Hester v. Sammons

• Decision Date: 09 September 1938
• Citation: 171 Va. 142
• Parties: FRANK S. HESTER v. BESSIE ANGELL SAMMONS, ET ALS.
• Court: Virginia Supreme Court

Page 142

171 Va. 142

FRANK S. HESTER v. BESSIE ANGELL SAMMONS, ET ALS.

Supreme Court of Virginia, Staunton.

September 9, 1938.

Present, Holt, Hudgins, Gergory, Eggleston and Spratley, JJ.

1. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — Last Sentence Indication of Legislature's Intent to Liberalize. — The addition of the last sentence to section 5238 of the Code of 1936, providing that the rule, as to when the issue of a devisee or legatee shall take the estate, shall apply to a joint devise or bequest when one or more of the beneficiaries have died in the lifetime of the testator, indicated a purpose on the part of the legislature to liberalize the statute and to apply it to every possible contingency which then suggested itself.

2. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — Issue Take as Substituted Legatees. — Under section 5238 of the Code of 1936, providing when the issue of a devisee or legatee shall take the estate, such issue take as substituted legatees of the deceased ancestor just as if their names had been inserted in the will by the testator himself.

3. WILLS — Lapsed Legacies and Devises — Death of Beneficiary before Testator but after Execution of Will. — Where a beneficiary of a will predeceases the testator but the will is written during the lifetime of the beneficiary, the provisions in favor of the beneficiary are not void ab initio, and the case presents the question of a lapsed legacy and not a void legacy.

4. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — "Estate" Covers Property of Every Kind. — The word "estate," as used in section 5238 of the Code of 1936, relating to when the issue of a divisee or legatee take the estate, covers every property of every kind which the decedent might have had.

5. WILLS — Legacies and Devises — Deferred Legacies — To Be Treated as Ordinary Legacies. — A testator may direct that a legacy be paid at the end of a year or in deferred instalments, but these deferred legacies are none the less ordinary legacies and are to be treated as such.

6. WILLS — Legacies and Devises — Deferred Legacies — Passing through Interposition of Trustee. — Deferred legacies are good whether they pass directly through the executor or through the interposition of a trustee.

7. WILLS — Construction — Wishes of Testator to Be Followed. — The wishes of a testator, as gathered from the will itself, are to be followed, if they violate no public policy or no positive rule of law.

8. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — For Whose Benefit Intended. — Section 5238 of the Code of 1936, relating to when the issue of a devisee or legatee take the estate, is not for the benefit of the dead legatee but is intended to safeguard the interests of those who take under such legatee.

9. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — Liberal Construction. — Section 5238 of the Code of 1936, relating to when the issue of a devisee or legatee take the estate, is in furtherance of what may fairly be presumed to have been the intention of the testator, and, in order to effect its object, it should be construed liberally.

10. WILLS — Death of Legatee — Section 5238 of the Code of 1936 — Application to Gift to Be Paid in Instalments by Trustee — Case at Bar. — In the instant case, a suit involving a lapsed legacy, testator bequesthed to his executor and trustee money, the income from which, together with a part of the principal, was to be paid each month to his sister. The sister predeceased the testator and the legacy was claimed by her distributees, under section 5238 of the Code of 1936, as against the residuary legatee.

Held: That the gift was a legacy, and under section 5238 of the Code of 1936, the distributees of the sister were entitled to recover it, and the fact that the money was to be held and paid out by an executor and trustee, rather than an executor, was immaterial.

Appeal from a decree of the Hustings Court of the city of Roanoke. Hon. J. L. Almond, Jr., judge presiding.

The opinion states the case.

Kime & Hoback, for the appellant.

Hall, Buford & Carter, for the appellees.

HOLT, J., delivered the opinion of the court.

This cause deals with a lapsed lagacy.

The testator, William R. Hester, an unmarried man, had lived in Salem, Virginia. Later he moved to Philadelphia and there executed his will of date July 22, 1934. He died on July 29, 1936, and this will was admitted to probate in the clerk's office of the Circuit Court of Roanoke county on August 10, 1936. One of the beneficiaries under it was a sister, Mary Bell Angell. This beneficiary predeceased her brother, having died in May, 1935. She left, as her distributee surviving, a daughter, Bessie Angell Sammons, and a daughter, Callie Angell Ecklund. There was also a son, John H. Angell, who survived his mother but who has since died. He left a widow, Mrs. John H. Angell, and two children, John H. Angell, Jr., and Wilda Angell.

William R. Hester in his will and in its ninth clause made this provision for his sister, Mary Bell Angell:

"I give and bequeath to my executor and trustee, hereinafter named, the sum of ten thousand dollars ($10,000), in trust, nevertheless, to keep the same invested, with full power, in its discretion, to change the investment or investments from time to time, and to pay the net income thereof to my sister, Mary Bell Angell, of Houston, Texas, and to provide for the payment in cash to my said sister, Mary Bell Angell, out of the principal, the sum of two hundred and fifty dollars per month until the said sum of ten thousand dollars is exhausted, it being my intention and express direction that the said sum of two hundred and fifty dollars ($250) per month shall be paid to my said sister, Mary Bell Angell, each and every month, together with the net income derived from the remainder of the principal in the hands of my trustee."

The children of Mary Bell Angell and the widow and children of her deceased son, John H. Angell, contend that they are entitled to this $10,000, and in support of their claim cite us to Code, section 5238, which reads:

"When issue of devisee or legatee to take estate. — If a devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will. This rule shall also apply to a devise or bequest to several jointly, one or more of whom die in the lifetime of the testator."

Frank S. Hester, a nephew of William R. Hester, contends that he, as residuary legatee of his uncle, is as such entitled to said $10,000. The twelfth clause of the will reads:

"All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever nature and wheresoever situate, I give, devise and bequeath, unto my nephew, Frank S. Hester, of Salem, Virginia, absolutely."

The original Virginia statute on this subject appears in the Acts of 1812, chapter 19. It provides that the legacy should pass "to the heirs, devisees, distributees, etc., of such devisee or legatee, in like manner, to all intents and purposes, in law and in equity, and subject to like debts, charges, liabilities and conditions in all respects, as if such devisee or legatee had survived the testator and had then died intestate."

It appears in the Code of 1819, chapter 104, section 5, in this form:

"5. Whensoever any estate of any kind, shall or may be devised or bequeathed by the testament and last will of any testator or testatrix, to any person being a child or other descendant of such testator or testatrix, and such devisee or legatee shall, during the lifetime of such testator or testatrix, die, testate or intestate, leaving a child or children, or one or more descendants of a child or children, `who shall survive such testator or testatrix;' in that case, such devise or legacy, to such person so situated as abovementioned, and dying in the lifetime of the testator or testatrix, shall not lapse; but the estate so devised or bequeathed, shall `vest in such child or children, descendant or descendants of such legatee or devisee, in the same manner as if such legatee or devisee had survived the testator or testatrix, and had died unmarried and intestate.'"

In the Code of 1849, chapter 122, section 13, it appears in this form:

"If a devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done, if he had survived the testator, unless a different disposition thereof be made or required by the will."

It again appears unchanged in the Code of 1887, section 2523, and reappears in our present Code with this addition:

"This rule shall also apply to a devise or bequest to several jointly, one or more of whom die in the lifetime of the testator."

While this addition does not bear directly on the issue here, it does indicate a purpose on the part of the Legislature to liberalize the statute and to apply it to every possible contingency which then suggested itself.

In its original form, the legacy did not pass directly to the issue of the deceased legatee but was regarded as a part of his estate and subject to his debts. Now the issue takes as the substituted legatees of the deceased ancestor just as if their names had been inserted in the will by the testator himself. An editorial discussion of this subject appears in 5 Va. Law Register, at p. 321.

These distributees of Mrs. Angell take, just as they would have taken had their names been inserted in the ninth clause of said will in her room and stead, and, of course, subject to the conditions under which she would have taken had she s...