Brent v. Washington's Adm'r.

• Decision Date: 15 May 1868
• Citation: 59 Va. 526
• Parties: BRENT v. WASHINGTON'S adm'r.
• Court: Virginia Supreme Court

59 Va. 526

BRENT v. WASHINGTON'Sadm'r.

Supreme Court of Appeals of Virginia.

May 15, 1868

1.Testator says: I give to my son H the sum of £ &gt > 1,000 Virginia currency, in trust to apply the interests and profits towards the support of my daughter A, to her sole and separate benefit, free from the debts, & c., of her husband, during her natural life; and after her decease, to divide the principal equally amongst her children and their representatives, according to the statute of distributions.Testator died in 1823; A died in 1861.HELD:

1.The children of A took vested interests in the remainder on the death of the testator, subject to be divested on their dying in the lifetime of A.

2.On the death of a child of A, in her lifetime, unmarried, the next of kin of the child took a vested interest in his or her share, which was absolute, and not subject to be divested by the death of such next of kin in the lifetime of A.

3.On the death of a child of A, in her lifetime, leaving a husband and child surviving her, the husband took the interest of his wife; and this though such child of A died before the act, Codech. 123, § 10.

2.M is administrator of husband and wife, and it being doubtful whether the right to a fund is in the estate of husband or wife, he sues for it in equity in both characters.The bill is not demurable for misjoinder of parties.

3.A defendant being in default for want of an answer, comes in and demurs to the bill; and upon the hearing upon the demurrer, the court overrules it, and proceeds to decree upon the case.The only question in the cause being upon the construction of a will, and the defendant not having asked leave to file an answer, the appellate court will not, for this cause, reverse a decree which is correct upon the merits.

This was a bill filed in the Circuit Court of Fauquier county by Malcolm B. Washington, as the administrator of Temple M Washington deceased, and also as administrator of Mary D Washington, claiming a portion of a fund of £ 1,000 bequeathed by George Fitzhugh.The will of George Fitzhugh bears date April 7th, 1818, and was admitted to probate April 29th, 1823.The case is fully stated by Judge Joynes in his opinion.

Brent, for the appellant.

Blackwell & Spilman for the appellee.

JOYNES, J.

This case depends upon the construction of a clause in the will of George Fitzhugh, who died in or about the year 1823, which clause is in the following words: " I give to my son, Henry Fitzhugh, the sum of one thousand pounds, Virginia currency, in trust, that he shall apply the interest and profits thereof towards the support and maintenance of my daughter Ann Baylor, to her sole and separate benefit, free from the debts, contracts or control of her husband, during her natural life, and after her decease, to divide the principal equally amongst her children and their representatives, according to the statute of distributions; and I hereby authorize my said son, his executors or administrators, to invest the said sum of money in any government or bank stock, the profits and principal of which to be disposed of in like manner as the interest and principal of the said sum is hereby directed; and I do further empower my said son, with the consent of my said daughter, to vest the said sum of money or stock in land, which shall be settled and applied in the same manner as the said money or stock is directed."

At the death of the testator, Mrs. Baylor had five children, and does not appear to have had any children born after that time.She lived until 1861, and survived all her children except Mrs. Brent, the wife of the appellant.First, her son Nathaniel died, unmarried.Then Mary D., who had intermarried with Temple M. Washington, died, having had two children, one of whom died before her, and leaving the other child and her husband surviving her.The other child died soon after, leaving the father surviving, who died in 1863.I infer that both children died unmarried and without issue.Fanny died next, unmarried, and, I infer, without issue.Then Eliza died, who had intermarried with Joseph Horner, and had children, leaving her husband and children surviving her, all of whom, with him, survived Mrs. Baylor.

The bill in this case is filed by Malcolm B. Washington, as administrator of Temple M. Washington, and also as administrator of Mary D. Washington.Brent and wife, and Joseph Horner, in his own right, and as administrator of his wife, together with other parties responsible for the fund, are made defendants.The defendants demurred to the bill.The court overruled the demurrer, and proceeding at once to render a decree, held, in effect, that each child of Mrs. Baylor took, at the death of the testator, a vested interest in remainder in one-fifth part of the trust fund, and that the plaintiff, as administrator of Temple M. Washington, was entitled to Mrs. Washington's share of the fund.An account of the fund and its distribution was directed, and by a subsequent decree the report was confirmed, which gave the share of Mrs. Horner to her husband.

The general rule is, that when property, real or personal, is given by will to one for life, and afterwards to his or her children, the children, if any, living at the death of the testator, take vested interests in remainder, which are liable to be divested pro tanto, so as to let in any other children that may be born during the life of the tenant for life.Upon the death of any of the children before the life tenant, their interests devolve upon their representatives; that is to say, in the case of land, upon the heirs or devisees; and in the case of personal property, upon the executors or administrators.And such undoubtedly would have been the construction in this case, if the words, " and their representatives according to the statute of distributions," had been omitted.There would then have been nothing from which an argument could be drawn in favor of regarding the interests of Mrs. Baylor's children as contingent, except that the gift to them is in the form of a direction to divide the fund among them after the death of Mrs. Baylor.But the distribution was obviously postponed for no other purpose than to give precedence to the life interest of Mrs. Baylor.The gift is in substance a gift to the children, subject to the interest of Mrs. Baylor; the title is conferred immediately, though the enjoyment in possession is postponed.When the postponement of distribution is thus made only to give precedence to another interest, Jarman says that the legacy will be held to be vested, notwithstanding the gift is in the form of a direction to divide among the objects at the prescribed period.1 Jarm. on Wills, Ed. 1861, 798.This opinion of Jarman was approved in Packham v. Gregory, 4 Hare'sR. 396; and is supported by the decisions of this court in Rowlett v. Rowlett's ex'ors,5 Leigh 20;Hansford v. Elliott,9 Leigh 79; and Martin, adm'r, & c., v. Kirby, adm'r, & c.,11 Gratt. 67.See alsoSmith v. Palmer, 7 Hare'sR. 225.

The primary sense of the word " representatives," when used in a bequest of personal property, is the same as that of " legal representatives" or " " personal representatives."Each of them is equivalent to executors or administrators.2 Wms. on Ex'ors, 966-970; 2 Redfield on Wills, 402-408.If the words, " and their representatives," in this case had stood alone, they would probably have been construed as words of limitation, intended only to describe the interest taken by the children, as in Price v. Strange,6 Madd. R. 159, andTaylor v. Beverly, 1 CollierR. 108.

But this primary sense of the word " representatives" may be controlled, where an intention is clearly indicated to employ it in a different sense.In the books cited many cases are collected in which this has been done.Sometimes it has been held to mean next of kin according to the statute, and sometimes to mean descendants, according to the intention to be gathered from the whole will.In the present case, the sense in which this word is employed is explained by the addition of the words, " according to the statute of distributions."There is no room for construction.The words, according to their plain and necessary interpretation, describe those who are entitled to take the personal property of the children after their death, according to the statute of distributions; that is to say, the distributees.And the statute must be referred to, to ascertain the persons who are to take and their respective shares.Houghton v. Kendall, 7 Allen'sR. 72, and cases cited.And the persons thus described take, under the gift, as purchasers.They are, in the events contemplated, direct objects of the gift.These words cannot be construed as words of limitation merely, for personal property, on the death of the owner, does not devolve upon the distributees, but upon the executor or administrator.And they cannot be construed as denoting children or descendants only.They describe all who represent the children according to the statute, whether descendants, or ancestors, or collateral kindred.There is nothing in the context to authorize us to restrict their meaning to any particular class of such representatives.

That the primary sense of the word " representatives" is thus controlled, and its meaning explained by the reference to the statute of distributions, seems obvious enough upon the interpretation of the language, and it is confirmed by the opinion of Mr. Roper in 1 Roper on Legacies 130, 131, and by the cases of Cotton v. Cotton,2 Beav. R. 70;Booth v. Vicars, 1 CollierR. 6;Smith v. Palmer, 7 Hare'sR. 225; and Wilson v. Pilkinton, 11 Jurist 537; and also by the decision of this court in Dickinson v. Hoomes,1 Gratt. 302.

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