Love v. Roper , 198 Va. 263 ( 1956 )

Hudgins, C. J.,

delivered the opinion of the court.

Two decisive questions are raised on this appeal—one is the construction of the pertinent clause of Henry C. Roper’s will, the other is whether the two five thousand dollar legacies therein bequeathed, with certain limitations, to LeRoy R. Love and John M. Love have been substituted or converted by the act of the parties from personalty into realty. The decision of both questions turns upon the facts, which are substantially as follows:

Henry C. Roper, a bachelor, by his will probated on February 7, 1910, in the Hustings Court of the City of Petersburg, Virginia, disposed of a large estate. The pertinent part of the will is the clause by which he gave his nephews ten thousand dollars in the following language:

“To my nephews John Marion and LeRoy R. Love I leave each Five Thousand Dollars, one to heir from the other and should they leave no living heir of their body, the (Ten Thousand Dollars left them) shall go to Paul Roper, Bartlett Roper, D’Arcy Roper and Phil Roper, sons of my brother Bartlett Roper and to Wilson Roper, son of my brother, Preston L. Roper.”

When the will was probated the two Love brothers were young and unmarried. They owned in fee as tenants in common a building and lot designated as No. 115 North Sycamore Street, Petersburg, Virginia. LeRoy R. Love was a non-resident of Virginia, living in the state of Utah. John M. Love had just graduated from Johns Hopkins University and was living in Norfolk, Virginia.

The executors of the will of Henry C. Roper, before paying either of the legacies, instituted, in the Hustings Court of the City of Petersburg, a suit against all the legatees. Unfortunately, the papers in this suit have been lost and the only record available is a decree bearing date January 21, 1911, recorded in the chancery order book. It is stated in the decree that the cause was heard on the bill, taken for confessed as to certain of the adult defendants, the joint and separate answer of Paul Roper, Bartlett Roper, Jr., D’Arcy W. Roper and Philip R. Roper, the answer of the infant defendant, Willson Roper, and his guardian ad litem, and the joint and separate answers of LeRoy R. Love and John M. Love filed by leave of court. The decree continued in the following language: “On consideration whereof, and it appearing to the court from the answer of the said defendants, LeRoy R. Love and John M. Love, that they desire the sum of ninety-five hundred (9500) dollars, the amount of the legacies left them by the said Henry C. Roper, deceased, by his said will, after deducting therefrom the sum of five hundred (500) dollars, the amount of the collateral inheritance tax of five (5) per cent due thereon to the State of Virginia, be invested in that certain lot or parcel of land, with the buildings thereon . . . .” After describing Lot No. 115 North Sycamore Street, Petersburg, Virginia, in detail the decree continued: “the court doth adjudge, order and decree that the said Bartlett Roper and Preston L. Roper, executors of the said Henry C. Roper, deceased, invest the said sum of ninety-five hundred (9500) dollars in the purchase of said lot or parcel of land hereinbefore mentioned and described; said lot or parcel of land to be conveyed to Preston L. Roper, Trustee, and the same to be held by said Trustee according to the terms and provisions of the will of the said Henry C. Roper, deceased.” (Italics added)

Pursuant to this order of the court the Love brothers by deed bearing date January 23, 1911, conveyed the lot to Preston L. Roper, Trustee, upon the terms and conditions set forth in the decree. It is expressly stated in the deed that “The said property hereby conveyed is to be held by the said Preston L. Roper, Trustee, according to the hereinbefore mentioned terms and provisions of the will of the said Henry C. Roper, deceased.” (Italics added)

LeRoy R. Love died in 1924, survived by his widow, Frances Cooper Love, to whom he willed all his property. He left no living heir of his body.

On June 5, 1948, John M. Love and the then surviving Roper nephews and the successors in title of those who had died, united in a motion to the court for the appointment of G. C. Wilson, substituted trustee, in the place and stead of Preston L. Roper, deceased, to hold Lot No. 115 North Sycamore Street in accordance with the terms and conditions of the will of Henry C. Roper. It is stated in the order that “. . . . it appearing to the court that all of the parties interested in the execution of the trust have had reasonable notice of the filing of said petition and the motion to appoint a substituted trustee, the court doth accordingly order that G. C. Wilson be and he hereby is appointed Trustee under the will of Henry C. Roper for the benefit of John M. Love and others in the place and stead of Preston L. Roper, Trustee, deceased, with all the power and subject to all the duties and obligations of the original trustee therein.” Neither the wife of John M. Love nor the widow of LeRoy R. Love were parties to the motion requesting the appointment of the substituted trustee.

On June 12, 1948, G. C. Wilson, Trustee, and John M. Love, with the consent and approval of the then owners of the contingent remainders, leased the lot to Ralph M. Levy for a term of five years, terminating on June 3 0, 1953. In this lease the lessee was given the privilege or option of renewing the lease for an additional five years. This option has been exercised and the lessee has given the required notice that he desires to rent the property through June, 1958.

John M. Love died in 1952, survived by his widow, Grace Eloise Love, to whom he willed all his property. He left no living heir of his body.

This suit was instituted by D’Arcy W. Roper and the successors in title of the three remaindermen who had died, against Willson B. Roper and G. C. Wilson, Trustee, to determine the respective rights of the parties in lot No. 115 North Sycamore Street, and for distribution of the rents and profits collected therefrom by the trustee since the death of John M. Love. The widows of LeRoy R. Love and John M. Love were not made parties. However, with the permission of the court, they filed a petition in the cause in which they claimed that as widows and sole beneficiaries under the wills of their respective husbands they were the owners in fee of the lot and charged that the deed executed by their husbands bearing date January 23, 1911, conveying the property to Preston L. Roper, Trustee, was null and void and constituted a cloud upon their title and praying that it be removed; in the alternative, they alleged and charged that the said deed was a simple deed of trust executed to secure the repayment of the ninety-five hundred dollar legacy to the trustee in the event both the Love brothers should die leaving no issue of their bodies; their alternative prayer being that upon payment by them of the ninety-five hundred dollars, with interest since the date of the death of John M. Love, the said deed be released and they be declared the owners in fee of the lot.

The trial court held that Grace Eloise Love and Frances Cooper Love had no right, title or interest in the lot and entered a decree sustaining a demurrer to the petition. Grace Eloise Love and Frances Cooper Love were awarded this appeal to review that decree.

Appellants’ statement of their contention is as follows:

“The Petitioners Love seek but one objective, i.e., to reimburse the defendants Roper if the legacy to their husbands was a defeasible estate, or if not to have it determined as an outright gift under the doctrine of survivorship—‘one to heir from the other’ and in either event to maintain their ownership in fee simple and as tenants in common to the property which their husbands gave as security, among themselves and to meet any eventual contingency occasioned by the legacies to them.”

If the doctrine of survivorship is applicable, then on the death of Leroy R. Lovei his interest in the legacy passed to John M. Love as survivor, leaving no interest therein to pass to the widow of LeRoy R. Love. In any event appellants’ contentions ignore that part of the will which provides that “should they leave no living heir of their body, the (Ten Thousand Dollars left them) shall go to” certain named nephews.

We have held in numerous cases that such words of limitation create a defeasible estate which terminates upon the happening of the contingency, in this case the dying of both the Love brothers without heirs of their body. Code § 55-13. Trice v. Powell, 168 Va. 397, 191 S. E. 758; Pinker v. Trout, 171 Va. 327, 198 S. E. 913; Peoples National Bank v. Crickenberger, 159 Va. 264, 165 S. E. 412. It was held in Carter v. Kessling et al., 130 Va. 655, 108 S. E. 708, that a defeasible estate may be created in personalty as well as in realty. In fact, appellants virtually conceded during the oral argument that the Love Brothers took a defeasible estate in the $10,000.00 legacy.

Before appellants can establish a valid claim to the lot, or any interest therein, it is incumbent upon them to set aside or eliminate the decree of January 21, 1911, entered in the suit of the Executors of Henry C. Roper’s will against his legatees and the deed bearing date January 23, 1911, executed by their husbands, the Love Brothers, conveying the lot to Preston L. Roper, Trustee.

This they attempt to do by claiming that the executors were not authorized by the will of Henry C. Roper to invest the money legacies in real property and that the Hustings Court of the City of Peters-burg had no power or jurisdiction to authorize or permit the executors to make such an investment. They also claim that the deed conveying the property to Preston L. Roper, Trustee, should be construed as a mere deed of trust securing the repayment of the legacy in the event that both the Love brothers died leaving no bodily heir surviving. Neither claim is supported by the facts or justified by the language used in the instruments.

In January, 1911, the Love brothers were young, unmarried and possessed of some means. A young man so situated has expectation of marrying and being survived by one or more children. Where two young men are involved, as in this case, the expectation of at least one to marry and have children is very much higher. They owned lot No. 115 North Sycamore Street in fee. They owned a defeasible estate in $10,000.00. They at that time had a right to sell or give away the lot or the legacies without the impairment, or invasion of any right of their future wives.

The widows of the Love brothers acquired no marital rights to the lot in question. Their claim to the lot necessarily is based upon the fact that each is the sole beneficiary under the will of her husband. If the husbands prior to their respective marriages alienated the lot by substituting it for the cash legacies, their widows as their devisees have no legal ground upon which to base their claim.

There is no allegation or suggestion that the question of fraud, misrepresentation, mistake, unfair dealing or inequitable conduct induced the entry of the decree of January 21, 1911, or the execution of the deed of January 23, 1911. It appears that the building on the lot is rented for $3000.00 per annum and that it is worth more than $10,000.00. Appellants say that it will work an undue hardship upon them to deny them the right to recover neither the $10,000.00 legacy nor the lot. However, it is to be remembered that this situation was created prior to their entrance upon the scene, that is, prior to their respective marriages. The right of the Love brothers to the legacies never became absolute, as neither left a living heir of his body. They, with full knowledge of this limitation, voluntarily substituted the lot for the legacies. The two instruments mentioned (the decree and deed of 1911) deprived the Love brothers of a clear title to the lot and made it practically impossible for them to sell or use it as security for a loan.

If in 1910 the executors of Henry C. Roper’s will had a reasonable doubt as to how, to whom and in what manner they should distribute the estate among the legatees and devisees it was their right and privilege to seek the advice and guidance of a court of chancery. The true intent and meaning of the language used by the testator in bequeathing the $10,000.00 is not crystal clear and is subject to several interpretations. The executors did enter a suit against the legatees, but without an opportunity to examine all the papers in the cause it is impossible to ascertain the full scope of the relief sought. However, it affirmatively appears from the decree entered in the cause that the Love brothers in their answers asked the court to direct the executors to invest the net amount of their legacies in the lot in question and that the same be held by a trustee to be designated by the court upon the same terms and conditions that the money legacies were directed to be held by the will of Henry C. Roper. All of the then interested parties were before the court and joined in the request, which the court granted. The court had jurisdiction of all the parties and the subject matter. Its decree was not only binding upon the parties but upon all who claim through or under them.

Two days after the decree was entered, that is, on January 23, 1911, the Love brothers voluntarily and intentionally executed the deed, in which specific reference was made to the terms and conditions of the decree of January 21, 1911, whereby they conveyed the lot to Preston L. Roper as Trustee and expressly stated in the deed that the “said property”, that is, lot No. 115 North Sycamore Street, “is to be held by said Preston L. Roper, Trustee, according to the hereinbefore mentioned terms and provisions of the will of Henry C. Roper, deceased.” After the execution and delivery of this deed the Love brothers received the $9500.00. Their subsequent dealings with the lot were consistent with the fact that they had voluntarily substituted it for the legacies and for it to be held under the same terms, conditions and limitations stated in the pertinent clause of Henry C. Roper’s will.

This is not a contest between a seller and a purchaser for value. It is a contest between donees. It is not necessary to invoke the doctrine of equitable conversion. The facts show an actual, completed transaction, as complete a transmutation of personalty into realty as could possibly be conceived, a transmutation to which all the interested parties agreed. See Ex Parte Lowrance, 130 S. E. 343, 133 S. C. 103; 18 CJS Conversion § 8, p. 48.

It affirmatively appears from the pleadings that appellants have no interest in the lot.

The decree is

Affirmed.

Eggleston and Buchanan, JJ., dissenting.