Walton v. Melton
| Citation | 34 S.E.2d 129,184 Va. 111 |
| Decision Date | 06 June 1945 |
| Docket Number | No. 2910.,2910. |
| Court | Virginia Supreme Court |
| Parties | WALTON et al. v. MELTON. |
.
Rehearing Denied Sept. 14, 1945.
Appeal from Circuit Court, Hanover County; Leon M. Bazile, Judge.
Suit by Mildred Elizabeth Walton and others against Robert D. Melton, as beneficiary and executor of the will and testament of Emma Catherine Wright, deceased, for a construction of the will. From the decree, plaintiffs appeal.
Reversed in part and affirmed in part and remanded.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
George D. Bowles, of Richmond, for appellants.
H. Carter Redd, of Richmond, for appellee.
This will is before us for construction.
of October in the year 1937.
"Emma Catherine Wright, (Seal.)"
Emma Catherine Wright, a resident of the County of Hanover, Va., died January 27, 1944, leaving the above-quoted will. Certain circumstances and conditions of her life reveal a setting which is unique and novel in the extreme. She was approximately seventy-five years old. She owned a tract of some 14 acres of land and lived alone in a small house located on it for a great part of her life. She was thought by her neighbors and friends to have been a very poor person--in dire and necessitous circumstances. Persons in the neighborhood contributed to her comfort and needs. Members of the church to which she belonged, and indeed, the church itself, as a unit or body, extended to her aid of a material nature. Mr. Robert D. Melton and his wife were chief among those who rendered her assistance. They looked after her and supplied her wants in a liberal and generous way. Mr. Melton did not live on Mrs. Wright's farm but he went by to see her every day at times and several times a week at other periods. Mr. Wright, the husband of the testatrix, died in 1930, and after his death Mr. Melton worked the farm for her on a share crop basis. He testified that her part of the crops was harvested and sold and she received her part of the selling price. Mr. and Mrs. Melton provided her with many of the necessities of life. He would supply her with firewood and put it in place for her use and his wife would visit and nurse her when she was sick and also washed and cooked for her at times.
These relations, however, were in a degree, reciprocal. Mrs. Wright gave Mr. Melton the watch and chain which belonged to her husband. The peculiar feature of her life which has been referred to, is, that upon an examination of the house and her effects, there was found money to the extent of more than $6,000. Several hundred dollars of this was in gold and silver coin and the rest was in bank notes ranging in denomination from one to fifty dollars. This money was concealed in various places, as buckets, bags and kegs. A bank book was found which showed that she had a savings account containing a balance of $700 in one of the banks of the county. There were some furniture and household effects in the house of an appraised value of $326 and some garden tools and implements in a smoke house valued at $8. The real estate, consisting of the dwelling and farm, was valued at $1,800.
The four beneficiaries, under the second clause of the will, nieces of the testatrix, instituted suit praying for the construction of the will. Robert D. Melton, beneficiary under the third clause and the executor, was made a party defendant and it was asked that the heirs at law of the testatrix be determined in the event it was necessary.
The plaintiffs below, the appellants here, took the position that, under the second clause of the will, all the personal property in the dwelling house, including the money already referred to, passed to them.
Mr. Melton, the appellee, contended that, by the terms of the third clause, the money went to him, under the theory that money is intangible personal property, and that the general residuary words "all my other property", included it. He fortified his position by urging that the bequests to the beneficiaries under the second clause were restricted by the word "tangible" and that only that species of property, as defined by him, passed thereunder.
The trial court adopted the theory of the appellee and so decreed, the learned Chancellor filing an able opinion, explanatory of his views, which is a part of the record. Portions of the testimony, deemed to be important, are in the record and are the basis of the statements of fact already made. We may add, that certain of the appellants kept in touch with the testatrix, who was their aunt, by visiting her at times, and one of them, Viola Agnes Mills lived with her for a period of six months, while attending school.
The cardinal rule to be employed in the construction of wills has many times been aptly stated by this court.
In Coffman's Adm'r v. Coffman, 131 Va. 456, 463, 109 S.E. 454, 457, quoting from Penick's Ex'r v. Walker, 125 Va. 274, 278, 99 S.E. 559, it was said:
In James v. Peoples National Bank, 178 Va. 398, 404, 17 S.E.2d 387, 389, this statement appears:
In Home v. Home, 181 Va. 685, 691, 26 S.E.2d 80, 83, is this: "Technical rules of construction are not to be invoked to defeat the intention of the maker of the instrument, when his or her intention clearly appears by giving to the words used their natural and ordinary import."
Our inquiry then is what was the intention of the testatrix at the time she made her will and in reaching this we must place ourselves as nearly as may be in her situation. After the payment of debts she had first in mind four of her nieces, whom she mentions by name, as objects of her testamentary favor. What does she give them? "All the tangible personal property in my dwelling house."
All the property in her dwelling house was $314 or $326 worth of household furnishings and $6,801.96 in money, which latter was of the kinds and in the receptacles referred to. The money had been there for years as evidenced by its type and appearance. The fact that she had it was kept a profound secret. She was the only human being in all the world who knew of its existence and she alone knew whereit was. This place she described with accuracy as "my dwelling house". She did not give or bequeath to her nieces a part of the tangible property in her dwelling house but she gave them "all", of it. Being a person of limited educational attainments, it is doubtful if she knew the meaning of the word "tangible".
It will be borne in mind that the appellants were her nieces--her own "kith and kin"--a relationship nearly as close as that of one's children. "Blood is thicker than water".
Mr. Melton was not a kinsman of the testatrix. He was only a cousin of her deceased husband. It is true that one could not have been more attentive or kinder to her than he, but being the recipient of her bounty, to the extent he is conceded to be, he is far from being unrecompensed. He gets the farm, with the houses, and all the property which was not in the dwelling house. Under the general residuary words of the third clause, "and all my other property", the bank balance of $700 passes to him.
Were his contention to prevail Mrs. Wright's four nieces, who were first in her thought, would have the trifling sum of $326 worth of household goods divided among them.
It is manifest that this was not her intention when the will in its entirety is considered. The disposing terms in the two clauses differ. In the second clause is the phrase "give and bequeath." These are words of a testamentary nature usually applied to personal property, while in the third clause are the words "give and devise" which generally apply to real estate.
It is significant that in the third clause, after the words "all my other property", the testatrix seems concerned only with real estate. The will particularizes, saying, "in case the said Robert D. Melton shall make any improvements to the houses on said land or shall erect any other buildings on said land, they shall pass to him at my death."
The thing which was uppermost with her, in connection with Mr. Melton, was "said land" and any accretions to it through his instrumentality. The subjective theme of said clause is land, the related objective theme is Robert D. Melton. The details are explanatory of its purpose and the general expression "all my other property" is qualified...
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