Lewis v. Henry's Ex'rs
| Decision Date | 16 March 1877 |
| Citation | 69 Va. 192 |
| Court | Virginia Supreme Court |
| Parties | LEWIS v. HENRY'S ex'ors & als. |
I. Testator by his will gives land and stock upon it to his son H. By the 3d clause of his will, he gives to his five daughters, by name, the balance of his land, his daughter M to account to the rest of his daughters, in the sum of $3,500, and his daughter L $5,200, these being the amounts paid for homes for them. By the 4th clause he gives to his son H and his five daughters the balance of his personal property to be equally divided among them--HELD:
1. The advancements to M and L are only to be brought into the division of the real estate.
2. The personal estate embraced in the 4th clause is to be equally divided among the son H and the five daughters.
II. Testator, some months after making his will, makes a codicil to his will in which he says: If my estate should have to pay the debt, or any part thereof in the lawsuit brought by M's adm'r against Dr. B's estate, I hereby will and direct that my daughter M is to forfeit all interest in my estate, and is to inherit nothing under my will. He was the surety of B, who had been the husband of M, and was not sued, but settled the debt and took an assignment of it. After his death in a suit by his executors, his daughter brings the money into court, and tenders it--HELD:
1. The condition created by the codicil is a condition subsequent and the estate not having paid the debt, but M tendering the money to pay it, her interest in her father's estate is not forfeited.
III. As to the portion of the property given to his daughter S testator directs that his executors shall hold it in trust and manage and deal out the proceeds thereof for her and family as their necessities may require--HELD:
The executors, as trustees of S, may use the proceeds arising from sales and collections, as well as from rents and profits, as in their discretion the necessities of said S and family may require. They may give her possession of the property, or they may purchase for her such property as they may deem necessary for the use of herself and family, or to enable her to cultivate or improve the real estate devised to her; and to erect suitable buildings upon the real estate, so as to enable her to reside upon and cultivate it. And they will not be responsible for any personal property which in their discretion they may put in the possession of said S and which may be wasted or lost while in her possession. And they may sell and use or reinvest as in their judgment the necessities of said S and her family may require.
In October 1872 Edward W. Henry, Sen., of the county of Charlotte, departed this life, having made his will and a codicil thereto, which was duly admitted to probate in the county court of Charlotte, and Edmund W. Henry, Jr. and James T. Buster qualified as executors thereof.
By the second clause of his will the testator gave to his son, Edward W. Henry, a tract of land which is set out by metes and bounds, for his life; and at his death it was to be divided among his children by his then present wife. Testator gave also to his said son all testator's stock of horses, mules, hogs and sheep, all his cattle, except two cows and calves, which he gave to his daughter, C. Catlett, and the furniture in the room occupied by the said Edward, & c.
The third and fourth clauses are as follows:
3d. I give and bequeath to my daughters, M. R. Lewis, S. J. Armistead, Lucy D. Leighton, Celine Catlett and A. B. Smith, and their heirs, the balance of my landed property, to be equally divided between them; but my daughter Lewis is to be accountable to the rest of my daughters in the sum of $3,500, and my daughter Leighton, $5,120, these being the amounts paid for homes for them.
4th. I will and direct that all my household and kitchen furniture, not before willed, silverware, all money in hand due me, bonds, accounts and everything which may be due me from any source, crops, and any personal property which may herein be omitted, shall be equally divided between my son E. W. Henry and my five above named daughters.
By the fifth clause of his will, as to that portion of his property willed to his daughter, A. B. Smith, the testator directed that his executors shall hold it in trust, and manage and deal out the proceeds thereof, for her and her family, as their necessities may require.
This will was written by the testator himself, and bears date on the 21st of April 1871. The codicil bears date on the 15th of November 1871, and is as follows: If my estate should have to pay the debt, or any part thereof, in the lawsuit brought by Miller's administrator against Dr. Wm. B. Lewis' estate, I hereby will and direct, that my daughter M. R. Lewis is to forfeit all interest in my estate, and is to inherit nothing under this my will.
The bond referred to in the above codicil bears date the 16th of November 1858. It was executed by Lewis, with E. W. Henry as his surety, to George M. Y. Miller, for the sum of one hundred and ninety-five dollars. Dr. Lewis having died, and as it would seem without sufficient assets to pay his debts, an action on this bond was brought by Miller's administrator against Mrs. Lewis, as executrix of Dr. Lewis, and a judgment was recovered against her prior to the 15th of April 1872. No action was instituted upon the bond against Mr. Henry; but after the judgment was rendered against Mrs. Lewis, he settled with the counsel of the plaintiff, by giving him a receipt for the amount upon a claim which he had upon an estate in the hands of the counsel of Miller, as administrator, and the bond was assigned by Miller's administrator to E. W. Henry, Sr., without recourse.
In January 1873 the executors of E. W. Henry, Sr., and E. W. Henry, Jr., in his own right, instituted a suit in equity in the circuit court of Charlotte county, against M. R. Lewis and the other daughters of E. W. Henry, Sr., and the husbands of those who were married; in which they set out the foregoing facts and asked the advice and direction of the court in the administration of their testator's estate. The points on which they asked for instruction were: 1st. Whether upon the facts of the case Mrs. Lewis had, under the codicil, forfeited her share of the testator's estate. 2d. Whether the charges made against Mrs. Lewis and Mrs. Leighton in the third clause of the will were to be considered as affecting the division of the personalty directed in the fourth clause. 3d. Whether, under the powers vested in the executors in the fifth clause of the will, they were authorized to use the principal of the fund, or only the interest and profits thereof, for the support and maintenance of Mrs. A. B. Smith and family. And if she should wish to reside on the land devised to her, to what extent might the money coming to her be used in improving by building, & c., on said land, or any other land selected for her home.
Mrs. Lewis alone answered the bill. She insisted, that the case had not occurred on which the forfeiture of her interest in her father's estate was to occur, he never having been sued for the debt; and if it was paid, was paid by him in his lifetime, though in fact he had paid no money. But if the codicil created a forfeiture, it was upon a condition subsequent; and the facts must come precisely up to the terms of the condition, which was not the case here, and moreover, it lay in compensation; and she brought into court the amount of the debt, and tendered it in satisfaction thereof.
On the question of the charges made in the third clause of the will, she insisted they were to be confined to the real estate disposed of in that clause.
The cause came on to be heard on the 2d of April 1873, when the court held, that the event had occurred upon which the testator, by the codicil to his will, provided for the forfeiture of Mrs. Lewis' interest in his estate, and she had no interest therein beyond the advancements to her by the testator in his lifetime; and that the portion which had been willed to her passed to the other children mentioned in the third and fourth clauses of the will, and there was no intestancy thereof. And the court further held, that Mrs. Leighton could take no further interest in the estate, real or personal, until the other daughters should be made equal to her by receiving the like sum of $5,120.
And the court held, that by the 5th clause of said will the said testator did not intend to change the bequest to his daughter, Ada B. Smith, but only to place it under the control and management of his executors as trustees for her sole use and benefit; and that, in exercising the said trust they are to deal out the proceeds arising as well from sales and collections as from the rents and profits, according as in their discretion the necessities of said Ada B. Smith and family may require; and that the said trustees are at liberty to give the said Ada B. Smith the possession and use of any and all of the said property, if in their discretion the necessities of herself and family require it, or they may purchase for her such property as they may deem necessary and proper for the use of herself and family, or to enable her to cultivate or improve the real estate devised to her; and they are at liberty, in the exercise of the same discretion, to erect suitable buildings upon the said real estate, so that she may be enabled to reside thereon and to cultivate the same. And any personal property which, in the exercise of their discretion, they may place in the possession of the said Ada B. Smith, and which may be used, wasted or lost while in her possession, shall not be chargeable to them, the said trustees, by reason thereof, but their responsibility therefor shall...
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