Toothman et al. v. Barrett et al.

• Decision Date: 30 November 1878
• Parties: Toothman et al. v. Barrett et al.
• Court: West Virginia Supreme Court

14 W.Va. 301

Toothman et al. v. Barrett et al.

Supreme Court of Appeals of West Virginia.

Decided November 30, 1878.

S. B. died in 1858 and by his will provided: 1st. He gave to his, daughter E. an equitable estate in all his lands, 2d. He gave-to his son J. after the decease of bis daughter E., all his lands to him or his heirs subject to the payment of 461.00 of legacies, within rive years after her decease; and then adds also, in case that J. shall decease previous to the death of E.; or fail to discharge the before recited payments due or may become due on account of inability on the part of J., in either case the land to be sold by my executor, and the proceeds to be equally divided between W., C, H. & S., (who were the legatees to the amount of $400.00) and the child or children of J., when they may hecome to twenty-one years of age; and 3d. He gave $11.00 of additional legacies "to be paid by J., or in either case of his death or inability as before recited, by my executor;" and he appoints an executor, J. died in 1855 and E. in 1874. Before J's death he deeded his interest in the estate to 0., who it is claimed purchased the interest of the legatees, W., H. and S., paying to them the full amount of their legacies. Held:

By the first part of the third clause of this will J. took a contingent remainder in fee in the lands of the testator after the death of the life-tenant E., which by the last part of this third clause was liable to be divested by his failure to discharge, when due, the $461.00 of legacies; that the word "or" used in the first part of the third clause of this will, and the same word used in the latter part of the same clause, cannot either of them be construed to mean "and''; and that in the events which occurred, the children of J. are entitled to one-fifth of the proceeds of the land after the payment of the legacies, other than the $400.00 left-to W., C, 11. and S.

Appeal from and supersedeas to a decree of the circuit court of Wood county, rendered on the 13th day of October, 1877, in a cause in said court then pending, wherein Thornton F. Toothmanand others were plaintiffs, and Samuel Barrett and others were defendants, granted on the petition of Thornton F. Toothman, Sallie Toothman, Benjamin Walker Jr. and Matilda Walker.

Hon. James Monroe Jackson, judge of the fifth judicial circuit, rendered the decree appealed from.

Green, President, furnishes the following statement of the case.

Samuel Barrett died in 1838 leaving a will, of which the following is a copy:

I "I, Samuel Barrett, of Wood county, Virginia, do hereby make my last will and testament in manner and form following that is to say:

"1st. I desire after my decease my funeral expenses to be paid out of money that I may leave at my decease, or so much of my perishable property as may satisfy the same.

"2d. After the payment of my debts and funeral expenses, I give to my friend, Thomas Tavenncr, in trust for my beloved daughter, Elizabeth Barrett, the proceeds of all my real estate, to be delivered at the house where the said Barrett now resides, which house and privilege she is to have during her life; also one yoke of oxen, two cows and one calf, five hogs, eight sheep together with all my household and kitchen furniture, all of which said property, or so much thereof as may remain in the hands of the said Thomas Tavenner, to be given to any person or persons whomsoever she, the said Elizabeth, may direct, at or after her decease.

"3d. I give to my beloved son, Jefferson Barrett, after the decease of my daughter, Elizabeth, all my land to him or his heirs, by him, the said Jefferson, paying $461.00 in form and manner following, to-wit: To pay my son, William Barrett, $100.00 in one year after the death of Elizabeth; also to pay unto my son, Caleb Bar-, rett, one other $100.00 in one year after the payment due to William: also to pay to Henry Lower $100.00 in one year after the payment due to Caleb; also to pay to Samuel Barrett one other $100.00 in one year after the payment due to Lower: also $50.00 to my granddaughter, Ann Vaughan, in one year after the payment due to Samuel; and also, in case that Jefferson Barrett should decease previous to the death of Elizabeth, or fail to discharge the before recited payments due, or may become due, on account of inability on the part of Jefferson, in either case, the land to be sold by my executor I shall hereinafter name, and the proceeds to be equally divided between William Barrett, Caleb Barrett, Henry Lower, Samuel Barrett, and to the child or children of Jefferson Barrett, when they may become to twenty-one years of age.

a4th. I also give and bequeath to each of the children of my son, John Barrett, deceased, $1.00 each; and also to the children of Patrick Caldwell $1,00 each; also to the children of my daughter, Anna Vaughan, deceased, each $1.00, to be paid unto each and all at or before the payment of the $50.00 to Ann Vaughan, to be paid by Jefferson Barrett, or, in either case of his death or inability, as before recited, by my executor; and lastly, I do constitute and appoint my friend, Isaac MePherson, executor of this, my last will and testament, hereby revoking all other or former wills or testaments by me heretofore made.

" In witness whereof, I have hereunto set my hand and affixed my seal, this 11th day of April, in the year of our Lord 1838.

11 Samuel Barrett. [Seal.] "

On October 6, 184J, Jefferson Barrett, named in this will, sold to his brother Caleb Barrett, "all his right, title, interest, claim and demand, that he had or might have, to the estate of Samuel Barrett, deceased, by his last will, thereby investing him Caleb Barrett with the ~ whole estate in the real estate devised to him, Jefferson Barrett, subject to same conditions, on which he held or might hold, and not otherwise, thereby ratifying and confirming this real estateunder the conditions and limitations named in said will to him Caleb Barrett his heirs and assigns forever.

In 1842 and 1846 Caleb Barrett also purchased from William Barrett and Samuel Barrett their interest in said estate for $100.00, and paid the same; audit is alleged in the answer of the children of Caleb Barrett, deceased, that he likewise bought in like manner the interest of Henry Lower for $100.00, and paid the same, but though the deed therefor is said to be fifed with this answer, it is not found among the papers of this cause.

Elizabeth Barrett died in 1874, Jefferson Barrett died in 1855 or 1856, leaving two daughters, Sallie, who married Thorton F. Toothman, and Matilda, who married Benjamin Walker, Jr.; and they having attained the age of twenty-one with their husbands in 1875 instituted a suit in chancery in the circuit court of Wood county, against William Barrett, Samuel Barrett, Mary Lower, widow of Henry Lower, and his unknown heirs, the children of Caleb Barrett, deceased, and numerous other parties interested in the estate of Samuel Barrett under said will.

The bill and amended bill set out the facts above stated except the purchases made by Caleb Barrett of William Barrett, Samuel Barrett and Henry Lower^ which are stated in the answer of the children of Caleb Barrett, who filed with their answer the evidence of the purchase, and payment therefor, of the interest of William and Samuel Barrett, but not that of Henry Lower.

The bills claim, that under the will of Samuel Barrett, as Jefferson Barrett died before Elizabeth Barrett, the real estate, devised to her for life by Samuel Barrett's will by the third clause thereof, was to be divided into five equal parts, one part going to the assignors or heirs of William Barrett, of Caleb Barrett, of Henry Lower and of Samuel the plaintiffs, as children of Jefferson Barrett.

The answer of the children of Caleb Barrett claims, that on the death of Elizabeth Barrett they became entitled to all the real estate left to her for life by reason of the purchase of Caleb Barrett, their father, of Jefferson Barrett and the payment by Caleb Barrett of the $100.00 to William Barrett, Henry Lower and Samuel Barrett respectively before the death of Elizabeth Barrett, these being the sums provided to be paid them by the third clause of this will. They admit, that the sums due Ann Vaughan and the various parties named in the fourth clause of the will have not been paid, the same not being yet due.

The bills were demurred to by some of the parties defendant; and they were regularly taken for confessed as to all the other defendants. And on October 13, 1877, the court rendered the following decree:

"And now at this day, to-wit: At a circuit court continued and held for Wood county, on the 13th day of October, 1877, the process in this cause having been duly served upon John Barrett, John A. Saunders and Lucy E. Drake, and the bill taken for confessed, and cause set for hearing as to them, they still failing to appear, answer and plead, and the order of publication being duly published and posted as required by law as to the absent defendants and the unknown parties, children, grandchildren and devisees of Samuel Barrett the elder, deceased. This cause came on this day to be heard upon the bill and the amended bill and exhibits filed therewith, taken as for confessed as to the above named home defendants; on the order of publication as to the absent defendants, duly published as aforesaid; upon the answers of Arthur Barrett and Sophronia K. Barrett to said bill and amended bill, and general replication thereto; upon the joint and several demurrer and joint and several an- swerof the defendants, Turner Chapman and Mary Chap[ man, his wife, Thomas Barrett, Caleb Barrett, James Gaston and Samuel Mathers and Sallie Mathers, his wile, to said bill and amended bill, with general replication thereto; on the exhibits tiled with said last mentioned joint and several answer; and was argued by counsel. Upon consideration whereof the court is of opinion, that the demurrer is not well taken,...