Walker's Adm'r v. Lewis 1

• Decision Date: 15 March 1894
• Citation: 19 S.E. 258,90 Va. 578
• Parties: WALKER'S ADM'R v. LEWIS et al.1
• Court: Virginia Supreme Court

19 S.E. 258

90 Va. 578

WALKER'S ADM'R

v.LEWIS et al.¹

Supreme Court of Appeals of Virginia.

March 15, 1894.

Construction op Will—Estate Tail—Rule against Perpetuities.

1. A devise to one "for and during his life, and after his death to his sons and their heirs forever, equally to be divided among them, " does not create a fee tail, in the absence of anything in the context to show that such was testator's intention.

2. Where two contingent remainders are limited as substitutes or alternatives, —one to take effect if the other does not, —the fact that the contingency on which one is to take effect is too remote does not affect the validity of the other.

Appeal by one Walker's administrator from decree of circuit court of Danville, rendered June 13, 1891, in the consolidated causes of Drumgold v. Lewis and Walker v. Lewis. Affirmed.

The single question in the case arose upon the construction of the will of John Lewis, deceased, which was executed in 1805, and admitted to probate in 1816, —the year of the testator's death. The clause of the will in question is as follows: "I give and devise the tract of land on which I now live, lying in Pittsylvania county, and on the north side of the Dan river, containing about 1, 300 acres, be the same more or less, to my brother Charles Lewis, for and during his life, and after his death to his son, Nicholas Mere-wether, for and during his life, and after his death to his sons and their heirs forever, equally to be divided among them. But if Nicholas Merewether should die without leaving a son or son's son who can take the estate, and my brother Charles should have a second son, then, at the death of Nicholas Merewether, I give the said tract of land to the second son of my brother Charles, for and during his life, and after his death to his sons and their heirs forever, equally to be divided among them. But If my brother Charles should have more than two sous, and the two first should die, leaving no son nor son's son living who can take the estate, then I give the said tract of land to the third son of my brother Charles, and after his death to his sons and their heirs forever, equally to be divided among them; and so on to every other son that he may have for life, with like remainders after their deaths to their sons forever, equally to be dividedamong them. But if my brother Charles should die leaving no son nor son's son capable of taking the estate, then, In that event, I give the said tract of land to the three sons of my deceased brother, Robert, for and during their lives, equally to be divided among them, to wit, John Going, Robert Henry, and Merewether Warner, the part of each son at his death to go to his sons, equally to be divided among them and their heirs forever. If one or two of the said sons of my brother Robert should die leaving no son nor son's son capable of taking his part of the said land, then the part or parts of those that die without leaving sons or son's sons capable of taking shall go to the surviving brother or brothers, and after his or their deaths to his or their sons, equally to be divided among them and their heirs forever. But, if all three of my brother Robert's sons should die without leaving a son or son's son capable of taking the said land, then I give the said tract of land to the sons, living at the time, of my sister, Jane Read, equally to be divided among them and their heirs forever." Charles Lewis survived the testator, and afterwards died, having had no other son than Nicholas Merewether. The latter died in 18S9, unmarried and without issue. Robert Lewis' eldest son, Robert Henry, died in the year 1825, leaving a son, Fielding, who died in 1875, leaving two children, Frank and Annie. The second son of Robert, John Going, died in 1831, unmarried and without issue; and the third son, Merewether Warner, died in 1846, leaving a son, John W., and a daughter. The circuit court held that at the death of Nicholas Merewether the contingent remainder to the descendants of Robert took effect, and accordingly decreed that on the death of John Going, the second son, his interest passed, under the will, to his only surviving brother, Merewether Warner, whose son John W. took, at the death of Nicholas Merewether, two-thirds of the estate, and that the other third passed to the children of Fielding. From this...