Steffey v. King

• Decision Date: 17 September 1919
• Citation: 101 S.E. 62
• Parties: STEFFEY et al. v. KING et al.
• Court: Virginia Supreme Court

101 S.E. 62

STEFFEY et al.

v.KING et al.

Supreme Court of Appeals of Virginia.

Sept. 17, 1919.

Appeal from Circuit Court, Wythe County.

Bill by S. R. King and others against J. A. B. Steffey and others. From a decree for complainants, defendants appeal. Reversed.

W. B. Kegley and W. S. Poage, all of Wythevllle, for appellants.

J. C. Shaffer, of Wytheville, for appellees.

KELLY, J. In the year 1889 Thos. L. Kasey, being the owner of a house and lot and about 18 acres of land, died and left a will, which so far as material to this controversy was as follows:

"Secondly it is my will and desire that my beloved wife, Sarah E. Kasey have all of my property that I may be possessed of at the time of my death—both real estate and personal property. The real estate consists of one house and lot situated at Crocketts Depot and eighteen or twenty acres of land situated on the north side of the railroad formerly belonging to Jas. E. Ward but sold by decree of the circuit court of Wythe county, for which no deed has been made to me yet. In case of my death before the court makes me the deed, it is my desire that said court make deed for said eighteen or twenty acres to my beloved wife, Sarah E. Kasey.

"It is my will and desire that my wife Sarah E. Kasey have absolute control, of all of the aforesaid property during the term of her natural life. If at my wife's death there remains anything over and above her support, it is my will and desire that Bessie H. Foster, a girl that I have raised have all of the personal property and real estate to have and to hold forever."

Pursuant to the terms of the will, Mrs. Kasey at once took possession of all the real and personal property devised and bequeathed to her, and subsequently received a deed from a commissioner of the circuit court of Wythe county for the land as to which her husband had not perfected, his title. She sold about 6 acres of this land prior to her death, but retained the house and residue of the land, about 12 acres, and the personal property until her death. Bessie H. Foster, mentioned in the will, was T. L. Kasey's niece, and after his death continued to make her home with Mrs. Kasey.

Upon the death of Mrs. Kasey, which occurred on the 24th day of January, 1907, Miss Foster took possession of the real and personal property remaining undisposed of, claiming and treating. It as her own, and her right and title thereto was never questioned by anybody until this suit was brought in 1917. In January, 1908, she married John H. Riggle, and she and her husband decided to move to Tennessee. They advertised forsale and sold at public auction on February 22, 1908, the house and lot and 12 acres of land. The notice of this sale was widely circulated, the sale itself was largely attended, and the parties, or certainly most of them, who are now claiming adversely to the title acquired at that sale, knew all about it, and never once challenged its validity until they did so by the litigation in which this appeal was granted.

At the sale J. A. B. Steffey bought the house and lot at the price of $1,000, Volney H. King 6 acres of the land at the price of $S85, and A. S. Dix the remaining 6 acres at the price of $885. Subsequently King sold a portion of his 6 acres to L. D. Kesner. Possession was immediately taken, and all of the property thus sold has ever since been held by the purchasers in open, notorious, adverse, and exclusive possession.

In May, 1917, more than 10 years after the death of Mrs. Kasey, and, as appears from the facts already stated, more than 10 years after Bessie Foster had entered into the possession, which has continued uninterruptedly ever since, S. E. King and others, the heirs at law of Mrs. Kasey, filed their bill in equity against the aforesaid purchasers and occupants of the real estate, claiming title thereto, and praying the court to remove the cloud thereon, which they alleged existed by reason of the deed executed by Bessie Riggie and her husband. This claim on the part of the heirs of Mrs. Kasey is based upon the language of her husband's will; their contention being that under a proper construction thereof Mrs. Kasey took a fee-simple title to the real estate, and that the remainder over to Bessie Foster was void for uncertainty.

The defendants to this bill, J. A. B. Steffey and others, relied upon three defenses: First, that the remainder over to Miss Foster was good; second, that the plaintiffs were estopped by their own acquiescence and conduct; and, third, that the suit was barred by the statute of limitations. A jury was waived, and all matters of law and fact were submitted to the circuit court, which found against the defendants upon all three of these grounds. In rejecting the plea of the statute of limitations, however, the court seems to have found as a fact, and the evidence conclusively shows, that the defendants and those under whom they claimed have been in open, notorious, adverse, and exclusive possession of the real estate for more than 10 years prior to the institution of the suit; and the plea of the statute of limitations was rejected on the ground that by virtue of the provision of section 2919 of the Code "the period of one year from the death of Sarah e. Kasey should be excluded from the period of possession claimed and held by the defendant."

It is assigned as error that the court erred in holding that Mrs. Kasey upon a proper construction of her husband's will took a fee-simple title in the real estate.

We have no difficulty in disposing of this assignment. It cannot be sustained without overturning the rule generally designated as to the doctrine of May v. Joynes, 20 Grat. (61 Va.) 692. The many cases in which this court has approved that rule are collected by Judge Burks in a note to the opinion in Conrad v. Conrad, 123 Va. 711, 97 S. E. 337, and need not be cited here. Taking the language of the will as a whole, there is no escape from the conclusion that Mr. Kasey intended to give his wife the absolute power of disposal during her lifetime, and therefore under the decisions just mentioned the remainder over was void.

It may be, as argued by counsel for the appellants, that the rule in question often operates to defeat the real intention of the testator. The Legislature seems to have thought so when it passed the act effective June 26, 1908 (Acts 1908, c. 146), amending section 2418 of the Code. The will in the instant case, however, took effect before that act was passed, and nothing remains for us to do with this branch of the case but to follow the rule which, as Judge Harrison said in Farish v. Wayman, 91 Va. 430, 21 S. E. 810, has become a canon of property.

Nor do we think that, as claimed by appellants, the circuit court committed any error in holding that the appellees were not estopped by their conduct and long silence from asserting title to the land. The assertion of title by the heirs of Mrs. Kasey at this late day appears to have resulted from an accidental discovery of the misapprehension under which all parties concerned had evidently rested for more than 10 years as to the true legal effect of the will, and the situation from the standpoint of the appellants appeals strongly to a sense of natural equity and justice. The facts, however, do not bring...