Dabney v. Cottrell's Adm'x
| Citation | 50 Va. 572 |
| Court | Virginia Supreme Court |
| Decision Date | 07 February 1853 |
| Parties | DABNEY & als. v. COTTRELL'S adm'x & als. |
C was twice married. By his first wife he had three daughters, all of whom had been married previous to the date of his will two were then living, and the third had died leaving two children. By his second wife, who survived him, he had seven children, all of them infants at his death. By his will he gave to each of his two married daughters a slave, and to each of the children of the third a legacy of $100. He then gave to his wife and his children by her, his plantation on which he then resided, all his slaves not specified above specific articles of personal property, all his plantation utensils, household and kitchen furniture, " and all the money; " and the balance of his estate to be sold and his debts paid, and the remainder if any, to be equally divided among all his children. C had resided on the same farm for years. It was divided into several fields and was cultivated by him. Some years before his death coal was found on this farm and was for a time raised by himself. He then leased the field in which the coal was, to third persons, the field being surrounded by a ditch and fence and supposed to contain about forty acres, reserving to himself the right to cultivate all the leased premises except so much as might be necessary for pit operations, clover lot and mule pounds, not to exceed ten acres. This lease was determined the year before C's death, and in the spring after its termination he cultivated the field. The whole tract without the coal was estimated at $2500; the coal in the land was estimated at $5000. At the time of C's death he had deposited in a savings bank about $1500, and there was in the house in cash $115. He owed very little. HELD:
1st. The whole tract including the coal land passed to the widow and C's children by her under the will.
2d. Under the words " and all the money" the money in the savings bank passed.
This was a suit instituted in the Superior court of chancery for the Richmond circuit by Richard Dabney and Susan his wife and others, children of William Cottrell deceased, against the administratrix of Cottrell and his children by his second marriage. The case is fully stated in the opinion of Judge Allen. The decree in the court below being against the plaintiffs, they applied to this court for an appeal which was allowed.
Lyons, for the appellants.
R. T. Daniel and Gilmer, for the appellees.
William Cottrell, late of Henrico county, departed this life early in the year 1838, leaving a will dated the 7th January 1836, which was admitted to probat on the 9th July 1838. He had been twice married. By his first wife he had three daughters, all of whom had been married previous to the date of his will; two were then living, and the third had died, leaving two children. By his second wife, who survived him, he left seven children, all of whom were infants, and so continued down to the period when the decree in this case was pronounced. By the three first clauses in his will, the testator bequeathed a slave to each of the two married daughters, children of the first marriage; and a legacy of 100 dollars to each of the children of the third daughter. The fourth clause was in the following words: " I give to my present wife Susan and my children by her, my plantation on which I now reside, together with all my slaves not specified above," (several articles of personal property particularly described,) " all my plantation utensils, my household and kitchen furniture, and all the money; and the balance of my estate I wish sold, and all my just debts paid; and the remainder, if any, to be equally divided among all my children." The present controversy grows out of a difference as to the extent of the devise and bequest contained in this fourth clause of the will; the subsequent provisions of the will having no bearing on the question.
The bill filed on behalf of the first set of children and the descendants of the one who had died, alleges that the testator at the date of his will and at his death, was seized of very valuable coal mines and a large coal field unexplored, covering in the whole ten acres of land, which were not a part of the plantation on which he resided, but had been for some time worked and leased as separate property, and was so leased at the death of the testator. These coal mines and coal field it is alleged, constituted his coal property, separated by bounds and fences from the plantation, and used and leased as separate property, which it was not his intention to devise to his widow and children of the second marriage, to the exclusion of those of the the first, who were equally dear to him. And it is contended that this coal property either passed under the residuary clause aforesaid, and should be sold and divided among all his children; or as to it he died intestate.
It is further alleged that the testator owned at the time of his death a considerable personal estate not described in the will, and liable to sale and distribution under the fourth clause of his will; and had large sums of money due to him from private individuals, and from a company entitled the " Savings Institution" in the city of Richmond; which money thus due, it is contended was not embraced by the words " and all the money" given by the 4th clause to the widow and children; but passed by the general residuary clause or by operation of law to all the children of the testator and their descendants.
The infants answered generally by guardian, submitting their rights under the will to the protection of the court. The widow and administratrix with the will annexed denies, in her answer, that the testator ever set apart any particular portion of his land as a coal field; he believed, as was the general belief, that all the land contained coal, though he had never worked but a small portion of it for coal, and that portion he never set apart as distinct property from the balance of his estate: That the land on which he died is all embraced in one plat, having on it seven different fields, separated by ditches and fences: That the field in which the coal shaft is sunk contains twenty-eight acres; that the same fencing and enclosure was round it long before a coal mine was opened, and has undergone no change; and that the claim to ten acres grows out of the circumstance that when he leased the pits the testator gave to the lessee the right to enclose a part of the field containing twenty-eight acres, for a garden, mule pound and clover lots; reserving to himself the right to use the surface of the residue of the field, and which he cultivated as part of his plantation. The answer denies that the coal pit was leased to any one at the death of the testator; and avers that the children of the first marriage were all grown and settled in life, and that considerable advances had been made to them; and that all the seven children by the second marriage were infants, five of them under ten years of age.
The only evidence concerning this branch of the case is found in the deposition and statement of Jesse Snead; from which it appears that he and another took a lease from the testator for five years, commencing on the first of January 1832: That the land included in the lease was described by metes and bounds, being separated from the other lands of the testator by a ditch and fence enclosure; that the quantity of land rented was, he thought, about forty acres, the lessor reserving to himself the right to cultivate all the leased premises except so much as might be necessary for pit operations, clover lot and mule pounds, not to exceed ten acres: That the field in which the coal mines were had been enclosed for cultivation many years, and before the coal was discovered: That after the discovery of the coal, it had been wrought by the testator himself until leased to the witness That he gave notice, in the fall of 1835, of an intention to surrender the lease, and abandoned the possession in Feb'y 1836: That no part of the field was cultivated during his lease, but thinks the testator sowed oats on the leased land in the spring of 1836. He furthermore estimates the value of the...
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