 | Board of Visitors minutes April 19, 1917 |  |
VIRGINIA RULE.
Cited as bearing on the subject but not directly in point:-
-Turner v. Citizen's Bank, 111 Va. 184, not in point.
-Waggoner v. Waggoner, 111 Va. 325, not in point.
-Kinnaird v. Williams, 35 Va. 400, not directly in
point. See on general subject, Coway v. Epes, 2 Pat. & H. 520
In the opinion of Judge Brokenbrough, and Judge Cabell, in
Michells v. Johnson, 33 Va. 470 and 474, it would seem that our
Court in that case inclined to the view that the property renounced
by the widow should be applied toward the indemnification
of the residuary legatees.
The latest case on the subject in Virginia, more or less
directly in point, is that of McReynolds, v. Counts, 50 Va.
242, decided at Lewisburg at July Term, 1852. The facts were
as follows: - M., by his will, devises his real estate to his
wife for her life and at her death to his son, J.; and he gave
his personal estate after payment of his debts equally among
his eight children. His real estate consisted of a farm on
which he lived. His wodow renounced the provision made for her
by the will; and dower not having been assigned to her, she lived
for some years on the farm which she permitted her son, J., to
cultivate and take the profits of, in consideration of his supporting
her. Upon a bill filed by the other children to havedower
assigned to the widow, and for a division and distribution of
the estate, claiming an account of the rents from the widow and
J., it was HELD:
1st, The widow was entitled to occupy and cultivate
the farm without rent until dower was assigned to her; and
she might allow another to do it for her.
2nd. The two-thirds of the land remaining after the
assignment of the widow's dower should be applied to indemnify
the legatees of the personal estate for the loss
they sustained by the widow's renunciation of the provision
made for her by the will, and claim of her third of the
personal estate; and for this purpose the said two-thirds
of the land should be rented out and the proceeds applied
to the satisfaction of the legatees.
3rd. After the legatees had been satisfied for the
loss of so much of their legacies as was taken by the
widow, or after the death of the widow, whichever event
shall first occur, the said two-thirds of the land is to
be delivered to J., as devisee in remainder under the will.
The criterion by which to judge whether a case falles
within one or the other of these two lines of decision seems
to me to be as follows:-
First. If, by the will a life estate is given the
widow with remainder over to one or to a class of persons
whose estates in such remainder are of the same dignity, then
upon renunciation of the will by the widow these estates will
be accelerated and take effect in possession immediately
upon the renunciation just as they would have done under the
provisions of the will upon the death of the widow. And if
there is a loss to such remaindermen occasioned by the
renunciation it will then be partially compensated for by
reason of such earlier possession of the estate; at all events,
nothing will be gained by postponing possession in said
remaindermen.
Second. If by the will a life estate is given the widow
with remainder over to one or several of the same class of
persons, and with a residuary clause whereby still other persons
are granted estates, then upon renunciation of the will by
the widow and a resulting increase in the property received
by her, the estates in remainder will not be allowed to take
effect in possession as of the date of renunciation by
acceleration, but will be held and the rents, issues and profits
applied toward the building up of the residuum until such
residuum is compensated for the depletion suffered by it upon
the renunciation. The rationale of this rule rests upon the
theory that to accelerate the remainders would result in
defeating the intention of the testator as to the amount which
the residuary legatees should take. If the payment of definite
legacies (taking effect in possession of remainders) is deferred
will get precisely the same time intended by the testator,
and so they cannot complain.
Third. It would seem, therefore, that the question
as to whether or not the residuary legatees have an equity
which will require the life estate to be sequestered for their
benefit as against specific legatees, depends upon the facts
of the particular case.
In answer, therefore, to section (a) of Question 1
above, I should say that in this case the amount of the
$50,000 legacy should not be reduced pro tanto to make up
the widow's share, but the whole amount should be paid to
the Rector and Visitors.
Answering section (b) of said Question 1, my opinion
is that said $50,000 should be held by the Executors pending
the death or marriage of the widow, and the income therefrom
paid to Dr. Parrish until the amount so paid him shall be
equal to the amount of loss occasioned him as residuary
legatee by reason of the widow's renunciation; and when full
restitution is made the whole amount should be paid to the
University. If the widow should die or remarry before full
compensation is made to Dr. Parrish, he will have to stand
the loss, for upon the happeneing of either of these events
said remainder will take effect in possession and come into
the same class with the legacy to Conny Brown and the bequest
to the Trustees of Emanuel Church, both of which are hereafter
referred to.
| Board of Visitors minutes April 19, 1917 | |