Furbee v. Furbee

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, J.
• Citation: Furbee v. Furbee, 49 W.Va. 191, 38 S.E. 511 (W. Va. 1901)
• Decision Date: 16 March 1901
• Parties: FURBEE v. FURBEE.

38 S.E. 511

49 W.Va. 191

FURBEE v. FURBEE.

Supreme Court of Appeals of West Virginia.

March 16, 1901

Syllabus by the Court.

1. The will of B. F. contains the following clauses: "I give my son A. J. F. my home farm, with all its appurtenances. I give my son P. F. my lower farm, that was Waitman's, with all its appurtenances; but my wife, N., to have the full control of both said farms during her widowhood, and no longer. My four daughters, namely, D., J., C., and S., to have an interest in the aforesaid farms as long as they may remain single, and no longer." Held, the widow takes a life estate in both farms, subject to be defeated by her marriage; then to the four daughters for life, subject to be defeated as to them, respectively, by marriage; remainders in fee to the sons, respectively, as to the farms.

2. The intention of the testator is to be collected from the whole will justly interpreted, having regard to the circumstances of the testator, and the relation in which he stood to the parties claiming under the will, and the subjects disposed of by it.

3. Where the will plainly shows the intention of the testator and he has failed to use proper technical words to express his meaning, the court may supply them to effectuate his manifest intention, and for such purpose only.

4. The court will, if possible, adopt such construction as will uphold all the provisions of the will; and in the attainment of this object the relative order or position of the bequests or devises may be disregarded, if, by transposing them, a consistent construction of the whole will can be deducted.

Appeal from Circuit Court, Tyler county; G. W Farr, Judge.

Bill by Caroline Furbee against Presley M. Furbee. Decree for defendant, and plaintiff appeals. Reversed.

Engle & Riggle and T. P. Jacobs, for appellant.

David F. Pugh, O. W. O. Hardman, and J. H. Strickling, for appellee.

POFFENBARGER J.

On the 27th of November, 1858, Bowers Furbee, of Tyler county, this state, made his last will and testament as follows: "I Bowers Furbee, of Tyler county, state of Virginia, do hereby make this, my last will and testament, in manner and form as follows, to wit: I give my son Andrew Jackson Furbee my home farm, with all its appurtenances. I give my son Pressley Furbee my lower farm that was Waitman's, with all its appurtenances. But my wife, Nancy, to have the full control of both said farms during her widowhood, and no longer; the aforesaid Nancy to dispose of the personal property as she may see proper, without appraisement or public sale. My four daughters, namely, Drucilla, Jane, Carolina, & Sophia, to have an interest in the aforesaid farms as long as they may remain single, and no longer Drucilla to have one bed and beden, one cow, and one set of chairs; Jane to have one bed and beden, one cow, one side saddle, and one set of chairs Sophia to have one bed and beden, one cow, and a side saddle, and a set of chairs. My sons Alexander and George Furbee and my daughters Margaret Bond, Mary Bond, Anny Elizabeth, and Susan Wells have had their portion. I hereby constitute and appoint my wife, Nancy Furbee, executrix of my last will and testament. In witness whereof I set my hand and seal this 27th day of November, 1858. Bowers Furbee. [Seal.] Witness: W. Underwood. Zane Underwood." On or about the 24th day of March, 1875, he died, still seised of the two farms mentioned in the will, without having altered or revoked this will, and left surviving him all the persons named in it as beneficiaries. The widow, Nancy Furbee, died August 22, 1880, without having married again. Jane Furbee intermarried with Thomas Morris in 1860. Sophia Furbee intermarried with George B. Stathers in 1869Drusilla Furbee died in 1888. Caroline Furbee, the plaintiff, and appellant here, is the only one of the four daughters named as devisees in the will still living and unmarried. She instituted this suit in chancery in the circuit court of said county on the 15th of February, 1897, against said Presley M. Furbee, setting forth in her bill of complaint the foregoing facts, exhibiting therewith as a part of it a copy of said will, alleging that by virtue of it she has at least an estate for life, defeasible upon her marrying, in the farm described in the will as "my lower farm that was Waitman's," and praying that the will may be construed, and her interest in said farm fully determined; that said Presley M. Furbee be compelled to account to her for the rents, issues, and profits of said farm, or for any sum of money that may be found due her under said will; and that such other relief, both general and special, as to equity seems meet, be granted her. On the 26th of April, 1897, Presley M. Furbee demurred to the bill, assigning as grounds therefor that there is no equity in the bill; that W. H. Furbee and others ought to be made parties to it; that the plaintiff has been guilty of laches respecting her supposed claim; that she relies upon a provision in the will, which is ambiguous, and void for uncertainty; and that her claim is barred by the statute of limitations. The demurrer was overruled, and the defendant answered the bill. The answer, after admitting the facts stated in the bill, denies that said Caroline has any estate or interest in said farm by virtue of anything contained in the will, and admits that after the death of said Nancy Furbee defendant took possession of the farm, and converted to his own use the rents, issues, and profits thereof, and avers that he was legally entitled so to do; and ever since her death he has occupied the land to the exclusion of the plaintiff, and adverse to her claim and that of every other person. The answer then alleges that within a year after the death of said Nancy, upon a parley and attempt to construe what said will meant in regard to the provisions in behalf of the plaintiff and others, they were wholly unable to satisfy themselves as to the testator's meaning, and what, if anything, the complainant was entitled to, and they thereupon verbally agreed by way of compromise and settlement of plaintiff's claim that the defendant would furnish the plaintiff annually so long as she remained unmarried certain corn, wheat, and hay, and other provender for stock, which was fixed at about 20 bushels of corn, 5 bushels of wheat, and sufficient feed to winter her cow; and that agreement was fully performed during all the years from the date of the agreement until the year 1896, when she for the first time set up the claim contended for in her bill. These are the only important parts of the answer. To the answer the complainant filed a special reply, denying that she had so compromised and settled her claim, and alleging that, on the contrary, said defendant, well knowing she had an abiding and substantial interest in the lands, voluntarily proposed to give, and did give her annually after said Nancy's death, of the rents, issues, and profits of the land, about the quantities of corn, wheat, and feed mentioned in the answer, as well as some coal and wood, which, together with what she received from Andrew Jackson Furbee on account of the other farm, was inadequate to her support. As to the alleged agreement, she also relies upon the statute of frauds. Depositions of several witnesses were taken for both plaintiff and defendant, relating principally to the verbal agreement, the support received from the farm by plaintiff and its adequacy, and the present and former condition of the farm and its value. At the final hearing the bill was dismissed, and the plaintiff brings the case here on appeal from the decree dismissing it.

The questions presented here are: First. What interest or estate, if any, said Caroline Furbee has in said farm described in the will as "my lower farm that was Waitman's?" Second. Is she prevented by her laches from asserting her claim to such interest or estate? Third. Is her claim barred by the statute of limitations? Fourth. Has she surrendered that estate?

The solution of the first question depends upon whether or not as to the alleged interests of the four daughters therein named, of whom the appellant is one, the second and third clauses of the will are void for uncertainty. The appellee, having the affirmative of this proposition to maintain, contends that the description of the lands as tracts, in which the interest is given, of the portions of the lands in which it is given, and of the estate or nature of the interest, are all fatally indefinite and uncertain. It is insisted that, if the testator ever intended to give the appellant and her three sisters any estate in the lands, he failed to express it by the language used in the will, and the court can give her no aid without subverting established rules of law. The tracts of land mentioned in the will, to reach an interest in one of which is the object of this suit, are certainly sufficiently identified by the words "my farm that was Waitman's" and "my home farm," which descriptions are much more specific and definite than language often use in wills respecting the subject of the devise. Suppose the testator had said, "I devise all my real estate to A." Could it be contended that this language is too indefinite and uncertain? Certainly not; and yet it is far more general, and much less specific, than the language under consideration here. It does not describe the land by metes and bounds, nor locate it by reference to any natural or artificial monuments, it is true, but in how many instances is that done? It is a rare exception, rather than the rule. Furthermore, it is wholly unnecessary. Extrinsic evidence is always admissible to identify the subject of a devise in a will. It involves no question of the testator's intention, nor contradiction of...