Fuller v. Va. Trust Co

• Decision Date: 05 March 1945
• Citation: 183 Va. 704,33 S.E.2d. 201
• Court: Virginia Supreme Court
• Parties: FULLER. v. VIRGINIA TRUST CO. et al.

33 S.E.2d. 201

183 Va. 704

FULLER.

v.VIRGINIA TRUST CO. et al.

Supreme Court of Appeals of Virginia.

March 5, 1945.

Appeal from Circuit Court, Halifax County; Henry C. Leigh, Judge designate.

Suit by Corrie A. Fuller against T. C. Watkins, Jr., and another wherein the claimant claimed dower in certain hospital, consolidated with a suit by Virginia Trust Company, etc., against Corrie A. Fuller and others to require a transfer to Virginia Trust Company, as executor, of the estate of Rawley H. Fuller, deceased, the house and lot which had been conveyed to Corrie A. Fuller. From an adverse decree, Corrie A. Fuller appeals.

Reversed and remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James S. Easley, of South Boston, and Edwin B. Meade, of Danville, for appellant.

J. Randolph Tucker, of Richmond, Irby Turnbull, of Boydton, and W. B. Settle, of South Boston, for appellees.

HUDGINS, Justice.

Dr. Rawley H. Fuller, a resident of South Boston, Virginia, died testate on July 24, 1943, survived by his widow, Corrie A. Fuller; Rawley H. Fuller, Jr., and Sarah F. Hudgins, children of a former marriage; William Allen Fuller, son of testator and Corrie A. Fuller; and Mary Anne Fuller, an adopted infant daughter. The Virginia Trust Company, of Richmond, Virginia, was named and qualified as executor under the will.

A few days after it qualified, the executor, without the consent of the beneficiaries, sold and later conveyed the South Boston Hospital and equipment, owned and operated by testator at the time of his death, to T. C. Watkins, Jr., and I. K. Briggs for $40,000. The beneficiaries unsuccessfully attacked this sale in another suit. Corrie A. Fuller renounced the provisions made for her in the will and elected to claim dower in the real estate and her statutory distributive share of the personalty of her husband. The widow then filed a bill against T. C. Watkins, Jr., and I. K. Briggs claiming dower in the South Boston Hospital. Thereafter, the executor instituted a separate and independent suit against the widow, the beneficiaries named in the will, and T. C. Watkins, Jr., and I. K. Briggs, purchasers of the hospital and equipment. It was alleged in the bill that the appraised value of the personal property owned by the estate was $73,966; that the appraised value of the real estate was $37,500; and that, since the widow had elected to claim dower, she should be required to transfer to the executor a house and lot in the town of South Boston which her husband had caused to be conveyed to her and which he intended to be for jointure and in lieu of dower. This suit was consolidated with the suit instituted by Corrie A. Fuller against T. C. Watkins, Jr., and I. K. Briggs.

Corrie A. Fuller thereupon filed a separate answer to the executor's bill, in which she denied that her husband intended the conveyance to be for jointure and in lieu of dower. She admitted that her husband had paid McCanless and his wife, the grantors in the deed, the sum of $8,500 for the house and lot described in the conveyance, but alleged' that, at the time payment was made and the deed delivered, her husband told her in the presence of others that the property described was a birthday gift to her.

None of the adult beneficiaries contends that the testator intended the conveyance in question to be other than a simple deed of gift, as claimed by the widow.

The executor elected to submit its case on the bill and answer. Thereupon the respondent introduced several witnesses who testified that Dr. Fuller paid $8,500, the full consideration, for the property, and that, when he delivered the deed to his wife, he said, "Here is your birthday present." On motion of the executor, all of the parol testimony setting forth the facts and circumstances surrounding the purchase of the property and the delivery of the deed was excluded except that part which tended to prove that Dr. Fuller paid the consideration. The court entered a decree declaring that, since the widow had renounced the will of her husband and elected to claim dower in all real estate owned by him, the property conveyed to her by McCanless and wife reverted to the estate of the testator. The widow was ordered forthwith to convey the property to the executor, and, upon her failure to do so, a commissioner was appointed to execute such a conveyance with special warranty of title. From that decree this appeal was allowed.

The dominant question presented is whether or not Dr. Fuller intended the conveyance to his wife to be for jointure and in lieu of dower.

The decision turns upon the meaning of the word "jointure, " as used in the statute.

Jointure, meaning a provision or an interest of a wife in her husband's real estate, originated about 1370 in the reign of Edward III. It was a device to which an expectant husband resorted in order to give his wife at his death an interest in a portion of the lands held to his use, because at common law the wife had no dower interest in her husband's lands unless he owned the fee. When uses were converted, in part at least, by the statutes of 27 Henry VIII to legal estates, the wife upon whom such marriage settlement had been made became endowed with an interest in all other lands so owned by the husband. Without more, a wife who owned an estate created by the marital settlement would also be entitled to dower in all other lands of her husband, and hence she would receive a double portion in the event she survived him. To avoid this result, the statute of uses provided that "jointure, " as therein defined, should be an absolute bar to a widow's dower. It is said in 2 Minor's Institutes, 4th Ed., 177, 178, that ih order for the conveyance or devise to bar dower, the jointure

"1. Must be an Estate of Freehold in lands or Tenements.

"2. Must take Effect Immediately at the Husband's Death, and be for the Life of the Wife at Least.

"3. Must be made to Herself, and not to another in Trust for Her.

"4. Must be particularly Expressed to be in Satisfaction of her whole Dower.

"5. Must be made Before Marriage."

While some authorities refer to such provisions for the wife as "common law jointure, " as pointed out, the word originated in the early English statutes and not in the decisions of the common law courts. These statutes, with some modifications, were in force in Colonial Virginia. In 1785 the General Assembly of Virginia passed the following act:

"If any estate be conveyed by deed or will, either expressly or by averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession, immediately on the death of her husband, and to continue during her life at the least, determinable by such acts only as would forfeit her dower at the common law, such conveyance shall bar her dower of the residue of the lands, tenements, or hereditaments, which at any time were her said husband's. But if the said conveyance were before the marriage, and during the infancy of the feme, or if it were made after marriage, in either case the widow may at her election waive such jointure, and demand her dower." Acts of 1785, ch. 65, sec. 6.

Under this act this court held, in Blunt v. Gee, 5 Call 481, 9 Va. 481, that a bequest or gift of personal property or estate was no bar to the widow's dower in the lands of her husband. To the same effect, see Wise-ley v. Findlay, 3 Rand. 361, 24 Va. 361, 15 Am.Dec. 712.

The construction of this statute was before the court again in Ambler v. Norton, 4 Hen. & M. 23, 14 Va. 23. It was held that where any estate was conveyed by deed or will and intended for a wife's jointure in lieu of dower, that intention, though not expressed in the conveyance, could be established by parol testimony, provided such intention could be reasonably inferred from the situation of the parties and the circumstances of the deceased husband at the time the provision was made.

Two important changes were made in the statute as codified in 1849. The meaning of the word "estate" was enlarged to include personalty as well as realty, and no attempt was made to define jointure. The pertinent part of the statute, as changed, read: "If any estate, real or personal, intended to be in lieu of her dower shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate or the residue thereof." Code of 1849, p. 474, § 4. See Craig's Heirs v. Walthall, 14 Grat. 518, 55 Va. 518; Higginbotham v. Cornwell, 1851, 8 Grat. 83, 49 Va. 83, 56 Am.Dec. 130.

It will be noted that a literal meaning of the language used brings within the influence of the statute any estate conveyed to the wife by the deed or will of any party, provided only that the grantor or testator executed the instrument intending such provision to be for jointure and in lieu of dower. The intention of the party conveying or devising the estate was and, is the controlling feature. The revisors of the Code of 1849 made no change in the method of proving the pertinent fact of this intention. As revealed in the early cases cited, it was not always easy to determine the intention of the husband, who had made provisions for his wife in his will, unless it was expressly stated in the will that such provisions were to be regarded for jointure and in lieu of dower.

The method of proving such intention was changed by the 1866 amendment, which provided: " * * *, and every such provision, by deed or will, shall be taken to be intended in lieu' of dower, unless the contrary intention plainly appear in such deed or will, or in some other writing, signed by the party making the provision." Acts of 1865-66, p. 166.

The statute remained as thus amended until 1938. There seems to have been some doubt prior to Land v. Shipp, 98 Va. 284, 36 S.E. 391, 394, 50 L.R.A. 560, decided June, 1900, as to whether the word "jointure, " as used, meant an estate to "take effect immediately at the husband's death, and be for...