Rule v. First Nat. Bank Of Clifton Forge

• Citation: 182 Va. 227,28 S.E.2d 709
• Court: Virginia Supreme Court
• Decision Date: 24 January 1944
• Parties: RULE. v. FIRST NAT. BANK OF CLIFTON FORGE.

182 Va. 227

28 S.E.2d 709

RULE.

v.FIRST NAT. BANK OF CLIFTON FORGE.

Supreme Court of Appeals of Virginia.

Jan. 24, 1944.

Appeal from Circuit Court, City of Clifton Forge; Earl L. Abbott, Judge.

Suit between J. L. Rule, the First National Bank of Clifton Forge, Va., executor, and others, for construction of the will of E. P. P. Rule, deceased. From an adverse decree, J. L. Rule appeals.

Affirmed.

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

J. W. C. Johnson, of Clifton Forge, for appellant.

J. C. Goodwin, of Clifton Forge, and J. M. Perry, of Staunton, for appellees.

HUDGINS, Justice.

This suit involves the construction of the will of E. P. P. Rule, executed on December 20, 1940, and probated on February 12, 1942. Its provisions, without the formal parts, are as follows:

"First: I direct that all my debts and funeral expenses be paid as soon after my decease as convicntly can be done.

"Second: I give devise and bequeath to my wife Estella May Rule, all of my estate, real, personal, and mixed of which I may die seized or possessed with full power to dispose of same, but if the said real estate remains undisposed of at the time of my said wife's death, then I direct that the said real estate shall in that event go to my sister Mrs. H. D. Saunders.

"Third: I direct that whatever money or personal estate, hereby devised to my said wife, which shall remain undisposed of at the time of my said wife's death shall go to my brother, J. L. Rule.

"Fourth: Should my said wife dispose of the said real estate hereby devised, during her life time, and in that event what ever remains from the proceeds of said sale of said real estate, if anything, whether the same be money or other property, shall go to my sister Mrs. H. D. Saunders.

"I hereby nominate and appoint The First National Bank of Clifton Forge, Virginia, Executor of this my last will and testament and whereas my said wife, on account of her physical condition, is not capable of looking after her personal needs, my said Executor is hereby authorized and empowered to dispose of all said real estate whenever in its judgment the same may be necessary for the maintenance and support of my said wife in a manner commensurate or suitable to her situation and station in life."

J. L. Rule and Mrs. H. D. Saunders, brother and sister of the testator, contend that the will devised and bequeathed to the widow a life estate only in the property of the testator, and not a fee simple in the real estate and absolute property in the personalty, as contended by the executor and the widow. The trial court upheld the contention of the executor and entered a decree accordingly. From that decree J. L. Rule prosecutes this appeal.

It appears that the real estate mentioned in the will was the residence in Clifton Forge. The deed to this property, when originally purchased, conveyed it to the wife and not to the husband. These facts eliminate any possible rights of Mrs. Saunders to any property mentioned in the will.

The cardinal rule of construction is that the intention of the testator must be determined from what he actually said and not from what it may be supposed he intended to say. If the meaning of the language used by the testator is clear, the will needs no interpretation. It speaks for itself.

Under well settled rules of construction in this jurisdiction, the will as presented is not ambiguous. Since the decision in May v. Joynes, 1871, 20 Grat. 692, 61 Va. 692, it has been consistently held that, where a person is given absolute dominion over property, followed by a gift over to another "of what remains undisposed of at her death" or "such part as may not be appropriated, " a fee simple in real estate and absolute estate in personalty passes to the first taker. The gift over is void for uncertainty. Many of the cases so holding were reviewed by Judge Saunders in Davis v. Kendall, 130 Va. 175, 107 S.E. 751. However, in Davis v. Kendall, the distinction was pointed out between the provisions of a will devising property to the first taker for life with a power of appointment of the reversion, and the provisions of a will giving the first taker absolute dominion over the property either for support and maintenance or for purposes not stated. It was said, 130 Va. at page 195, 107 S.E. at page 757:

"In other cases the fee is given directly or by implication, though the purpose thereof is not stated; but the fee, in terms or by necessary implication, is lodged in the first taker without restrictions, and may be simply and readily used by him for support, or for any other purpose. The donee in many cases is not restricted to a life estate, for the manifest reason that it is clearly the intention of the donor for the fee to pass. Hence this intent is made effective by the court.

" 'The estate conveyed being the testator's, his will is the law of the court, unless that will be against the law of the land.' Hence, when he plainly intends a fee, even though the testator's expression is inartificial, a fee is given, but his intent to limit a remainder on a fee is avoided, not that the court fails to perceive the intent, but because it is against the law." Hunter v. Hicks, 109 Va. 615, 64 S.E. 988; Conrad v. Conrad's Ex'r, 123 Va. 711, 97 S.E. 336, and cases cited in note on pages 722, and 340, respectively. Among the more recent cases are Skinner v. Skinner's Adm'r, 158 Va. 326, 163 S.E. 90; McKinsey v. Cullingsworth, 175 Va. 411, 9 S.E.2d 315; Moore v. Holbrook, 175 Va. 471, 9 S.E.2d 447.

Construing the language used by the testator in the will under consideration, in the light of the principles applied by the long line of cases cited, we find no doubt or ambiguity. The testator, in express terms, gave his wife all his property "with full power to dispose of same" without restriction. " 'The power of absolute disposition is the eminent quality of absolute property.' He who has absolute power over an estate thereby acquires the absolute property. Hence the conclusion of the court, supra, with respect to the character of the estate taken by the devisee, merely makes effective the manifest primary intent of the testator. But the secondary intent of the testator to dispose of any portion of the fee unused, or unappropriated by the devisee for her purposes, is frustrated by the court, which holds that the limitation over of whatever remains at the death of the wife is inconsistent with, and repugnant to, the fee simple, and therefore void for uncertainty." Davis v. Kendall, supra, 130 Va. at pages 181, 182, 107 S.E. at page 752.

The doctrine in May v. Joynes, supra, was first modified by statute in 1908 (Acts 1908, p. 187). This statute was clarified by the 1919 Code revisors, Code 1919, sec. 5147. Now, its application is limited to the property that remains after a life estate with power in the life tenant to dispose of such property if he desires. See Skinnerv. Skinner's Adm'r, supra; McKinsey v. Cullingsworth, supra; Moore v. Holbrook, supra.

Appellant contends that the extrinsic evidence introduced by him clearly shows that the testator intended to devise and bequeath all of his property to his wife for life with the right to use all the principal, if necessary for her support and maintenance; and that the gift over, of any part of the property remaining undisposed of at the death of his wife, is valid under the provisions of the statute (sec. 5147).

The extrinsic evidence relied upon tended to show that (1) at the time the will was executed the husband and wife were old and childless; (2) in 1928 each executed a will naming the other as the sole beneficiary of his or her estate; (3) neither desired the wife's...