70 W. Va. 178 | W. Va. | 1911
James Clifford made a wiil reading as follows, omitting formal opening: “I will and bequeath to my wife Sarah Clifford for and during her natural life all my real estate and personal property and also all my notes and bonds and bank stock of every description and kind and after my wife is death that the property if any is left shall be divided eucely amoung the children no bond or security shall be required of executor.” He died in 1892 leaving his widow, Sarah Clifford, and seven children. One of these children, Agnes, married Clarence P. Stout in 1898. Agnes Stout died intestate in 1899, leaving an infant child, Benjamin Clarence Stout, and this child died in 1900, leaving his father as his heir. Sarah Clifford, the widow of James Clifford, died in 1909. Clarence P. Stout, claiming as father and heir of his deceased infant son, Benjamin Clarence Stout, that he was entitled to one seventh of the real estate of James Clifford, brought a suit in the circuit court of Harrison county against the children of Clifford for a partition of the real estate left by Clifford. The case resulted in a decree holding that Stout was entitled to one seventh interest in said real estate, and that certain grand children of James Clifford had also shares therein in right of their dead parents, who died after the death of James Clifford, and directing a partition of said real estate. From this decree John 'Clifford, Sarah E. Dolan and Anna C. Brennan appealed.
What estate did the widow, Sarah Clifford, take under the will of James Clifford? On the answer to that question depends the decision of this case. A number of able and elaborate briefs discuss this case in many views, and cite dozens of cases from all quarters more or less bearing upon it. I shall not discuss any large fraction of them, because to do so would make an opinion prolix, and confusing and becloud rather than enlighten. To
It has been well said that, “in disputes upon wills cases seldom elucidate the subject, which, depending on the intention of the testator, to be collected from the will, and from the relative situation of the parties, ought to be decided upon the state and circumstances of each case.” So said President Pendleton in 1794 in Shermer v. Shermer, 1 Wash. 266. He added that he generally observed that cases more frequently disappoint than illustrate the intention, and that he was free to own that where a testator’s intention was apparent to him, cases must be strong, uniform and apply pointedly, before they would prevail to frustrate that intention.
It is claimed, for the appellants that Sarah Clifford, widow of James Clifford, under his will took an estate in fee, not a mere life estate, and only those who can claim as heirs under her can take any interest, which would shut out Stout, and that the decree giving him 'a share is erroneous. This 'contention that Sarah Clifford took a fee is based on the case of May v. Joynes, 20 Grat. 692, decided in 1857, and cases following it. That case involved a wall by which the testator gave to his wife “my vdiole estate real and personal, especially all real estate 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 owre, or any legacies that she may leave, to be devided as follows:” then specifying limitations to his children and grand children. It was held that the wife took an absolute fee and that the limitation over of whatever remained at her death was inconsistent with such fee simple and failed. This is based on the doctrine spoken in Burwell v. Anderson, 3 Leigh 348, saying that from the earliest time it was received doctrine of common law, that air absolute and unqualified power of disposing, conferred by will, and not controlled or explained by any other provision, should be construed as a gift of absolute property; that the power of absolute disposition is the eminent quality of absolute property; that he who has the absolute prop
These principles close the case, and it is not necessary to notice some of the very many cases cited by counsel for appellants. Riddick v. Cahoon, 4 Randolph 547. An absolute legacy, with provision that if legatee die without issue, then all that shall be left at death, over to others. Here was an absolute gift, not for life, and under the principle that when an absolute estate is given and one inconsistent is given, the latter is repugnant and void.
. So in Elcan v. Lancasterian, 2 Pat. & Heath 53. Shermer v. Shermer, 1 Wash. 266, goes on a clear power of disposal; intent governed. Bowen v. Bowen, 87 Va. 438; Robertson, v. Haidy, 2 Va. Dec. 275, 23 S. E. 766; Carr v. Effinger, 78 Va. 197; Davis v. Heppbert, 96 Va. 775; Hunter v. Ricks, 109 Va. 615; Hansbraugh v. Trustees, 110 Va. 15; Johnson v. Smith, 108 Va. 725; Randall v. Harrison, 109 Va. 615. In these cases the wills give power of sale.
'We admit that some late Virginia cases say that such words as “if any is left/’ in the ‘Clifford will, give a fee to .the life devisee by implication. Farish v. Wayman, 91 Va. 430; Rolley
Under decisions in almost.all other states, and in the U. S. Supreme Court, even such words of power of disposal as in May v. Joynes words give only a life estate. Brant v. Coal Co., 93 U. S. 326. If -their rule is followed, of course, the widow in our case took only a life estate. Brown v. Strother, 102 Va. 145. No life estate, and court said legatee had power of disposal. ■
Some of the children 'died before their mother died, and to exclude- them, it is argued that even if we say that Clifford’s will gives the widow only a life estate, with remainder to the children, that remainder would not vest until the death of the widow, and thus only those children then living would take. We do not accede to this position. The law favors the vesting of estates. Suter v. Suter, 68 W. Va. 690. That case would vest the remainder at testator’s death. When Clifford said that upon his wife’s death his estate should, go to his children, did he not mean to at once give them an estate awaiting for possession and enjoyment only the end of the life estate? Why shall we say he intended to vest not until then? What purpose would he have for such postponement? Yested remainders are those by which a present vested interest passes to the party, though to be enjoyed in future, and by which the estate is invariably fixed to go to a certain person after the particular estate is spent. 11 Va. & W. Va. Encyclopedia Digest 817. ' “The true criterion’ of a vested remainder is tire existence in an ascertained person-of a present fixed right of future enjoyment.” 24 Am. & Eng. Ency. Law, 389. There stood -Clifford’s children ready to take possession on their mother’s death. The case of Diehl v. Cotts, 48 W. Va. 255, will sustain this holding. Thus we hold that Clifford’s will gives his widow only a life estate, with remainder to his .chi] dren, vested at his death, and affirm the decree.
Affirmed.
(Posteript Note) :
Some time after the foregoing decision my attention is called to the case of Herring v. Williams, (N. C.) 73 S. E. 218,