Bank Of Berkeley Springs v. Green

• Decision Date: 12 September 1898
• Citation: 31 S.E. 260,45 W.Va. 168
• Court: West Virginia Supreme Court
• Parties: BANK OF BERKELEY SPRINGS. v. GREEN et al.

31 S.E. 260

45 W.Va. 168

BANK OF BERKELEY SPRINGS.

v.GREEN et al.

Supreme Court of Appeals of West Virginia.

Sept. 12, 1898.

Trusts—Deeds—Cestui Que Trust—Quantity of Estate.

G. conveyed by deed of general warranty to V. a tract of land, upon the following trust: "That the party of the second part hereby agrees and covenants that he will take, hold, and stand seised of the above-described real estate to and for the only, sole, and separate use, behoof, and benefit of Mary E. Green, wife of the said Charles S. Green, so that the said Charles S. Green will not sell, mortgage, charge, or incumber the same by way of anticipation or otherwise; that the said Mary E. Green shall receive the rents and profits arising from the said property, or such person or persons as the said Mary E. Green shall by her order in writing direct and appoint to receive the same, during the joint lives of the said Chas. S. Green and Mary E. Green, his wife; and upon the decease of the said Chas. S. Green, in case his wife should survive him. then the said Mary E. Green, his wife, shall immediately take and hold the property hereinbefore described, to her and the heirs of herself forever; and upon this further trust and confidence, that the said Mary E. Green may devise and dispose of the above-described property by her last will and testament, or by a paper in the nature of a will, as if she were a feme sole, and that she may otherwise dispose of the same by the consent of her trustee, and joining with him and her said husband in a conveyance of the same or any part thereof." Hehl, that said deed conveys to Mary E. Green an equitable estate in fee.

(Syllabus by the Court.)

Appeal from circuit court, Morgan county; E. Boyd Faulkner, Judge.

Bill in equity by the Bank of Berkeley Springs against Charles S. Green and others. From a decree sustaining a demurrer to the bill, and a judgment dismissing the cause, plaintiff appeals. Affirmed.

William H. Travers and J. Hammond Siler. for appellant.

Flick, Westenhaver & Baker, for appellees.

McWHORTER, J. On the 19th day of May, 1884, Charles S. Green conveyed, bydeed of that date, to T. G. Vandike, upon consideration of the use and trust therein created, and the further consideration of one dollar, with general warranty, a certain tract of three acres of land, more or less, lying and being in the new addition to the town of Bath, in Morgan county, with proper description, "in trust, however, and upon this confidence, that the party of the second part hereby agrees and covenants that he will take, hold, and stand seised of the above-described real estate to and for the only, sole, and separate use, behoof, and benefit of Mary E. Green, wife of the said Charles S. Green, so that the said Charles S. Green will not sell, mortgage, charge, or incumber the same by way of anticipation or otherwise; that the said Mary E. Green shall receive the rents and profits arising from the said property, or such other person or persons as the said Mary E. Green shall by her order in writing direct and appoint to receive the same, during the joint lives of the said Charles S. Green and Mary E. Green, his wife; and upon the decease of the said Chas. S. Green, in case his wife should survive him, then the said Mary E. Green, his wife, shall immediately take and hold the property hereinbefore described, to her and the heirs of herself forever; and upon this further trust and confidence, that the said Mary E. Green may devise and dispose of the above-described property by her last will and testament, or by a paper in the nature of a will, as if she were a feme sole, and that she may otherwise dispose of the same by the consent of her trustee, and joining with him and her said husband in a conveyance of the same or any part thereof, "—which deed was duly acknowledged and recorded. Mary E. Green died October 3, 1889, intestate, leaving surviving her Nannie L. Green and John V. Green, her children, —the latter an infant, — without having in any way disposed of said property. At the June rules, 1897, the Bank of Berkeley Springs filed its bill in chancery in the clerk's office of the circuit court of Morgan county, suing for itself and such other lien creditors of Charles S. Green as should come in, take part in, and share the costs of the suit, alleging that upon the death of Mary E. Green the said real estate, by operation of a resulting trust, became the property of said Charles S. Green, and subject to the liens set out in the bill; that the rents and profits of the land would not satisfy the liens in five years; and praying for an account to ascertain the liens and their priorities, and for sale of the property to pay the same, and for general relief. Defendant Nannie L. Green demurred to the bill, in which plaintiff joined, and the demurrer was argued and submitted, when the court, on the 1st day of September, 1897, decreed as follows: "And the court, having maturely considered all the matters of law arising on such demurrer, is of opinion that on a proper construction of the deed dated May 19, 1884, made by Chas. S. Green to T. G. Vandike, Irustee, for the use and benefit of M. E. Green, an office copv of which is filed, as Exhibit No. 2, with the plaintiffs' bill, the said M. E. Green took an equitable estate in fee simple in the property thereby conveyed, which the plaintiffs are seeking by their bill to subject as the property of C. S. Green, and that on the death of said M. E. Green a life estate only, as tenant by the curtesy, vested in the said C. S. Green, her husband, and that the fee vested in the children of M. E. Green, as her heirs at law; and the court being of opinion, further, that on the death of C. S. Green all interest on his part in the real estate involved in this suit ceased and determined, the court, upon consideration thereof, and for these and other reasons appearing on the face of the plaintiff's bill, doth adjudge, order, and decree that the demurrer to the said bill be, and the same is hereby, sustained. And, the plaintiff not asking leave to amend its bill, it is further adjudged, ordered, and decreed by the court that the plaintiff's bill be, and the same is hereby, dismissed, and that the defendants do recover of the plaintiff their costs in the prosecution of their defense in this behalf expended." Prom which decree plaintiff appealed to this court, assigning as error that the court should have overruled the demurrer: "(1) Because, under the provisions of chapter 71, § 8, of the Code of West Virginia of 1891, applicable to the case, the deed in question must be construed with reference to the intention of the party grantor (C. S. Green), and the said intention is manifestly to give to the beneficiary, Mary E. Green, (a) the right to collect the rents and profits of the realty during the joint lives of herself and her husband; (b) that only in case of the death of her said husband, she living, should the said property vest in her and her heirs; (c) that power of disposition or alienation was given to her upon condition that she should devise it, or otherwise dispose of it, during the joint lives of herself and her husband, by the consent of her trustee, who, with her husband, should join with her in such disposition. (2) She not having survived her husband, not having disposed of the property by will or any paper in the nature thereof, and not having alienated the said property by the consent of her trustee joining with her and her husband with conveyance thereof, there was a resulting trust in favor of tne grantor, the said Charles S. Green, which should be subjected to the lien of the judgments set out in the bill. The statute above referred to, and under which the question in this case arises, is in totidem verbis with the statute of Virginia from which it has been taken (Code Va. 1873, c 122, § 8), and has been construed by the court of appeals of that state. Professor Minor (2 Minor, Inst p. "828) thus refers to this decision: 'In Humphrey v. Poster, 13 Grat. 663, 656, a noteworthy construction of this statute occurs. In that case Humphrey, by deedof 23d June, 1820, conveyed to his wife, forever, certain lands, to have and to hold the said lands for life; and the question was whether by the deed she took an estate for life, or in fee simple. It is admitted that if the deed had been to the wife and her heirs, habendum to her for life, the wife would, by the first clause, have taken at common law a fee simple, and the habendum would have been repugnant and void; and it was also admitted that under the statute above cited the wife, notwithstanding the want of words of limitation, would, if the first clause stood alone, have taken a fee simple, but it could be treated as a fee simple in virtue of the statute only, and by the statute the whole deed must be looked to for the purpose of ascertaining whether there is any qualification or limitation upon the generality of the first provision, for such a deed can only convey the fee simple if a less estate be not limited by express words, or, as it stands in our present Code, unless "a contrary intention appear by the conveyance, " etc. And in the case under consideration a less estate was limited by express words, namely, an estate for the wife's life. It was therefore concluded that the deed conveyed but a life...