Crews' Adm'r v. Hatcher

Keith, P., delivered the opinion of the court. This cáse is before us upon an amended and supplemental bill filed in the Corporation Court of the city of Danville, Ya., asking the construction of the will of A. S. Updegraff. The will, or so much of it as need be here quoted, is as follows: “I give and bequeath to my beloved wife, Maria Updegraff, for and during her natural life, the lot or parcel of land upon which I at present reside, fronting on Craghead street, in the town of Danville, and State of Yirginia, comprising the whole of the land heretofore purchased by me of Dr. William Gr. Craghead, deceased, as is evidenced by his deed of conveyance to me, which is of record, together with all and singular the buddings and other improvements situate thereon, and at her death to be disposed of as hereinafter provided. ’ ’ The will goes on then to say, that “I give and bequeath the residue of my real estate fronting on Craghead street, in the town of Danville, Ya., to Edward M. Hatcher and Sarah E. Clark, widow of Michael Clark, deceased, to them and their heirs forever, to be equally divided between them, with reference to the value of each share, that of the said Sarah E. Clark to be laid off next to the lot upon which I at present reside. ’ ’ The only other clause of the will which need be referred to is as fellows: “At the death of my said wife, Maria Updegraff, I direct that the remaining portion of my estate shall be equally divided among the said Edward M. Hatcher, Henry C. Hatcher, [380] and Sarah. E. Clark, or their heirs respectively, upon which final division the said Edward M. Hatcher and Sarah E. Clark shall account to the said Henry C. Hatcher for one-third part of the real estate herein devised to them respectively, the value thereof to be estimated as of the date of which they may come in possession of the same. ’ ’ ¥e are asked to determine the exact interest taken by Edward M. Hatcher, under this will, in the property disposed of in the clause last above cited. It will be observed that it refers to that portion of the testator’s estate which he devises to his wife, Maria, for life, in a former part of the will. The appellants contend that the language of the will creates in Edward M. Hatcher a vested remainder in fee, while, upon' behalf of the appellees, it is claimed that the remainder limited after the life estate to Maria Updegraff is contingent upon Edward M. Hatcher’s surviving the first taker, and, he having died in her life time, that the said remainder is not subject to his debts, but passes to his heirs, and that the word “heirs” should be construed as a word, of purchase and not of limitation. It is conceded that the estate given to Edward M. Hatcher and Sarah E. Clark, and their heirs, created in them a fee-simple, but the testator in disposing of the remaining portion of his estate, Avhich consisted of the remainder after the termination of the life estate given to his wdfe in the lot fronting upon Oraghead street, changes the phraseology and bequeaths this remainder to “Edward M. Hatcher, Elenry C. Hatcher, and Sarah E. Clark, or their heirs respectively;” and it is argued that the change of expression from “and their heirs” to “or their heirs” is evidence of a purpose upon the part of the testator to use the word “heirs” in a different sense in the two passages quoted; and Avhile in the first the word “heirs” has its usual and natural signification, as a word of inheritance or limitation, it is to be construed and interpreted in the latter clause as a word of purchase. [381] In the case of Chapman, v. Chapman, 90 Va. 409, the testator by his will said: “It is my wish and' desire that all of my estate both real and personal which I have not heretofore disposed of I loan to my wife, Elizabeth Chapman, during her natural life and my wish is that the property I have loan to her after her death both real and personal should bo sold by my executors and the money arising from the same should be equally divided among my four children above named or their laAvful heirs begotten of their bodies. ’ ’ It Avas contended that the phrase “or their laAvful heirs” made the gift to the children contingent, but the court thought otherwise, and LeAvis, P., delivering the opinion says that “to effectuate the intention of the testator Ave must read £and’ for £or’ and give the word ‘heirs’ its usual and legal signification. ’ ’ Courts always favor the vesting of estates, and therefore in doubtful cases lean in favor of construing language as creating vested, rather than contingent, remainders. “There is, indeed,” says this court in the case just cited, “nothing better settled than that all devises are to be construed as vesting at the testator’s death, unless the intention to postpone the vesting is clearly indicated in the will. ’ ’ Chapman v. Chapman, 90 Va., at page 411. This rule of construction upon which courts rely in cases of doubt and difficulty, need not be resorted to here, as there are other considerations which, in our judgment, place the interpretation to be given to this will beyond serious cavil or question. A vested remainder is defined to be one “limited to a certain person, and on a certain event, so as to possess a present capacity to take effect in possession should the possession become vacant.” Fearnes Remainders, 216. “The present capacity to take effect in possession, if the possession were to become vacant, and not the certainty that the possession Avill become vacant before the estate limited in remainder [382] determines, universally distinguishes a vested remainder from one that is contingent.” 2 Minor’s Inst., 337. The estate given E. M. Hatcher by the will under consideration seems to fulfill every condition and requirement of this definition. It is the established law with us that after a bequest of an estate for the life of the first taker, words of survivorship in a will are always to be referred to the period of the testator’s death, where no special intent appears to 1he contrary. See Hansford v. Elliott, 9 Leigh, 79; Stone v. Lewis, 84 Va. 474; and Gish v. Moomaw, 89 Va. 345; Chapman v. Chapman, 90 Va. supra. In the case under consideration, not only is there nothing in the will to indicate that the words of survivorship should have reference to any period other than that of the death of the testator, but, as was said by Judge Richardson in Gish v. Moomaw, above cited, they are conspicuously absent. The will, on the contrary, affords other evidence that the testator intended that E. M. Hatcher should take a vested remainder in fee after the termination of the life estate given to his wife. As has been seen, a part of his real estate fronting on Crag-head street was given absolutely to Edward M. Hatcher and Sarah E. Clark in fee, while in the succeeding clause of the will, which creates the interest which is the present subject of controversy, the testator directs that the remaining portion of his estate “shall be equally divided among the said Edward M. Hatcher, Henry C. Hatcher, and Sarah E. Clark, or their heirs, respectively, upon which final division the said Edward M. Hatcher and Sarah E. Clark shall account to the said Henry C. Hatcher for one-third part of the real estate herein devised to them respectively, the value thereof to be estimated as of the date of which they may come in possession of the same. ’ ’. The purpose of the testator is perfectly obvious. Edward M. Hatcher, Sarah E. Clark and Henry C. Hatcher were equally the objects of his bounty. He intended to create [383] among them perfect equality; and having given to Edward M. Hatcher and Sarah E. Clark, absolutely, the real estate fronting upon Oraghead street, he directs that in the final division of his estate they shall account to Henry C. Hatcher; or, in other words, bring into hotchpot with him the property so devised to them, in order that the equality between them might be established or restored. If, however, the construction contended for by the appellees be the true one, then Edward M. Hatcher would take one-half of the devise to himself and Sarah E. Clark and his heirs would lake one-1hird of the devise in the latter clause of the will, the effect of which would be to diminish the interest of Henry C. Hatcher, and thereby to thwart the manifest intention of the testator. It seems to us that the will created a vested remainder in Edward M. Hatcher, which took effect immediately upon the death of the testator, but the full enjoyment of which was postponed until the death of the first taker, Maria Hpdegraff. We are therefore of opinion that the decree complained of is erroneous, and must be reversed. Reversed.