Gaddess v. Norris' Ex'rs

Decision Date24 March 1904
CourtVirginia Supreme Court
PartiesGADDESS et al. v. NORRIS' EX'RS et al.

WILLS—CONSTRUCTION—PARTIES.

1. In an action to construe a will, where the issue was distinctly made as to the validity of the will, and the question whether or not the grandchildren of testator have an interest in the subject-matter of the litigation, and, if so, the extent of their interest, depends on the determination of that question, they are necessary parties.

Appeal from Circuit Court, Fauquier County.

Bill by 'Norris' executors and others against Gaddess and others, to construe a will. Decree for plaintiffs, and defendants appeal. Reversed.

Moore & Keith and Henry E Davis, for appellants.

Munford, Hunton, Williams & Anderson, for appellees.

WHITTLE, J. This is an appeal from a decree of the circuit court of Fauquier coun-ty, construing the will of Henry De Butt Norris, late of that county, deceased.

The will is as follows:

"I, Henry De Butt Norris, of the County of Fauquier and State of Virginia, do make this my last will and testament.

"Item 1st I bequeath the following legacies to servants or employes now in my service, to-wit: —to Ellen Flynn the sum of five hundred dollars, and to Lewis Fletcher, Sallie Braxton, and Adeline Wright each the sum of one hundred dollars, provided they continue in my service till my death; but should either of them be not then in my employ and service, this legacy to him or her shall be void and lapse.

"Item 2nd. I desire that the farm where I now reside known as 'Barrymore, ' including that portion bought of Margaret A. Wright and Martha Emma Wright, and containing in all four hundred and one acres, more or less, shall pass to the trustees hereinafter appointed, for the use and benefit of my son Henry C. Norris, subject to the same trusts and limitations as hereafter mentioned in clause fourth; and I therefore request my children in whom the title has been vested, at my request by deed from Chas. R. Flinch to Mrs. Edna Norris, to convey the said tract or tracts of land to said trustees to be held by them in and on the trusts aforesaid (as presently recited) for the use and benefit of said Henry C. Norris, and should any of my children fail or refuse to unite in conveying said property to said trustees, as herein requested, then the devise and bequest hereinafter made in his or her favor shall be rescinded and void as to him or her thus failing or refusing, and the same shall pass and be held by said trustees for the use and benefit of said Henry C. Norris; and in the event of all of my children failing or refusing to make said conveyance, then the whole of my estate hereinafter devised and bequeathed shall be held by said trustees for Henry C. Norris, as the sole beneficiary of the trust

"Item 3d. I bequeath to the said Henry C. Norris ail my furniture, books, paintings and household effects, and all live stock and farming implements on said farm of 'Barry-more' as a gift, and not subject to the limitations and trusts as set forth in clause fourth.

"Item 4th. I devise and bequeath to the said trustees hereinafter named all the rest and residue of my property, both real and personal, to be divided into six equal shares or parts, and one share each shall be allotted and held for my six children—Golda Calhoun Saunders, Alexander J. Norris, Marie A. Saunders, Emma P. Norris, Virginia G. Norris and Dudley Norris—during their respective lives in and upon the following trusts: That said trustees shall collect and receive the rents, issues, interests and profits of said properties both real and personal, and after adding one per cent of said income yearly to the capital shall pay and apply the balance to the use and benefit of said children respectively during their lives. The shares of my daughters and the income thereof to be for their sole and separate use, free from any control of their husbands or liability to be in any way pledged for their debts or obligations; that said trustees shall have power to sell and reinvest any of said properties or securities and shall keep a separate trust account of each share; and that each of said children shall have power of appointment, that is to dispose of his or her share by will in favor of any of his or her issue; and in case of any of my said children dying and leaving issue without having made a will, then his or her share shall pass to his or her issue; and in case any of my said children should die without issue or intestate, then his or her share...

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13 cases
  • Watkins v. Fairfax County
    • United States
    • Virginia Court of Appeals
    • April 13, 2004
    ...suit.'" Id. (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris, 102 Va. 625, 630, 46 S.E. 905, 907 (1904))). Thus, the Court has consistently held that "a court lacks the power to proceed with a suit unless all necessary ......
  • Yopp v. Hodges
    • United States
    • Virginia Court of Appeals
    • July 6, 2004
    ...(1996) (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris' Ex'rs., 102 Va. 625, 630, 46 S.E. 905, 907 (1904) (quoting 1 Daniel's Chancery Practice, 244))). Thus, as we said in Hughes, a necessary or indispensable party to......
  • Synchronized Constr. Servs., Inc. v. Prav Lodging, LLC
    • United States
    • Virginia Supreme Court
    • October 31, 2014
    ...have such an interest are necessary parties to the suit.”233 Va. 513, 519–20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris, 102 Va. 625, 630, 46 S.E. 905, 907 (1904) )Code § 43–70 provides that when a suit has been filed under Code § 43–22 to enforce a mechanic's lien, “parties in ......
  • Haring v. Hackmer, Record No. 2846-04-4 (VA 11/8/2005)
    • United States
    • Virginia Supreme Court
    • November 8, 2005
    ...at 818 (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris' Ex'rs, 102 Va. 625, 630, 46 S.E. 905, 907 (1904))), and the absence of a party whose "interests are separable from those of the parties before the court, so that ......
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