Smith v. Ledsome
| Citation | 95 W.Va. 429 |
| Parties | Claude Smith v. William Ledsome, et al. |
| Decision Date | 29 January 1924 |
| Court | Supreme Court of West Virginia |
A general demurrer to a bill.in equity should be overruled if the bill is good in part. (p. 433).
If a bill seeks relief on more than one ground, if any one of the grounds stated be sufficient, a general demurrer thereto should be overruled, (p. 434).
A will which gives and devises property the title to which is vested in the testatrix by a will of testatrix's ancestor, but which property has not been reduced to possession of the testatrix because of a life estate therein of another created and existing by the ancestor's will, is not void because the possession and enjoyment of the property, is necessarily delayed until the life estate is ended. Delay in the possession and enjoyment of the property willed does not defeat the will, (p. 432).
When the words of a will are plain and unequivocal, a transposition will not be allowed which will create a different meaning from that expressed by the words as written. (p. 435).
A holographic will is as follows: Properly construed, the husband, Claude Smith, takes a fee in the property of testatrix which she took under her mother's will; and a life estate in all other property of the testatrix. (p. 435).
Case certified from Circuit Court, Roane County.
Suit by Claude Smith against William Ledsome and others. A demurrer was sustained to plaintiff's bill, and questions were certified.
Ruling reversed.
Wm. S. Ryan and Thos. P. Ryan, for plaintiff. Harper & Baker and 8. P. Bell, for defendants.
Having sustained a general demurrer to plaintiff's bill, the circuit court certified his action in so doing for review; and has certified other questions which do not arise upon the demurrer. Under sec. 1 of chap. 135, Code, any question arising upon a challenge to the sufficiency of the pleadings may be certified to this court for its decision. The demurrer challenges the sufficiency of the bill, and the only question proper to be certified is whether the bill states a case for equitable relief.
The bill is for partition of certain lands in the county of Roane, an interest in which is claimed by Claude Smith, the plaintiff, as the devisee of his wife, Hattie F. Smith, nee Hattie F. Carper. The bill also seeks to ascertain by dis- covery the amount of personal property of which S. V. Carper died seized, plaintiff claiming an interest therein under the will of his wife. S. V. Carper was the father of plaintiff's wife, and died in the year 1922. Plaintiff's wife died in the year 1917, leaving a will under which plaintiff claims both an interest in the estate of Susan J. Carper, his wife's mother; and a life tenancy in his wife's share of the personal estate of S. V. Carper, her father. His claims are based entirely upon his wife's will.
Susan J. Carper died in April, 1912, ' leaving a will in which she gave her husband, S. V. Carper, a life estate in all her real and personal property. A tract of 200 acres she willed to her seven children, to be divided equally. Hattie F. Smith, one of her daughters, took a one-seventh equal interest in the 200 acres, subject to the life estate of her father, S. V. Carper. By another clause of the will she also gave Hattie F. Smith one-half of the oil and gas royalty in a 46 acre tract; the other half, including the land, being devised to her two sons, Robert and Roy Carper, younger brothers of Hattie F. Smith. This will was duly probated, and there is no controversy over it. A week or so before her death, in 1917, Hattie F. Smith made a will which was duly probated, and the proper construction of which is the principal contention in this case. That will reads as follows:
S. V. Carper, life tenant of the estate of his wife, Susan J. Carper, died intestate in the year 1922, and a short time after his death plaintiff instituted this suit, claiming, as before stated, that he owned, by virtue of his wife's will, a one-seventh interest in the 200 acre tract of land and onehalf of the oil and gas royalty in the 46 acre tract, and seeks to have the same partitioned; that by virtue of his wife's will he has a life estate in whatever share his wife wonld inherit from the personal estate of her father, and not knowing of what that estate consisted he prayed for a discovery thereof from the heirs of S. V. Carper.
It appears that in 1920 S. V. Carper and his living children (Hattie F. Smith being then dead), the devisees of Susan J. Carper, together with their respective wives and husbands, conveyed the surface and possibly some mineral interest in the 200 acre tract to defendant William Ledsome. Plaintiff did not join in this deed.
Under the will of Hattie F. Smith does the plaintiff, Claude Smith, have any interest in the property of Susan J. Carper, willed to his wife by her? If so, what is that interest? This is the controlling question which the circuit judge has certified to this court for decision without having passed upon it himself. It may be conceded that if plaintiff has any estate by reason of his wife's will in the property mentioned in the bill, either a life estate, or in fee, he has the right to maintain a suit for partition. Duffy v. Currence, 66 W. Va. 253, 257; Carneal v. Lynch, 91 Va. 114, 20 S. E. 959. Indeed, the right of partition to the owners of an equity of redemption is upheld in Martin v. Martin, 95 Va. 26, 27 S. E. 810. In order to sustain the demurrer the lower court must have concluded that the bill was multifarious, or that plaintiff had no interest whatever in the estate of Susan J. Carper by virtue of the will of his wife Hattie. Defendants, by counsel, assert that plaintiff is given only a life estate in the property of his wife under the will above quoted, and that because her father, at the time of the making and probate of her will, was yet living and had a life estate in all of the property of Susan J. Carper, the will of Hattie Smith, which gave another life estate therein to plaintiff, was inoperative. In other words, because of the precedent and then existing life estate of the father in the property (which did not terminate until his death in 1922), Hattie Smith could not create a life estate in the same by her will in favor of her husband. To sustain the proposition that the will gives plaintiff only a life estate, defendant's counsel cite Bartlett v. Patton, 33 W. Va. 71, 10 S. E. 21; Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5; Stout v. Clifford, 70 W. Va. 178, 73 S. E. 316; Herring v. Williams (N. C.) 73 S. E. 218; Mixter v. Woodcock, 147 Mass. 613; and Geist v. Huffendick, 272 I11. 99. These cases do not sustain the proposition that a life estate may not be created to take effect after another estate ends. They all relate to construction of wills and the character of the estate devised by the various provisions in the various wills which were considered and construed. The proposition that the creation of a life estate in property on which there is a present life estate is void and ineffective, is not considered in these cases. There can be no question that Hattie Smith had title to the property devised to her by her mother's will, and her title became vested therein at her mother's death. The fact that her mother's will created a life estate in favor of her father would not prevent her from also devising a life estate to her husband in that property. It is true the enjoyment thereof by her husband could not become effective until the death of S. V. Carper. An estate in property may be made to begin in futuro. Sec. 5, chap. 71, Code; Bust v. Coal and Coke Co., 92 W. Va. 457. So, whether the estate of plaintiff be that of a life tenant or in fee, or life tenant in part and fee in part, he is entitled to maintain his suit for partition; and it follows that the general demurrer to the bill should have been overruled. Kenyon v. See, 94 N. Y. Repts. 563; Wimple v. Fonda, 2 Johns (N. Y.) 287. If a bill in chancery is good in part a general demurrer thereto should be overruled. Dudley v. Niswander, 65 W. Va. 461, 64 S. E. 745. The bill does not charge that Susan Carper had any personal estate which went into the hands of S. V. Carper; nor does it charge that he had any of this personal estate of his wife at the time of his death in 1922. That part of the bill is framed on the theory that plaintiff, by virtue of his wife's will, is entitled to participate in the division of the personal estate of S. V. Carper; and it is on that theory that the bill asks a discovery of the amount of the estate of S. V. Carper. It will be remembered that Hattie Smith inherited nothing from her fath- er's estate, he having died five years later than her demise. She was a prospective distributee only she had no interest in her father's estate which she conld dispose of by deed or will. Does this make the...
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Clayton v. County Court Of Roane County.
...Does the declaration state a good cause of action? That is the only question which we can consider on this certification. Smith v. Ledsome, 95 W. Va. 429, 121 S-E. 484. In view of the "good roads amendment" (Art. XIV, sec. 5, Constitution, as found in Barnes' Code, 1923) and chapter 112, Ac......