Stokes v. Wyck

• Decision Date: 22 September 1887
• Citation: 83 Va. 724,3 S.E. 387
• Parties: Stokes and others v. Van Wyck and others.
• Court: Virginia Supreme Court

3 S.E. 387

83 Va. 724

Stokes and others

v.Van Wyck and others.

Supreme Court of Appeals of Virginia.

September 22, 1887.

Will—Construction.

A testator, by a will dated in 1830, devised certain land to his daughter and her husband during their joint lives, and to the survivor of them during the life of such survivor; and, if his daughter should die leaving issue, then such land to go to such issue and heirs after the termination of the life-estate; "but, if my said daughter should die without leaving such issue, then my will is that * * * the said land and plantation should pass and descend to my heirs according to the laws of descent in Virginia, and their heirs forever." The testator died in 1834, leaving his said daughter as his sole heir at law. Her husband died in 1854, and she died in 1884 without having had, and without leaving, issue. Held, that the limitation over to the heirs of the testator according to the laws of descent in Virginia, and their heirs forever, referred to those who were his heirs at the time of his death, and not to those who might be his heirs at the time of his daughter's death; and that the daughter took a fee-simple estate in the said land, which was determinable by her having issue at her death, and which became absolute upon her death without issue.

Richardson, J. This is a writ of error to a judgment of the circuit court of the city of Norfolk, rendered on the twenty-ninth of May, 1885, in an action of ejectment wherein Mary Stokes and others were plaintiffs, and H. D. Van Wyck and others were defendants. The case presented by the record is this:

William Boush died testate in 1834, leaving one child, Elizabeth Jacossine, wife of David M. Walke. His will was dated June 3, 1830, and was probated in February, 1834. Its construction is involved in this case. The sixth clause thereof, the one in question, is as follows:

"Item 6. I give and bequeath to my daughter, Elizabeth Jacossine Walke, and her husband, David M. Walke, during their joint lives, and to the survivor of them during the life of such survivor, the land and plantation whereon I now live, in the county of Princess Anne; and, if my said daughter should die leaving issue at her death, I do give and bequeath the said land and plantation, after the termination of the life-estates aforesaid, to such issue, and to his, her, or their heirs, forever; but, if my said daughter should die without leaving such issue, then my will and desire is that after the death of my son-in-law, David M. Walke, the said land and plantation should pass and descend to my heirs according to the laws of descent in Virginia, and their heirs, forever."

At the testator's death his said daughter, Elizabeth Jacossine Walke, was his sole heir at law. Her husband died in 1854. She died in 1884 withouthaving had, and without leaving, issue. The testator had only one brother, Caleb Boush, and only one sister, Elizabeth J. Boush. The plaintiffs are the descendants of this brother and sister, and are the heirs at law of said William Boush, living at the death of his said daughter in 1884. In 1857, Mrs. Walke sold and conveyed the said land and plantation to Francis Mollony. His executor, in 1860, sold and conveyed it to Peter C. Tompkins, who, in 1869, sold and conveyed the same to George P. Gordon. The latter died in 1879, intestate, leaving a daughter, Mary Gordon, as his sole heir, and his widow, Louisa M. Gordon, who afterwards intermarried with H. D. Van Wyck, and is now his wife. In March, 1885, the plaintiffs, who are the descendants of Caleb Boush and Elizabeth Boush, the brother and sister of the testator, William Boush, brought their action of ejectment against said Van Wyck and wife to recover said land and plantation, in the said sixth clause of the testator's will mentioned. The defendants pleaded "iiot guilty, " and issued was joined thereon.

During the trial the plaintiffs asked for the following instruction, which the court refused to give: "If the jury believe from the evidence that the tract of land in the declaration described was devised by William Boush to his daughter Eliz. J. S. Walke; that she died in the month of----, 1884, without issue; that her husband, David M. Walke, predeceased her; that the said tract of land was sold by David M. Walke and Eliz. J. S., his wife, to Francis Mollony; by M. F. Mollony, the executor of Francis Mollony, to Peter C. Tompkins; by Louisa A. Tompkins, executrix of Peter C. Tompkins, to George P. Gordon; that the defendants are the widow and heirs at law of said Gordon; and that the plaintiffs are the heirs at law of the said William Boush, living at the death of his daughter, Eliz. J. S. Walke, —then they should find for the plaintiffs." On the other hand, on the motion of the defendants, the court gave to the jury the following instruction, —which first recited the said sixth clause of testator's will, as given above, and, secondly, recited the ninth clause of said will, which is as follows: "Item 9. I giveand bequeath to my said daughter, Elizabeth Jacossine Walke, all the rest and residue of my lands and real estate during her natural life, and, if she should have issue at her death, then to such issue and their heirs forever; but, if she should die without such issue, then the said lands to pass and descend to my heirs according to the laws of descent in Virginia, and to their heirs, forever, "—and proceeds thus: "The court instructs the jury that the ultimate devise, under the foregoing clauses of the will of William Boush, to the heirs of William Boush, according to the laws of descent in Virginia, and their heirs, forever, refers to such person or persons as were the heirs of William Boush at the time of his death, and not to such persons as were the heirs of William Boush at the death of his daughter, Elizabeth J. Walke; and if the jury believe, from the evidence, that Elizabeth J. Walke was the only child and heir of William Boush at the time of his death, then they must find for the defendants."

To the refusal of the court to give the instruction asked for by them, and to the giving of the instructions asked for by the defendants, the plaintiffs excepted. The jury found for the defendants, and the plaintiffs moved the court to set aside the verdict, and grant a new trial, on the ground of misdirection, and that the verdict was contrary to the evidence; but the court overruled the motion and gave judgment according to the finding of the jury; and the plaintiffs again excepted. To this judgment a writ of error was awarded the plaintiffs. The sole question for determination is, did the limitation over to "the heirs of William Boush, according to the laws of descent in Virginia, and theii heirs forever, " refer to those who were his heirs at the time of his death, or to those who might be his heirs at the time of his daughter's death?

The circuit court, by its instruction given at the instance of the defendants Vielow, the defendants in error here, ruled that the limitation referred to thosewho were "William Boush's heirs at the time of his heath, and that ruling is assigned as error for which the judgment complained of should be reversed. And, for the plaintiffs in error, counsel ably and learnedly contend that, under the true construction of the said sixth clause of the testator's will, the limitation over refers to those who should be the heirs of William Boush at the death of his daughter, the said Elizabeth Jacossine Walke. The effect of the. rulings of the circuit court, in refusing the instruction asked for by the plaintiffs, and in giving the instruction asked for by the defendants, was, necessarily, that the defendants were the true owners of the land in controversy, they being the alienees of Mrs. Walke, who was the sole heir at law of William Boush at the time of his death; while, for the converse reason, the plaintiffs in error insist that they, and not the alienees of Mrs. Walke, are the true owners of said tract of land. To determine whether the one or the other of these contentions is the true one depends upon the proper interpretation of the testator's will; or, to state it differently, whether the trial court erred in refusing the instruction asked for by the plaintiffs, and in giving that asked for by the defendants. The question, then, is resolved into another, substantially the same, though presented in a different form, namely: What estate did Mrs. Walke take under said sixth clause? The answer to this question necessarily depends upon the testatorial intention, to be gathered from the will itself, and" nothing else, if that instrument is intelligible, and not obnoxious to any recognized principle of law.

In construing wills, it is universally admitted that the intention of the testator must be sought after as the "pole star, "and, when found, must be followed as the "sovereign guide, " and that the intention must be looked for and found in the will itself. But it must be borne in mind, however, that the true inquiry is not what the testator meant to express, but what the words used by him do express. Burke v. Lee, 76 Va. 389. And it must also be remembered that though the testator's intention, when ascertained, is implicitly obeyed, however informal the language in which it is conveyed, yet the courts, in construing that language, always resort to certain established rules—rules deeply embedded in the law—by which particular words and expressions, standing unexplained, have acquired a definite legal signification, which does not always comport with their popular acceptation. 3 Jarm. Wills, top pp. 669, 670. And Lord Coke says: "In such cases, I have learned this good rule: always to judge as near as may be according to the rules of law."

The sixth clause of the will limits to Mrs. Walke an estate for life, with remainder to her issue in fee, and, in default of issue, to the testators's heirs. The legal effect of these limitations must, of course, be viewed in the light...