Hunter v. Hicks

Keith, P., delivered the opinion of the court. This is an action of ejectment brought by Eobert I. Hunter and others against W. H. Hicks and others to recover a tract of land lying in the county of Horfolk. There was a demurrer to the declaration, which was sustained [623] by the circuit court, and judgment entered for the defendants, and that judgment is before us upon a writ of error. The decision of the case involves a construction of a deed which is copied into the declaration, to which the' defendants in the circuit court assigned six grounds of demurrer, designated as a, b, c, d, e and. f. Specifications “a” and “f” were overruled; “b,” “c,” “d” and “e” were sustained, and the correctness of the .judgment turns upon whether or not Martha Louisa Hunter took a fee simple or a life estate in the land conveyed to her by the deed from Isaac Hunter. By the deed Martha Louisa Hunter is given full power to sell and dispose of the property covered by it, “and make such disposition of the proceeds of sale as she may think proper, and also through said trustee to collect the said notes, and deliver them to the makers or other proper person and dispose of their proceeds, always, however, and in all cases, with the cooperation and assent of the said V. O. Cassell, trustee, who on his part- agrees to execute such instruments as may be needful in the premises as the said Martha Louisa Hunter may direct by her becoming a party to and signing said instrument. And the said Martha Louisa Hunter may also if she think proper Avith the proceeds as aforesaid purchase other property, real or personal, through and by her said trustee, and the deed made to said trustee for her sole benefit, and to be held upon the same terms as the other property herein mentioned. If the said Martha Louisa Hunter should depart this life leaving her said husband, the grantor in this deed, surviving, then this grant as to the property then remaining is to cease and determine, but she shall have power and full authority is hereby given her by instrument in the nature of a last Avill and testament to dispose of one-half of the property .hereinbefore described or hereafter acquired as aforesaid then remaining; but if the said Isaac B. Hunter should die first then and in that event he hereby expressly reserves to himself full power and authority to dispose of the other half of the property then remaining, [624] hereinbefore described or hereafter acquired, by his last will and testament.” We have then a case where the grantee, Mrs. Hunter, under the deed from her husband, took property which she was authorized to sell and to dispose of the proceeds as she might think proper, and of what might remain at her death she had the power to dispose of one-half by her last will and testament. We are of opinion that the case is fully covered by the decisions of this court. “The cases cited clearly establish that whenever it is the intention of the testator that the devisee shall have an unrestrained power of disposition over the property devised, whether such intention be expressed or necessarily implied, a limitation over to another is void, because it is inconsistent with, and repugnant to, the estate given to the first. devisee, although the will’shows that it was the testator’s intention, in respect to the property given to the first taker, that ‘what may remain of the same,’ or ‘whatever may remain at his death,’ or ‘so much thereof as may be in existence at his death,’ or ‘such part as he may not appropriate,’ or ‘what may be on hand at his death,’ should go to another. Such intention must fail on account of its uncertainty, and the first taker acquires the absolute property.” Farish v. Wayman, 91 Va. 430, 21 S. E. 810, and cases there cited. See also Honaker v. Duff, 101 Va. 675, 44 S. E. 900; Johnson v. Smith, 108 Va. 725, 62 S. E. 958, 2 Va. App. 622 ; Rolley v. Rolley's Ex'or, ante, p. 454, 3 Va. App. 147; Randall v. Harrison, post, p. 686, and cases referred to in those opinions. It follows that the judgment of the circuit court must be reversed. Reversed.