Fisher v. Harrison

• Decision Date: 14 November 1935
• Citation: 182 S.E. 543
• Court: Virginia Supreme Court
• Parties: FISHER et al. v. HARRISON.

182 S.E. 543

FISHER et al.

v.HARRISON.

Supreme Court of Appeals of Virginia.

Nov. 14, 1935.

Appeal from Corporation Court of Winchester.

Suit by B. P. Harrison, trustee in bankruptcy of W. Lee Fisher, wherein John Hamilton Fisher and another were made parties defendant. Decree for complainant, defendants appeal, and complainant assigns cross-error.

Reversed and remanded.

Argued before CAMPBELL, C. J, and HUDGINS, GREGORY, BROWNING, CHINN, and EGGLESTON, JJ.

R. Gray Williams and Kuykendall & Ben-ham, all of Winchester, for appellants.

Harrison & Harrison, of Winchester, for appellee.

EGGLESTON, Justice.

This is a suit in chancery brought by B. P. Harrison, trustee in bankruptcy of W. Lee Fisher, to subject to the payment of Fisher's debts certain property which, it is claimed, he acquired under the will of J. T. Fisher, deceased. The claimants of the property, other than W. Lee Fisher, are made parties defendant to the bill.

The sixth clause of the will is as follows:

"Sixth: I give and devise to my nephew, W. Lee Fisher, my brick store building and lot known as the 'Eddy Property' situated on corner of North Market and Baker Streets, Winchester, Virginia; my coal yard property situated on Baker Street on East side of B. & O. R. R. the house and lot on Highland Avenue adjoining Wise-carver property now occupied by Dusing to have and hold the same for life then to pass to his children. This devise is subject, however, to this provision that he shall pay tomy wife Belle C. Fisher every year as long as she lives three hundred dollars ($300.00) which payment is hereby made a lien upon said property. This devise is also made subject to this provision that if there should be a separation between my said nephew and his wife in their lifetime that immediately upon such separation all interest of said W. Lee Fisher in said property shall cease and said property shall then be held in trust by my niece, Ida Fisher, who shall collect all rents pay all taxes, insurance and repairs, the annuity of three hundred dollars annually to my wife and shall expend the balance in the support and education of the children of said W. Lee Fisher while they are under the age of twenty-one years. I give to my said nephew, W. Lee Fisher, my patent on car coupling."

After the will was probated, W. Lee Fisher obtained a divorce a mensa et thoro from his wife on the ground of desertion. They have not lived together since the date of the divorce decree.

The lower court upheld the contention of the trustee in bankruptcy that the provision, whereby the testator undertook to divest W. Lee Fisher of his interest in the property in the event of the separation of W. Lee Fisher and his wife, was void and unenforceable for uncertainty. It accordingly decreed that W. Lee Fisher was entitled to a life estate in said property, and that this interest was subject to the payment of his debts.

John Hamilton Fisher and Douglas Lee Fisher, the children of W. Lee Fisher, have appealed from this decree contending that the divorce decree has effected a separation of W. Lee Fisher and his wife, within the meaning of the will, and that W. Lee Fisher has thereby been divested of the life interest in the property.

If the decree of divorce was a separation of the parties according to the testator's meaning and intent, then, clearly, W. Lee Fisher has no further interest in the property. The language of the will is " * * * upon such separation all interest of W. Lee Fisher in said property shall cease * *. " There is nothing uncertain, vague, or indefinite in this language.

It seems to us too plain for argument that the decree of divorce has worked a separation of the parties within the meaning of the will.

In Webster's New International Dictionary (2d Ed.), the word "separation" is given the following definition, among others "Law. (a) Divorce, (b) A cessation of cohabitation between husband and wife by mutual agreement * * *." According to the same authority to "divorce" means to "separate."

In Roget's Thesaurus of the English Language, "divorce a mensa et thoro" is defined as "legal separation, judicial separation; separation."

In Gloth v. Gloth, 154 Va. 511, 536, 153 S. E. 879, 887, 71 A. L. R. 700, this court speaks of a divorce a mensa et thoro as "a decree of legal separation." See, also, Gum v. Gum, 122 Va. 32, 39, 94 S. E. 177; Marshall v. Baynes, 88 Va. 1040, 1044, 14 S. E. 978.

Code, § 5112, provides, in part: "In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property." Again, in providing for the merger of a decree for a divorce from bed and board into a decree of di-vorce from the bond of matrimony, Code, § 5115, speaks of a divorce decree as "a decree for a separation."

It is argued that the testator surely never intended to divest W. Lee Fisher of his life interest in the property by a separation brought about by the fault of his wife. But the testator does not specify that the separation, to be effective, must be due to the fault of either the husband, or the wife, or both.

Neither does he state that the separation must be beyond hope of reconciliation. For even if the parties had been separated by a formal written contract or by a decree of absolute divorce (both of which appellee admits would be within the meaning of the will), yet there could still be a reconciliation. The parties might, by mutual consent, disregard the separation agreement and reunite, or they might remarry subsequent to the divorce decree.

It is not necessary for us to decide what other kind of separation the testator may have had in mind. We need not inquire into what other facts would have given rise to the same condition. All we need decide, and what we do decide, is that the divorce a mensa et thoro obtained in this case worked a "separation" of W. Lee Fisher and his wife within the meaning of the will, and that thereby W. Lee Fisher was divested of his life interest in the property.

We think the testator had in mind the interests of the children of W. Lee Fisher. He probably thought that as long as thefather and mother lived together the children would enjoy, in some measure at least, the benefits of the income from the property. He, therefore, provided that if the home were kept together--if there were no separation--the father and head of the family, W. Lee Fisher, was to enjoy and administer the property. But the testator further said that if the home were broken up by a separation, then Ida Fisher, as trustee, should administer the property for the benefit of the children alone.

As we said through Judge Whittle in Epperson v. Epperson, 108 Va. 471, 475, 62 S. E. 344, 346:

"We are not unmindful of the principle that courts regard with disfavor conditions and defeasances which are calculated to prevent or defeat the absolute vesting of titles. Nevertheless, when the condition or defeasance is clear and explicit, they do not hesitate to give effect to the intention of the parties.

" 'When the intent of such an instrument is clear, it will be given full weight and effect, notwithstanding the fact that such instruments are regarded unfavorably by the courts.' "

Since W. Lee Fisher no longer has any interest in the property, his creditors have none.

The fact that W. Lee Fisher has been divested of his interest in the property, of course, does not operate to defeat the vested remainder in favor of his children. Under the doctrine of acceleration, they are entitled to the enjoyment of the property in the manner prescribed in the above clause of the will, subject, of course, to the annuity in favor of Belle C. Fisher during the remainder of her life. Christian v. Wilson's Ex'rs, 153 Va. 614, 631, 151 S. E. 300; 1 Minor on Real Property (2d Ed.) § 741, p. 967.

A codicil to the will provides: "As the house and lot on Highland Avenue adjoining the Wisecarver property which was devised by the 6th clause of my will to my nephew, W. Lee Fisher has been sold I now give him instead of said house and lot three thousand ($3,000.00) the said amount to be held in trust by the Shenandoah Valley National Bank of Winchester, Virginia as Trustee and invested and the annual proceeds to be paid over to my said nephew until the title to the 'Eddy Property' which I have devised to him shall be clear, then the said amount or so much as may remain

after clearing said title shall be his absolutely."

The lower court, in the decree appealed from, placed this interpretation upon the codicil: "That the legacy provided for in the codicil to the will of J. T. Fisher is not to be treated as the absolute property of W. Lee Fisher, but shall be used by the Shenandoah Valley National Bank, Trustee, as a fund to acquire the interests of the descend-ents of Mrs. Harriet E. Cunningham in said property designated as the Eddy property after the death of Mrs. Alice McKin-ster, if the same may be obtained. The interest on said fund is to be held as belonging to W. Lee Fisher and to be for the benefit of his creditors as may hereafter be determined, and the deeds of trust and...