May v. Legatees

• Decision Date: 20 November 1913
• Citation: 79 S.E. 1026,115 Va. 617
• Court: Virginia Supreme Court
• Parties: MAY et al. v. SHERRARD'S LEGATEES et al.

79 S.E. 1026

(115 Va. 617)

MAY et al.

v.SHERRARD'S LEGATEES et al.

Supreme Court of Appeals of Virginia.

Nov. 20, 1913.

1. Wills (§§ 194, 751*)—Revocation—Bequests and Devises Subject to Ademption.

A testatrix gave a dwelling house and lot to be sold and equally divided between two grandnephews. In another clause she provided that, in the event of the death of one of such grandnephews, she willed one-half of such house when sold to a grandniece. A codicil stated that she had sold such house, and invested the proceeds in two other houses and lots. Held, that the gift to the grandnephews, whether treated as a gift of the house and lot itself, or as a gift of the proceeds of a sale thereof, was a specific legacy or device, and in either case was revoked by the sale of the house and lot by the testatrix In her lifetime.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 481-489, 1938; Dec. Dig. §§ 194, 751.*]

2. Wills (§ 750*)—Legacies—Specific Legacies.

As general rule, a legacy will not be con-stnied as specific unless it appears clearly to have been so intended, and whether or not H is specific depends wholly upon the language of the will.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1936, 1937; Dec. Dig. § 750.*]

3. Wills (§§ 194, 767*)—Revocation—Disposition of Subject by Devise or Legacy.

That a testatrix, who gave a house and lot to be sold and equally divided between two grand-nephews, and who thereafter sold such house and lot and invested the proceeds in part in other real estate, stated in a codicil to the will that she had sold such house and lot and invested a portion of the proceeds in other real estate, did not prevent a revocation or ademption of the devise or bequest, since ademption depends upon a rule of law, and not upon the intention of the testator.

[Ed. Note..—For other cases, see Wills, Cent. Dig. §§ 481-489, 1986-1989; Dec. Dig. §§ 194, 767.*]

4. Wills (8 461*)—Construction—Intention of Testratrix.

A testatrix, after giving a $600 certificate in a corporation to be equally divided between two grandnephews, stated that she had also a $1,400 certificate in the same corporation on which no interest had been drawn, and added: "See that it is drawn by check. That I wish to go to." Held, that the provision as to this last-mentioned certificate was so vague and indefinite that it could not be determined with any degree of certainty what the testatrix meant, and hence it passed under the residuary clause, since there was no such manifest or clear intent to give it to the legatees of the $600 certificate as would authorize the court to substitute "too" for "to, " or to give "to" the meaning of "too."

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 980; Dec. Dig. § 461.*]

5. Wills (§ 461*)—Construction—Intention of Testatrix.

Where a tetsator's intention is manifest from the whole will and surrounding circumstances, but is endangered and obscured by inapt and inaccurate modes of expression, the language used will be subordinated to the intention, and to give effect to such intention one word may be substituted for another; but words cannot be rejected, supplied, transposed, or substituted, unless the testator's intention Is clear or manifest from the context and the surrounding circumstances.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 980; Dec. Dig. § 461.*]

Appeal from Corporation Court of Staunton.

Suit by Maria L. Sherrard's executor against Maria L. Sherrard's legatees and others. From the judgment, J. H. May, guardian ad litem of certain defendants, and others appeal. Affirmed.

Quarles & Pilson, of Staunton, for appellants.

Timberlake & Nelson, Robertson & Robertson, and W. II. Landes, all of Staunton, for appellees.

BUCHANAN, J. [I] The principal object of this suit, which was brought by the executor of the last will and testament of Mrs. Maria L. Sherrard, was to have a construction of that instrument. The will is one of considerable length, containing 20 clauses and a codicil. The controversy here, however, is only as to the construction to be placed upon the second clause and a portion of the codicil. The provision of the second clause is as follows:

"Second—I give, bequeath and devise my dwelling house and the lot on which the same stands, situated on North New street, in the city of Staunton, Virginia, and now known by the street number of 307 North New street, to be sold and equally divided between Tate Boys Sterrett, of Hot Springs, Virginia, and John Bishop of Charlestown, West Virginia, great nephews of mine, and sons of Maria B. Sterrett of Hot Springs, Virginia; and Margaret Bishop of Charlestown, West Virginia."

The only other portions of the will which, it is claimed, throw any light upon the meaning to be given the clause quoted are contained in the fifth clause, which, after making certain bequests to Margaret Bishop, a greatniece of the testatrix, provides that, "in the event of the death of her brother, John Bishop, I will one-half of the 307 North New street house, when sold, to pass in fee simple absolute to Margaret Bishop of Charlestown, West Virginia;" and the codicil, which states, among other things, that the testatrix had sold the house No. 307 North New street for $3,500, and invested $2,-050 thereof in two houses and lots in the city of Roanoke, which were worth $3,000 at the time the codicil was written. The trial court held that the devise or bequest made in the second clause was specific and not demonstrative, and that by the sale of house No. 307, mentioned therein, in the lifetime of the testatrix the gift made by that clause was adeemed or revoked, and that the devisees or legatees named therein took nothing under it.

The distinction made between specific and demonstrative gifts is well understood; but it is sometimes difficult to determine whether a particular gift belongs to the one class or the other. Definitions of these two kinds of legacies are found in the decisions and text-books, varying somewhat in phraseology, but generally substantially the same" in meaning.

Mr. Pomeroy, in his work on Equity Jurisprudence, which is relied on largely by the appellants to sustain their contention that the legacy in question is not specific but demonstrative, defines a specific legacy as "a bequest of a specific article of the testator's estate, distinguished from all others of the same kind, as, for example, a particular horse, or piece of plate, or money in a certain purse, or chart, a particular stock in the public funds, a particular bond or other instrument for the payment of money." Volume 3 (3d Ed.) § 1130. He defines "demonstrative legacies" as "bequests of sums of money, or of quantity or amounts having a pecuniary value and measure, not in themselves specific, but made payable primarily out of a particular designated fund or piece of property belonging or assumed to belong to the testator." Same volume, § 1133.

The general rule is that a legacy will not be construed as specific unless it appears clearly to have been so intended (Corbin v. Mills, 19 Grat. [60 Va.] 438, 468), and that whether or not it is specific depends wholly upon the language of the will (3 Pom. Eq. Jur. § 1130).

Tested by these deiiuitions and rules of construction, to which class does the gift in question belong? The language of the second clause is, "I give, bequeath and devise my dwelling house and the lot on which the same stands" (describing it so that there could be no doubt about its location and identity) "to be sold and equally divided between" the beneficiaries named. Whether this be a gift of the house and lot itself, and the sale directed was merely for the purposes of partition between the devisees, as the appellee insists, or a gift of the proceeds or fund arising from the sale of the house and lot, there can be no question that the thing given is so described, pointed out, and identified as to distinguish it from all the other property of the testatrix. It is not a gift of a certain sum of money or other thing "payable primarily out of a particular designated fund or piece of property." There is nothing in the language of the clause or of the will which manifests any intent to give the persons named in that clause any particular sum, or amount, or quantity, to be paid primarily out of the proceeds of the sale of the house and lot, and, if for any reason that fund should fail, then to be paid out of the general estate; but, on the contrary, the gift is either of the house and lot, or it is a gift of the fund arising from the sale. If it be a gift of the house and lot, it is manifestly a specific devise; if it is a gift of the fund arising from the sale directed, it is equally specific as it seems to us. That the testatrix intended the gift made by that clause as specific, either of the house and lot, or of the fund produced by its sale, is emphasized and made clearer, if possible, by the fifth clause of her will, which provides: "That in the event of the death of her brother John Bishop" (one of the beneficiaries under the second clause) "I will one-half of 307 North New «treet house, when sold, to pass in fee simple to Margaret Bishop. * * *"

The conclusion that we have reached, that the gift in question is specific, and not demonstrative, is fully sustained by the case of King v. Sheffey, 8 Leigh (35 Va.) 614, in which the provision of the will construed was substantially the same as that now under consideration. In that case the testator, after having given to his wife one-third of the rents and profits of his Fincastle property for life, devised and bequeathed to the children of his son and daughter, Conally and Nancy Finley, "one-half of my personal property in the county of Washington aforesaid, also two-fifth part of the net proceeds of my estate in Fincastle aforesaid, which is to be sold at my beloved wife's death, at the discretion of my executors." He then gives two other fifths of the Fincastle property to Mitchell and wife, and the...