Rosenberger v. Rosenberger

• Decision Date: 04 March 1946
• Citation: 184 Va. 1024,37 S.E.2d 55
• Parties: ROSENBERGER. v. ROSENBERGER et al. BROCK. v. SAME.
• Court: Virginia Supreme Court

37 S.E.2d 55

184 Va. 1024

ROSENBERGER.

v.ROSENBERGER et al.

BROCK.

v.SAME.

Supreme Court of Appeals of Virginia.

March 4, 1946.

successive life tenants with remainder to a charity, and provided a residuary trust for same three life tenants, and codicil amended will by eliminating second life tenant with respect to farm providing for payment to her of $55 a month for life and that codicil should effect no change in rest of will, thereby leaving no fund from which monthly payments could be made, court properly construed will and codicil as giving to second life tenant, after death of first life tenant, $55 per month for life from income of trust prior to any payment therefrom to third life tenant; the monetary provision being substitutional and not cumulative.

Appeal from Circuit Court, Fairfax County; Paul E. Brown, Judge.

Suit by Lottie M. Rosenberger and the Lincoln National Bank of Washington, executors of the estate of Raphael A. Casilear, deceased, and the Lincoln National Bank of Washington, trustee under the will of Raphael A. Casilear,.deceased, against Viola Atlee Marston, infant, and others, for a construction of certain provisions of the will and codicil of deceased, and for other relief. From the decree Lottie M. Rosenberger, individually, and Dorothy M. Brock, separately appeal.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Frank L. Ball, of Arlington, for Lottie M. Rosenberger.

Lawrence W. Douglas, of Arlington, for Dorothy M. Brock.

Frank Stetson, of Washington, D. C, and Wilson M. Farr and Hardee Chambliss, Jr., both of Fairfax, for Washington City Orphan Asylum.

SPRATLEY, Justice.

This cause was instituted by Lottie M. Rosenberger and the Lincoln National Bank of Washington, executors of the estate of Raphael A. Casilear, deceased, and the Lincoln National Bank of Washington, trustee under the will of Raphael A. Casilear, deceased, against Viola Atlee Marston, infant, Dorothy M. Brock, Washington City Orphan Asylum, a corporation, and Lottie M. Rosenberger, in her own right, for the purpose of having the court construe certain provisions of the will and codicil of Raphael A. Casilear and determine certain questions relative to the distribution of decedent's property. Answers were duly filed on behalf of each of the defendants.

Raphael A. Casilear, a resident of Fairfax county, Virginia, died testate on November 17, 1940. On September 22, 1941, his will, dated October 5, 1932, with a codicil thereto dated May 5, 1936, was admitted to probate, and Lottie M. Rosenberger and the Lincoln National Bank of Washington, the executors nominated therein, qualified as such on the same day, and immediately entered upon the performance of their duties.

So much of the will of Casilear as is pertinent to the proceedings under review is as follows:

First, he directed the payment of his just debts and funeral expenses, expressly authorizing the application of the proceeds of a life insurance policy in the sum of $2,000 towards the part payment thereof;

Secondly, he gave and bequeathed all moneys on deposit in any bank or trust company to his credit at the time of his death to Mrs. Rosenberger.

The next three paragraphs read as follows:

"Third: My farm, known as the Brook Farm, containing about Sixty (60) acres of land together with all the improvements and appurtenances thereunto belonging and all the farm implements, stock and equipment used in connection therewith, being the farm * * *, I give and devise to the said Lottie M. Rosenberger, who is my housekeeper and resides on said farm, for and during the term of her life, and after her death to Dorothy Marie Marston, also now residing on said farm, for the remainder of her life and after her death to her half sister, Viola Atlee Marston, also now residing on said farm, for the remainder of her life. Upon and after the deaths of all three of said life tenants, I give and devise the same to the Washington City Orphan Asylum, hereinafter mentioned, in fee simple for its proper charitable uses and purposes, or if at that time it shall not be in existence, or be unable to accept this devise, then and in such case I give and devise the same to such charitable institution as my Trustee shall select in its place, as hereinafter provided for.

"Fourth: All the rest of my personal property (with the exception of stocks, bonds, mortgages and other securities) including particularly all household furniture and effects, all automobiles, motor trucks, carriages, wagons, and horses and other live stock, I give and bequeath absolutely to said Lottie M. Rosenberger, if she survive me.

"Fifth: All shares of stock and bonds, mortgages and other securities of every kind which I shall own or be entitled to at the time of my death, and all real estate other than the Brook Farm, aforesaid, now belonging to me, and all real estate which I may hereafter acquire and own at the time of my death, I give and devise to The Lincoln National Bank of Washington, a corporation having its offices in the District of Columbia, absolutely as to all stocks and bonds and in fee simple as to real estate, in and upon the following trusts, that is to say:

"In trust, to take charge of, manage and control the same, collect and receive all of the rents, issues, profits and income thereof, and. to pay and discharge therefrom all necessary costs and expenses, in connection with the execution of the trust, and insurance against fire and the preservation and upkeep of the buildings and improvements upon the real estate included in the trust estate, and all lawful taxes and assessments, when and as the same shall become due and payable upon the property of the trust estate, both real and personal, and to deduct and retain annually, for its own use and benefit, a commission of five per centum (5%) upon the gross income of the trust estate, real and personal, which shall come into its possession and control, for its services as trustee, with respect to the collection and disbursement of said income and incidental services, and to pay all the balance of the net income of the trust estate, real and personal, unto the aforesaid Mrs. Lottie M. Rosenberger, said net income to be paid to her in instalments, at quarterly or other convenient intervals, for her own use and benefit, for and during the term of her natural life, and from and after her death, to pay the same in instalments, at convenient intervals, as aforesaid, unto Dorothy Marie Marston, for the remainder of her life, less however, the sum of One Hundred Dollars ($100.00) per month, during the remainder of her life, which I direct the Trustee to pay, or apply to the benefit of her half sister, Viola Atlee Marston, upon the death of said Dorothy Marie Marston, if the said Viola Atlee Marston shall have survived her, then and thereafter to pay the said net income in instalments at convenient intervals, as aforesaid, unto the said Viola Atlee Marston, for the remainder of her life. From and after her death, if she shall survive the said Dorothy Marie Marston, otherwise, from and after the death of the said Dorothy Marie Marston, (the said Mrs. Lottie M. Rosenberger being also then dead), the trust shall cease, and the aforesaid Bank as Trustee, or its successor, if any, shall promptly pay over, transfer, convey and deliver the net corpus of the said trust estate, real and personal unto The Washington City Orphan Asylum, a corporation, now owning and operating the Hillcrest Home for children in the District of Columbia, absolutely, as to the personal property, and in fee simple as to the real estate, free, clear and discharged of all trust hereby created. If, however, it should happen that at the death of the last survivor of said Lottie M. Rosenberger, Dorothy Marie Marston and Viola Atlee Marston, the above-named charitable institution shall be no longer in existence, or for any reason be incapable in law of receiving and utilizing the said devise and bequest, then and in either of said events, I hereby authorize, empower and direct my said trustee, or its successor in trust, if any, to promptly select in its place and stead some other orphan asylum or institution for the care of orphan, minor children, and to pay over, convey, transfer and deliver the net corpus or principal of the trust estate to said selected institution, for its proper uses and purposes, and by its proper corporate name, in fee simple, as to the real estate, and absolutely as to the personal estate or property, and free of all trust hereby created. It is my will and I hereby direct, that in case the said Dorothy Marie Marston, and Viola Atlee Marston, should die before the said Lottie M. Rosenberger, that then and in that event, the trust hereinbefore created shall cease at her death, and the principal of the trust estate be paid over, transferred, conveyed and delivered, as hereinbefore directed to be done upon the death of the above-mentioned Viola Atlee Marston. * * *"

The next provision specifically granted the Lincoln National Bank of Washington full power and authority to carry out theintent and purpose of the above trust and to make final settlement.

The codicil is in the following language:

"I hereby amend Paragraph 3, page 2, of said will to read as follows:

"Third: I give and devise to the said Lottie M. Rosenberger, who is my housekeeper and resides on said farm for and during the term of her life and after her death Violet Marston, also residing on said farm for the remainder of her life, my farm, known as the Brook Farm, containing about sixty (60) acres of land together with all the improvements and appurtenances thereunto belonging and all the farm implements, stock and equipment used in connection therewith, being the farm where I reside on the Annandale Road in Fairfax County, Virginia, adjoining the old Slade farm, which Brook Farm was acquired by me in part from one Anderson, and the rest from the estate of my b...