Phillips Et Ux v. Ferguson

• Decision Date: 05 December 1888
• Citation: 85 Va. 509,8 S.E. 241
• Parties: Phillips et ux. v. Ferguson et al.
• Court: Virginia Supreme Court

8 S.E. 241

(85 Va. 509)

Phillips et ux.

v.Ferguson et al.

Supreme Court of Appeals of Virginia

December 5, 1888

1. Wills—Construction—Ambiguity—Conditional Bequest.

A condition annexed to a devise or bequest, avoiding it if the beneficiary marry into the " family" of a person named, in the absence of anything in the context to the contrary, means one of the children of such person.

2. Same—Parol Evidence to Explain.

Parol evidence is admissible to show that a person of the name mentioned lived in the vicinity, and that testator was unfriendly with him, and had shortly before making his will refused his consent to his daughter's marriage with said person's son, who afterwards married her during testator's life without his consent.

3. Same—Validity of Bequest—Limitation Over.

Such a condition, avoiding all the provisions of the will in favor of any of testator's children who should so marry, is valid, without any limitation of the property over in case of the contingency happening, and defeats devises and bequests of both real and personalty to the daughter who married in violation thereof.

4. Conversion—Testamentary—Lapse op Bequest.

Though a provision that the executors shall expend a given sum in land, to be divided among all his children, ordinarily would be a conversion of the amount into realty, yet the share of the daughter lapsed by her breach of said condition is unconverted, and goes to the residuary legatee.

Appeal from circuit court of city of Petersburg.

Bill by William T. Phillips and Ellen C. Phillips, his wife, against Margaret E. Ferguson and George E. Ferguson, as executor and executrix of the will of E. T. Ferguson, deceased, and in their own right, and others, devisees and legatees under said will, for the purpose of obtaining a construction of said will, and an administration of the estate. The suit was begun in the circuit court of Greensville county, and removed to that of the city of Petersburg. The decree granted a part of the relief prayed, and plaintiffs appeal.

G. S. & D. M. Bernard, for appellants. John Lyon, for appellees.

Lewis, P. The testator, after providing in his will for his widow, and making devises to certain of his children, directed in the fourth clause that $5,000 be laid out in land, to be divided between six of his children therein mentioned; and by the residuary clause he directed the balance of his estate, including the property left to the widow, (at her death,) to be divided between all of his children, of whom there are eight. Then follows the clause out of which this controversy arises, and which is as follows: "If either one of my children above named in my will should marry in T. W. Phillip's family, I only give him or her the sum of three dollars to be their part, and to be all that him or her is to receive under the will; and the foregoing clause of this will, that leaves them anything, to be revoked, and all other portions of this will that provides for same child. " The will is dated January 31, 1884, and the testator died on the 3d of June of the same year. On the 11th of February of the same year Ellen C. Ferguson, one of the "children above named, " intermarried with William T. Phillips, a son of the said T. W. Phillips, who, at the time, was living with his father, but was of age, and doing business on his own account, and "in no way dependent upon his father; " and the question is as to the effect, under these circumstances, of the clause of the will last above quoted. The circuit court held that the direction that $5,000 be laid out in land, to be divided as directed, was in effect a devise of realty, and that the said Ellen C. Phillips was not entitled to any estate or interest in the realty devised by the will, but that she was entitled to the legacy of three dollars, and, in addition thereto, to one-eighth of the residue of the personalty bequeathed by the residuary clause, and decreed accordingly; whereupon Phillips and wife, the plaintiffs below, appealed.

1. It is clear, as the circuit court held, that, for the purposes of the will, the money directed by the fourth clause to be laid out in land must be con-sidered, upon the principle of equitable conversion, as real estate. The testator has impressed that character upon it, and cujus est dare, ejus est dispo-nere. Craig v. Leslie, 3 Wheat. 563; Pratt v. Taliaferro, 3 Leigh, 419; Effinger v. Hall, 81 Va. 94, and cases cited. Inasmuch, however, as we are also of opinion that the female appellant takes nothing under the will, (save the legacy of three dollars,) the object of the conversion to that extent fails, and consequently the undisposed-of portion of the fund directed to be so invested results, in its unconverted form as personalty, to the executors for the residuary legatees other than herself. 3 Pom. Eq. Jur. § 1172; 1 Lead. Cas. Eq. (4th Ed.) 1187, 1202, notes to Ackroyd v. Smithson.

The condition on which the devise was made to the children, of which she was apprised by the testator in his life-time, and before her marriage, has not been observed by her, and its observance was essential to the vesting of any estate under the will. The common law, although it does not allow a condition in restraint of marriage generally, when annexed to a devise of lands or of a legacy charged on land, to divest an estate, yet, if the condition be precedent, it must be observed, no matter how restrictive of marriage it may be. If, however, it be subsequent, then its effect depends on whether it is reasonable or not. In the present case, the condition in question is not subsequent, so far, at least, as the female appellant is concerned. A condition subsequent is one the effect of which is to enlarge or defeat an estate already created. 1 Lomax, Dig. 262. But here, as we have said, without a compliance with the condition, no estate in the land can vest at all; and, as the prohibited marriage occurred before the testator's death, and therefore before any estate under the will could commence, it is clear that no estate in the land has ever been vested in the female appellant, or ever can vest in her under the will of her father; and hence, also, no question of forfeiture arises in the case, as to which much was said in the argument by counsel for appellants.

2. With regard to the personal property bequeathed by the residuary clause of the will, somewhat different principles, derived in part from the civil law, apply. As to this, it is contended that the interest of the female appellant is absolute, because, as her interest is not given over to some one else, the condition in question is only in terrorem. This position would be well taken if the...