no error in the decrees appealed from, and the same are affirmed.