(97 Va. 356)

LOCKHART et al. v. VANDYKE. (Supreme Court of Appeals of Virginia. July 6, 1899.)

DEVISE-JOINT DEVISEES — LAPSE SETTING ASIDE PARTITION-RIGHTS OF PURCHASERS.

1. A devise "unto my two sons, to wit, Charles and Henry, of all the lands I now reside on," makes them joint tenants.

2. The abolition of the doctrine of survivorship does not affect the common-law rule that where a devise is to several jointly, and one of them dies in the testator's lifetime, his share does not lapse, but the others are entitled to the entire property.

3. Persons purchasing of co-parceners the shares allotted to them in partition take such shares with full notice of the proceedings in the partition suit, and cannot object to a decree setting aside the conveyance made in a suit brought by an infant heir.

Appeal from circuit court, Tazewell county. Suit by Henry P. Vandyke, by next friend, against one Lockhart and others, to set aside a decree in partition. From a decree in favor of plaintiff, defendants appeal. Affirmed.

Geo. W. St. Clair, Henry & Graham, Peery & Higginbotham, and S. W. Williams, for appellants. J. H. Fulton and Chapman & Gillespie, for appellee.

KEITH, P. The matters presented for consideration in this record are as follows: Henry P. Vandyke, an infant 16 years of age, suing by his next friend, filed his bill in the circuit court of Tazewell county, in which he avers: That Rees Vandyke died after having made his will, the third clause of which is as follows: "I give and bequeath unto my two sons, to wit, Charles and Henry P. Vandyke, all of the land I now reside on." Upon the death of the testator, his will was duly probated. That Charles, one of the devisees, died in the lifetime of the testator, and thereupon Lockhart and Jennie, his wife, and Rebecca Vandyke, filed their bill in the circuit court of Tazewell county, in which they claimed the devise to him lapsed, and a moiety of the lands devised was subject to partition among all the heirs at law of Rees Vandyke, and asked for a partition of them. The court construed the will in accordance with the claims of the plaintiffs, and held that the legacy to Charles Vandyke lapsed, and decreed a partition of the real estate, which was accordingly made. Lockhart and wife conveyed the share assigned to them to James M. McGuire, since deceased. Rebec ca, who has since intermarried with R. L. Yost, conveyed her portion to the Ratliffs, and Rees T. Vandyke conveyed his share to one Greever in trust to secure a certain debt.

The bill further avers that the devise being to Charles and plaintiff jointly, and Charles having died in the lifetime of the testator, the devise to him did not lapse, but that the whole of it vested in the plaintiff, and now belongs to him, and that the decrees in said sult for partition are erroneous; that the plaintiff is entitled to have

the will construed; that the decrees in the former suit are not binding upon him, but should be set aside and vacated; that the deeds made by partitioners are clouds upon his title, which he prays may be removed, and an acccount directed of the rents, issues, and profits of the land, the possession of which has been withheld from him. The other heirs at law of the testator were made parties defendant. The circuit court, decreeing in favor of the plaintiff, held that, by a true construction of the will, the share of Charles Vandyke did not lapse, but upon the death of the testator passed to and vested in Henry P. Vandyke, annulled the several conveyances before mentioned, and directed certain inquiries, which need not be specifically mentioned. The case is before us upon an appeal from that decree.

We are of opinion that Charles and Henry P. Vandyke would have been joint tenants of the lands devised to them, had they survived the testator.

In 2 Minor, Inst., at page 467, it is said: "A joint tenancy arises by act of the parties, and never by act of law. It may be created by devise, or by any conveyance inter vivos, by words which give an estate to a plurality of persons, without adding any restrictive, exclusive, or explanatory words. Thus, if an estate be granted to A. and B., and their heirs, this makes them joint tenants in fee of the lands; for the law interprets the grants so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. For

merly joint tenancy was much favored, but for more than a century past the courts have laid hold of every available expression to construe estates given to a plurality of tenants as tenancies in common. And although this innovation began in equity, and in reference to wills, yet it has long prevailed in the courts of common law as well, and the doctrine extends to deeds as uniformly as to wills. Hence, such expressions as 'equally to be divided,' 'share and share alike,' 'respectively between and amongst them,' will, according to this modern construction, convert into a tenancy in common what would once have been a joint tenancy." See, also, Morley v. Bird, 3 Ves. 628, and Whitmore v. Trelawny, 6 Ves. 129.

In the clause under consideration there are no words of severance, nor any "restrictive, exclusive, or explanatory words," such as, if employed, would have served to create a tenancy in common under the rules of modern construction.

In 2 Minor, Inst., at page 1049, it is said: "The general doctrine at common law is that a devise lapses in all cases where the devisee dies before the testator. And if the devise be to several, as tenants in common, and one of them dies in the testator's lifetime, his share lapses. Where, however, the devise is to several jointly, and one of them dies in the testator's lifetime, his share does not

lapse, but survives; for, although such joint devisees are not joint tenants until the testator's death, yet the gift to them is a gift per my et per tout, and so, if one should die, whereby, as he has nothing separately, his interest ceases to exist, the other or others are entitled to the whole, as at first, but with no one to share it with them. And, as the parties have not become joint tenants, the statute abolishing survivorship does not apply."

The law touching the lapse of devises is to be found in section 2523 of the Code, and is as follows: "If a devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will." But, as is justly observed by Mr. Minor, this statute is not applicable where independently of it no lapse could occur, and therefore cannot be invoked in a case such as this; "for, by the force and effect of the joint taking, the share of the party deceased would survive to the survivor or survivors." 2 Minor, Inst., supra. See, also, Pendleton v. Hoomes, Wythe, 94, where the law of the subject under consideration is discussed, with a great wealth of learning, by Mr. William Green, in an appendix to the volume just cited, which is quoted in terms of high and deserved approbation in Freem. CoTen. §§ 28, 40. He reaches the conclusion arrived at by Mr. Minor, and shows that the common-law doctrine is still the law, notwithstanding our statute which abolishes the survivorship among joint tenants. With respect to that statute, he observes that, while it does away with the right of survivorship, it does not destroy joint tenancy. To use his own language: "It does not annihilate the legal entity called a 'joint estate,' so as to prevent any such estate from vesting, nor does it destroy the joint estate forthwith after it has vested. On the contrary, it permits the estate to subsist as joint, with all its former incidents, during the joint lives of all its owners; and if, in that time, partition be made, or a severance effected without partition, it is quiescent as a dead letter. It begins to operate at all only when one of the joint tenants has died before partition or severance. And on the happening of that event, and from thenceforth, it directs that the part of the deceased shall be considered as if he had been a tenant in common, not from the beginning, but only when the event to which it refers happened. Where it applies, and to the extent of its application, it operates, in articulo mortis, a statutory severance, and that is all. It does not extirpate the quality of a joint estate, which made it produce, among other fruits, the jus accrescendi, but only destroys in the moment of production, or blights by anticipation in the bloom, that particular fruit. In this manner it modifies the nature of a joint tenancy by the common law, so far as to take away one

of the incidents which the law has annexed to it, but leaves it in all other respects as it was. In short, since the statute, joint tenants seem to have an estate that is to all purposes joint, both in its inception and also in its continuance, until a destruction or severance thereof takes place, which latter, where an interest has become vested, is effectuated by the stat ute at the moment any of them dies, to the extent of his part; and henceforth that part is to be regarded as it would have been (though the statute had never been enacted) if the joint estate had been to the same extent dissevered by any of the means which theretofore existed. And, if this be the sum of its efficacy, the consequence seems to be that in regard to the lapsing of devises and legacies, and also in regard to the vesting of estates created or transferred by conveyances inter vivos, it has been productive of no change whatever."

He shows that in a case like that under discussion the doctrine of survivorship has no place, as it applies only where the estate in joint tenancy has been created and has vested; and therefore the abolition of the doctrine of survivorship does not affect the common-law rule with respect to the death of one or more devisees during the lifetime of the testator, for it is still true, notwithstanding the statute, "that each joint tenant takes conjointly with the rest the entire estate, separately noth ing," from which it follows that "if one should die, whereby, as he has nothing separately, his interest ceases to exist, the other or others are entitled to the whole as at first, but with no one to share it with them." 2 Minor, Inst. p. 1049.

This subject was considered by the supreme court of West Virginia in the case of Hoke v. Hoke, 12 W. Va. 427, and a decision rendered in accordance with the views of the text writers above quoted. See, also, 2 Redf. Wills, p. 169; 3 Lomax, Dig. p. 185; 2 Williams, Ex'rs (with Perkins' notes) p. 1311; 2 Jarm. Wills, p. 265.

The authorities cited seem to be conclusive of the correctness of the decree appealed from upon the points thus far considered.

This suit was brought by the infant, through his next friend, before he had attained the age of 21 years, in order to set aside a decree adverse to him which had been rendered in a proceeding, which he sets out in his bill; and it is claimed by appellants that it was prematurely instituted, and that the plaintiff should have waited until he had attained the age of 21 years. This question has been considered and disposed of by this court in Harrison v. Wallton's Ex'rs, 95 Va. 793, 30 S. E. 372.

Further objection is made to the decree complained of, because it sets aside conveyances made to the alienees of certain defendants. Those alienees took only such title as was in their grantors. They took with full notice of the proceedings in the original partition suit. They were purchasers, not from the court in a judicial proceeding, but purchased from the

co-parceners the shares which had been allotted to them, and the titles which they acquired were subordinate to the rights of the infant under the will of Rees Vandyke.

Upon the whole case, we are of opinion that there was no error in the decree complained of, and it must be affirmed,

RIELY, J., absent.

(97 Va. 337)

TOWN OF GATE CITY v. RICHMOND. (Supreme Court of Appeals of Virginia. July 6, 1899.)

OWNER OF EQUITY OF REDEMPTION-DEDICATION-INTENTION-ACKNOWLEDGMENT

-DEPUTY COUNTY CLERK.

1. Where the owner of land conveys it in trust to secure a debt, and subsequently conveys the same land to a third person, the last grantee holds only the equity of redemption, and has no power to make a valid dedication of the land to public use.

2. Under Code 1873, c. 159, § 8, providing that county clerks may appoint deputies, who may discharge any duties of the clerk, a deputy clerk has authority to take acknowledgments of deeds.

3. A purchaser of land, part of which is used as a street, having failed to close the street for several years, will not be held to intend a dedication of the street, where he has announced his right to the land, declared his intention to close the street, and has prevented any further work being done on it.

Appeal from circuit court, Scott county. Bill for an injunction by the town of Gate City against J. B. Richmond. The injunction was granted by the corporation court of Bristol. From an order of the circuit court dissolving the injunction, plaintiff appeals. Affirmed.

J. J. A. Powell and T. R. Jackson, for appellant. H. S. K. Morison, for appellee.

HARRISON, J. This case involves the right of the appellee, J. B. Richmond, to close a street which the appellant claims has been dedicated and accepted by it for the public use.

It appears that J. R. Beverly was the owner of two lots of land situated in the town of Estellville, Scott county (now known as "Gate City"), and that he conveyed the same on the 4th day of February, 1887, to E. A. Hoge, trustee, to secure certain debts mentioned in said trust deed. On the 6th day of June, 1887, J. R. Beverly sold and conveyed these same lots to William D. Jones. The rights acquired by Jones under this deed were necessarily subordinate to the prior right of the creditors secured under the deed to Hoge, trustee. It further appears that, in pursuance of the trust deed to E. A. Hoge, the lots were advertised to be sold June 1, 1893, to satisfy the debts thereby secured, and were bought by the appellee, J. B. Richmond, and conveyed to him by the trustee by deed dated April 12, 1893.

The bill filed by appellant prays for an

injunction to restrain appellee from obstructing or closing the street in question. The injunction was granted by the judge of the corporation court of the city of Bristol, and subsequently dissolved, and the bill dismissed, by the circuit court of Scott county, from which last-mentioned decree this appeal was allowed.

It appears that, shortly after the purchase of the lots by William D. Jones, he consented to the street in question being opened. This was accomplished by merely setting back the line fence 40 feet, at a cost of 35 cents. The evidence is chiefly, if not entirely, directed to acts done by the appellant, indicating an acceptance of the street for public purposes, prior to the sale under the Hoge deed of trust. If such evidence could be regarded in determining the rights of the parties to this controversy, that offered is very unsatisfactory, and shows little or nothing done by appellant to establish its claim to having accepted the street as a public thoroughfare. We are, however, of opinion that William D. Jones had no power to dedicate this ground as a street. It was covered by a deed of trust securing rights prior to and higher than his. He was only entitled to the equity of redemption, and could not give away a part of the property, any more than he could the whole, to the prejudice of the deed of trust, in subordination to which he held.

It is contended that Jones has title paramount and superior to Hoge, trustee, under whom appellee claims, because the deed of trust purports to have been recorded upon an acknowledgment thereof before the deputy clerk of the county court of Scott county; it being insisted that deputy clerks were not authorized to take such acknowledgments until the passage of the act of February 10, 1890 (Acts 1889-90, p. 44), and that, therefore, the deed of trust was not properly admitted to record, and was not constructive notice to Jones, the purchaser from Beverly. The Code of 1873, which contains the law applicable at the time this deed of trust was acknowledged, provides (section 8, c. 159, p. 1068) that "the clerk of any county, corporation, or circuit court, may with the consent of the court, or of the judge in vacation (the said consent in vacation being given in writing) appoint a deputy, who, during the continuance in office of said principal, may discharge any of the duties of said clerk, unless otherwise provided by law." One of the duties the clerk is authorized by law to discharge is taking the acknowledgment to deeds, and, it being nowhere provided by law that his deputy shall not perform that duty, it follows that he can perform it, by the express terms of the section quoted.

It is further contended that the street was open at the time of the purchase by appellee, and that he acquiesced therein, and made no attempt to close it for several years thereafter.

In the case of Harris v. Com., 20 Grat. 833, Judge Staples, after defining a "dedication" to be "the act of devoting or giving property for some proper object, and in such manner as to conclude the owner," says: "To constitute a dedication, there must be an intention to appropriate the land for the use and benefit of the public. The intention, the animus dedicandi, is the vital principle of the doctrine of dedication. The acts and declarations of the landowner indicating such intention must be unmistakable in their purpose, and decisive in their character, to have that effect." A number of authorities are cited by the learned judge in support of this statement of the law.

In the case at bar the evidence shows an absence of intention on the part of appellee to acquiesce in the opening of the street in question, or to dedicate the land covered thereby. It appears that soon after his purchase he announced his right to the land, and his purpose to reinclose it, and more than once afterwards repeated this declaration. It appears from the evidence of the mayor of the town that he went upon the ground with the appellee as late as April, 1897, to confer with him, and to try and make some arrangement to have a part or all of the street left open, and that he in no way questioned the right of appellee to close the street. This witness further testifies that, when some work was attempted on the street in the winter or early spring of 1897, the appellee objected, and the work was not done. The acts and declarations of appellee, instead of showing an "unmistakable and decisive purpose" to dedicate the street, establish a determined purpose not to do so.

For these reasons the decree appealed from must be affirmed.

(97 Va. 316)

ARMISTEAD'S EX'RS v. HARTT et al. (Supreme Court of Appeals of Virginia. July 6, 1899.)

WILLS SURVIVORSHIP-TRUSTS-TERMINA

TION.

1. A provision in a will that, in the event of the death of one or more of the devisees, his, her, or their share is given to those surviving, has reference to devisees who die before testator; hence devisees living at the death of testator take their shares freed from conditions.

2. Where beneficiaries are sui juris as to the trust property, and there is no attempt by testatrix to fetter or restrain its alienation, the desire of the beneficiaries to have the trust terminated will prevail over an obscure provision of the will which might indicate a wish to have the estate held in trust and managed for the beneficiaries.

3. The mere objection of executors, who are trustees, to the termination of the trust, will not avail where no good purpose will be served by its continuance.

Appeal from hustings court of Portsmouth. Suit between Armistead's executors and Hartt and others. Decree terminating trust, and appeal therefrom. Affirmed.

G. Hatton and C. W. Cole, for appellants. R. C. Marshall and Walke & Old, for appellees.

RIELY, J. Provision 1 of item 1 of the will of the testatrix is as follows:

"I give and bequeath all my real estate to my four children, share and share alike, and in the event of the death of one or more of my children, his, her, or their share of my real estate shall go to those of my children living, and all taxes, insurance, and repairs are to be paid on all property out of my estate, reserving enough to run the farm during the coming year; then the remainder to be equally divided between my four children."

Provision 7 of item 1 is as follows:

"If my son, Collins, should marry, and die, with issue, his share of my estate shall go to his widow and children, share and share alike, but, if he should die without issue, then his portion of the income shall go to his widow, but, should she marry again, the same shall revert to my remaining children or their issue."

The testatrix left four children, the son, J. Collins Armistead, and three daughters. By deed of the 1st day of July, 1897, the four children executed mutual conveyances of whatever interest each might have had in the share of the other (in the real estate given by the will) by virtue of the right of survivorship created by provision 1, above quoted.

The question that arises upon the language of these two provisions of the will, taken together, is the proper construction of the right of survivorship created by provision 1, as affecting the right of the devisee, J. Collins Armistead, to enter into the deed of July 1, 1897, and thus defeat possible rights of those contingently interested in his share of the estate under provision 7. By that provision his share of the estate is given over upon certain contingencies. If by "his share of the estate" reference is had to whatever he acquires by right of survivorship, as well as his original one-fourth share, then he cannot enter into the deed of July 1, 1897, to the prejudice of those contingently interested.

It is unnecessary to consider the question of the survivorship of accrued shares under gifts similar to that created by provision 1 of item 1 further than to say that the law seems well established that only original, and not accrued, shares survive, in the absence of a positive and distinct indication of intent in the will that the latter shall survive. 2 Jarm. Wills (Bigelow's Ed.) c. 48; 3 Jarm. Wills (Randolph's Ed.) 560. See, also, Brooke v. Croxton, 2 Grat. 509; 3 Minor, Inst. pt. 1, p. 591; 29 Am. & Eng. Enc. Law, 500.

The necessity for the consideration of the foregoing question is, however, precluded by a further question. "In the event of the death of one or more" of the devisees, his, her, or their share is given to those surviving. The words "in the event of" import a

contingency, and must refer to death before some period or event contemplated by the testatrix, but not expressed; for otherwise they would be useless and meaningless, as there is no contingency about death, nothing being more certain to happen. There is no express designation in the will, nor is there anything in its language, to indicate the period or event to which these words refer; and, since they must be given some effect, they must be construed as having reference to that period or event which, under the circumstances, is the most natural. This clearly is the death of the testatrix, and if, therefore, all of the children survive this event, the right of survivorship, which is to take effect only upon the death of one or more of the children before that of the testatrix, ceases, and each takes his or her share of the real estate freed from any such right. This has been the uniform rule of construction of language like that under consideration, where there was no indication of an intention to refer to any other event or period. 2 Jarm. Wills (Bigelow's Ed.) c. 48; 3 Jarm. Wills (Randolph's Ed.) c. 48; Briggs v. Shaw, 9 Allen, 516; Crossman v. Field, 119 Mass. 170; Britton v. Thornton, 112 U. S. 526, 533, 5 Sup. Ct. 291; Sealy v. Laurens, 1 Desaus. Eq. 137; Whitney v. Whitney, 45 N. H. 311; Howard v. Howard, 21 Beav. 550; Dorsey v. Dorsey, 9 Md. 31; 29 Am. & Eng. Enc. Law, 502, 503. See, also, Sims v. Conger, 39 Miss. 231, and Beatty's Adm'r v. Montgomery's Ex'x, 21 N. J. Eq. 324.

The children of the testatrix having all survived her, the contingency upon which the right of survivorship was to arise cannot take effect. This right is no longer existent, and each child takes his or her onefourth share of the real estate free from any such right; the three daughters in fee absolutely, and J. Collins Armistead subject to the conditions of provision 7 of item 1. This conclusion renders the deed of July 1, 1897, valid, and disposes of the first question raised by this appeal.

The next and only remaining assignment of error is to the decree of March 18, 1898, adjudicating that upon a sale and division of the estate, both real and personal, given under the will, each of the beneficiaries, with the exception of J. Collins Armistead, is entitled to receive her share of the estate free from any trust under the will. As to the beneficiary J. Collins Armistead, it is admitted that, owing to the contingent interest of his wife and children in his share of the estate, the trust has to continue, so that in the further consideration of this assignment of error it is understood that no reference is had to him.

While there is some indication in the will, particularly in the language of provision 2 of item 1, that the testatrix intended that her executors should hold her estate in trust, and manage it for the benefit of her children, yet this is not clear, and there are no peculiar

reasons which require that it be so held in trust and managed, such as the disability of the immediate beneficiaries, or the necessity of preserving the estate for others remotely or contingently interested. The beneficiaries are all sui juris, so far as this property is concerned, and under the construction placed upon the will each owns the entire beneficial interest in her share of the estate. There

is no attempt by the testatrix to fetter or restrain the alienation of the property given by her, nor are there any subsequent limitations thereof; and, in the face of a desire on the part of beneficiaries so situated to have the trust terminated, no sufficient reason for refusing to comply with that desire is presented, in the absence of a plain intention of the testatrix that it should be continued. Nor does the mere objection of the executors, who are the trustees in this case, to the relinquishment of their trust, avail to alter this conclusion, when it appears that no good purpose will be served or benefit derived for those most interested in the trust estate by the continuance of the trust.

The general rule on this subject is thus stated in 27 Am. & Eng. Enc. Law, 322: "The united consent of all the parties in interest will, in most cases, justify a decree terminating the trust. It is necessary, however, that the purposes of the trust be held sacred, that the beneficiaries so consenting be all sui juris, and that no interest, however remote, be left out of consideration."

"Although a trust may not have ceased by expiration of time, and although all its purposes may not have been accomplished, yet if all the parties who are or may be interested in the trust property are in existence, and sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of a trust and the distribution of the trust fund among those entitled." 2 Perry, Trusts, § 920.

In Massachusetts the law is similarly stated: "There is no doubt of the power and duty of the court to decree the termination of a trust where all its objects and purposes have been accomplished, where the interests under it have all vested, and where all parties beneficially interested desire its termination. Where property is given to certain persons for their benefit, and in such a manner that no other person has or can have any interest in it, they are, in effect, the absolute owners of it, and it is reasonable and just that they should have the control and disposition of it, unless some good cause appears to the contrary." Sears v. Choate, 146 Mass. 395, 398, 15 N. E. 786. To the same effect are Smith v. Harrington, 4 Allen, 566, Bowditch v. Andrew, 8 Allen, 339, and Inches v. Hill, 106 Mass. 575.

The foregoing citations show that the current of modern authority is in accord with the view here taken. We are aware that the case of Bass v. Scott, 2 Leigh, 356, seems to hold a contrary doctrine, but it is not in