Borum v. National Val. Bank of Staunton

• Decision Date: 15 March 1954
• Docket Number: No. 4168,4168
• Court: Virginia Supreme Court
• Parties: OSCAR J. BORUM, ET AL. v. THE NATIONAL VALLEY BANK OF STAUNTON, EXECUTOR, ETC., ET AL. Record

Page 594

80 S.E.2d 594

195 Va. 899

OSCAR J. BORUM, ET AL. v. THE NATIONAL VALLEY BANK OF STAUNTON, EXECUTOR, ETC., ET AL.

Record No. 4168.

Supreme Court of Appeals of Virginia

March 15, 1954.

Whitehead & Marshall, Robert Whitehead, Robert L. Marshall and Annie M. Fallwall, for the appellants.

J. M. Perry and Lyle G. Weller, for the appellees.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This case involves the proper construction of the last will and testament of Robert E. Borum, who died in February, 1936. The will consisted of a paper writing dated March 9, 1926, and a codicil thereto dated February 4, 1933. The will was duly admitted to probate on February 24, 1936, and Lizzie L. Borum, the executrix named therein, qualified as such. The personal estate of the testator was appraised at $19,173.90, and his real estate at $3,000, a total of $22,173.90.

The material portion of the instrument dated March 9, 1926, provides:

'2d. After the payment of all my just debts I will devise and bequeath to my beloved wife, Lizzie L. Borum all of my estate of every description, Real, Personal and mixed to be her absolute estate.'

He next requested, but did not require, her to give to the First Baptist Church of Staunton, Virginia, and the Baptist Orphanage at Salem, Virginia, $500 each.

On February 4, 1933, the testator added a codicil to the above will. It reads as follows:

'I, R. E. Borum, being of sound mind and disposing memory, do make this the first codicil to my last will and testament executed on the 9th day of March, 1926. I will bequeath and devise all of my property, personal, real and mixed to my wife for and during her natural life with full power and authority to consume or dispose or sell and convey all or any of said property as she may see fit in her sole discretion and any of said property real or personal that may remain in her possession at the time of her death, I will, devise and bequeath to my heirs at law and distributees as provided under the Virginia Statute of descent and distribution. I hereby to the extent of this codicil modify and revoke my will as heretofore written in so far as may be necessary to do so, to carry this codicil into effect. I further nominate, constitute and appoint my friend, Harry Burnett, Co-executor with my wife, Lizzie L. Borum. Given under my hand and seal this 4th day of February, 1933.'

The executrix made but one statement of her account with the estate, which was recorded on June 23, 1937. It shows payment of the two sums of $500 above mentioned, and that the personal estate thereafter aggregated $17,031.50. A house and lot on Thornrose Avenue belonging to her husband was valued at $3,000. $908.18 was shown to be due the executrix, leaving the net personal estate valued at $16,123.37.

On January 9, 1941, G. W. Crosby and wife conveyed to Lizzie L. Borum a parcel of real estate known as 1007 Spring Hill Road in Staunton, Virginia, for a consideration of $4,500. On October 20, 1943, Lizzie L. Borum conveyed the house and lot on Thornrose Avenue, belonging to her husband's estate, for $5,300. She deposited $5,000 of the purchase price, the net proceeds after payment of expenses of the sale, to her account as executrix in the National Valley Bank of Staunton. Two days later she distributed $4,983 of the proceeds among the nieces and nephews of her husband.

Mrs. Borum was thereafter adjudged incompetent and on June 19, 1947, the National Valley Bank of Staunton qualified as her committee, and continued to act as such until her death. She died July 5, 1949, leaving a will dated September 16, 1944. The will was duly probated and the National Valley Bank of Staunton qualified as executor thereof.

The testatrix made specific bequests amounting to $1,250, and left the residue of her estate to the trustees of the First Baptist Church of Staunton, Virginia. Her personal estate was appraised at $7,545.59, and her real property, including that known as 1007 Spring Hill Road, was valued at $18,500, a total of $26,045.59.

The Spring Hill Road property which Mrs. Borum had acquired in 1941 for $4,500 was sold by her executor for $10,500, and the proceeds credited to her estate.

After the death of Mrs. Borum, there was found on deposit in the National Valley Bank of Staunton $3,590 to the credit of 'Lizzie L. Borum, Extr.' In a safety deposit box of Mrs. Borum in that bank there was an envelope marked 'R. E. Borum Estate.' In this envelope were two United States Savings Bonds, Series 'G', issued October, 1942, registered in the name of 'Mrs. Lizzie L. Borum, Executrix of the Estate of Robert E. Borum, deceased,' with a maturity value of $1300; two coupons for $16.25, interest on the said savings bonds; and a deed of trust bond, payable to the order of Lizzie L. Borum, Executrix of Robert E. Borum, upon which there was due the sum of $6,000.

The unadministered estate of Robert E. Borum, was committed on July 1, 1950, to R. L. Shaver, Sheriff of Augusta County, as administrator d.b.n.c.t.a. The National Vally Bank of Staunton, executor of Mrs. Borum, thereupon delivered to the administrator d.b.n.c.t.a. the cash and securities above mentioned.

On April 9, 1951, appellants instituted this proceeding alleging that they were the heirs and distributees of Robert E. Borum, and that as such were entitled, under the codicil to his will, to all of his property that remained in the possession of his widow at the time of her death. They included in their claims the property found at the National Valley Bank of Staunton, in the name of the executrix and the R. E. Borum estate, the sum of $2700, alleged to have been retained by Mrs. Borum from the sale of the real property of her husband, and the $6,000 profit realized from the sale of the Spring Hill Road property, formerly purchased by Mrs. Borum. They prayed that the will of Robert E. Borum be construed; that the assets of his estate be collected, administered, and distributed under the guidance of the court; and that the administrator d.b.n.c.t.a. of said estate be guided and directed in the administration and distribution of the estate. The executor of the estate of Lizzie L. Borum and the trustees of the First Baptist Church of Staunton, the residuary legatee under her will, filed answers denying that appellants were entitled to any part of the estate of Robert E. Borum and claiming that Lizzie L. Borum acquired his entire estate absolutely and in fee simple.

The administrator d.b.n.c.t.a. of the estate of Robert E. Borum answered, listing the assets in his hands as having a valuation at that time of $11,265.66, united in the prayer of the bill of complainants and requested the guidance and direction of the court in the performance of his duties.

The depositions of witnesses were taken, and the cause submitted to the court. Upon consideration, the trial court held that Lizzie L. Borum took a fee simple title to her husband's real estate and an absolute estate in his personal property, directed that the assets in the hands of the administrator d.b.n.c.t.a. be paid over and delivered to her executor, and dismissed the bill of the complainants.

We granted this appeal.

The principal questions for our consideration are whether the heirs at law and distributees of Robert E. Borum are entitled, as remaindermen, under § 5147 of the Code of 1919, now § 55-7 of the Code of Virginia, 1950, to that portion of his estate which was not disposed of by the life tenant, during her lifetime by virtue of the codicil to his will, and, if so, what property passed to them?

The appellees contend that the attempted limitation over of such property as 'may remain in her possession' at the time of the life tenant's death, is not within the terms of § 55-7, that the words 'in her possession' are ambiguous, and that the limitation over is repugnant to the preceding provision of the codicil and, moreover, void for uncertainty. They argue that Mrs. Borum was not personally possessed of the property of her husband's estate at her death, but held it in her capacity as executrix. They insist that for the limitation in remainder over to be valid, it should have been phrased in language which passed title to such property as the life tenant had not disposed of prior to her death. They devote much of their brief to the meaning of the word 'possession.'

It is conceded that at common law, under the doctrine of May v. Joynes, 20 Gratt. (61 Va.) 692, Lizzie L. Borum would have taken fee simple title to her husband's real estate and an absolute estate in his personal property, and the attempted gift over of the remainder would have been void for repugnancy and uncertainty. That situation is avoided only in the event that Code, § 55-7 is applicable to the provision of the codicil to testator's will.

The rule laid down in May v. Joynes, supra, that limitations over after a devise for life with full power in the first taker to dispose of the subject, are void for repugnancy, and that the fee vests in the first taker, has been considered by this court many times, both before and subsequent to the enactment of Code, § 55-7. A full discussion of § 55-7, its antecedents and history, is found in Southworth v. Sullivan, 162 Va. 325, 173 S.E. 524, and in the more recent decisions of this court in Moore v. Holbrook, 175 Va. 471, 9 S.E. (2d) 447; Rule v. First National Bank, 182 Va. 227, 28 S.E. (2d) 709; Hall v. Hoak, 184 Va. 821, 36 S.E. (2d) 567; Mowery v. Coffman, 185 Va. 491, 39 S.E. (2d) 285; and Crisman v. Swanson, 193 Va. 247, 68 S.E. (2d) 502.

This brings us to a consideration of § 55-7 * of Code, 1950, the statute in effect at the time of Robert E. Borum's death.

The doctrine of May v. Joynes, supra, was first modified by chapter 146, Acts 1908, page 187, and further modified and clarified by the 1919 Code Revisors, § 5147, Code of 1919. Southworth v. Sullivan, supra; Rule v. First National Bank, supra; and Crisman v....