Drake v. Blythe , 108 Va. 38 ( 1908 )

Whittle, J.,

delivered the opinion of the court.

This case (a suit in equity for partition) involves the construction of the will of Elijah Joyner, deceased, which is as follows:

“October 15, 1869, Eye give to my wife all my estate her life and at her deth eye give to my two daughters Eveline M. Joyner and Caroline F. Joyner to them and their heirs forever and if they dye with douth are eye give it to son Junius W. Joyner, the son of son my daughter Mary Jane Drake Eye give to my daughter Mary Jane Drake five dollars.”

The testator was survived by his wife, Patsy Joyner (who died a few years after husband) and three daughters, Eveline M. (who died in the year 1905, unmarried and without issue), Caroline F. (who intermarried with Joseph Blythe, of which marriage there is a son, Lucius Blythe, now living) and Mary Jane Drake; also her son, Junius W. Drake (sometimes called Junius W. Joyner).

Upon the death of Eveline M. Joyner, Junius W. Drake asserted title to half of the estate, and from a decree disallowing his pretension this appeal was granted.

It is conceded that at the death of .the widow the two daughters, Eveline and Caroline, took under the will a defeasible fee in the 70 acres, which formed practically all the estate, as joint tenants; and at common law, on the death of Eveline without issue, her moiety would have passed to Caroline by right of survivorship. The appellant, however, contends, that survivorship between joint tenants having been abolished in Virginia by statute (Code, 1849, ch. 116, sec. 18), upon a proper construction of the will, at the death of Eveline without issue, he took one-half of the estate.

It will be remembered that the act abolishing survivorship contains the exception, that it “shall not apply * * * to an estate conveyed or devised to persons in their own right, where it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others.” Codes, 1849, ch. 116, sec. 18; 1887 and 1904, sec. 2431.

At the date of the will, the little farm in controversy was the home of the testator, his wife and two unmarried daughters, Eveline and Caroline. . Under these circumstances, it was the natural desire of the testator to perpetuate this home for the benefit of his wife, who was shortly to take his place as the natural head of the family, for her life, with remainder to the next objects of his solicitude, his two unmarried daughters for their joint lives; and, if both should die without issue, then to the ultimate object of his bounty, his kinsman in the next degree, the grandson, son of his remaining daughter, Mrs. Drake, who, for some unexplained reason, he did not wish to participate in his estate.

The testator, though an illiterate man, has expressed these dominant purposes of his mind in unmistakable language. . So we find, that the property is given in its entirety to the wife for life; and, at her death, the remainder in the identical subject, without change or diminution, is given to his two daughters, Eveline and Caroline, to them and their heirs forever; if they should die without heirs, aud only upon that contingency, “it,” the entire farm and not part of it, shall devolve upon the appellant.

It calls for no stretch of the language of the will, therefore, to hold, that, in the words of the statute, “it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying (Eveline) should then belong to the other” (Caroline).

Eor these reasons, the deuree of the circuit court, which reaches the result indicated, must be affirmed.

Affirmed.