Clements v. Clements

• Decision Date: 12 November 1936
• Court: Virginia Supreme Court
• Parties: JOHN W. CLEMENTS, ET ALS. v. DORA E. CLEMENTS, ET ALS.

Page 223

167 Va. 223

JOHN W. CLEMENTS, ET ALS. v. DORA E. CLEMENTS, ET ALS.

Supreme Court of Virginia, Richmond.

November 12, 1936.

Present, All the Justices.

1. PARTITION — Commissioners — Report — Oral Examination of Commissioners to Ascertain Meaning of Report — Case at Bar. — In the instant case commissioners appointed to partition land of an intestate between his widow and infant children and the adult children of a former marriage reported that the infants' interest was included in the land allotted to the widow, consisting of 36 1/4 acres together with the residence, barns, etc., and that the residue was allotted to the adult children jointly. The residence thereafter burned and complainants, the adult children and others, claiming a reversionary interest, sought to have the proceeds of an insurance policy thereon invested under the direction of court until the widow's death. The trial court, because of ambiguity in the report of the commissioners of partition, orally examined them as to the true intent and meaning of said report, and entered a decree in favor of the widow.

Held: That the action of the trial court in taking the testimony of the commissioners to ascertain their intention and meaning in order to construe their report, was proper.

2. PARTITION — Commissioners — Report — Construction of Report by Trial Court — Case at Bar. — In the instant case commissioners appointed to partition land of an intestate between his widow and infant children and the adult children of a former marriage reported that the infants' interest was included in the land allotted to the widow, consisting of 36 1/4 acres together with the residence, barns, etc., and that the residue was allotted to the adult children jointly. The residence thereafter burned and complainants, the adult children and others, claiming a reversionary interest, sought to have the proceeds of an insurance policy thereon invested under direction of court until the widow's death. The trial court, upon orally examining the commissioners, learned that it was their intention and the meaning of their report that the infant children should get the 36 1/4 acres, in fee, subject to their mother's dower, as their portion, and that the adult children should receive the residue, in fee, as their entire portion, and entered a decree accordingly, ordering that the proceeds of the insurance policy be paid to the widow.

Held: That there was no error in the trial court's construction of the commissioners' report.

3. PARTITION — Appeal — Award of Proceeds of Insurance Policy — Right of Parties without Interest in Land under Partition Decree to Complain — Case at Bar. — In the instant case commissioners, in partitioning an intestate's land between his widow and infant children, and adult children by a former marriage, included the infants' share in the land allotted to the widow as dower, consisting of 36 1/4 acres together with the dwelling house, and allotted the residue to the adult children. Complainants, the adult children and others, claiming a reversionary interest, sought to have the proceeds of an insurance policy on the residence, which burned, invested under direction of court until the widow's death, but the court, after orally examining the commissioners, decreed that the infants took the 36 1/4 acres, in fee, subject to their mother's dower, as their portion, and directed that the proceeds of the policy be paid to the widow, which action of the court was assigned as error.

Held: That since none of the complainants had any interest in the land in question they had no interest in the insurance money either, so that there was no necessity for passing upon the assignment of error.

4. INSURANCE — Persons Entitled to Proceeds — Life Tenant. — A life tenant may insure the property for the protection of his own interests solely, and, if such be the clear intent of the contract, upon the destruction of the property the life tenant will take the proceeds of the insurance absolutely and not merely a life interest in them.

Appeal from a decree of the Circuit Court of Amherst county. Hon. Edward Meeks, judge presiding. Decree for defendants. Complainants appeal.

The opinion states the case.

O. L. Evans and W. H. Carter, for the appellants.

J. T. Coleman, Jr., Shrader & McClenny and Thomas Whitehead, for the appellees.

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

The record shows the following case:

Charles W. Clements died in the year 1928 seized and possessed of one hundred and fifty-six and one-half acres of land in Amherst county. He was married twice, and left two sets of children. By his first wife he left eight children, the adult complainants, named John W. Clements, Delilah Patterson, Henry E. Clements, Cammie Thurston, Corbett Clements, Smiley Clements, Margaret Lawhorn and Esther Ogden. He left his second wife surviving and two children by her, Zelda and Charles Z. Clements, who were respectively nine and twelve years old in the year 1929. There seems to have been some antagonism and feeling existing between the second wife and the children of the first wife. There was a contest over an alleged will of Charles W. Clements, and the lower court held, in 1929, that Charles W. Clements died intestate. A suit for partition and assignment of dower was brought in December, 1929, by the eight adult children of the first wife against the second wife, Dora E. Clements, and her two infant children. After a course of litigation and the taking of the usual accounts of debts and the settlement of the administrative accounts, by decree entered March 12, 1930, commissioners were appointed, whose duty it was to go upon the land, and if it could be partitioned in kind, to make partition thereof. So much of that decree as we are concerned with was in the following language:

"And the court is further of the opinion and doth hereby decree that the dower of the said Dora Clements should be allotted to her, and that of the remaining ten-fifteenths of said land, that two-fifteenths may be allotted to the said infants jointly, and the remaining eight-fifteenths by consent of counsel for the plaintiffs may properly be allotted to them jointly.

"And it is further adjudged, ordered and decreed that the commissioners hereinafter appointed in making partition of said real estate do lay off and assign by proper metes and bounds one-third in value of said real estate as dower, to the said Dora Clements, widow of Charles W. Clements, deceased, to have and to hold the same for and during her natural life as and for the dower of the said Dora Clements in the said land; and that the same commissioners do, if practical make an equal and fair partition in severalty of the residue of the said tract of land among the said heirs at law of the said Charles W. Clements, and if practical, lay of to the said infant children jointly their two-fifteenths adjacent to the dower, and to the plaintiffs, John W. Clements, Delilah Patterson, Henry E. Clements, Cammie Thurston, Corbett Clements, Smiley Clements, Margaret Lawhorn and Esther Ogden, jointly their eight-fifteenths interest in said land, having regard to the quantity and quality and value in making such partition, and for the purpose of making said partition, the court doth hereby appoint J. H. Massie, F. B. Sandidge, M. W. Davis, H. W. Coffey, and F. H. Higginbotham, any three of whom may act. But if said commissioners find that partition cannot be fairly and conveniently made of the said real estate, after assignment of dower, among the parties as aforesaid, they shall report this fact to the court.

"And it is further adjudged, ordered and decreed that before said commissioners or any of them shall proceed to discharge their duties as such commissioners, that they and each of them shall take an oath to faithfully and impartially assign dower to the said Dora Clements, widow, and make a partition of the remainder of the said real estate in accordance with the terms and requirements of this said decree, and they shall return a report of what they shall do under this decree as such commissioners to this court, accompanying same with a description of said lands by metes and bounds of the respective parcels allotted as aforesaid, for which purpose they may retain the services of a surveyor; and they to return with their said report such plats and surveys as may be made and any evidence taken before them pertaining to the matter of the said partition."

Thereafter the commissioners made their report, having had a survey and plat made, which report in part contained the following language:

"(1) That we met on May 1, 1930, on the lands of Charles W. Clements, deceased, and called to our assistance T. W. Saunders, Surveyor, and we together viewed the premises and after due consideration, we were of the opinion that it would be impracticable to allot to the infant descendants, Zelda Clements and Charles Zedilee Clements, two-fifteenths of said land, and we therefore included the two-fifteenths interest of the said infant children in the land allotted to Dora E. Clements as dower, and we accordingly allotted to Dora E. Clements and the said two infant children of the said Dora E. Clements 36 1/4 acres of land together with the mansion house, barns, and other out-building thereon and the residue of said land containing 120 1/4 acres, we allotted to the adult heirs of Charles W. Clements, deceased, jointly, namely * * *. The plat of said division made by T. W. Saunders, Surveyor, is herewith returned as a part of this report, and the said parcel of 36 1/4 acres is designated on said plat as Lot No. 1, and the said parcel of 120 1/4 acres, is designated on said plat as Lot No. 2. Lot No. 1, we estimated...