Newton v. Newton

• Decision Date: 10 March 1958
• Docket Number: No. 4760,4760
• Citation: 102 S.E.2d 312,199 Va. 785
• Parties: MINNIE GOUGH NEWTON v. JOHN ELIJAH NEWTON, ET AL. Record
• Court: Virginia Supreme Court

Page 312

102 S.E.2d 312

199 Va. 785

MINNIE GOUGH NEWTON v. JOHN ELIJAH NEWTON, ET AL.

Record No. 4760.

Supreme Court of Appeals of Virginia

March 10, 1958.

John B. Boatwright and Robert Whitehead (Whitehead & Marshall, on brief), for the appellant.

W. M. Abbitt and G. M. Rogers (George Abbitt, Jr., on brief), for the appellees.

JUDGE: BUCHANAN

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

The executors of the will of R. E. Newton brought this suit for the purpose of having the court construe his will and direct them in administering the estate. The court decided adversely to certain claims of the widow, Minnie Gough Newton, with respect to her share of the property under the will and under the statutes, and she appeals to this court.

The testator, R. E. Newton, of Buckingham county, died April 24, 1956, at the age of eighty-three, leaving a will which was duly probated and which is as follows in spelling and otherwise, exactly as it appears in the record:

'Ths day July 29, 1955

Affirmed.

'in the year of our Lord

Being of a sound & desping mind I R. E. Newton do this day make this my last will and testerment devoking all other wills herebefore made by me.

first 1 I give my pesant wife Minnie Gough Newton one third of all my Propity for which she would be intitle to Real & Personal Propity according to law. the balence of my estate I am leaving in the hands of Three Exetors to carry my wishes & desier -- and they are to have five per cent of all comes in thir hand & that is to be devided between all three. -- I want my buisness carried on just I carry it on farmg house renting the farm & buildings must be kep. and take out cost and the five Per cent executors fee and Bal go to my estate & ball of my Proced be Plased in difference Banks or other Relible Places & at the deth of my wife the -- all of my real estate will Rvert back then I want my home house and Ten acres of and go to for aged home for Buckingham Co. & White only at age of 65 & over & all of my estate that is lef at that time be kept for to Keep up to take cere of the ages home I Perfer my wife -- to have my home as apart of her thirds -- if she wants it as long as she lives. I do not want any law suits in reguard to this will. This will are in my own handwriting.'

The will appointed his three nephews, John Elijah Newton, Carl W. Newton and Ralph R. Newton, as executors.

After the issues were made by the pleadings, some evidence was heard by the court as to the heirs of the testator and the amount of his estate. He left no issue and no adopted children. His father, mother, brothers and a sister had all predeceased him. He left surviving only the appellant, who was his second wife, and the children and grandchildren of his deceased brothers and sister as his next of kin. His personal property was appraised at $149,983.12, most of which was in government bonds, and his real estate was of an estimated value of around $90,000.

By decree the court extended the time within which the widow might renounce the will, as provided by §§ 64-14 and 64-33 of the Code. By separate decree the court held that the part of the will which attempted to provide for the aged of Buckingham county violated the rule against perpetuities and was void, invalid and unenforceable, and that the decedent died intestate as to the property included in that provision. There was no appeal from that decree, which has consequently become the law of the case and that matter is not before us on this appeal.

By the decree appealed from it was held that under the will the widow was entitled to receive one-third in absolute interest of the testator's net personal property after payment of debts, charges and administration costs, and one-third of the testator's real estate for her life; and that the rest and residue of the property of the testator should go to the heirs at law of the testator subject, however, to the right of the widow to renounce the will and take the share of the personal estate provided by § 64-16 of the Code and to waive jointure and demand dower in the real estate as provided by § 64-32 of the Code.

The decree further adjudicated that if the widow renounced the will, then she should receive one-half of the net personal estate as provided by § 64-16 of the Code; and should she waive jointure and demand dower, she would be entitled to a life estate in all of the testator's real estate. Appellant does not question the correctness of this holding in the event of her renunciation of the will and demand for dower.

The appellant concedes that by the terms of the will she is entitled to only one-third of the real estate for life, as the court held. By her assignments of error she makes these claims: (1) By the terms of the will she is entitled to all of the testator's net personal estate; (2) but even if she is entitled to only one-third of the personal estate under the will, she is entitled to the other two-thirds under § 64-11 of the Code; and (3) in addition to the life estate in one-third of the real estate given her by the will, she is entitled to a life estate in the other two-thirds by virtue of § 64-27 of the Code. We shall consider her contentions in that order.

First. The will gives to the wife 'one third of all my Propity for which she would be intitle to Real & Personal Propity according to law.' She says that in view of the two clauses appearing later in the will, 'at the deth of my wife the -- all of my real estate will Rvert back' and 'I Perfer my wife -- to have my home as apart of her Thirds -- if she wants it as long as she lives,' she does not disagree with the finding that she was given only one-third of the real estate for life. But she argues with respect to the personal property that the phrase 'according to law' controls and that under the law -- the statute of distributions, § 64-11 of the Code -- she gets the whole.

The fundamental rule in the construction of wills, as we have said many times, is that the intention of the testator must control so long as it does not run counter to some established rule of law; and the will is to be construed as a whole so as to ascertain the general plan and purpose of the testator, derived if possible from the meaning of the words used by him in the sense in which he used them. The object is to find the expressed intention of the testator, what he meant by what he wrote. 20 Mich. Jur., Wills, § 77; Borum v. National Valley Bank, 195 Va. 899, 906, 80 S.E.2d 594, 598; Pitman v. Rutledge, 198 Va. 567, 571, 95 S.E.2d 153, 156.

The will shows plainly that the testator was uneducated. It is not likely that he knew the law, but it is evident from the size of the estate he had accumulated that he knew figures, and we are safe in thinking that when he said he gave his wife one-third of his real and personal property he did not mean that he gave her all of it. The fraction 'one-third' at the beginning and the phrase 'according to law' at the end of the sentence making the gift were applicable equally to real and personal property. But admittedly their effect was to give the wife only one-third of the real estate for life, whereas 'according to law' she would have taken the whole of the real estate for life. Code § 64-27. After the provision for his wife he left the balance of his estate to his executors to carry out his wishes and desires, which were to provide for the aged of Buckingham county. At his wife's death, he said, all of his real estate would revert back, and all of his estate left at that time was to go for that purpose, adding that he preferred his wife to have his home as a part of her 'thirds,' repeating what he started out with, that her share was to be one-third. He doubtless thought that provision was 'according to law,' not an uncommon idea among lay citizens, as in fact it was according to the law of an earlier day; but in any event that phrase evidently of mistaken meaning to him should not override his pervading and prevailing description of the portion he wanted her to have, which he said in unmistakable terms was one-third. We agree with the trial court that the will gave the wife one-third of the net personal estate in fee and one-third of the real estate for life.

Second. Even so, asserts the appellant, she is entitled independently of the will, to the other two-thirds of the net personal estate by reason of § 64-11 of the Code. The appellees, on the other hand, contend that § 64-16 limits her share of the personal estate to what she is given by the will unless she renounces the will. Both of these sections are set out in the margin. ¹ The question is not now an open one in Virginia.

It will be observed that § 64-11 provides that when any person dies intestate as to his personal estate, or any part thereof, the surplus as defined shall go, where there are no descendants, to the surviving wife (or husband). Appellant says that upon the failure of the gift of the residue of the estate for the benefit of the aged of Buckingham, the testator died intestate as to that property, resulting in a partial intestacy as to the surplus of the personal property remaining after the one-third given to her by the will, and thereupon the statute applies and gives her the remaining two-thirds of this surplus. It will be further observed, however, that § 64-16 provides that (1) if renunciation of the will is made, or (2) if no provision for the surviving consort is made in the will, then, in the situation here existing, the surviving consort shall have one-half of such surplus; but, says this statute, 'otherwise the surviving consort shall have no more of the surplus than is given him or her by the will.'

The predecessor of present § 64-11 was § 29 of chapter 104 of the Revised Code of 1819, which provided that 'When any person shall die intestate as to his goods and chattels, or any part thereof, after funeral debts and just expenses paid, if there be no child, one moiety [one-half]...