Coffman v. Coffman 1

• Decision Date: 15 November 1888
• Citation: 85 Va. 459,8 S.E. 672
• Parties: coffman v. coffman et al. 1
• Court: Virginia Supreme Court

8 S.E. 672

(85 Va. 459)

coffman

v.coffman et al. ¹

Supreme Court of Appeals of Virginia

November 15, 1888

Wills—Requisites—Disposition of Estate—Validity.

A paper in the form of, and purporting to be, a will, revoking all former wills, and providing that one of testator's sons shall have no part of his estate at his death, reciting as a reason that said son has inherited from his mother a sum equal to that which testator's estate will probably pay to his other legal heirs, naming no executors, and making no other provisions whatever, is not a will, as it does not necessarily imply a disposition of testator's estate to his other heirs; and his property goes to those entitled thereto under the law of descents and distributions, including the son mentioned.

Appeal from circuit court.

Wm. B. Compton, for appellant. Grattan & Stephenson, for appellees.

Lewis, P. A "will" is defined to be the disposition of one's property, to take effect after death. Therefore, to sustain the decree of the circuit court in this case, two things must be implied from the paper in question, viz.: First, that the decedent intended it as a disposition of his property, to take effect at his death; and, secondly, that he meant to leave, and did leave, the whole of his estate to those persons standing in the relation of his heirs and next of kin, other than the appellant, who is expressly excluded. On the other hand, the appellant contends that the instrument makes no disposition of the estate at all, and consequently that the decedent died intestate. The paper is certainly an anomalous one, and none exactly like it is to be found in any case that has heretofore come before this court. The application, however, of certain well-settled principles, in construing it, leads, we think, to the conclusion that the position taken by the appellant is the correct one. It is a maxim that a testator can disinherit his heirs or next of kin only by leaving his property to others. Mere words of exclusion will not suffice; the estate must be actually given to somebody else. "Though the intention to disinherit the heir be ever so apparent, " said Lord Mansfield in Denn v. Gaskin, Cowp. 657, "he must, of course, inherit, unless the estate is given to somebody else; and the reason is that the law provides how a man's estate at his death shall go, unless he by his will plainly directs that it shall be disposed of differently; so that the doctrine is not peculiar to the law of primogeniture, as is very properly conceded. " It is true the devise or bequest need not be in express terms, and that it may be by necessary implication; but to justify such an implication the intention of the testator must be so apparent that an intention to the contrary cannot be supposed, for otherwise the implication is not a necessary one. 1 Jarm. Wills, 532. Thus a devise to the testator's heirs after the death of A. gives to A. a life-estate by implication, because otherwise the devise to the heir, upon whom the law casts the property in the absence of a disposition of it by the testator, would be rendered nugatory; and it would therefore be absurd to suppose that the testator meant to devise the land to his heirs at the death of A., and yet that the heirs should have it in the mean time. But no such implication arises where the devise is to a stranger after the death of A.; for in such a case it is possible to suppose that the testator meant the heir to take the land during the life of A., and therefore an intention to give a life-estate to A. cannot be supposed. And this, says Jarman, is an exact illustration of the difference between necessary implication and conjecture. According to Lord Mansfield, "necessary implication" is that which clearly satisfies the court what the testator meant by the words used. It is the op-posite, he said, of "conjecture, " and leaves no room to doubt. Wilkinson v. Adams. 1 Ves. & B. 466; Jones v. Morgan, cited in 4 Brown, Ch. 460; Hawk. Wills, o. Redfield lays it down that, in order to create a devise or legacy by implication, it must not be a case of mere slight probability, but something in regard to which most men would not be expected to raise any question. It must not rest upon conjecture. Neither is it required that the inference should be absolutely irresistible. It is enough if all the circumstances taken together leave no doubt in the mind of the court. The words of the will, he adds, must admit of no other implication. 2 Redf. Wills, 203. In Cruise, Dig. tit. "Devise, " c. 10, § 18, it is said: "The courts have in some instances allowed of a devise by implication, where it has been very apparent, in order to support and effectuate the intention of the testator; but in cases of this kind the implication must be a plain, and not merely a possible or probable, one; for, the title of the heir at law being plain and obvious, no words in a will ought to be construed in such a manner as to defeat it, if they can have any other signification. " See, also, 3 Lomax, Dig. 148; Bac. Abr. tit. "Wills, " G; 2 Minor, Inst. 969; Schouler, Wills, § 479; Wright v. Hicks, 12 Ga. 155.

The doctrine of devises by implication was very fully considered in Bois-seau v. Aldridges, 5 Leigh, 222. In that case the decedent left a written instrument as follows: "Not having made any will so as to dispose of my property, and two of my sisters marrying contrary to my wish, should I not make one I wish this instrument to prevent either of their husbands from having one cent of my estate, —say the husbands of my two sisters Martha Aldridge and Dorothy Aldridge, —nor either of them to have one cent, unless they should survive their husbands; in that case, I leave them to be paid out of the collection of any of my moneys 500 dollars each. Given under my hand and seal, " etc. And on the paper was indorsed the following: "Memorandum. To prevent Burnett Aldridge and Burwell Aldridge from having any part of my estate that each might claim in right of their wives, without a will made by me. " It was argued by Messrs. Johnson and Leigh that, excepting the two contingent legacies, this writing was a devise and bequest, by implication, of the whole of the testator's estate to those persons who would take according to the statutes of descents and distributions, other than the two sisters and their descendants. The latter they insisted could have been excluded for no other purpose than to give the estate to others, and that, if the testator did not mean that, he meant nothing. But this view, though pressed upon the court with great earnestness and ability, was not adopted, and the decree of the lower court was affirmed, which declared that the right of a person to disinherit his heirs, or any one of them, exists, not as an abstract substantive power, but as the consequence of the power to leave his estate to others; that the paper in question was not a devise or bequest by necessary implication; and that it was evidently executed under the erroneous impression that, if its author declared his intention to exclude his two sisters, the law would dispose of his estate among his heirs and next of kin, to the exclusion of the sisters mentioned therein. It is true that two of the judges who delivered opinions in that case were of opinion that the instrument itself furnished internal evidence that it was not intended by the decedent to operate as a will any further than the contingent legacies therein bequeathed; but the principle that a man can disinherit his heirs only by unmistakably giving his estate to somebody else was none the less emphatically asserted. To hold otherwise, it was said, would give to a testator the power to repeal the statute of descents and distributions, so far, at least, as it affected his own estate. It was also held that if in every case in which a testator declares an intention to exclude his heirs, or any one of them, it is to be implied from that alone that he intends to devise away his estate from such excluded person or persons, the principle that to disinherit his heirs he must give his estate to some-body else would be of no consequence, since it would give effect to the simple disinherison by holding it tantamount to a positive disposition. Another analogous principle affirmed in that case, and which is very material to the present, is this: That while the intention of the testator, when consistent with the rules of law, is the polar star to guide the judicial expositor of the will, yet his intention to dispose of his estate must be indicated with a legal certainty; otherwise effect as a will cannot be given to the instrument, —the true inquiry being, not what the testator meant, but what the words used import. Judge Brooke, in his opinion, said: "When a testator has devised his estate by will,...