26 Gratt. 384 | Va. | 1875
delivered the opinion of the court.
On the 19th of November 1835, A. B. Sprinkle, of
“Item 2d. I will and bequeath to my beloved wife, Phoebe, all my estate of which I may die possessed, both real and personal, of every description whatsoever, she having aided me in making all that I have. My desire is, that she shall own absolutely everything that I may die possessed of.
“Lastly. As my wife is hereby made my heir and*388 sole devisee, I hereby constitute and appoint her the executrix of this my last will and testament, and desire that she shall not be required to give any official bond.”
The wife died without leaving a will, not having been in a condition to make one in the short interval between his death and hers.
On the 20th day of April 1870, John T. Sprinkle and others, heirs at law and next of. kin of the husband A. 13. Sprinkle, brought this suit in the Circuit court of Smyth county, against Nathaniel Hayworth and others, heirs at law and next of kin of the wife Phoebe Sprinkle, for the purpose of setting up and enforcing an alleged parol understanding and agreement between the said husband and wife, for the equal division of the estate of the husband, left at the death of the wife, between their two families as aforesaid. In their bill the plaintiffs set out the particulars of their claim.
Some of the defendants filed their answers to the bill; in which they denied that there was any such understanding and agreement between said Sprinkle and wife in regard to the disposition of the property owned by said Sprinkle, as was claimed in the bill; and the said defendants claimed that they and the other heirs at law and next of kin of the said wife held and were entitled to hold the said property as such heirs at law and next of kin.
Sundry depositions were taken in the suit on both sides; and on the 4th day of March 1874 the cause came on to be heard upon the bill of complainants, the demurrer (which had been filed), and answer of N. Hayworth and others, the replication thereto, the exhibits filed, and the depositions of witnesses; and was argued by counsel. On consideration whereof, the
The plaintiffs applied to a judge of this court for an appeal and supersedeas to the said decree; which were accordingly allowed and awarded. And that is the case which we now have to dispose of.
There never was a will more plainly written, or one on the face of which there was less room for doubt or difficulty in the construction of it, than the one we now have before us. The language of the second clause, as before stated, is: “I will and bequeath to my beloved wife Phoebe all my estate, of which I may die possessed, both real and personal, of every description whatsoever, she having aided me in making all that I have. My desire and will is, that she shall own, absolutely, everything that I may die possessed of.” Could language be more comprehensive or emphatic to invest the wife with the largest possible interest in, and power over, the estate of the husband ? But to make it still more plain, if possible, the testator proceeds in the last clause to say: “As my wife is hereby made my heir and sole devisee, I hereby constitute and appoint her the executrix of this my last will and testament, and desire that she shall not be required to give any official bond.”
And yet, plain as is this written will, the plaintiffs contend that it ought not to be carried into effect as it is written; that there was a parol understanding and
There could be no valid and binding agreement between husband and wife, as she was not a competent contracting party. Suppose there was in fact such an understanding between them as the plaintiffs contend for, could effect be given to it, contrary to the plain and express language of the written will ?
To give it such effect, would seem to be clearly inadmissible for several reasons: First, because by the common law it is a general rule that a written instrument cannot be varied or contradicted by parol evidence ; and there is nothing in this case to make it an exception to the general rule. Secondly, because such an effect would be contrary to the spirit and true intent and meaning of the statute of frauds. Code, p. 985, eh. 140, section 1. And thirdly, because it would be contrary to the statute of wills. Code, p. 887, ch. 112, section 1; Id., p. 910, ch. 118, section 4, which declares, that “no will shall be valid unless it be in writing, and signed by the testator, or some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly written by the testator, the signature shall be made, or the will acknowledged, by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary.”—And section 8, which declares, that “ Ho will or codicil, or any part thereof, shall be revoked, unless under the preceding section (in regard to revocation by marriage,) or by a subsequent will or
A great deal was said in the argument about the omission in our statute of the seventh section of the English statute jof frauds, which declares, that all declarations or creations of trust and confidence of any lands, &e., shall be manifested and proved by some writing signed by the party, &c.; and it was argued that, while under the English statute, such a trust as is attempted to be set up in this case would be invalid, it is valid in this state for the reason aforesaid.
Certainly a resulting trust is not even within the English statute of frauds, and, of course, is not within ours. Indeed, the__ eighth section of. the English statute, which is also omitted in ours, expressly excludes resulting trusts from the operation of the statute. The case of the Bank of the United States v. Carrington &c., 7 Leigh 566, referred to in the argument, was a ease of resulting trust. There are other trusts not strictly coming under the denomination of resulting trusts, which are not within the statute. Tucker, P. enumerates many of them in his opinion in the case just cited; and in 1 Lomax’s Dig., top page 288, all these trusts are considered under the denomi
But without attempting to define these several trusts, or to give the reason why they are not embraced within the statute of frauds, or to state the effect, if a.ny, of the omission in our statute of the 7th section of the English statute of frauds, we think we can safely say that under our statute of frauds, if there were no other statute or law to prevent it, such a parol understanding or agreement as is set up in the bill, however well proyed it may have been, would be insufficient to contradict or invalidate a will so plainly written as the will in this case. It could not have that effect as a parol declaration or creation of trust, for to give it that effect would be to subvert the statute. The most solemn wills and deeds could then be annulled by loose parol declarations under the name of trust. The danger of admitting such declarations, for such a purpose, was demonstrated in Cox, &c., v. Cox, decided by this court a few days ago. Even in the case of a resulting trust the proofs ought to be very clear if the trust does not arise on the face of the deed itself. Opinion of Brockenbrough, J., in the Bank of U. S. v. Carrington, &c., 7 Leigh 576, and the cases cited by him. We do not mean to admit, however, that there is any difference in effect between the English statute of frauds and ours arising from the omission in the latter of the seventh and eighth sections of the former. That is a question which is unnecessary, and not intended to be discussed in this case.
However that may be, we think the statute of wills, as before shown, plainly forbids that a parol will, whether in the form of a trust or otherwise, shall be set up and established, especially when there is a written
To be sure fraud may have the effect of setting aside a deed or will, or converting a grantee or devisee into a trustee for the benefit of others. “The fraud which suffices to lay a foundation for such a trust is not simply that fraud which is involved in every deliberate breach of contract. The true rule seems to be that there must have been an original misrepresentation, by means of which the legal title was obtained; an original intention to circumvent, and get a better bargain by the confidence reposed. Thus, as has been held in many cases, if a man procure a certain devise to be made to himself by representing to the testator that he will see it applied to the trust purposes contemplated by the latter, he will be held a trustee for those purposes.” Brown on the Statute of Frauds, § 94. See also Gilbert's Forum Romanum, p. 328, 329. There is a very recent case of the very highest authority, in the English books, which was referred to in the argument of this case by the counsel for the appellees, and which very strongly illustrates the law on the branch of the subject we are now considering. We mean McCormick v. Grogan, decided by the House of Lords in 1869, and reported in the law reports, English and Irish Appeal Cases, vol. 4, p. 82. The court of appeal in Ireland had reversed a decretal order of the Lord Chancellor there, and the House of Lords affirmed the decision of the court of appeal. It does not appear that there was any dissent to that decision of the House of Lords. Lord Chancellor Hatherley and Lord Westbury delivered seriatim opinions in the case, and Lord Cairns expressed his entire concurrence in their ■opinions. We will have occasion to refer to that case
In this case, certainly, then, there is not a particle of proof, nor is it pretended that there was any fraud on the part of the devisee to induce the devise; nor that she would not, if she had lived long enough, have made such a disposition of the property as is now claimed by the appellants; not in discharge of an obligation which could be enforced in a court of
We are therefore of opinion that the parol evidence in this case was inadmissible to alter or contradict the will, or set up a trust under the same.
We are also of opinion, that even if the evidence were admissible, it would be insufficient to prove such a trust as is claimed in this cause. The will itself certainly shows the intention of the testator more plainly than the parol declarations made by the testator and his wife, testified to, as they chiefly are, by interested parties. The will, as we have seen, is very plainly expressed, as if the testator was careful to exclude the idea that his wife should be considered as holding the property for the benefit, ultimately, of the heirs of the two families respectively, according to the claim set up in this suit, and not for her own exclusive and absolute use. If really the testator had intended to give those two families, or either of them, any interest in remainder in his estate, he would have done so expressly in his will. He would, for example, have given a moiety of his estate to his wife absolutely, and the other moiety to her for life, with remainder to his own right heirs and next of kin. That he did not plainly do so, which he could so easily have done, is strong, if not conclusive evidence to show that he did not intend to do so. He was not taken by surprise by death. His will was well and carefully prepared, obviously by a lawyer, more than a year before his death, and is, in substance, the same with a will which he executed seventeen or eighteen years before. It was his deliberate and cherished purpose to make it as he did,- and he meant what he said, whatever may have been his wishes in regard to the distribution of any of the'
How if the testator intended to give his wife the right to dispose of the property, or any part of it at her pleasure, to her own use, he gave her the absolute estate; and even if he had engrafted on the will an express limitation over of the property which might remain undisposed of at her death, the absolute devise would have been good, and the limitation over repug
That the testator did intend to give his wife the right to dispose of the property at her pleasure during her life, is, we think, perfectly certain, even according to the parol evidence itself.
We will refer to two cases only on this last branch of the case, both of which were referred to in the argument of the case, one an English and the other a Virginia case, although many other cases might be cited to the same effect. The English case is the one from which we have already quoted so largely in another branch of this case. McCormick v. Grogan, supra. There, as here, the will was absolute in form. But there the testator gave his instructions to his devisee and legatee, not by parol declarations, but in a letter addressed to the latter. The marginal abstract of the case is as follows : “ C. made a will, leaving his whole property, real and personal, to Gr., whom he also appointed his executor. When about to die, C. sent for GS-., and in a private interview told him of the will, and on Gr.’s asking whether that was right, said he would not have it otherwise. C. then told G. where the will was to be found, and that with it would be found a letter. This was all that was known to have passed between the parties. The letter named a great many persons, to whom C. wished sums of money to be given, and annuities to be paid; but it contained several expressions as to G. carrying into effect the intentions of the testator as he might think best;” and this sentence: “‘I do not wish you to act strictly on the
How, for the very same reason, we may enquire in this case, why the testator did not expressly limit his wife’s estate to her life, and give it in remainder to his heirs and her heirs in equal moieties, if he had so intended? Why did he give the estate to her absolutely, and carefully abstain from making any allusion
There are expressions of a like kind in the opinion of Lord Westbury, but it is unnecessary to quote them.
The Virginia case to which I refer is that of May v. Joynes ¿-c., 20 Gratt. 692, decided by this court in 1857, but not reported until 1871. The following is the marginal abstract of the case by the reporter: “ Testator says, I give to my beloved and excellent wife, subject to the provisions hereafter declared, my whole' estate, real and personal, and especially all real estate which I may hereafter acquire, to have during her life, but with full power to make sale of any part of the said estate, and to convey absolute title to the purchasers, and use the purchase money for investment, or any purpose that she pleases, with only this restriction, that whatever remains at her death shall, after paying any debts she may owe, or any legacies she may leave, be divided as follows: There are then limitations to-his children and grandchildren—Held: The wife takes a fee simple in the real, and an absolute property in the personal, estate; and the limitation over, of whatever remains at her death, is inconsistent with, and repugnant to, such fee simple, and absolute property in said real and personal estate, and fails for uncertainty.” Allen, P. delivered the opinion of the court, in which all the other judges, but Samuels, J. concurred. The case was very ably argued by distinguished counsel, and their arguments are fully reported. They refer to all the material authorities bearing on the interesting question involved in the case, which was, whether a remainder over, limited on an express estate for life, was rendered invalid by a power of disposition given
We think that case was a much stronger one in favor of the limitation over than this ease is, for there . the estate, on which the limitation depended, was an express estate for life, while here it is a fee simple and absolute estate. There, the limitation over was expressed in the will. Here, there is no allusion whatever to it in the will. If the limitation over in that case was repugnant to the estate given to the wife, a fortiori, the limitation over in this case was repugnant to the estate given to the wife.
If the testator had foreseen the death of his wife so soon after his own death, without having time or opportunity, or being in a condition to make a will, or had thought of such a contingency as likely to take place, be would no doubt have provided for it by his will, and disposed of the property among the heirs of both parties, according to what he knew to be the wishes of both in such an event. But he made no such provision, and whatever may have been the cause of the omission, this court cannot supply it. To do so would be to make a will for the testator, and not to construe and give effect to the will as made by himself. The latter is our only legitimate office. The former is beyond our power.
In every view of the case, therefore, we are of opinion that there is no error in the decree appealed from, and that it ought to be affirmed.
Staples, J.
I understand the president’s opinion as holding that in order to establish the trust, it is necessary to show a fraudulent intent on the part of the devisee or legatee in obtaining the will. I am not prepared to concur in that view.
I concur fully in the rest of the opinion.
Decree arrirmed.