Hunter v. First Nat. Exchange Bank of Roanoke

• Citation: 96 S.E.2d 104,198 Va. 637
• Decision Date: 21 January 1957
• Docket Number: No. 4597,4597
• Parties: CHARLES EVANT HUNTER, IN HIS OWN RIGHT, ETC., ET AL. v. THE FIRST NATIONAL EXCHANGE BANK OF ROANOKE, EXECUTOR, ETC., ET AL. Record
• Court: Supreme Court of Virginia

Page 104

96 S.E.2d 104

198 Va. 637

CHARLES EVANT HUNTER, IN HIS OWN RIGHT, ETC., ET AL. v. THE FIRST NATIONAL EXCHANGE BANK OF ROANOKE, EXECUTOR, ETC., ET AL.

Record No. 4597.

Supreme Court of Appeals of Virginia

January 21, 1957.

Leonard G. Muse (Charles D. Fox, Jr., Evans B. Jesse, T. L. Plunkett, Jr.; Woods, Rogers, Muse & Walker and Strickler, Plunkett & Strickler, on brief), for the appellants.

Joseph Wysor Smith and A. Linwood Holton, Jr., for the appellees.

JUDGE: BUCHANAN

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

This suit involves the construction of the will of Dr. Herman E. Jones, particularly paragraph 3 thereof. It was brought by The First National Exchange Bank of Roanoke, as executor of the will of Eva Y. Jones, who was the wife of Dr. Jones, and the principal issue was the amount due the estate of Mrs. Jones under paragraph 3, which is as follows:

'(3) I give, devise and bequeath unto my beloved wife, Eva Jones, for and during her natural life, the residue of my estate, of whatever consisting and wherever located, all rents and profits derived therefrom to be hers absolutely; and in the event the said rents and profits shall, during any calendar year, fail to provide an income of at least Six Thousand ($6,000.00) Dollars, then and in that event the principal of my estate may be encroached upon at the end of said calendar year for the purpose of paying to my said wife the difference between the income for said year and the sum of Six Thousand ($6,000.00) Dollars.'

Dr. Jones, who resided in Roanoke and had practiced medicine there for many years, died on August 7, 1933, at the age of 73. His wife died February 22, 1954, at the age of 88.

Dr. Jones' will was dated November 3, 1931. The first two paragraphs directed payment of burial expenses and debts. Following paragraph 3 it provided that after the death of his wife, or at his death if she died first, eight money legacies totaling $8,750 were to be paid to named legatees, after which the income from his entire estate should go to his two sisters for their lives and after their deaths the corpus to his three named nephews and a niece. Mrs. Jones was appointed executrix and trustee of the will, and Charles Evant Hunter, a nephew and one of the appellants, was appointed in her place at her death. For the purpose of the will the estate was left in trust to the trustee with full power to sell and convey, but only with the consent of the wife.

The will of Mrs. Jones was dated August 1, 1952. After making certain bequests it gave the residue of her estate to Second Presbyterian Church of Roanoke. Her estate, consisting of tangible and intangible personal property, was appraised at $83,816.07 exclusive of 'the interest, if any, of Eva Yates Jones in the estate of her husband, H. E. Jones, deceased.'

The estate of Dr. Jones was appraised at $53,913.52, consisting of tangible personal property at $815, of which $400 was for household and kitchen furniture; money in bank, $443.52; accounts receivable, $1,750; bonds, $7,000; his residence property at $13,500; an office building in Roanoke at $30,000; and five lots at $405.

Mrs. Jones qualified as executrix of her husband's will on September 11, 1933. She filed with the Commissioner of Accounts her first settlement as executrix on January 15, 1935, showing receipts and disbursements to that date and a cash balance on hand of $205.36. Total receipts for the period were $4,210.72, including $1,884 rent on the office building. The disbursements were for liabilities of the estate and $600 to herself on the bequest to her in paragraph 3 of the will. Her next settlement was made September 11, 1935. The receipts for that period were $1,667.01, which included $619.30 advanced by her to the estate and all of which was disbursed for upkeep and taxes on the real estate. At the bottom of that settlement was this:

                'MEMO
                "Amount due from Estate for Year 1933-1934 to Eva Jones
                  per Will .............................................. $6,000.00
                  Less Amount Drawn ........................................ 600.00   $5,400.00
                Amount due from Estate for Year 1934-1935 to Eva Jones
                  per Will ............................................... 6,000.00
                  Plus Amount Advanced ..................................... 619.30    6,619.30
                                                                          ---------------------
                  Total Amount Due Eva Jones ....................................... $12,019.30
                Amounts withdrawn, Bonds appraised value ................. 7,000.00    7,000.00
                                                                          ---------------------
                                                                                     $5,019.30"
                

From September 11, 1935, through September 11, 1953, which was a few months before she died, Mrs. Jones filed before the Commissioner of Accounts each year a statement and settlement of her accounts as executrix, all of which were duly approved and recorded. In each annual settlement she set forth the source and amount of receipts and the amount and object of the disbursements. At the end of each was a memorandum like that above quoted in which she charged the estate with $6,000 as due her under the will and with the total due her at the end of each accounting period. She also showed for each year the excess of receipts over disbursements and accumulated that excess at the end of the accounting period. She showed as receipts the money in bank, proceeds from the sale of all tangible personal property, from accounts receivable and the bonds. She failed to include the sale of the five lots in 1946 for which she was charged $700 in the final decree.

Her final settlement made September 11, 1953, showed the amount due her under the will for the 20-year period from 1933 to 1953 to be $113,022.20, and the excess of receipts over disbursements for that period to be $16,934.68. The disbursements included only $600 as paid her under the provision of the will in 1935.

A hearing in the suit was had at which some evidence was presented to the court ore tenus and afterwards the decree appealed from was entered finding to be due the estate of Eva Y. Jones from the estate of Herman E. Jones the sum of $95,387.52, ascertained by deducting from the amount due her under paragraph 3 of the will as shown by her settlements the amount of the excess of receipts over disbursements, plus the proceeds from the sale of the five lots. The decree held that a lien existed on the assets of the Herman E. Jones estate for the amount due and gave directions as to its collection.

The court was of opinion and so found in its decree that the intent of the testator seemed quite clear, 'that he desired his entire estate, income first, if it should be sufficient, and principal, if necessary, to be used to provide an income of $6,000.00 annually for his wife, Eva Y. Jones, regardless of her needs. This right being given, the only requirement necessary to effectuate it was that it be exercised by his wife;' further, that she accepted the benefits provided for her in the will and the amount due her was a charge against the assets of her husband's estate and was not barred by the statute of limitations.

The appellants assigned error to this construction of the will. Their contention is thus expressed in their brief:

'It is clear that Dr. Jones meant for his wife to have an annual income from his estate of at least $6,000.00 if she saw fit to exercise the privilege of invasion, but if she did not so elect and take, when it was her privilege to do so, so much as was left in the corpus at the end of each calendar year would continue to be his estate, and when she died all that remained in the corpus would go to the remaindermen under his will.'

The object in construing a will, as has often been said, is to ascertain the intent of the testator as expressed in the words of the will as used by him; i.e., what he meant by what he wrote, aided, if needed, by the facts and circumstances existing when the will was written. 20 Mich. Jur., Wills, § 77, p. 243; Pitman, et al. v. Rutledge, et al., 198 Va. 567, 95 S.E.2d 153.

The testator and his wife had no children and it is conceded that she was the first object of his bounty. They lived together in the home which was part of his estate. The first two paragraphs of his will, as stated, directed payment of his debts and burial expenses. The third paragraph gave to his wife the residue of his estate, 'of whatever consisting and wherever located,' all rents and profits therefrom to be hers 'absolutely'; and if...