Crisman v. Swanson, 3857

• Decision Date: 21 January 1952
• Docket Number: No. 3857,3857
• Citation: 193 Va. 247,68 S.E.2d 502
• Court: Virginia Supreme Court
• Parties: JOHN G. CRISMAN, COMMITTEE, &C. v. OSMAR SWANSON, ET AL. Record

Page 502

68 S.E.2d 502

193 Va. 247

JOHN G. CRISMAN, COMMITTEE, &C. v. OSMAR SWANSON, ET AL.

Record No. 3857.

Supreme Court of Appeals of Virginia

January 21, 1952.

J. Randolph Larrick, J. Frederick Larrick and Harrison, Benham & Thoma, for the appellant.

James P. Reardon, J. Sloan Kuykendall, Henry H. Whiting, Denny, Valentine & Davenport and W. E. Edwards, for the appellees.

JUDGE: BUCHANAN

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

John I. Sloat died March 22, 1949, without issue, leaving a will dated December 23, 1948, which was duly probated and which provided as follows:

'First, I leave my property, both real and personal, in trust for my wife Maggie Olivia Sloat, and appoint the Commercial and Savings Bank, Winchester, Va., as my executor, with broad powers of investment, re-investment, sale or otherwise, in order that my wife may be cared for comfortably.

'At her death if any of the corpus remains, I desire the following disposition of the same made;'

He then gave his house to named devisees and sums of money to named legatees, including the employees of Commercial and Savings Bank, followed by the provision that if the corpus of his estate was inadequate, then each beneficiary was to share pro rata. Any remaining fund was to go to the trustees of the Virginia Childrens Home Society and the Methodist Orphanage, at Richmond.

On April 28, 1949, little more than a month after his death, his wife, Maggie Olivia Sloat, was adjudged incompetent and her brother was appointed committee. The committee brought this suit to have the will construed. The bank and some of the other defendants filed answers. The case was heard on the bill and answers. It was averred in the answer of the bank that at the time the will was made the testator knew that his wife's mental condition was very bad.

The committee, plaintiff below and appellant here, contended that the will gave the wife an equitable fee in the real estate and an absolute estate in the personal property under the rule of May v. Joynes, 20 Gratt. (61 Va.) 692, and that the gifts over were void.

The defendants contended that the will created a trust for the comfortable care of the wife during her life and that the gifts over were valid.

The court, in a written opinion, held that May v. Joynes, supra, did not apply; that neither the wife nor the trustee was granted the absolute and uncontrolled power of disposition; that the will created in the trustee a discretionary power to dispose of the corpus for the purpose only of caring for the wife comfortably during her lifetime; and that if any part of the corpus was not consumed for that purpose during the lifetime of the wife, it would vest in the remaindermen according to the terms of the will. The accuracy of this statement in the first paragraph of the court's opinion is beyond question:

'In this case the intention of the testator is perfectly clear. His wife was incompetent and he desired his property to be used to provide for her comfortable support and maintenance during her lifetime, even to the extent of disposing of any part or all of the corpus if it should be necessary for such purpose. In the event that any part of the corpus remained undisposed of at her death he intended it to go to the remaindermen named in the will.'

The court then added the well-settled principle that 'His intention should, of course, be carried out unless it violates some rule of law.'

This purpose of the testator violates no rule of law unless the effect of the language of the will is to give the wife an equitable fee simple estate in the property devised. If so, the gifts over are void for repugnancy, because a gift of the fee is a gift of the whole, and when the whole is given to one person there is nothing left to be given to another. 'The remainder over is void, not because the court does not perceive the testator's intent, but because the attempted gift violates a fundamental rule or canon of property that after a donee has been given a fee in property, such fee cannot be qualified or limited by a gift over to another of such portion of the property as the donee may not have consumed or disposed of.' Mowery v. Coffman, 185 Va. 491, 495, 39 S.E. (2d) 285, 287.

But before there is any repugnancy, it must appear from the will that a fee simple was in fact given to the first taker. If expressly given, there is no problem. But it may be given by implication, and that again is a question of intention, to be ascertained from the language of the will, read in the light of the circumstances existing when it was executed. Rule v. First Nat. Bank, 182 Va. 227, 28 S.E. (2d) 709.

It has long been settled in Virginia that where a life estate is given to the first taker, but with full and unlimited power of disposition of the property given, the implication is conclusive that the fee is given, because the absolute power of disposition is the eminent quality of absolute property. Burwell v. Anderson, 3 Leigh (30 Va.) 348, 355-6; May v. Joynes, supra; Smith v. Smith, 122 Va. 341, 94 S.E. 777; Mowery v. Coffman, supra.

But to have that effect the power of disposition must be without limitation or restriction as to time, mode or purpose of its exercise. Taylor v. Taylor, 176 Va. 413, 424, 11 S.E. (2d) 587, 591; Honaker Sons v. Duff, 101 Va. 675, 683, 44 S.E. 900; Smith v. Smith, supra, 122 Va. at p. 355, 94 S.E. at p. 780.

The doctrine of May v. Joynes, supra, was abolished by chapter 146, Acts 1908, page 187 (Southworth v. Sullivan, 162 Va. 325, 173 S.E. 524), which act was in turn modified by section 5147 of the 1919 Code, now section 55-7 of the 1950 Code, but the statute applies only to estates expressly granted for life and does not control in this case. Mowery v. Coffman, supra, 185 Va. at p. 495, 39 S.E. (2d) at p. 287, and cases there cited.

There are many decisions involving the kind of estate given to the first taker by the particular wills there construed. As stated in Honaker Sons v. Duff, supra, and repeated in Davis v. Kendall, 130 Va. 175, 196, 107 S.E. 751, 757, 'The cases are difficult to reconcile, save on the principle of giving free play to the testator's intention. That intention is the master key.'

In the case of Shermer v. Shermer, 1, Wash. (1 Va.) 266, 272, 1 Am.Dec. 460, decided more than a century and a half ago, Judge Edmund Pendleton, the first President of this court, said: 'I have generally observed that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention; and I am free to own, that where a testator's intention is apparent to me, cases must be strong, uniform, and apply pointedly, before they will prevail to frustrate that intention.'

Judge Burks expressed the same thought in Conrad v. Conrad, 123 Va. 711, 715, 97 S.E. 336, in saying that little aid comes from prior decisions. "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 different constructions, according to the context and the peculiar circumstances of each case."

In Davis v. Kendall, supra, 130 Va. at p. 181, 107 S.E. at p. 752, the will gave to the testator's wife all of his estate 'for her sole use and benefit so long as she lives, * * * and at her death to be disposed of as she may think proper, and deem best.' It was held that the wife took a life estate with power of appointment and not a fee simple because 'She lacks that full power of disposition by 'both deed and will, without limitation, or restriction, as to time, mode, or purpose, of its exercise,' which, in the contemplation of the cases following May v. Joynes, serves to enlarge a life estate expressly given into a fee by implication.' 130 Va. at p. 211, 107 S.E. at p. 763.

In that case Judge Saunders reviewed most of the authorities from May v. Joynes, supra, to the date of the opinion, including these relied on by and most nearly in point for the appellant: Hall v. Palmer, 87 Va. 354, 12 S.E. 618, 24 Am.St.Rep. 653, 11 L.R.A. 610; Farish v. Wayman, 91 Va. 430, 21 S.E. 810; Brown v. Strother, 102 Va. 145, 47 S.E. 236; Hawley v. Watkins, 109 Va. 122, 63 S.E. 560; Rolley v. Rolley, 109 Va. 449, 63 S.E. 988, 21 L.R.A. (N.S.) 64; and Conrad v. Conrad, supra, 123 Va. 711, 97 S.E. 336. The opinion states that the court fully concurs in the pronouncement in the Conrad Case that when a person is given an absolute dominion over property, 'whether the estate be legal or equitable,' this constitutes a gift of the property itself, and a gift over of "what remains at her death,'' or "such part as she may not appropriate' or the like is void;' and that 'Hence, in each case it is important to determine whether absolute dominion has been afforded. The intent of the testator on the whole, if it can be ascertained, will aid in this determination. Unlimited power to use the estate for support and...