Wallace's Ex'rs v. Wallace

15 W. Va. 722 | W. Va. | 1879

Moore, Judge,

delivered the opinion of the Court:

The testator by his will desired his property to be divided into six equal parts, or as the will says, “into sixths.” One-sixth to be given to his son William H., one-sixth to his son Spaulding K, with the proviso that each of them pay to Miss Bigham $2,500.00 each, or $5,000.00 in all; the balance “to be distributed in accordance with law made and provided for intestate estates,” for the benefit of his wife and the children born to him by her. The children born to him by her, the record shows to be eight. The plaintiffs, William H. and Spaulding K., were his sons from a former wife. To the widow and eight children the balance, or four sixths, was given to be distributed between them according to the statute for the distribution of an intestate’s estate, .or personal property, (the realty not being taken into consideration in this suit.) Therefore under the will the widow would be entitled to one-third of four-sixths, and her eight children to the balance, or two-thirds of four-sixths. In other words, to make it more clear, as the proposition is the same, the will may be construed as if it directed the personal estate to be divided into ninths, of which to the plaintiffs the will gives three-ninths, subject to a specific charge, and to the widow and the eight younger children six-ninths to be divided amongst them, of which the widow would receive one-third, that is two-ninths and her eight children the balance, that is four-ninths. But the widow having renounced the provisions of the will, as she had the legal Syllabus 1. right to do, and claimed what the law gives her, that is one-third, or what is the same, three-ninths of the whole personal estate, the plaintiffs have filed this bill, presenting the question, as to how the balance of the personal estate should be divided among the other legatees, viz : the plaintiffs and the said eight children ? As the bequests to the plaintiffs and the eight children were precisely of the same character, viz: general bequests, the plaintiffs three-ninths of the personal estate and the other children four-ninths, it is obvious that the distribution of the balance of the personal estate, after the widow has been assigned her share, must be made so that the share of the plaintiffs and of the younger children should be in the same proportion that by the will they were to take the personal estate. But by the will the plaintiffs got three parts, whilst the eight children got four parts. The gyllabus 2. . , residue, therefore, after taking out the widow s snare, is to be so divided as that the plaintiffs shall get three parts thereof, and the eight children get four parts. That is obviously effected by dividing the portion of the estate to be distributed among the children into seven equal parts, and assigning three of these parts to the two oldest children, the plaintiffs, and four of them to the eight children. By this-division the loss to all the children, arising'from the widow renouncing the will, would be borne by them all in the exact proportion to the amount given each of them by the will.

To illustrate this, let ns suppose that the entire personal estate of Henry Wallace amounted to.$63,000.00

By the will plaintiffs get three-ninths, or one-third, subject to a charge to Miss Bigham, that is.$21,000.00

The eight children get four-ninths, or. 28,000.00

The widow gets two-ninths, or. 14,000.00

Total estate. $63,000.00

But by the renunciation of the will, the widow instead of getting $14,000100, (which would be under the will two-ninths of the whole, or one-third of the balance left her and her children, under the hypothesis that $63.000.00 was the amount of the personalty,) would get one-third of the whole personalty, or $21,000.00 of the hypothetical $63,000.00, leaving for distribution $42,000.00, of which the plaintiffs would get three-sevenths, or $18,000.00, and the eight children would g&t four-sevenths, or $24,000.00. Therefore, following up the hypothetical figures, it is apparent that the plaintiffs would have received under the will, $21,000.00, but in consequence of the renunciation, they now get but $18,000.00; they thus lose $3,000.00. The eight children would have received under the will $28,000.00, but by the renunciation they get but $24,000.00; they thus lose, therefore, $4,000.00. The whole loss thrown on all the children was the difference between what the widow would have received under the will $14,000.00, and.what she takes by its renunciation, $21,000.00, that is to say, $7,000.00, of which the plaintiffs sustain the loss of $3,000.00, and the eight children a loss of $4,000.00. And this is as it should be, as the plaintiffs under the will were to get $21,000.00? and the eight children $28,000.00, and these sums are in exact proportion to the loss they respectively sustain, that is as $3,000.00 is to $4,000.00. Therefore, if the personal estate amounted to $63,000.00, it would be distributed thus:

To the -widow, one-third.;. $21,000 00

To the plaintiffs each $9,000.00. 18,000 00

To the eight children each $3,000.00. 24,000 00

Total persnoal estate. $63,000 Oo

This is to say, that the entire personal estate should be divided into sixty-three equal parts, and of these parts, the widow must be given twenty-one parts, the two plaintiffs each nine parts, making eighteen parts, and to each of the eight children, three parts, malkingtwenty-four parts. Or, what amounts to the same thing; the estate may be divided into twenty-one parts, of which seven should go to the widow, one part to each of the eight children, and three parts to each of the two plaintiffs. In making the distribution,'the amount which may have been paid to Miss Clementine Bigham, is to be considered as a part of the estate for distribution, and is to be taken out of the shares of the plaintiffs on which it was expressly made a charge by the will.

We are called upon in this case only to consider the personal estate, as the mode of the division of the real estate is not involved in this suit; therefore no opinion is expressed herein as to the realty. It is to be understood that the specific legacy to Miss Clementine Bigham of $5,000.00, cannot be made to bear any portion of the loss produced by the widow’s renunciation, and the will having made it a charge on the shares of the two eldest children, the plaintiffs, it must be paid out of their shares; no part of it can be taken from the shares of the eight children. The circuit court was clearly right in declining in this suit to consider the question, made by the answer, of advancements made to the plaintiffs, and leaving it to be set up in another suit, if the defendants deem proper to bring such suit, because the question of advancement is entirely foreign to the objects sought by plaintiffs’ bill in this suit.

The decree of the circuit court must be reversed and annulled, and as the costs of this suit, both in this Court and in the circuit court, ought to be borne equally by all the parties interested in the estate, in proportion to the respective shares, or interest, which will be effected by directing the executors to pay the same out of the estate, therefore the said executors should pay said costs of both courts out of the assets of their testator in their hands to be expended, and a decree should be entered in this Court in accordance with the above opinion.

The OtheR Judges Concurred.

Decree Reversed.