Hickman v. Hickman

159 S.E. 145, 156 Va. 659, 1931 Va. LEXIS 221
CourtSupreme Court of Virginia
DecidedJune 18, 1931
StatusPublished
Cited by3 cases

This text of 159 S.E. 145 (Hickman v. Hickman) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickman v. Hickman, 159 S.E. 145, 156 Va. 659, 1931 Va. LEXIS 221 (Va. 1931).

Opinion

Browning, J.,

delivered the opinion of the court.

This suit involves the construction of the last will and testament of Shepard G. Hickman, who- was a resident of the [661]*661county of Accomac, and who died there in December, 1928, leaving surviving him his widow, Annie M. Hickman, and' three children, W. Barrett Hickman, Eva Hickman Gill and Carrie Hickman. Bundick, and his said widow and said three children were the sole legatees and devisees. His son, W. Barrett Hickman, and son-in-law, Norman L. Bundick, were named as his executors and they qualified as such.

W. Barrett Hickman instituted a suit in chancery, as such executor and in his own right, praying the court to construe the said will, alleging that certain of its clauses and provisions were uncertain and indefinite.

We here set out the said will in full:

“In the name of God? Amen:

“I, Shepard G. Hickman, of Modest Town, Virginia, do make this my last will and testament, as follows:

“1st. I desire that all my just and honest debts, if any, be paid as soon after my death as possible.

“2nd. At the death of my wife, Annie M. Hickman, I give and devise, in fee simple, unto my son W. Barrett Hickman, and daughter Eva Hickman Gill, my home place known as the ‘Baker farm’ and the ‘Hettie Shreaves woodsland,’ containing in all twenty-three acres by estimation, my said wife to receive one-third of all rents from said land during her life.

“3rd. I give and devise, in fee simple, unto my daughter Carrie Hickman Bundick the ‘William T. Shreaves farm,’ at the death of my wife Annie M. Hickman, who is to receive one-third of all rents from said place during her. life.

“4th. I give and devise unto my son W. Barrett Hickman the ‘Modest Town school house lot’ which I purchased at public auction in the year 1926.

“5th. I desire that all my cash and bonds, after paying my debts, if any, and the expense of carrying this will into effect, be divided, equally, between my wife, Annie M. Hickman, my son, W. Barrett Hickman, and my daughter, Eva Hickman [662]*662Gill, and my daughter, Carrie Hickman Bundick, each to receive one-fourth of same.

“6th. I give and devise unto my beloved wife, Annie M. Hickman, the remainder of my personal estate consisting of stocks, household kitchen furniture, farming implements and etc.

“7th. I hereby appoint my son, W. Barrett Hickman, and my son-in-law, Norman L. Bundick, executors, of this my will.

“8th. I desire that my estate be settled without sale either public or private.

“Witness my hand this the 28th day of August, A. D. 1928.

his

“Shepard G. X Hickman.”

mark

This will was witnessed according to* law.

Annie M. Hickman, the widow, answered the said bill and particularly the following question propounded therein, to-wit: “What estate under said will does the widow, Annie M. Hickman, and children, W. Barrett Hickman, Eva Hickman Gill and Carrie Hickman Bundick, take, respectively, in and to real estate devised by said will, and to whom do the rents and profits accruing from said real estate legally and properly belong?” Her claim and contention was that she was entitled to an estate for life in the real estate devised to certain children by the testator in the second and third clauses of his will.

Eva Hickman Gill filed her separate answer fi> the said bill, taking the same position as to the meaning of her father’s will that her mother had taken, alleging that such was the intention of the testator.

Norman L. Bundick and Carrie Hickman Bundick filed their answer, alleging that the intention of the testator was that Annie M. Hickman, his widow, was to receive one-third of all the rents and profits in the said real estate and no more.

On the thirty-first day of October, 1929, the court entered [663]*663its final decree by which it held that the testator intended by the second clause of his will to give to his son, W. Barrett Hickman, and' his daughter, Eva Hickman Gill, his “home place,” known as the “Baker farm” and the “Hettie Shreaves woods-land,” containing in all twenty-three acres by estimation, in fee simple, but the said W. Barrett Hickman and Eva Hickman Gill were to pay to testator’s widow, Annie M. Hickman, during her life one-third of all the said rents from the said farm; and by the third clause of said will he devised unto* Carrie H. Bundick, in fee simple, the “William T. Shreaves farm,” subject to* the payment to the widow during her natural life of one-third of all rents from said place, and by the terms of the said decree effectuated such construction.

From this decree an appeal was allowed by this court to the appellant.

Thus it becomes our duty to construe the said will and particularly to say what the legal effect and intendment is of clauses two and three thereof.

The said Shepard G. Hickman died seized and possessed of a considerable estate, consisting of personal property and real estate. His personal property amounted to* in excess of $35,-000.00. The cash and bonds, after the payment of his debts, if any, and the expense of carrying his will into effect, he divided equally among his wife, Annie M. Hickman, and three children. By the sixth clause of his will he devised to his wife the remainder of his “personal estate, consisting of stocks, household kitchen .furniture, farming implements, etc.” And by the eighth clause he expressed his desire that his estate might be settled without sale either public or private.

In the construction of wills the primary thing to do, as has been held by the cases from this and all other jurisdictions, as far as we know, which is accentuated by the text-writers, is to find what the intention was of the person making the will, and that is to be arrived at by giving effect to* the will in its entirety, reading it as a whole and reconciling all of its clauses, [664]*664if fairly possible to' do- so, in the light of the language used and to give effect to' every part of the instrument, provided sensible effect can be given not inconsistent with the general intent.

The second clause of the said will is in these words:

“2nd. At the death of my wife, Annie M. Hickman, I give and devise, in fee simple, unto my son, W. Barrett Hickman, and daughter, Eva Hickman Gill, my home place known as the ‘Baker farm’ and the ‘Hattie Shreaves woodsland-,’ consisting in all twenty-three acres by estimation, my said wife to receive one-third of all rents from said land during her life.”

The third clause is as follows:

“3rd. I give and devise, in fee simple, unto my daughter, Carrie Hickman Bundick, the ‘William! T. Shreaves farm,’ at the death of my wife, Annie M. Hickman, who is to- receive one-third of all rents from said place during her life.”

It is to our minds manifest that the devise, in fee simple, of the lands, which are the subject of the second clause, to his son and daughter, is significantly qualified by the words at the very beginning of the clause “at the death of my wife.” That the fee simple estate to- the said children did not vest in them immediately, but could only vest at the death of his wife, Annie M. Hickman. If this is so-, and we think it must be, what becomes of the said lands during the lifetime of Annie M. Hickman.

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Bluebook (online)
159 S.E. 145, 156 Va. 659, 1931 Va. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickman-v-hickman-va-1931.