Robertson v. Hardy's Adm'r

• Decision Date: 12 December 1895
• Citation: 23 S.E. 766
• Parties: ROBERTSON et al. v. HARDY'S ADM'R et al.
• Court: Virginia Supreme Court

23 S.E. 766

ROBERTSON et al.

v.HARDY'S ADM'R et al.

Supreme Court of Appeals of Virginia.

Dec. 12, 1895.

Wills—Construction.

1. Under a will providing that testator loans to his wife certain land for life, the wife takes a life estate therein.

2. Where personalty is given by will to a person, with power to use, consume, and dispose of it at will, a limitation over, after his death, of the personalty then remaining, is void.

3. A will, after reciting that testator loaned to his wife certain personalty for life, provided that all the personalty remaining at her death should be divided among her children, and that the wife should have power to give to any of the children anything "she was able orthinks proper to give." Held, that the wife took an absolute estate in the personalty.

Appeal from circuit court, Dinwiddle county

Bill by Sarah A. Hardy's administrator and others against Sarah A. Hardy's distributees and others. Prom the decree, P. O. Robertson and others appeal. Affirmed.

R. Turnbull and Q. B. Bell, for appellants.

B. J. Epes, G. S. Bernard, and W. P. McRae, for appellees.

RIELY, J. The main question to be determined is the nature of the estate taken under the will of John C. Hardy by his widow in his personal property. This depends upon the true construction of that instrument And to this end it is only necessary to consider the first, second, and fifth clauses, which are as follows: "(1) * * * I do at my death loan the tract of land on which I at present reside, and known as the 'dower tract, ' * * * to my beloved wife, during her natural life, with all the property, of whatever nature or kind soever it may be, for the benefit of her and my three youngest children, for their support' and education; and, at her death, I give the said tract of land to my son, William Joseph Newton Hardy, and the heirs of his body. * * * (2) All the personal property remaining at my wife's death, of whatever kind or nature, shall be sold, and equally divided between my three daughters, viz. Loubinia A. Tucker, wife of Robt. W. Tucker, Sarah A. B. Hardy, and Etta Wilburn Hardy, and my son, William Joseph Newton Hardy; Emeline C. Spain and Caroline A. Hurt included equally in said division." "(5) My beloved wife, Sarah A. Hardy, shall have the right to give any of the above-named children anything that she may be able or think proper to give, whenever they leave her or need assistance."

Under the first clause, the land is expressly given to her for life; and, at her death, it is devised to the testator's son, William Joseph Newton Hardy. It is perfectly clear that she took only a life estate in the land. By the same clause, the personal property is given to her; and, by a fair and reasonable construction, it is embraced within the limitation...