Boyd v. Fanelli
| Decision Date | 06 September 1957 |
| Docket Number | No. 4680,4680 |
| Citation | 199 Va. 357,99 S.E.2d 619 |
| Court | Virginia Supreme Court |
| Parties | BESSIE W. BOYD, ET AL. v. ELIZABETH BOYD FANELLI, ET AL. Record |
Stuart L. Craig (Rutledge C. Clement; Clement, Conway & Winston, on brief), for the appellants.
C. Stuart Wheatley (Garrett & Wheatley, on brief), for the appellees.
The executors of the will of Mary B. Dibrell, who died April 11, 1955, brought suit for the purpose of having her will and a codicil thereto construed.
Testatrix had two brothers and three sisters, Samuel H. Boyd, a brother of the whole blood, and Robert R. Boyd, Bessie W. Boyd, Margaret P. Boyd and Sallie Boyd Hubbard, brother and sisters respectively of the half blood. When her will and codicil were executed, her brother and sisters of the half blood were living, but Samuel H. Boyd had died, leaving several children. Sallie Boyd Hubbard predeceased testatrix, and she also left several children. When testatrix died, she left surviving Robert R. Boyd, Bessie W. Boyd and Margaret P. Boyd as her closest blood kin and she also left several nieces and nephews of the whole and half blood, being the children of Samuel H. Boyd and of Sallie Boyd Hubbard. The record does not indicate that Robert R. Boyd has any issue or is married.
Some specific bequests were made in the will and by the codicil, but they are not material to the question to be decided. In the several paragraphs of Item 6 testatrix disposed of all the rest and residue of her estate in five equal shares. She left one-fifth of the residue in trust for her sister, Sallie Boyd Hubbard, during her lifetime (with right in the trustees to invade the principal), with remainder to her issue or their descendants per stirpes; another one-fifth share was left in trust for Lizzie Settle Boyd, widow of Samuel H. Boyd for her lifetime with remainder to be equally divided among the children of Samuel H. Boyd; and a one-fifth share was left outright to Bessie W. Boyd and Margaret P. Boyd each; these dispositions were made in paragraphs A, B, D, and E of Item 6 of the will. The other one-fifth share was left under paragraph C of Item 6 in trust for Robert R. Boyd during his lifetime with direction that the income therefrom be paid by the trustees to him 'so long as he lives, and that at his death the principal of said fund shall pass to my next of kin, per capita. ' Paragraph C follows:
' (Emphasis added.)
The sole question presented is: Are those who qualify under the phrase 'and that at his death the principal of said fund shall pass to my next of kin, per capita' to be determined as of testatrix' death or as of the death of Robert R. Boyd, the life tenant?
The trial court held that testatrix intended that those who qualify as 'my next of kin, per capita' were to be determined as of Robert R. Boyd's death, and thus the remainder did not vest at testatrix' death but would vest at the death of Robert R. Boyd, the life tenant.
The final decree provided that those entitled to receive the principal of the trust established in paragraph C that remained in the hands of the trustees at the death of Robert R. Boyd were the 'nearest of kin of Mary B. Dibrell who shall survive at the death of Robert R. Boyd, so that if defendants, Bessie W. Boyd and Margaret P. Boyd, or the survivor, shall outlive their brother, Robert R. Boyd, they, or the survivor of them, then being the nearest of kin of Mary B. Dibrell' should receive the remainder of the trust estate. In the event that neither Bessie W. nor Margaret P. Boyd survived Robert R. Boyd, then the decree provided that the children of Samuel H. Boyd (testatrix' nieces and nephews of the full blood) who should survive Robert R. Boyd were to be the recipients of the trust principal. The several children of Sallie Boyd Hubbard, deceased, who are testatrix' nieces and nephews of the half blood were not mentioned or referred to in the decree. However, in argument at bar, the failure to mention or refer to them in the decree was said to have been an oversight.
In construing a will the object is to ascertain and determine what the testator meant by what he said in the will. 'If the meaning of the words is plain, there is no room for construction. ' Chavis v. Myrick, 190 Va. 875, 58 S.E.2d 881; Conrad v. Conrad's Executor, 123 Va. 711, 97 S.E. 336.
If testatrix' intent be ascertainable from the language used in the will, then that intent must be given effect. In determining her intention the whole of the will should be considered, and if possible, effect given to all of its provisions unless the thereby expressed intention violates some principle of law or is against public policy.
'* * * In construing a will the intention must be ascertained from the words used by the testator, considered in the light of the language of the entire will and the circumstances surrounding the testator when he made his will. ' Weiss, Executrix, etc. v. Soto, State Tax Comm'r., etc., (W. Va.), 98 S.E.2d 727, 736.
'* * * In ascertaining this intention the language used, and the sense in which it is used by the testator,...
To continue reading
Request your trial
-
Central Carolina Bank & Trust Co. v. Bass, 768
...169 Mass. 216, 47 N.E. 778; Irvine v. Ross, 339 Mo. 692, 98 S.W.2d 763; Oleson v. Somogyi, 90 N.J.Eq. 342, 107 A. 798; Boyd v. Fanelli, 199 Va. 357, 99 S.E.2d 619, and where the life tenant is the beneficiary of a spendthrift trust, the implication is clear that the testator did not intend ......
-
Harbour v. Suntrust Bank
...271 Va. 20, 24, 624 S.E.2d 34, 37 (2006); Frazer v. Millington, 252 Va. 195, 199, 475 S.E.2d 811, 814 (1996); Boyd v. Fanelli, 199 Va. 357, 361, 99 S.E.2d 619, 622 (1957); McKinsey, 175 Va. at 414-15, 9 S.E.2d at 316. Instead, in such instances, we will apply the plain meaning of the words ......
-
In re Delfosse
...271 Va. 20, 24, 624 S.E.2d 34, 37 (2006); Frazer v. Millington, 252 Va. 195, 199, 475 S.E.2d 811, 814 (1996); Boyd v. Fanelli, 199 Va. 357, 361, 99 S.E.2d 619, 622 (1957); McKinsey, 175 Va. at 414–15, 9 S.E.2d at 316. Instead, in such instances, we will apply the plain meaning of the words ......
-
Siver v. Rockingham Memorial Hosp., 98-0063-H.
...and trusts as "nearest in blood." See Elmore v. Virginia National Bank, 232 Va. 310, 350 S.E.2d 603 (1986); Boyd v. Fanelli, 199 Va. 357, 361-62, 99 S.E.2d 619, 623 (1957) (stating that next of kin refers to a class of which all members would be in the same degree of kinship to deceased); K......