91 Va. 286 | Va. | 1895
delivered the opinion of the court.
The last will and testament of William Bosher, which was probated in the County Court of King William county, February 23, 1885, devises, by the first clause thereof, a tract of land to his daughter Martha Ann Dabney.
By the second clause he provides for his daughters Mary Jane Smoot and Margaret R. Bosher, by giving to them, or the survivor of them, the plantation on which he resided, with all his household and kitchen furniture, money on hand, hoises, cows, and fanning tools, and “all income from the ferry and all other sources during their lives, they to pay all my debts, and all claims either may have against me to be cancelled as paid. ’5
“Third. At the death of my daughters, M. J. Smoot, and M. R. Bosher, I give to my daughter, Martha Ann Dabney, and Gabriel la Scott and them children, the ferry and lots in Old Hanover town.
The fourth clause of the will is as follows: “I give unto my sons George L. Bosher, and Charles M. Bosher and
By a codicil to his will he declares that- “all given to M. J. Smoot and Margaret R. Bosher I give in fee simple to do as they please with. (Signed) William Bosher; ” and as this codicil in no wise affects the question to- be decided, it need not be again adverted to.
This bill was filed by Thomas L. Waring and Ella F., his wife, who was Ella F. Bosher. They complain that Thomas J. Bosher, administrator of William Bosher, deceased, has refused to pay over to Ella F. Waring the Yirginia Fire and Marine stock bequeathed by the will, but that he has since the death of the testator paid over the annual dividends upon said stock to Mary Jane Smoot and Margaret R. Bosher, claiming that it was a part of the income of the testator’s estate, and passed to them under the second clause of the will above referred to.
It seems that Mary Jane Smoot is dead, and that Margaret R. Bosher is a lunatic.
The case was duly matured for hearing in the Circuit Court of King William county, and that court decided that the ad- ■ ministrator’s construction of the will was correct; that the income from this stock during the lifetime of Mary Jane Smoot and Margaret R. Bosher was payable to them, and that Mary Jane Smoot being dead, one-half of the stock was to be de
The object of courts in construing wills is to arrive at the true intent of the testator, but that intent is to be gathered from the language used. “Conjecture,’" it has been said, “cannot be permitted to usurp the place of judicial conclusion, nor supply what the testator has failed sufficiently to indicate.” Wooten v. Redd, 12 Gratt. 206. “The intention must be collected from the words of the will, for the object of construction is not to ascertain the presumed or supposed, but the expressed, intention of the testator, that is, the meaning, which the words of the will, correctly interpreted, convey.” Hatcher v. Hatcher, 89 Va. 171. “A clearly expressed intention in one portion of the will is not to yield to a doubtful construction in any other portion of the instrument.” Red-field on Wills, 434; Schouler on Wills, section 468.
Applying these universal canons of construction and interpretation to the will in this case, and the question seems free from all doubt. The second clause of the will, as we have seen, after bequeathing to Mary Jane Smoot and Margaret B. Bosher certain real and personal property, further declares, “I give them all income from the ferry and all other sources during their lives, they to pay all my debts. All claims either may have against me to be cancelled as paid. ’ ’ And just here it may be well to advert to a fact upon which the counsel for appellees dwelt with great feeling and eloquence.
We are of opinion that the Circuit Court erred in the construction which it placed upon the will of William Bosher, deceased, and that its decree should have been that the forty-five shares of the marine stock, in the bill and proceeding mentioned, should be transferred to the plaintiffs, who should also have recovered the dividends thereon since the death of the testator.
Beverseb.