Allison v. Allison's Ex'rs

• Decision Date: 11 June 1903
• Citation: 44 S.E. 904,101 Va. 537
• Parties: ALLISON et al. v. ALLISON'S EX'RS et al.
• Court: Virginia Supreme Court

44 S.E. 904

101 Va. 537

ALLISON et al.

v.ALLISON'S EX'RS et al.

Supreme Court of Appeals of Virginia.

June 11, 1903.

WILLS—CONSTRUCTION—REMAINDERS—PRETERMITTED CHILDREN—BILL TO CONSTRUE WILL—COSTS.

1. Where the parties who will take cannot be ascertained until the happening of the event, the remainder is contingent.

2. Words used in a will should be given their ordinary and usual signification, but, where technical words are used they are presumed to be used technically, and words of a definite legal signification are understood as used in their definite legal sense, unless the contrary appears on the face of the instrument.

3. The word "heir, " when unexplained and uncontrolled by the context, must be interpreted according to its strict and technical import.

4. Upon a devise to one for life, and at his death to the heirs of the testator, the heirs are to be ascertained as of the death of the testator, and not as of the date of the termination of the life estate.

5. Where there is a contingent remainder in fee simple, with an alternative remainder limited as a substitute, the latter is necessarily contingent.

6. Upon a limitation of real property to "heirs, " the right heir, only, will take; upon a limitation of personal property to "heirs, " the word will be construed as "distributees"; upon a limitation of blended property to "heirs at law, " the persons answering that description take the whole—if there is nothing to indicate a contrary intention on the part of the testator.

7. Words of survivorship are to be construed as referring to the testator's death, unless a special intent to the contrary appears upon the face of the will; and if, upon a fair construction of the whole will, there is a doubt as to the character of the remainder, the courts will hold it to be vested, rather than contingent.

8. The present capacity of taking effect in possession if the possession were to become vacant distinguishes a vested from a contingent remainder.

9. Code 18S7, § 2528, providing for pretermitted children, was not intended to produce equality or to diminish the power of the testator, and any provision which affords evidence that the child has not been forgotten is sufficient to prevent the application of the statute; and a vested remainder, carrying with it a vested right of property, answers its demands.

10. Where the executors would inevitably have had to resort to the court for aid in construing the will, they should bear the costs of the litigation between claimants in which that construction is ascertained.

Cardwell, J., dissenting.

Appeal from Chancery Court of Richmond.

Bill filed by one Allison against the executors of James W. Allison and others to obtain the construction of decedent's will. Decree rendered, and certain of the parties appeal. Decree amended, and, as amended, affirmed.

Christian & Christian, for appellants.

Leake & Carter, Meredith & Cocke, J. Preston Carson, and Samuel A, Anderson, for appellees.

KEITH, P. The bill in this case asks the court to construe the will of James W. Allison made on October 2, 1885, and the codicil thereto dated November 29, 1892, which will and codicil are as follows:

"In case I should not return, this is my will with regard to my property: I give to Warner Moore the property on the dock between the creek and 17th streets, running from the dock to the river, to have and to hold—reserving, however, an annual ground rent free of all taxes and insurance or assessments of six hundred dollars per annum, which he is to pay to my sister, Jane E. Moore, during her life, and after her death to her daughters, Annie W. and Mary Elizabeth, to be divided equally between them so long as they both may live, and at the death of either, the whole amount to be paid to the survivor—at the death of the last one, the ground rent is to expire and cease and Warner Moore or his heirs is to have a fee simple title to the property.

"I give to my sister, Victoria Ellen Carson, ten thousand dollars in cash, to be paid by my executors at any time within two years after they qualify.

"All the residue of my estate, real, personal, and mixed, I give to my executors in trust for the sole and separate use of my daughter, Dora, wife of Thomas L. Moore, to have and to hold for her benefit during her natural life, free from the control of her said husband, and at her death to be equally divided among her children, should any survive her—if she should die without issue, or if her surviving child or children should die before becoming of age, then the property bequeathed for the benefit of my daughter is to be divided among my heirs at law according to the laws of the state of Virginia.

"I nominate and appoint my brother, William H. Allison, and my nephew, Warner Moore, my executors, and request that no bond be required of them.

"Witness my hand and seal this second day of October, 1885.

"James W. Allison. [Seal.]

"With regard to settling up that business at the Plaster and Sumac Mill, it is my desire and will that Warner Moore should pay to my estate ten per cent. per annum for all the money I have advanced and expended in the purchase of the land and putting up the buildings left to Moore, and the cash given him from time to time. That is to say, 1 want ten per cent. per annum in the shape of a rental and interest, on the whole amount expended and furnished by me in the property and for the business—this for each year since the commencement of the business, on the amount at that time expended and advanced.

"And besides this rental I want one-fourth of the net profits of the business after deducting the aforesaid rental or interest. The bequest to Warner Moore is upon the condition that the business is settled up as here directed, otherwise it is to be void.

"Witness my hand and seal this second day of October, 1885.

"James W. Allison. [Seal.]"

"New York, Nov. 20, 1892.

"To provide against my sudden death causing injustice to my dear wife, Minnie Clemens Allison, I hereby direct my executor, or executors, to invest one hundred thousand dollars in good income paying real estate or in some safe stocks or bonds, preferably real estate, to be held by my said executor and my brother-in-law, Clemens Jones, as joint trustees for her sole and separate use, and benefit during her natural life, and at her death to go to her child or children, if there should be any by me—and if there should be no child or children by me, then to go to my legal heirs. I intend this legacy of one hundred thousand dollars for life to be in addition to the sum of fifty thousand dollars settled upon my said wife, Minnie Clemens Allison, by an ante-nuptial agreement between her as Minnie Clemens Jones and myself, executed at Fairfield, Conn., on or about December 10, 1890.

"As to the remainder of my estate, I wish it to be distributed as directed in a certain letter of testamentary directions written by me to my brother, Wm. H. Allison, from this city on the eve of my departure for Europe, in company with Calderon Carlisle—in the fall of the year 1885, as nearly as I can fix the date—and I appoint my said brother and any one else named as executor in that letter as my executor or executors, and direct that no bond be required of him or them.

"In confirming the directions given in the letter herein referred to, I desire only such changes to be made as will equitably and practically carry out its intentions in case of the death of any beneficiary therein named making a change necessary, and I wish the legal heirs of any such beneficiary to receive such beneficiaries share.

"James W. Allison.

"Witness my hand and seal the day and year above written.

"James W. Allison. [Seal.]"

When the paper of 1885 was written the testator was a widower with one child, the appellee Mrs. Dora Moore. On December 4, 1890, in contemplation of marriage with the appellant Mrs. Minnie C. Allison, he settled upon her, in lieu of her dower and distributive share in his estate, the sum of $50,000. On December 10, 1890, the second marriage was consummated; and on June 10, 1894, James W. Allison, the infant appellant, was born of this marriage. On March 25, 1898, the testator died, leaving a large estate, real and personal, and surviving him his widow, his daughter, Mrs. Dora Moore, his infant son, his brother, William H. Allison, his sister Mrs. E. V. Carson, and the descendants of two deceased sisters.

The first error assigned to the decree of the chancery court of the city of Richmond is that "its construction of the residuary clause of the will amounts merely to a declaration of future rights, and not necessary to any present relief to which any party is entitled; and upon the further ground that the persons who may be interested in such decision cannot be brought before the court, may not be in being, and would not be concluded by a decision at this time." The chancery court, however, being of opinion that it was proper to hear and determine all questions arising upon the pleadings, overruled this objection.

This assignment of error was waived at the hearing, and is only mentioned in order that the opinion may show what disposition was made of it.

The next question which we shall consider is as to the nature of the limitation of the residuary estate contained in the testamentary paper of October 2, 1885, after the death of Mrs. Dora Moore.

After making certain bequests, the testator gives the residue of his estate, real, personal, and mixed, to executors in trust "for the sole and separate use of my daughter, Dora, wife of Thomas L. Moore, to have and to hold for her benefit during her natural life, free from the control of her sa!d husband, and at her death to be equally divided among her children, should any survive her— if she should die without issue, or if her surviving child or children should die beforebecoming of age, then the property bequeathed for the benefit of my daughter is to be divided among my heirs at law according to the laws of the state...