Fifield v. Van Wyck's Ex'r 1

• Decision Date: 15 April 1897
• Citation: 27 S.E. 446,94 Va. 557
• Court: Virginia Supreme Court
• Parties: FIFIELD et al. v. VAN WYCK'S EX'R et al.1

27 S.E. 446

94 Va. 557

FIFIELD et al.

v.VAN WYCK'S EX'R et al.¹

Supreme Court of Appeals of Virginia.

April 15, 1897.

Wills—Equitable Conversion—Beneficiaries— Designation—Election — Conditions in Terrorem—Gifts Over—Trusts—Uncertainty.

1. Where a devise was void, the real estate did not become personal estate, as against the heirs, because the executors were authorized to convert it into money to carry out the provisions of the will.

2. Though legatees, who were also heirs, accepted payment of their legacies, they were not estopped from attacking the validity of the residuary clause in favor of a third person, on the ground that they had elected to take under the will, and were therefore bound to give effect to it, where the will did not attempt to dispose of. any of their property rights.

3. A condition that any legatee who attempts to set aside any part of the will shall forfeit his legacy is merely a condition in terrorem, and inoperative, when annexed to a bequest of personalty without gift over.

4. Where a will provided that any legatee who should attempt to set aside any part of the will should forfeit his legacy, a direction that in such case the legacy should revert to the estate did not provide for a gift over, so as to make the condition operative, though there was a residuary clause.

5. A will gave the residue of the estate to the Rev. S. and the Rev. J., "or the survivor of them, or to whomsoever they may select in case of their death, in trust for the benefit of the New Jerusalem Church (Swedenborgian), as they shall deem best, " directing that no bonds should be required. There was a voluntary association known as the "New Jerusalem Church, " and also a corporation styled the "General Convention of the New Jerusalem in the United States of America, " which was the agency of the church for holding property for educational and religious purposes, and of whose executive committee the trustees were members. It did not appear that testatrix knew of the corporation, but she was acquainted with the trustees, and had made donations to them for benefit of the church, of which she was a member. Held, that the bequest was for benefit of the association, and not to or for benefit of the corporation.

6. A bequest to trustees "for the benefit of the New Jerusalem Church (Swedenborgian), as they shall deem best, " was void for uncertainty.

Appeal from law and chancery court of city of Norfolk.

Bill by W. W. Old, executor of Lenore M. Van Wyck, deceased, against Henry D. Van Wyck and others, praying for construction of certain clauses of the will, and for the determination of the validity of the residuary bequest. From a decree holding the residuary bequest valid, and declaring that the "General Convention of the New Jerusalem Church in the United States of America" was the beneficiary, defendants Eva E. Fifield and others, heirs of testatrix and legatees under the will, appeal. Reversed.

Staples & Munford and L. L. Lewis, for appellants.

Tunstall & Thom, for appellees.

BUCHANAN, J. This controversy arises under the residuary clause of the last will and testament of Lenore M. Van Wyck, late of the city of Norfolk. After making a number of specific bequests, the testatrix de-clares that "all the rest and residue of my said estate, real and personal, wherever situate and of whatever kind, I give, devise, and bequeath to the Reverend S. S. Seward, of New York City, and to the Rev. J. C. Ager, of Brooklyin, state of New York, or the survivor of them, or to whomsoever they may select in case of their death, in trust for the benefit of the New Jerusalem Church (Swedenborgian), as they shall deem best."

The executor filed his bill to have certain clauses in the will construed, and the validity of the residuary clause determined by the court To that bill the trustees named in the residuary clause filed their answer, in which they stated that the "New Jerusalem Church" was the general name by which, among themselves, that body of Christians who accept the teachings of Emanuel Swedenborg (popularly called Swedenborgians) were known during the life and at the death of the testatrix; that the legal and representative general agency of the New Jerusalem Church for the purpose of receiving and taking, by gift, devise, or otherwise, property, real and personal, for educational or religious purposes, was the "General Convention of the New Jerusalem in the United States of America, " a corporation chartered under the laws of the state of Illinois; that this corporation was, during the lifetime of the testatrix, the only legal and representative agency of the general body of Christian in the United States known as the "New Jerusalem Church"; that the testatrix was, during her lifetime, a firm and consistent member of that church, and manifested great interest in and contributed largely to the spreading of its doctrines, and had, as respondents were informed, expressed her intention of leaving her residuary estate to the said church for religious and educational purposes; that they were during the lifetime of the testatrix, and are now, members of the executive committee or general council of that corporation; that by its charter (a copy of which is filed with the answer as an exhibit) it is provided that the business affairs of the corporation shall be managed and controlled by such committee or council, subject to the direction of the convention when in session; and that they are advised and believe that the residuary bequest to them in trust "for the benefit of the New Jerusalem Church (Swedenborgian)" is and was intended by the testatrix to be a bequest to them in trust for the benefit of the "General Convention of the New Jerusalem in the United States of America."

That corporation, by petition, became a party to the suit, and in its answer claimed that the bequest was intended for its benefit, and as a ground for its claim made substantially the same statements as those made by the trustees in their answer. Parol evidence was taken to prove the amounts contained in the answers, and upon a hearing of the cause the trial court held the bequest to be valid, and declared that the "General Convention of the New Jerusalem Church in the United States of America" was the intended beneficiary, and so decreed.

From that decree this appeal was taken by some of the heirs of the testatrix, who were also legatees under the will.

Their right to appeal is denied on several grounds, which will now be considered.

The first is that the appellants would have no interest in the property disposed of by the residuary clause of the will, even if it were held to be invalid, but that it would pass as personal estate to the husband of the testatrix.

By the fifteenth clause of the will the executors were authorized to sell the real estate of the testatrix, or any part thereof, wherever situated, and to execute deeds therefor, and do all things, by converting the estate into money or otherwise, which might be necessary to carry into effect the provisions of the will.

It is apparent that the purpose for which the executors were authorized to sell the real estate, or any part thereof, was to carry into effect the provisions of the will, and that the testatrix directed its conversion Into money in order that it might be applied conveniently in the manner directed by the will, and for no other purpose. "For, " as is said by Mr. Jarman, "every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of the purposes, to prevail as between the persons on whom the law casts the real and personal estate, namely, the heir and the distributee." 1 Jarm. Wills (5th Am. Ed.; Bigelow) top page 624. And it seems to be established by the weight of authority that, where a testator directs his real estate to be sold and the mixed fund arising from the proceeds of the realty and personalty to be applied to certain specified purposes, if any part of the disposition fails, either because void ab initio or by lapse, then, in proportion to the extent or amount which the real estate would have contributed to that disposition, the proceeds thereof retain the quality of real estate for the benefit of the heir, although the real estate has been in fact sold, and the money, when paid over to the heir, has In his hands the character of money, and no longer the character of real estate. Bectiv v. Hodgson, 10 H. L. Cas. 656, 666, 667 (Lord Chancellor Westbury); Shallcross v. Wright, 12 Beav. 505, 508; 1 Williams, Ex'rs (7th Am. Ed.) 787; Jarm. Wills (5th Am. Ed.; Bigelow) top page 632; Gallagher v. Rowan's Adm'r, 86 Va. 823, 825, 11 S. E. 121. This objection cannot be sustained.

Although the appellants accepted payment of the bequests made to them in the will with full knowledge of all the facts, they are not estopped, as the appellees insist, from attacking the validity of the residuary clause, on the ground that, having elected to take under the will, they are bound to give full effect to all of its provisions, and to renounce everyright inconsistent with it. The provisions of the will were not such as to require an election on the part of the appellants.

The testatrix did not attempt to dispose of any property right of the appellants. There was nothing, therefore, for them to elect to give up in lieu of what she bequeathed them.

1 Pom. Eq. Jur. § 472; 2 Williams, Ex'rs (7th Am. Ed.) top page 767; 1 Jarm. Wills. (5th Am. Ed.; Bigelow) 443, 451; 2 Redf. Wills (3d Ed.) side page 352.

The authorities cited to show that this was a case for election were cases where the legatee had taken his legacy with a condition annexed, and, as Mr. Pomeroy says, were not properly cases of election. 1 Pom. Eq. Jur. § 483. In such cases, if the condition annexed is one that is operative, and the legatee accepts the legacy, he is, of course, estopped by his own act...