127 Va. 537 | Va. | 1920
delivered the opinion of the court.
This appeal brings before us for interpretation the will of Francisco X. Monteiro. This will was probated in Goochland County Court, February 18, 1849, and is in terms as follows:
“I, F. X. Monteiro, of the county of Goochland, being desirous to dispose of my estate do hereby make my last will and testament in manner and form following, that is to say: I do hereby constitute and appoint my two sons, Henry and Aristides, executors of this my last will, and give to them during their lifetime the land I own and all the stock and farming utensils, and slaves except Dolly and her children, to hold it jointly and after the death of the last of the two to their descendants, if they have any, if not to my son Archimides or his descendants, I give the above mentioned property without restriction. To my daughter, Emilia, I give during her life the dividends on all the bank stock I may own at the time of my death, of which she will give the fourth part to her brother, Archimides, yearly; and also give the use of the woman Dolly*540 and her children. After her death my son, Archimides, will have this woman and her offsprings and one-half of the bank stock, and the other half will go to my executors, or their descendants. I had four other sons that have parted with me at different times; if they be alive and call within three years after my death, my executors will give to Alicides and Miltiades one hundred dollars each, to Frances and Edward, ten dollars each. The balance of my property must be used in community, or friendly divided between my executors, my daughter, Emilia, and my son, Archimides, or any of them that be alive, and qualified to receive it at the time of my death. It is my desire that these four last mentioned children of mine substitute one another in all events, that I cannot foresee so that the main part of my property may not pass out of them or their descendants while it be lawful and possible. My executors shall not be obliged to give security to execute this my last will, neither to make inventory or have the properly appraised. They are requested to ordér no funeral ceremonies after my death. The present will is wholly written by my own hand. In witness whereof, I have hereunto set my hand and affixed my seal, this first day of April, in the year oné thousand eight hundred and forty-eight.
“F. X. MONTEIRO.”
A few years after the will was probated, apparently under the impression that the first paragraph of the same lodged in them a joint fee in the land devised, the devisees, Henry and Aristides, made a partition of this land, Aristides taking a tract of 313 acres and a piece of woodland adjoining, containing about fifteen acres, and Henry taking a tract of 343 acres. The tract taken by Aristides is known as “Monterey,” and that taken by Henry as “Montrose.” The deed effecting this partition was duly acknowledged
In the year 1870, for some reason which cannot now be ascertained, Aristides Monteiro, as guardian for his infant children, and in his own right, brought a suit against said infants, the infant children of his brother, Henry X. Monteiro, his brother Archimides Monteiro, and sister Emilia ' Monteiro. The papers of this suit have been lost, and nothing in connection therewith can be located, save a decree entered in the suit on April 6, 1870. This decree is as follows:
“This cause coming on to be heard on the bill and exhibits filed, the answers of the adult defendants, Archimides Monteiro and Emilia Monteiro, the answers of the infant defendants, Clarence E. Monteiro, Frank Monteiro, Moses T. Monteiro and Henry G. Monteiro, who are over fourteen years old in their proper persons, and the deposition of a witness was argued by counsel. On consideration whereof, the court being satisfied from the proof that the interests of the parties will be promoted by a sale of the 313 acres of land in the bill mentioned, doth adjudge, order and decree that Aristides Monteiro, who is hereby appointed a commissioner for the purpose, do after advertising the time and place of sale once a week for four weeks in some newspaper published in the city of Richmond, and by notice posted at the door of the courthouse of Goochland county, on • some court day preceding the day of sale and at two or more public places in the neighborhood of the land, do proceed to sell at public auction to the highest bidder upon the premises the said tract of land upon the following terms, that is to say, for cash enough to pay the cost of this suit and the expenses of sale, and as to the residue upon a credit of one, two, three and four years for bonds on equal instalments bearing interest from date and secured by a good
“And he shall make full report to this court of his proceedings and return any bonds taken by him and his vouchers for disbursements. And the said commissioner shall receive no money under any sale he may make until he shall have given bond before the clerk of this court in his office, a bond with good security conditioned according to law in a penalty of at least double the amount of money so received.”
In May, 1882, Aristides Monteiro conveyed to Charles W. Turner the tract known as Monterey, which had been conveyed to him in the partition deed, cited sv/pra. By deed dated October 31, 1893, Charles Turner conveyed Monterey to his wife, Mollie A. Turner, who is the appellant in these proceedings.
The place known as Montrose, or at least so much as was left of it, was partitioned in January, 1906, between the parties then owning it, to-wit: Robert H. Monteiro, Charles F. Monteiro and Fanny Monteiro, who are the children of Frank X. Monteiro and grandchildren of Henry X. Monteiro, the son of the testator, Francisco X. Monteiro. In 1914, Charles F: Monteiro, who had acquired by inheritance, or purchase, various interests in Montrose, brought a suit against the descendants of Francisco X. Monteiro, Mollie A. Turner and others, alleging that his title to his interests in Montrose had been questioned, and asking that the will of Francisco Monteiro be construed, and the exact, estates in the land passing by his will be ascertained and established. Mollie A. Turner filed a separate answer to this bill, setting
• Upon the issues presented, the Circuit Court of Goochland county held that under the will of Francisco Monteiro, his sons, Aristides and Henry, took a “life estate only in the 'land devised, with a contingent remainder over in fee in the descendants of said first takers, jointly, and that the word ‘descendants/ in said will, was not used in the technical sense, as a word of inheritance, but described the persons to take, if any, at the time of the death of the survivor of the two life tenants.” To this finding of the court, on the application of Mrs. Mollie A. Turner, an appeal and supersedeas were allowed by one of the judges of this court.
The clause of the will of Francisco Monteiro necessary to be construed to determine the estate taken' by his sons, Aristides and Henry, is the following:
“I do hereby constitute and appoint my two sons, Henry and Aristides, executors of this my last will, and give to them during their lifetime the land I own, with all the stock and farming utensils and slaves, except Dolly and her children, to hold it jointly, and after the death of the last of the two, to their descendants, if they have any, if not to my son, Archimides, or his descendants, I give the above mentioned property without restriction.”
lit is plain enough that Henry and Aristides take an estate of freehold in the land passing by the will. It is equally plain that an estate by way of remainder is immediately limited to the descendants of the tenants of the freehold. So far, there are no difficulties^ But is the word “descendants,” as used by the testator, a word of limitation carrying the inheritance to the ancestors, or is it a word of purchase, creating a contingent remainder in the descendants?
In the brief for H. L. Monteiro and associate appellees, it is insisted that the testator used the word “descendants” in the sense of children of the first takers. Aid for this contention is sought, and considered to be found, in the will as a whole, and in the context of the word “descendants.” The argument of the brief on this point is of interest in this connection: “Is it not evident that it was the testator’s intention to give his lands to his sons, Henry and Aristides* ‘during their lifetime,’ with remainder to the survivor, and after the death of the last of the two, to their descendants (or children) if they have any? The testator expressly desired that the main part of his property may not pass out of them or their ‘descendants/ while it is lawful and possible. Is it not apparent that he used the word ‘descendants’ of Henry and Aristides in the sense of children of the first takers, when he further provides that if they have no descendants (children) living at the death of the survivor of the two, the property should go to Archimides, or his descendants, without restrictions? In order to make the rule in Shelley’s Case apply to this devise, It would be necessary to give the word descendants the technical meaning of
After careful consideration of the passages cited from the testator’s will in support of the contention that he used the word “descendants” intending to signify children, the court is unablé to derive much assistance therefrom in its effort to ascertain the testator’s intention. The words, “I give the above mentioned property without restriction,” which conclude the first sentence of the will, may refer as well to the testator’s provision for Aristides and Henry and their descendants as to the remainder, “to Archimides or his descendants.” But in either event, whether it was intended to apply to the three brothers and their descendants, or exclusively to Archimides and his descendants, the meaning of these words is utterly obscure, and affords no indication whatever that the testator used the word “descendants” as synonymous with the word “children.” The expression of the testator’s desire that the main part of his property
“There seems to be no essential difference in the application of the rule to wills and to deeds * * *. Where the estate is so given that, after the limitation of the freehold to the ancestor, it is to go to every person who can claim as heir of the ancestor, the word heirs must be a word of limitation. That is, if the limitation to the heirs is so calculated, and directed, that the person claiming under it must entitle himself merely under the description of heir to the first taker, in the technical sense of the word, and if there is nothing to restrain the same words from equally extending to and comprehending all other persons necessarily answering the same description, or from entitling them alike under it, eo nomine only, then whether the limitation is contained in a deed or a will, the rule applies, and the ancestor takes an estate of inheritance.” 2 Minor’s Inst. (4th ed.), p. 408.
The principles announced in the paragraph cited may be readily applied to the will under consideration. The land conveyed to the ancestors in the instant case is to go after their death to every person who can claim as a “descendant” of the ancestor. Hence, the word “descendant” is a word of limitation in the contemplation of the law. The limitation in this will is so calculated and directed that a person claiming under it need entitle himself merely under the description of “descendant” of the first taker. There is nothing to restrain the word used from equally extending to and comprehending all other persons answering the description of “descendant,” or from entitling them alike under it and eo nomine only.
“The word ‘descendants’ comprises issue of every degree.” Neilson v. Brett, 99 Va. 677, 40 S. E. 32.
“Descendants in a will are equivalent to heirs of the body.[’ Minor on Real Property, Vol. 1, p. 837.
'“Descendants are issue of every degree.” 2 Jarman on Wills (5th ed.), pp. 98, 101.
See also 13 Cyc., p. 1048, which defines “descendant,” as an heir in the direct descending line, issue of the body.
In one case at least it has been held that “descendant” does not mean child. See 13 Cyc., p. 1048, note, in which the following ruling is cited: “In this case there is what appears to me to be a perfectly unambiguous word ‘descendants’—a word which I venture to say no layman or lawyer would use to designate children only (italics supplied), and it is difficult to conceive any context by which the word ‘descendants’ could be limited to mean children only.”
There are various decisions in the Virginia precedents in
In King v. Johnson, 117 Va. 49, 83 S. E. 1070, the following provision is found in the will of Thomas King: “I give to my son, Rufus, all of my real estate in the county of Westmoreland, for and during his natural life, and should he die with a lawful heir, to his heir or heirs forever. But should he die without issue, I give the land to my son, Alexander King, to him and his heirs forever.” Rufus King died leaving several children who claimed the inheritance. This court, Buchanan, J., delivering the opinion, said: “That if the will had been executed since the doctrine known as the rule in Shelley’s Case was abolished, there would be no question that Rufus King took only a life estate in the land, but as the devise was made in 1845, or 1846, before the abolition of the rule, its. meaning must be determined by the law as it then existed.” After stating the terms of the rule and certain fundamental principles of construction, the court concluded as follows: “Applying this rule of construction to the devise under consideration, there is nothing in the will which plainly shows (italics supplied) that the words
In Hall v. Smith, 25 Gratt. (66 Va.) 70, the following extract from the will of the testator will be found on p. 71: “I lend to my daughter Mary C. her portion during her life, and after her death I give the same to the lawful issue of her body, to them and their heirs and assigns forever.” The court held that Mary C. took an estate tail in the realty, under the rule in Shelley’s Case.
The case of Stokes v. VanWyck, which seems to be precisely in point, will be found in 83 Va. 724, 3 S. E. 387. In that case the court construed the sixth clause of the will of William Boush, which was as follows: “I give and bequeath to my daughter, Elizabeth Jacomine Walke and her husband, David M. Walke, during theiry oint lives] and to the survivor of them during the life of such survivor” (this was the same provision made by Francisco Monteiro for his sons, Aristides and Henry) “the land and plantation on which I now live; and if my daughter should die leaving issue, at her death, I give the said land after the termination of the life estate aforesaid to such issue, and to his, her, or their
“Where the joint limitation of the freehold to several is followed by a joint limitation to the heirs of the same parties, the rule applies—e. 9., grant to A and B for their joint lives, remainder to C for life, remainder to the heirs of A and B. Here both limitations being of the same quality, that is both joint, the fee vests in the ancestors jointly.” 2 Minor’s Inst. (4th ed.), p. 405.
Having reached the conclusion announced, it is unnecessary to consider the contentions of the appellant with reference to the effect to be given to the proceedings in the suit of Aristides Monteiro v. Archimides Monteiro and others, cited supra.
For the reasons heretofore given, it is considered that the decree of June 10, 1918, of the Circuit Court of Goochland county should be reversed, and this court will enter the decree proper to have been entered in the first instance.
Reversed.