Moore v. Holbrook, Record No. 2238.

• Decision Date: 10 June 1940
• Docket Number: Record No. 2238.
• Citation: 175 Va. 471
• Parties: R. WALTON MOORE, ETC. v. HARRY M. HOLBROOK AND OTHERS.
• Court: Virginia Supreme Court

Page 471

175 Va. 471

R. WALTON MOORE, ETC. v. HARRY M. HOLBROOK AND OTHERS.

Record No. 2238.

Supreme Court of Virginia, Wythebille.

June 10, 1940.

Present, All the Justices.

1. WILLS — Estates or Interests Created — Gift in General Terms and of Life Estate with Power of Disposition Compared. — From a gift in general terms with a power of disposition, the implication of a fee is much more readily drawn than in the case where there is an express gift of a life estate to which is added the power of disposition. In the first case, although the power of disposition might seem to be a limited power, yet it will not be construed a life estate if any other reasonable construction can be made.

2. WILLS — Estates or Interests Created — Testator's Wish as to Disposition of Certain Articles on Legatee's Death — Case at Bar. — In the instant case, a suit to construe a will, the testatrix left all her "property both real and personal" to her husband, with a provision that he could "dispose of said property as he sees fit." Later in the will she mentioned a silver bread tray, a cut glass bowl, and some plates, stating that she wished a certain girl to have these, "provided my said husband still has them in his possession at his death."

Held: That the wish that the articles mentioned should go at her husband's death to a certain person did not manifest any intention on the part of the testatrix to limit or curtail the absolute estate she had already unqualifiedly given her husband in all of her property.

3. WILLS — Estates or Interests Created — Language Necessary to Limit Estate Previously Created. — The terms or language of a will necessary to rescind or cut down an estate previously created and given must be at least as clear and decisive as the terms or language by which the estate was previously created.

4. WILLS — Estates or Interests Created — Language Reducing Prior Estate in Fee to Life Estate. — If a prior estate in fee created by the language of a will is to be cut down to a life estate or taken away altogether by subsequent language it must be by express words or by compelling implication. It cannot be done by ambiguous or doubtful language.

5. WILLS — Construction — Language Showing Intent to Create Estate in Fee — Case at Bar. — In the instant case, a suit to construe a will, the testatrix left all her "property both real and personal" to her husband, with a provision that he could "dispose of said property as he sees fit." Later in the will she provided that should there be anything left after the death of her husband "I desire it to be given to the cemetery for the upkeep of our lot," and stated that she desired that a certain silver tray, a cut glass bowl, and some dishes should go to a certain girl, provided her husband still had them in his possession at his death.

Held: That the prime motive and dominant purpose of the testatrix was to give all of her possessions to her husband in fee.

6. WILLS — Estates or Interests Created — Remainders and Limitations over after Estate in Fee Are Void. — Wherever, by construction, an estate in fee is found to have been created by a will, all remainders and limitations over are necessarily void because repugnant to the fee.

7. WILLS — Construction — Effect to Be Given to Every Part — Rule Will Not Permit Engrafting Remainder on Fee. — The rule that in construing a will effect must be given to each and every part of it and conflicting provisions must be reconciled, if possible, in order to carry out the intention of the testator, will not be allowed to destroy a "canon of property" which forbids a testator to create a fee in the first taker and then attempt to engraft thereon a remainder of what might not have been consumed or otherwise disposed of by the owner of the first estate.

Appeal from a decree of the Circuit Court of Fairfax county. Hon. W. T. McCarthy, judge presiding.

The opinion states the case.

John S. Barbour and James Keith, for the appellants.

Caldwell C. Kendrick, Robert E. Lynch, James H. Simmonds and Ernest T. Gearheart, Jr., for the appellees.

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

Minnie B. Holbrook died leaving a last will and testament, which was written in her own hand. It was probated July 17, 1937, and is as follows:

"After all my just debts are paid, I will give and bequeath all my property both real and personal to my beloved husband Stockton S. Holbrook — All money due me from the government shall be his, and he is to put in claim for said money — One Liberty bond, I now hold is to be his, & he shall put in claim for said bond — He is to dispose of said property as he sees fit — If he chooses to sell it he may do so, in order he may be able to use it for his comfort. Should there be any thing left after his death I desire it to be given to the cemetery for the upkeep of our lot — I desire our names be put on the monument on our lot. The name of our infant child buried there also to be cut on said monument — The names will be found in the family Bible upstairs.

"There is a Silver bread tray, a cut glass bowl, & 1 half dozen side dishes & plates given me by Mrs. Ethel Wiley. I wish her daughter Dorothy Roland to have these, provided my said husband still has them in his possession at his death, my husband Stockton S. Holbrook is to be sole executor — No administrator is to be appointed. He shall handle all affairs — This is my own hand-writing.

"Given under my hand this 10th day of September, 1929. Minnie B. Holbrook."

The testatrix was survived by her husband, Stockton S. Holbrook, and several brothers and sisters, her heirs at law. Her only child had predeceased her and was buried in a cemetery lot which had been purchased from the Fairfax Cemetery Association.

Two months after the death of the testatrix, her husband, Stockton S. Holbrook, died without having disposed of the estate during his lifetime, but he left a will which was duly probated, and in which he bequeathed all of his estate to his wife, Minnie B. Holbrook. This bequest, of course, lapsed because Mrs. Holbrook had predeceased him.

Stockton S. Holbrook left surviving him a brother and sister and nieces and nephews as his heirs at law, and they are the appellees here. All necessary and proper parties were before the court.

It was alleged in the bill of complaint which was filed by the appellants, the trustees of the cemetery association, that by the will of Minnie B. Holbrook, her husband, Stockton S. Holbrook, took a life estate only with power to dispose of the estate for the purposes stated in the will, with remainder of the estate which had not been disposed of to the surviving trustees of the cemetery association.

The heirs at law of Stockton S. Holbrook filed a demurrer to the bill. They claimed that the will of Minnie B. Holbrook vested in her husband an absolute fee in all of her estate and that the remainder over to the trustees of the cemetery association was void. The cause was heard upon the pleadings and the demurrer was sustained. The bill was dismissed but the cause was retained in order to settle the two estates.

The present appeal, as already indicated, presents a question of law, which is whether Stockton S. Holbrook took only a life estate under the will of his wife with power of disposal or whether he took an absolute fee in her estate. If he took only a life estate the remainder over to the trustees of the cemetery association would be valid under Code, section 5147. If he took an absolute fee, section 5147 would not apply and the remainder would be void because repugnant to the fee.

A great deal has been written about the effect of (1) a remainder over after an estate for life coupled with power in the life taker to dispose of the estate, and (2) the effect of a remainder over after an estate given in general terms (i.e., where technical words, as "fee simple," "and his heirs," etc., are not used), with power of disposition.

In Virginia, prior to the Act of 1908 which amended section 2418 of the Code of 1887, a devise for life, or generally, with absolute power of disposition of the estate, created a fee simple by implication in the first taker, and a remainder over of whatever was left at the death of the first taker was void.

The reason advanced for that view was that an unqualified power of disposing of property, conferred by will, should ordinarily be considered as a gift of the property. Thus Judge Tucker in the early case of Burwell's Ex'rs Anderson, 3 Leigh (30 Va.) 348, said: "In this the law but corresponds with the dictates of common sense. Every man of ordinary capacity would understand a power to dispose of a thing as he pleased as a gift of the thing itself; hence every one who uses the phrase without qualification is understood by the law as intending a gift. The power of absolute disposition has indeed the eminent quality of absolute property. He who has the absolute property has inseparably the absolute power over it, and he to whom is given the absolute power over an estate acquires thereby the absolute property, unless there is something in the gift which negatives and overthrows this otherwise irresistible implication."

Judge Harrison in his work, Wills and Administration, Volume 1, section 243(5), says that from a gift in general terms with a power of disposition, the implication of a fee is much more readily drawn than in the case where there is an express gift of a life estate to which is added the power of disposition. In the first case although the power of disposition might seem to be a limited power, yet it will not be construed a life estate if any other reasonable construction can be made.

The general language used in the will in the case at bar: "I will give and bequeath all my property both real and personal to my beloved husband," created in Stockton S. Holbrook a fee simple estate. The sentence, "He is to dispose of said property as he sees fit," simply emphasizes the absolute...