Sutherland's Ex'rs v. Sydnor

• Decision Date: 10 May 1888
• Citation: 84 Va. 880,6 S.E. 480
• Parties: Sutherland's Ex'rs et al. v. Sydnor et al.
• Court: Virginia Supreme Court

6 S.E. 480

(84 Va. 880)

Sutherland's Ex'rs et al.

v.Sydnor et al.

Supreme Court of Appeals of Virginia.

May 10, 1888.

Wills—Construction—Estate of Devisee.

A testator bequeathed land to his two daughters, I. and M., during life; adding that, in case of I.'s death without an heir, he wished her portion to revert to M., or her living heirs or heir. M. died first, leaving an infant son, and subsequently I. died without issue. Held, that M. took a life-estate only, and the fact that the testator, at the close of the will, says, "Having disposed of what I have, "and in another part speaks of a devise to his son as "his portion of my estate, " does not manifest such intention to devise his whole estate as to warrant construing the above clause to convey a fee to M.

Appeal from circuit court of city of Petersburg.

W. R. MeKenney and J. & Bernard Mann, for appellants.

R. H. & W. R. Jones, for appellees.

Lewis, P. The question in this case involves the construction of so much of the third clause of the will of Fendall M. Sutherland, deceased, as is in these words: "I leave my two daughters, Ida E. and Mollie E. Sydnor, my homestead tract, containing 275 acres of land, more or less, during life. In case of Ida Elizabeth's death without an heir, I wish her portion to revert back to Mollie E. Sydnor, or her living heirs or heir." The testator died in 1881, and his will was duly admitted to probate by the county court of Din widdie county, of which county the testator in his life-time was a resident. He died, leaving four children, of whom three were among his devisees and legatees. In 1883, Mollie E. Sydnor died intestate, leaving as her sole heir at law an infant son, Frank M. Sydnor. In 1885, Ida E. Sutherland died intestate, over 21 years of age, unmarried, and without issue, leaving as her heirs at law her mother, Emma P. Sutherland, her brothers, B. E. and Eddie M. Sutherland, and her nephew, the said Frank M. Sydnor. The bill was filed in 1886 for a construction of the will; and the question is whether Mrs. Sydnor took an estate in an undivided moiety of the homestead tract of land in fee or for life. By the decree complained of it was held that she took an estate in fee, which at her death descended to her son and heir at law. On the other hand, the appellants contend that she took a life-estate only; and in this view we concur.

In the construction of wills, effect must be given to the intention of the testator, if that can be discovered and is consistent with the rules of law. But the intention must be expressed, and with legal certainty, otherwise the title of the heir at law must prevail; for conjecture can never be made to supply what the testator has failed to sufficiently express on the face of the will. "The law has provided a definite successor to the estate in the absence of a testamentary disposition, and the heir is not to be disinherited unless by express words or necessary implication." Woottoen v. Redd's Ex'rs, 12 Grat. 196; Hatcher v. Hatcher, 80 Va. 169; Smith v. Bell, 6 Pet. 68. Now, in the present case, the testator in express words...