Hall v. Palmer

• Decision Date: 22 January 1891
• Court: Virginia Supreme Court
• Parties: Hall . v. Palmer.

12 S.E. 618

87 Va. 354

Hall .

v.Palmer.

Supreme Court of Appeals of Virginia.

Jan. 22, 1891.

Wills—Construction—Repugnancy.

Testator declared, "I give and bequeath to my five daughters * * * two-thirds of my estate, * * * to be equally divided between them, " and afterwards directed that the interests of two of them should be held by his executor "for the sole use and benefit of them during their natural life, and, at their death, the balance, if any, to their children." Held, that the two daughters took an estate in fee-simple absolute, and the limitation over was void for repugnancy.

Guy & Gilliam and W. R. Barksdale, for appellant.

John W. Riely and Henry Edmunds, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Halifax county rendered on the 16th day of February, 1889. In a suit for the partition of a tract of land in the said county of Halifax, the true construction of the will of the late Philip Johnson, who died in 1849, was drawn in question. The sections or clauses of the said will drawn in question by this appeal are the third and eighth clauses of the said will. The third clause is as follows: "I give and bequeath to my five daughters, as follows, viz., Nancy H. Gerry, Judith Palmer, Mary C. Taylor, Susan J. Hall, and Frances Maria Auner, two-thirds of my estate now in possession, to be equally divided between them." The eighth clause is as follows: "I will and direct that the whole of Susan J. Hall's and Frances Maria Auner's interest in my estate shall be held by my executor, his heirs, executors, and administrators or assigns, for the sole use and benefit of them during their natural life, and, at their death, the balance, if any, to their children." Susan J. Hall died, leaving her husband and one son her surviving. The son lived to be 20 years, and died, his father him surviving. The father married a second wife, and died, leaving her surviving, and by his will devised the land in question to his said second wife, the appellant here. This controversy has arisen between the widow of Elijah C. Hall, the said appellant, and the heirs at law of Susan J. Hall, his first wife, and the devisee under the will of Philip Johnson, and the question to be decided between them is what estate did the said Susan J. Hall take under the will of her said father, set forth above? The learned judge of the circuit court held" that Susan J. Hall took an absolute and fee-simple estate in the property given to her under the will of Philip Johnson, and that the gift over under the eighth clause of the said will of 'the balance, if any, ' is void, both for repugnancy and uncertainty, and that the land in the bill and these proceedings mentioned passed at the death of her husband, Elijah C. Hall, (who had an estate for life therein as tenant by the curtesy,) to the heirs at law of the said Susan J. Hall." Whereupon the appellant. Prudence E. Hall, the widow and devisee of the said Elijah C. Hall, applied for and obtained an appeal to this court.

We think the decree of the circuit court cited above is plainly right. It sets forth what is the plain and explicit direction of the will, and no other construction of that instrument is reasonable upon the face of it, and it is in accordance with the manifest intention of the testator to be gathered from the words employed to express his intention, and it is not necessary to call to our aid any decisions or precedents in such a case. And, as was said by Judge Richardson in Carr v. Effinger, 78 Va. 206: "We should remember, as a great truth, the remark made by Judge Pendleton in Kennon v. McRoberts, 1 Wash. (Va.) 131, and quoting from able judges who had gone before him, ' that cases on wills serve rather to obscure than illuminate questions of this sort; that cases on wills may guide as to general rules of construction, but, unless a case be in every respect directly in point and agree in every circumstance, it will have little or no weight with the courts, which always look upon the intention of the testator as the polar star to direct them in the construction of wills.'" Yet the language of courts, when they speak of the prevailing intention as the " governing principle, " must " be understood with this important limitation: That here, as in other instances, the judges submit to be bound by precedents and authorities in point, and endeavor to collect the intention upon grounds of a judicial nature,...