Brett v. Guardian

• Decision Date: 17 September 1903
• Citation: 45 S.E. 324,101 Va. 786
• Parties: BRETT et al. v. DONAGHE'S GUARDIAN.
• Court: Virginia Supreme Court

45 S.E. 324

101 Va. 786

BRETT et al.

v.DONAGHE'S GUARDIAN.

Supreme Court of Appeals of Virginia.

Sept. 17, 1903.

WILLS—CONSTRUCTION—CHILDREN—FAMILY.

1. The word "children" has in general no other meaning but issue in the first degree, unless there be something on the face of the will to manifest a contrary intention on the part of the testator.

2. Technical words are presumed to be used technically, and words of a definite legal signification are to be understood as used in their definite legal sense, unless the contrary appears on the face of the instrument.

3. The word "family" may include an entire household, all descended from a common stock, their husbands and wives, but does not include the child of a son who was born and always resided in a distant state.

Appeal from Circuit Court, Augusta County.

Bill by Donaghe's guardian against Brett and others. Decree for plaintiff, and defendants bring error. Reversed.

Kerr & Kerr, for appellants.

H. J. Taylor and R. P. Bell, for appellee.

KEITH, P. The decree appealed from in this case construes the will of W. W. Don-aghe, Sr., who died in 1873, leaving considerable estate. By the fifth clause of his will, he directed that "the share falling to my son, William W. Donaghe, shall be held by my executors in trust for the joint use and benefit of my said son and wife and children; it being my purpose to provide a home for the family during the life of my said son and his wife and the survivor of them, and at the death of the last survivor, to divide the trust fund among their descendants by stocks. It is my desire that my executors, as trustees of this fund, shall have the largest discretion as to the investment of the principal from time to time, and as to the application of the income, or the use of the property; having in view always the preservation of the principal fund, in such manner as in their judgment will best promote the comfort, respectability, and happiness of my said son and his family."

At the date of the testator's death in February, 1873, the family of William W. Do-naghe, Jr., consisted of himself, wife, and, four infant children, all of whom were living with him except his daughter Ellie. Of this family, as thus composed, there now survive Lucy J. M. Donaghe, the widow of W. W. Donaghe, Jr., and Ellie.

Anna Gray Donaghe married a Mr. Snow, removed to Washington, and died intestate and without issue.

Everett Donaghe, the only son of W. W. Donaghe, Jr., removed to Colorado, married, and died some years ago, leaving a widow and infant to survive him. His widow has since married, and his child still survives.

Mary D. Donaghe married one Mahlo, from whom she was divorced a vinculo, and subsequently married one Edward S. Gaunt of the state of New York. Mary has since died without issue, leaving a will, by which she bequeathed her whole estate, including what was due and to become due under the will of W. W. Donaghe, Sr., her grandfather, to one Kate C. Neilson. The interest acquired by Kate C. Neilson under the will of Mary B. Gaunt was ascertained and determined in the case of Neilson v. Brett, reported in 99 Va. 673, 40 S. E. 32.

It was seen that by the fifth clause of the will, the share falling to W. W. Donaghe, Jr., is to be held by the executors in trust for the joint use of his son and his son's wife and children; the purpose being, as declared by the...