Nance v. Woodward

2 Va. Ch. Dec. 180

• Court: Virginia Chancery Court
• Decided: March 15, 1793
• Status: Published

Opinion

OPINION.

That in the bequest by Timothy Vaughan to his wife of all his personal estate, and negros, and the use of the plantation whereon he lived, during her life, the words, ‘during- her life.’ relating necessarily to the words, ‘i give to my wife,’ ought to be connected, and be understood to have been repeated, with them in every intervening member of the sentence to which they apply, limiting the duration of her interest in all the things which were the subjects of the gift, and the bequest ought to be expounded in the sense, wherein it would have been expounded, if it had been written thus: i give to my wife, during her life, all my personal estate, and negros, and the use of the plantation whereon i now live; or thus: ‘all my personal estate, and negros, and the use of the plantation, whereon i now live, i give to my wife during her life; or, more explicitly thus : ‘i give to my wife all my personal estate during her life, and i give to my wife my negros during her life, and i give to my wife the plantation whereon now live during her life.’

That this exposition is the more eligible than the other, according to which the words, ‘during her life,’ are applied *only to that part by which the use of the land was given to her would be, because, the words, confined to that, would be superfluous, for a devise of the land, without those words, when this testator died, would have conveyed it to her during her life only; whereas the words, applied to the personal estate and negros, are significant.

That, if the bequest be so expounded, and consequently the wife could make no disposition of the personal estate and- negros which would be effectual after her death, the former, or so much thereof as did not perish, and was not in the use consumed, in her lifetime, was, with the accessions, distributable, after her death, amongst the children, and the latter, with the increase of the females, descended to the heir at law, of the testator, and

That the value of the negros, for proportions whereof the heir was accountable to the other five children, is the value of such of the original stock, with the increase of the females, as survived at the time of the ¡ wife’s death, when he had a right to pos- : session of them; which value appeareth by the appraisement returned by Timothy Vaughan the son to be 3001. 10s. ¡

Conformably with which opinion, the eldest son having died intestate and childless, and thereby his brother Timothy, the intestate of the defendent I/ucy, to whom the negros descended, being in like manner accountable; and two of the daughters, who are dead, not appearing to have been married, or to have made their testaments, and thereby the plaintiff Mary being intitled, as is supposed, to distributive shares of their proportions, the court pronounced this

DECREE.

That the defendents, out of the estate in their hands to be administered of their intestate Timothy Vaughan, the son, do pay unto the plaintiffs 831. 9s. 5d. being the sum of the plaintiff Mary’s proportion of the value of the negros, and her distributive shares of the defunct childrens proportions, and also pay unto them 171. 4s. 8d. being the sum of the plaintiff Mary’s filial portion and distributive share of 511. 14s. the appraised value of the personal estate, exclusive of the negros, as appeareth by the forementioned exhibit, with interest upon both those sums from the last day of may, in the year 1773: liberty being reserved to the defendents, on any day of the term next after they shall have been served with a copy of this decree, to shew cause against that part thereof which related to the_ personal estate, exclusive of the negros, inasmuch as they do not by their answer confess it to have come to the hands of their intestate. _