Bryson v. Turnbull

• Decision Date: 26 January 1953
• Docket Number: No. 4011,4011
• Citation: 74 S.E.2d 180,194 Va. 528
• Court: Virginia Supreme Court
• Parties: ELIZABETH B. BRYSON, ET AL. v. IRBY TURNBULL, EX'R., ET AL. Record

Page 180

74 S.E.2d 180

194 Va. 528

ELIZABETH B. BRYSON, ET AL. v. IRBY TURNBULL, EX'R., ET AL.

Record No. 4011.

Supreme Court of Appeals of Virginia

January 26, 1953.

Tucker, Mays, Cabell & Moore, Y. Melvin Hodges, William J. McDowell, for appellants.

Meredith C. Dortch, Morton G. Goode, George R. Humrickhouse, John Y. Hutcheson, Edwin A. Crowder, Irby Turnbull, Williams, Mullen, Pollard & Rogers, for appellees.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This case is before us upon appeal from a decree of the Circuit Court of Mecklenburg county, entered on November 28, 1951, in the consolidated causes pending there under the style of L. W. Wimbish's Executor v. Charlotte Wimbish, et al., in which decree the court adjudicated the claims of the parties to the estate of Emmet T. Boyd, deceased.

Emmet Townes Boyd, the widow of John B. Boyd, executed her will on December 22, 1938. She was seventy-three years of age at the time and had no children. She owned three adjoining tracts of land designated as follows: the Harris tract, containing 720 acres; the Burnette tract, containing 50 acres, and the Cuscowilla tract, containing 1052.1 acres. The three tracts constituted the plantation upon which Mrs. Boyd and her husband lived during their married life. The mansion house was located on the Cuscowilla tract which had been inherited by Mrs. Boyd from her direct ascendants. The two other tracts, together with some $25,000 in cash and securities, had been devised to her by her husband. She also owned a two-thirds interest in a parcel of land known as the Dr. Townes tract.

On the date of her will Mrs. Boyd also owned considerable tangible personal property in addition to $34,293.26 in cash and securities which included the $25,000 bequeathed to her under her husband's will.

After making numerous bequests of specific personal items and several monetary legacies totalling $7,000, Mrs. Boyd disposed of her estate as follows:

'To my faithful servants, Tom and Lucy Jones, I leave in fee simple that tract of land known as the 'Burnette Place', which was purchased by my husband.

'To Lizzie Bryson, Elizabeth Reynolds and Henrietta Dalby, I leave in fee simple all that tract of land known as the Harris Place which was purchased by my husband.

'To the above mentioned Lizzie Bryson, Elizabeth Reynolds and Henrietta Dalby, I leave the balance of my money of whatever kind, cash, stock, bonds, choses in action, after the payment of other bequests and charges against my estate.

'All the rest of my property not otherwise disposed of, real, personal, or mixed, I leave to my five nieces and nephews, Charlotte Wimbish, Emmet O'Halloran, Nannie Sullivan, Townes Wimbish, and Claiborne Wimbish.'

Lizzie Bryson was a half-sister of Mrs. Boyd's husband, and Elizabeth Reynolds and Henrietta Dalby were his nieces. The three were her husband's next of kin. Charlotte Wimbish, Emmet O'Halloran, Nannie Sullivan, Townes Wimbish, and Claiborne Wimbish, to whom she left the rest of her estate, including the Cuscowilla tract, were five of her seven then-living nieces and nephews of the Townes blood, and were her next of kin.

Shortly after the will was made, Irby Turnbull was appointed guardian for Mrs. Boyd upon the ground of her physical disability. Mrs. Boyd later became mentally incapacitated and Turnbull continued to serve as guardian until her death on April 29, 1950, when he qualified as executor under her will.

In December, 1944, the Federal flood control plan, then known as the Buggs Island project, was approved by the Congress and it became apparent that a considerable portion of Mrs. Boyd's lands would be inundated. To protect his ward's interest, the guardian instituted a chancery suit seeking permission of the court to sell the standing timber on the affected lands. Under authority of a decree entered July 22, 1946, the timber on the Harris and Burnette tracts was sold for $1,000, and the timber on the Cuscowilla tract for $39,300. The net proceeds from these sales were invested by the court and are held by it.

Later the United States government filed a condemnation suit in the Federal District Court seeking to acquire the Burnette tract and portions of the Harris and Cuscowilla tracts. Compensation for the land to be taken was agreed upon between the government and the guardian, and upon the latter's recommendation to the Circuit Court of Mecklenburg county the guardian was authorized, by decree entered in the chancery suit mentioned above, to accept the sum of $44,000, the net of which is now held by that court.

During the guardianship, in a suit by Sallie Goode Morton, seeking partition, Mrs. Boyd's two-thirds interest in the Dr. Townes tract was sold under a decree of court entered at the August, 1944, term. Mrs. Boyd's share of $3,573.44 was paid to the guardian, who invested $3,500 in government bonds and later sold $2,000 of the bonds and deposited the proceeds in his fiduciary account. Thus at Mrs. Boyd's death $1,500 of this investment remained in bonds.

At the time of Mrs. Boyd's death her estate therefore consisted of: tangible personal property appraised at $3,589; cash and securities appraised at $14,673.17; net proceeds from sale of timber $36,757.92; net proceeds from sale of condemned land $41,355.90; 26.5 acres of the original Harris tract; and 202.1 acres of the original Cuscowilla property, which was later disposed of in the suit for $35,500.

Lizzie Bryson, Elizabeth Reynolds, Henrietta Dalby, Charlotte Wimbish, Claiborne Wimbish and Emmet O'Halloran survived the testatrix, but Nannie Sullivan and Townes Wimbish predeceased her without issue.

The chancery suit in which the guardian sold the timber and settled the condemnation case was consolidated with another chancery suit brought for the purpose of construing the will. In the consolidated suit a decree was entered referring the cause to Charles J. Faulkner, commissioner in chancery. The principal issue submitted was the determination of the parties entitled to the proceeds from the sale of timber and the land taken by condemnation.

It was conceded that Mrs. Boyd had testamentary capacity on December 22, 1938, when she made her will. But it was agreed by stipulation of all parties to the litigation that '* * * for sometime before the suit to sell the land and timber and the condemnation proceedings taking some of the property under consideration were filed and continuously since and until her death she was mentally incapable to make, change or revoke a will, * * *.'

Commissioner Faulkner filed a carefully considered report in which he held that the proceeds from the timber and lands should pass under the will as real estate, as if the same had not been disposed of. The court entered a decree on November 28, 1951, confirming the commissioner's report and adjudicating the principles of the cause. Appellants, Elizabeth Bryson, Elizabeth Reynolds and Henrietta Dalby, excepted to the report and the decree confirming same, and we granted them an appeal.

Appellants contend that the will is '* * * to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by will.' 1950 Code of Va., § 64-62. They argue that at the time of Mrs. Boyd's death the real estate had already been changed into personalty and should be treated as such.

Appellees, Charlotte Wimbish, Claiborne Wimbish and Emmet O'Halloran, contend that there is no doubt about testatrix's meaning, that 'her will, in so many words, leaves the intangible personalty and the Harris tract to appellants and 'what is not otherwise disposed of' to appellees by way of a residuary gift; and it contains no provision indicating an intent contrary to the presumption created by the statute.'

Appellants further say, 'It necessarily follows that the money and bonds in court at the time of death * * * pass to appellants, unless there be some positive rule of law, principle of equity, or statute which requires that they be given special treatment under the circumstances of this case.'

Appellees contend to the contrary, that the sale of the timber and the lands was brought about by paramount authority at a time when the testatrix was incapable of dealing with her property, and at a time when she was incapable of changing or revoking her will, and for these reasons the proceeds of the sales are to be considered as real estate.

While appellants list several assignments of error, they state in their brief that the questions involved are:

'A. Are the proceeds from the sale of timber, the condemnation, and the partition to be considered real or personal property for the purpose of devolution under the will?

'B. If such proceeds or any part thereof are not to be considered as personal property, to whom should they be payable?'

It is suggested by appellants that the question here involved is one of first impression in this Commonwealth.

This case does not present the question of the construction of a will, to ascertain who takes the property devised. It rather requires the treatment of the legal and equitable consequences following the dealings with real estate of an incompetent.

The will of Mrs. Boyd, as written, is clear. It discloses that she desired such of her property as was derived from her husband to go to his next of kin, and she desired her own property to go to her next of kin. This is shown by reading the portion of the will quoted above. Clearly, Mrs. Boyd never intended for appellants, who were her husband's next of kin, to have the proceeds from the forced sale of Cuscowilla or the timber taken therefrom, for she had left this tract to five of her seven nieces and nephews.

Prior to the forced sale of any timber or land Mrs. Boyd became mentally incompetent to deal with her property. She was not competent to make a change in her real estate holdings and she was not competent to revoke or...