24 W. Va. 148 | W. Va. | 1884
The question involved in this case is the true interpretation of the following clause in the will of William Dunsmore of Monroe county: “ All the remainder of my land, including my wife’s third I give to my son Jacob W. Dunsmore — my wife’s third after her death. If my son Jacob Dunsmore should die without having heirs, he. shall divide the land between
The next enquiry is: What was the contingency according to the testator’s will, on which the fee simple estate in this land devised to his son Jacob H. Dunsmore was thus to terminate and shift to others? The words of the will are : “If my son Jacob Dunsmore should die without having heirs.” If this language is construed according to its technical meaning, the contingency, upon which Jacob H. Dunsmore’s fee simple estate in this land was to terminate, and the fee shift to others, has never happened. So far from dying “without having heirs” he died having very mauj' heirs, all the plaintiffs in this action and many others. But did the testator in this phrase, “ivithout having heirs,” mean to use the word “heirs” in its technical meaning, or did he mean by the word heirs as here used “heirs of his body ?” If he meant “heirs of his body,” then as his son did die “without having heirs,” and his fee simple estate was terminated by his death, the fee shifted to others by the terms of the will. How the testator, when he used the words “if my son Jacob Dunsmore
In Law v. Davis, 2 Stra. 850, the court say: “So if a devise he to A. and his heirs and for want of heirs to B., the brother of A., these last words restrain the word heirs to mean only ‘heirs of his body’ because it is impossible that A. can want an heir general while he has a brother.” Tt would obviously he otherwise if B. was in no way related-to A. but a stranger.
Very many cases of this character have been decided in the same manner and for the same reason. See Parker v. Thacker, 3 Lev. 70; Webb v. Hearing, Cro. Jac. 415; Lyte v. Willis, Cas. temp. Talb. 1,; Allen v. Spendlove, 1 Freem. 74; Pickering v. Towers, Amb. 363; Ives v. Legge, reported in note 3 T. R. 488; Doe on Dem. Comberbach v. Sir R. Perryn, 3 T. R. 484; Nottingham v. Jenkins, 1 P. Wms. 23; Goodnight
My conclusion therefore is that Jacob H. Dunsmore under the clause oí his father’s will took clearly not an absolute fee simple but only a defeasible fee simple in the lands so devised to him. His fee simple estate terminated and was shifted to others, “when he died without having heirs of his body,” which is admitted to be the fa^t. Of course therefore his grantee, Samuel W. Hickell, had no estate whatever in the land in controversy, unless he acquired some estate from the fact that the wife of Jacob H. Dunsmore, united with her husband in the deed of March 12, 1872. Had she then any estate either vested or contingent in this land to convey ? She clearly had not. If her husband had had a fee simple absolute in the land, she would have had no estate in it vested or contingent which she could convey. A wife during the life of her husband can never have any estate of any sort in her husband’s lands. What she has is a contingent right of dower in his lands, which he holds in fee simple. Hut this is no estate. It is contended by the counsel for the plaintiff in error, that it is equivalent to a contingent estate for life in one third of his fee simple lands provided she outlives her husband. But this is clearly a mistake. For upon the death of her husband, if she had such contingent life-estate in one third of his lands, it would immediately vestin her by operation of law; hut it does not vest in her, for all the land held by her husband in absolute fee on his death vests in his heirs in foe simple. It is true it is the duty of the husband’s heirs to assign to her dower, that is, to set off to her one third in value of her husband’s fee simple lands which have descended to his heirs, this third to be held by her for life. Hot until this assignment is made does the widow have any estate in her husband’s lands. If he does not perform this duty, she may bring a suit and compel the laying off of such dower by metes and bounds to be held by her for life. So that in her husband’s life-time she really has but a possible future right to have laid off to her one third in value of bis lands which he holds in fee; and this
But this right to have dower laid off to her in her husband’s lands, in which he had during the marriage a defeasible estate in fee simple, constitutes during the lifetime of her husband or even after his death, till this dower -was actually assigned to her, no estate of any kind in his land; hence the fact that she united with her husband in a deed to a third party conveying land, in which her husband had such defeasible fee simple, which, it so happened, terminated at his death, could not possibly confer on such party any estate in the land or in any part of it after her husband’s death, for she had no estate contingent or vested to convey. This was expressly so decided in Corr v. Porter, 33 Gratt. 278. Judge Staples in delivering the opinion of the court in that case goes still further, as I understand him, and says in effect, that the fact, that the wife united with her husband in a deed conveying land, in which her husband had such defeasible estate, confers on the vendee no rights of any character but simply operates to prevent her from setting up any claim to dower after her husband’s death; and that the purchaser acquires no rights legal or equitable. But so far as he states in substance that the fact, that the wife unites with her husband in sueli deed conferred on the vendee after the death of the husband, no equitable rights of any sort to the value of what would have been her dower interest in this land or any other right, is merely an obiter dictum; and, I must confess, his reasoning on this matter is not very satisfactory. The views taken by Scribner in his work on Dower, vol. 2 pp. 5, 8, when speaking of inchoate dower as a right of property is
The next enquiry is: Was the legal title to the whole or any part of the lands in controversy in the plaintiffs or in any of them? The answer to this enquiry depends upon the construction given to that portion of William Dunsmore’s will, which directed in the contingency, which did happen, “that Jacob IT. Dunsmore should divide the land between his sisters’ heirs as he may think proper.” This was a power coupled with a trust. The rule is thus laid down in Milhollen v. Rice, 13 W. Va. 510, point 7 of the syl.: “If the devisee of a life estate is simply authorized to dispose of the property at her death' among a certain definite class as she may think proper this will be held to be a power in the nature of a trust, unless it otherwise appears from the will, that the duty to execute such power to be inferred from its being granted, was designed by the testator to be left to be performed or left unperformed at the option of the party on whom such power was conferred. The rule being, that when there appears a general intention in favor of a class and a particular intention in favor of individuals of the class, and the particular intention fails from that selection not being-made, the court will carry into effect the general intention in favor of the class.”
The whole question, in case a power is given to one, who lias a life estate, to dispose of the fee to a class of persons to be divided among them as the life-tenant may think proper, as to when it is to be considered as a power coupled with a trust or when it is to be regarded as not coupled with a trust is fully discussed in this case of Milhollen v. Rice, the discussion of the question extending from page 543 to 566. The authorities are there fully reviewed; and from them and
But we must consider first, whether the division, the power to make which was given to the son of the testator but not exercised by him, was a division among the members of one class only, that is to say, the children of these sisters of this son, who might be living at his death, as the court below has decided in effect, or was it a division to be made among three distinct classes, that is the heirs of these three sisters severally. This last is apparently the meaning of the testator, if we give to the language he has used its usual and technical meaning. His words are: “IT e shall divide the land among his sisters’ heirs.” The word heirs must receive its usual and technical meaning, unless the context dearly indicates, that the testator used the word in some other sense. There are a number of cases, in which it has been held, that the will dearly showed that the testator used this word heirs in some other than its technical sense. Thus if the devise is a present one to take effect immediately on the death of the testator, and is to the heirs of a person known to the testator to be living, as such a devise could not possibly take effect immediately on the testator’s death, as the ancestor would be living, and no one can be the heir of a living person, this would show clearly that the testator by making a devise to the heirs of such living person to take effect at once did not use the word heirs in its technical sense but used it as the equivalent of heirs apparent, and hence in such case the heirs apparent of such person would immediately on the death of the testator take the estate devised to the heirs of such living ancestor, as the testator’s clearly
In the case before us the devise intended for the benefit of the heirs of the three sisters’-of Jacob II. Dunsmorc was not only a devise to take effect in futuro, but that it would ever take effect at all was contingent upon the death of Jacob II. Dunsmorc without heirs of his body. According therefore to these authorities, the words “ divide the land between his sisters’ heirs” must be regarded as having their usual signification; and the object of the testator’s bounty must be regarded as the three classes, the heirs of the three sisters of Jacob II. Duns-more, the word heirs receiving its usual technical meaning, that is, such persons as would on the death of each of the sisters severally be the heirs according to the law in force at the time of their several death's. But it is argued by the counsel for the defendant in error, that the will shows clearly on its face that the testator by using these -words “ the heirs
My conclusion thereforels, that we cannot find in this will any such uniform meauing attached by the testator to the word “heirs” as will give us auy aid in determining what he meant, when he directed in a certain contingency “this land to be divided among the heirs of the sisters of Jacob II. Dunsmore.” But in truth if we had found that in all the other clauses of this will, except the one we are construing, the word heirs was uniformly used by the testator as synonymous with the word children;yet we could not for that reason attach that meaning to it in this cause. Dor as was well said by the supreme court of Alabama in Lloyd v. Rumbo, 35 Ala. (new series) 712, Chief Justice Walker delivering the opinion of the court, “The word heirs occurs in a clause preceding and in one succeeding the sixth; and it is argued, that the words in those clauses must mean children, and that the testator must be supposed to have used the word in the same sense in the sixth clause.- It is a general, but not a universal rule, that the same word is to be understood in the same sense, when it occurs more than once in the same will. A well established exception to this rule is, that if a word'has a technical meaning in the law, and is accompanied by a context, in one clause, which shows the intention of the testator that it should be understood in a different sense, while in another clause it is used with reference to a different sub-
The rule thus laid down might perhaps have been laid down somewhat broader, and might have required perhaps the technical meaning to be given to a word, where there was nothing to show a contrary purpose except the use of the same word in a non-technical sense in other clauses of the will or even in the same clause of the will. But as laid down it covered the case before the Alabama supreme court, as it covers the ease now before us. One other objection however is urged by the counsel for the defendants in error to giving to the words in the clause wc are discussing uhis sisters’ heirs” the usual technical meaning; and that is, that Jacob Dunsmore, the son, if he should die without leaving heirs, •was to divide the land between his sisters’ heirs. And it is said that this must have meant his sisters’ children, as he could not have divided this land among persons then not born perhaps, and certainly no't known if any of his sisters were still living. This view seems to me to be without force. It is obvious, that this will intended that the testator’s son, Jacob H. Dunsmore, should divide this land by his will, as it is.clear the division under no circumstances could take effect till after his death; for the contingency, on which it was to take effect was, “If Jacob 11. Dunsmore should die without heirs of his body” which of course could not occur till his death. Now I see no sort of difficulty in Jacob Dunsmore dividing this land by his will among “the heirs of his sisters, as he might think proper,” whether all of the sisters were dead or some of them were living. Of course if they were all dead.when the will was written by Jacob II. Duns-more dividing this land, there would be no difficulty in making such division. And I can see no difficulty in Jacob II. Dunsmore making the division of this land as he might
The testator died in the spring of 1860. Of course there
By the heirs of his sisters it seems to me was obviously meant the immediate families of the sisters’ children and descendants living at the death of the sisters. And thus the technical and usual interpretation of this word heir prevents the exclusion from the testator’s bounty of any of the children, who might be living at the death of their mother, one of these sisters, whether he or she happened to be born after or before the death of Jacob II. Dunsmore; and it can scarcely be believed, that the testator meant to make any distinction between children born to these sisters before and those who were born after the death of Jacob II. Dunsmore, for no reason can be conceived why he should make such a distinction. But as I interpret this will, all such injustice and all unreasonable distinctions not dreamt of by the testator are avoided. For of course none of the shares or interest in this land, on the contingency which has happened, the death of Jacob II. Dunsmore without leaving heirs of his body living at his death, could vest till the death of one of these three sisters. One of these sisters, Mary Leach, died in 1881 about a year before Jacob II. Dunsmore died, and therefore one third of this land on the death of Jacob II. Dunsmore, leaving no heirs of his body went under the will of Wm. Duns-more, the testator, to the heirs of Mary Leach in fee simple, who were a number of children, whom she left living at her
The next enquiry is, as but one of these sisters was dead when this suit was instituted, and her children could claim but one undivided third part of the land in controversy in fee simple, and as no interest in this land belonged to the defendant below, Samuel W. Nickell, after the death of his grantor Jacob H. Dunsmore, leaving no heirs of his body, and as the other sisters, Catharine Tomilson and Eliza Vines, were still living and could therefore have then no heirs, where was the legal title to the remaining two undivided third parts of the land in controversy? As under the condition of things, which has arisen since the testator’s death, there was no one, in whom more than one third part of this land could vest on the death of Jacob II. Dunsmore leaving no heirs of his body, and as the remaining two undivided third parts of this land are not disposed of by this will till the death of the two sisters surviving, Catharine Tomlinson and Eliza Vinos, as a matter of com’se these two undivided third parts of this land on the death of Jacob II. Dunsmore leaving no heirs of his body descended to the heirs of the testator, Wm. Dunsmore, that is, as I understand, to Louis Dunsmore, Eliza Vines, Cath-arine Tomlinson, J. A. Dunsmore, the children of Mary Leach, deceased, and the children of Wm. Dunsmore, deceased, one undivided third part to be held by them till the
The judgment of the circuit court of Monroe county rendered on June 6, 1888, must therefore be reversed, set aside and annulled; and the defendants in error must pay to the plaintiff in error his costs in this Court expended; and if by the agreed state of facts it' was possible for this Court to determine, who among the plaintiffs were the heirs of Mary Leach, deceased, this Court would render a judgment in their favor for one undivided third part of the land in controversy to be held by them in fee simple, and would act upon and determine what further, if anything, should be done under the petition of Samuel W, Nickell to bo allowed-for his permanent improvement on this laud. But as the agreed facts do not show who are the heirs of Mary Leach, deceased, they are too imperfect to enable this Court or the circuit court to render any judgment in the case, and the agreed facts must be set aside and the case remanded to the circuit court for further proceedings. We suppose that Wra. Leacli, John A. Jjeach and Sarah C. Leach, plaintiffs below, are children of Mary Jjeach, but we cannot be assured merely from their names, that Sarah C. Leach is a daughter of Mary Jjeach, deceased. As for all we cau know from the agreed facts she might be a daughter of Catharine Tomlinson or Eliza Vines, who had married some one named Jjeach. So we may suppose that Angoline Style, ElizaS. JTpton and Mary J. Harris, are daughters of Mary Leach, deceased. But wo have no groundfor so surmising, except simply because the position of their names in the declaration is either with or near that of others, who are Leaches. Of course we could not assume this important fact from this mere position of their names in the declaration. It is not among the facts agreed, as if true, it should have been, in order to enable this Court to render any judgment in their favor. The agreed facts must be set aside as being too indefinite to permit any judgment to be rendered on them; and the case must be remanded to the circuit court of Monroe county to be pro-
We express no opinion in reference to the petition filed by Samuel W. Nickell relating to permanent improvements put on this land by him. It is obvious that his right to file this petition in the manner, in which he did was based on the fact that a judgment for this land had been rendered against him by the court; and as this judgment must be reversed and sot aside, this petition must therefore be stricken from the files, and the order permitting it to be filed set aside. After a proper judgment has been rendered in this case by the circuit court of Monroe county, this petition may be again presented, and must then be dealt with as the circuit eon rt deems proper; but as the plaintiffs may file with their declaration, if it is not to be regarded as already done, a statement of the profits and other damages, they mean to demand under § 30, ch. 90 of the Code, and the defendant may under § 32 same ch. file his claim for improvements, there may be no occasion for defendant to prosecute this action again. We say nothing about this petition now, except that if the ultimate judgment or claim of the plaintiff below should be only for an undivided third part of this land, as belongingto the heirs of Mai’y Leach in fee, and it should be held that the defendant Samuel W. Nickell is entitled to be compensated for his permanent improvements, he could claim to charge against the heirs of Mary Leach only oiie third part of these improvements, if that be the extent of their claim to this land.
REVERSED. Remanded.