Bartlett v. Patton

• Decision Date: 24 September 1889
• Citation: 33 W.Va. 71
• Court: West Virginia Supreme Court
• Parties: Bartlett v. Patton.*(Green Judge, Absent.)

33 W.Va. 71

Bartlett

v. Patton.^*

(Green Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 20, 1889.

Decided September 24, 1889.

1. Wills Life Estate in Chattels Evidence.

Where chattels are given by will to a person for his life, without any limitation over in remainder, the legatee for life has not absolute property in such chattels, but his estate is accountable to the estate of the testator for such chattels as the legatee in his lifetime, sold and converted to his use, or his administrator, after his death, sold and converted to the use of such legatee's estate; but such is not the case with such chattels, as are consumed in their use (quoe in usu consumuntur) in which the legatee for life has an absolute property,

2. Wills.

In order to vest in such legatee an absolute property in such chattels as are consumed in their use, they must be given as a specific, not as a general legacy, and not as a part of the residuum.

3. Wills.

There may be a legacy given by implication, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless such implication be allowed. Points 6, 7, 8, 12, 13, and 14 of the syllabus in Graham v. Graham, 23 W. Va. 46, reaffirmed.

4. Wills Evidence.

A document not purporting to be a copy or abstract from the assessor's personal property list, but merely a certificate of a clerk of a county court of the assessment or non-assessmest of a person or his property in such book, is not admissible in evidence.

5. Wills Evidpjnce.

In a suit by the personal representative of the testator to recover for chattels converted as above supposed, such personal property book itself would not be admissible to show the value of the personal estate of the testator or the legatee for life.

6. Evidence.

It is not error to exclude evidence which would not have benefitted the party offering it.

7. Evidence.

Where evidence is improperly rejected, and such evidence tends to prove an item which may or may not have been taken into account by the jury in fixing the amount in their verdict, and it is manifest and plain that outside of such item, under the evidence, there was ground for finding a verdict for at least the amount found by the jury, and a new trial is refused by the court below, this Court will not for that cause reverse the judgment.

8. Evidence Declarations.

A declaration made by a stranger to the controversy now dead, and against his pecuniary interest, may be admitted as evidence to show the existence of a fact relevant in such controversy as an exception to the rule excluding hearsay.

9. Evidence Jurors.

Reaffirming pointl in Probst v. Braeunlich, 24 W. Va. 356, it is settled in this state, as a general rule, with but few, if any, exceptions, that the testimony of jurors will not be received to impeach their verdict.

J. J. Davis for plaintiff in error.

J. Bassell for defendant in error,

Branno, n, Judge:

Jedediah W. Bartlett, administrator c. t. a. of John Ryan, brought assumpsit in the Circuit Court of Harrison county against John Patton, executor of Sarah Ryan, to recover the value of certain personal property which John Ryan had bequeathed for life to his widow, Sarah Ryan, and which had been in part sold and converted by her to her own use and in part sold by her executor as part of her estate. The case was tried by a jury on the issue raised by the general issue, a verdict rendered in favor of plaintiff for $477.50, and the court, overruling a motion for a new trial, entered judgment on the verdict; and John Patton, executor, sued out the writ of error now in hand. Other rulings upon the trial will appear in this opinion.

The main point of controversy in this case is whether, under the will of John Ryan, Sarah Ryan took an absolute or only a life estate in the personalty therein bequeathed. Plaintiff, contending that she took only a life-estate, after her death sued her estate to recover the value of the personalty which she in her lifetime, or her executor after her death, sold; and the defendant contends that her estate is not liable, because she took under said will an absolute estate. The will says: "Second, I bequeath to my loving wife all my land or farm which I now live on, and all my personal property and money and bonds and household and cichin furniture and farming utensils, as long as she livs, I desire at the death of my wife, Sarah, that my farm which I now live on shal be sold, and one-half the money be devided equally between the heirs of my daughter Olive Bartlett, deceased, and the other to be divided equally between the heirs of my daughter Hannah Bartlett, deceased. I leave my wife my executor to live out my bequeath."

Originally we know that by our law there could be no lim- itation over of a chattel, but that a gift carried the absolute interest. Then a distinction was taken between the use and the property. The use might be given to one for life, and the property afterwards to another. In Randall v. Russell, 3 Mer. 195, Sir William Grant, after adverting to the former rule, says: "A gift for life of a chattel is now construed to be a gift of the usufruct only; but when the use and the property can have no separate existence it should seem that the old rule must still prevail, and that a limitation over after a life-interest must be held to be ineffectual." He conceived that a gift for life of thiugs quoe ipso usu consumuntur was a gift of the property, and that there could not be a limitation over after a life-interest in such articles. 2 Rob. Pr.(Old) 97; 2 Bl. Comm. 398; 2 Lomax, Ex'rs. 69. Now, there is no question but a life-estate to one with remainder to another in personalty may be given, as recognized in a large number of cases. Houser v. Ruffner, 18 W.Va. 253, and cases cited; Frazer v. Bevill, 11 Gratt. 9; Chisholm v. Starke, 3 Call. 25, and cases below.

In Madden v. Madden, 2 Leigh, 377, it was held that under the will the wife took an estate for life in such of the movables as were capable of being used and returned in kind, and a quaere was left whether the wife or her estate was accountable to the legatees in remainder for such of the movables as were consumable in their use, such as grain or money or debts.

In Dunbar v. Woodcock, 10 Leigh, 628, a will gave the residuum of the estate, real and personal, to testator's wife for life, and after her death gave the same, as well the land as all other property remaining at her decease, to IX and wife, the residuum consisting of farm, slaves, live-stock thereon, furniture, farming utensils, crops of grain on hand, money, and debts due; and the wife took and held in kind during her life the slaves, live-stock, furniture, and farming utensils, and she appropriated the whole of the crops on hand to her own use. It was held that the will gave the legatee for life no absolute power of disposal of any of the property, and as to it all the limitation in remainder was valid; that as to grain on hand the legatee for life was entitled to so much as was necessary for consumption in her family for the year following tes- tator's death, but her estate was accountable to the remaindermen for the value of the surplus thereof; that as to horses, farming utensils, and the like, such as were forthcoming at the life-tenant's death were to be returned in kind in their then state, though worn; such as died or were worn out were not to be charged to her; that her estate was to be charged with the principal of what she had sold, unless other articles of same kind were substituted; that brood-mares, flocks of sheep, and the like, the life-tenant must try to keep up in kind, and her estate was accountable for them accordingly, unless destroyed or impaired by casualty. But it is to be noted that that was under a bequest of the residuum, and as to chattels falling under a residuary bequest even those which are consumed in the use are not vested as absolute property in the legatee for life, and his estate must account for them; but they should be sold and the interest paid to the legatee for life and the principal kept for the remainderman. 2 Kent. Comm. 853; 2 Lomax, Ex'rs, 71; Schouler, Ex'rs, § 342.

But as to those chattels consumed in the use, to give the legatee for life an absolute property in even them, the gift of them must be specific, not general.Kent says: "In the case of a bequest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption, the gift of such articles for life is, in most cases, of necessity, a gift of the absolute property, for the use and the property can not exist seperately. If not specifically given, but generally, as goods and chattels, with remainder over, the tenant for life is bound to convert them into money and save the principal for the remainder-man." So, also, says Lomax, supra. In Madden v. Madden., 2Leigh, 389, Judge Green leaned strongly against the legatee for life having any absolute property even in specific bequests of such consumable articles.

Now, in the will in this case there is no specific bequest of such articles. Its language is, "all my personal property and money and bonds and household and kitchen furniture and farming utensils." If the testator bequeathed any goods of a nature to be consumed in the use they must fall under the words "all my personal property," which is a general, not a specific, bequest, as if he had said, "my wheat, rye, bacon, flour," and the other words do not import property of that nature. Money and bonds are there named, but they are not of that nature, but are capable of being given for life, with remainder over. Says Kent: "This limitation over in remainder is good as to every species of chattels of a durable nature, and there is no difference in that respect between money and any other chattel interest." Therefore, unless this will gave Sarah Ryan an absolute property in all the personal...