Thom's Ex'r v. Thom

• Decision Date: 02 December 1897
• Citation: 28 S.E. 583,95 Va. 413
• Parties: THOM'S EX'R v. THOM et al.
• Court: Virginia Supreme Court

28 S.E. 583

95 Va. 413

THOM'S EX'R

v.THOM et al.

Supreme Court of Appeals of Virginia.

Dec. 2, 1897.

Wills—Power of Beneficiary to Sell.

Where a will gave the estate upon trust to the executor to invest and pay the income to certain beneficiaries, and, at the death of the survivor, to turn the corpus over to another, such beneficiaries are entitled to the estate freed from the control of the executor, on purchase of the interest of the remainder-man.

Appeal from corporation court of Fredericksburg.

Bill by Bernadino E. Thom and others against William A. Little, Jr., executor of the estate of Mary Thom, deceased, to carry out a contract between the beneficiaries named in the will, and to have the estate turned over to certain complainants. Decree for complainants, and defendant appeals. Affirmed.

Little & Little and B. T. Crump, for appellant

W. S. White and Leake & Carter, for appellees.

HARRISON, J. Miss Mary Thom died in June, 1894, leaving the following will:

"I, Mary Thom, of the city of Fredericksburg, and state of Virginia, do make this, my last will and testament, revoking all other wills at any time made by me.

"First. I give and devise to my executor hereinafter named all my estate, of every kind and description, upon trust, to take possession of and invest said estate in good and safe Interest-bearing bonds, or other securities, and to pay the interest, dividends, and profits arising from the same annually to my three nieces, Nannie S. Goodwin, Betty C. Goodwin, and Janet Goodwin, in equal portions, during their joint fives, and, at the death of any one of my said nieces, then to pay the said interest, dividends, and profits to the survivors, equally, during their joint lives, and, at the death of either of said survivors, to pay the said interest, dividends, and profits to the survivor, during her life; and, at the death of the survivor, I give the remainder of my estate to my nephew, Bernadino E. Thom, of Cerulean Springs, Trigg Co., Kentucky, in fee simple.

"Secondly. Out of the income derived from my said estate, I request my said nieces, and the survivors and survivor, as aforesaid, to contribute annually to St. George's Episcopal Church, of Fredericksburg, Virginia, the sum of twenty dollars, and to the contingent fund of the diocese of Virginia three dollars annually, and to the Female Charity School of said church of Fredericksburg, Va., two dollars annually, making a total of twenty-five dollars annually.

"Thirdly. I hereby appoint and constitute Wm. A. Little, Jr., executor of this, my last will and testament.

"Witness my hand this 26th day of February, in the year of our Lord 1891.

"Mary Thorn."

In June, 1895, the beneficiaries named in the will entered into a contract in writing by which the nephew, Bernadino E. Thorn, agreed to sell his Interest in the estate as remainderman to the three life tenants for the sum of $1,500, and further agreed that the life tenants should institute suit in his name and theirs, in the proper court, asking for a...