Hall v. Hoak

• Decision Date: 14 January 1946
• Citation: 36 S.E.2d 567,184 Va. 821
• Court: Virginia Supreme Court
• Parties: HALL. v. HOAK et al.

36 S.E.2d 567

184 Va. 821

HALL.

v.HOAK et al.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Appeal from Circuit Court, Page County; H. W. Bertram, Judge.

Suit by Cora Campbell Hoak and others against R. S. Hall, executor under the last will and testament of Mattie Seekford, deceased, and others, to enjoin defendants from selling the estate of his decedent. From a decree for complainants, defendants appeal.

Affirmed.

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

J. Lynn Lucas, of Luray, and H. Thornton Davies, of Manassas, for appellants.

J. Everett Will and W. V. Ford, both of Luray, for appellees.

GREGORY, Justice.

This suit was instituted in the trial court to enjoin R. S. Hall, executor under the last will and testament of Mattie Seekford, from selling the estate of his decedent. An order for a temporary injunction was entered and, upon application, it was enlarged and perpetuated by a final decree in the cause, in which the title to 6 acres and 16 poles was established in the complainants in the suit. That decree is now before us for review.

The cause was heard in the trial court upon the bill of complaint, the exhibits filed therewith and the joint answer of the defendants.

The facts and the issue are clearly disclosed from the pleadings and the exhibits, and they may be stated thus: On the 26th day of November, 1906, Lucy M. Pendergast and her husband, by deed conveyed to William Seekford, of Adam, a tract of land containing 6 acres and 16 poles. This deed was duly recorded in the clerk's office. The granting portion of the deed was in this language: "Said parties of the first part doth this day bargain, sell and convey unto the party of the second part a certain tract or parcel of land situate in Page county", &c.

In the habendum clause of said deed is found this language: "To have and to hold, together with all the appurtenances thereto belonging, and in the event that the said William Seekford should die leaving no children the property herein conveyed shall then be the property of Mattie E. Seekford, wife of the said William Seekford, nevertheless the said William Seekford may sell and convey the said land at any time during his natural life * * *."

The only issue presented by this appeal arises from a proper construction of the deed. Did William Seekford take a fee simple estate in said tract, or did he take a life estate with remainder to his widow? The trial court held that William Seekford took a fee simple estate under said deed.

The events subsequent to the delivery of the deed from Lucy M. Pendergast and husband to William Seekford are that William Seekford died testate in the year 1938. He had no children nor the descendants of any children surviving him, but did leave surviving him his widow, Mattie Seekford. His will bore the date of November 23, 1937, and was admitted to probate in the clerk's office of Page county on the 28th of December, 1938. In this will he made certain provisions, --among them are items 3 and 4 which are involved here. They are:

"3. I hereby give, devise and bequeath unto my said wife, Mattie Seekford, all of my real estate which at present consists of about 28 acres of land on the LeaksvilleAlma road, and upon which I have my residence and filling station; to be used by my said wife, Mattie Seekford, during the term of her natural lifetime. "4. Upon the death of my said wife, Mattie Seekford, I direct that the remainder of my personal estate and all of my real estate shall descend to and become the property of the children of Thomas Campbell and his present wife, Etta Campbell, share and share alike."

The beneficiaries under the 4th item of the will of William Seekford were the complainants in the cause below and are the appellees here. The 6 acres and 16 poles tract, which is involved here, was included in items 3 and 4.

Mattie Seekford, the widow of William Seekford, died testate on the 3d day of June, 1944. By her last will and testament which was written on March 21, 1939, and admitted to probate on June 7, 1944, she attempted to authorize and empower her executor, R. S. Hall, to make sale of her estate, including the 6 acres and 16 poles, and to divide the proceeds among the defendants below, except Hall, executor. Hall duly qualified as such executor, and in accordance with the directions of her will, he advertised the property of the decedent for sale. As already stated, the complainants in the trial court filed their bill of complaint against Hall, executor, and others, asking that he be perpetually enjoined from making sale of the 6 acres and 16 poles tract of land, and that the title thereto in fee simple be adjudged to be vested in the children of Thomas Campbell and his present wife, Etta Campbell, pursuant to the terms and provisions of the last will of William Seekford. The prayer of the bill was granted.

The complainants in the circuit court, the appellees here, contended that the grantors in the deed of 1906 conveyed to William Seekford a fee simple title to the 6 acres and 16 poles tract of land, while the defendants in the trial court, the appellants here, maintained that the said deed conveyed the estate to William Seekford with remainder over to his wife, Mattie Seekford, if the said William Seekford died leaving no children. He left no children, therefore they contend that upon his death Mattie Seekford was vested with the fee.

A careful reading of the said deed plainly discloses that there is no limitation placed upon the estate conveyed to William Seekford. The estate is granted to him in general terms. In addition to this, in the habendum clause he is granted the unlimited power to sell and convey the said 6 acres and 16 poles during his natural life.

It is observed that no gift to any children that might have been born to William Seekford and his wife was made in the deed.

Under Code, sec. 5149 (Michie), an estate granted in general terms carries the fee. The statute reads: "Where any real estate is conveyed, devised, or granted to any person without any words of limitation, such devise, conveyance or grant shall be construed to pass the fee simple or other the whole estate or interest which the testator or grantor had power to dispose of in such real estate, unless a contrary intention shall appear by the will, conveyance, or grant."

The appellants argue that this language in the habendum clause shows a contrary intent, making section 5149 inapplicable: "and in the event that the said William Seekford should die leaving no children, the property herein conveyed shall then be the property of Mattie E. Seekford, wife of the said William Seekford." They also contend that the express power granted William Seekford to sell and convey the said tract of land at any time during his natural life was surplusage, and that Code, sec. 5151 applies. That section reads: "Every limitation in any deed or will contingent upon the dying of any person without heirs, or heirs of the body, or issue, or issue of the body, or children, or offspring or descendant, or other relative, shall be construed a limitation, to take effect when such person shall die not having such heir or issue, or child or offspring, or descendant, or other relative, as the case may be, liying at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise plainly declared on the face of the deed or will creating it."

It is to be noted that section 5151 does not contemplate a limitation wherein an express and unlimited power to the grantee or donee to dispose of the estate during his lifetime is created in the deed or will. If we apply the statute we would be compelled to disregard the provision which grants to William Seekford the absolute power to sell and convey the property. For that reason it would seem that the section has no application in such cases.

If William Seekford had died leaving children surviving him they would have taken no estate for no gift was made them. His widow would have taken no estate because the...