Wills v. Foltz

• Court: West Virginia Supreme Court
• Writing for the Court: BRANNON, J.
• Citation: Wills v. Foltz, 61 W.Va. 262, 56 S.E. 473 (W. Va. 1907)
• Decision Date: 05 February 1907
• Parties: WILLS v. FOLTZ et al.

56 S.E. 473

61 W.Va. 262

WILLS v. FOLTZ et al.

Supreme Court of Appeals of West Virginia.

February 5, 1907

Submitted September 10, 1906.

Syllabus by the Court.

A devise to three daughters named "and their children," the daughters having children at the date of testator's death, confers upon the daughters and their children a joint estate in equal portions, and does not vest a fee in the daughters alone.

The word "children" in a devise is a word of purchase not of limitation, unless different intent plainly appear in the will.

In construing a will the inquiry is not what the testator may have intended to express, but what do the words used express.

Where a will gives to a person named and his children, the point of time for inquiry as to when the children are living in order to determine whether the person shall take a fee or all take a joint estate is the date of the testator's death.

Under a devise to three named daughters "and their children," the children living at testator's death daughters, and children take a joint estate, and share per capita, and the children do not take per stirpes, though one of the daughters have more children than others.

Appeal from Circuit Court, Hampshire County.

Bill by M. F. Wills against Rueben Foltz and others. Decree for plaintiff, and Lillian M. Grapes and John R. Grapes appeal. Affirmed.

R. W Monroe, for appellants.

John J Cornwell, for appellee.

BRANNON J.

Benjamin Foltz left a short will reading as follows:

"Hampshire Co., W. Va.

This is my last will and testament, I give to M. F. Wills a support as long as she remains single and the balance of my property I give to L. M. Grapes, S. A. Wills & Minnie V. Wills and their children after all my just debts are paid.

Given under my hand this 1st day of June, 1892."

Foltz never married, but for some 36 years a woman, M. F. Wills, lived in his house with him and by him had three children, Lillie, Sallie, and Minnie Wills, they taking the name of their mother. Foltz recognized them as his natural children. Lillie married Grapes and had three children; Sal lie married Power and had five children, and Minnie married Wolf and has five children. One of Minnie's children was born after the death of Foltz. Except this child, all the daughters' children had been then born. Sallie and Minnie Wills were not married at the date of the will, but were at their father's death. Lillie had two children at the date of the will. In a suit in Hampshire for the purpose, among others, of construing this will, it was decided that the three daughters and their children took a joint estate in fee per capita, and Lillie Grapes appeals.

Mrs. Grapes contends that, under the will, she takes a fee, and at any rate that the children of Foltz's three daughters take per stirpes, not per capita. This short will is couched in plain language presenting little difficulty, it would be thought, and yet one who examines the matter will find it one of difficulty under the numerous authorities, more or less bearing upon it. Judge Story in Sisson v. Seabury, 1 Sumn. 235, Fed. Cas. No. 12,913, did not overstate when he said: "The difficulty of construing wills in any satisfactory manner, renders this one of the most perplexing branches of the law. The cases almost overwhelm us at every step of our progress; and any attempt even to classify them, much less to harmonize them, is full of the most perilous labor. Lord Eldon has observed that the mind is overpowered by their multitudes, and the subtilty of the distinctions between them. To lay down any positive and definite rules of universal application in the interpretation of wills must continue to be, as it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human language, the obscure, and often inconsistent, expressions of intention, and the utter inability of the human mind to foresee the possible combination of events must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, without being tied down to any technical or formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combinations, and thus involve an infinite variety of shades of meaning, as well as of decision." What estate do the three daughters take under the will? Do they take fees simple? Counsel for Mrs. Grapes relies on Wild's Case to support her claim to a fee. Of Wild's Case, 2 Jarman, 1235, says: "The rule of construction commonly referred to as the 'doctrine of Wild's Case' is this: that where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail, for it is said, 'the intent of the devisor is manifest and certain that the children (or issues) should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his (the devisor's) intent, for the gift is immediate; therefore, such words shall be taken as words of limitation." Thus, by that case, where there are no children in being at the date of the devise, it is a fee tail, but now a fee simple by the act converting estates tail into fees simple. Code 1899, c. 71, § 8 [Code 1906, § 3027]. But, as one of the daughters had children at the date of the will, and all at the death of testator, how can the daughters take estates tail under the rule above stated in Wild's Case? As in Wild's Case, Wild had children at the date of the devise, it seems that the above statement from Wild's case is obiter, it not being a case where the devisee had no children at the date of devise, though as to create an estate tail there must be no child to take at the date of the devise, under the statement of Wild's Case, it conversely follows that, if at that date there is a child living, the rule does not apply, and there is no estate tail. I understand the rule above stated in Jarman to have been held in Doe v. Anderson, 4 Leigh (Va.) 118, a devise to a daughter and her children, she having no children at the date of the devise, as Judge Carr states, and it was held an estate tail converted into a fee simple. Wild's Case was cited for the reason. The above rule, propounded in Wild's Case in 1589, is regarded a sound law. English cases approve it. See 3 Lomax, Digest, side p. 203, and citations; opinion in Martin v. Martin, 52 W.Va. 389, 44 S.E. 198; 2 Minor's Inst. 953. "An old and well-recognized rule." Page on Wills, § 567; Schouler on Wills, § 555. Wild's Case was reconsidered by the House of Lords in 1880, and adhered to, with the declaration: "It is not now to be departed from." Clifford v. Koe, 5 App. Cases, 447. In Silliman v. Whitaker, 119 N.C. 89, 25 S.E. 742, it is said it had been the law 300 years. Many American cases approve it; a few disapprove it. Devlin on Deeds, § 860, cites many cases for the position that "a conveyance to a woman and her children makes them joint tenants or tenants in common." Freeman, Co-ten. & Partition, § 26. If a deed to two persons carries a joint estate, why does the mention of children change it? A Kentucky case denies the application of the rule of Wild's Case to a wife and children, but said it would apply to a devise to the testator's child and his children. Carr v. Estill, 16 B. Mon. 309, 63 Am. Dec. 548. This will would, even by that case, confer a joint estate. Judge Story, in the case cited from 1 Sumn. 242, Fed. Cas. No. 12,913, said that Wild's Case "had been constantly admitted to be good law." But, though in Wild's Case there was not involved a case where, at the date of the devise, no child of the devisee existed, and therefore the above statement was not actual decision, there was involved and decided the very point involved in this case. The devise was to "Rowland Wild and wife, and after their decease to their children," and at the date of the devise they had two children, as here at the date of the will one of Foltz's daughters had two children, and at the date of his death all three had. 2 Jarman, side p. 1239, says: "It had been hitherto treated as an undeniable position, that, in the devises under consideration, children, if there be any, will take jointly with their parents by purchase; and such certainly is the resolution in Wild's Case, as reported in Coke, who lays it down, 'If a man devise land to A. and to his children or issue, and they then have issues of their bodies, there his express intent may take effect according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary, and therefore, in such case, they shall have but a joint estate for life.' And in conformity to this doctrine seems to be the case of Oates d. Hatterley v. Jackson, 2 Strange, 1172, where a testator devised to his wife, J., for her life, and after her decease to his daughter B. and her children on her body begotten or to be begotten by W., her husband, and their heirs forever. B. had one child at the date of the will, and afterwards others, and it was held that she took jointly with them an estate in fee, and consequently that on their deaths (which had happened) she became entitled to the entirety in fee. This, it will be observed, was the case of a devise in fee." In Wild's Case a fee was denied, and a life estate was held for want of the word heirs.

Now, it would be a fee simple, not because it would be a fee tail converted into a fee simple, but because it is a direct devise to A. and children, they taking by purchase, and taking a fee, though there be no word heirs, by reason of Code 1899, c. 71, § 8 [Code 1906, § 3027], saying...