Fletcher v. WASHINGTON AND LEE UNIVERSITY, Civ. A. No. 81-0192-R.

• Decision Date: 07 June 1982
• Docket Number: Civ. A. No. 81-0192-R.
• Citation: 550 F. Supp. 21
• Parties: Laura Tucker FLETCHER, Plaintiff, v. The WASHINGTON AND LEE UNIVERSITY, Defendant.
• Court: U.S. District Court — Western District of Virginia

550 F. Supp. 21

Laura Tucker FLETCHER, Plaintiff, v. The WASHINGTON AND LEE UNIVERSITY, Defendant.

Civ. A. No. 81-0192-R.

United States District Court, W.D. Virginia, Roanoke Division.

June 7, 1982.

E. Griffith Dodson, Jr., Roanoke, Va., for plaintiff.

Eric Lee Sisler, Lexington, Va., S.D. Roberts Moore, Melissa J. Warner, Roanoke, Va., for defendant.

MEMORANDUM OPINION

MICHAEL, District Judge.

Plaintiff, Laura Tucker Fletcher, brings this action evidencing her election to exercise what appears to be a possibility of reverter of her long-time family home, known as "Col Alto", as contained in an agreement and deed whereby plaintiff's sister, Rosa Tucker Mason, donated the home to the defendant, Washington and Lee University, under certain conditions. The action is now before the court on defendant's motion to dismiss for failure to include indispensable parties as parties plaintiff pursuant to Rule 19(b), Fed.R.Civ.P. This motion, having been briefed and argued, is now ripe for disposition.

The agreement and deed executed by and between Rosa Tucker Mason and Washington and Lee University dated September 16, 1957, governing the donation of "Col Alto" and enunciating the conditions under which the home would revert, reads in pertinent part:

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.

Said owner was the now deceased Rosa Tucker Mason.

It is undisputed that the plaintiff is the sole surviving sibling of Mrs. Mason. It is equally undisputed that Mrs. Mason had another sister and three brothers, all of whom are now dead, but several of whom had children, some of whom are now alive and citizens of the Commonwealth of Virginia. It is the defendant's contention that the children of Mrs. Mason's deceased siblings constitute at least a portion of Mrs. Mason's next of kin, as contemplated in the agreement. Thus, defendant contends, Mrs. Mason's nieces and nephews are indispensable parties to this litigation and since at least one niece or nephew is a citizen of Virginia, the contention of defendant is that this court must dismiss this action for lack of complete diversity between the parties. Plaintiff denies defendant's contentions and vigorously asserts that the plaintiff, as Mrs. Mason's sole surviving sibling, is the only "next of kin" within the meaning of the agreement.

Under a long line of cases beginning with Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this court is bound to apply state substantive law to actions brought pursuant to diversity jurisdiction. The threshold question for the court's determination is what does the language "those persons then living" mean or, in other words, at what point in time does the court look to determine who are Mrs. Mason's "next of kin". The parties are in agreement that the class should be determined as of the date the defendant allegedly breached the conditions under which Mrs. Mason donated her home to the defendant. Presumably, the breach of conditions took place within a reasonable time prior to the institution of this action. The court is in complete agreement with the parties' evaluation that the class of next of kin is not determined until a breach of the conditions contained in the agreement takes place. The language of the agreement is clear and unambiguous and states that should the University determine that it no longer desires or is able to retain the premises under the conditions set forth, then it will convey the premises to those persons then living who shall be determined to be the next of kin of the owner. The only reasonable interpretation of this portion of the agreement is that the possible reversion lies in favor of Mrs. Mason's next of kin who are living at the time the conditions she set out are breached.

The next question the court must consider is what does the phrase "next of kin" mean under Virginia law. Plaintiff argues that the phrase means nearest in blood or consanguinity to Mrs. Mason and thus the plaintiff is the sole surviving next of kin. Plaintiff, however, is unable to cite a Virginia case for this proposition. The defendant, on the other hand, while also unable to cite a Virginia case on point, argues by analogy that Mrs. Mason's nieces and nephews are, as well as the plaintiff, her next of kin. The defendant refers the court to the case of Bonewell v. Smith, 120 Va. 431, 91 S.E. 759 (1917), for the proposition that "kindred", as used in Virginia Code § 64.1-1 has the same meaning as "next of kin". Step 4 of Virginia Code § 64.1-1, which defines the term kindred for the purpose of the course of descents of realty, places an intestate's surviving brothers and sisters in the same class as the descendants of the intestate's previously deceased brothers and sisters. Virginia Code § 64.1-11 provides the same course of descent for an intestate's personalty. Thus, the defendant contends the Virginia General Assembly has statutorily equated the instant plaintiff with Mrs. Mason's living nieces and nephews and therefore this court should find them to be a part of the class of Mrs. Mason's next of kin under Virginia law. The defendant further submits that in Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802 (1930), the Virginia Supreme Court held that descent is fixed by statute and that the common law course of descent has been repealed and abrogated.

This court finds the defendant's...