Hatcher v. Hatcher

• Citation: 80 Va. 169
• Parties: HATCHER v. HATCHER.
• Decision Date: 29 January 1885
• Court: Virginia Supreme Court

80 Va. 169

HATCHER v. HATCHER.

Supreme Court of Appeals of Virginia.

January 29, 1885

Argued at Wytheville, but decided at Richmond.

Appeal from decree of circuit court of Bedford county, entered 4th June, 1883, in the chancery cause wherein Robert H. Jeter executor of Julius H. Hatcher, deceased, and others were defendants, and James W. Hatcher and Laura, his wife, and Benjamin Noel and Florella, his wife, were complainants. The object of the suit was--first, to hold the estate of the testator, Julius H. Hatcher, deceased, bound to indemnify the plaintiffs for the loss of the slaves which had been specifically bequeathed to them, it being alleged that these slaves had never come to their possession under the will of their father, but were made free by the result of the war and that this loss, by emancipation, was a loss provided against by their father's will; and second, to have paid to them the value of the crops raised on the farm for the year 1865, which crops they claimed to be entitled to under the codicil.

The cause being heard, the circuit court decreed in favor of the plaintiffs on the first proposition, and from the decree the executor of Julius H. Hatcher obtained an appeal to this court.

Opinion states the facts.

Burks & Burks, for the appellants.

E P. Goggin, for the appellees.

OPINION

HINTON, J.

The question in this case arises upon the construction of the second clause of article 6th of the will of Julius H. Hatcher, deceased, which is in the following words:

" Also if anything should happen to the negroes named for Laura and Florella before they get fully in possession of them I wish said loss made up to each of them as I wish to make all my children equal in the division of my estate. I wish no difference to be made among them."

Now the first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. Smith v. Bell, 6 Pet. 75. But this intention must be collected from the words of the will, for the object of construction is not to ascertain the presumed or supposed, but the expressed intention of the testator, that is, the meaning, which the words of the will, correctly interpreted, convey. The expressed meaning being, in wills, as in other written instruments, in legal contemplation, equivalent to the intention. Shore v. Wilson, 9 Cl. & F. 525; Wootten v. Redd, 12 Gratt. 205. And in order the better to comprehend the scheme which the testator had in his mind for the disposition of his estate, the judicial expositor is permitted to place himself, figuratively speaking, in the very shoes of the person, whose will he is called on to construe, and with the aid of such extrinsic evidence as is admissible for the purpose, possess himself of the condition of the testator and his family and of such surrounding facts and circumstances as may be reasonably supposed to have influenced him in the disposition of his property. Wootten v. Redd, 12 Gratt. 205; Hooe v. Hooe, 13 Gratt. 245; Williamson v?? Coulter, 14 Gratt. 398. With the lights thus afforded him, he is prepared as well as it is possible for him to be, without letting in evidence of the testator's actual intention as contradistinguished from his written meaning, to declare, upon a careful examination and comparison of all parts of the will, what is the meaning of the words which the testator has seen fit to employ. Now here, the testator was a man possessed of a fair estate; with five daughters, for all of whom he desired to provide alike. He had already given to each of the three, who were married, two slaves; and of these the daughters had been in possession for several years. In March, 1858, he gives in articles 1, 2 and 3 of an instrument in writing, which is neither signed nor attested however, to each of these three married daughters, the same slaves of which he had put them in possession; and by articles 4 and 5 of the same instrument he gives as follows:

" Article 4th. I give to my daughter Laura [now Mrs. Hatcher, and one of the appellees], and the lawful heirs of her body Ellen and her increase and boy Ramsey, also the balance of property that may fall to her after my death in an equal division of the same.

Article 5th. I give unto my daughter Florella [now Mrs. Noell, and one of the appellees], and the lawful heirs of her body, Charlotte and her increase and boy Jimmy and the balance of property that may fall to her after my death in an equal division of the same."

And then by the first clause of article 6th he directs: " Should it not be done in my lifetime I wish given after my death to each of my daughters, Laura and Florella a good horse, bridle, saddle, cow and calf, bed and furniture, all of good quality, say No. 1." He had by the previous articles of the will given chattel property of the same kind to each of the married daughters. In September, 1864, he wrote upon the same paper another instrument, with the caption " Codicil to the above Will," and this instrument is duly executed and attested. The first and second articles of this codicil are as follows:

" Article 1st. I wish all my daughters jointly to enjoy the control and management of my property not devised at my death for their maintenance as long as the war lasts provided they make my present residence their home. If any of them think they can make better arrangements they are at liberty to do so, and take the property I have already devised them. Out of the proceeds of the farm, & c., I wish Laura and Florella to be allowed money to furnish necessary apparel. I also wish at the close of the war the property not already devised with the exception of the land and negroes, to be disposed of and divided equally among all my children then living and the heirs of such as may be dead. The negroes to be hired out with the exception of Nelly and Henry who I wish to remain on the farm to aid in supporting my daughters Laura and Florella while unmarried, it being my

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