Fletcher v. Washington and Lee University

• Decision Date: 28 April 1983
• Docket Number: No. 82-1891,82-1891
• Citation: 706 F.2d 475
• Parties: 11 Ed. Law Rep. 67 Laura Tucker FLETCHER, Appellant, v. The WASHINGTON AND LEE UNIVERSITY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 475

706 F.2d 475

11 Ed. Law Rep. 67

Laura Tucker FLETCHER, Appellant, v. The WASHINGTON AND LEE UNIVERSITY, Appellee.

No. 82-1891.

United States Court of Appeals Fourth Circuit.

Argued March 8, 1983.

Decided April 28, 1983.

E. Griffith Dodson, Jr., and Clifton A. Woodrum III, Roanoke, Va. (Dodson, Pence, Viar, Young & Woodrum, Roanoke, Va., on brief), for appellant.

S.D. Roberts Moore, Roanoke, Va. (Melissa J. Warner and Gentry, Locke, Rakas & Moore, Roanoke, Va., on brief), for appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge and ALDRICH, Senior Circuit Judge. ^*

BAILEY ALDRICH, Senior Circuit Judge:

In September, 1957, Rosa Tucker Mason, by written agreement with defendant Washington and Lee University, deeded to defendant a certain property, consisting of some eight acres of land and a mansion, known as Col Alto; she to enjoy the property during her lifetime, and the University to have the fee, but on certain specified conditions, thereafter. It was further provided as follows.

9. The University agrees that if in the future it should determine, for any reason, that it no longer desires or is able to retain the premises under the conditions set forth herein, it will convey the premises to those persons then living who shall be determined to be the next of kin of the owner.

Mrs. Mason died in January, 1961, leaving several brothers and sisters surviving. The last of these, excepting plaintiff, Laura Tucker Fletcher, died in December, 1978, leaving presently surviving issue. In April, 1981, plaintiff made demand upon the University for conveyance to her, as the alleged sole "living ... next of kin" of Mrs. Mason, for breach of condition. Following defendant's refusal, she instituted the present action for a declaratory judgment. Defendant moved to dismiss for failure to state a cause of action, which motion the court denied. It then moved, pursuant to F.R.Civ.P. 19, to dismiss for failure to include allegedly indispensable parties plaintiff, viz., Mrs. Mason's surviving nephews and nieces by deceased siblings. Finding them to be included in the phrase "next of kin," the court granted this motion, with opinion, 550 F.Supp. 21.

As authority the court looked to the Virginia statute of descents, and to the language of two Virginia cases, Newton v. Newton, 199 Va. 785, 102 S.E.2d 312 (1958), and Eason v. Eason, 203 Va. 246, 123 S.E.2d 361 (1962). For reasons we will come to, we find these cases not to be relevant, but we will deal first with the statute of descents, which if it were applicable, would fully justify the court's result. However, we believe it inapplicable.

In 1957, when the agreement was executed (and since) the statute read as follows.

Sec. 64-1. When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, as are not alien enemies, in the following course:

First. To his children and their descendants.

Second. If there be no child, nor the descendant of any child, then the whole shall go to the surviving consort of the intestate. (Now "spouse")

Third. If there be none such, then to his or her father and mother or the survivor.

Fourth. If there be none such, then to his or her brothers and sisters, and their descendants.

* * *

Code of Virginia of 1950, Section 64-1, as amended, 1956, Ch. 109.

Admittedly this statute "abrogated ... the whole of the common law regulating descents." See Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802, 812, (1930). However, this was with regard to statutory descent, intestacy. The statute did not purport to change the meaning of recognized common law words, even when they were used in a will. This is demonstrated by the case of Kello v. Kello's Executors, 127 Va. 368, 103 S.E. 633, at 636 (1920). The question there was who were to take as "my then living nearest heirs." In holding that the children of deceased brothers and sisters were to share with the sole surviving brother, the court said,

"The appellant, in the instant case, insists that the words 'nearest heirs' mean the nearest in blood to the testator living at the time of his death, and that, as he alone falls within that description, he is entitled to the entire residuum. If the words 'nearest heirs' were synonymous with the words 'nearest of kin,' the contention would be irresistible. As it is, it is a persuasive one. But there is other language in the will indicating that the testator, when he used the words 'nearest heirs,' did not contemplate that his estate should pass to a single brother under that designation, but rather that he had in mind a group of takers...." (Emphasis suppl.)

After developing this last sentence the court said,

"Again, it may be asked why the testator did not use the words 'my then living next of kin,' or 'my nearest surviving relations,' instead of the words actually used, if he intended that his estate should pass to the nearest of his blood living at his death? 'Heirs' is a highly technical word, while 'kin' is not. The word 'heirs' has been defined in Virginia as the 'next of kin' who take under the statute of descents. The nearest in blood according to nature do not always share in the inheritance under the statute of descents.... ^** In the instant case, the testator left his estate to all of his 'then living nearest heirs,' that is, it may be fairly said, to his next of kin who would take according to the statute, or to that group of kin who for the purposes of inheritance are his nearest heirs in the contemplation of the statute." (Emphasis suppl.)

We read this to mean that a court may loosely describe as "next of kin" the parties who, in the particular instance, are the ones who take under the statute (see, also, Bonewell v. Smith, 120 Va. 431, 91 S.E. 759, 761 (1917) ("The word 'kindred' ... used in such a statute has the meaning of 'next of kin' ")) but that when the actual phrase is employed in an instrument it is to be construed strictly, in its commonly accepted meaning, as nearest in blood.

This distinction is confirmed by Boyd v. Fanelli, 199 Va. 357, 99 S.E.2d 619 (1957). The issue there was the time the class--"my next of kin, per capita"--was to be determined. For the composition of this class the court expressed no doubts. Rather than look to the statute of descents, or discuss any possible conflict, it stated flatly,

"[T]he phrase, 'my next of kin,' as used by the testatrix means her closest blood kin and does not mean those who would be her heirs or distributees under the statute of descent and distribution.

* * *

"She resorted to a class designation, all members of which would be the same degree of kinship to her." 99 S.E.2d at 623.

Then, applying that definition of next of kin to the possible dates for determination, it stated as of one of them, a time when the testatrix would have had three deceased sisters, one with living issue, and one surviving brother, that the brother "would have been her closest blood kin and sole beneficiary of the remainder." Ibid. Except to mix brothers and sisters, this is precisely the case at bar.

Defendant seeks to distinguish Boyd on the ground that it involved a spendthrift trust. However, this is to put the cart before the horse. The court used the fact that there was a spendthrift trust as a reason for construing the testator's intent to avoid the date that would...