Munday v. Munday's Ex'rs

• Decision Date: 14 March 1935
• Citation: 178 S.E. 917
• Parties: MUNDAY. v. MUNDAY'S EX'RS et al.
• Court: Virginia Supreme Court

178 S.E. 917

MUNDAY.

v.MUNDAY'S EX'RS et al.

Supreme Court of Appeals of Virginia.

March 14, 1935.

Appeal from Circuit Court, Orange County.

Action by Oscar L. Munday against Alice S. Munday's Executors and others. From an adverse decree, plaintiff appeals.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

S. M. Nottingham, of Orange, for appellant.

Shackelford & Robertson, of Orange, W. C. Bibb, of Louisa, and E. E. Johnson, of Culpeper, for appellees.

GREGORY, Justice.

Alice S. Munday died July 16, 1931, In Orange county, seized and possessed of a large estate, both real and personal. She was survived by her husband, Oscar L. Munday, an adopted daughter, Alice Talmadge Adams, and a number of nephews and nieces. Alice S. Munday, before her marriage to Oscar L. Munday, was Alice M. Shuler, the widow of Geo. W. Shuler, deceased. She and her husband, Geo. W. Shuler, had adopted Alice Talmadge Adams during the year 1910.

Under the will of Mrs. Munday certain provisions were made for her husband, her adopted daughter, and certain nieces, nephews, and foster children. This will was probated in the clerk's office of Orange county on July 31, 1931. On September 4, 1931, Oscar L. Munday filed in the clerk's office a renunciation of the will under Code, § 5276; he having elected to take such share in his wife's estate as was given him by law.

There is no dispute about the facts. The sole question presented by the record in this case is whether or not a legally adopted child comes within the term "issue" as used in said section 5276. If the adopted daughter of Alice S. Munday is to be construed as "issue"within the meaning of said section 5276, then, upon the renunciation of the will of the decedent by her husband, the latter is entitled to one-third of the surplus of the decedent's personal estate, otherwise he is entitled to one-half of such surplus.

Upon the renunciation of the consort's will, section 5276 provides that: "The* surviving consort shall, if the decedent left surviving issue of the marriage which was dissolved by the death of the consort or surviving issue of a former marriage, have one-third of the surplus of the decedent's personal estate mentioned in section fifty-two hundred and seventy-three; or if no such issue survive, the surviving consort shall have one-half of the aforesaid surplus; otherwise the surviving consort shall have no more of the said surplus than is given him or her by the will. * * *"

Section 5273 of the Code since the amendment of 1926 (Code 1930, § 5273) reads in part as follows:

"If the intestate was married, the surviving husband or wife shall be entitled to one-third of such surplus, if the intestate left surviving children or their descendants of the marriage which was dissolved by the death of the intestate, or of a former marriage, or by legal adoption. * * *"

The adoption statute, section 5333 of the Code, provides that an adopted child shall be "to all intents and purposes, the child and heir at law of the person so adopting him other, * * * entitled to all the rights, and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock; but on the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent, still undisposed of shall descend to his or her next of kin and not to the next of kin of such adopted child."

It will be noted that section 5276 has to do with the marital rights of one consort in the property of the other where the latter dies testate and where the former renounces the provisions made for him or her in the will, while section 5273 deals with the descent and distribution of the personal property of persons who die intestate, and section 5333 provides the method of adopting children and fixes their legal status after such adoption.

Prior to the amendment of 1926, the pertinent portion of section 5273 read as follows:

"If the intestate was married, the surviving husband or wife shall be entitled to one-third of such surplus, if the intestate left surviving issue of the marriage which was dissolved by the death of the Intestate, or of a former marriage; but...