Robinett v. Taylor , 121 Va. 583 ( 1917 )

Burks, J.,

(after making the foregoing statement) delivered the opinion of the court.

The decision of the controversy between the parties to this litigation depends largely upon the proper construction of the fourth clause of the testator’s will, which is set forth in the statement of facts. The presumption is against partial intestacy (Prison Association v. Russell, 103 Va. 563, 49 S. E. 966; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650), and we are of opinion that the testator did not die intestate as to the “Creek Farm.” By the fourth clause of the will, the testator directed that the “Creek Farm,” which he describes as “the place I now live on,” be rented and the proceeds applied to the support of his wife and two unmarried daughters. After the death of his wife, he directs that the land be sold to his two sons, H. C. and J. B. Taylor, at the price of eighteen hundred dollars, but “if they can’t pay for it in two years the land is to be sold to the highest bidder * * * and the personal * * * that she may have at her death and after our Feunendl expenses and all other just debts be paid I desire that all the debts that is coming to me now- due be collected and the property that may be sold, and all just claims paid that the remainder be equally divided among all the heirs except Mary, Henry C., Hiram & John B. Taylor, Mary to have two hundred dollars paid to her in a way that Samuel Webb her husband cannot waist or fool it away the other five girls, towit, Mandy, Marthe, Malinda M., Mahala & Victoria to have two hundred dollars each in the divide more that the boys all considered.” The privilege or option given to his two sons was a valuable one, and one they had the right to transfer and which they did transfer, and the same was acquired by the appellant, Ira P. Robinett.

The word “property” is one of the most comprehensive that could have been used in this connection and is certainly comprehensive enough to cover real estate as well as personal property. We are of opinion that the testator intended that his tangible personal property, choses in action and the proceeds of the “property that may be sold” should constitute a fund from which the funeral expenses of himself and wife, and his debts, were to be deducted, and the balance constituted “the remainder” which was to “be equally divided.” The blank left after the word “personal” was manifestly intended to be filled by the word “property.” He then mentions debts due him, and follows this with, “the property that may be sold.” He had already directed the sale of the land and it was the only property he had thus far in his will directed to be sold. It would seem, therefore, as he had specifically mentioned “personal property” and had directed the sale of the land, he meant that the fund which was to be “equally divided” should be constituted as above mentioned.

It remains to be seen how this fund was to be divided. The testator directs that “the remainder be equally divided among all the heirs except Mary, Henry C., Hiram and John D. Taylor.” As to Mary, he directs that she shall “have two hundred dollars paid to her in a way that Samuel Webb, her husband, cannot waste or fool it away.” Mary is not thereafter mentioned. If it was intended that she should share any further in the division of this “remainder,” it is rather remarkable that this too should not have been so secured that her husband could not “waste or fool it away.” The testator had by the same clause of his will given her a valuable tract of land, and we are of opinion that the two hundred dollars was the only additional provision intended to be made for her, and as this sum has already been paid to her, she no longer has any interest in the subject of controversy.

As to the shares of the sons, the testator provides that the five daughters named shall “have two hundred dollars each in the divide more than the boys all considered.” The appellant has acquired the shares of all the sons and daughters in this remainder except one share owned by the two sons of H. H. Taylor. The appellant testified that he also bought and paid for this share, but produces no deed therefor, and he is an incompetent witness to prove the purchase as H. H. Taylor is dead. He files, however, the note of himself and wife to H. H. Taylor for fifty dollars in which it is stated that the fifty dollars is the “balance of one hundred and fifty dollars for his entire interest in the B. B. Taylor Creek Farm. When this note is paid said Taylor is to make his deed to the land. ” This note it is true is not signed by H. H. Taylor, nor does it appear otherwise than by the testimony of the appellant that it was ever accepted by or paid to H. H. Taylor. But appellant should be given the opportunity of showing what, if any, payments were made by him on the purchase aforesaid, and be credited by such payments as may be established.

The appellant testifies, and such seems to be the fact, that at the time of the removal of the timber from the land he had purchased the interest of the heirs of B. B. Taylor in the land known as the “Creek Farm,” although he may not be able to prove the purchase of the share of H. H. Taylor. The appellant, as the assignee of the two sons, had the right to purchase the land at $1,800, at any time within two years after the death of his widow, but he had already purchased the interests of all the parties except the share of H. H. Taylor, and he in good faith believed he had purchased this, and there was no necessity for his making an election to purchase. If he was mistaken as to this share, it would be inequitable and unjust to enforce a forfeiture in favor of the holders of this share. As the appellant had the right to purchase the land at $1,800, and in good faith believed he had purchased the share of H. H. Taylor, and it does not appear that the heirs of the latter made any demand or asserted any claim to an interest in the land prior to the institution of this suit, it seems but fair and right that they should be restricted to their share of the $1,800. As Mary Webb is excluded, this share would be one-eighth of eighteen hundred dollars, or $225, subject to credit for any payments which may be shown to have been made thereon. The appellant having clearly elected to keep the land at $1,800, no account should be taken of waste done to or timber removed from the land.

It is assigned as cross-error that the trial court held that the appellant was the owner of the share of Amanda Robinett, as the only evidence of the title was the contract or title bond of Amanda Robinett which was not proved except by the testimony of the appellant, who was an incompetent witness because Amanda Robinett was dead. The answer of the appellant, which was prayed to be treated as a cross-bill as to the heirs of Amanda Robinett, sets up this title bond as a source of title and files the bond as a part of the answer. The execution and delivery of the title bond was never denied by the heirs, and no other evidence of its execution was necessary. Code, section 3279., Except as herein otherwise stated, the parties appear to have been paid the prices agreed upon for their respective interests in the remainder of the estate and the appellant to have acquired title thereto.

Section 2858 of the Code, relating to the acceptance of part performance of a contract in discharge of the contract, has been invoked by counsel for the appellees, on the ground that, as the sons did not take the land at $1,800, it will have to be sold and will bring $6,000; that the sales to the appellant were made on condition that the sons took the land at $1,800, and the condition not having been fulfilled, the land should be sold and all of the heirs be allowed to share in the proceeds and account to the appellant for what he had paid them, with interest. No such condition appears in the deeds or contracts, and we are unable to perceive any applicability of the section of the Code mentioned.

Upon the whole case, we are of opinion that the trial court erred in holding that the appellee, Mary Webb, had any interest in the subject of controversy in this case, and also in decreeing a sale of the “Creek Farm” and referring the case back to the commissioner to take an account of the quantity and value of the timber cut by the appellant. As to the share of the heirs of H. H. Taylor in the “Creek Farm,” further inquiry should be made to ascertain whether or not the appellant had become the purchaser thereof, and, if so, at what price and the balance, if any, due thereon, and, if not, they should be allowed to subject the “Creek Farm” to the payment of $225, with interest thereon from the 4th day of April, 1913, subject to credit for any payments which may be shown to have been made thereon. Upon payment of this sum, or if there was a sale of the interest of H. H. Taylor in the farm, then upon the payment of the balance, if any, of the purchase money, the circuit court should direct a deed to be made to the appellant of the “Creek Farm.”

Reversed.