Farish v. Wayman 1

• Decision Date: 25 April 1895
• Citation: 21 S.E. 810,91 Va. 430
• Court: Virginia Supreme Court
• Parties: FARISH et al. v. WAYMAN et al.1

21 S.E. 810

91 Va. 430

FARISH et al.

v.WAYMAN et al.¹

Supreme Court of Appeals of Virginia.

April 25, 1895.

Construction of Devise — Life Estate with Power of Sale—Fee Simple—Laches.

1. An estate for life, coupled with the absolute power of alienation, either express or implied, comprehends everything, and the devisee takes the fee.

2. A devise in trust to A. for life, followed by the words, "should the said A. die and leave no child, in that case the property devised as above, or what may remain of the same, I give to N., " vests in A. the absolute estate.

Appeal from circuit court, Fauquier county; James Keith, Judge.

Bill by one Farish, trustee, and others, against one Wayman, trustee, and others. From a decree in favor of defendant Way-man, plaintiffs appeal. Affirmed.

Rixey & Barbour, for appellants.

Eppa Hunton, Jr., for appellee.

HARRISON, J. The language of the fourth clause of the will of Joseph B. Redd is as follows:

"I give to my brother William Redd and my brother-in-law James A. Colbert one share of my real estate, to be held by them in trust and for the benefit of my niece Agnes Priscilla Redd, daughter of my brother James A. Redd, during the natural life of said Agnes Priscilla Redd; and, should the said Agnes Priscilla Redd die and leave no child, in that case the property devised above, or what may remain of the same, I give to my sister Nancy J. Massie."

The question to be determined is, did Agnes Priscilla Redd take a fee simple in the trust fund created by the clause quoted, or did she take only a life estate therein?

It cannot be longer doubted that the law is settled by courts and text writers everywhere, of the highest authority, that an estate for life, coupled with the absolute power of alienation, either express or implied, comprehends everything, and the devisee takes the fee. So firmly fixed is this principle of law that it may now be regarded as a canon of property.

In this view of the law, the real question to be determined, in construing the language under consideration, is this: whether or not the devise in trust for the benefit of Agnes Priscilla Redd is coupled with the unrestrained power in her to dispose of the property. In this connection, the language to be interpreted is as follows: "Should the said Agnes Priscilla Redd die and leave no child, in that case the property devised as above, or what may remain of the same, I give, " etc.

This language cannot be reasonably construed otherwise than that the devisee under it has not only the power to use this property, but to consume it, if she will. The gift over at her death of what "may remain of the same" shows that the testator intended, notwithstanding the direction that the property was to be held by the trustees named, during her natural life, that she should have the power to dispose of, consume, or spend it in her lifetime, which she could only do by being invested with the fee simple. What might remain of the same was all that was to go over. The language forcibly implies an unlimited and unqualified power of disposition. The devisee could acquire no greater estate, nor exercise greater power over it. To put any restriction upon her absolute dominion over it would be to say that the whole, or some part of it, should go over to the second taker, when the will expressly says that only "what may remain of the same" shall pass to the second taker.

In 2 Minor, Inst. 969, 970, it is said: "Although a devise be expressly for life of the devisee, yet if the devisee be, by other clauses of the will, permitted to use and dispose of the subject absolutely at his pleasure, or if so much as may remain undisposed of by him at his death (which implies a power of unqualified disposition) be given over at his decease, the devisee is construed, by a necessary implication of the testator's intention, to take a fee simple."

It was said by Judge Green in Madden v. Madden, 2 Leigh, 377, in an able review of the cases on the subject, that it was settled law that "whenever there is an interest given, coupled with an absolute power of disposition in respect to all property of every description, real and personal, the...