Cole v. Cole

• Decision Date: 31 July 1884
• Citation: 79 Va. 251
• Court: Virginia Supreme Court
• Parties: COLE v. COLE & ALS.

79 Va. 251

COLE v. COLE & ALS.

Supreme Court of Appeals of Virginia.

July 31, 1884

Appeal from decree of circuit court of Smyth county, entered 19th September, 1882, in the cause of Hugh F. Cole and others against Mrs. Martha A. E. Cole and others. In 1881 David J Cole, late of said county, died testate, leaving a widow Martha A. E. Cole, no children, and valuable real and personal estate. The third clause of his will is as follows " I give to my wife, Martha A. E. Cole, all of my personal and real estate during her lifetime, and at her death half of the real estate and half of the personal property that may be on hands to do with as she may see proper, and the other half of my real estate and personal property to go to the heirs of my brother, Sampson Cole." She qualified as administratrix with the will annexed on 18th July, 1881, and took possession of the entire estate.

In September, 1882, Hugh F. Cole and the other heirs of Sampson Cole, deceased, brought their bill in said circuit court against Mrs. M. A. E. Cole, as widow, devisee, legatee and administratrix c. t. a. of David J. Cole, deceased claiming to be entitled under the will, at the widow's death, to one-half of the estate, real and personal. They alleged, that while she was entitled to the use and enjoyment of the whole estate during her lifetime, it was her duty to manage it prudently, and that she had not the power to give it away nor to waste it. Their prayer was that the will be construed, the rights of the plaintiffs definitely ascertained, and for general relief. The widow answered, denying the claim set up in the bill, and insisting, that according to the true construction of the will, she was entitled absolutely to the whole estate. " But," the answer proceeds, " whilst this is so, she does not contend for this, for she is satisfied that this clause of the will ‘ as to what may be on hands,’ was only contemplated to be applied to the personal estate. At her death, she is willing now to say that one-half of the real estate will belong to the heirs of Sampson Cole, deceased.

Respondent knows that her husband intended to give her absolute dominion and control of the personal estate to dispose of and do with as she pleased, and thought that, perhaps, circumstances might arise when she would need the whole of it, and intended, that in that event, she should so use it, and she insists that it was the furthest from his intention to leave her under the guardianship and control of these complainants, and require her to manage it prudently and economically for their benefit. He never intended to put her during life under any such hard task-masters, and yet this is the contention of these complainants." So, the controversy involves the construction of that clause of the will.

Testimony was taken, and the cause coming on to be finally heard, a decree was entered in favor of the plaintiffs, and from that decree the widow appealed to this court.

James H. Gilmore, for the appellant.

John P. Sheffey, for the appellees.

LEWIS P., after stating the case, delivered the opinion of the court:

In the construction of wills it is a well-settled rule of law that an absolute power of disposal by the first taker renders a subsequent limitation repugnant and void. And the same rule applies whether the property devised be real or personal. 3 Lom. Dig. 193; Shermer v. Shermer's ex'or, 1 Wash. 266; Riddick v. Cohoon, 4 Rand. 547; May v. Joynes et als., 20 Gratt. 692; Miss. Society v. Calvert's adm'r, 32 Id. 357; Carr et als. v. Effinger et als., 78 Va. (3 Hansbrough) 197.

In Riddick v. Cohoon, a testator gave to his three sisters certain specific legacies, and to his daughter Betsy, certain real and personal property, and then, by another clause of the will, directed as follows: " It is my will and desire that if my aforesaid daughter, Betsy, shall die without lawful heir or issue of her body, then all of the lands and all the other estate I have herein given to her that shall be left remaining at her death, be equally divided to and between my aforesaid three sisters." It was held that the language employed gave to the daughter an absolute power of alienation, and consequently an absolute estate in the property devised. The court saying, that after an absolute property given to one, with an unlimited power to dispose of it, express or implied, a disposition by the donor of so much of the property as may not be disposed of by the donee or legatee to another is void, because of the inconsistency and the uncertainty as to what part of the property is intended to go over. In May v. Joynes et als., the testator gave to his wife the whole of his estate, real and personal, during her life, with full power of alienation, and to use the purchase money for investment or any purpose that she should see fit, with this restriction, that whatever should remain at her death should be divided as directed by the will. Here, the devise to the wife was for her life only,...