Corr v. Porter
| Decision Date | 10 July 1880 |
| Citation | 74 Va. 278 |
| Court | Virginia Supreme Court |
| Parties | CORR v. PORTER & als. |
1. No particular words are necessary to be used in a codicil to effect a republication of the will to which it is annexed. It is only necessary that it shall appear that the testator referred to and considered the paper as his will at the time he executed the codicil; and where this so appears, even though the codicil refers to personal property only, it may operate as a republication, as to realty, even so as to pass after acquired lands.
2. Words used in a codicil which are sufficient to constitute a republication of the will.
3. The effect of a republication is to bring down the will to the date of the codicil, so that both instruments are to be considered as speaking at the same date and taking effect at the same time.
4. A testator made his will in 1819, whereby he devised his land to his son A forever, provided he should leave issue; if not then it should be divided amongst his other children, or their issue. In consequence of the birth of another child after the date of his will, he made a codicil thereto in October, 1820, which amounted to a republication of his will died after the 1st of January, 1820, and there was nothing on the face of the will or codicil to show that the limitation over to the other children and their heirs should not take effect if A should die without issue. A died without issue living at his death or born within ten months thereafter--having first by deed, in which his wife united conveyed said land to a grantee. In an action of ejectment brought by the other children and heirs of the testator to recover said land. HELD:
The will is governed by the laws in force at the time of the execution of the codicil, and the plaintiffs (the other children and heirs) are therefore entitled to recover the land from the grantee of A, and the fact that the wife of A united in the deed to the grantee does not convey any dower interest that she might be supposed to have therein to him.
5. A having a perfect title during his life, defeasible on his dying without issue, and having conveyed that title to the defendant, the plaintiffs are not entitled to recover for the use and occupation of the premises during said A's lifetime.
6. The effect of a wife uniting with her husband in a deed, is not to vest in the grantee any estate, separate and distinct, from that of the husband, but simply to relinquish a contingent right, in the nature of an incumbrance, upon the land conveyed, which, if not so relinquished, would attach, and be consummate on the death of the husband.
7. The same jury which tried the case on its merits was allowed, without objection from either side, to fix the value of the land, the rents and profits thereof, and the value of the improvements claimed by the defendant. It is too late after verdict to object to this action of the court.
This case was argued at Richmond, but decided at Wytheville. It was an action of ejectment brought in the circuit court of King and Queen county by Charles H. Porter and Mary Ann his wife (who was Mary Ann Bowden), Lemuel G. Bowden, William W. Brigg and Eloise Hunter (alienees of Thomas Russell Bowden), Roderick Bland, Jr., and Ann B. his wife, who was Ann B. Corr, James E. Bland and Catharine G. his wife, who was Catharine G. Corr, and D. L. Kenan and Victoria his wife, who was Victoria Corr, against Thomas Corr, to recover a tract of land lying in said county, and the rents and profits of the same. The facts found by the special verdict were in substance as follows: George D. Shackelford made his will on the 22d of January, 1819, by which he devised the land in controversy as follows: To his son, " Anthony G. Shackelford, provided he leaves a child lawfully begotten of his body; but in the event of my son Anthony G. dying without child, then it is my wish the land given him be divided amongst my surviving children or their issue." That said George D. made two codicils to said will, the first of which bears no date; but the second was duly executed October 25, 1820. The second codicil is in part in these words: & c. That the testator died after January 1, 1820, and that his will and the codicils were duly admitted to probate March 12, 1821; that Anthony G. Shackelford, after attaining lawful age and marrying, conveyed the land by deed, in which his wife united, to the defendant, Thomas Corr, who, by virtue thereof, entered on and still retains possession of said land; that said Anthony G. died January 6, 1874, without leaving any child, or the descendants of any, and that no child was born to him within ten months after his death; that all the children of said George D., the testator, died many years ago, leaving said Anthony G. surviving them, and all died unmarried and without issue, except Mary Ann, who married the defendant, Thomas Corr, and Martha Ellen, who married Lemuel G. Bowden, deceased; that Ann B. Bland, the wife of Roderick Bland, Jr., Catharine G. Bland, the wife of James E. Bland, and Victoria Kenan, the wife of D. L. Kenan, are the only children left to Mary Ann Corr, the wife of said defendant, Thomas Corr, who survived their uncle, the said Anthony G. Shackelford, but that she had two other children who survived their mother, and then died in the lifetime of their uncle, the said Anthony G.; that Mary Ann, the wife of Charles H. Porter, Lemuel G. and Thomas Russell Bowden, are the only children left by the said Mary Ellen, the wife of said Lemuel G. Bowden, deceased, who survived their uncle, Anthony G.; that Thomas Russell Bowden has conveyed his interest in said lands to said William W. Brigg and Eloise Hunter; and that there is nothing on the face of the will or codicil of said George D. Shackelford, deceased, expressly or plainly declaring his intention, that the limitation over to the plaintiffs should not take effect when said Anthony G. died without issue living at the time of his death, or born within ten months thereafter. That Ann, the widow of Anthony G. Shackelford, is still living. Upon the special verdict found by the jury, the court found the law for the plaintiffs and entered judgment for them for the possession of the premises in controversy and costs, from which the defendant obtained a writ of error. The errors assigned, and the other facts incident to the trial, are set out in the opinion of the court.
J. H. C. Jones, for the appellant.
Sands, Leake & Carter, for the appellees.
The learned counsel who argued this case have discussed very elaborately the question whether the devise to Anthony Shackelford is to be considered an estate-tail, which, under the laws then in force, was converted into a fee, or whether it is to be considered a fee simple estate, defeasible upon the said Shackelford's dying without issue living at the time of his death. In the view I take of the case, the decision of this question is unnecessary. It appears that George D. Shackelford, the testator, made two codicils to his will--the first of which is without date, the second bears date the 25th day of October, 1820. In this second codicil the testator uses the following language: The question arises, Does this codicil amount to a republication of the will? There is some conflict among the authorities upon the proposition, whether a codicil proprio vigore, independently of an expressed or implied intention, operates as a republication, or whether it must appear on the face of the codicil or otherwise it was so intended. It has been settled, however, by a long train of decisions, that no particular words are necessary to constitute a republication. All that is necessary is, that it shall appear that the testator considered the paper as his will at the time he made the codicil. Anything is sufficient which indicates a continuance of the testamentary intent with respect to the disposition of the testator's property. In Goodtitle v. Meredith, 2 Maule & Sel. 5, it was held not necessary there should be an actual republication of the will by its being before the testator at the time, and by his declaring that he means to republish it; but if the codicil declares it is to be taken as a part of the will, this constitutes a republication.
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Turner v. Turner
...not a vested right. Minor on Real Property (Ribble), 2d Ed., Vol. 1, § 282. She has neither an estate nor a right of action. Corr v. Porter, 74 Va. 278, 33 Grat. 278. In Virginia the General Assembly has from time to time recognized that inchoate dower is a right. See Code, secs. 5135, 5211......