NlCKELLv. tomlinson ct at.

• Decision Date: 20 February 1886
• Citation: 27 W.Va. 697
• Parties: NlCKELL v. tomlinson ct at.
• Court: West Virginia Supreme Court

27 W.Va. 697

NlCKELL

v. tomlinson ct at.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1886.

Decided February 20, 1886.

1. The effect of a wife uniting with her husband in a deed conveying the absolute fee simple in land is not to vest in the grantee any estate separate and distinct from her husband but simply to relinquish a contingent right of dower, in the nature of an incumbrance upon the land conveyed, which, if not relinquished, would attach and be consummate on the death of her husband, (p. 708.)

2. But such relinquishment of her contingent right of dower will only operate against her in favor of the grantee or those claiming title under him; and it will never operate in favor of a stranger not claiming under such grantee; and as against such stranger she may claim her dower, though she has united in such a deed with her husband, (p. 712.)

8. If a man die leaving no issue, and he be seized of a defeasible estate in fee simple determinable by an executory devise over, on his death without leaving issue his widow may be endowed of such land; for on the husband's death not leaving issue but leaving a widow surviving him this defeasible estate of the husband is continued, so that the widow may be endowed of such land. (p. 705.)

4. If a husband by a deed, in which his wife united, and which was acknowledged, certified and duly recorded as to both husband and wife, as required by our statute ch. 73 of the Code, conveyed to a purchaser and his heirs forever the land, in which he had such defeasible estate in fee simple, which was determined by his death without issue, if he leave a widow, the vendee in such deed is entitled to have the widow's dower in said land laid off and to hold it during the life of the widow, (p. 721.)

W. Harris for appellants.

Hereford, e Hereford and.1. X. Campbell for appellee.

Statement of the case by Green, Judge:

William Dunsmore, Sr., a resident of Monroe county, then in the State of Virginia now in the State ot West Virginia, died in 1860 leaving a widow Sarah Dunsmore, who died in 1865 leaving four sons, William Dunsmore, Jr., Jacob H. Dunsmore, Charles Lewis Dunsmore and James Alexander Dummore, and three daughters, Eliza F. Vines, Catharine Tomlinsou and Mary Couch, who died in 1881 intestate leaving six children her heirs, two ot whom have since died intestate leaving children, and William Dunsmore, Jr., also died intestate in 1882 leaving six children his heirs, and Catharine Tomlinsou, who is still living, having ten children and Eliza F. Vines, still living, having ten children. All of these parties now living are defendants in this cause as well as the personal representatives ot the deceased parties and the husbands of said females and Mary C. Dunsmore, the widow of Jacob H. Dunsmore, who died intestate on March 17, 1882, leaving no children. Shortly before his death on March 9, 1860, William Dunsmore, Sr., made his will and after devising certain of his lands to James Alexander Dunsmore, one of his sons, he devised all the remainder of his lands ineluding his wife's third alter her death to his son Jacob H. Dunsmore and qualified his devise by adding thereto:" If my son Jacob H. Dunsmore should die without having heirs, he shall divide the land between his sister's heirs as he may think proper."

On March 12, 1872, Jacob II. Dunsmore and Mary C. Dunsmore his wife conveyed with general warranty of title to Samuel W. Nickell, the plaintiff in this cause, and his heirs forever in consideration of $7,961.72 paid and to be paid, a tract of land containing 207 acres in Monroe county West Virginia described by metes and bounds, which he had agreed to purchase of Jacob II. Dunsmore on May 10, 1871, and of this purchase-money at the time of the purchase he paid him $2,500.00 in cash, and when the said deed was made gave him his bond for $2,807.00 with interest from May 10, 1871, payable May 10, 1873, and he also for the residue of the purchase-money $2,653.74 with interest from May 10, 1871, gave his bond to Samuel A. Clark trustee for said Mary C. Dunsmore wife of Jacob H. Dunsmore payable May 10, 1876. For these deferred payments the vendor's lien was reserved in said deed, and they were afterwards in the lifetime of Jacob H. Dunsmore paid, and the proceeds of this bond payable to Samuel A. Clark, trustee of Mary C. Dunsmore, was invested in a tract of land for her sole and separate use. She refused to join in the said deed conveying said tract of 207 acres of land to Samuel W. Nickell and his heirs, till it was agreed, that the amount of the purchase-money above named, ($2,653.74,) was to be paid with interest as aforesaid to her for her sole and separate use. This 207 acre tract of land was the land, which was devised to Jacob H. Dunsmore by his father with the qualifications of the devise as above stated.

This deed of March 12, 1872, was duly acknowledged before a justice of Monroe county by both Jacob H. Dunsmore and his wife Mary C. Dunsmore, and such a certificate-of this acknowledgment, as is required by our statute-law, was appended to the said deed; and on March 10, 1872, it was duly recorded.

When Jacob H. Dunsmore died, March 17, 1882, intestate and leaving no children, the children of his three sisters claimed, that they were entitled to this tract of land under the.will ot William Dunsmore, Sr., as it was as they claimed, so devised to Jacob H. Dunsmore, that he had in this tract of land but an estate in fee defeasible upon his dying intestate without issue, and having failed to divide it among them as he was empowered to do, it went to them by law, one undivided third to the children of each of his sisters, whether these sisters were living or dead at the death of Jacob H. Dunsmore. Samuel H. Nickell, who had been in the possession of said tract of land, since he purchased it, claimed by virtue of the deed to have a fee simple absolute in this land and refused to give it up; and thereupon said claimants in February, 1883, brought an action of ejectment against Samuel W. Nickell in the circuit court of Monroe county claiming said land in fee. The facts were agreed, and the case submitted to the court in lieu ot a jury; and on June 6, 1883, the court rendered a judgment in favor of the plaintiffs in accordance with their claims, as above stated.

Samuel W. Nickell obtained a writ of error and supersedeas to this judgment; and this Court on April 19, 1884, decided the case. (See 24 W. Va. R. p. 148.) This Court was ot opinion that by this will ot William Dunsmore, Sr., Jacob H. Dunsmore took in this trad of land an estate in fee simple defeasible upon his dying without children, and that the authority was given him, if lie so died without children, to divide this land among his sisters' heirs, as he might think proper; and that, as he had failed to exercise this power, one undivided third part of this tract went to the heirs of his deceased sister Mary Couch, and the remaining undivided two thirds of this tract ot land went to the heirs ot the testator William 11. Dunsmore, Sr., being undisposed of by the will under the events, which had happened, till the death of Catharine Tomlinson and Eliza F. Vines the other sisters of Jacob H. Dunsmore, and that these undivided two thirds of said tract of land the heirs ot William Dunsmore. Sr., held, until the death of said Catharine Tomlinson or Eliza F. Vines, when one undivided third thereof would go in tee simple to the heirs ot the sister first dying, and the other undivided third would be held by the heirs of said William Dunsmore, Sr., till the death of the survivor of these two sisters, and then the remaining undivided third would go to the heirs ot said surviving sister in fee simple. The judgment of the court below was therefore reversed, and this Court would have rendered a judgment in accordance with these views against the defendant Samuel W. Nickell, except that the facts agreed did not show definitely, who were the children and heirs ot Eliza F. Vines the deceased sister. The case was therefore remanded to the circuit court of Monroe county, and it, 1 presume, promptly rendered a judgment in accordance with the views of this Court.

Being thus ousted from this tract Samuel W. Xickell brought this chancery suit in the circuit court ot Monroe county against all ot said parties, who under said opinion ot this Court in this ejectment suit (see 24 W. Va., p. 148,) had title to said tract of land including the husbands of the females and the personal representatives of such as were dead and Mary C. Dunsmore, the widow of Jacob H. Dunsmore. After setting out their title to said tract ot land and filing with his bill as exhibits a copy of said will of William Duns- more, Sr., and of the deed ot Jacob H. Dunsmore and Mary C. Dunsmore, bis wife, of date March 12, 1872, conveying said land to him in fee and the certificates of the proper acknowledgment and recordation.oi said deed by the husband and wife and substantially the material facts above stated, his bill proceeds and concludes as follows:

"This plaintiff further states that by virtue of said deed from Jacob H. Dunsmore and M. 0. Dunsmore, his wife, he became the owner oi said real estate during the lifetime of said Jacob II. Dunsmore, and also after his death by virtue of said deed said M. C. Dunsmore conveyed to this plaintiff her possible future right to have laid off to her one third in value or one third of the said real estate during the lifetime ot said M. C. Dunsmore. Said M. C, Dunsmore, never having a child by her said husband, is still living; that at the time ot the death of said Jacob H. Dunsmore, which took place on March 17, 1882, said real estate was of the value of $9,000.00; that said Jacob II. Dunsmore died on March 17, 1882, without ever.having a child born to him; that said M. C. Dunsmore, widow of said Jacob II. Dunsmore was at the time ot the death of her said husband of the age of years, and is now ot the age oi fifty...