Davis v. Davis

• Decision Date: 12 June 1924
• Parties: DAVIS. v. DAVIS et al.
• Court: Virginia Supreme Court

123 S.E. 538

DAVIS.

v.DAVIS et al.

Supreme Court of Appeals of Virginia.

June 12, 1924.

Appeal from Circuit Court, Pittsylvania County.

Bill by Celestia R. Davis and others against S. O. Davis. Judgment for plaintiffs, and defendant appeals. Affirmed.

Geo. T. Rison, of Chatham, and Scott & Buchanan, of Richmond, for appellant.

Harris & Harvey, of Danville, for appellees.

CAMPBELL, J. For convenience the parties will be referred to as appellant and appellee.

S. B. Davis, a resident of Pittsylvania county, on the 15th day of April, 1916, made and published his last will and testament, and died some time between that date and June 22, 1916.

This will is as follows:

"I, S. B. Davis, of Pittsylvania county, Virginia, being of sound mind and disposing memory, do hereby make, declare and publish this writing to be my last will and testament, hereby revoking any and all wills heretofore made by me.

"1st. I direct my executor, hereinafter named, to pay all my just debts, if there be any due by me, at the time of my death.

"2nd. I give and bequeath unto my wife, Celestia Davis, the sum of three thousand dollars absolutely, which shall be in full of all her claims against my estate, as my wife. And I also give her my horse and buggy, cook stove, sideboard, dining room table, and table ware, one bed and bed clothing, and sewing machine and other small articles she may select, including one cow.

"3rd. I give, bequeath and devise to my daughter, Rose I. Smith, that part of my real estate on the west side of Southern Railway Company, including the residence and out houses and supposed to contain about one hundred acres, but the said Rose I. Smith shall pay to S. B. Davis, Jr., the sum of two hundred and fifty dollars, which said sum shall be and is hereby made a charge and lien on the land devised under this clause. I also give to my said daughter all my furniture in the parlor, including my piano, except rug, two tables and one rug, and my said daughter shall give to my son S. O. Davis, a right of way through her land to the pubic road.

"4th. I give, bequeath and devise to my son, S. O. Davis, that part of my home tract of land which lies on the east side of Southern Railway Co., track, and the said S. O. Davis shall pay to S. B. Davis, Jr., two hundred and fifty dollars, which shall constitute and be a lien and charge on this tract of land. And I also give to S. O. Davis my desk.

"5th. I give, bequeath and devise to my son, S. B. Davis, Jr., my tract of some 100 acres of land, on waters of Little Cherrystone creek, adjoining the lands of L. R. Blair and others and being the same tract of land, which I acquired from Dr. Richard White and my said son is to receive from the lands I devised to my daughter Rose I. Smith and S. O. Davis, five hundred dollars, or $250.00 from each of said tracts. I also give to my son S. B. Davis, Jr., my silver pitcher, and bureau in chamber.

"6th. All the balance and residue of my said estate to my three children above named equally.

"7th. I hereby nominate and appoint as executor of this my last will and testament, James L. Treadway of Chatham, Va., and request the court not to require of him any security as such executor.

"Given under my hand this 15th day of April, 1916, S. B. Davis.

"Subscribing witnesses:

"J. L. Carter.

"B. P. Crider."

By the second clause of the will Celestia R. Davis, wife of the testator, is bequeathed the sum of $3,000, absolutely, in full of all claim against the estate.

James L. Treadway, who was nominated and appointed executor, after qualifying, paid to the appellee the sum of $450 and also turned over to her personal property of the value of $49. As the personal property was insufficient to discharge the legacy, there was left a balance due of $2,501.

Mrs. Rose I. Smith, a daughter of testator and beneficiary under clause 3 of the will, and S. B. Davis, Jr.; a son of testator and beneficiary under clause 5 of the will, recognized the claim of appellee (their mother) as a charge upon the land devised them, and paid her the respective sums due by them.

Appellant, beneficiary, under the fourth clause of the will, declined to pay the remaining one-third alleged to be due to his mother.

Thereupon appellee filed her bill of complaint against appellant, praying the court to ascertain the amount due her by appellant, and to declare the amount so found due to be a charge and lien upon the land devised to appellant and to subject the said land to the payment of her debt.

The bill of complaint was answered by the appellant, and the following defense relied on:

"Respondent, further answering, denies that the legacy bequeathed to complainant as aforesaid is a lien or charge upon the land devised as aforesaid to him. He denies that the testator intended that it should be a lien or charge upon respondent's land. Respondent says that the said will of testator was drawn by James L. Treadway, a learned attorney at law, who would have made the legacy to complainant a lien and charge upon the land of respondent, if the testator had so designed or intended." (Italics added.)

On the 16th day of May, 1921, a reference to a master was decreed, and N. E. Clement was directed to take, state, and report among other things the following:

"What sum or sums has been paid to the plaintiff Celestia R. Davis, and the source from which such payments were derived, and the balance due on the legacy given her by the will of her late husband, S. B. Davis, deceased. What effects, if any, of the said S. B. Davis, deceased, remain unadministered in the hands of James L. Treadway, executor. * * * "

After an exhaustive investigation, as shown by the deposition of witnesses, exhibits filed, and calculations made, Commissioner Clement made his final report, which shows:

An account of the Assets that Came into the Hands of J. L. Treadway, Executor of S. B. Davis, Dec'd:

By cash to him from Chatham Savings Bank $766 64 Amount due by S. O. Davis to C. R. Davis, May 20, 22..................................... 953 74

Exceptions as to the items above set forth were filed to the report by counsel for appellant, which were overruled by the court; the report was confirmed, and a decree was entered in favor of appellee for the principal sum of $953.74, and decreed to be a lien on the lands of appellant devised to him by his father. It is this decree which is appealed from.

The assignments of error relied on by appellant are as follows:

(1) Because neither the pecuniary legacy of $3,000 in favor of the said Celestia R. Davis, nor any part thereof, was, either by the terms of the will of S. B. Davis, deceased, or by operation of law, made a charge upon the lands specifically devised to your petitioner, and he was in no wise liable therefor; the learned court below erred in so holding.

(2) Because, if it be held that the said legacy was a charge upon said lands, and your petitioner was on that account liable for the balance due thereon, yet the evidence showed the balance for which your petitioner would then be liable is much less than the sum ascertained by said decree and adjudged to be paid by your petitioner.

The main question for the determination of the court is whether the legacy of $3,000 bequeathed to the appellee constitutes a charge upon the land devised to appellant.

As far as our investigation leads us, the question here involved seems to be one of first impression in this jurisdiction.

It is conceded that the general rule is that a legacy is not a charge upon land specifically devised, unless the testator has made it so in express terms or by implication.

In Todd v. McFall, 96 Va. 754, 32 S. E. 472, Riely, J., speaking for the court, says:

"It is universally conceded that as a general rule the personal estate is not only the primary, but the only fund for the payment of legacies. It is equally a general rule that the real estate is not chargeable under the law with their payment, if the personal estate proves insufficient, unless the testator has charged the land with their payment. This he may do either in expres terms or by implication, but his intention to do so must be clear and manifest."

While we concede that the rule laid down is general, we do not concede that the authority cited holds that the rule is universal. To every general rule there is an exception. Is there an exception in the instant case? We are of the opinion there is.

When the testator (speaking through Treadway, "a learned attorney at law, " as contended in the answer of appellant) bequeathed to appellee the sum of $3,000, absolutely, in full of all her claims against the estate he must have known that in order to take under the will she must give up all dower rights in his real estate and also surrender all claims to his personal estate.

There is not a word in the record which would indicate the desire or intention...