Penn v. First National Bank of Danville

29 S.E.2d 825, 182 Va. 658, 1944 Va. LEXIS 218
CourtSupreme Court of Virginia
DecidedMay 1, 1944
DocketRecord No. 2774
StatusPublished

This text of 29 S.E.2d 825 (Penn v. First National Bank of Danville) 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
Penn v. First National Bank of Danville, 29 S.E.2d 825, 182 Va. 658, 1944 Va. LEXIS 218 (Va. 1944).

Opinion

Eggleston, J.,

delivered the opinion of the court.

This appeal involves the interpretation of the will of James Gilmore Penn which was probated in the Corporation Court of the city of Danville on September 22, 1942. The First National Bank of Danville and J. Pemberton Penn were named as executors. The testator was a successful business man and left an estate consisting of personalty valued at approximately $367,000. He was survived by his widow, Mrs. Katherine Boyd Penn, but left no children.

The dominant question presented to us is the proper interpretation of Item Two of the will. In this item the testator recited that he had received certain property from his father, James Garbriel Penn, which he had invested in the stock of Pemberton & Penn, Incorporated, a successful concern engaged in the tobacco business in Danville. He directed that certain property of the value of $100,000 be segregated in [660]*660his estate and held in trust for the benefit of the following blood relatives of his father, and in these amounts:

$20,000 in value for the benefit of his brother, J. Pemberton Penn;
5,000 in value for the benefit of each of the three children of J. Pemberton Penn: J. Pemberton Penn, Jr., Marie Penn Watt, and Kitty Penn Fuller;
2,500 in value for the benefit of each of the four grandchildren of J. Pemberton Penn: Anne Elizabeth Penn, Mary Lee Penn, John D. Watt, Jr., and Nell Penn Watt;
20,000 in value for the benefit of. his sister, Mrs. Mary Katherine Penn;
5,000 in value for the benefit of the only child of Mrs. Mary Katherine Penn: Elizabeth Penn Carter;
2,500 in value for the benefit of each of the two grandchildren of Mrs. Mary Katherine Penn: Everett E. Carter, Jr., and Mary Penn Carter;
20,000 in value for the benefit. of his sister, Mrs. Annie Lee Penn Montague;
5,000 in value for the benefit of the only child of Mrs. Annie Lee Penn Montague: Carroll Penn Montague.

[661]*661For the sake of clarity the several beneficiaries, the relationship of each to the testator, and the amount left in trust for each are shown in the table printed in the margin.1 This item of the will then provided:

“It is my wish and desire that the aforesaid trust fund for the benefit of each of the persons named, shall be properly set up and accounts kept therefor, and at the death of any one of the beneficiaries of said trust, then the trust fund for the benefit of the one so dying, principal and unpaid income shall pass to his or her distributees at law, provided that only those of blood kin to my father shall take.
( ^ ^ ^
“Should any one of said beneficiaries die before I do, then the amount herein specified for that beneficiary shall be used to proportionately increase the amounts set up for the other beneficiaries.
“Since this will was prepared, but before it was signed, my beloved sister, Mrs. Mary Katherine Penn has died, but the amount provided for her is fully taken care of in Item Two of this will as originally prepared.”

[662]*662After having made other bequests, the testator bequeathed, in Item Nine, all of the rest and residue of his estate in trust for his widow, Mrs. Katherine Boyd Penn, who was to receive the net income therefrom during her life, with the provision that “at her death all the then principal, and unpaid income remaining on hand shall go back to my blood kin living at the death of Mrs. Katherine Boyd Penn, which said blood kin and beneficiaries are named in the trust created in the second clause of tny will, and said distribution to them shall be in the same proportion as the amounts set up for each beneficiary under said trust.”

The widow renounced the will and the lower c.ourt decreed that she was entitled under the statute to one-half of the net personal estate of the testator. It also decreed that such renunciation had the effect of accelerating the remainders created under Item Nine, with the result that the residuum of the estate should pass to the testator’s legatees for whom the several trusts were created by, and in the same proportions that his bequests should pass under, Item Two. All parties agree that these provisions of the decree are correct.

As recited in the will, Mrs. Mary Katherine Penn, one of the testator’s sisters, died before the instrument was executed. Mrs. Annie Lee Penn Montague, the other sister, died shortly before the testator. The main question in dispute is the devolution of the two trust funds of $20,000 each set up in Item Two of the will for these two sisters. The parties agree that a proper determination of this question will likewise determine the devolution of the property under Item. Nine of the will.

The lower court held that the testator’s two sisters having died before he did, the trust funds of- $20,000 set up for each of them passed absolutely to their respective distributees at law, namely: Mrs. Elizabeth Penn Carter and Carroll Penn Montague, the appellees.

[663]*663The appellants, who are the testator’s nephew, John Pemberton Penh, Jr., and the testator’s two nieces, Mrs. Marie Penn Watt and Mrs. Kitty Penn Fuller, and the testator’s grandnephews and grandnieces, contend that upon the death of the two sisters, prior to the testator, their shares of the trust fund, amounting to $40,000, should remain in the trust estate and should be used to increase proportionately the amounts set up for all of the twelve beneficiaries mentioned in Item Two who survived the testator.2 J. Pemberton Penn, who has most to gain should the appellants prevail, does not join in the appeal. The executors likewise are neutral in this litigation.

The appellants contend that the second quoted paragraph in.Item Two, which provides that “Should any one of said beneficiaries die before I do, then the amount herein specified for that beneficiary shall be. used to proportionately increase the amounts set up for the other beneficiaries”, was intended to apply to those beneficiaries who died before the testator, and that the first quoted paragraph, which [664]*664provides that “at the death of any one of the beneficiaries of said trust, then the trust fund for the benefit of the one so dying, principal and unpaid income shall pass to his or her distributees at law,” was intended to apply to those beneficiaries who died after the testator. Since both beneficiaries here died before the testator, the appellants say that the shares of these deceased beneficiaries passed under the scond and not under the first quoted paragraph of Item Two.

The trouble with this argument, which at first may seem quite plausible, is that it entirely ignores “the third quoted paragraph in which the testator expressly recognizes and refers to the death of his sister, Mrs. Mary Katherine Penn, and provides that her share “is fully taken care of in Item Two of this Will as originally prepared.”

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Bluebook (online)
29 S.E.2d 825, 182 Va. 658, 1944 Va. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-v-first-national-bank-of-danville-va-1944.