126 Va. 120 | Va. | 1919
delivered the opinion of the court.
In the year 1889, Thomas L. Kasey, being the owner of a house and lot and about eighteen acres of land, died and left a will which, so far as material to this controversy, was as follows:
“Secondly, it is my will and desire that my beloved wife, Sarah E. Kasey, have all of my property that I may be possessed of at the time of my death—both real estate and personal property. The real estate consists of one house and*122 lot situated at Crocketts Depot and eighteen or twenty acres of land situated on the north side of the railroad formerly belonging to James E. Ward, but sold by decree of the Circuit Court of Wythe county, for which no deed has been made to me yet. In case of my death before the court makes me the deed, it is my desire that said court make deed for said eighteen or twenty acres to my beloved wife, Sarah E. Kasey.
“It is my will and desire that my wife, Sarah E.-Kasey, have absolute control of all of the aforesaid property during the term of her natural life. If at my wife’s death there remains anything over and above her support, it is my will and desire that Bessie H. Foster,. a girl that I have raised, have all of the personal property and reál estate to have and to hold forever.”
Pursuant to the terms of the will, Mrs. Kasey at once took possession of all the-real and personal property devised and bequeathed to her, and subsequently received a deed from a commissioner of the Circuit Court of Wythe county for the land as to which her husband had not perfected his title. She sold about six acres of this land prior to her death, but retained the house and residue of the land, about twelve acres, and the personal property until her death. Bessie H. Foster, mentioned in the will, was T. L. Kasey’s niece, and after his death continued to make her home with Mrs. Kasey.
Upon the death of Mrs. Kasey, which occurred on the 24th day of January, 1907, Miss Foster took possession of the real and personal property remaining undisposed of, claiming and treating it as her own, and her right and title thereto was never questioned by anybody until this suit was brought in 1917. In January, 1908, she married John H. Biggie, and she and her husband decided to move to Tennessee. They advertised for sale and sold at public auc
At the sale, J. A. B. Steffey bought the house and lot at the price of $1,000; Volney H. King, six acres of the land' at the price of $885, and A. S. Dix the remaining six acres at the price of $885. Subsequently, King sold a portion of his six acres to L. B. Kesner. Possession was immediately taken, and all of the property thus sold has ever since been held by the purchasers in open, notorious, adverse and exclusive possession.
In May, 1917, more than ten years after the death of Mrs. Kasey, and, as appears from the facts already stated, more than ten years after Bessie Foster had entered into the possession, which has continued uninterruptedly ever since, S. R. King and others, the heirs at law of Mrs. Kasey, filed their bill in equity against the aforesaid purchasers' and occupants of the real estate, claiming title thereto and praying the court to remove'the cloud thereon, which they alleged existed by reason of the deed executed by Bessie Riggle and her husband. This claim on the part of 'the heirs of Mrs. Kasey is based upon the language of her husband’s will, their contention being that under a proper construction thereof' Mrs. Kasey took a fee simple title to the real estate, and that the remainder over to Bessie Foster was void for uncertainty.
The defendants to this bill, J. A. B. Steffey and others, relied upon three defenses: first, that the• remainder over to Miss Foster was good; second, that the plaintiffs were estopped by their own acquiescence and conduct; and third,
We have no difficulty in disposing of this assignment. It cannot be sustained without overturning the rule generally designated as the doctrine of May v. Joynes, 20 Gratt. (61 Va.) 692. The many cases in which this court has approved that rule are collected by Judge Burks in a note to the opinion in Conrad v. Conrad, 123 Va. 711, 97 S. E. 337, and need not be cited here. Taking the language of the will as a whole,o there is no escape from the conclusion that Mr. Kasey intended to give his wife the absolute power of disposal during her lifetime, and therefore under the decisions just mentioned the remainder over was void.
The ruling of the court on this question was based upon section 2919 of the Code. That section as originally enacted was known as the “stay law,” and in its original form, so far as material to this case, is as follows:
“The period between the seventeenth day of April, eighteen hundred and sixty-one, and the second day of March,*126 eighteen hundred and sixty-six, shall be excluded from the computation of the time within which by the terms or operation of any statute or rule of law it may be necessary to commence any action or other proceedings or to do any ether act to preserve or prevent the loss of any civil right or remedy, or to avoid any fine, penalty or forfeiture; and the period within the second day of March, eighteen hundred and sixty-six, and the first day of January, eighteen hundred and sixty-nine, shall be excluded from the computation of time within which by the operation of any statute or ride of law it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy.’.’
This section of the Code was amended in 1888 (Acts 1887-8, page 345 [Code 1904, p. 1539]), by inserting after the words “eighteen hundred and sixty-nine” the words, “and the period of one year from the qualification of a personal representative.”
By the Acts 1895-6, page 331 (Code 1904, p. 1539), this section was again amended by substituting for the language last above quoted, the words, “and the period of one year from the death of any party.”
The second amendment, being the one in force at the time this case was decided by. the circuit court, was the basis of the decision, and constitutes the turning point before us.
In the case of Virginia Mining & Improvement Co. v. Hoover, 82 Va. 449, 4 S. E. 689, it was held that the original “stay law” applied to actions of ejectment; and in Manuel’s Adm’r v. N. & W. Ry. Co., 99 Va. 188, 37 S. E. 957, it was decided that the amendment here under consideration did not apply to the limitation, fixed in the act creating a right of action for death by the wrongful act of another. There was plausible, if not convincing, reason for the decision in both of the cases cited. Independent of the terms of the
But can it be said that real actions are embraced within the reason and intent of the amendment in question? We think not. The first amendment under the act of 1888 excluding from the statutory period “one year from the qualification of a personal representative,” must have been intended to apply only to personal actions. The language employed was inapt for any other purpose, and the amendment was doubtless intended to protect personal rights for and against the estate of deceased persons, giving the personal representative the benefit of the period of one year in acquainting himself with claims for and against the estate, and giving to creditors of the estate, with perhaps less reason but with just reciprocity, a corresponding extension of time.
Neither the amendment of 1888 nor that of 1896 was in any way influenced by the considerations underlying the original act, and if it be true, as we think it undoubtedly is, that the act of 1888 related only to personal actions, we are unable to perceive any good reason for holding that the legislature intended to extend or widen the scope of that act by the later amendment. ' We are of opinion that the purpose of the change was merely to fix a definite time, the date
If we view them as applying only to personal actions, then there is no difficulty in explaining both amendments; but we can see no satisfactory explanation for giving an additional year in real actions. The impediments and obstructions which may be in the way of the assertion of personal claims for or against the estate of the decedent do not exist in regard to actions for real estate. There is no reason why the heir may not at once bring an action for real estate unless he is under disability, and-in that event he is fully protected by other provisions of the general statute of limitations. To construe the statute in accordance with the contention of the appellees would be to establish a rule that whenever a person claiming title to real 'estate dies, the running of the statute shall be suspended for one year, thus extending the period of limitation from ten to eleven years, and this same suspension and extension would occur with every successive death of a claimant of the same title. The parties to ejectment suits are often numerous, and such a construction of the statute as is here contended for might frequently result in great inconvenience.
For the reasons indicated, we are of opinion that the-court erred in rejecting the statute of limitations as a defense, and that upon the facts and the law the case is with the appellant. It appears from the record, however, and it. was conceded in the argument, that certain of the appellees' claiming small, undivided interests in the real estate herein involved have been' protected against the running of the statute by the disability of infancy. The facilities of the lower court, by a reference or otherwise, for ascertaining exactly what these interests are will enable it to formulate a proper decree more readily than we can, and, therefore) instead of entering a final order here, the cause will be re
Reversed and remanded.