Irwin et al. v. Zane et al.

• Court: West Virginia Supreme Court
• Writing for the Court: JOHNSON.
• Citation: Irwin et al. v. Zane et al., 15 W.Va. 646 (W. Va. 1879)
• Decision Date: 15 November 1879
• Parties: Irwin et al. v. Zane et al.

15 W.Va. 646

Irwin et al.

v.Zane et al.

Supreme Court of Appeals of West Virginia.

Decided November 15, 1879.

1. The heir must not be disinherited, unless it is done by the express terms of the will, or by necessary implication.

2. When a man makes his will, the presumption, in the absence of evidence to the contrary, is that he intends thereby to dispose of his whole estate.

3. General words in a residuary clause will carry every estate or interest of the testator, which is not expressly, or by necessary implication, excluded from its operation.

4. A bequest of " all my lots or other ground not otherwise disposed of by will or deed," includes the reversion in a parcel of land, in which the testator had devised a life-estate to another by the same will.

5. Testator had given his son, Daniel, a life-estate in a certain lot of ground, and in the third clause of his will says:" I direct that all my stocks of whatever kind, and all my lots or other ground not otherwise disposed of by will or deed, including all ground or land owned by me and lying within the county of Belmont, in the State of Ohio, be sold by my executors, and out of the sales, or money thus raised, that all of my just and lawful debts be paid, and the residue after the payment of my just and lawful debts, as aforesaid, I give and bequeath to my daughter Indiana, wife of Aaron McSwords. Held:

The reversion in the ground devised to Daniel for life passed by the residuary clause in the will.

Appeal from and supersedeas to a decree of the circuit court of the county of Ohio, rendered on the 10th day of August, 1878, in a cause in said court then pend-ing, wherein Isaac Irwin, trustee for Daniel F. Zane, and Daniel F. Zane were plaintiffs, and C. Leander Zane and others were defendants, allowed upon the petition of said plaintiffs.

Hon. Thayer Melvin, judge of the first judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

At the March rules, 1878, of the circuit court of Ohio county, the plaintiffs filed their bill against C. L. Zane, Indiana McSwords, and others, heirs at law of Daniel Zane, deceased.

The bill alleges that Daniel Zane departed this life in the year 1860, leaving a will, which was duly admitted to probate, &c, a copy of which is exhibited with the bill. The plaintiffs further proceed to give a description of the particular tracts of land mentioned in the said will. The bill charges that the reversion of the tract of land, out of which the will gives to the plaintiff, Daniel Zane, a life estate, was not disposed of by said will, and as to such reversion the said testator died intestate.

The bill further alleges, that as the plaintiff, Daniel F. Zane, is one of the nine heirs at law of said Daniel, and that as the fee simple of one undivided ninth of said real estate, in which a life-estate was devised to him, descended upon him at the death of his father, that his life-estate as to the said one undivided ninth of said tract, was merged in the fee, and he became the owner in fee simple, as a tenant in common with the other heirs of his said father, the interest of the others, however, being subject to the life-estate of said plaintiff.

The bill further alleges that, there is a fund of $800.00, in the hands of D. C. List, receiver of the court, and a further sum of $2,000.00 in the hands of Isaac Irwin, trustee, which sums were paid by the city of Wheeling upon the condemnation of certain land included in the tract aforesaid, devised in trust for life to the plaintiff, Daniel F. Zane, and which part of said land was taken by said city for streets, and that the said fund occupies the same position, as the said tract of land so devised as aforesaid, and that by the non-disposition of the reversion in. said tract the plaintiff, D. F. Zane, is entitled absolutely to one-ninth of said sum.

The bill further alleges, that the rents and profits of said land and Zane's interest from the said fund, are entirely inadequate to the support of himself and family. He proceeds to allege why, in his opinion, the property should now be sold, and he be given his interest in money. He also alleges that the taxes are heavy, and he ought not to be compelled to pay all said taxes, and that large amounts of taxes are now in arrear.

The bill prays, that the fee simple in the said tract of land be sold, and that the proceeds of said sale, as well as the sum of money aforesaid, may be so divided that one-ninth part thereof may be decreed absolutely to the said Daniel F. Zane, and that a gross sum be decreed to said Daniel F. in lieu of his life-estate in the remaining eight-ninths thereof; or if it be the opinion of the court that the whole interest of the said Daniel is simply a lifeestate in the entire tract, then that the proceeds of such sale be divided so that a gross sum may be decreed to the said Daniel in lieu of such life-estate; that such orders and decrees shall be made as to protect the plaintiffs from paying more than a just proportion of the said taxes; and for general relief.

All the other heirs at law of the said Daniel Zane, deceased, were made defendants to the bill.

The only two clauses of the will, that can have any bearing upon the case attempted to be made by the bill, are as follows:

"Secondly I give and bequeath to my wife, Angeline P. Zane, in fee, in lieu of dower in my estate, the south undivided one-half of the tract called the homestead tract, the whole of which tract contains twenty-one acres, one rod, and 4-100, more or less; and the north undivided one-half of said homestead tract, including the" mansion house, in which I have so long lived, I give and bequeath to, to be held by him in trust, for the use and benefit of my son, Daniel Zane, for the term of his natural life, and the said is to pay or permit and suffer my son Daniel to take the rents, issues and profits thereof for his own use and benefit during his natural life.

"Thirdly I direct that all my stocks of whatever kind, and all my lots, or other ground not otherwise disposed of by will or deed, including all ground or land owned by me and lying in the county of Belmont, in the State of Ohio, be sold by my executors, and out of the sales or moneys thus raised, that all of my just and lawful debts be paid, and the residue after the payment of my debts, as aforesaid, I give and bequeath to my daughter Indiana, wife of Aaron McSwords."

There are only four clauses in the will, the first is: "I give and bequeath to my son, C. Leander Zane, and to my daughter, Oella Z. Cranmer, wife of Gibson L. Cranmer, jointly, the property lying and being situated on Zane's Island, known as the Marietta and Cincinnati and Hempfield railroad tract, containing twenty-three acres and thirty-two forty-three-ope-hundredths poles (23 acres, 32 43-100 poles) more or less in fee simple."

The last clause is as follows:" I do hereby constitute and appaint as the executors of this my last will and testament, Gibson L. Cranmerand C. Leander Zane, hereby authorizing them to make all deeds which they may deem necessary in the execution of this my last will and testament, and hereby requesting that my said executors shall not be required to give security for the execution and performance of their duties. I hereby revoke all former last wills and testaments."

The foregoing is all of the said will except the formal parts thereof.

On the 18th of June, 1878, Indiana McSwords filed her demurrer to the bill, in which demurrer the plaintiffs joined. For special grounds of demurrer she assigned in substance the following: First The will only gave Daniel F. Zane a lite-estate in the tract of land mentioned; and by the terms of said will he is entitled to nothing more. Second That the estate thus devised can be disposed of by the said Daniel and his trustee without the aid of a court of chancery. Third That under and by virtue of the third clause of the will, the defendant, Indiana McSwords, is alone entitled to the residuary fund arising from the sale therein ordered. At the same time the said defendant, Indiana McSwords, filed her answer to the bill, in which she insists upon the same points made in her demurrer.

The court rendered a decree sustaining the said demurrer; and the plaintiffs not desiring to amend their bill, the said bill was dismissed as to the defendant, Indiana McSwords, with costs.

From and to this decree an appeal and supersedeas were allowed.

Henry M. Russell, for appellants, cited the following authorities:

1 Eedf. Wills 428 note; Id. 434; 33 N. Y. 558; 79 Pa. St. 141; 14 Ves. 370; 8 W. Va. 15; 42 Barb. 578;

2 Wend. 13; 3 Rand. 191; 11 Gratt. 788; 3 Munf. 76;

3 Call 287; 13 Gratt. 128; Id. 136; 20 Wend. 456; 8 Ves. 12; 36 N. J. L. 460; 18 Gratt. 150; 2 Cow. 246.

Pendleton & Pendleton, for appellees, cited the following authorities:

2 Redf. Wills 442: 1 Wash. 111.

Johnson, Judge, delivered the opinion of the Court:

The question presented is: Should the demurrer to the bill have been sustained? The principal question raised by the said demurrer is: Did the reversion in the tract of land, in which a life-estate was devised by the will in the third clause thereof, pass to the said residuary legatee, Indiana McSwords? This is one of those cases involving the construction ol a will, where much light might be obtained from a knowledge of the circumstances surrounding the testator at the time the will was executed. The principle was recognized by this Court in Magers v. Edwards's adm'r et al, 13 W. Va. 822, that "to aid in the construction of a will evidence may be received and should be sought, of any facts known to the testator which may be reasonably supposed to have influenced him in the disposition of his property, and of all the surrounding circumstances at the time of making the will; but it after resorting to all these means, the intention of the testator in a particular clause cannot be ascertained with reasonable...