Foley v. Harrison's Ex'or

6 S.E. 144, 84 Va. 847, 1888 Va. LEXIS 155

• Court: Supreme Court of Virginia
• Decided: May 3, 1888
• Status: Published

Opinion

Lacy, J.,

delivered the opinion of the court.

This is an appeal from certain decrees of the circuit court of Prince William county, rendered,-respectively May 10, 1875, May 14, 1877, and May 15, 1883. In the argument here the assignment as to the allowance of commissions to the executor of 7J per cent, by the decree of May 14, 1877, is waived as a mistake of fact, and the allowance of 5 per cent, to the executor upon assets distributed in kind is waived as sustained by the law, and no further notice will be taken of these assignments.

The suit was brought for the construction of the will of Binoni E. Harrison, and for the administration of his estate thereunder by the court. By the decree of May 10,1875, construing the fifth clause of the will, the court held “that, by the fifth clause of the will of the testator, B. E. Harrison, an absolute estate is given to the legatees named in said fifth clause, and all the property of the said testator, except his real estate and the items of furniture mentioned therein, and the bank stock and State stock mentioned in the fourth clause.” The will provided, in the first clause, for burying-grounds for the blood relations of the testator and of his father-in-law. Hext (afterwards denominated the second section of the will) the residence of the testator, called “ La Grange,” was devised to B. H. Jordan, with certain furniture named and referred to in the decree, to remain in the house in the care of whoever may be the occupant, until, under the law and the will, none could hold them. By the third clause, the farm called “ Gravel Plain ” was devised to the oldest blood relation not in possession of La Grange; this and La Grange to descend to the oldest blood relation left in existence, whether male or female, at the death of the occupant under the will, to continue in such possession until the death of all of them, and then to be distributed. as provided by tbe fourth clause. The ■ fourth clause directs interests and dividends declared on stocks to be distributed; but the manner of distribution is not provided. Otherwise the fourth clause contains directions that the whole estate, real and personal, be inventoried, appraised, and sold by the after-named executor; except the two tracts of land above, and the enumerated furniture therein, and the stock, notes of Virginia, railroad stocks, and whatever should be collected for damages done to the property of the testator during the late war. The testator says of these: “All these items I hereby perpetuate.” What is meant exactly by these words, the circuit court has not determined; and, while it is probable that the meaning is to be discovered in the last lines of the second section of the will, “ till under the law of this, my will, none can hold them,” as to that we express no opinion. The fifth clause provides as follows: “I give and bequeath, to be paid as soon as received by my executor, two-ninths of all my estate, except La Grange and Gravel Plain, and the items of furniture named in the.next section after the first of this my will, which I now make and call the second section hereof, to my nephew Binoni H. Jordan; two-ninths to my niece, Jane It. Foley, subjecting her two-ninths to pay the debt due testator by her husband ;• two-ninths to Elisha R. Halls; and one-ninth to the children of the testator’s deceased niece, Mary M. Harley. But in the-event of the death of any of them and their children without heirs of their bodies, the pqrtion of my estate willed to them' is to revert to the survivors of the five herein provided for; then it is my intention to give all the interest and dividends that may accrue yearly to the five whom I have named; and finally when my estate must, under the laws of Virginia and this my will be closed, I wish all to be divided as I herein and hereby provide for the division of my estate in the mean time.”' The circuit court held, as we have seen, that, by this clause-of the will, an absolute estate was given to the named legatees in all the property of the testator, except his real estate, and the items of furniture mentioned therein, and the bank stock and state stock mentioned in the fourth clause. It is not entirely clear from the language of the will what limitation is provided by the testator as to this State stock and hank stock; but, as the whole will must be construed together, it is most reasonable to interpret the provisions as to them, as the circuit court seems to have done, that they were to be held by the executors, and the interests and accruing dividends to be distributed, until the limitations as to the real estate and the furniture had reached the utmost limit allowed by the law of this state, and then the principal to be distributed as the other personal property was given; but the circuit court does not so decide, but excepts them merely from the operation of the decree, and as to thém reserves its decision to some future time. There is no error in the decree, so far as it goes, upon this point, against the appellant, as the direction of the will that the amounts shall be paid by the executor as soon as received by him would seem to contemplate an absolute estate; but, if this be an erroneous construction of the will, it does not prejudice the appellant, to whom the absolute estate is decreed, and the exception is not upon that ground.

The next assignment of error is as to the decree of the 15th of May, 1888, because it is alleged to have overturned and reopened the decree of October 9, 1877, which is claimed to be a final decree which could only be overruled upon bill of review or appeal. By that decree it was provided, by consent, that the uncollected assets should be distributed in kind, so far as set forth in a commissioner’s report setting forth a scheme to that end; and afterwards a debt due from Norville, and another from Hunton, not included in the foregoing scheme, having been collected, the amount was distributed by the court, with reference to the losses under the first distribution, so as to equalize, as far as might be, the portions of all. But the appellant insists that the Horville debt should have been divided into shares, and distributed without reference to the distribution already had. But, as the result is to carry out and effectuate, as far as could be, the distribution provided by the will, it followed the' true rule equality is equity; and it was equitable to so distribute the estate as to conform to the proportions fixed by the will, and there is no error in the decree complained of on this ground, which is the last assignment of error.

Hpon the whole case, we are of opinion to affirm the decrees complained of.

Decree aeeirmed.