Waring Et Ux v. Bosher's Adm'r.1 Supreme Court Of Appeals Of Va.

• Decision Date: 28 March 1895
• Citation: 21 S.E. 464,91 Va. 286
• Parties: WARING et ux. v. BOSHER'S ADM'R.1 Supreme Court of Appeals of Virginia.
• Court: Virginia Supreme Court

21 S.E. 464

91 Va. 286

WARING et ux.

v.BOSHER'S ADM'R.¹ Supreme Court of Appeals of Virginia.

Supreme Court of Appeals of Virginia.

March 28, 1895.

BOSHER'S ADM'R.¹

Will—General Beqcbst—Control by Particular Bequest.

After certain specific legacies to his two daughters, testator devised to them also "all income from the ferry and all other sources during their natural lives." By another clause in his will, he left "the city and marine stocks" to certain other persons named. Hold, that the daughters were not entitled to the income of such stocks.

Appeal from circuit court, King William county.

Bill by Thomas L. Waring and Ella P. Waring against Thomas J. Bosher. Judgment for defendant, and plaintiffs appeal. Reversed.

Pollard & Sands, for appellants.

W. R. Aylett, for appellee.

KEITH, P. The last will and testament of William Bosher, which was probated in the county court of King William county, February 23, 1885, devises by the first clause thereof a tract of land to his daughter Martha Ann Dabney. By the second clause he provides for his daughters Mary Jane Smoot and Margaret R. Bosher, by giving to them, or the survivor of them, the plantation on which he resided, with all his household and kitchen furniture, money on hand, horses, cows, and farming tools, and "all income from the ferry and all other sources during their lives, they to pay all my debts, and all claims either may have against me to be canceled as paid." "Third. At the death of my daughters M. J. Smoot and M. R. Bosher, I give to my daughter Martha Ann Dabney, and Gabriella Scott and their children, the ferry and lots in Old Hanover Town." The fourth clause of the will is as follows: "I give unto my sons George L. Bosher and Charles M. Bosher and Thomas J. Bosher my house and lot in Richmond, they to have the bones of my children buried there to be removed to my family burying ground in King William county. I hold of T. J. Bosher notes and am security for him on two notes, if he pays them (his notes I give to him). The city and marine stocks I give to C. M. Bosher's two children, William and Gabriella Bosher, and George L. Bosher's daughter, Ella P. Bosher, the city stock to William and Gabriella and the marine stock to Ella F. Bosher. If it is necessary for my daughters Mary J. Smoot and Margaret R. Bosher to have trustees, they will name them." By a codicil to his will he declares that "all given to M. J. Smoot and Margaret R. Bosher I give in fee simple to do as they please with. [Signed] William Bosher"; and, as this codicil in no wise affects the question to be decided, it need not be again adverted to. This bill was filed by Thomas L. Waring and Ella P., his wife, who was Ella F. Bosher. They complain that Thomas J. Bosher, administrator of William Bosher, deceased, has refused to pay over to Ella F. Waring the Virginia Fire & Marine stock bequeathed by the will, but that he has since the death of the testator paid over the annual dividends upon said stock to Mary Jane Smoot and Margaret R. Bosher, claiming that it was a part of the income of the testator's estate, and passed to them under the second clause of the will above referred to. It seems that Mary Jane Smoot is dead, and that Margaret R. Bosher is a lunatic. The case was duly matured for hearing in the circuit court of King William county, and that court decided that the administrator's construction of the will was correct; that the income from this stock during the lifetime of Mary Jane Smoot and Margaret R. Bosher was payable to them, and that, Mary Jane Smoot being dead, one-half of the stock was to be delivered to the plaintiffs, and the other half was to be held under the control of the court in this cause, to be delivered to Ella F. Waring at the death of Margaret R. Bosher; that in the mean time the dividends thereon were to paid to the committee of Margaret R. Bosher. It also gave Ella F. Waring a decree for so much of the dividends upon one-half of the said stock as had accrued since the death of Mary J. Smoot, which occurred on the 7th of September, 1886. From this decree Waring and wife obtained an appeal and supersedeas from one of the judges of this court.

The object of courts in construing wills is to arrive at the true intent of the testator, but that intent is to be gathered from the language used. "Conjecture, " it has...