Swan v. Pople

• Decision Date: 03 April 1937
• Docket Number: 8372
• Citation: Swan v. Pople, 118 W.Va. 538, 190 S.E. 902 (W. Va. 1937)
• Parties: SWAN v. POPLE et al.
• Court: West Virginia Supreme Court

190 S.E. 902

118 W.Va. 538

SWAN v. POPLE et al.

No. 8372

Supreme Court of Appeals of West Virginia.

April 3, 1937

Submitted February 10, 1937.

Syllabus by the Court.

1. "The right of complete user of real estate by a devisee for support and maintenance creates in fact a fee simple." Syllabus, Grimmett v. Meadows, 116 W.Va. 384, 180 S.E. 534.

2. A grant, by deed, of an interest in real estate, described as "all of the right, title and interest of every kind and description in and to all of the real estate that was, and is, devised unto the said James J. Barry, * * * in and by the terms and provisions of the last will and testament of John D. Barry, deceased," etc., when in fact under said will the grantor's mother acquired all of the decedent's real estate in fee simple, will not be treated as an assignment of said grantor's expectancy in his mother's estate, and enforced against such property as was devised as aforesaid to grantor's mother and which he later acquired from her by inheritance.

Appeal from Circuit Court, Marion County.

Suit by J. M. Swan, receiver, etc., against Dorsey Pople, John F Barry, and others. From an adverse decree, plaintiff appeals and defendant Barry cross-assigns error.

Reversed and remanded.

Victor H. Shaw, of Fairmont (H. H. Rose, of Fairmont, of counsel) for appellant.

James A. Meredith and L. T. Eddy, both of Fairmont, for appellee John F. Barry.

RILEY Judge.

This is a lien creditors' suit, one of its objects being to subject the one-seventh interest of James J. Barry in three certain parcels of real estate to sale in satisfaction of two judgments, rendered against him in 1929, and owned by plaintiff, J. M. Swan, receiver of the Union National Bank of Fairmont, as assignee.

James J. Barry is the son of the late John D. and Bridget Helen Barry, the former having died testate in 1921 and the latter, intestate in 1932. In addition to James J. Barry, there were six other children in the Barry family-all living at the time of the death of their mother. In 1929, James J. executed a certain deed of trust, with covenants of general warranty, on a one-seventh interest in property which embraced the three parcels aforesaid to secure his brother, John F., as holder of, and indorser on, certain notes of the grantor. John F. filed an answer in the instant case in his individual right, and as administrator of the estate of his mother, Bridget Helen Barry. And to this the plaintiff replied generally. On the foregoing pleadings, the question was raised as to whether James J. Barry had obtained his interest in the said parcels under his father's will, or whether he took it by inheritance from his mother, a beneficiary under said will.

The commissioner in chancery reported, among other things, that Bridget Helen Barry took a life estate under the will of her husband, and that the deed of trust lien of John F. Barry was first in priority after taxes. The chancellor overruled exceptions to such report, and entered a decree in accordance therewith. It is from such decree the plaintiff appeals.

The will, the construction of which is involved, provides, in part, as follows:

"Subject to the payment of my just debts, as provided hereinabove, I will, devise and bequeath unto my beloved wife, Bridget Helen Barry, all of the rest and residue of my property, and estate of every kind and description, and wherever situated, of which I may die seized and possessed, or to which I may be entitled, to be held, used and controlled by her during her life, with full and complete power to her to use and consume all of my personal estate, or such part thereof as she may need for her support and maintenance; and with further power and authority to her to sell and convey and part or portion or all of the real estate of which I may die seized and possessed, or to which I may be entitled, as she in her judgment may deem necessary for her support and maintenance, or for the benefit of my estate, and the proceeds arising from such sale may be used by her as she may deem proper for her own use or for the promotion of my estate; and I do fully empower and authorize her to make such sale or sales upon such terms as she may deem proper, either for cash or on credit, or partly for cash, and partly on credit, and I do further authorize and empower her to make, execute and deliver to the purchaser of such real estate, good and sufficient deeds or title papers, necessary or required to vest good title in such purchases in and to such property that she may so sell and convey.

After the death of my said wife, it is my wish and will, that all of my estate then remaining, real, personal and mixed, shall go to, and be possessed and held by all of my children, the same to be so held and possessed by them, equally, share and share alike."

Plaintiff contends that Bridget Helen Barry took a fee simple under the will, and that, therefore, the defendant James J. Barry had no interest in the several parcels of real estate at the time he executed the deed of trust. This court is committed to the position that where there is a gift for life, to which is added a general power of disposition, either express or implied, the estate created is not a life estate with power of disposal, but is an absolute fee simple estate, thus rendering subsequent limitations over repugnant and void. Grimmett v. Meadows, 116 W.Va. 384, 180 S.E. 534, 535; Hustead v. Murray, 115 W.Va. 660, 177 S.E. 898; Ogden v. Maxwell, 104 W.Va. 553, 140 S.E. 554; National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 36 A.L.R. 1171; Blake v. Blake, 92 W.Va. 663, 115 S.E. 794; Morgan v. Morgan, 60 W.Va. 327, 55 S.E. 389, 9 Ann. Cas. 943. But are the terms of the will such as to bring it within the rule? Does it plainly appear from the language used that the testator intended the power of disposal to be absolute? See Woodbridge v. Woodbridge, 88 W.Va. 187, 106 S.E. 437. In Grimmett v. Meadows, supra, in which the will provided: "I give and bequeath to my wife * * * the residue of my estate, both real and personal * * * my said wife to use the said residue of my estate for personal support and maintenance so long as she shall live," this Court held that "The right of complete user of real estate by a devisee for support and maintenance creates in fact a fee simple."

In our opinion, the will vests in Bridget Helen Barry an absolute right to dispose of decedent's real estate. In Virginia, May v. Joynes, 20 Grat. 692, and in West Virginia, Morgan v. Morgan, supra, finally established the rule that the general power of disposal of property following a life estate expresses an intent to give a fee-simple estate. The cases of Wise v. Hinegardner, 97 W.Va 587, 125 S.E. 579; Stout v. Clifford, 70 W.Va. 178, 73 S.E. 316; and Woodbridge v. Woodbridge, supra, are relied upon by counsel for John F. Barry. None of these cases take the instant case out of the rule. In the Woodbridge Case, there is no express provision in the will as to a remainder over. The will in Stout v. Clifford, supra, contains no express power of disposal. Such case really stands for the proposition that the power of disposal must be clear and absolute. And in Wise v. Hinegardner, supra, which construes a will in which the power of disposal by...