90 Va. 638 | Va. | 1894
delivered the opinion of the court. ■
The suit is a friendly suit, instituted to obtain a judicial construction of the last will and testament of Caroliue IT. Poery,
The will is as follows: “I give and bequeath unto my two sisters, Kate A., and Mattie R. Smythe, all my estate of every kind, both real and personal, of which I may die seized, to be by them used and enjoyed during their natural lives. But the benefits of this bequest are to continue to my said two sisters upon the condition that they shall remain sole. Should either marry, the said property so bequeathed as aforesaid, shall thenceforth be possessed and enjoyed by such one as shall remain sole. The- use and enjoyment of said property shall be unrestricted to my said two sisters during their natural lives should they remain sole, carrying with such use and enjoyment the right to sell and convey said real estate should they find it desirable to do so; but I desire that they shall reinvest or loan the proceeds of such sale in some safe manner, and, as far as possible, avoid the consumption of the principal; and at the death of my two sisters, or the marriage of both, I desire whatever of my estate may remain, shall vest in and become the property of the little boy, Claude Allison, whom I have adopted.”
The bill of complainant states that, on the 1st day of October, 1892, they, the said Kate A. Smythe and Mattie R. Smythe, as devisees of the said testatrix, under the discretion given to them in the said will, contracted to sell the said real estate so devised to them as aforesaid, to James O’Keefe and Mary S. O’Keefe “for a good, and indeed, an. excellent price, and they pray that the said sale may be ratified and confirmed by the court.”
The circuit court, in the decree appealed from, held that the devisees, Kate A. Smythe and Martie R. Smythe, had the right to sell and convey the land to the purchasers, James O’Keefe and Mary S. O’Keefe, as set out in the written contract exhibited with the bill, and decreed the confirmation of the said
We are of opinion that the construction of the will by the circuit court, as aforesaid, is just and proper. In the case of May v. Joynes the limitation or remainder over of whatever may remain at her death followed the devise,'with power of unrestricted and unlimited disposal, in any manner, by deed or will, and expressly subject to debts or legacies of the first taker; but in Mrs. Peery’s will the estate is given for use and enjoyment during the natural lives of the devisees, with the power of sale coupled with the direction of the testatrix, that “they shall reinvest or loan the proceeds of such sale in some safe manner, and, as far as possible, avoid the consumption of the principal; and at the death of my two sisters, or the marriage of both, I desire whatever of my estate may remain (so
We do not think that a just and fair construction of this will will defeat the expressed and indisputable intention of the testatrix, by holding that the legal operation of the terms of the will gives to the devisees an absolute estate in fee simple; non obstanto “ the plain intention to the contrary appearing by the will itself.” It is plainly provided iu the will that the devi-sees — the two sisters of the testatrix — shall enjoy and consume the rents and profits of the land devised, or if sold, use the interest of the proceeds of sale, which shall be reinvested or loaned in some safe manner so as to avoid, as far as the con-tingences of life and experience will make it possible, the consumption or diminution of the principal, which, at the death of the said devisees, shall vest in and be the property of the remainderman, Claude Allison. The fund is a large one— $9,325 — and will afford ample support to the two unmarried sisters and devisees of the testatrix for their natural lives.
The other details of the decree are not complained of; and our judgment is to affirm the decree of the circuit court of Tazewell appealed from.
Decree affirmed.