Penick's Ex'r v. Walker

• Decision Date: 12 June 1919
• Citation: 99 S.E. 559
• Court: Virginia Supreme Court
• Parties: PENICK'S EX'R v. WALKER et al.

99 S.E. 559

PENICK'S EX'R

v.WALKER et al.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Appeal from Circuit Court, Halifax County.

Suit by Mary C. Penick Walker against the executor of Charles C. Penick, deceased, and others. From an adverse decree, the executor appeals. Reversed and remanded.

Samuel L. Adams, of South Boston, Jas. E. Cannon and S. A. Anderson, both of Richmond, Clifton II. Penick, of Tuscaloosa, Ala., and John Martin, of Houston, for appellant.

H. C. Riely, of Richmond, and Easley & Bouldin, of Houston, for appellees.

KELLY, J. This suit involves the construction of Bishop Charles C. Penick's will.

Bishop Penick died in a hospital in Baltimore in April, 1914. He was a widower, his wife having died in October, 1912, and he had for some time been residing in Halifax county, making his home with his brother, R. A. Penick. He had an only daughter, Mary Clifton Walker, who, with her husband, resided in the city of Frankfort, Ky. At the time of Bishop Penick's death, Mrs. Walker had one child, Mary Hoge Walker, who was about four years old. Another child was subsequently born, but has since died. Mrs. Walker was comfortably well-off, having acquired, through her mother, an estate worth apparently considerably more than the estate disposed of in her father's will.

At the date of the will, and at the date of Bishop Penick's death, he had two life insurance policies, one thereof for the face amount of $10,000 (subject to a premium note), payable to Mrs. Walker, but by the terms of which he had the right to change the beneficiary at will; and the other for the sum of $2,500, in which the beneficiary was his wife, and as to which he did not have the right to make such change. After his death Mrs. Walker, who, as the beneficiary as to the former policy and as the only child of her deceased mother as to the latter policy, was entitled to all of the Insurance money, realized therefrom the total sura of $9,840.37.

The above-mentioned policies represented the only insurance which the testator had at the date of the will or at the date of his death, and, so far as the record shows, the only insurance which he had ever taken out upon his life.

The controverted question in this case arises out of the following language in the third clause in the will of Bishop Penick, which is as follows: '

"I order that the sum of ten thousand dollars be set apart for my daughter, Mary Clifton Walker, safely invested and the interest thereof be used towards the support of herself and children if any—especially to help in their education—and when her youngest child becomes 21 years old, the sum may be equally divided between the mother and her child or children, the mother to have one-half and the children the other. This sum can be made up of money from my insurance policies."

The remainder of the third clause purported to confer on Mrs. Walker certain interests in her mother's real estate which belonged to her independent of the will.

By the fourth clause the testator provided for an annuity of $50 to his cousin Isabella Breedlove; by the fifth he gave a legacy of $500 to his brother Robert A. Penick and a legacy of like amount to the wife of his brother, Edwin A. Penick; and by the sixth he gave $250 each to five nieces and nephews, and then directed that the residue of his estate be converted into money and divided equally between and among four institutions under the control of the Protestant Episcopal Church.

After the death of Bishop Penick and the qualification of the executor, Mrs. Walker called upon the latter to create and set apart out of the estate a trust fund of $10,000 for herself and children, claiming that she was entitled to the benefit of the provisions of the third clause of the will in addition to the insurance money which she had already received, and which the testator had evidently supposed would fall into and become a part of his estate. The executor refused to comply with this demand on the part of Mrs. Walker, and thereupon she brought this suit to settle the question.

The cause was heard upon the bill and answer of the executor and certain other defendants, and upon the depositions of witnesses, and the circuit court, being of opinion that the mention of the insurance money "was intended by the testator to be nothing more than a suggestion to his executor, and that it was not mandatory and restrictive so as to nullify the creation of the trust fund provided for in the said third clause of the will, in the event that there is not sufficient insurance money belonging to the estate from which said fund could be satisfied, " decreed the creation of the trust in accordance with the prayer of...