Whitehurst v. White

• Citation: 169 S.E. 724
• Parties: WHITEHURST et al. v. WHITE et al.
• Decision Date: 15 June 1933
• Court: Supreme Court of Virginia

169 S.E. 724

WHITEHURST et al.

v.WHITE et al.

Supreme Court of Appeals of Virginia.

June 15, 1933

Appeal from Circuit Court of City of Norfolk.

Suit between Grayson M. Whitehurst, etc., and others and A. J. White and others. From an adverse decree, the former appeal.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

Tazewell Taylor and N. T. Green, both of Norfolk, for appellants.

James G. Martin, of Norfolk, for appellees.

HOLT, Justice.

In this cause we are to determine if certain legacies to a testator's children are charges upon his real estate. The trial court held that they were not.

The will in judgment bears date July 14, 1927. The testator died, on April 6, l931, and left surviving him his widow, Mollie J. D. Whitehurst, three children of a previous marriage, namely, Frank P. Whitehurst, Annice Jackson White, the wife of Cecil R. White, and Birdie Elizabeth Williams, the wife of E. L. Williams, and eight children by his second wife, Mollie J. D. Whitehurst, namely, the petitioners here, Grayson M. Whitehurst, Mollie DuPuy Whitehurst, Susan Eldridge Whitehurst, Edna Morton Whitehurst, Indie Knight Whitehurst, George DuPuy Whitehurst, DuPuy Whitehurst, and William Lee Whitehurst. Jr., the last three of whom were infants at the time of the death of their father, aged respectively twenty years, nineteen years, and sixteen years. The said George DuPuy Whitehurst has subsequently, and prior to the institution of these proceedings, attained his majority. One of the petitioners, Mollie Du- Puy Whitehurst, who sues by Grayson M. Whitehurst, her committee, is a person of unsound mind.

The testator directed that his debts be paid and that a mausoleum be built. The will then goes on to provide:

"I dispose of my property and estate as follows:

"First: I give and bequeath to my wife Mollie J. D. Whitehurst the sum of Fifty thousand Dollars in lieu of her dower and all other rights in my estate of every kind whatsoever.

"Second: I give and bequeath to each of my three children by my first wife, namely, Frank P. Whitehurst, Annice.J White and Birdie Williams, the sum of Thirty-five Thousand Dollars to be paid to and accounted for by my executors to them as follows: To each of them the sum of Twenty thousand Dollars as soon after my death as may be convenient in the administration of my estate, and to each of them the interest or income from the sum of Fifteen Thousand Dollars for his or her life, and at his or her death the said principal sum of Fifteen thousand Dollars, left for life, to go to his or her issue then living, per stirpes. In case any one of the said three children should die without leaving issue, then the interest or income from the said Fifteen thousand Dollars to go to the other of said children for their lives, and at their death the principal thereof to go to their issue then living, per stirpes.

"Third: I give and bequeath to my niece Lillian Lambert the sum of Forty-five hundred Dollars in cash and her note for Five hundred Dollars now held by me.

"After all of the above legacies and bequests have been paid and provided for in full, I dispose of my property and estate as follows:

"Fifth: I give and bequeath to each of my children by my wife Mollie J. D. Whitehurst the sum of Thirty-five thousand Dollars, to be paid to and invested for and accounted Tor by my executors to them as follows: To my son Grayson M. Whitehurst, now of age, the sum of Ten thousand Dollars as soon after my death as may be convenient in the administration of my estate, the sum of Ten Thousand Dollars on his arriving at the age of thirty years, and the interest or income from the sum of Fifteen thousand Dollars for his life; and at his death the said principal sum of Fifteen thousand Dollars, left for his life, to go to his issue living at his death per stirpes. To each of the other of my said children by my wife Mollie J. D. Whitehurst the sum of Five thousand Dollars as they severally arrive at the age of twenty-five years, the sum of Fifteen thousand Dollars as they severally arrive at the age of thirty years and the interest or income from the sum of Fifteen thousand Dollars for life; and at their respective deaths the said principal sum of Fifteen thousand dollars left for their respective lives, to go to their issue living at their deaths, per stirpes. And I direct my executors to pay to them the interest or income on the said sums until the said principal sums are paid to them as herein provided; and in case the income from my estate is not sufficient to pay full interest on said sums, then the interest or income to be paid pro rata. In case any of my said children provided for in this paragraph of my will should die unmarried and without i«sue prior to the payment to them of the respective bequests and devises to them, then I give and bequeath the portion of such child to his or her brothers and sisters of the full blood, namely, my children by my wife Mollie J. D. Whitehurst, equally to be divided among them in the same manner as the same would have been had and enjoyed by the child so dying.

"Sixth: I direct that my real estate be kept intact and not disposed of until my youngest child becomes twenty-five years of age.

"Seventh: All the rest and residue of my property and estate, of every kind whatsoever, I give, bequeath and devise to all of my children, in equal shares, but subject to the provision that my real estate is to be kept intact and not disposed of until my youngest child becomes twenty-five years of age, and the division of the said rest and residue of my personal property and estate is not to be made until the same time.

"I nominate and appoint my sons, Frank P. Whitehurst and Grayson M. Whitehurst, and Wm. W. Old, Jr., Executors of this my last will and testament, and desire that they give joint bond in the sum of Fifty thousand Dollars. And I direct my said executors, and the survivor or survivors of them, to collect the rents, issues and profits from all of my estate until my youngest child becomes twenty-five years of age, and account for the same to those entitled thereto, in accordance with the terms and provisions of this my will. I also nominate and appoint the said Frank P. Whitehurst, Grayson M. Whitehurst and Wm. W. Old, Jr., to be the Guardians of my infant children.

"Given under my hand at the City of Norfolk, Virginia, this the 14th day of July, A. D. 1927.

"William L. Whitehurst."

From this it will be seen that the children of the first marriage are each given $20,000 absolutely and $15,000 for life.

The fifth item deals with the children of the second marriage. There is given to Grayson, $10,000 and $10,000 when he is thirty years old, and $15,000 for life. To each other child by the second marriage is given $5,000 as each reaches twenty-five years of age, $15.000 as each reaches thirty years of age, and $15,000 for life. Each member of each class receives $20,000 absolutely and a life estate in $15,000.

When the will was written, Mr. Whitehurst had sufficient personal property out of which to meet all of these legacies. After it was written and before his death, in order to protect his interests in various loans made by him and secured on real estate, he was compelled to purchase several tracts of land conveyed in trust to secure them, with the result that at his death his personal estate after payment of his debts and funeral expenses, etc., was not sufficient to discharge in full the legacies to his children by the second marriage. This is strikingly true if the children of the first marriage are to be paid in full. If they are so paid and if the personalty remaining is divided out among the second set of children, and if the proceeds of realty are to be held apart, and later divided among all the children ratably, then the individuals of these two classes will take unequally. The record does not tell us what the difference would be, but there would be a substantial difference.

When we come to examine the will we are first struck with the modest provisions made for the widow. She is given $50,000, not much more than a child's share, if we remember that the personal estate when the will was written was sufficient to pay the legacies, and that there was in addition substantial real estate, the value of which does not appear, that is to say, she is given very much less than she would have taken in dower and as distributee had the will been renounced.

The next, and we may fairly say the manifest major, purpose of the testator was to treat all of his children alike. This is naturally what we should have expected, for equality is equity. He gave to each of them $20,000 absolutely and to each of them a life interest in $15,000. The dates at which they are to take vary with their ages. Since there was personalty sufficient to pay all of them when the will was written, the order of payment was a matter of little or no moment, and so the priority of payment as he saw it was not a matter of priority at all but of sequence. Harris v. Harris, (1912) 2 Ch. (Eng.) 241; Beeston v. Booth, (1819) 4 Madd. Ch. 161, 56 Eng. Reprint 667; Thwaites v. Foreman, (1844) 1 Colly. Ch. Cas. 409, 63 Eng. Reprint 477.

The fact that the children of the first marriage were to be first paid was not because they were preferred but because they were of age and were prepared to take. All of the children of the second marriage, except one, were under age. Had the bequest to them been made immediately available they still could not have been paid directly. Costs incident to guardianship would have been neces sary and so payments to them were deferred, hence the desirability of sequence in payments.

In varying phrases, but with a common purpose, courts have, in no uncertain words, undertaken to tell us that we must, when possible, sustain a testator's intention.

"This rule is familiar and elementary, and to it all others are subordinate and subservient." Penick's...