Tiffany v. Thomas

• Decision Date: 11 March 1937
• Citation: 190 S.E. 101
• Parties: TIFFANY . v. THOMAS et al.
• Court: Virginia Supreme Court

190 S.E. 101

TIFFANY .

v.THOMAS et al.

Supreme Court of Appeals of Virginia.

March 11, 1937.

Appeal from the Circuit Court, Fauquier County; J. R. H. Alexander, Judge.

Suit by Maude L. Thomas and others against Wallace N. Tiffany, guardian ad litem, and others. From the decree, defendant Wallace N. Tiffany, guardian ad litem, appeals.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Wallace N. Tiffany, of Warrenton, for appellant.

B. R. Glascock, of Warrenton, for appellees.

HOLT, Justice.

W. H. Silcott died testate on November 7, 1920. His will of date November 11, 1919, was admitted to probate on November 11, 1920. This suit is brought that it may be construed.

Will of W. H. Silcott:

"I, W. H. Silcott, do make this my last will and testament 1st. I will and bequeath to Carrie Fletcher the Logan tract of land containing about (8%) eight and one half acres 2nd I will to my Cousin Sarah E. Silcott Five Hundred Dollars ($500.00) 3rd. I will to my cousin Maud Downs Five Hundred Dollars ($500.00) 4th I will and bequeath to my sister Mattie V. Marston My Life Insurance in the New York Life Ins. Co. 5th I will and bequeath to my sister Maud L. Thomas the farm known as the Crane farm containing about (65) Sixty five acres. 6th I will and bequeath to my sister Mary Elizabeth Graham, the tract of land I bought of F. T. Craig containing about one hundred and fourteen acres (114) She to have said land and at her death it is to go to my sister Maud L. Thomas or her heirs. 7th The balance of my property I will to my sister E. J. Royston and brother Walter D. Silcott they to share equally and alike in said property. 8th I name as Executor of this will W. W. Holton. Witness my hand and seal to this my last will and testament this 11th day of Nov. 1919.

"W. H. Silcott (Seal)"

Plaintiffs' in the court below, Mary Elizabeth Graham and Maude L. Thomas, contend that together they take under clause 6 a fee-simple estate and that the word "heirs" as used therein is a word of limitation describing the quality of the estate devised and not a word of purchase which gives to the heirs of Mrs. Thomas any interest whatever. Petitioner claims that it is a word of purchase and operates to bestow a fee-simple estate upon these heirs should Mrs. Thomas die during the lifetime of Mrs. Graham.

Mrs. Graham is a widow and childless. Mrs. Thomas is a widow with two children, a daughter, Elizabeth A. Thomas, who is between thirty-one and thirty-two years old, and a son, Eugene Thomas, who is between twenty-seven and twenty-eight.

These children are made defendants and have answered. The bill also prays:

"That a guardian ad litem be appointed to defend the rights of the persons yet to be born or created answering the description at the death of Mary Elizabeth Graham as the heirs of Maude L. Thomas; and be required to answer for the persons yet to be born or created as aforesaid."

Wallace N. Tiffany was appointed guardian ad litem and in that capacity he too has answered.

This cause was heard on bill and answers and a final decree was then entered which reads in part as follows:

"Upon consideration whereof, the Court having maturely considered the will of W. H. Silcott, deceased, filed as exhibit 'A' with the bill of complaint, and having maturely considered the pleadings filed herein, is of the opinion and doth declare that an actual controversy exists between the complainants and the persons yet to be born or created aforesaid involving the interpretation of the aforesaid will of W. H. Silcott, deceased, and the Court is further of the opinion and doth so declare that in the will of W. H. Silcott, deceased, by which the testator in the Sixth Clause thereof declared:

"' * * * I will and bequeath to my sister Mary Elizabeth Graham, the tract of land I bought of F.' T. Craig containing about one hundred fourteen acres (114) She to have said land and at her death it is to go to my sister Maud L. Thomas or_ her heirs. * * *'

"The said Mary Elizabeth Graham took a life estate in said land, and the said Maude L. Thomas took a vested fee simple remainder therein with no limitation over to the heirs of the said Maude L. Thomas, and that the use of the word 'heirs' in said will is a word of limitation describing the quality of the estate devised to Maude L. Thomas, and not a word of purchase creating any contingent remainder in her heirs, if she should predecease the said Mary Elizabeth Graham."

From it the guardian ad litem has appealed. The children have not. In passing, it may be said that this litigation arises immediately out of the fact that these two sisters have secured a purchaser for this land who is ready and willing to take provided a title in fee simple can be given, but not otherwise.

As we have seen, the will gives this estate to "Maud L. Thomas or her heirs." A gift to A arid his heirs is a conventional form under which fee-simple title passes. Plaintiffs claim that this conveyance is insubstance that; and conveyed all that would have been conveyed had the will read "to Maud L. Thomas and her heirs." The guardian ad litem contends that it should be construed as written; that it is disjunctive and not conjunctive and conveys to these heirs, whoever they may be, as purchasers under the will of Mr. Silcott, a fee-simple estate, should Mrs. Thomas die during the lifetime of Mrs. Graham.

This cause turns upon a proper application of these principles:

"In the construction of wills it is a well settled rule that...