Whitmore v. Margaret Paxton Memorial for Convalescent Children

Crump, P., delivered the opinion of the court. I am unable to agree with Judge Christian in this case. In my opinion, the conclusion reached by the learned judge of the trial court was clearly right and his final decree should be affirmed. Judge Christian has given an outline of the leading facts in the case, so that it is unnecessary to repeat them in connection with the expression of my views. — 1020 — It is essential, however, to bear in mind what was done by the parties and the sequence in which the events occurred. Mrs. Paxton, the owner of the entire farm, embracing some 850 acres, at the time of her death had lived upon it for a long period of years, was thoroughly acquainted with its use, and, evidently, after much consideration, had concluded before she made her will exactly how she would dispose of it. ’ The predominant thought running through the entire will is her beneficent intention to devote practically this entire valuable estate to the charitable institution by which she proposed to perpetuate her memory. In order to carry out her intention, in the first place she directed that the dwelling house and fifty acres of land, which would carry the house and lawn and garden and all such surroundings, and also the exclusive and unobstructed use of the private roadway leading from the house and its surroundings to the public road, be dedicated in specie tq the use of- a memorial home she was establishing. In order to place this beyond question, she made a specific devise by which she gave to the institution fifty acres of land, so selected as to include the house and buildings and the driveway and hedge leading out to the turnpike road. She did not give the road or roadway, or its use, but she directed that it should be included in the fee simple ownership by which the Convalescent Home was to hold the fifty acres. The roadway might lie within the center of the fifty acre tract, or in any part of it, according to the lines which might be most satisfactorily and conveniently run. This will was probated in June 1922. It required that the Margaret Paxton Memorial for Convalescent Children should be incorporated — 1021 — and prepare to carry out the objects of its establishment within three years. Accordingly, the two executors, in order to leave no question open, instituted a ■suit, in which the personal property was wound up, and, it being shown that the institution had been incorporated and was ready to receive a deed, the court authorized the deed for the fifty acres to be made. The executors then proceeded to select and mark out the fifty acres in accordance with the terms of the will and make a conveyance of it. A surveyor was engaged and he made’ a survey of the fifty acres, a sketch of which appears in Judge Christian’s opinion. That sketch, however, does not show the actual courses and distances which appear upon the survey as reported by the surveyor. This survey shows that the fifty acres was included within boundaries appearing by courses and distances. It commences at the intersection of Babson’s line, as shown upon the plan, with the State highway, thence running thirty-two feet on the line of the highway to an iron pin, which was evidently beyond the hedge, thus giving the fifty acre tract a frontage of thirty-two feet on the highway, including the wddth of the private road, and to a point beyond the hedge, along the side of the road, fixed by the iron pin. The lines were then run from point F on the plat by courses and distances to point G, and, along on the other lines appearing, back to point A, the beginning. When the deed was first prepared it seemed that the executors desired to reserve to the future purchasers of the remainder of the property a right-of-way over the roadway. Thereupon the secretary of the Paxton Memorial addressed to one of the executors the following letter: — 1022 — “Leesburg, Virginia, October 4, 1923. “Dr. W. C. Orr, “Leesburg, Virginia. “Dear Sir: “I have consulted with all the members of the board of trustees of the Margaret Paxton Memorial for Convalescent Children, in respect to the provision in the proposed deed, a copy of which you handed me, which reserved to the purchaser, or purchasers, of the residue of the farm the right-of-way over the roadway. “The board and its counsel are of the opinion that as it was provided in the will of Mrs. Paxton that the fifty acres to be conveyed to the corporation should include the roadway, there should be no reservation in the deed, and that the road be, unconditionally, conveyed to the corporation. “Yours very truly, “A. Debrill, Secretary.” The executors receded from their position and changed the deed accordingly, retaining, however, the original date of the deed, September 5, 1923. The deed was signed and acknowledged by the two executors in November, and admitted to record, together with the survey and plat made by the surveyor, on December 2, 1923. This deed is between the executors, as'such, and the Margaret Paxton Memorial for Convalescent Children, a corporation. It recites the will and the provision in it devising fifty acres, together with the house and buildings and driveway and hedge, to the grantee. It further recites the fact that the corporation had been duly and legally organized and was entitled to have and receive from the executors a deed for the fifty acres, according to its description; and then recites: “And, Whereas, said executors were di — 1023 — reeted to convey said land unto the said party of the second part; and, whereas, in order to make said conveyance said executors did direct W. C. Whitmore, surveyor for Loudoun county, to go upon said land and make a survey thereof and furnish a plat of the same for the purpose of making said conveyance; and whereas, said plat and survey are acceptable to the officers acting in behalf of the said party of the second part.” The deed proceeds to convey the property, “the metes and bounds whereof, according to the survey of the said Whitmore, are as follows.” Then follows the description of the metes and bounds by courses and distances, commencing at point A above mentioned and brought around to the same point of beginning by fifteen or more courses and distances. The deed also recites that the plat of land was attached to it and would be recorded with it, which was done. The plaintiff in the instant case thereby acquired title and ownership in fee simple to the exact fifty acres devised to it by the testatrix. The executors very properly upon the protest of the trustees of the Paxton Memorial conveyed the fifty acres in obedience to the terms of the will. Whatever their powers may have been in respect to their authority to sell the residue of the real estate, those powers were transcended by any subsequent attempt they might make to impose any limitations, conditions or burdens upon the real estate conveyed to the memorial. It appears that the question ,of the fifty acres being burdened with an easement, in favor of future purchasers of the residue of the real estate, of the use of the private road out to the State highway again came up. It further appears that at a proposed auction sale of the residue, comprising a little more than eight hundred acres, the executors, or one of them, was of opinion that the purchaser of the — 1024 — residue would acquire a right, in the nature of an easement, to the use of the private roadway out to the highway. No sale was. made at the public auction and the deed mentioned to the purchasers of the entire residue, with the exception of three acres, executed in January, 1926, was made without the grant of any such right or any easement by the surviving executor, one-of the executors having in the meantime died. There is much evidence in the record as to the use of the entire-farm or property for a long period of years during the lifetime of Mrs. Paxton and during the prior lifetime-of her husband, which it seems to me is, in fact, not material to the consideration of this case. The testatrix had a right to do with her property what she chose. If there was any appurtenance or easement created by her it was exclusively attached to the fifty acres, and affirmatively the enjoyment thereof excluded from any future owner of the balance of the property. To imply any intention on her part to place any burden upon the-fifty acres devised specifically is entirely inconsistent with the language of the specific devise and with the-general intent of her will. The language needs no-explanation and admits of none. Explanation can only amount to alteration and an endeavor to defeat the-intention of the testatrix. The executors properly conveyed the fifty acres as directed by the will. The complete equitable ownership was in the devisee up to that time, and the executors held only the mere legal title. After their conveyance they had no power of any sort in connection with the fifty acres. Their-functions in that respect had altogether ceased. The executors had only such powers as were given them by the will and the codicil. The only duty, as well as the-only power, conferred and imposed upon the executors was to convey the property to the corporation as soon — 1025 — as practicable. The surviving executor of Mrs. Paxton, in the light of the preceding facts and his own acts in the premises, was not authorized to lead the appellants to believe they could acquire any rights in the roadway and hedge, or any part of the fifty acres. It also appears that the two purchasers, Whitmore and Little-john, before the deed was executed to them in 1926, knew of the recorded deed made in 1923, and they bought with full knowledge of all the facts. Learned counsel for the appellants make an exhaustive argument based upon the theory that there was a severance of the estate as owned by Mrs. Paxton, and, hence, any appurtenance or easement reasonably necessary to the enjoyment and use of the property bought by them passed to them as grantees. The technical doctrine as to ways of necessity need not be discussed. The question is as to the acquisition by implication of a right or easement to use the roadway in question out to the highway passing with the grant to the purchasers, because of its prior use during the entirety of the estate for general farming purposes. It was shown and was necessarily a fact that this roadway had been used by Mrs. Paxton and, no doubt, by servants, visitors, tenants of the property, or portions of it, and the entire entourage connected with such an domestic establishment as Mrs. Paxton conducted. So far as the tenants are concerned, it is said by Mr. Leonard A. Jones in his work on easements, section 284: “Of course, if one enters as the tenant of another, or holds under and by contract in any way, he cannot acquire any prescriptive right while he thus holds, nor will any portion of the time during which he thus holds be counted in making out the prescriptive right.” Counsel make reference to section 5168 of the Code prescribing that all appurtenances pass with the grant of real — 1026 — estate. This is merely an affirmation of the common law. 2 Minor on Real Property, page 1259. It is an established doctrine of the law that where an owner of an entire estate disposes of it simultaneously in two different tracts there may arise an easement in favor of one of the tracts upon the other by implication. If that doctrine does not apply to this ease, then the claims of the appellants must fail. In the recent case of Prior v. East (March, 1928), 150 Va. 231, 142 S. E. 361, we find the latest expression on this subject of our Court of Appeals. Quoting from Wash-burn on Easements with approval, it is there stated that in case of division of an estate an easement or roadway which has been used in favor of one portion over the other by the common owner of both may become charged upon one in favor of the other in the hands of separate owners, depending, however, “where there are no words limiting or defining what is intended to be embraced in such deed or partition,” upon whether such easement is necessary for the reasonable enjoyment of such heritage or portion of the property as claims it as an appurtenance. We need go no further for authority. In the instant case there are words limiting and defining exactly what the testatrix intended, as has already been shown. She intended to make and did make a specific devise of a part of the real estate to the proposed institution, and it was accompanied by the distinct requirement that the fee simple title to and absolute ownership of the land upon which the road and hedge were located shall be included in the fifty acres. There is no indication or suggestion that this ownership and complete dominion shall be clogged with any burden, condition or easement. The testatrix had a right to so dispose of her property, and it was natural, under the circumstances — 1027 — disclosed in the record, that she should have excluded all others from any use of or participation in the roadway because of the uses to which she dedicated the fifty acres. She doubtless had in mind that the residue of the property had a frontage of five thousand feet on the same highway out to which this roadway led. She could not foresee whether the residue of eight hundred acres would be sold as a whole, and she negatived any idea that she was establishing any burden or easement upon the fifty acres, or any part of it. The supreme thought in the mind of the testatrix, intensified with the passing of the years, was the creation, development and permanent maintenance of the Paxton Memorial. She doubtless foresaw that the safety of the home, designed as a place where the irresponsible wards of her charity could enjoy the freedom of out door exercise and play, would be hourly threatened if the roadway through the grounds could be used at will by the changing occupants of the eight hundred acre residue contiguous thereto. It is the primary object of the court to ascertain and carry out the intention of a testator. Here the intention is «Liárly clear from the langauge used and the text of the entire will. Mrs. Paxton was the owner of the entire estate. The court has no right to declare any abridgement upon her power of disposal of it. It may be that if she had devised the fifty acres, say, to some relative, without the condition that the ownership should necessarily include the hedge and the roadway, and had at the same time devised the residue of the property to some one else, .a question of dominant and servient estate and of an easement might have arisen. To hold, however, that any right of easement was intended by Mrs. Paxton to be allowed to the future and unknown purchasers of the eight hundred acres — 1028 — and be imposed as a burden upon the real estate given to the Paxton Memorial would be to deny her the right to dispose of her property in the way she designed and by the language she used. No easement in a proper legal sense could exist so long as Mrs. Paxton was the owner of the entire tract, therefore there must have been a time when an easement arose or was created. Turner v. South and West Improvement Company, 118 Va. 720, 88 S. E. 85. An easement upon severance of a parcel of real estate by the owner may arise by implication unless the owner expressly excludes such implication. Mrs. Paxton did that in this case, and, as held in Prior v. East, supra, there are words here limiting and defining what was intended to be embraced in and to follow the segregation of the fifty acres from the balance of the estate. Objections are made to the admission and exclusion of some of the testimony. The testimony so objected to would not affect the decision of the case; hence these objections need not be considered. I am, therefore, of opinion to affirm the decree of the trial court. McLemore and Chinn, JJ., concur wifo> Crump, P. Decree affirmed.