Burke v. Lee

• Decision Date: 06 April 1882
• Parties: BURKE v. LEE AND WIFE.
• Court: Virginia Supreme Court

76 Va. 386

BURKE v. LEE AND WIFE.

Supreme Court of Appeals of Virginia.

April 6, 1882

Error to judgment of corporation court of Alexandria in action of ejectment brought by William H. Burke against Robert C. Lee and Mrs. A. M. Lee. Opinion of court fully states the facts of the case.

W Willoughby, for the appellant.

S Ferguson Beach, for the appellees.

OPINION

STAPLES J.

An action of ejectment was brought in the corporation court of Alexandria by William H. Burke against Robert C. and Mrs. A M. Lee for the recovery of a small lot of ground in that city. Both parties claimed title under the will of Mrs. A. M. Fitzhugh, and the sole inquiry was whether the property was embraced in the devise to the plaintiff or to the defendant. Upon the trial in the court below, the will and codicils thereto annexed, certain diagrams made by the testatrix in connection with the codicils, and explanatory thereof, and the plat and certificate of survey made in the progress of the cause, were laid before the jury. The court and jury also made a personal inspection of the grounds in controversy. The plaintiff then gave evidence tending to prove certain facts set forth in the bill of exceptions which need not be stated here. It related mainly to the condition of the property in controversy; the occupation and cultivation of a portion of it by the plaintiff as the gardener and tenant of the testatrix; the privileges she had extended repeatedly to him, as an employee and faithful servant--in whom she reposed implicit confidence.

After the testimony was concluded, the plaintiff asked the court to instruct the jury as follows:

" If the jury believe from the evidence that it was the intention of the testatrix in making her will to devise to the plaintiff the property in question, the verdict should be for the plaintiff."

Which instruction the court refused to give, and to which refusal the plaintiff by his counsel then and there excepted.

The plaintiff then moved the court to give the jury the following instruction:

" The jury are authorized, in considering the question of intention, to take into view the situation and circumstances of the testatrix as to the property, the possession and occupation of the plaintiff, and other intrinsic circumstances which may tend to explain the ambiguity, if any, which exists in the said will."

To which the court refused, and the plaintiff again excepted.

The court then, on motion of counsel for the defendant, gave to the jury the following instruction, to-wit:

" The court instructs the jury that Mrs. A. M. Fitzhugh, by her will and the codicils thereto, conceding all the parol testimony adduced in this trial to be true, and allowing to it its full legal effect, devised to the defendants the property claimed in this controversy."

Before considering these instructions, it is proper to advert very briefly to some of the rules of law laid down for the guidance of the courts in controversies concerning wills. In the first place, all questions touching the operation, construction and effect of wills and other instruments of writing are for the determination of the court and not for the jury. Herbert and Wife v. Wise and others, 3 Call. 209; Broom's Legal Maxims, 103.

In the second place, a party seeking to maintain a devise must show it by the will itself, and no defects in the language used in the instrument can be supplied by parol proof. The true inquiry is, not what the testator meant to express, but what the words he has used do express. Evidence is, however, always admissible for the purpose of showing the situation of the testator, the state of his family and of his property at the time of making his will, with a view of throwing light upon his intention in cases of doubt and difficulty.

And evidence may generally be received as to any facts known which may be reasonably supposed to have influenced him in the disposition of his property, and as to all the surrounding circumstances at the...