Christian v. Wilson's Ex'rs. *

• Decision Date: 16 January 1930
• Citation: 151 S.E. 300
• Court: Virginia Supreme Court
• Parties: CHRISTIAN et al. v. WILSON'S EX'RS. *

151 S.E. 300

CHRISTIAN et al.

v.WILSON'S EX'RS. *

Supreme Court of Appeals of Virginia.

Jan. 16, 1930.

^*Rehearing denied March 17, 1930.

Appeal from Chancery Court of Richmond.

Proceeding between Mary Burnley Wilson Christian and another and Richard Baxter Wilson's executors, involving the construction of the will of Richard Baxter Wilson, deceased. From the decree rendered, the former appeal. Affirmed.

F. P. Christian, Jr., and Harrison, Long & Williams, all of Lynchburg, for appellants.

J. Jordan Leake, Jos. M. Hurt, Jr., and George E. Haw, all of Richmond, for appellees.

HOLT, J. This is an appeal involving the construction of the will of Richard Baxter Wilson, made necessary by the renunciation of the widow, who elected to take her distributive share under the statute, Code, § 5276, in his personal estate, and dower in his real property, rather than to take under the provisions for her made by this decedent in his will. Mr. Wilson died on August 3, 1924. His will was probated on August 13 of that year, and her renunciation of its provisions was made on August 11, 1925.

There were four children surviving. Two, Mary Burnley Wilson, 19 years old, and Janie Hughes Wilson, 16 years old, were of the first marriage. Their mother, Janie Hughes Wilson, who is still living, had divorced her husband. He remarried; his second wife and widow being Margaret Booze Wilson. Of this marriage there were two children, Charles Wilson, 3 years old, and Richard Wilson, 6 months old. Charlie died soon after his mother's renunciation, leaving to survive him his full brother, Richard Wilson, and his two half-sisters, who are appellants here.

The widow, Margaret Booze Wilson, and the State & City Bank & Trust Company of Richmond were nominated, appointed, and qualified as executors and trustees under the will. The widow was appointed and qualified as guardian of her children, and the State & City Bank & Trust Company was appointed and qualified guardian for the children of the first wife.

By the first paragraph of his will the testator made provision for his debts and burial expenses. In the second article he gave to his wife his tangible personal property. By articles 3 and 4 certain other bequests were made.

In article 5 he disposed of the residue of his estate, and it is upon the construction of its provisions that this cause turns. In it he directed his trustees to hold this residuum in trust, and said:

"Section I. I direct my trustees to set aside for the use and benefit of my wife, Margaret Booze Wilson, one-third of the said trust estate to be known as 'Share A, ' and I direct that the income from the said Share A shall be paid to her for and during her lifetime and by income I expressly direct that I mean such as shall begin to accrue from the date of my death.

"Upon the death of my said wife, I direct my surviving trustee to transfer, set over and deliver the principal of said Share A to such persons as my said wife shall designate and appoint by a writing in the nature of a last will and testament, and I expressly giveto my said wife the power of appointment over said Share A.

"Should however, my said wife fail to leave a writing in the nature of a last will and testament, then and in that event I direct that said Share A shall be administered for the benefit of such of my children as are also children of said Margaret Booze Wilson, upon the following terms and conditions, that is to say: My trustee shall divide the said Share A into a number of shares equal to such of my children by my said wife, Margaret Booze Wilson, as are living at the time of her death, or who have died leaving issue at that time surviving, and shall pay over to the issue of each of said deceased children one of said equal shares, the issue of each child who is dead to have one of said equal shares paid to him, her or them. The shares intended for said children of myself and my said wife who are living at the time of her death shall be held in trust for them, and each of my said children who are at that time living shall receive the income from one of such shares. Should any of our said children be girls, then each of such daughters shall respectively receive one-third of the principal of her share when she attains thirty years of age and shall receive another one-third when she attains the age of thirty-five years, and shall receive the remaining one-third when she attains the age of forty years. If any of said children are sons, then each of said sons shall respectively receive one-third of the principal of his share when he attains the age of twenty-five years and another one-third when he attains the age of thirty years and the remaining one-third when he attains the age of forty years.

"Should any of said children who are living at the time of my said wife's death die before the principal of the share held in trust for such child has been distributed to such child as hereinbefore provided, leaving issue surviving, then upon such child's death whatever portion of his or her share shall remain undistributed at the time of his or her death shall be paid over free of all trusts to his or her issue per stirpes, if any, and if none, then it shall be administered for the benefit of the other children of myself by my said wife and their issue upon the identical terms hereinbefore set forth.

"I expressly direct that in the event my said wife fails to exercise her power of appointment over said Share A, said Share A shall be administered for the benefit only of such of my issue as are also issue of my said wife, Margaret Booze Wilson, and none of it shall go to my children by my first marriage, or their issue.

"Section 2. My trustees shall divide the remaining two-thirds of my said trust estate, to be known as 'Share B, ' into a number of shares equal to my children who are living at the time of my death, " etc.

The testator then goes on to direct that the trustees shall pay out to these children the principal of the fund so held by them in installments and at different periods, measured by their ages, just as was provided for in the distribution of share A.

Article 6 declared that the provisions made for the wife were in lieu of dower and all other legal and equitable rights which the widow might have. Article 7 provided that nothing which the testator might have given to his wife or to any children prior to the execution of the will, or which he might thereafter give them during his life, should be treated as advancements, but as gifts, and were not brought into hotchpot.

The testator was divorced from his first wife on November 2, 1921, and their property rights were settled by an agreement of date July 20, 1921. In this agreement he transferred to a trustee real and personal property valued at $35,000. This fund was to be held for his wife during her life and was at her death to pass to the daughters, Mary Burnley Wilson and Janie Hughes Wilson, or to their descendants per stirpes, and, upon the death of either without descendants, then the survivor or her descendants, etc., were to take. The decree of divorce also provided that the wife, in consideration of this settlement was to support her children. After the divorce and before the testator's death, he gave to each of these daughters in the aggregate $8,750.

The painstaking and able chancellor who heard this cause was "of opinion that the effect of the election by the testator's widow, Margaret Booze Parker (then Margaret Booze Wilson), to renounce the provisions made for her in the will of her husband, Richard Baxter Wilson, and to take her dower in his real estate and her distributive share of her personal estate, as provided by statute, was (1) to eliminate or destroy her life estate given her under his will over that portion of his residuary estate designated therein as 'Share A, ' (2) to deprive her of the right to exercise the power of appointment likewise given her under his will over said 'Share A, ' and (3) to accelerate the vesting in enjoyment of the remainder in said 'Share A, ' and the other portion of the testator's residuary estate, designated in said will as 'Share B, ' should suffer a ratable diminution in order to provide the widow's distributive share and dower; that the widow's renunciation, when made, related back to the date of the death of the testator and that therefore said 'Share A' diminished in quantity as aforesaid, vested as of the date of the testator's death in enjoyment in the trustees under his will to be held and administered for the benefit of the children of the testator by his second wife living at the date of his death, namely, the two infants, Charles Wilson and said Richard Wilson;"and that "Share B, " diminished in quantity as aforesaid on account of the widow's election, should be divided equally among the three surviving children of the testator after certain adjustments in the distribution of income made necessary by the death of Charles.

The amount set apart for the widow approximates what she would have received under the law had there been no will, and so the only material effect of her renunciation, so far as she is concerned, is to free her estate of any of the trusts imposed by the will, but this renunciation does, in some degree, under the decree appealed from, change the proportions in which the children are to take.

Appellants contend that the executors should "pay over to the widow, in addition to the property given her in Article Two of the will, enough of the residuary estate to make up the share or interest in the estate which she would have taken if there had been no will, leaving the remainder of the residuary estate to be paid over by the executors to the trustees appointed by the will to be held by them for the benefit of the testator's children. In this way the widow would get her legal share in her husband's estate without disturbing the special legacies; and all the testator's children would share equally in their father's estate,...