Brown v. Gibson's Ex'r
| Decision Date | 21 November 1907 |
| Citation | 59 S.E. 384,107 Va. 383 |
| Parties | BROWN. v. GIBSON'S EX'R. |
| Court | Virginia Supreme Court |
1. Wills—Codicil—Construction.
Testatrix, by the fourth clause of her will, provided for the cancellation and surrender by her executor to the obligors of all notes, bonds, or other evidences of debt belonging to her and remaining unpaid at the date of her death, from whomsoever due. Testatrix executed a codicil, revoking such clause and providing in lieu thereof a direction that any note or other evidences of indebtedness remaining unpaid at the date of her death from certain specified individuals, including complainant, should be canceled and surrendered by her executor to the obligors in full satisfaction thereof. At her death testatrix held the obligations of all the persons named in the codicil, except complainant, who was not indebted to her, but was indebted to another on an unmatured obligation secured by a mortgage on her farm. Complainant was related to testatrix, but the other beneficiaries under the codicil were mere borrowers of her money. Held, that the codicil did not create an obligation on the part of the executor to purchase complainant's debt from the holder and cancel the same.
2. Same—Intent.
In the construction of a will, the inquiry is, not what testator intended to express, but what the words used do express.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 956.]
3. Same—"Surrender."
Where a codicil directed that the executor should surrender certain evidences of indebtedness against specified legatees, the word "surrender" implied possession on the part of testatrix, so as to exclude debts which testatrix did not own.
[Ed. Note.—For other definitions, see Words and Phrases, vol. 8, PP. 6819-6821.]
4. Same—"Cancel."
The word "cancel" as used in a codicil directing cancellation of certain debts owing by legatees to testatrix, implied a forgiveness and obliteration of the debt, and excluded the idea of payment.
[Ed. Note.—For other definitions, see Words and Phrases, vol. 1, pp. 949-951.]
Appeal from Circuit Court, Augusta County.
Bill by Margaret Gibson Brown against E. V. Gibson's executor. From a decree in favor of defendant, complainant appeals. Affirmed.
A. C. Braxton and Taylor McCoy, for appellant.
Richard S. Ker and Hugh H. Kerr, for appellee.
This appeal involves an interpretation of the second clause of the codicil to the will of Miss E. V. Gibson, deceased, which reads as follows:
"And I do also hereby revoke the devises and bequests contained in the fourth clause of my said will, and desire to completely cancel and annul all the provisions of said fourth clause of my said will; and in lieu thereof, I direct that any note or notes, bond or bonds, or other evidences of indebtedness which may remain unpaid at the date of my death from the following named individuals, viz: Joseph M. Hogshead, N. D. McCormick, Wm. C. McKemy, George W. Jenkins, John A, Frenger, George W. Dice, Fanny Dice, Wm. H. Cochran, Charles D. Whlteseli, R. P. McPheeters, H. J. Williams and Margaret Gibson Brown, my executor shall cancel and surrender all such obligations to the obligors in full satisfaction and payment thereof."
This codicil, as shown on its face, was in lieu of the fourth clause of the testatrix's will, which was in these words:
"I direct that all notes, bonds or other evidences of indebtedness now due to me from any source whatsoever, and which may remain unpaid at the date of my death, either as to principal or interest, my executor hereinafter named shall cancel and surrender to the obligors in full satisfaction and payment thereof."
It appears from the record that the testatrix, at the time of her death, held the obligations of all the persons named in the codicil, except the appellant, Margaret Gibson Brown, who was in no way indebted to her, and that all of such persons, except the appellant, who was a second cousin, were in no way related to the testatrix, but were merely borrowers of her money. It further appears that at the time of the death of the testatrix the appellant was Indebted to Washington & Lee University in the principal sum of $7,250, which was secured on her farm near Salem, Va., and had been so indebted for several years prior to that date.
The contention of the appellant is that by the terms of the codicil in question it is the duty of the executor, not only to cancel and surrender such obligations of the parties named therein as belonged to the testatrix, but to acquire out of the moneys of her estate all the evidences of indebtedness of all of the parties named in the codicil, whether belonging to the testatrix or any one else, and after acquiring such obligations to then cancel and surrender them to the obligors therein, and that it is therefore the duty of the executor to...
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