University v. Tucker
| Decision Date | 01 December 1888 |
| Citation | 8 S.E. 410,31 W.Va. 621 |
| Parties | UNIVERSITY et al. v. TUCKER et al. |
| Court | West Virginia Supreme Court |
Submitted June 18, 1S88.
Syllabus by the Court.
A contingent remainder-man may maintain an injunction to restrain waste by the life-tenant. [1]
Where the will gave to a devisee in clear and express words a life-estate only, and in the codicil provided that moneys paid to the executor on "obligation owing to the testator should be invested in bonds of the United States the interest of which should go to said life-tenant, and such life-tenant should likewise have the profits of the testator's estate not given to his wife," by the use of this language the testator did not change the life-estate into a fee.
Foreign corporations may take bequests of charities under a will made in this state, when and to the extent authorized by their charters.
When such corporations are improperly described in the will, the bequest will not fail, if it be clearly shown by proper proof what corporations were meant by the description.
Taking clay from the soil by a life-tenant, and manufacturing the same into brick, and selling the same, is waste. [1].
Appeal from circuit court, Wood county.
Bill filed by the University at Lewisburg and the American Baptist Publication Society to enjoin Sarah H. P. Tucker et al. from committing waste of lands in which they claim a contingent remainder. From a decree perpetuating the injunction defendants appeal.
J Dallas Ewing, for appellant.
H. C Hervey, for appellees.
JOHNSON P.
Ezekiel Harker, of Brooke county, on the 29th day of April, 1865 made his last will and testament, in the first clause of which he directed the payment of debts, etc. In the second clause he used this language: By the third clause he bequeathed to Martha Thorn a house and lot in Wellsburg, known as the "Lazier Property." The fourth clause of the will is as follows: "After the death or marriage of my wife, Elizabeth Harker, I will and direct that all my property, real and personal, and wherever located, (except the property devised to Martha Thorn,) go and pass to the use of my adopted daughter, Sarah Harker Potter, for and during her natural life; but if said Sarah Harker Potter shall marry and bear a child or children by said marriage, and shall have at her death a child or children of the age of twenty-one years, then and in that event, upon the death of said Sarah Harker Potter, all of my said estate, real and personal, shall pass to and belong absolutely to said child or children, which may have arrived at the age of twenty-one years; it being the intent and purpose of this clause of my will, that said Sarah Harker Potter shall have a life-estate in my real and personal property, except the house and lot herein given to Martha Thorn, wife of Amos, and in the event she shall marry and by virtue of such marriage bear a child or children, and said child or children shall arrive at the age of twenty-one years, and they or either of them being alive at her death, then and in that event, the property aforesaid, the property shall go and pass to such child or children equally, share and share alike." The fifth clause provides: "But if said Sarah Harker Potter shall die leaving no children by legal marriage, or if she shall die leaving a child or children by legal marriage, but said child or children shall die before arriving at the age of twenty- one years, then the property devised by the fourth clause of this will shall go and pass, share and share alike, to the Lewisburg Baptist University and the successors in office of said university, and to the Baptist Publication Society in Philadelphia, Pa." On the same day the testator made a codicil to his will, witnessed by the same witnesses whose names are subscribed as attesting witnesses to the will. The codicil is as follows: The will was admitted to probate on the 26th day of September, 1865. At May rules, 1884, in the circuit court of Brooke county, the contingent remainder-man, the University at Lewisburg, and the American Baptist Publication Society filed their bill, in which they set forth said will, and that Elizabeth Harker is dead; that Sarah Harker Potter married one William Tucker, but that she is childless; that she has leased a portion of the property in which she has a life-estate to Benjamin Jacobs, John W. Jacobs, and Emery Jacobs, for the purpose of making brick from the clay on said ground and selling said brick in the market; that they are committing waste by taking the clay and making holes and ditches in the ground; that she had no right to lease the ground for any such purpose; that she only has a life-estate in the land, and if she die childless, or if she has children who do not arrive at the age of twenty-one years, they will be entitled to t he property in fee; that they are incorporated and capable of taking the bequest, etc.; and prayed an injunction against the waste.
The bill also sets up the fact that Tucker and wife had brought a suit some time before in the circuit court of Brooke county against one George M. White for the specific performance of a contract of sale of a part of said land, in which they made the plaintiffs here defendants, and set up said will and insisted that under it Mrs. Tucker owned the fee in the land and not a life estate only. There was a demurrer to the bill, and the demurrer was sustained and the bill afterwards dismissed, and the plaintiffs here insist that the defendant Sarah H. P. Tucker is here estopped to claim the fee in said land; that the question is res judicata. The bill exhibits the process and return to the bill, the demurrer, the decree sustaining the demurrer, and the order at a subsequent term dismissing the bill, as the plaintiffs had failed to amend. The defendants Tucker and wife demurred to the bill filed in this cause for want of equity. The demurrer was overruled. They then answered the bill, in which they insist that by the proper construction of said will and codicil on the death of Elizabeth Harker, Mrs. Sarah H. P. Tucker took the remainder of the estate in fee; that the clause in the codicil, that the said Sarah "should likewise have the profits of my estate not given to my wife Elizabeth Harker," gave to said Sarah a fee-simple in the remainder of the estate, the words being repugnant to the clause in the will limiting her to a life-estate. They admit the lease, and claim they had a right to lease the property, and do as the bill had alleged they had done, in respect to the property. The answer denies that plaintiffs are corporations capable of taking by devise the said property, and for that cause insist that the property is vested in the female defendant under the residuary clause in the codicil, in accordance with section 13, c. 77, of the Code. Respondents admit the land is valuable, and their right to its use is valuable to them; but they deny that after the clay is removed under this contract with their co-defendants, that the land will be less valuable, or that it will be left in ditches and pits, or be rendered unfit for building sites, but, on the contrary, that it will be of better grade, more valuable, and more suitable for building purposes, as they are advised. The other defendants, the lessees, answered the bill, and they also insist that under Ezekiel Harker's will Mrs. Tucker took the fee after Elizabeth Harker's death. They admit they made a contract with Tucker and wife to take clay on part of said land, and manufacture brick, and that they have a right under and by virtue of said agreement or lease to make and burn brick on said land, and sell the same. They exhibit the said agreement with their answer, and by it they have the right for five years from the date thereof,--the 13th of February, 1884, --provided Mrs. Tucker lived so long, to make and sell brick on the premises, and were to pay Mrs. Tucker 75 cents for every 1,000 bricks made and burned on the premises; and the parties agreed to make at least 300,000 bricks every year of...
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