Conrad v. Conrad's Ex'r

• Decision Date: 14 November 1918
• Citation: 97 S.E. 336
• Court: Virginia Supreme Court
• Parties: CONRAD. v. CONRAD'S EX'R et al.

97 S.E. 336

CONRAD.

v.CONRAD'S EX'R et al.

Supreme Court of Appeals of Virginia.

Nov. 14, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Direct.]

Appeal from Corporation Court of Winchester.

Bill by Georgia B. Conrad, as executrix of the estate of Holmes Conrad, deceased, and in her own right, against Robert Y. Conrad and others, involving the construction of a will. Judgment for plaintiff, and defendant Holmes Conrad appeals. Affirmed.

John M. Steck and Jas. P. Reardon, both of Winchester, for appellant.

Thomas W. Harrison and R. Gray Williams, both of Winchester, for appellee.

BURKS, J. Holmes Conrad, a distinguished lawyer of the city of Winchester, Va, executed his holograph will in October, 1883, and died in September, 1915. At the time the will was executed his family consisted of his wife and seven children, all under age. and several of them of very tender years. At the time of his death all of the children were of age, several of them had married and established homes of their own, one or more of them were still living with him, and one married daughter had died leaving an infant of tender years, who was named after the testator. It does not appear that any children were born after the date of the will. After the will Was admitted to probate, the bill in this cause was filed by his widow, in her own right and as executrix, asking for its construction. The appellant answered the bill, denying some of its most important allegations, and making certain charges and allegations, which need not be here stated, by way of a cross-bill against the complainant. The complainant demurred to the cross-bill, which demurrer the trial court, in the main, sustained.

Very few of the facts and circumstances surounding the testator are given in either the bill or the cross-bill, and what are herein stated are mainly gathered from admissions or uncontroverted statements in the briefs of counsel. They give little, if any, aid in the interpretation of the will. The only question involved is: What estates did the widow and children of the testator, respectively, take under his will? The following is a copy of the will:

"I, Holmes Conrad, do make this my last will, written throughout with my own hand.

"1. I direct that my debts and liabilities be paid as far as may be from the proceeds of the unsecured debts due to me.

"2. That my secured claims and my stocks, as far and so long as they may be regarded by my executrix as safe, be kept as investments so long as the interest is promptly paid.

"3. That my life insurance be collected and the proceeds he invested in some good six per cent. fund or real estate security in Virginia.

"4. That my real estate, except my dwelling, which is owned jointly with my wife, be sold at public or private sale by my executrix, and the proceeds be invested as directed in the preceding clause.

"5. That the interest on all said investments be collected by my executrix and applied to the support of herself and our children.

"6. But should such income, in the opinion of my executrix, prove inadequate for that pur-¹pose, then she may use the principal to any extent that she may desire.

"7. As our children become of age or many, my executrix may make such advancements of the principal of my estate to them as she may think proper—provided that she secure to herself a net income during her life of fifteen hundred dollars a year.

"8. All of my personal property, except my cash and choses in action, I give to my wife.

"9. At my wife's death all of my estate should be so apportioned among my children as to give to each an equal share of the whole.

"10. I appoint my wife, Georgia B. Conrad, sole executrix of my will, and desire that she qualify without surety.

"Witness my hand this 1 October, 1883.

"Holmes Conrad."

Before proceeding with the interpretation of the will, we will advert to certain underlying principles which are controlling in the interpretation of all wills, and to some of the decisions of this court construingsomewhat similar language in other wills, bearing in mind, however, the admonition that:

"As it is extremely rare to find two cases alike in all respects, little or no aid can be derived by a court in construing a will from prior decisions construing other wills. It is not enough that the same words in substance, or even literally, have been construed in other cases. It often happens that the same identical words require very different constructions, * * * according to the context and the peculiar circumstances of each case." Rhett v. Mason, 18 Grat. (59 Va.) at page 560.

The rule is elementary that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In ascertaining this intention the language used, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought.

Isolated clauses or sentences are not to be considered by themselves, but the will is to be considered as a whole, and its different clauses and provisions examined and compared, so as to ascertain the general plan and purpose of the testator, if there be one. Nothing is to be added to or taken from the language used, and every clause and every word must be given effect, if possible. Generally, ordinary words are to be given their usual and ordinary meanings, and technical words are presumed to have been used in a technical sense. If words or phrases are used which have a well-defined legal significance, established by a line of judicial decisions, they will be presumed to have been used in that sense, in the absence of evidence of a contrary intent, especially when used by one having knowledge of such significance. If, when so considered, the intention of the testator can be discerned, that is the end of the investigation, as "it is not permitted to interpret what has no need of interpretation." Compare Ross v. Ross, 115 Va. 374, 79 S. E. 343.

In the case in judgment, the gift in clause 5 of the will to the testator's wife, to be "applied to the support of herself and our children, " is of the class of phrases above mentioned, and the testator must have been familiar with the construction placed upon it by a line of decisions of this court, for he was an able and well-informed attorney, living and practicing his profession in this state. In an unbroken line of decisions from Wallace v. Dold, 3 Leigh (30 Va.) 258, decided in 1831, to Honaker v. Duff, 101 Va. 675, 44 S. E. 900, decided in 1903, it has been held that a gift to a wife for the benefit of herself and children, or words of like effect, is a gift to the wife, and that the children take no interest or estate in the property given, and are only mentioned to express the motive for the gift to the wife. It would be a work of supererogation to review the cases, as that has been sufficiently done in Stace v. Bumgardner, 89 Va. 421, 16 S. E. 252, and Tyack v. Berkeley, 100 Va. 296, 40 S. E. 004, 93 Am. St. Rep. 963. We have no difficulty, therefore, in declaring that as to the income of testator's estate, mentioned in clause 5 of his will, his wife took the absolute property, and that his children have no interest therein.

We are to ascertain the meaning of the words used in the will, not in the abstract, but in the sense in which they were used by the testator, if that can be ascertained. Counsel for the appellant, in his brief and also in his oral argument, insists that the word "direct, " used in paragraph 1 of the will, and which is applicable to the first five paragraphs thereof, is used in the sense of an imperative command or direction; that the testator sought by its use to keep control of his estate after his death, and conserve it for the benefit of his children after the death of their mother. The word, however, also means "to point out a way; to indicate a course to; advise concerning a course or procedure" (Standard Dictionary): and we are of the opinion that it was in this sense the testator used it in his will. It must be borne in mind that the testator was writing his will that could not take effect until his death, when his wife could no longer have the benefit of his advice and assistance, and hence, as far as he could anticipate, he undertook to "advise" her, to "point out" and "indicate" to her, the course of conduct or procedure to be followed in the administration of his estate. That the testator had implicit confidence in the ability and integrity of his wife is manifested by the fact that he appointed her the sole executrix of his will, and "without surety." But our women are not educated in business affairs, and when to the cares of the family there are added the cares of business, they are greatly in need of professional advice upon which they can rely with confidence. With full knowledge of these facts, the testator directs or advises his wife to collect his unsecured debts and from the proceeds discharge his liabilities, to keep intact his stocks and investments made by him "so long as the interest is promptly paid, " to invest his life insurance money in good 6 per cent. funds or real estate security, and to sell his real estate and make like investment. After telling her how the investments were to be made, he than directs how the interest thereon is to be applied. We are unable to concur in the view that these directions were other than advisory only.

The power to make advancements conferred by paragraph 7 of the will, is limited only by the discretion of the mother. We attach no importance to the use of the word "executrix, " instead of "wife, " in this and other clauses of the will. The wife was nom-mated in the will as the "sole executrix of my will, " and there is nothing in the will to indicate that the testator had in mind any other person...