129 Va. 615 | Va. | 1921
delivered the opinion of the court.
The appellant filed her bill against Ashland C. George and others, the object of which was to establish a legacy under the will of her father, Samuel W. George, Sr., as a charge and lien upon the corpus of certain real estate which had been devised by her father, Samuel W. George, Sr., to her brother, Ashland C. George, for life, with remainder to his heirs at law.
Two of the children of Ashland C. George answered the bill and denied that the legacy was a lien upon their interest in the property. The circuit court entered a decree, the substantial part of which reads thus:
“On consideration whereof, the court is of the opinion that the sum of four thousand dollars required in the will of Samuel George, deceased, to be paid to Leah Elizabeth Wenner by Ashland C. George is a mere personal charge on the said Ashland C. George and is in no wise a lien or charge upon the land devised the said Ashland C. George for life, nor on the interest in remainder.
“And, further, the court is of the opinion that the true construction of the following clause of the will of Samuel George: T will and bequeath to my son, Ashland Clay, the farm on which he at present resides, known as the Hamilton farm, also to the said Ashland C. George the mountain lot known as the Hamilton and Cole land, on the east side of Short hill, provided the said Ashland C. George pays to his sister, Leah Eliabzeth Wenner, the sum of four thousand
From this decree, both Leah Elizabeth Wenner and Ash-land C. George have appealed.
The conduct of these parties clearly shows that they accepted all of the benefits conferred by this will, which was probated September 9, 1889. Ashland C. George has continued in possession of the real estate devised ever since that time. He has never paid any part of the principal, but has paid the interest on the $4,000 legacy to his sister up to September 9, 1918, and until this suit was instituted in April, 1919, the legatee has not asserted the right to charge her legacy as a lien upon the real estate.
Under those circumstances it seems to .us that the decree complained of is substantially right; that the testator intended that his son, Ashland C. George, should personally pay the $4,000 legacy seems to us uncontrovertible. His language is too plain to be, misunderstood. Ashland C. George is by name directed to pay the amount, and when the testator disposes of the remainder, after the expiration of the life estate, there is no suggestion in the language used and hereinbegore quoted that the interest of the remaindermen is charged with any part thereof. At that time, Ashland C. George was about thirty-seven years old, and the will directed that the legacy should be wholly paid within ten years, certainly a period well within his natural expectation of life according to the mortality tables. So that, in our view, the decree of the trial court which exonerated the remainder enforced the true intent of the testator.
Ashland C. George also appeals from the decree upon the ground that he is held personally liable for the legacy, insisting that the legacy should be adjudged to be a lien upon the corpus of the estate, and that the interest of the remaindermen should be charged with their just proportion thereof.
It is perhaps immaterial in this case that the trial court failed to hold that the legacy constituted a charge against the life estate of Ashland C. George, because the record appears to indicate that Ashland C. George is financially able to pay the amount. The trial court, however, should have followed the precedents indicated by the cases of Jackson v. Updegraffe, 1 Rob. (40 Va.) 114, and Cockerville v. Dale, 33 Gratt. (74 Va.) 45, and held that the life estate devised to Ashland C. George was an auxiliary security for this legacy and charged therewith as the only property indicated by the testator for its payment.
The decree will, therefore, be amended so as to show that the life estate vested upon the death of the testator and that the legacy is a lien thereon; and as thus amended, it will be affirmed.
Amended and affirmed.