Walton v. Melton

Browning, J., delivered the opinion of the court. This will is before us for construction. “I, Emma Catherine Wright of -Hanover County, Virginia, do hereby make and constitute this my last will and testament. “First I do desire that all my just debts be paid. “Second I do give and bequeath all the tangible personal — 113 — property in my dwelling house to those of my following nieces that may survive me, namely, Mildred Elizabeth Walton, Amanda E. Harris, Margaret Walton, Viola Agnes Mills. “Third I do give and devise my tract of land on which I now reside and all my other property to Robert D. Melton and in case the said Robert D. Melton shall make any improvements to the houses on said land or shall erect any other buildings on said land, they shall pass to him at my death. “Fourth I do nominate and appoint the said Robert D. Melton as the executor hereof and I do request that he be allowed to qualify as such without giving any security. “Witness my hand and seal this .... day of October in the year 1937. Emma Catherine Wright, (Seal).” Emma Catherine Wright, a resident of the County of' Hanover, Virginia, died January 27, 1944,- leaving the above quoted will. Certain circumstances and conditions of her life reveal a setting which is unique and novel in the extreme. She was approximately seventy-five years old. She owned a tract of some 14 acres of land and lived alone in a small house located on it for a great part of her life. She was thought by her neighbors and friends to have been a very poor person—in dire and necessitous circumstances. Persons in the neighborhood contributed to her comfort and needs. Members of the church to which she belonged, and indeed, the church itself, as a unit or body, extended to her aid of a material nature. Mr. Robert D. Melton and his wife were chief among those who rendered her assistance. They looked after her and supplied her wants in a liberal and generous way. Mr. Melton did not live on Mrs. Wright’s farm but he went by to see her every day at times and several times a week at other periods. Mr. Wright, the. husband of the testatrix, died in 1930, and after his death Mr. Melton worked the farm for her on a share crop basis. He testified that her part of the crops was harvested and sold and she received her part of the selling price. Mr. and — 114 — Mrs. Melton provided her with many of the necessities of life. He would supply her with firewood and put it in place for her use and his wife would visit and nurse her when she was sick and also washed and cooked for her at times. These relations, however, were in a degree, reciprocal. Mrs. Wright gave Mr. Melton the watch and chain which belonged to her husband. The peculiar feature of her life which has been referred to, is, that upon an examination of the house and her effects, there was found money to the extent of more than $6,000. Several hundred dollars of this was in gold and silver coin and the rest was in bank notes ranging in denominations from one to fifty dollars. This money was concealed in various places, as buckets, bags and kegs. A bank-book was found which showed that she had a savings account containing a balance of $700 in one of the ‘banks of the county. There were some furniture and household effects in the house of an appraised value of $326 and some garden tools and implements in a smoke house valued at $8. The real estate, consisting of the dwelling and farm, was valued at $1,800. The four beneficiaries, under the second clause of the will, nieces of the testatrix, instituted suit praying for the construction of the will. Robert D. Melton, beneficiary under the third clause and the executor, was made a party defendant and it was asked that the heirs at law of the testatrix be determined in the event it was necessary. The plaintiffs below, the appellants here, took the position that, under the second. clause of the will, all the personal property in the dwelling house, including the money already referred to passed to them. Mr. Melton, the appellee, contended that, by the terms of the third clause, the money went to him, under the theory that money is intangible personal property, and that the general residuary words “all my other property”, included it. He fortified his position by urging that the bequests to the beneficiaries under the second clause were restricted by the — 115 — word “tangible” and that only that species of property, .as defined by him, passed thereunder. The trial court adopted the theory of the appellee and so decreed, the learned Chancellor filing an able opinion, explanatory of his views, which is a part of the record. Portions of the testimony, deemed to be important, are in the record and are the basis of the statements of fact already made. We may add, that certain of the appellants kept in touch with the testatrix, who was their aunt, by visiting her at times, and one of them, Viola Agnes Mills, lived with her for a period of six months, while attending school. The cardinal rule to be employed in the construction of wills has many times been aptly stated by this court. In Coffman v. Coffman, 131 Va. 456, 463, 109 S. E. 454, quoting from Penick v. Walker, 125 Va. 274, 278, 99 S. E. 559, it was said: “The primary consideration and rule of construction is to determine the intention of the testator from the language which he has used. If the meaning of that language is plain, the will must be given effect accordingly. This rule is familiar and elementary, and to it all others are subordinate and subservient.” In James v. Peoples Nat. Bank, 178 Va. 398, 404, 17 S. E. (2d) 387, this statement appears: “ * * * While rules of construction are well established, the dominating rule is the intention of the testator. This intention, gathered from the whole will, must predominate over all technical words and expressions. When ascertained, the intention, as expressed in the various wills, explains and limits to their proper application the various exceptions and refinements of distinction to be found in the cases.” In Horne v. Horne, 181 Va. 685, 691, 26 S. E. (2d) 80, is this: “Technical rules of construction are not to be invoked to defeat the intention of the maker of the instrument, when — 116 — his or her intention clearly appears by giving to the words used their natural and ordinary import.” Our inquiry then is what was the intention of' the testatrix at the time she made her will and in reaching this we must place ourselves as nearly as may be in her situation. After the payment of debts she had first in mind four of her nieces, whom she mentions by name, as objects of her testamentary favor. What1 does she give them? “All the tangible personal property in my dwelling house.” All the property in her dwelling house was $314, or $326 Worth of household furnishings and $6,801.96 in money, which latter was of the kinds and in the receptacles referred to. ' The money had been there for years as evidenced by its type and appearance. The fact that she had it was kept a profound secret. She was the only human being in all the' world who knew of its existence and she alone knew where it was. This place she described with accxxracy as “my dwelling house”. She did not give or bequeath to her nieces a part of the tangible property in her dwelling house but she gave them “all” of it. Being a person of limited educational attainments, it is doubtful tf she knew the meaning of the word “tangible”. It will be borne in iiiind that the appellants were her nieces—her own “kith and kin”—a relationship nearly as close as that of one’s children. “Blood is thicker than water”. Mr. Melton was not a kinsman of the testatrix. He was only a cousin of her deceased husband. It is true that one could not have been more attentive or kinder to her than he, but being the recipient of her ' bounty, to the extent he is conceded to be, he is far from being unrecompensed. He gets the farm, with the houses, and. all the property which was not in the dwelling house. Under the general residuary words of the third clause, “and all my other property”, the bank balance of $760.00 passes to him. Were his contention to prevail Mrs. Wright’s four nieces, who were first in her thought would have the trifling sum of $326.00 worth of household goods divided among them. — 117 — It is manifest that this was not her intention when the will in its entirety is considered. The disposing terms in the two clauses differ. In the second clause is the phrase “give and bequeath.” These are words of a testamentary nature usually applied to personal property, while in the third clause are the words “give and devise” which generally apply to real estate. It is significant that in the third clause, after the words “all my other property”, the testatrix seems concerned only with real estate. The will particularizes, saying, “in case the said Robert D. Melton shall make any improvements to the houses on said land or shall erect any other buildings on said land, they shall pass to him at my death.” The thing which was uppermost with her, in connection with Mr. Melton, was “said land” and any accretions to it through his instrumentality. The subjective theme of said clause is land, the related objective theme is Robert D. Melton. The details are explanatory of its purpose and the general expression “all my other property” is qualified by the succeeding terms. We are thus brought to the inescapable conclusion that from the whole will there is clearly seen the intention of the testatrix to leave all of the property in her dwelling, including the money, to her four named nieces. It is apparent that we think the decree of the learned chancellor is erroneous. We reverse the decree except as to its disposition of the bank balance, which we affirm, and remand the case to the' trial court to be further proceeded with but not in conflict with this opinion. Reversed in part, affirmed in part and remanded.