Jones v. Brown, 770491

• Decision Date: 22 November 1978
• Docket Number: No. 770491,770491
• Citation: 248 S.E.2d 812,219 Va. 599
• Parties: Rose B. JONES et al. v. Charles E. BROWN, Individually, etc. Record
• Court: Virginia Supreme Court

Page 812

248 S.E.2d 812

219 Va. 599

Rose B. JONES et al. v. Charles E. BROWN, Individually, etc.

Record No. 770491.

Supreme Court of Virginia.

Nov. 22, 1978.

Howard I. Legum, Norfolk (Fine, Fine, Legum & Fine, Norfolk, on brief), for appellants.

Marc Jacobson, Norfolk (Charles E. Sizemore, Jr., Moss & Moss, Norfolk, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARMAN, Justice.

This is an appeal by four of the five heirs at law of Wade Benjamin Brown, Jr., deceased, challenging the trial court's construction of the testator's last will and testament. Charles E. Brown, decedent's remaining heir at law, individually and as Administrator, c.t.a., of the testator, is the appellee.

The facts are not in dispute. Wade Benjamin Brown, Jr., a resident of the City of Norfolk, died on July 30, 1976. His will, executed on December 1, 1971, was duly probated in the trial court on August 5, 1976.

The relevant provisions of the will read as follows:

"THIRD: I give, devise and bequeath all of my estate, both real and personal, and whatever kind and wheresoever situate, of which I may die seized or possessed, or to which I or my estate may be entitled at the time of my death, absolutely and in fee simple unto my wife, AGNES JOANNA BROWN, if she shall survive me.

"FOURTH: In the event my said Wife shall not survive me, then, in that event, I give, devise and bequeath, absolutely and in fee simple, all of my estate, both real and personal, and whatever kind and wheresoever situate, of which I may die seized or possessed, or to which I, or my estate, may be entitled at the time of my death, absolutely and in fee simple to CHARLES EDWARD BROWN."

When the will was executed, the testator was married to Agnes Joanna Brown. Subsequent to execution of the will, but prior to his death, the testator and his wife were divorced a vinculo matrimonii. The former wife survived the testator. While she was a party to the original suit, she did not appeal the chancellor's ruling that the devise to her was revoked under Code § 64.1-59 ^*, so this holding has become final.

The chancellor, following the rule adopted by a majority of our sister states where this same question has arisen, held that Charles E. Brown took the entire estate under paragraph "Fourth" of the will as though the testator's former wife predeceased him.

Here, as in the trial court, appellants contend that the devise to Charles E. Brown contained in paragraph "Fourth" of the will did not become effective because the express condition precedent to the devise, that Agnes Joanna Brown die before the testator, did not occur. Therefore, they argue, the testator died intestate as to his entire estate and the estate should be distributed in equal shares to the testator's five heirs at law.

The appellee argues that the trial court should be affirmed as only paragraph "Third", devising testator's estate to his former spouse, was revoked by virtue of Code § 64.1-59. This being so, he says, the devise in paragraph "Fourth" became effective as it was clearly the testator's intent that Charles Edward Brown inherit testator's entire estate if the devise to testator's wife lapsed or was revoked.

While the question presented is one of first impression in Virginia, the courts in our sister states have been presented with the same or similar questions and have emerged with conflicting views. Annot., 74 A.L.R.3d 1108 (1976).

One line of decisions holds that where the devise to a former spouse is barred as the result of divorce, a gift over on condition that the spouse predecease the testator will be literally construed and the gift over will not be effective where the former spouse survived the testator. See, e. g., In re Estate of Rosecrantz, 183 Wis. 643, 198 N.W. 728 (1924); In re Will of Lampshire, 57 Misc.2d 332, 292 N.Y.S.2d 578 (Sur.Ct.1968); Contra, In re Will of Sharinay, 58 Misc.2d 334, 295 N.Y.S.2d 502 (Sur.Ct.1968).

However, a majority of the other jurisdictions, although not always for the same reasons, have held the gift over to be effective. For example, the Supreme Court of Alabama, relying primarily on the testator's intent and the presumption against intestacy, held "that property which is prevented from passing . . . because of revocation by divorce should pass as if the former spouse failed to survive the decedent, unless a contrary intention is apparent from the provisions of the will." First Church of Christ, Scientist v. Watson, 286 Ala. 270, 272, 239 So.2d 194, 196 (1970).

The Supreme Court of Kansas, confronted with a devise to a former spouse barred by divorce, sustained a gift...