Blankenbaker v. Early

• Decision Date: 15 June 1922
• Citation: 112 S.E. 599
• Parties: BLANKENBAKER et al. v. EARLY et al.
• Court: Virginia Supreme Court

112 S.E. 599

BLANKENBAKER et al.

v.EARLY et al.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Burks, J., dissenting.

Appeal from Circuit Court, Madison County.

In the matter of the estate of Richard Early, deceased. On bill between W. A. Early and others and A. N. Blankenbaker and others to construe will. Prom an order holding that testator did not die intestate as to a certain parcel of land, the latter appeal. Reversed and entered.

John S. Chapman, of Stanardsville, for the appellants.

N. G. Payne, of Madison, and Edwin H. Gibson, of Culpeper, for the appellees.

WEST, J. On June 20, 1887, Richard Early, of Madison county, in consideration of one dollar and natural love and affection, conveyed to his unmarried daughter, Virginia S. Early, 186 acres of land in Madison county, the deed containing the following clause:

"But it is expressly stipulated and agreed between the parties that the said Richard Early is to retain peaceful and quiet possession of said land for and during his natural life, and that after his death (and not till then) is the said Virginia S. Early to take possession of the above-described tract of land, and should the said Virginia S. Early die without leaving a legal issue of her body, the land here deeded to her is to revert back and become a part of my estate to be divided asthough it had never been deeded to her, but if she leaves a child or children then it goes to it or them as the case may be."

He also deeded each of his other six children a farm.

On June 24, 1887, Richard Early made and executed his will, the second clause of which is in the following words:

"Item the second: I want my executor hereinafter named to sell all my real and persona] estate that I have not deed to my children in such manner and on such terms as will be to the interest of those to be benefited by it. and the money remaining after the payment of all just claims against my estate, I give to my daughter Mary F. Blankenbaker, one dollar, to Robert E. Early, the sum of two hundred dollars as I think the land I gave him is not worth as as I gave the other children, the remainder of the money to be equally divided between six of my children, viz.: Ann E. Hen-shaw, Thomas W. Early, Elvira L. Fletcher, Martha V. Bohannon, Robert E. Early, and Virginia S. Early. The land I have given to my daughter Virginia S. Early she does not get possession of until after my death, and she must not bring in any claims against my estate for the past or during my life for services rendered. She has a list of articles that are in my house that I do not claim and my executor must not interfere with them."

In the spring of 1888 Richard Early departed this life, leaving surviving him his seven children, and the said will was probated on April 26, 1888, in the county court of Madison county. Upon his death, Virginia S. Early took possession of the 180-acre tract of land, and held and occupied it until some time in the year 1920, when she departed this life, "without leaving a legal issue of her body."

The bill in this case calls for the construction of item the second of the said will of Richard Early, deceased.

The circuit court held that Richard Early did not die intestate of the tract of land, containing 186 acres, conveyed by him to Virginia S. Early, with certain limitations and reversions, by deed dafed the 20th day of June, 1887, but that the said tract of land, upon the death of said Virginia S. Early without issue, passed under item 2 of the said last will and testament of said Richard Early. The case is here upon an appeal from that decree.

The lower court took the view that item 2 was, in effect, a general residuary clause, and caught up any undisposed of estate belonging to the testator and vested the title to the 186-acre tract in the children named in the second item of the will, subject to the deed, aforesaid, to Virginia S. Early.

Where a party dies and leaves a will, the presumption is that he did not intend to die intestate as to any of his property; but where it is manifest from the express words of the will that a gift of the residuum is confined to a particular fund or description of property, or to some certain residuum, the residuary legatees will be restricted to what is thus particularly given. Faison v. Middleton, 171 N. C. 172, 88 S. E. 141, Ann. Cas. 1917E. 72.

In Lane v. Patterson, 138 Ga. 710, 76 S. E. 47, it was said, where land was devised to L. for her life and at her death to her children then living, and a subsequent clause of the will devised "all other lands, " "not heretofore disposed of, " that said last-mentioned clause did not dispose of any of the lands previously devised to L., nor any reversionary interest therein.

It is held in Sink v. Sink, 150 N. C; 444, 64 S. E. 193, that where, by direction of a will, certain real and personal property was sold to pay the testator's debts and certain legacies, and it was provided that any surplus which remained should go to the widow, this does not constitute her chief residuary legatee so as to vest in her the remainder of other property after her life estate therein.

Where definite portions of a definite fund are given to various persons and then the residue of that definite fund is given to some one else, the residue is as much a definite fund as any other part of the whole fund so given, and is not a residue in the ordinary meaning of that term. 24 Am. & Eng. Ency. L. (2d Ed.) p. 701.

A testator is presumed to use the words in which he expresses himself in his will in their primary or ordinary sense, and in construing the will the words employed are to be taken in that sense, unless it is manifest from the context of the whole will that the testator intended to use them in a different sense. 40 Cyc. 1396.

Where an ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption is that the testator intended that his property should go in accordance with the laws of descents and distributions. 40 Cyc. p. 1412.

The primary consideration and rule of construction is to determine the intention of the testator from the language which he used. If the meaning of that language is plain, the will must be given effect accordingly. This rule is elementary and to it all others are subordinate and subservient. If there be doubt as to the meaning, then the auxiliary or subordinate rule to be first applied, and the one of most usefulness and importance, is for the court to place itself as nearly as possible in the situation of the testator at the time of the execution of the will. Penick's Ex'r v. Walker, 125 Va. 274, 278, 99 S. E. 559.

The defendants in error rely with great earnestness on the case of Gallagher v. Rowan, 86 Va. 823, 11 S. E. 121. The will in this case contains a general residuary clause, "all my remaining estate, real and personal, I give and bequeath to my dear wife, * * * " and for that reason is not controlling in the instant case.

Item 2 of Richard Early's will does not contain a general residuary clause, but simply a clause authorizing and directing the executor to sell all his real and personal estate, with certain exceptions therein stated, and pay all his just debts and funeral expenses, and after paying certain legacies, "the remainder of the money to be equally divided between six of my children." The money so divided being clearly the money realized from...