Opinion
45614 Record No. 850197 Record No. 850547
March 4, 1988
Present: Poff, Compton, Stephenson, Russell, Thomas, and Whiting, JJ.
Demurrers in suits challenging title to real property were properly sustained by the trial court where the deeds of conveyance were valid.
Property — Real — leads — Contingent Grants — Life Estates — Remainders — Construction
The original owner made a conveyance of real property to his daughter which granted the land to her during her life and, at her death to her children, if any, and if she should die without issue, then to the next of kin on her father's side. The daughter had an only child who, before she predeceased her mother, joined with her husband and her mother in conveying the land to buyers. She also had an only granddaughter whose widower now challenges the validity of the deeds by which the land was conveyed, contending that his deceased wife took the fee simple in the property at the death of her grandmother, the life tenant. He argues that his wife was an original taker under the deed either as surviving child, as issue, or as next of kin. The trial court sustained demurrers to both ejectment suits by the plaintiff, who appeals.
1. In Virginia, unless a contrary intent clearly appears from the instrument, the law favors early vesting of estates and under this rule the gift to the daughter during her natural life and at her death to her children created a life estate for her and a vested remainder in her children as soon as they came into being.
2. Since the life estate holder died survived by her granddaughter, the event which would have defeated the gift to her children did not come to pass, and the grant was not defeated.
3. There was nothing in the deed to suggest that the grantor used the word "children" to include grandchildren, and there is no need to strain the meaning to the word children to make it mean "grandchildren".
4. There was no grant to issue here and the deed is to be taken as written, not expanded by implication.
5. The granddaughter did not take as next of kin, because the next of kin could only have taken if the life estate holder had died without issue and the fact that she was survived by a granddaughter clearly means that the life estate holder did not die without issue.
6. Code Sec. 55-13 focuses upon contingent limitations to estates and the grant of a remainder to the life estate holder's children was not a contingent limitation on the estate, but rather the creation of an estate. The contingent limitation on the remainder in fee failed when the life estate holder died survived by issue.
7. After the deeds of conveyance had been made by the holder of the life estate and her only daughter, only two later events could have made those deeds invalid, either the life estate holder's having another child, or dying without issue. Since neither of these events took place, the deeds of conveyance are valid.
Appeals from judgments of the Circuit Court of Tazewell County. Hon. Nicholas E. Persin, judge presiding.
Affirmed.
T. C. Bowen, Jr. (Bowen Bowen, P.C., on brief), for appellant. (Record No. 850197)
James R. Henderson (Deanis L. Simmons; Mullins and Henderson, P.C.; Dudley, Galumbeck Simmons, on brief), for appellees Bill Simmons and Linda Simmons. (Record No. 850197)
No briefs or arguments for Sequoyah Petroleum Corporation, Dome 1980 Institutional Investors Ltd., TCPL Resources U.S.A. Ltd. and Dome Petroleum Corp. (Record No. 850197)
T. C. Bowen, Jr. (Bowen Bowen, P.C., on briefs), for appellant. (Record No. 850547)
Lewis B. McNeace, Jr. for appellee. (Record No. 850547)
These appeals concern a dispute over the construction of a deed. On May 18, 1908, P. J. Brown made a conveyance to his daughter which read in pertinent part as follows:
to Norcia B. Wysor during her natural life, and at her death to her children, if any, and if the said Norcia B. Wysor shall die without issue, then to the next of kin on her fathers side . . . .
Norcia gave birth to a daughter, Laura, Norcia's only child. Laura gave birth to a daughter, Lynn. Laura died in 1973, predeceasing her mother Norcia. Norcia died in 1979 survived by her granddaughter Lynn.
In 1956, Norcia, Laura, and Laura's husband, J. G. Repass, joined in a deed to Lucian and Gertrude Smith of a portion of the land acquired from P. J. Brown. In 1983, the Smiths conveyed the property to Bill Simmons and Linda Simmons, his wife. In March 1983, Laura's daughter and Norcia's granddaughter, Lynn, died testate leaving all her estate to her husband, J. Robert Mullins. In August 1984, Mullins filed an ejectment suit claiming that he owned the land which Norcia and Laura had conveyed to the Smiths in 1956. The defendants filed a demurrer which was sustained by the trial court.
In 1960, Norcia, Laura, and Laura's husband joined in a deed to the Town of Richlands of another portion of the land acquired from P. J. Brown. In March 1985, Mullins filed an ejectment suit against the town claiming that he owned the land which was the subject of the 1960 conveyance. The town filed a demurrer which was sustained by the trial court.
The issues are precisely the same in both suits, and the cases have been consolidated on appeal. Mullins argues that both parcels of land belong to him in fee simple absolute because his deceased wife, Lynn, took the property in fee simple at the death of her grandmother, Norcia, the life tenant. Mullins contends that Lynn was an original taker under the deed either as surviving child, as issue, or as next of kin. Mullins argues that the remainder to Norcia's children did not vest at the birth of Laura, but vested only at Norcia's death. Thus, according to Mullins, when Norcia and Laura made the 1956 and 1960 deeds, Laura had no interest to convey and thus nothing was conveyed but a life estate, which terminated with Norcia's death. We disagree.
In Virginia, unless a contrary intent clearly appears from the instrument under consideration, the law favors early vesting of estates. Disney v. Wilson, 190 Va. 445, 454, 57 S.E.2d 144, 149 (1950). Thus, the gift to Norcia during her natural life and at her death to her children created a life estate in Norcia and a vested remainder in her children as soon as they came into being. When Laura was born, the remainder became vested subject to open.
The next inquiry is whether the gift to Norcia for life "and at her death to to her children," would have been totally defeated by Norcia's dying without issue. But Norcia's granddaughter Lynn survived Norcia. Therefore, Norcia died with issue and the event which might have defeated the gift to Norcia's children did not come to pass.
Mullins argues that his wife was an original taker under the 1908 deed in any one of three capacities. He is mistaken on each account. First, he says that Lynn took as Norcia's child. The deed referred to Norcia's "children." By the common meaning of that word it included Laura but not Lynn, who was Norcia's grandchild. There was nothing in the deed to suggest that the grantor used the word "children" to include grandchildren. Indeed, the language of the deed suggests the contrary because it mentions both "children" and "issue." The word "issue" includes grandchildren, therefore, there is no need to strain the meaning of the word "children" in order to make it include grandchildren.
Second, Mullins argues that Lynn took as issue" under the deed. In making this argument, Mullins submits that because the deed provided for a gift over "to the next of kin on [Norcia's] father's side" in the event Norcia died "without issue," it must be inferred that if Norcia died with issue, her issue would take under the deed. Mullins is incorrect for two reasons: There is no grant to issue" and the deed is to be taken as written, not expanded by implication.
Third, Mullins argues that Lynn took as "next of kin." This argument runs counter to the deed's plain language. Next of kin could only take if Norcia died without issue. The very fact that Lynn survived her grandmother means that no one could take as next of kin because that gift over failed.
Mullins argues further that, under Code Sec. 55-13, the remainder to Norcia's children could not vest until Norcia's death; that at her death Norcia had no living children; and that, therefore, the 1956 and 1960 deeds conveyed no interest other than a life estate. Mullins misreads the statute. It focuses upon contingent limitations to estates. See Thomas v. Thomas, 224 Va. 4, 294 S.E.2d 795 (1982). The grant of a remainder to Norcia's children was not a contingent limitation of an estate, it was the creation of an estate. The contingent limitation of the estate was set forth in the language "if the said Norcia . . . shall die without issue." It is the effect of this language, according to the statute, which must be determined at Norcia's death. But at her death she was survived by her granddaughter Lynn and thus, as explained above, the contingent limitation of the remainder in fee to Laura failed.
Code Sec. 55-13 reads in pertinent part as follows: Certain limitations construed. — Every limitation in any deed or will contingent upon the dying of any person without heirs, . . . shall be construed a limitation to take effect when such person shall die not having such heir . . .living at the time of his death, or horn to him within ten months thereafter . . . .
When Norcia and Laura made the 1956 and 1960 deeds, only two subsequent events could have made those deeds invalid: (1) Norcia's having other children or (2) Norcia's dying without issue. Neither event occurred. The deeds are valid. The demurrers were properly sustained. Therefore, we will affirm the judgments of the trial court.
Record No. 850197 — Affirmed. Record No. 850547 — Affirmed.