Am. Nat. Bank v. Chapin

• Decision Date: 16 June 1921
• Citation: 107 S.E. 636
• Parties: AMERICAN NAT. BANK v. CHAPIN et al.
• Court: Virginia Supreme Court

107 S.E. 636

AMERICAN NAT. BANK

v.CHAPIN et al.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Court of Land Registration for City of Richmond.

Suit by American National Bank against C. C. Chapin, trustee, and others, for the registration of title to three lots. From a decree refusing to order a certificate of absolute title to two of the lots, after the proceedings were severed as to the third, complainant appeals. Reversed and remanded.

Jas. B. Cannon, E. C. Massie and George Bryan, all of Richmond, for appellant.

Daniel Grinnnn and Leake & Buford, all of Richmond, for appellees.

KELLY, P. This suit was brought under the provisions of the Uniform Land Registration Act (Acts 1916, pp. 70, 558; Code 1919, § 5225). The petition was filed by the American National Bank of Richmond, and the object was to register the title to the lots known as Nos. 1001 and 1003, occupied by the American National Bank building, and the lot known as No. 1005, occupied by the American Trust Company building. The principal question for decision, however, involves no peculiar phase or feature of the Land Registration Act, and might have arisen in any other proceeding requiring an adjudication upon the title.

There being no controversy as to the title of the petitioner to lot No. 1005, the proceedings as to that property were severed, as permitted by section 41 of the act, and a final decree was entered directing the issuance of a certificate as prayed for. But, as to lots 1001 and 1003, the court refused to order a certificate of absolute title on the ground that lot 1003 (one of the two lots occupied by the bank building) "is subject to the contingencies set out in the will of Charles E. Whit-lock, " a former owner.

One of the assignments of error is that the court ought at least to have ordered a certificate as to lot 1001, the title to which was not in dispute. We overrule this assignment. The petition treats the two lots as constituting a single piece of property, and does not ask for the registration of 1001 distinct and separate from 1003. Moreover, the petitioner's bank building occupies both lots, and, under the facts of this case, the court would have been entirely warranted in holding that the title to 1001 was not "proper for registration" (section 44 of the act), separate and apart from 1003, even if the petition had contained a distinct prayer to that effect.

The important and decisive question in the ease is whether the petitioner showed a complete title to lot 1003.

This lot was owned in fee simple absolute by Charles E. Whitlock, who died in 1895, leaving certain testamentary papers, which together were judicially ascertained to constitute his will, and duly admitted to probate as such. See Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. At his death he was survived by his widow, Elizabeth B. Whitlock, and three infant children, Elizabeth, Lulie, and Charles Whitlock. The widow renounced the will, and claimed her dower and distributive share in the estate. This action on her part, as will presently appear, necessarily upset a very material portion of the testamentary scheme, and in the end brought about the controversy arising in this case. The estate was large and valuable. A number of suits were brought in the courts of the city of Richmond for various purposes affecting its administration and distribution. In one of these, by decree of October 27, 1896, lot 1003 was assigned to the widow as part of her dower. Subsequently, by deed dated April 12, 1909, the widow and her three children, all of whom had become of age, granted and conveyed lot 1003 to the petitioner, American National Bank. The inquiry before us is whether this deed passed a good title.

The question arose out of the following further facts, taken in connection with those already stated: Prior to April 12, 1912, Elizabeth Whitlock, one of the daughters of the testator, intermarried with Frederick Godfrey Bird, of England, reserving by a marriagesettlement deed all of her estate as fully as if she had remained unmarried. Lulie Whitlock, the other daughter, married W. Otto Nolting, and became a widow. At the date of the deed to the bank, April 12, 1909, Elizabeth Whitlock Bird had an infant son, and Lulie Whitlock Nolting an infant daughter. Mrs. Nolting afterwards married Rev. G. Freeland Peter. Charles Whitlock, the testator's son, afterwards married, and died without issue, leaving a widow, Lettice W. Whitlock. At the time this proceeding was instituted, the following parties were living: Elizabeth Whitlock, the testator's widow; Elizabeth Whitlock Bird, and her husband, Frederick Godfrey Bird, and their five infant children (four born after the deed to the bank); Lulie Whitlock Peter, her husband, G. Freeland Peter, and her two infant children, Elizabeth Nolting and G. Freeland Peter, Jr.; and Lettice W. Whitlock, widow and sole residuary legatee and devisee of Charles E. Whitlock Jr.

The first of the several testamentary papers left by the testator was dated April 24, 1888, and appears to have been prepared by counsel. It is a voluminous, elaborate, and carefully phrased document, providing in great detail for the administration and final distribution and settlement of the estate. After making a number of specific devises and bequests, and giving a number of directions to his executors, the testator provided by the eleventh clause as follows:

"All the rest and residue of my estate of every description, including the real estate hereinbefore directed to be sold, and the proceeds of the sale thereof, I devise and bequeath to my executors for the term of five years from and next ensuing after the day of my death, upon these trusts."

And the trusts named were to care for and husband and properly invest the estate, and during the specified five-year period pay one-half of the net annual income to the widow and the other half of such net income to themselves, and properly invest the same as guardians of his infant children. The twelfth clause was as follows:

"At the end of said term of five years, I direct that my estate real and personal (other than uncollected debts, and lands hereinbefore devised to be sold, and other than uninvested money belonging to the principal of my estate) shall as nearly as may be, be divided into equal parts, having reference to value and income. One of these equal parts I devise and bequeath to my children, to be divided equally between them; but if any of my said children shall die under the age of twenty-one years, unmarried, or if married shall die under the age of twenty-one years and without issue living at the death of such child, then his or her share of said equal part shall pass and belong to the survivor or survivors of said children, but if at such death there be living but one survivor and also issue of a deceased child or children, then to such survivor and the issue of such de ceased child or children; such issue to take the part their parent would have taken if alive. But if all of my said children shall die under the age of twenty-one years and without issue, then the whole of said equal part shall pass and belong to my right heirs at law as to the real estate included in said part and to my distributees as to the personal estate included in said part according to the law of descents and distribution in the State of Virginia. The other of said equal parts I devise and bequeath to my wife for and during her natural life, to take the income, rents and profits thereof to her own absolute use and disposal, and at her death I devise and bequeath the said equal part, and also the dwelling house and lot of mine which she may elect to occupy, to such of my children as may be living at her death, and to the issue of any such child who may have died leaving issue, such issue to take the share their parent would have taken if alive: such of my children as may be twenty-one years of age at the death of my wife shall take their portions of such equal part, absolutely: such of them as may be under twenty-one years of age at the death of my wife shall take their portions of such equal part, subject to the limitations prescribed in reference to their shares in the first of said equal parts. But if at the death of my wife there shall be no child of mine living nor the descendant of any child, then the part of my estate devised to my wife for her life shall pass and belong to my right heirs at law as to the real estate included therein, and to my distributees as to the personal estate included therein, according to the law of descents and distributions in the State of Virginia." (Italics added.)

The Fourteenth clause was as follows:

"I hereby expressly declare that the provisions which I have made in this will for my wife are in lieu place and stead of all her dower rights and distributive rights in my estate real and personal, wherever situated—and if accepted by her must operate as a relinquishment of all such dower and distributive rights."

The second will or testamentary paper was a brief holograph document, containing no revocatory or residuary clause, and, so far as material here, was as follows:

"1st. I desire my estate kept together during the minority of my youngest child. 2d. My wife to have the free use of the residence 1st & East Franklin and to have absolutely all the furniture and other belongings on said premises. 3d. My wife to have fixed by court at Vast once every three years, the income to be allowed her from my estate for the maintenance of herself and children."

There were two brief holograph codicils which have no bearing on the present controversy.

The court of land registration appointed a guardian ad litem to represent the infant children of Mrs. Bird and Mrs. Peter, and he contended in the lower court, and contends here, with notable earnestness and force, that the twelfth clause of the first will did not create a vested remainder in the children of Charles E. Whitlock, but that...