Todd v. Mcpall

• Decision Date: 09 March 1899
• Citation: 32 S.E. 472,96 Va. 754
• Parties: TODD et al. v. McPALL et al.
• Court: Virginia Supreme Court

32 S.E. 472

(96 Va. 754)

TODD et al.

v.McPALL et al.

Supreme Court of Appeals of Virginia.

March 9, 1899.

Wills—Construction—Debts—Payment of Legacies—Real Property—Judgment— Rehearing.

1. A will declaring that testator's undivided share in partnership land was realty thereby fixes the character of such property as against the beneficiaries, though otherwise such land would be treated as personalty.

2. A will stated that testator bequeathed all his "personal property" to his nephews, "subject to certain legacies hereinafter specified." It then devised all "real property" to the nephews, followed by a bequest to M., payable from his "said estate." The will was not written by a lawyer. Held, that the land was not chargeable with the payment of M.'s legacy, where the personal property was insufficient to pay it.

3. Where a will provided for the payment of a legacy from testator's personal property, the legatee is not entitled to payment from lands on which there was a vendor's lien, which was paid from the personal property as a debt of the estate, thereby rendering such property insufficient to pay the legacy.

4. Ten years' acquiescence in an interlocutory decree declaring that a legatee is entitled to a sum out of testator's "estate" does not estop the devisees from having a rehearing, wherein they may show that the legatee is not entitled to have the legacy charged on testator's lands, where they promptly applied for the rehearing when they learned that the legatee claimed payment from the land.

Appeal from circuit court, Augusta county.

Suit by Catherine McFall and others against James Todd and another to charge devised land with the payment of legacies. Decree for plaintiffs, and defendants appeal. Reversed.

George M. Cochran and Elder & Elder, for appellants.

Jas. Bumgardner and H. St. G. Tucker, for appellees.

RIELY, J. This case presents for decision the single question whether the legacies to Catherine McFall are a charge upon the real estate devised to James Todd and Rankin Todd.

It is universally conceded that, as a general rule, the personal estate is not only the primary, but the only, fund for the payment of legacies. It is equally a general rule that the real estate is not chargeable under the law with their payment, if the personal estate proves insufficient, unless the testator has charged the land with their payment. This he may do either in express terms or by implication, but his intention to do so must be clear and manifest. And so, in every case, whether the real estate is charged with the payment of legacies is a question of intention. The intention to charge must be either expressly declared, or be clearly dedu-cible from the language and dispositions of the will.

In the case of Lupton v. Lupton, 2 Johns. Ch. 614, Chancellor Kent said: "The real estate is not, as of course, charged with the payment of legacies. It is never charged, unless the testator intended it should be; and that intention must be either expressly declared, or fairly and satisfactorily inferred, from the language and dispositions of the will. This general rule does not seem to admit of any dispute."

In the case of Lee v. Lee, 88 Va. 805, 14 S. E. 534, it was said by Judge Lewis: "The testator, however, may charge the land, and this may be done either expressly or by implication; but in any case the intention to charge must be clear, —so clear as to admit of no reasonable doubt."

In the case at bar, the testator, before proceeding to dispose of his estate, states in his will of what it consists. It is an undivided half interest of all property, both real and personal, held and owned by J. H. & P. Todd, except the gray horse Shiloh, which heclaimed as his individual property. It appears that the testator, Preston Todd, and his brother, James II. Todd, were engaged in the business of farming and dealing in cattle; that James married and raised a family of children, but that Preston never married; that they lived together all of their joint lives; that all of their business was carried on in the name of J. H. & P. Todd, James giving his attention to all the outside transactions of their business, buying and selling the cattle, and marketing the crops, while Preston cultivated and managed the farms, and looked after the stock; and that all their lands and personal property were jointly held and owned by them.

Whether the lands were owned in partnership, and impressed with the character of personalty, as is the case in equity for certain purposes with land so held, or whether they were held by James H. Todd and Preston Todd simply as joint owners, it is unnecessary to decide or consider. The testator, in making his will, made a clear distinction between the lands and personal property owned by J. H. & P. Todd. He regarded and treated his share of the personal property as personalty, and his share of the lands as realty. He had the right, as respects the objects of his bounty, in disposing of his estate, so to regard and treat his property; and in seeking for his intention, in the construction of his will, as to the fund from which the legacies are payable, his property must be so regarded and treated. Whatever right creditors might have to complain, clearly his beneficiaries cannot do so.

The testator, after stating of what his estate consists, bequeaths all his personal property, "subject to certain legacies hereinafter specified, " to his two nephews James Todd and Rankin Todd. He next devises all his real estate to them for life and their heirs after them. He then directs that the property devised remain undivided, and that the partnership previously existing be continued until May 1, 1883, by placing in his stead his said nephews. The object of this arrangement was, as he states, to provide for the payment of the "McCue Homestead, " which, it seems, he and his brother had recently purchased.

Having made the foregoing dispositions of his estate, he comes now to the legacies which he had in mind, and referred to when bequeathing his personal property. He gives to Catherine McFall the sum of $3,000, payable after May 1, 1890, in annual installments of $500, and also the sum of $180, to be paid annually to May 1, 1890, said moneys to be paid to the daughter of Catherine McFall, if the latter should die before May 1, 1890. He then gives a legacy of $50 for 10 years to "Mossy Creek Presbyterian Church"; and his horse Shiloh to his nephew Howard Todd.

It thus appears from the will that the testator expressly charged the legacies on his personal property. It is given to his nephews James and Rankin Todd, subject to the legacies to be thereinafter specified. The presumption is that he considered the personal property ample to discharge the legacies, or he would not have bequeathed it subject to the legacies; for, unless it was...