Bristow v. Bristow

• Citation: 120 S.E. 859
• Parties: BRISTOW et al. v. BRISTOW et al.
• Decision Date: 17 January 1924
• Court: Virginia Supreme Court

120 S.E. 859

BRISTOW et al.

v.BRISTOW et al.

Supreme Court of Appeals of Virginia.

Jan. 17, 1924.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Use.]

Appeal from Circuit Court, Middlesex County.

Action by Burke Bristow and others against Larkln F. Bristow and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. D. Evans and F. P. Eastman, both of Saluda, for appellants.

Lewis & Sutton, of West Point, for appellees.

PRENTIS, J. Joseph A. Bristow died April 30, 1903, and left surviving him his widow, Bettie L. Bristow, who died August 31, 1919, and 10 children, as his heirs at law. Two of these were children of his first wife, were the complainants below, and are the appellees here, while the defendants below and the appellants are the other eight children of his second wife, Bettie L. Bristow.

His will reads thus:

"Knowing the uncertainty of life and the certainty of death and desiring to make some disposition of what property I have so that it will do my little ones most good, I make this my last will and testament. I give to my wife, Bettie L. Bristow, all of my real and personal estate after paying what money I owe to use as she pleases during her life and while she remains my widow and ask the court to allow her to qualify as my administratrix without security."

His widow, under this will, took possession of his property, and after her death this suit for partition was instituted by the two older against the other eight younger children.

The defendants, who are the appellants here, answered the bill and claimed "that by the terms of the aforesaid will Bettie L. Bristow took a fee-simple title to all of the real estate and personal property of which the said Joseph A. Bristow died seized and possessed, " and that they inherited the entire estate upon the death of their mother, and consequently that the appellees, the two children of Bristow's first wife, had no interest therein. Upon the issue thus raised the court held that Bettie L. Bristow took only an estate for life, or during widowhood, in the property, that she did not acquire, by virtue of the will, a fee simple interest therein, and directed partition between the 10 children and heirs at law of Joseph A. Bristow. It is from this decree that this appeal is taken.

The question thus raised has been so frequently considered by this court, and so fully discussed, in the two recent eases of Conrad v. Conrad's Executor, 123 Va. 711, 97 S. E. 336, and Davis v. Kendall, 130 Va. 175, 107 S. E. 751, that any extended additional discussion is unnecessary. Since the case of May v. Joynes, 20 Grat (61 Va.) 692, and until modified by statute, now Code, § 5147 (which is inapplicable in this case because the will became effective before the statute became operative), it has been consistently held that, even though there be a devise for life, nevertheless, if the first taker is either expressly or impliedly...