Dillard v. Dillard

• Decision Date: 21 September 1899
• Citation: 97 Va. 434,34 S.E. 60
• Parties: DILLARD. v. DILLARD et al.
• Court: Virginia Supreme Court

34 S.E. 60

97 Va. 434

DILLARD.

v.DILLARD et al.

Supreme Court of Appeals of Virginia.

Sept. 21, 1899.

MULTIFARIOUSNESS — RES JUDICATA—WILL— CONSTRUCTION—DISCRETIONARY POWER.

1. A bill is not objectionable as multifarious where the construction of a will is the primary matter in controversy, around which all the matters in issue revolve, and on which all the relief sought depends, and all the complainants are immediately interested in the various clauses to be construed and in all the questions involved, and defendant is concerned in them all, and will be affected by their decision.

2. A decree dismissing a suit by one for construction of a will and for an interest claimed thereunder, on the ground that he took nothing under the will, is not res judicata, against persons joined with the executor as defendants in such suit, where they bring a suit for construction of the will, not claiming in the same right as the plaintiff in the former motion, but asserting rights separate, distinct, and antagonistic to those asserted by him, and they not being in privity with him.

3. The term "money, " in a gift to testatrix's husband for life, and thereafter over to another, of "all the money that may be in the hands of my said husband as trustee for me at my decease, " includes a debt to him as trustee for money of the trust fund which he has loaned out.

4. The discretionary power jointly confided to three trustees by name, to give all or any part of the fund to a certain person, though coupled with an interest, cannot, after death of one of them, be executed by the survivors; Code, § 3419, as amended by Acts 1889-90, p. 41, and Acts 1897-98, p. 687, not referring to a trust involving such power.

5. Where discretionary power is jointly given to three trustees, by name, to give all or any part of the fund to D., and they are also directed, whenever and on such terms as they think proper, to sell the property belonging to the fund and remaining unappropriated, and divide the proceeds equally between three certain persons, one of the trustees having died without any of the property having been given by them to D., their only other discretion (determination of time and terms of sale) then ceases, and the sale and division among the three persons must be made in a reasonable time.

Appeal from circuit court, Nelson county.

Suit by one Dillard and others against one Dillard. Decree for complainants. Defendant appeals. Reversed.

Caskie & Coleman, for appellant.

J. Thompson Brown and A. B. Coleman, for appellees.

RIELY, J. There was a demurrer to the bill for multifariousness. It was overruled by the court, and this is assigned as error.

It Is a general rule of chancery pleading that a party will not be permitted to embrace in the same bill distinct and separate causes of action, but, to come within the rule, the causes must be wholly distinct, and each cause, as stated, must be sufficient to sustain a bill. The courts, however, have found it impracticable to lay down any fixed rule applicable to all cases, but, where the matters in controversy are not absolutely independent of each other, they consider what is just and convenient in the particular case; and if it will be more convenient to litigate and dispose of the matter in controversy in one suit, and this can be done without injustice to any party, the objection of multifariousness will not prevail. Story, Eq. Pl. § 530; Segar v. Parrish, 20 Grat. 672; Hill's Adm'r v. Hill, 79 Va. 592; School Board of Albemarle Co. v. Farish's Adm'r, 92 Va. 156, 23 S. E. 221; Spooner's Adm'r v. Hilbish's Ex'r, 92 Va. 333, 23 S. E. 751; and Staude v. Keck, 92 Va. 544, 24 S. E. 227.

In the case at bar the true construction of the will of Narcissa E. Dillard, deceased, is the primary matter in controversy. It is the pivot, as it were, around which all the matters in issue revolve, and upon which all the relief sought depends. All the complainants are immediately interested in the various clauses of the will to be construed, and in each and all of the questions involved; and the appellant is likewise concerned in them all, and will be affected by their decision. It is therefore manifestly both proper and con venient to litigate in the same suit the several matters in controversy. It cannot be perceived how the appellant could be prejudiced by this mode of proceeding.

The defense of res adjudicata is likewise untenable. It is a just maxim of the law that no person shall be twice vexed for one and the same cause of action, but the justice of the maxim requires that the judgment of decree in a former suit which is relied on as a bar to the subsequent suit must have been rendered upon the merits of the controversy. The adjudication, when so made, it may be added, constitutes a bar, not only to the points actually decided, but to every point which properly belonged to the particular matter in litigation, and which the parties might have brought forward at the time; for a party is required to present the whole of his case, and not omit a part which by the exercise of reasonable diligence he might have brought forward at the time. All those matters which were offered and received, or which might have been offered, to sustain the particular claim or demand litigated in the prior suit, and all those matters of defense which were presented or might have been introduced under the issue to defeat the claim or demand, are concluded by the judgment or decree in the former suit. It must, however, have been rendered in a proceeding between the same parties or their privies, and the matter in controversy must have been the same in the former suit as in the latter, and been determined on the merits. Chrisman's Adm'x v. Harman, 29 Grat. 494; Diamond State Iron Co. v. Alex. K. Rarig Co., 93 Va. 595, 25 S. E. 894; and Miller v. Wills, 95 Va. 354, 28 S. E. 337.

The decree relied upon as a bar to the present suit was not rendered upon the merits of the matters now in controversy. The former suit was brought by John T. Dillard mainly for the construction of the will of his mother, the settlement of the accounts of her executor, and the recovery of the interest he claimed under her will. He was sole plaintiff, and made, among other persons, the complainants and the executor defendants. The court decided that the plaintiff took nothing under the will of the decedent, and upon that ground alone dismissed his bill. Dillard v. Dillard's Ex'rs, 21 S. E. 669. This was clearly not a decision on the merits of the matters now in issue. The complainants in the present suit do not claim in the same right as the plaintiff in the former suit. All claim under the same will, but the rights asserted by them are separate, distinct, and antagonistic to those asserted by him. In no sense were they in privity with him. A decision that he was without any right to maintain the suit did not determine their right to sue, and was not an adjudication in any manner of the matters now put in issue. And no case was made by the pleadings or proof that warranted a decree between them and the appellant as co-defendants.

This brings us to the merits of this controversy. The testatrix, in the latter part of the first clause of her will, devises and bequeaths as follows: "And from and immediately after the death of my said husband I hereby give and devise the tract of land * * * and all the money and other personal property in this clause given to my said trustees for the sole use and benefit of my said husband, that may be on hand and unexpended and unappropriated, to my son William S. Dillard, and his heirs and assigns, forever."

The particular matter to be decided is what William S. Dillard took under the phrase "all the money" in the above bequest. In what sense did the testatrix use the word "money, " and what is embraced by it? Did she mean "money, " in its natural and ordinary sense, or did she intend to include, also, debts and securities?

It seems to be well settled that a gift in a will of "money, " with nothing in the context to explain or define the sense in which it is used, includes cash, bank notes, and money in bank, but does not include choses in action or securities. The word, however, is often popularly used as synonymous with "personal estate, " and has been construed to include, besides money, literally so called, not only debts and securities, but the whole personal estate, and even the proceeds of realty. 1 Jarm. Wills, 724-732; Dabney v. Cottrell's Adm'x, 9 Grat. 572; and In re Miller, 17 Am. Rep. 422. What is meant by the word "money" must in each case depend upon the will and its context.

In order to ascertain what money the testatrix referred to, and what she meant by its use, it is necessary to look to the prior part of the clause making the gift to trustees for the...