Effinger v. Hall

• Decision Date: 19 November 1885
• Citation: 81 Va. 94
• Parties: EFFINGER v. HALL.
• Court: Virginia Supreme Court

81 Va. 94

EFFINGER v. HALL.

Supreme Court of Appeals of Virginia.

November 19, 1885

Argued at Staunton and decided at Richmond.

Appeal from decree of circuit court of Rockingham county, rendered October 22d, 1884, in the chancery cause, styled R. M Hall et als. v. M. H. Effinger's Ex'or and als.

The will of James Hall, of Harrisonburg, Virginia, admitted to probate in March, 1835, bequeathed his lots in that town, and his lands in that vicinity, to his wife during her life, and directed that at her death, his executor sell them and divide the proceeds into seven equal parts, " one-seventh of which," says the testator, " I give to the children of my brother, Thomas Hall, who may be living at the death of my wife; one-seventh to the children of my brother, Robert Hall, who may be living at the last mentioned time one-seventh to each of my brothers and sisters hereinafter mentioned--that is, Robert, John, Edward, Mary Kyle, Jane Bogess and Diana." The widow married Dr. Doudall, and in 1884, they conveyed the life estate to John Hall, Mary Kyle and Diana Hall, who, in 1846, conveyed same and their interests in remainder, to Henry Brown, to whom Jane Bogess and Edward Hall had conveyed their shares. Brown, in 1853 conveyed all their interests to Philip Liggett, to whom four of the eight children of Robert Hall also conveyed their interests. Thus Liggett acquired the life estate and eleven-sixteenths of the remainder, leaving the rest in Robert Hall, Edward W. Hall (the only child of Thomas Hall deceased), and the other four children of Robert M. Hall.

In 1850, Liggett conveyed some fifteen acres, situated in the town, and afterwards divided into building lots, to M. Harvey Effinger, who afterwards, by deeds of different dates, conveyed the same to divers persons, who made thereon permanent and valuable improvements. In 1854, Liggett conveyed " a five acre mill lot" to Charles Weaver and others, and a tract of ninety-nine acres near Harrisonburg, to Peachy Wine.

In the deeds of conveyances to the several vendees and sub-vendees, there were references to the will of James Hall, deceased, and thus and otherwise, they had notice of the infirmity of their titles. The life estate terminated in 1879, by the death of Mrs. Doudall, and Robert Hall, Edward W., son of Thomas Hall, and the four children of Robert Hall instituted this suit against Effinger and the various persons in possession of said land, under deeds from Liggett, asking that the will be construed, that the land be sold, and that the proceeds be distributed.

Upon the hearing the circuit court construed the will to mean to divide the proceeds of the sale of the lands into eight equal parts; decided that the complainants were entitled to five-sixteenths of the lands without compensating the defendants for the improvements the latter had put upon them, and directed the sale of the lands. From this decree the defendants obtained an appeal and a writ of supersedeas.

Opinion states the points raised and other facts.

G. W. Berlin, W. B. Compton and J. S. Harnsberger, for the appellants.

Robert Johnston and E. S. Conrad, for the appellees.

OPINION

LEWIS, P.

The first question to be considered is, whether " Exhibit A," filed with the bill, is a true copy, as it purports to be, of the last will and testament of James Hall, deceased.

The appellants deny that it is.

It appears from the record that in February, 1835, the testator died, and that at the following March term of the county court of Rockingham county, his will was duly admitted to probate; that some years after the testator's death, and prior to the late war, an injunction bill was filed in the circuit court of Rockingham county by the administrator with the will annexed, against Peter B. Doudall and wife, the latter having been the widow of the testator, alleging the commission of waste by the defendants on the real estate devised, and that a duly authenticated copy of the will was filed as an exhibit with the bill in that suit; that during the war many of the public records of Rockingham county were destroyed, and among them the will of James Hall, and the will-book in which the same was recorded; and that after the termination of the war, leave was given to withdraw the copy of the will, filed in the injunction suit, for recordation in the clerk's office of the county court, and that Exhibit A, filed with the bill in the present suit, is a copy of the copy thus withdrawn and recorded.

It is very clear, therefore, in the light of these facts, and in the absence of any evidence whatever to support the contrary view, that the copy exhibited with the bill must be taken as a true copy of the testator's will. Code 1873, chapter 172, sections five and twelve.

The next question relates to the construction of that clause of the will which directs a sale of the land, after the death of the wife, and a division of the proceeds. Its language is as follows: " That said house and lots of land above-mentioned, be sold by my executor, and the proceeds thereof be divided into seven equal parts; one-seventh of which I give to the children of my brother, Thomas Hall, who may be living at the death of my wife; one-seventh to the children of my brother, Robert Hall, who may be living at the last mentioned time; one-seventh to each of my brothers and sisters hereinafter mentioned-- that is, Robert, John, Edward, Mary Kyle, Jane Bogess and Diana."

It is apparent that a mistake here occurs, which calls for correction in a court of equity, since it is not possible, consistently with the testator's intention, to divide the estate into seven parts only, when the direction is that it be equally divided among eight specified persons or classes. The power and duty of the court to make the proper correction is not denied. " In regard to mistakes in wills," says Judge Story, " there is no doubt that courts of equity have jurisdiction to correct them, when they are apparent upon the face of the will, or may be made out by a due construction of its terms; for in cases of wills the intention will prevail over the words. * * * So, if there is a mistake in the name, or description, or number of the legatees, intended to take, or in the property intended to be bequeathed, equity will correct it." 1 Story's Eq., sections 179, 180.

The same doctrine is laid down by Jarman, who refers to many cases to the same effect--among them to the case of Tomkins v. Tomkins, where a testator, after bequeathing £ 20 to his sister, gave to her three children £ > 50 each, and the legatee had four. Lord Hardwicke held that they were all entitled. " Again," says the same author, " in Stebbing v. Walkey, 2 Bro. C. C. 85, where a testator bequeathed certain stock unto ‘ the two daughters of T. in equal shares,’ during their lives, and if either of them should die, then to pay the whole to the survivor during her life, and in case both should depart this life, then the whole to fall into the residue. At the date of the will T. had three daughters, all of whom were held to be entitled. So, in Ganey v. Hibbert, 19 Ves. 125, Sir W. Grant, on the authority of the last case, held four children to be entitled under a bequest ‘ to the three children of D.’ of £ 600 each. In this case a question arose whether, in the adoption of this construction, the aggregate amount of the three legacies was to be divided among the four, or each of the four was to take a legacy of the same amount as was given to each of the three. The counsel for the legatees contended only for the former, but the M. R., on the authority of Tomkins v. Tomkins, supra, adopted the latter construction." 2 Jarman on Wills, 189. See also 2 Lom. Ex'ors, 29; 1 Redfield on Wills, 501.

The present case is even stronger for the appellees, since here all the legatees are mentioned by name, except " the children" of Thomas and Robert. The appellants, however, insist that the name of Robert should be rejected, as mistakenly, if not fraudulently, inserted in the will; but there is nothing in the case to support this position. The argument is, that " Robert was intended to get nothing," because " his children get one-seventh." " And where," it is asked, " is there any evidence to show a purpose on the testator's part to give the lion's share to Robert?" If by a " lion's share" is meant an eighth of the residuum of the estate, the answer is in the will itself, where Robert's name is deliberately written by the testator, whose object presumably was to provide for the designated legatees, rather than to divide his estate into any particular number of parts. With equal, if not greater, plausibility, the argument might be applied to any one of the testator's sisters--Mary Kyle, Jane Bogess or Diana, or his brothers, John or Edward, for to each of them specific legacies are given, but not to Robert.

Nor has there been any acquiescence on the part of the latter in the construction of the will as now contended for by the appellants, which ought to estop him from asserting his claim as one of the legatees. The appellants' contention on this point is, that no such claim has ever been asserted by him until the institution of the present suit, and that " long acquiescence in a certain construction of a will, even if it be an erroneous construction, will be treated by the courts as the proper construction." But the obvious answer to this proposition is, that the will, having been duly recorded, gave notice of its contents, and that until the death of the life-tenant he had no claim which he was called upon to assert. The life-tenant, it seems, died in December, 1879, and the present suit was brought in 1881.

In Ball v. Jackson's Ex'or, 8 Gratt. 281, it was held that the statute of limitations did not...