AT WYTHEVILLE June Term, 1928

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IN·.THE
Supreme Court of Appeals
of Virginia· ·
AT WYTHEVILLE
June Term, 1928
'
IRF~"E
0. WILKERSON, and Others, Appellants',
vs.
GILBF;R'f vVILKEHSON. and Otliers, Appellees.
PETI'riON FOR
APPEAl~.
To the Honorable .Judges cf the Supreme Court of Appeals of
Virginia :
·
Your petitioners, hene <t. vVilkerson, J.Jissie A. Wilkerson
and M. C. 'Vilkerson, l'espe.;t.l'ully represent that they are aggrieved b,y a :ffnal decree of tJH• Circuit Court of Bedford County
dated September 2, 1927, ~ncl entered in vacation by the Clerk
of the sairl Court on the 3rd cl:ty of September, 1927, in a certa.in
proceeding in eq.uity wherein ;your petitioners were plaintiffs
·and ~he above-styled parties, whose namf.s are fuliy set forth in
tbe recorcl. were defendants.
A transcript of the rerord of said case .is filed herewith,
from which it appears that tlle Supreme Court of Appeals of Virginia has jurisdiction of thi~ cause.
2
TH~~ P"llOCEEDINGS.
The questions at isRue He raised.. by demurrers filed on be~
halt of tiw defendants. TJ1e appellants tiled their bill, in which
they s~t up; -their claim of 'title as eo-tenants wi:t:fi ·certain: other
parties under the will of Wi1liam 'Wilkerson. . The text of the
will appears in extenso in. the bill of complaint, the construc'ifon
thereof contended for is also· set forth therein, and appellants
(then complainants) pray t!1at ·such construction may be adopted by the court, that their rights may be established, and that
the lands ~n the bill and proceedings desrribed may be sold for
partition. The lands involved in the suit are a tract of 197
acres sitm1te in Bedford County; Virgi1.1ia, and a tract of 228
acre!! situute in Campbell f!otmty.
The dt>fendants :filed cPmurrers to tlw bill. The demurrers
were sustained by the Court and the bi.ll dismissed. From the
decree Of (·outt dismlssing the· bill thiA appeal is· asked.
The d•!cree of the learne:l Court belo"\\Y denies .all :of the eontentions set up in tiie bill a1.1d dismisses the bill for want of any
equity w:h11tsoewr. 'l'hrse contentions at·f':
(1) ;l'hat there should he an equal division as to stocks,
and not pet· capita, of the el'tate passing under the will, that is
to say, that the ori.g1.nnl divic;;hm of the estate per stirpes should
he into th1·ee parts, one paLt p~u1sing to ~fargaret M. 'Vilkerson
or her· repi'esentatives, one pm·t to Ulyss,~s D. Wilkrt·~oa or his
representatin's, and one part to "Tillimn C. \Vilkerson and Capa.def\ia.. 'YHker·'!lon, children· of Parson 1·'\,..ilkerson, H decease<l
~on .of.tlH'· tE-stator.
(~) That tJie estate vestf~t'l in the three :first takers, as
above set forth,. waR, by fiH' foHowing languag.e of the ""ill:
'"a:nd ·should any of thJ? a hove· named children, or grand;
·children die withtmt J.ssue; then it is my will that theit"··pot•• ·
tion should revert hack and be equally· divided ·among, the·
other legatees"-·
subject to· be divested by· the death' of- ''any of the above;nanled:' ·
children or grandchildren" withi>'ut issue; that it·wal!'thiYintetitt
...
o)'.
, .of- tbe said testator; that a~y estate ·Which should revert for fail<'l:IPe of i.~t1e . sholllld .be. divided among those to whom it ·shQGld. ·
.:revert,· per.sti!pes.. and. not·p~r. capita, an<l that applying the ·
. co.nstruction contended for to the; fact~, l\fargaPet -M. Wilkerson
took a life estate, with remainder·: in fee ~1imple to her· child~:·eu,
such rema~nder being subject, however, to be divested upon the
·,death ,o:f.'!ai.d ·•~llii.idren :withult issue;. tl1at· U}y,sses- D. Wilkerson
·:~.a fee. simple. estate (.thei'e be.ing,,n-o liu1itation. to h.is cliil·d.ren _in said will, -a~ in the e:use of the other two children .of the
'·:testator), ·and that W. C. Wi:lkerson and Capadocia Wilkerson,
.beii.J.g, t~ t•hildl"en .of the decea.'3ed. son, P~u·son Will~erson,. took
,a, vested; fee simple -estate, but,su1Jjed a~ in the other ca.ses, to
'• he·divested hy. death without, .issue.
· .(~) 1.~hat. Ulysses D. :•Wilkerson d~pHl'ted. .this. life intes.tate
;survivedr,l>y .hi~ throo. childi't?n,. the complaill.ants and that ther~•fo:rt; as he :did not die without issue, ,hiR iee ..simple estate. was
..u6t ..divested, ..but. that, dying.· intestate, complainants inherited
1 in. f~e-,simple as co-par~eners .aU of. the est ate, real. and personal;·
c .of which ~aid. Ulysses 0. •'\Vilkerson. died seized and possessed,
.,au);)ject. ouly -.to. the· rights, .of his· widgw, .who ·diecT' many ·years
ago.
(4) That W. C. Wilkerson.and Cap~.docia .Wilke:~;so~, now
Capadocia Musgrove, both now living, a1 e vested with fee sim.ple title to the one-third pB.rt of: the testator's estate, subject,
l_,hmvever, to.·be-divested as to• either of thf<m upon death without
·: -i~sue.
·
·
·
·
(5) That . both .Margaret ..1\'1.. Will{erson, the .tes.tator's
,dalU!:hter, .and:.. her husband, .W.. 0. Wilkerson, .J~., ,having. de
parted this life, ~and all .of. their .c.hildrerr having· .departed t~
life and having died without issue, ali of the estate passing to
'the said'·l\fargal'et M.•W:ilkerson, or to· her children, under the
··Will;·no matter whether· the same has bee11 conveyed of:fby·them,
. or by any Gf' them, EH' ··nOt, has··. Peverted to the estate ;under the
·-express provisions of said·will already quoted,.and now quoted
again,. to-Wit: ·
·
·-"8iiould any of th.e above name.:l . children or grandchildren dle-·"'-ithout·i-s~ne· th®' it. is ,nty. will that their portion shall revert back a.ucl be equally "divideCl iinong the
·•-other..legatees."
4'
And that the Margaret M. Wilkerson third part of .the 'es·
· tate, havil1g thus reverted, passed under tile will, one-half to William.· C. 'Vilkerson and Capadocia Wilkerson, jointly and equally, and one-half to the·complainaiits, no:w appellants, the chil·
dren of Ulysses D. Wilkerson:
( 6) That under the alleg-ations of the bill of complaint, to
which reference is here madE>, COiilplainants are vested in their
own-right with one-third undivided interest in the Bedford tract
containing i97-acres, as described in ~aid bill of complaint, and
. "in addition
vested with one-sixth undivided i,nterest acquired from _the Margaret M. W'1lkersoii sharE>, making their present
fee simple interest in tlie BPdford- tract an undivided one-half
jointly; alid that complainants are also vested with a one-h'iilf
undivided .iriterest of the tract in C_ampheU county .contaJmng
,228 aCI~es, 3 roods and 15 poles now claimed by one Francis F.
Fauntleroy, the remaining one-half interPst in said tract being
owned by vV. C. Wlikerson and Capadocia Musgrove;-the entire
P1terest il! said tract_ h~ving be~n t_he portion of the estate of
W'iiliani vVill,{erson in Campbel~ _county (595 acres) partitioned
to Margaret M. vVilkerson iil the division of the testator's lands
in Campbell county, which portion of the larger tract so partitioned reverted to the estate by reason of the t.o.tal failure of issue !n. the. Margaret M. vVilln•rson line.
are
· · ·· -·The er1•orq ·complained (\f, therefore, are the refusal of tlie
cmtrt below· so to constJ-ne said -.will as to J1phold the foregoing
contentions and its refusal to grant the prayers of the bill of
••
- ·
complaint.
. And general error is further and specially assigned t-0 the
action of the Court in entering the final decree shown ~n the record, i~ whicli. the col_lrt adjudges, oraers and decrees that
"The grounds of th«: said several demurrers filed to the
_ said hill are well taken. and complainants have no interest
whatE>ver ih the subject matter of this suit, and that there
is no equity in -sa,id bill and doth sustain the said demurrers and qoth therefor'~ adjudge,· order and decree that the
bill. of the said compiainants
be dismissed," etc.,.'
.
THE- FAc1·s oN
DEMURRER.
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~
.
.
.
':According to familiar principles~ th~ ·facts as -alleged are
i.··,.
admitted on demurrer. Hem·p the sole question is whether the
allegations of the bill of complaint make a case for relief. The
bill sets forth a detailed statf'ment of facts, all of which t:Q.e demurrer admits. It would bP a useJess multiplication of words
to restate these allegations ~1~. They may be found in the
record. Only sucli facts wi1f be stated a~ are necessary to a
construction of the will unc"P.r the issues raised by the demurrers. The~e·'facts are p:.•ief, and in larg£ measure have alr~dy
been stated in this pet1ti,m, yjz:
. That W'1iliam Wilkerson, the testator, departM this life
survived "b:v tlfo children, }fargaret M:. Wilke1•son and IDysses
. D. Wflkerson, and by two gmndchildren, \V. 0. Wilkerson and
.Capadocia Wilkerson (now Capadocia. :i\~Iusgrove)~ grandchildren of the te.-tator a11.tl children of hh; deceased son, Parson
'WUker~on; that the two last named grandehildren. still sut·vive:
that M:f!rga!'et M:. V\rilkerson d~art.ed thls life survived by a
numhe1• of children, wbnse nnmes appem· in the bill of · complaint, bufthat all of these children have departed this life, none
of them-having been survived by issue, so that the :Margaret }f.
Wilkerson line is now e~tinrt hy 1~eason nf the failure of issue;
tliat Ulysses D. 'Wilkerson dc•parted this life intestate and survive.} by ·the complainants, now appemmts.
·
These are the essenrial fn(·ts gather~:·!} ft!Om tlie bill of com,
plaint., and thel'efor-:. admltt<~d by the demurrer. And th.e sole,
fundamental question invol,:ed is which of the parties above
mentioned 01' referred to tal{e under the will, and in what inteJ•est?
With these facts iri mirtd we may appropriately quote the
The> esRenthil part is this:
"I give and bequeath to-·my son-Ulysses D.· Wilkerson
one horse, to be chosen by_ himself frmn those tl).at I am pos-sessed of. -And then for .t.he residue of my property to be
equally divided among ·my children and -their heirs, viz.-·
Margaret M:. Wilkerson (and ·at her discease, the same to
-• be 'dhid.ed attiong ·her .;hildren) Ulyf.ses D. Wilkerson, and
· aii equal po1;tion to my ... : . ·... : . . ·wmiam C. Wilkerson
and his siste1• Capadocin "Wilkerson children of my son Par·:s<nf ·wilkerson deceased. And should any of the abovenamed children or grandC'hildren die without issue then it
. is my will that their porti~n shall re\·ert back and be equally d.h-ided amon~ the other legatees;''
-'
" . ..
. will.
6
Now, 1et ,us_quote yet again the .construction of the will as
.; ~uiicl1·~y the. tourt, viz,. tlwt
· 4 i-'l~.he.-gco.uuds
of thP said several demurrers filed to the ·
-.sad:d ,biJ.ll ·a~>e·..well taken, -and com1)lainants have no interest
'~wltat~ver in the- subject matter of this slrit, and that there
hhno•.·equity in said· bii!, at~d doth sustain the said. demm' l"et.'fH.lUd. floth tf1ePeforc adjudge, ortler and decree .that the
. irbhl1.mf the- said eomplaln:mts be dis~nlsHed;'' etc.
AltGUMEN'f.
'\'Vitli. entirw deference f\n· the Jearn(~d chancellor below, is
llot the will-self interpreting: is. not th(! error of which petitioners complain.. apparent hy a mere comparison· of th.e finding~ Of·
•the coutt with the text :>I' the wilJ read in connection 'vith the
· facts above st.ated?
'flltere is na;dool1t whatever that the-Mo.t"f!lcq·e·t :JVI. Wi.lkc~·s~1n
·,,hine mexbind. 'Che cltiTdrei!:u·e all deaci:- an:d. dead·witlwut isSU!~,;,~l!d:M'aitgtH'et .1\f. '\Vilk<~rson j:-; long !'Iince dead: and her ·ltw·:' band is. Ui~ttd. No"·· th\•n, what -becomes. Qf the ..interest whioh
·•Hke Jl;ocf).k, lllr~'»dt~r. the 'will'! 'i.~hif;. documetlt states: "And "Should
an~· of the above naUHl(i eh;Hdr·•.-m or ~randchil(llren tlie wit.hout
isSlle then. it is my will that their portion shaH 1·evert back and
•be· equally ;divided among the other l~gf:ltees.'~ Margaret ~I.
'·'Wilkerson ann her: clJil(h·en would certainly ans'\ver the description of ' 1cluldren or g.Tauclchlldren" of the testator. And these
children o-r· grandchildren are dead. And th)Y are dead without
is~me. Tlwre is no pos;;;ibility of disputing one syllable of tlieHe
i facts. ._Th~y. -are,· in: fact,· .facts, but .aside from this, · they are
facts for purpose~ of the demnrrer becanse: th(' hill states them
l ·tO!;be facts. , .And in theyi are facts the testator constlrues his own
,,WliiJJ~r-for he;,:sh.tes:
'"the·n, it is .111Y will that their portion shall revert back and
. be e.q.ually divided amon,g fhe other legatees."
i'l1her.o:fidyr question is who are: the ;'other legatees:" ·Again ·
•We;!a.dvert to the ·facts, the admitted facts. ·Tfie other legatees
.:,al'id.th.ecQH.ly: possible other 1egatees ·are tlie chlldi'e.ll::of Ulysses
,D. .,Wiikersou~ tlie·complainants, and ·wuliam C. 'Vilkerson and
: C~adoci.a -~.li~gcove,. children of Parson Wilket·son, deceased,
i:IW:f1[~1tru:fdclUlcll'e.U: of the testator. These·are the <o-ther legatees,
an<l therefore these a1,·e.the; pat·ti~s· 'ilio takel'under: the e-xpress
1angttage:·of 1thtr win,: tht: one-third· pa.rt' originall!jr iit'tenwm~':f&P~·
·Margal."t~t":M:: Vflillfersoir and her children:,: lJut 'Msttby-th~ ·e1r~
tirin: Of that lin~.
And yet t>y this decree th.e-court below: has eX}Jll'ess·ly;··~::
that complainants have no interest whatever in the land :iJl. . the
htH 'anrl pJ·oceMft1gs de~c·ribed~: and:'that tJl(~''bill of 'cotnpblint in .
which· they.. f;tvqueh'their· interest under:·tJi'e will ~of Wlltianr~Wfl.! ·
kerson~·is witbSut ·any equitj' whatever. Sureijr here 'ls·:errorr
•
But tilis is by. no- meam; all of-the·interest.o$:compifti:Baint~;'~
Petitioners have IIierely dise1.1ssed· the· intet•est;. :as ·to•i\V·~khfltllertn
would. Beem to be no possible question, ,,~hich ·they,·.take•UlidW/
tlie will b:y reafion of the lapsedi devise· t0· -~Ia:rga\l!'~t 1\£·. vyu~~(;;
and her rhildr.~n. '11.he greater )lart of t-h<' estate, however, which
complainants take is not by virtt1e of any lap}!!ed devise- :or· ex•..
tinction· :of the li11e of ·devisee~ but is the part ..whi~h' they t.aki:l'in.•
theh• own right as· the hP..i.rs nt Jaw of Uiysse.s D. Wilkerson~ their.;
father, wl:o unquestionably took one-thhd 'part' of 'his. fath~rs ·
estate, anrl who~ after becoming vested a~ devisee with such' onl!':
third part, d~p~rted this life:. intestate, casting, the descent ,of :'his::
part of the esta,te upon his t.liree children, the .complainantS.
No one co·lld deny tha.t Ulysses- D. Willterson did 'take.con&-·
third p11rt 'of 'tJ1e estate undt>r the wiil of· his father, Wllliiun ·
Wilke1·son. The language of the wiU expres$].y· s.tates~ thiS.
Ulysses D. Wilkerson is caH~d by name in the will, which st-ates;
that
·
"for the re~:ddue of m.y lJl·opertyto ·be'equaHy·divtded am.ong
my children and their'ht>irs." ·.
·
·
Now if Ulysses D. '\IVilkersoil· too:Jt,. this -one-thi~d 'iB.neresti·. ·
under the will,. in what -wa-y has he ever been..divested <Of litf ·:cas:.
a court by judieial construction divest a·.title,·onee·vel'riied";ll1'l\ter!.'
a "ill? There is but one possible way in which the -interest of
t/'1ysses· D: 1-Vilkerson coll'ld ·have passed to ·others- than his. heirlh
a.t·Jaw; ar..d'that way is· by his own deed executed: an.d delivered•'
during ·hiP lifP time. This l'r.ing.s us to the aiMgation ~of lite bill::
wit.h ·referf:nce' to ·a.. deed·. p_urported ::to ·h.a ve ' b~n. executed tb~·
Ulysses, D: Wilk~rson; but 'not in fact execut~d-:by..hirri.
It is alleged in. .the bill -of 'complaint .thltt, by .:decd''<1.~1Jtft,'
18th. &y ()f. St?ptem.ber, 18&1•,. and! -admitted 'to-..ree:ord::'OK' rthe-'24ftk
·day of October; 1887, inoNl than-'a•.yea,.r; alter'· its date; ,Will.itm!Jir~o:··
Wilkerson and Mary~ his wife, Capadocia Wilkerson, and ffiys-
.'
'
ses .WilkeI" son and Martha A., his wife, conveyed to .Margaret M.
Wilkerson, described as- the wife of 'VHliam 0. Wilkerson, Jr.,
all their intere8t in the tract of 197 acres, 3 roods and 20 perches
situate in the County of Bedfor<i on the Routh side of Stony
Creek at t-he foot of l"i'lat Top mountain.
.It is further allege~1. in !'laid bill of complaint, and is a fact,
that this ;leed was never· sign<'d either by Ulysses Wilkerson or
by lfartha A. \Vilkerson, hiswife. It wn;::signed and sealed by
vV. C. 'Vilkerson, !;!ary A.. \'Yilkerson anri Ca~adocia Wilkerson.
The original deed, as the bill alRo alleges, is yet on :file in the
Clerk's Office of Bedford County, never h::tving been withdrawn
therefrom, and an insper:Lion of the deed verifies the above alle·
gat ions~ as the bill of complaint also alleges ..
Notwithstanding this situation, the1•e is annexed to the
deed as recorded, and lfkewil'le to the original deed, a certiflcate
of two justices of the. peace for Bedford r:.ounty certifying that
Uly~ses D. vVilkersori and ~fartha Ann 'Wilkerson "personally
appeared before us" and "acknowledgec1 that ......... executed
the saine for the purposes therein eoutained," and the certificate
of the justices further ceetifi('S that Martha Ann Wilkerson was
examined privately and apart from her husband a.nd acknowl·
edged the E>xeeution of said deed to have been done by her free
will, etc., :1ccording to the form then in vogue. This. certificate
bears date the i6th day of 8Ppteml)er, 18f.i7. or just about a year
after the ·clnte of the dee{!.
r~et it be i10ted that these facts are all admitted on demur- ·
rer, and therf:lfore the bald question of law is raised whether a
deed not signeti by persons who are reciterl in the caption as par·
ties, is made valid as a deed hy reason of n. notarial certificate or
the certificate of a justice of. the peace appended thereto which
recites th!:lt the parties did sign.
Of eoursE it must 11c admitted that tlle parties did not, in
fact, sign. If it is necessary that the party to a deed should.
sign and »eai it in order tb.~it the deed may lte. a valid convey;=~.nce of land; it would S1~em perfectly apparent that the failure
so to execute the deed cannot he cured by a false recital of a cer·
tificate that the deed was executed. If a !l unexecuted deed may
be rendererl valid by the falsP. certificat0 of a11 officer who cer·
ti:tl.es to alleged facts which ai•e palpably not facts, then it would
be only ne,:essn,ry to haw the officer's cr.rtl:ficate and never nee·
9
essary to have the ownfi!r's signature. The door for fraud would
be thrown wid<> open and the sanctity of the title to the freehold
would be but a figment of the imagination. ·
Of course these things cannot be. It is impossible to assume that this deed haE~ an.v validity whr.tever as a co:nveyance
of the int\~rest of UlYsse~ D. "Wilkerson in the Bedford county
tract of land. What happened, no·'··doubt, is that the grantees
assumed that Ulysses Wilkerson would sign and the certificate
was doubtless l}repared nud signed in adv!.tnce by the Justices of
the Peace on a like assumption, but that~ a~:; .a matter of fact,
UlyssE'..s WHkerson and his· wifl:' declined to sign, or by some unforeseen mishap the deE>-d m$ly never have. been presented for·
their signatures. Of course this is mere Sl.ssumption. We shall
never know the facts. 'iVe do know that they did not sign the
deed. Wf· do know that thE' deed could not be rendered valid
without their signatures. We know that no e~fort~ apparently,
was eveP made to cure the defect.
·
· Hence: as tlie only means by which the title of Ulysses D.
Wilkerson de;rive{! under· the will of bis father to one undivided
third part of the real estate in Bedford county could have been
divested is by a deed duly signed and se'l.led by him and by his
wife, and as no such de~>cl has been produced, but, on the contrary, a deed has been_pr(Jdlwed which he did not sign and seal,
it follows tha-I: such titk as be had remained in him. If the title
remained jn him, upon his rl{'nth intesta1·e it descended to his
heirs at law, who are the complainants to this suit. Thereupon
tli.ey bec:ame eo-tenants wlil1 the ·other heirs, or with the grantees
of tllose who had .pnrclla~ed the interests of the other heirs, and
co-tc.>nant.s they are to tl!.is moment. The decree of court, therefore, dive'ilting tllf'm <~f tlJis title by holditJg that they have no intere-st in the land,. is in the teeth ~f the mnniments of title shown
by the allegatiom.; of the bili. of complair..t. And the decree, wa
submit with reRpect, is therE-fore erroneous upon its face as to
tlii~ interest.
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I
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•
And it may be pointf:!d out that this interest which the compiainants have by direct descent from their ancestor, who was
duly vested with title, is a thing apart and totally disinct from
the one-half interest which has hereinbefore heen asserted in
what has been termed tlle l'Iargaret M. Wilkerson · part of the
estate.
·
10
Attention is again t•esper.tfully direeted to the fact that this
case is now at stage where it is heard solely upon the demurrers. The court cannot go on(:' step outside of the complainants'
own allegutions to determinE' the facts. The demurrers ad1l'lit
the allegations. Hence. it cannot be suggested that any equities may exist as against Ul:vsses D. ·Wilkerson's interest in the
land. If there are snell equities they may be asSerted at the
hearing upon the merit~. T!:ey cannot be considered now, although eomplainants insist that none surh exist. But at this
stage of the ca.-,e the colll't c~m look only to the allegations of the
hill of .complaint and determine upon thm;e a.llegationR whc:>ther
the casP stntc:>o entitlecl i hem to relief.
a
'rHE O·ROUNDS OF THE REVEHAL DEl\IU.RRERR
The i'l~ue in thh; case rests in the construction of the will
of William Wilkerson. Th<'rc:> is no obscurity as to the identity
of those who claim title to this property. There is no obscurity
as to the extent of the se,·era1 interests claimed. It is, therefore,
but .a question of the in~erpretation of the real meaning and ·intent of the will as applied to the claimants.
If petitioners; cont~ntion~ ami arg1.unents hereinbefore advanced are sound there "·ould be, as petitioners claim there is, in ·
fact; no· nt>c:>d ~o considn the g:rouncls of demurrer assigned in
the seY(:'ral deniurrerl'l fil,~d her<'ill, but lest we be taken to admit,
by reason of 011r failure to d!r,cnss, the positions taken ~n these
flenmrrers, we shall con~ider· th.Pse grounds a['; briefly as possible.
A joint n.TJ.d separate de1mirrE'r was flled li;r Francis F.
Fauntleroy and ,J. D. FaunHProy~ and a further supplemental
and. amendffi demurrfir was filr;>n h:r tl1e same parties.
A fiE>n.urrer
"~as
also file•'l hy Gilbert '.Vilkerson.
Let us consider tl1ese demnrrer•s in the order stated, and the
grounds set forth therein HkewiRP i.u such order.
The 01·igim.tl Dem.ur·rer of Fra ·~ciil
F. an.d J. D. Fauntleroy.
That the plaintiffR
cannot sure for partition.
·(1)
HI'e
not
~6
temtilts and therc:>fore
If the Will has been prop(:'rly construed by ·petitioners they
are certainly co-tenants with tbe other owners, and therefore this
1.1
ground need not be diSCliSsed.
(2) and (3) vYe considt>r these together, for they seem to
involve essentially the smne rontention, viz: that in the one-third
part whidt we have de>.:iguatPd as Mm·garet M. 'iVilkerson's
share, slw took mer·eJy a life C'state, with an absolute fee simple
inllel' children, and that as tlle interest so derived through Margaret lVI. \Vilkt~rson was ultimately disposed of by the will of one
of her children, he having aeouired the other interests, there
could he uo limitation over t{, the ·complainants, the estate having become unconditionally vested in fee :-;imple in said childdren.
· ·
It is tl'Ue that the devi~e to 1\llargarei: lVL Wilkerson is limited by the word:-; in parentheRes:
•;And at her d·iseease the same to be divided among her
child r·t>n."
If this were the end of it, unquestionably we would
have
reached the point of the ahr:'1nlute vesting of the lVIargaret lVI.
vVilkersor:. interest. But thi'l t:-; not the encl. The testator further provides:
''And should any ol' tlle above named children or grandchildren die without isRnP, then it is 1i1y will that their por•
tion ''hall revert hack m~d be equally divided among . the
other legatees."
It h; eertain that by this language the testator referred to
somebody, and sought to impose a limitation of the estate in the
hands of f:Ol11ehody. 'fo Wl~OJ1l did the to:>~otator refer, and upon
whom did he iuq)()He the lirn itation?
If WUliari.1 Wilkerson, ~he te~tator, careful as he was to
provide that upon failure of issue in any line of deseent the ihterest of sueh line should "revert back ~:mel be equally divided
among the other legatee:-;," at the same t:ime had it in mind that
this limitation :-;houlcl not apply to one particular line of descent, why did he not say so? If he desirP-cl the children of lVIargaret M. Wilkerson to take ~). fee simple, while providing that the
other children should lose Jwir title, so to speak, by failure of
issue in the line of descent, why did he not say soinething like
this: "Provided, however, that this limitation shall not apply to
the children of ~Iargaret ~f. vVilkerson."
12
Does any reason appeal:' why the testator sh&.ld so favor
one set of grandchildren ·OY(;r another set? In the absence of
some special reason, is there not every reason why he should not
do so? I.s th~re not every !"<>ason why one rule' and one intent
should apply to all?
We a~·e d~aling wid1 intention. It is the intention of the
testator thnt ./;he Court muftt ascertain~ and must ascertain it
from tile language used.. DPvises by implication are not favored, whe1•e the ('Xpress intent may be foum!. in the language used.
Let us th~n t1irn to the language used: ·"Should a1ty of the above
. named chiidren or g1•andchildren die without issue"-not one
particular line of descent, nor another, hut "any." This word
"any" is ••oinprehensive, not ::tlternative in its meaning~ It is
inclusive in the sense in wl1ich it is used ir~ this will. And so we
say that tl!e fact that. thl} construction placed upon the will by
the lear·necl Circuit Court mnst rest in implication in the face of
what we ~onccive to be rlie P.xpressed intrnl,necessarily deducible from tl}e language used, en·1•ies a sufficient refutation of the
Court's c~:mclusions.
· ·
(4) aud. (5). (Grohnd!'i of demurrer.)
But .~ven though we ar.c ourselves at fault in our reasoning
as to the constJ'uction of the clause last quoted, this <loes not ex·
clml~ petit.ione1·s .from their huger interPst as direct and lineal
d~see:ri.dants in the Ji'rst line from their ancest01·, their father,
. tnysses D. Wilkerson.
Grounds 4tli and 5tli seE-m to b~ predicated upon the idea
that Ul:vs~:~es Wilkerson did not die seized of any interest what·
eve~ in the land, that he had nivested hiniself of such interest by
deed, although this is ntit stated in these grounds in so many·
words.
But as we have argued at length, thera was no deed. Someone recited the names of Ulysses D. Wilkerson and his wife as
parties to a d<·ed, and two justices recited in a certificate that
these parties had executed tbe deed. But the deed itself· dis~loses- that tliE:>y had not exermted it. Therefore, the deed as to .
them was void, and a void dt>f'ld is no deed. And as conveyance
of real estate must be by deed,. it is perfectly plain that the
clauses under discussion are founded upon a fallacy.
The S·up'f?lementaJ, Demur·rer of
Francis F'. am4 J. D. Fauntleroz!,
13
All of the gr:ounds statP.d in this Supplemental Demurrer,
four in number, seem inter-related and appear to rest upon
some, to petitioners, obscm·e reference to the chancery suit of
'VIlkerson, and others, N. Hoss, and others. In making reference to this suit as a basis of demurrer, the demurrants are traveling outside of the facts, ontside of the allegations of the bill of
complaint to which they ai'C limited on demurrei·. rrhe bill of
complaint may be searchec; fr·om its first to its last line without
finiling any allegation as to this case of 'Wilkerson v. Ross. The
case was merely referred to as a suit in which a Special Commis-.
sioner executed a deed. In fact, there is no reference whatever
in the bill of coniplaint to this old chaneery suit, it is merely referred to .in one ot the deed~ !!.led as an exhibit with the bill of
complaint, and in this deed merely as the source of the title of
the land t•onveyed. In orde1· that the demurrants may make
their point- at all they must produce to the court the papers in
this chanrE:'ry suit. Of cour<:P. this cannot be-done on demurrer,
and therE:'fore th(~re is no meJ•it to the Supplemental and Amended Demm·•·er filed by Frandi-: F. and .T. D. Fauntleroy, we respectfully sulm1it
• ·
The Dmnnrrer of Gilbert V/{lkm·son.
(1) .-\.contention that the bill is multifarious hecau.se it
seeks to combine an issue of devisnvit ·tiel non with a partition
suit.
In the first place, it wa:'-1 :4ated in n.rgmnent at. the bar of
the court that petitioners did not rely upon the allegations involYing the wiH of T. J. "Wilkerson. In other words, that they
hail not fonnd suffici('nt evicknce to justtfy an attack upon the
testamenbry capacity of 'l' ,T. Wilkerson, and they therefore rece(led from this position. Co·u.nsel further stated that the bill .
would be vmended accordingly. This would seem to sufficiently answer this groun(l..
But as a matter of fact, although it may be but a moot ques~
tion, it is eontended !·hat the },iJfwould not be multifarious even
though petitioners were attacking the wiil. Se-ction 5279 of the
Code confm•ring juri:;;<liction in partition .~uits, expressly provides that the court lliay tnk<:. eognizance of all questions affecting the legal title to the laud of which partition is sought. ThereforE:', it would be competent for a court of equity, in order to
avoid a multiplicity of suits and to do complete justice between
14
thtl pal'ti@~ in on€' proceeding, which is a cardinal rule of equity,
to d~ree- ~~n i}!sue of devisavit vel non to test the authenticity of
a will as ;J <'Olltlition pre(~ed<-mt to (letermining the ultimate rights
of the parties.
(2)
l'hat plaintiff~.; are neither co-parcener~. tenant:s in
joint truant~, unrl are therefore not entitled to par-
<~QHlU1.0I1. 1 ()1"
tition.
If tlw :tir:,;t elausc wen: hue, ·we ".ronld admit the truth of
tii~ secolHl. But the fi:rst ebnse is not true, if petitioners under
the construction of the will contended for llave any interest
whateve1: ~n the~e lands. Jf they haw the merest ft•action of an
.intet·est, tJte vm·y fact that it 'l'l a fraetion points to an outstand·
iug inte1·e~·t in m.hers. 1f the1·e is an outstanding interest iu
others then petitioners muRt 11e co-tenant11, under- one name _or
anotlun-1 with nw.'!e o:rhers. Ro that it all harks baek to the eonstruetion which the conrt v0nlf1 place upon the will.
- (3). l'hil:l gN-und of ti·e demmr-er of Gilbert 'Wilkerson sets
forth the contention that rn~n though the deed of conYeyu.nee
from ,V. C. 'VHker~on, and others, in which Ulysses D. 'Vilkerson and his wife are nameJ ~l~ partie!'!, should not he a valid
deed ueL'a.'we not exe•mt.ed, ;.;till, a~-; the demurrant eontends:
"Pri.or to the Code of 1887 it was not necessary to haxe
a deec• of partition, lm'. :.•. pm·ol partition was valid."
Here again our learned opponents are traveling outside the
record. ·The bill of emnplaini does not hl.nt at a pm·ol patitiou~
but sets up simply a void deed. 'l'his is the state of the r<~<'Ot!l
so far as i'he d·emuner is e<ant•erned. And the la·w of parol partitions is not apposite, but c\T(~n ·were it appositt', sneh a law
eo.uJd rwt be inYoked her-e. It is true thai under the old law under cer·('ain eircumstnnees i'lH~J·e might br_, a parol partition, ·but
it is also ·true that parties in Htigation ca'nnot take inconsistent
positions. 'rhey ean~1ot hiow hot and cold. The defeniJants in
thi:.-,~ ca~e ~:n·f' r~sti:!lg upon thh deed. If this deed is void they
onl.HlQt faU bnok upon another conten~ion upon whieh they are
uQt resting, aud as to which th.ere is no hint in th~ entire reeord.
( 4) J~ikewise the gt·ouild that the hill is demurrable because certain of the partki'i nre interested in lands in Bedford
cQunty antl eertaiu others in lands in Campbeli coutity, there being no r;on:.mon interest ~s to nll of the lan.ds in each county.
15
This ronteniion, we say with deferenre, palpably has no
merit. It is not necessary that. all of the parties defendant to a
chancery suit shall be interested in all of the subject matter of
the suit. It, in fact, "'ould not be a ground of demurrer if some
.._ of the parties were not intuested in any of the lands; To the
extent that they show intere~t~ to that extent the court will protect SU('h interest. 'fo the extent that they have no interest,
both as a matter of equity pleading mid under the very liberal
statute applicabk in Virgiuia, 'tne suit would be dismissed on
motion as to t.bose that were not interested and that would end
tlie matter.
(51) The last gwund of demurrer is that Ulysses D. Wil·
kerson ·would not be eF~topped from claiming under the deed
which he acknowledged, even though he did not sign same, and
his heirs eannot claim :my hetter_ title than he could if be i"vere
living.
·we xuhmit that l!lysseE. 'Vilkerson did not acknowledge the
deed. If the language of the certificate of the two justices is
consulted lt "'ill l)e found that both Ulysses D. ''i"ilkerson and
his '\\-if<•, l\[artlw Ann Wilkfrson, acknowJeclged, as to Ulysses,
that he "executed the samrt and as to 1\IIartha A.nn, "the execution of the: sai.d deed to lwn~ been done by them freely."
In otller words, the certificate dealR with a falsity, and a
falsity thnt the deed itself exposes. The justices certified that
these t'vo partie~ c.cr:cti-fe.rl tb-e deed, while the deed shows that
they did not emecute it. Can so palpably false a certi:fi;cate be
transmuted into a muniment of title? In other words, the cer·
t.ifi<'ate, like the deed, i~ a nullify becaus~~ it is predicated upon
a valid, duly exeeuterl deed, when tne deP.d itself shows thnt it
'vaR never executecl
·
For the foregoing reasoit:>. petitioners submit that both from
a positive or a constructive ~tPndpoint of. argument~ and from a
negative or combative stand point, it is· clear· that the learned
Circuit Oourt erred in ~ustaining tlle demurrers nled in this
cause.
Wherefore, petitioners pm.y that an ~.ppeal and supersedeas
my be awaraed; rhat the decree aforesaid complained of may be
reviewed and reversed, and petitioners will ever pray, etc.
IREN:E 0. WIJ.~KERSON,
I.~ISAIE A. WIJ.~KERSON,
M. C'. WitarnRSON, ·
By Counsel.
S. S. LA.l\fBETH, J R~
Counsel for Petitioners.
CERTIFIOA'l'E OF COUNSEL.
I, S. S. Lambeth, Jr., an attorney practicing in the Supreme
Court of Appeals of Vh·gini.n.,. hereby certify that in my opinion
it is proper that the decree of the Circuit Court of Bedford county, in the above styled cause, rlated September 2, 1927, and entered in vacation· on September 3, 1927, ·shouia be viewed by the Sri.·
preme Court of Appeals of Virginia.
,
··
.
Given under my hand this 20th day of February, 1928.
. S. S. LAMBETH, JR.
Received Feb. _23, 1928. J. F. W.
Appeal allowed and supPrsedeas awar_ded. Bond $300.00.
.
.
.JESSE F. WEST.
}.,ebry. 23, 1928.
-1
11
.RECORD
Vircginia :
1PlE~attS' ~~·&u~e the Honoiiid> le P .. H. ·DiUard, Judge :of!. the Cir~<tuit>'Q.Qurt .(i)f •Bedford··Oounfy, ·at;the "(;lou:r:t 'House,,on·the 2nd
,;day~Qf~~pt~l9er, :1927, ani!. in ·the ~152nd·year.·of the>Qgmmon-
m.ealth.
..:Qe ;it ·•P.em.embered: 'that· her..etofur-e, to•wit :. Un ·t-he Clerk's
f(i}ffiee. ohfhe 70ireuit Oo:nr.t. o'f i.Bedfol'd' Gounty, :Virgiin_a;, at the
~-..,ee•d:'IM.u rch TRnles, ·1!>27, · mnne ;bene 0. ··Wilkerson: and •. others
ta:nd::.filed~'!:h:eir Bill in· Oh.anr.ery· against: Gilbert :Wilkerson and
,t;01hers, 'wllifthfbill is in- t lie w<n·ds: and ftg:r1Fes :following,· to-wit:
_:'})o::th-e.-~Honnr,flbleP:•H. Dilhu·d, JudgeCireuit·rCourt off:Bedford
County:
\Hutnhl;r:c.omplninin~·:~ ·your complainat'lts, Iren-e1 Q. Wilkerson, Ijissie.A. -Wilke1·son and ~·L C.·:W1lkevson,;respectfully<eShQ\v :unto your:honor ns follows:
'In t>r:,ahout :the 'year l8H7 'William 'Vilkerson died seized
and possessed of certair~ re~1l and persmMl
estate
situate in the
.
!
-·crou:nties-.ofBedford·and·Campbell, in the ~tate ofVirginia, ;which
•w-as·dispoR(!d of hy his lust will a.nd testmnent. admitted·to probate inn eourVhel{{ for Bedford county 011 the 22nd day of July,
in the yeai' l8ti7, :md df r<,>coH.l in the Clerk's Office of Bedford
Qounty in ·wm Book V, page.:L66. The said ·wm is.in the following wordfol and figures:
:Know ali men by these pr.esentR that I, William 'Vil·:kerson, of ·llt~dford •county, and State of Vh~ginia, being in
m~haaltb, ·hut of sound and dis.posing-·memory, do make this
'my·Iast,will and testament, iereby r~voking::a:ll former wills
by lllf' made.
And as to my wo'!·ldly and call·the.·pr.operty, real, per. sonal and ·mixed, df which .Cshall die seized and possessed,
or to which I shall be entitled at the-time of my. decease, I
.devise, ·bequeath and dispose the-..~eof in the. manner follow<iJig, to-wit: First, my,.:will is· that all my just:debts:and fu·n:eJ·al eX'pense~ -shall hy my 'exec.nhms hf:>reinafter ·named
:![2]
\
18
(3]
be pa14 out of my estate, as soon after my decease as shall
·
Item. I give and bequeath to my son Ulysses D. 'Wilkerson Oile horse, to be ch•wen by himself from those that I am
po'3sessed of. And then for the residue of my p1·operty to
be eq aall.v divided amon!!: my children and their heirs, viz :
Marg~ret M. Wilkerson (and at her discease, the same to 1Je
divid(>d among her children) Ulysses D. Wilkerson, and an
equal portion to my ...... vVilliam C. Wilkerson and his
sister Capadocia vVilkerl"on ehildren of my son Parson Wilkerson deceHsed. And ~hnuld any of the above named chH
oren or grandchildren die without if!sue, then it is my will
that ~heir portion :::hall revert back and be equally divided
among the other legatee'!. .And further having disposed or
m;v property among my ebildren and grandchildren, i make
it bimHng on them to tnk€ care of my wife Mary l\Iagdaline
vVilkerson during her liffl. And lasny I do appoint my son
Ulysse~ D. "\Vilkerson and my son-in-law William 0. "\VHkerson to be the f'Xflcntm·~ of this my last will and testament.
In testimony whel'eo( T, the ~mid William 'Wilkerson,
have to this my 1ast will m1d testament, subscribed m;y name
and affixed my s<>aL this 27th day of ~fay, in thfl year of
Our Lord one tllonsana ehdtt ltundrt:·d and sixty-seven.
"\YTLTJTAM 'W'TLKRRRON (Real).
by t.hem be found convenient.
Sign·~d 'bJ- the ~miti William 'Wilkerson in the presence
of us \Yho subscdhe tmr nnrnes as wHnessel'i, at his request.
IYIIJI.JIAM I.1. IYII1KF. RRON,
H. "\V. "\VJJ~KF~RSO X,
1\f. •T. •TOKES.
~\ t a rourt hcilfl for· R'•dford County, ,July 22nd. 1867.
rrhis last will and tflstament of William Wilkerson de·
ceased, was produced in court, partly proved according to
law by the oath of H. \V. "\Vilkerson one of th€ subscribing
witnesses thereto continued for further proof.
And at another day, to-wit:
.
.
At a court continued and held for Bedford county, the
23d clay of July, 1967.
·
This last will and testament of \Villiam vVilkerson deceased was again produced in collrt, fully proved according
to law by the oath of ·william I.1. vVilkerson, a subscribing
19
[ 4]
witness thereto, and ordered to be recorded.
'l'este: A. A. ARTHUR, C.
B.
C.
Comp!Hinants m·e aivhed that it is necessary that the court
should construe the foregoing- will in order to determine the parties entitled to the lands passing thereunder, and the interest of
such parties in said lands. Complainants "\Vill, in a S"\lbsequent
portion of this bill, present to your Honor the questions involved in such con~truction. and will set forth the interests that will
pas.;; to the several parti.~s emitled ona proper construction of
said will acc01·cling to the advice received hy said complainants.
'rh(' said testatoe was sm·\·jved by the following children anrl
grandchiltlr~?n, to-wit:
J\>Iarg;u·et l\:1. vVilke1·son and Ulysses D. vVilkerson, children
of the testatm·, an(l vV. C. \Vi1kerson and. Capadocia Wilkerson
(now Capacloeia :Musgrove), gr'andehildrcn, being children of
]?arson \Vilkel"son, a child. who pre-dece::~Red the testator.
Of the above named children and grandchildren:
lVlargaret :u. \Vilkerson lws depm·ted this life, as imve also
W. FJ. Wilkerson, :1:1-,letc:her' vVilkerson, T; .J. ·wilkerf-;on, and
Kizzie Wilkerson, the four last named being children of the said
Margaret, ttll of sai.d ehilt1ren having diecl intestate, umnarried,
and wlthoat issue.
·
Ulysses D. ·Wilkerson, the testator~s child, has also departed
this life, as has his ·widow, tnt is survived by the three abovenamed complainants. There are no children of .deceased· children of U:ysses D~ Wilkerson.
vV. C vVilkerson and Oapadocia Musgrove; formerly Oapadoda vVilkuson, are yet living. The children of vV. G. vVilker·
son who, i:'hould the c·ourt se eonstrue the testator's wil1, would
have a contingent interest in the estate, are the following:
W. H. vVjJkerson, Sam C. Wilkerson and N. B. vVilkerson,
all above the age of twenty-one years.
The (•hildren of Capad0da 1\fusgrove who, should the court
[5]
so Ponstrue the testator's will, w0uld have a contingent
interesL are the following:
, Nannie Kate Musgrove, Rarah C. :Musgrove, Annie E. Musgrove, Oland B. ~Iusgrove, a 11 of age, ana S;ybel Bennett ~Ius­
g-rove, infant child of Robert Thomas Musgrove deceased.
the sueeesr.;ion to the title to (>f:lch of the allove tracts of land,
showing th~? pres~?nt owners of ~aid tracb; as subdivided, according to theil' information anrl :wconl~ng I<' the l'ecords of the
/
20.
Complainants.. further show. that .at the date. of the. death.. of
the said. W.illiam..WJlkeJ.·sori.he. owned in fee simple a traCt · oi• .
land situatL iii the counf.v ·orB~dford~ Vil'f!'inia, on the south side
of~Stone¥.-·Cr.eek;,at .the..foot~of Flat 'fop Mountain,,and)co.n.tmning;l97. anE>.s;-,..1-r.oods and120 "rierches..
..
· ·
AruLalsoA\'.tract of.land.situate.in. the· county. or:'Gamp.bell,.,
Vir.g.ini.a,.,on.•Tohnson!s.Cr.eel;:;~ .at-the:foot.ot.J:ohnson'.s MOWltai.n,.1
adjpining. the land of, Cluu·lt:« A.nthony· and.. others; arnd tho~
to reonuuc.595:ac:tes. . Oom pJn inants wilL set forth4.lie;course;off
· Cferk's.Offices..of both .of the· c.mmties .named.
T.h(!.tract. of: land. containing.l91. acres- a.n,l. a fraction; .situ•
ate.in "ffi>.dford.connty.and.ahcve.referr.eil to, was disposed~of§.o1·
sought to l>e dispoKed of by tht- following deed•. a.cOfl'V· of!w:hich ..
.is set forth at-1ength,llerein inasmuch as the.rigbts-nf4the..~1es
her~t'V fi~d.:u.pon the-r·onst1·nction of;snih:l deed,.~ '"aiJ.,as.•upeJllt
the.:c'onstraction.of.Stlid.wm ..
.
This deed1made: thiro: 28th day of. September,, issr.,.;be·
tween.:W'J1lirun C. W·illier·~on and Mary, .hil!t·'\vife7 Capadooia
Will{;er:son:aml Uly~'Sea Wilkersan al:J:d.l\furtha ..A.~ his-wife;,
alLo-f.·thf:'..:ti.rst·.llar.t •. -anJ.!Mar~a.ret M. Wilkerson,, wife. of;.
William. 0.- Wilkei·sonr, Jr.; o:f -tlie seeond part.
V.VJ~\NiESSETH:
That.f(nl> and inrconside.ration. of-the sum of.$40'0":00. in
hand paid, the receipt of which is.hereb-y,-aeknowledg~t~that
the·parties ottheJ.s~;.part,·.do hei·eby. g.rant, . oo.g&in1 .sell·
[ 6] l ·and oonve;Y, .w.ltli •general~warrruity. to the .party of·.the. sec- . ondrpartj .alLtheir intf:'r.est .in and to a.certain traot ofJa:nd::
for:mel'ly. of the estate of William.'\V.ilkerson.and;wJrl.ch was
assigried as d0Wf:l'. to. hi'il wfdow· Ma1·:y M. Wilk.&r-ao.n .oon·
taining 197 acres, 3 ro{ld.~ .and 20. p<:rches situate in the.
count~. of Bedford.on.tllP south~side.of. Stoney.. Gnesk at',the
foot..of. Flat.. Top Mountain,. being, tlte same tr.aot. of ·land ..al-i-·
lotted to 3aid Mary }f. Wilk.el·san,, beginning. at a, small
spruee. pine and .mahogany -on the. north. side. ofr sa;icL.cl'eek
and corner to•lot No. 8-ln.therlivl:sion.ol.P.arson.,Vilker.son~s.
landj.t•epr.esen.ted. on-plat .at figure. one; then{':& from~ one. to,
tl\'fo.iand up.said.. creek.8<lld.a.·branoh"N'70 1~2. W 35. poles: S ..
68 1~-2 .w;. 54-noles, N 83 "'V ·40. poles .to a.hickor.y. mar.:kett.on:
thaside:Of...the inoontain. !lt .NQ•. 5,. .the-nce. along;on tile=dlvicf
21
i:b.~;ridge S 3111-2:W•9D;pales to:a hltckocy>8<30;1f4;:poles to
a che'!tnut on the side of the mountajn S 81 E 162 po:n,gd:b a
h:iekm·y'hear &lfoUo'\'\r, t.nence along the line of lot No. 8 N
19111;;.t-Ji.,f:OO poles to thf> beginning. To have and to hold
to her, the party of the ~econd part, her heit•s or assigns fore¥er. witlk~ll&'al. wa:Prauty.. Witne$S. the. fQllo:wing signatw·-B;-and.,seals tlie. day:.uHd.year. abov('.,·Writteu; ·
(Seal)
w·. C.. \VILKJ~RSON,
(Seal)
·MA-RY A.-WILKERSON,
(Seal)
OABADOCIA, WIIJKERSON
.Bc:r$Unally appeared. hefore US1"justices iiuuul for. Bed·
ford County, State of Virginia, Ulysses D. \Vilkerson,antl
wife Martha Ann Wilkerson the bargainor:,; to the forego[7n ~ i~: d<M.-d, w-ith whioh ·we· are personally: acquailited. and
Wlfo7acknowlefigs thnb ....... executeti:the:same··for the
pm-p0s@~ t1teraitt · otmtainedr and. 1\'Iartlm Ann. Wilkel·son,
wife of said Ulysses v\tilkerson having appeared: before us
privatelyand apart from.ller husband acknowledged the.execution of't1ie said deed tfl have_beetl done by them fr~eely, .voluntarily and under~tandingly without comp·wiion or constl'aim·~ from~ he1~· s9iid:r im1-1band.ta:Iid: f(n' the purpose tlterein
·~sed:
'Wifu~s
·......
~m<.i:·uffieiwLseals
26th:day'ofifiep::1887.'.
;JENNINGS, J: P.
(SeaH
\<V~ h .BUSH; .J. P.
\V.
H~
State of r:renn.-Obion County:
Per~onnlly
appeared' hefm'e me, J; [t 'Villinms, a nota:ry
and fur.OJ,ii:m·Couilty; stat.(~ aforesaid; duly·eleet"
ed; ~ commissioned~ a11d: qnalif(~dr W1. (). W.;.:!J\.er.son. and, -w;ife
Mltl'}"' A\ Wdlkers~n- the hargainors to. the turegoing. ami,.
hereur:rt.o1attac1Wd deed. with whom· I· am. perso-nally acquainttrl, and.. who aclruowledges ·that . . . . . . e.xecutedT the
same for the purpose thflr-ein containedr
A-nd, Mar-:r• A: WiU"flrson,
..
:wJ.fe · of- th{'· said. w. G,. Wil·kemenmming, ~roo. befm·.e me··p.r•ivately apart .from -her.
· hmma:uil atnd- ae:&nowledg'ed1 the·execution of the· said~ deed,
tolh&\'-C"·be(m,doue hy· hor freel~"l·voluntarily··'and.understaml·
ing;lw; 'vitih.t'l:nt, oomrmhdon. m~ constraint from her. said Imsba;n.Q,and~fm~tha,Dlitl'•P®OO-' tl:mrein, eKpP.essedt .
puhli<~··in
'
22
·witness my hand nncl official ~eal, this 9 clay of Oct.
1886.
J. R. ··w1r.LIA1VIS, (Seal)
Notary Public.
[8]
At Beclforcl. county court, October 24th, 1887, this deed
from William C Wilkerson and wife and otbers to Margaret M. TVilken~on, conveying interest in real estate, was
· produced in Court, •,ertified and orcl<>red to be recorded.
Teste: RO. S. QU.A.RI;ES, 0. B. C.
Complainants direct Your Honor's attention to the facts
following:
(1) It is represeted. in the caption to the foregoing deed
tliat the ghmtors therein HI'C \Villiam c. vVilkerson and 1\fary;
his 'vife, 0apad.ocia vVi11nTs<•n and Uly~ses D. Wilkerson and
l\fartha A.. his wife;
/
(2) 'J'hat neither lTlys~es D. vVilk·~rson or Martha A., hiR
wife, hns -;igned the 1or·egoiug· deed;
(3) Tlial: notwithstanding the fact that neither of these
last named parties sign<:d the deed there is a certificate appended t1ierE.>to by two justices of the peace whereby it is certified
that earh of the parties acknowledged that they have executed
said deed, and that the wife of Ulysses D. Wilkerson was examined privately and apart from her husb:md, etc., a'-1 required hy
law at that time;
(4). 'rhat Capadocia \'tilkerson signed and sealed said
deed; but ·rl.oes not appear to have acknowledged the smne.
Complaim.nts .. are a:ivi~<>d therefore ~md charge that said
deed is ti~ta vnlid cmivey1mce. hut is in fact a nullity, as to Uly~­
ses D. WJJkerson and 1\fnrth~ A.. vVilkerson, and that it is not n
valid d(.ed of r:onveyanc•e as tr) the said Capadoda vVilkerson
who has never aclmcwledged the same.
Complainant!'; are infor,_iled that the o'tiginal deed afores!lid
has never been withdrawn from the clerk'~ office ai1d that an lnsnection of tl1e same will bear out~tlie correctness of the allegations concerning the "irr2g'Uhrities as abm·e set forth, that is t()
sav, that fl1e saiti irregnlaritiP.s are -not errors of the Clerk h1
transcribing the ol'igiilftl derd, bnt a:re er·rors in the original
28
deeu itself.
The said Margaret Nl. 'Wilkerson departed this life in
or about the year 1900, r,fter whic:r. her husband conveyed
his interest in said land to the surviving s_9ns and heirs at law
of said Margaret M. vVilker~1in, who die(! intestate, to-wit, William H. Wilkinson and Thomas J. itVilkinson. It will be note.d
that the n:unes of these parties, or i'ather the family name,_ hitherto appears as W"ill\:erson, lmt in the last named deed the name
is spelled 'Nilkinson. A summary of this deed follows:
[9]
"VVilliam 0. 'iVilkinson, .Jr. (Widower)
'ro
'iVilliam H vVilkinRon
and ThomaR J. vVilldnson.
.
.
Dated NoY. 18, 1904. Admitted to rerord Nov. 18,
corded D. R. 87, page. 183~
1904~
·Re·
'l'hi:;; deed recites:
'fhat the party of the first part is possessed of certain real
estate hereinafter described, and that owing to his advanced age,
he is desirous of heing relieved as far as possible from responsibility and care; that the parties of the sef'ond part, who ar·e the
sons of the part.y of the first part, have ag·reed to look after and
take care of the :first party for the remainder of his life.
In consideration \dtei eof and of $5.00 cash in hand paid,
and receipt-acknowledged, the deed conveys among other parcels
of land the:: following:
"All his right, title and interest jn and to a certain par·
eel of land by deed datPd September 28, 1886, from ,V. C. ·
vVilkerson and 1\'Iary, llis wife, CapHdocia .vVilkerson; wife
of saicl vVilliam 0. Wilkerson, .Jr., the grantor l1erein, containing 197 acres, 3 roods and 20 perches, situate in the said
county on the south side of Stoney Ceeek, at the foot of Flat
Top ~fountain; being thE' same land allotted to :M:ngdaline
.·
vVilkerson as dower."
1'his deed contains certain conditio:os upon which the conveyance is made, namely tliat the granteE's shall provide a comfortable home for the grantor for the remainder Of hiR life, and
furnish him with food, ckthing and other necessaries of comfortable living, tl1at the g1·antor shall have his room as then located, that .;:nne shall be ceiled aP.d put in repnir and be
_[10] entirely under the grantor's control, an(i if said room be
destroyed by fire, another habitation shall be provided and
that if the granteeA are unable or umvillingtro;~m:nw•wut these
he restored;t.o rhis' former; rights.
rComplainantR woulJ:l.point·onLthabit a;p;peaM;'from the re·
~eital.s;of·tJ:Jis dee.i:t that the grantees the1-ein inherited~thel'b'raet;of
.!1-an<L 'described. in 1::\fl.id deed' from th€ir mother, :M:al;gar:et::M. ·"Vil~keM@>.ll, :and ·that ;t·he foregoing. deed ill(\mely 'purport~ to .. co;nv.ey
•.the grantor·'·s courtesy right/:-l.in said property.
.w. H. ,WHkersoiL sJillsequently, by deed· beaning. 'date.rthe ....
day of ........ jn the year ...... anrt of reeord in the :cl:e~klst0ffice of Bedford County in Deed Book ... , page ... , conveyed his
interest in the said land to·his·hrother, T. ~T. ·v\HI:kerson,:.wh-o-·tleparted this life in the year 1925, and by his will, admitted'~to probate in thf Oircuit-Court.Cletlk;s·,orfice·of•Bedford-oou. nuy,~'<ln
January 4, 1926, a1~d of recordin ·will Book 38, page 79, devised
.-and.11equeathed-·all of ·hisjprBpert,y, real aRd·personal,·t'O~Gilbert
Wilkerson. who was also made exec~tor of. -saicl-will·withaut·security, and who is now· in pol'lsPssion of the aforesaid tract of
land, claiming fee simple title thereto.
;Compjainants woufcl furtht~r -show· that, as .to,the ·tract of
Janddu!Campbeil-county, Yirgiliia, which tlte-said'·William"Wil~k-e-rsou (Usp@sed. of:})y.·hisla~·t ·will-hereinbefore set ;f·orth,·'li-Jlls
:tract descriood. as containing ·595 acres·•was·p-artitiaue'd ·.among
·those who assumed to be the. ownet•s -thereof 'by a certairi·'tleed
dat~d January 2G, 1884, admitted to r-ecord ;January .29, '1:'886, 'in
.the Cler.k;'s• Office of. Campbrll' Coun.ty, bet,ween '1V11liam•C. Wil\kerson, Capadoe.ia Wilkerson, .\Villiam 0. Wilkerson and ··Margaret, hls ·wife, mul Ulysses D. \Vilkersor; •William ··w. '"Wilker•son and:Margat'et~-his >vife, being allotted 228 ncres,·3 roods, and
15. poles of said •land, Ulyssb.'3 ·n. ·wilk-er-son'19~ acres-and· 5 poles
1and :\Villiam ~c .. :wilkerson and Capadocia- 'Wilkerson jorntly 168
. acre~;;and·6·poles, -Which several•pareels are described by courses
· . and distanaes and plat, in-SiJid partition deeU, a certified copy
:whfreof is :&led-herewith marked-exb.-ihitT~. and pra.;yed to
;['1~1 :be read as -a part-of this bill.
By deed dated the 5th day of Jn:ne, h'-!8(), and of:record
·:in~the:CJerkls Office·of•Campheii county on ·Dt>ed •Book 47, page
::272 Ulysses :D. \VilkePson, 1.(1-scribed as Ulys.<;Jes D. \Vilkinson,
';;{:llld MartLtt A .. hi~ wif~;, co1nre;red to Duvid .Karn and {fohn
i1ili<'kson, partnei!S trading a:": :Karn ,& Hiekson, the trae't of 198
.:acres-and 5 poles allotted to the said Ul~sses D. vVHkerson'by
\Saidrpartition deed. A eopy ofthe said deed to:Karn and.Hick:s<m,·ma:tked e,·hibitC, i-t~ filea:herewith and··pi-ayed·to'-be rea{bas
;provisionsttb.e..:g~antor,shall
·>.a':pRr.t:of'this bill.
.
\
·,WilJiam.c. :.wilke:rson . and Mary;::hilll-·wifephy "•:deed c~dat~d
clerk's office of .Ca~p­
copy ··whereof is':~:ftlthl
· here-withr:;ma.rk!ed·euibit:•n. nnduprayed tO'.be read,as at'~·part of
tlrls.=bill;: cooveyed·: :.toi. C~pa•locia ·Wilkerson: their,·onf!. ha:-lfHun.illi·
v.ided·i:Mmvst :in-the tract of '168 aeres;-.1 rood•.arid-6·poles~derivtkl
)ly. .them ·•undep;. said-pal'titio!! ~deed ; ·and· byideed idatedi December
30, 1889, of record in said Campbell county ·clerk's -;;office; m
th~
btJ:ltooun,t~m.DeettBook·G7;;-page:210;-·a
Septemben;28,·.1886;:.and of recoi:ddn
.DeooriBook67i'page:211 1 ac~•py·.whereofisduoo,hereWith;•marked
·of
exhibit E: and prayed'.·to' be read: as•aupart
~his billl;' J:: IEV C.
Musgr&ve: and- Capadocia . Musgrove· (formerly Capadocia Wilkerson)<lonv~yed to C. V;<l\.iusgrove the said.trar.t:of; 168 acres1: 1
n>Od .and 6 poles.
· ··William o.,Wilkerson·and3Margaret'l\'I., his wife; conveyed
to said David J:{arn·ttnd·tTohn Hickson -the tract of 228•acres, ::3
roods• and 15: poles, ·allotted to them by tlle partition :deed •aforesaid,.,hy~deed dated Septemher 28, 1886; of record;in said' Campbell county clerk's office, in1 Deed: Book 4"7, ·page ;388, a certified
. copy whereof is :filed .herewith, marked exhibit F, -and ,prayed to
be readc.as· a part of this bill.
The· said David Karn: having conveyed by :deed bear..ing :date
the 24thdflY ofJanuil,ry, h1 ti1e year 1890, and recordjn Campb~ll county Clerk's. Office, in' Deed Book Gl,, page 233, unto JohnHickson all of bis t•igbt, ·tiUe and intere~t .in 'the -lands •so acquiN~d hyRarn:;& Hieksm1, .the said Johnliiclu:;on, by·deedidated.._
· 0ctbber~30, 1894, conveyed· to 'William·v.-·wnson, Trustee, the
·
·tract containing 19EL~cres a:rid 5 poles;.derived from Ulys[12] ses D.' '\>Vilker~on, an:d a tract of 228 acres, 3 roods arid 15
poles derived fl'om .William 0. Wilkerson and ·wife, in
tr.tlst to secure tlie irideM.edness mentionf-d in said deed of t:rust.
and default hnving heen lliarlC'; the said land was sold arid. pur•
chased by one;
lL Buck, 'md conveyauce made to him by·deed
from William V. Wilson, Jr., Trustee, dated :February 13, 1896,
and,oi? recor.d :in the Clerk's Office of Campbell county,• in.-Deed
Book .. ,•' page ... ,.. a. copy ·Of which· trustee's deed :is :f:Hedt here·
with, mar1;ed exhibit G, an~lpt>ayed tO. b1n,•ead as a part hereof.
H. 1\<I. Buek and wife cmweyed the tract of 225 . acres, 3
roods·:arid l5.poles tO: Francis F;:Faunt1eroy by'deed'da-ted March
2$, 1911, nf recorddn Oan;tJ•h~1Fcounty cler.k~s ;.office· in Deed
:Book90,; 'J.lage:. 143.
·
Arid :you._r. co~plainaJ:tts :ue.advised that the.said. Francis F.
Fauntleroy is the pre-sent owner of said last 'nainedi t.r,act.
The '3aid H. M. Buck cc111Veyed the other · tract oontaining
of
H:
26
l9S acres and 5 poles. to one, \V. A. Andi.·ews, by deed dated December 1, 1919, of record in the CamphE>ll County Clerk's office
in Deed Book 117, page MW, and-the said'"· A. Andrews conveyey the last name(l. tract to .r. Dearing Fauntleroy by deed dated
1\'Ianh 1.5, J 920, of recor.t in Haid CampbeH connt~· c1erk 1s office
in Deed l~ook 118, page 120. Complainants are advised that the
said .r. Dearing Fauntle1:oy j~ th,e present owner of the said tract
of 198 :teres and 5 poleF'.
,
Certified copies of the two last named deeds will be filled as
exhibits with th.is bill if deemed necessary.
CGmplainants have 11ot yet been able to ascertain what
[13] disposition was made of the personal property of the said
"Villiam \Vilkerson. They •viii a~k that this be investi~
gated by reference to a comm1ssioner in chancery to take the
necessary accounts or by some other appropriate means.
Coming now to the consli'UCtion of the aforesaid will of "\~'11liam Wilkerson, complainallts are advised that the fol1owing ··is
the true meaning and intent thereof: ·
1. That there should te an equal division, per stirpes and
il.ot per capita, of the estate passing under said will. This construction follows from the language of the testator :
"And then for the residue of all my property to be
equally divided among my ehildren. and their heirs, viz.1\'Iargaret 1\'I. "Vilkerson (and at her rliscease, the same to be
<:livided among her children)~ tf'tysse~d D. 'Vilkersouand an
equal portion to my ..... William C. Wilkerson and his sister Capadosia 'Vil kel'SOI'.. (' hildren of my son Parson 'Wilker·
· son, deed."
By thi~ language it is evident that the testator intended
that, originall.r, his estate sl10uld be divided into three parts, one
· r>art going" to each of his children,. the issne of any d('ceased child
to take thr pa~'ent'R part.
·
2. · I~ut cornplain;.wts Hl'e further nr1vised that the estates
created by sai•l will were snhject to he diYested by the death of
an~r ehi.ld or gr·:mdehild •vitlwHt issue.
·
#
This is indicated hy the fUJ•t.her provision of said will:
of
. "And should any
the above named children or grandchildren,, ::lie without issue, tlien it is my will that their port.ion shall revert haek and be equall~' divided among ' the
other legatees.''
27
Complainants are adviserl that it wa~ the intent of said testator tl1at any estatP which sl10uld revett for failure of issue
should be divided mnonp; those to whom it should revert, per
stirpes, and not per eapita.
App]J-jng the constl'~tction contended for to the facts, com})lainants are advised that b,v the terms of said will Margaret M.
'Vilkerson took a life estate, with remainder in fee simple to her
children, 'mch remainder being subject, however, to be divested
upon the death of said children without issue; that Ulysses D.
vVilkerson took a fee simple estate (there being no limita[i4] tio11 to. his children it'.. said will as in the cases of the testator's two otl1er efiilc1r·en), such rc~e. simpleto be divested
should said Ulysses die without issue; and that W. C. Wilkerson
and Capadocia vVilkt.rson, the testator's gmndchildren, being the
children ol' his deceased son, Parson vVilkerson, took a vested fee
simple estate, but subjeci:, as in the other rases, to be divested by
death witlwut issue.
·Complainants are further advised and charge that Ulysses
D. vVilkerson departed this liff· in or about the year ... survived
hy llis thr('e children, the complainants, and that, therefore, as
he did not die without issue, llis fee simple estate was not divested, but that, dying intestate, eomplainants inherited in fee silnple as co·p~u·cener·s all of the estate, real and personal, of which
said Ulysses D. "\V1lkerson died seized oi· possessed, subject only
to the rights of his widow, who died many years ago.
Complainants ai:e further informed and charge that :w. C.
Wilkerson ancl Capadoch, vVilkerson, nm,r Capadocia lVIusgrove,
are yet lh•h1g and that they are vested "\Yith fee s·imple title to
such of th~ estate of said \Yllliam vVilkr:rson as passed to them
uncler his wilL and wh.ieh rPmains undisposed of ·bv them, suh·
jeet, however, to be <liVf:i'ted aR to either the sa:ld vY. C. or Capadocia unon death without issue.
Complainnnts are furtltPl' informed and charge that both
:Afargaret )<!, ·wnkerson and her husbaml ,;v, 0. Wilkerson, Jr.•
hnve ilenar·ted tlliN }lfe. nnd tlwt all of their f'.hildren, to-wit, vV.
H. Wi.lke1·son, Fletcher }Vilkerson, 'l' .•J. vVilkerson and Kizzie
.WllkerRon. haYe died without fl"sue, and that, therefoi•e, all of the
estate passing to said lVIargaret ~I. vVilkerson or her childr~n unrler Fmid will. no matter whether the same has been conveyed off
by them or· by any of them, or not, has reverted hack to the estate
under the f.XPress Dl'C'Visiom; of said will, nlr~ady quoted, that:· ·
"Should any of the ahoye uamrd children, or grand-
.
childlien;·,die,withouc 'issuei then. it is myrwill that -tllem,por·
tii<m shaW revert back! and· be-.equally div.idedtamongrthe,;othl
er legatees/'. '
A'!ld tha.t, therefo:re, the one-thivd:.shue ofMa»gf):net.'~
[15} 'Vi!kersoruand he1• cl,Hrlrenjn all of- the e_state :of said:Wil·
liam<Wllkerson, real' and. ·personal, has reverted~: to:; tke
said·.~testator:'s •estate, and: :now·. passes,.-on~half "to:;Willi.Bnu 0: ·
Wilkerson,·and• :capaddcia·. "\Vilkerson. jointly-,and·.::equalJ.yr:.and:
on~half to your complainants -they .being the-children· of ·:UI~
n:: Wllkerso.n• '· ·
Compla:inants :-cl\ar.ge :that 1the precise.-real .estatel'which:::has.:
thU.s ·reverted~ is' alll ·follows : · ·
The ~ntire fee "Simple :interest ·in. thettract ·oV228'1tcres,-:~.a ·.
roods-anrt·15 polr!s;: lying·in Cttmpbelleounty on·t.he-wat-e1•s: of
tTohilson~s Creek, adjoining tb.e. ll:r.nds of-..:Oharl~ Anthony ~:and·
others,..:aad.::bt>ingd;he same·Jtind"vhich was;originally:coii'Ytey~,
by deed of September 28, 1..8~6, from _'\Villiam·O.F'Wilkersonmud
1\fttrgaret,.;y;,:· Wilkerson tri 'K:a rn~ and. Hi~kson~ ·as •has -been•: fully .
set'forih ~Jereinbefo're; and.- thcHiame land;• title :to·:whiohiis'•now. ·
vesteailin>Fii'ancis F. Fauntleroy ,by ·deed: from ell;': M~t Bfiok1and
wifer·dat~~~l :Marchr28, 1911, 1IID.-einbefore .fully.· set···fonth·; ~and
tht>.re~has f1ir.ther ,t·everted :to said est..at<e under, the ;terms :of ·said
wil_iVby-.r·r>;umn of the failure of-issue, -the one-thiro:undivided1m·
terest ot. !tflirg~.et M. Wilk<m~em in;the·tpact. of land lying 'at- tht! ·.·
foot of Flat :Top l\fountain in: Bedford' C(!mnty~ containing·> 19T .
acres· ai.uf ~~-·fraction;. said; Jt-r.aet be-iiig: more .:-fully' descril.ied by
deed:her~iuhefdrt> :set forth.ht~aring date the .-28th ·day_ of Septem:·
ber,. ·1886; from William 0: ''V.ilkerson·= -and. ··otll'ei·s .to= Mlivgatoei
lf,:· Wilkersom1
·
CbmplainantS ·would( 1.show, howev-er,-.that. the one-tllird..-_iin;;
terest in ·said' land. which 'hits reve?ted~by··.reason: of. the.tfaUtim•of
issue is nr1t the hlterest acqniredr.by .the .:saidr·Margaret·~M:J "til~:
kerson·.bythel~st nanied d(.-ed•'(for therinterest,a.cquired·by said
deed;Wa;s -the one-third. inWrest :of W~ o~ 'Willtenonra.n.d·iOaprt..
ddcia· Wi!'lserson)., but the £interest: whiCh passed,to(the !said· Margaret :~t,• W'ilkerson in her own ~right as .one ;of the dev,isees·:under
the :wm' i>f, her ··father,• William, Wilkerson; and- ,this .lam- named.·:
in.terest 'hils become divested ·bjdhe failiine •oH.SS\leiand,:has.;., re-,
vertM:/to.-the •.estate..
Oomp.Jainants ·may .appropriately '· again point~ out). ·that
while ·Uly~ses· D. Wilkerson .and•his wife; ·Martha .&; were -named
as. pal\tie8 to :the ;abQv~·-~EmtiQn,~ cJeeu t t9 ;~'ttrgaret ).{.
29
[:.t6] ::
Wilkerson~/ and· while
they are.· certified by tw"O justices of.
the ·p~ce ·to have executed .said deed;. as a matter. of 'fact,
th.eir :;names are ·not· ·sig11ed to said· deed, nei:th~r to the recorded
copy nor to the original, w·hich; as has· already: been· set forth
herein; is Rtili on ;file in :IJlP Clerk's .Office· of Bedford county.
COmplain~nts, therefore, ,t.harg~ that,.the one-thircl.·interest derived• by . lJlj$ses D. '\Vilkerson in the·197 acre tract in Bedford
county hns ·been inherited by ,,~mnplainants who lwld same in fee
simple; and that they have also become vested with title t{)i·one·
half oftht·dnterest·of· Marg~tret 1\:L Wilkerson iu this land)• that
is to·say;\the ;one•half .of the •original one-third undivided interest
of. :Mar.g~ret··J.I•.Wilker·son in this land, the· other one-halt of
Margaret· M.'s :original .On€ third- ,interest having passed to· :wnliamO 'Willcerson·and Capadocia J.\IIusgrove.
Thus complainants -are vested in their own right 'vith one·
thir(kundi\1ided interest in t.h.e ·Bedford· tract, ancl'one•sixth in·tet-est.acqqil·e•Lfrom-Mugarei .}[. W"ilkerson,makiug their pres·
· flnt fee :simple interest in· tb(:! Bedford· tract a jQint ·and undivided-·itJne-half: 'interest, And iu. the: Campbell eounty tract of 228
acre8'r3 ;r.•oods'and 15 poles,' no'v owned 'by ·Francis F; l!..,auntl-erey;. ,ct>mpl::tinants .have· a on~half undivided interest, and the
~aid:::W~ .C, Wilkerson, alitd Oapadocia liusgr.eve tlte other onehalf!:!undhtided ihterest, the entire interest:in sai<l· tract havin.g
been the j.)Ortion of the estate oft'\V.iUiam \Vilket·son in Camp·
hellcCilunty ~(595.ncres-) t'artitionoo to the said<Uargaret J.I. \Vilkergcndu tlie division bf his lauds 'iilt Campbell com1ty, the same
having~·e'f.:rted to1the e~·tate h~· '-reaso.n;of. the failm~ ·of ·issue in
the said Mar~aret li. WfikE.:rson line of descent.
001nnlalnants·:will tf'urtltE'!r ·-point -out that, a~:~ · has· alt'eady
been·.f1ill;l .set •'fot•th,. Gilbert 'Wilkel'lliOll'~.s devisee iOf,/1', J,,, Wnkerson·cl:lims Ht.le:to<the·entire tract· of ;197 acres in Bedfot•d
ceuncy; bnt:that Jtls.daim cannot be• supported· because:, of the
faot-lf;liat•:lTl~ssesD(·:wHkl11"s<m-llas ·neve1• dispmred·. of his onethir.djn~"'P.st~·:the ·:fact that l-Iarga11et M:. •Wilkerson's :interest revel"i:ed:to tlie :estate for •failure of. issue, with, the . result
[17J l .. thnt the ·on h' ··iutere~t. w:hich ·:has. nas'sed; ·unimpaired-.· by
the·:varrotts• deed§>.''ll.nd;'\\r.ills,.. if iudeed,this interest luts·, iR
the cinter~.bof: ~ws- U Wilkerson· and· :Capadoc-ia · Musgr~ve,• .·and
even at be~t this interest is f.illhject yet to cbe dive-sted:should these
pa-r.tietf'di~ without issue.~
Olqin·gE> ;9'of.thbi bill (,f ;t>omplaintdt is alleged, that· Wl ·H.
Wilkerson, by dH~«brlltted mtd' :re-corded ~all. ·:aforesaid,· c'm~eyOO,
·3t
his interest in the tract of 197 acres, 3 roods and 20 perches, sit•uate in Bedford ccunt.y, to lti.1~ brother, T. J. Wilkerson; ::ind that
the lattet·, by ·will admitted to record in the Clerk's Office uf
Bedford ·:;1Unt~·, ,January 4, 192<;, devise(~ and bequeathed all {If
his pi•oil':'tty to the said Gilbert 'Wilkerson.
Complainantn are advi~<>d and charge that the said '1'. ,J.
Wilkerson was not mentally competent to make file deed in
questioii, nnd that in fact h(). at the time of his death, was au ·in·
mate of the Stat<~ Iw~ane A~ylum at Staunton, Virginia. ComJ>lainalli8.also are adYised and .charge that the said 'l'. J. 'YVi1k~r·
son was, at thE'tir•le of his mnking of the said will and so con~'iu­
ued up to the date~ of his df·nth. mentally incompetent to make <t
'viii, and that in addition he. was induced to do so by undue influence exei;t<>d upon him hy the beneficiar·y of said wi11, nameiy
Gilbert '~'Hkerson, and thnt said will is, tllerefoi•e, uu1l, void,
and of no tffect.
·
Complainants further allel!e that the hinds hereil}before Mscribed and situate both 1n Hedfor(l county and in Campbt~ll
county ar~ not susceptible of <·onvenient partition in kind among
the pai•ti{~s entitled thereto, that rio party will aecept au a llot:•
ment of the whole of the subject and pay to the others entitle1
such sum as may be justly due them, Jior may there be an altot~
ment of p&i't of 8nid Im1d and a ~aie of the residue.· Gomplain·ants are advised and charge that a sale of said 1an,ds will f,e
necessary for partition diereof:
.
lu tender eonsideration whereof and fora1:nimclt as vone
[18] complainants are without remedy: save in a court . of
equity 'vhere srich matters of this. sort are properly eognizabie, they pray as follows:
That Gilbert 'Wilkerson, Capadocia ~Iu~,o;grove, Xanny K.
l\bxey, ancl Lutha A. Maxey, her husband, Sarah C. }Iusgrove
and Clid.!S.topher C. 1\'Iusg·rove, lier husband, Annie E. Carter,
and John B. Carter, her husband, Olin B. 1\'Iusgr<nie, unmarried,
Sybel· Beiu1ett 'Musgrove, an infant under the age of twenty-one
years; W. ·C. 'Wilkerson (non-resident) ; W. H. Wilkerson, Slun
C. Wilkerson, N. B. 'Wilkerson, li\·ancis 1!"'. ~"auntleroy (Altavista, Va.), J. Deering F~untleroy (Altavista, Va.), and Uaude
Johnson he JJ;ade parties to this bill and 'properly sm!!mQned to
.answer the same, hut not under oath, 'which is expressly waived
as to each of said defendants.
_
'l'hat <1 discreet and competent attorney at law may he appointed guardian .ad litem for the infant defendant. and required
to answer fol' said infant as provided by law;
31
That the will of 'Vlrllam vViikerson may be construed by
this honol':.l ble court and the true meaning and intent, thereof ascertained :md adj1idicated in line 'dth the construction intended
for by the romplainants as herein set forth;
That ~-he deed from Yfilfiam {J. Wilkerson and wife and
others, datf'd F\eptem her 28, 1886, to ~Iargaret lvi. Wilkerson, as
ltereinhefore set forth, may likewise he construed by the court
and the leg:-~1 effect thereof and the title passing tJ1ereunder ascertained und adJudieated;
-That the right, title a!ld interest of each of the complaiu·
ants and of. the o1her pm-ties hereto in and to the real _and personal esta1'co passing under thr aforesaid will of 'Villiam "Wilkerson, ,or imder the deed aforesaid, or in any other way, may b"-' -i.ecreed to the several parties entitled as herein set fort.h ;
That all proper deereeH may be entered, referenees had an/J.
accounts taken;
That •he aforEsaid will ofT. J. 'Vilkerson may he tleclared
nun· and ,·oid, and the parties entitled to the real and personal
estalt' pas~ing under said will invested with their respee·
[19] tive rigllt.s and titles as heirs at law of said T .•T. Wilke~~
son:
And th~t complainnnts may have nil sueh other, furthCl' nnd
g:E·neral relief as ihey may be entitled to receive under the facts
stated, or us to equity shall ~rem meet. And complainants wiil
<>Y,;r pray~ etc.
And at another day, to-wit:
[u Bedford Oircui~; Court, }fay 19th, 1927.
c)n motion of Francis F. Fauntleroy and J. D. Fanritleroy, leave is given them to file their joint and separate demurt·c~r
to the bill filed in tnis cause, which is accordingljr done, ancliJn
like motion of Gilbert ·wukc~rson, leave is g1.•anted him to file ltis
separate demurrer, whereupon he filed the same.
·
[20]
DE~IURRER
OF FRANCIS F. FAUNTI.EROY, &c ..
· The joint and ·separ~te rlemurrer of Francis F. Fauntleroy
and J. D. Fauntleroy to a bill of chancery exhibited against
them and others m the Circuit Court of Bedford County by I. C.
"Wilkersm::. and otlters.
·· · ·
These ;]efencl:mts come :md·demur to said bill and say that
the same if,! not sufficient in Jaw and for grounds of demurrer
32
state that 8aid bill on its far() shows .
. 1. Tn(l.plainttffs. are. llOt tenants -in cpmmond.oin:t.,tenatntlil'
or:cQ,pareeners so cannot b·dng snit fol'jpartition..' I.f theY,,hacl
any clairr, i1 would have to b~ asserted atlaw:or ejectment. li·Par·
ilition ~an never he substit11ted for · ejectment. ' Goodman v.
Goodman, 124 Va 579.
··2. · The :plaintiffs· have no interest ·unde~ 'the will. ··:'P·he :1~~­
simple ·wa~ 'devis&r.· to the te~tat.or's children . and~ gra:ridbh\iltlri;;n,
as they wo•1ld have inh~?.rit£:d aR his heirs ··mider ·the .· stf1.trtte
Then t.he tel'ltator de'dsed crosR executory' limitations 'io' tlwm
on the contingency that any of them should ,·,ue without· i~ue.
Being the·tPSt.3tor's hehs at law; devisees:of the fee simp.le est:tte
arid execrttcwy ·limitations, T,hey partitioned tb.e ' land : among
themselve:-J 'in fee simple ab'l;ohite, and 'the chiidren ·Of ·r~·Jysses
have •nd interest whateYer i.n the ·Jan d.
3. .I[ Margaret's estate~ was reduced by: the: parentl1-esi~ to
a life estate·with the remainder of her children, then upon tbP.
birtl1: M her children the remainder became a. vested •·e(2l] 'mmtider- in fee and th~:y dying without issue, she. •i;D:het*i:t.od
their fee simple estatl'. No limitation once valid.as :r re·
mainder r·an ever tliere.lfter h1ke effect :'ls an executory:limim·
.
"1\.f''
. l p roperi.y, sec..t'Ions ..,O<)lj'
''31
t·lOll.
.1ulltor R..ea
...... , ~~
...
J
· 4. 'l!iysses ·die(l with issue; therefore his·a:lienees. toolNl fee
sl.mple abr.;olute ns the contingency never Jw.ppened.
5. 'l'here was no estate left in the de¥iso, .hence.no reversionary estate w::ts created lJy the will. Rewrsions are nlways
vested unless based on·subsequent contingeneies·arid ;,both .:utP
su~ject to.alienation in·Virginia ... If. there: were created by the
will a reversion, the same sentence gave it to his ;da~ghte;,: sC~n,
grandson :md granddauglltcl' mentioned in ·the -u·i:ll. · There ctan
b~ no reverter, .as testator declared he ·h-as dif;posed .of·his :w~hoie
estate and charged it with support of his wife; The testatords
presumed to have disposed of his entire estate by his will~ unt.-s~
it plainly appears to the contrary.
The diiJdren of Ulysses take nothing under the wm; the
t.estator did not die inte:state as to any part ·of .his.· est-Me, 'f!O:tbnt
h.is entire nstate having ,·ested i.n his childt•en a:nd their heirs· ~\rid
have been ~tJiened by them there· is no· e}~tn.te or intef'est.jn ·~the­
plaintiffs.
.33
[22]
DEMURRER OF GILBERT WILKERSON.
The c~fendant, Gilbert Wilkerson, demurs to the hill of the
said complainants and says that the same is not sufficient in
law, and fvr grounds of his said demurrer he alleges the following:·
(1) The bill is multifarious in that it seeks to combine and
does combine an issue of devisavit vel non with a partition suit.
(2) The plaintiiffs are neither co-parceners, tenants in
common, or joint tenants, and are therefore not entitled to partition.
'l'he bilf complains of a deed of partition between W.
0. 'Vilkerson, and others, dated September 28, 1886, because the
same was not propprly 3i_gned and acknowledged, when as a matter o~ fact prior to the Code of 1887 it was not necessary to have
a deed of partition but a parol partitio~ was valid. See 76 Va.
page 492, and 86 Va., page 642. This applies to the 197-acre
tract of land in Bedford county now owned by Gilbert Wilkerson.
(3)
( 4) 'J'he sui+, involves owners of lands in Campbell county
who have no interest in the Bedford county lands, and who therefore might hf' subjected to th<' payment of costs for litigation of
properties in which thC'y havf' no interest, and it also. involves
the owners of Bedford county properties with the owners
[23] of l:mds in Campbell county, who might be subjected to
similar costs.
(5) 'Ulysses D. Wilkerson would now be eAtopped from
claiming 11n~er the deed which he acknowledged, even though he
did not si2,11 same, and his heirs cannot cfaim , any better title
than he eouJd if h<~ wer(' living .
.Aud at f!nother day, to-wit:
[24]
In Bedford Circuit Court, July 16th, 1927.
On motion Francis F. Fauntleroy and J. D. Fauntle-
34
. roy leave is given them to .file their supplemental and amended
demurrer to their joint and separate demurrer heretofore filed
in this cause by leave of Court, wliic.h is accordingly done.
[25]
SUl'rLEMf~N'fAL
AND ..:UIENDED DEMURRER.
The re~pondents, Francis F. Fauntleroy and J. D. Fauntleroy,
now come and :til<> their ~upplemental and amended demur:rer, ·to
the joint and separate demurrer by them :filed heretofore in this
cause wit.h leave of court, ro bill in chancery exhibited against
·them by L C. 'iVilkersou] and others.
1
•
These •)efendants for ,,dil.itional supplemental grounds of
demurrer 1:0 said hill say that the same is insufficient in law for
the followwg reasons, ~·)·wit-·
(1) That it 'lppeaJ·~:; hom the bill iE this cause and exhibits therewi,·h filed that the will of William ·Wilkerson has been
heretofore construed by this court in the cause of 'Wilkerson v.
Wilkerson, and also in the cause of 'Vilkerson, et al., v. Ross, et
al.; and
(2) That it appears from the hill and exhibits in this cause
that the said William "\iVilkei·~on died in the year· 1867 during
the pendell'·y of the suit Will•erson, and others, v. Ross, and
others befol'('menti.med. :m•l:
'l'hat •tt the time of his death said "'illiam 'Vilkerson was
not seized and possessed of the land in Campbell county, which
is a portion. of the land i.nvolwd in this suit, as will appear from
'the exhibits filed in this canse, referring to the records of this
court;
'I'hat the property in Campbell County was conveyed
by .Ired da~ed September 7, 188~, by Graham Claytor, a
[26] Commissioner appointed in the cause of Wilkerson v.
ROH!':. for the purpose, for and on behalf of the heirs of
,John ~.,owier, to the heirs of "William Wilkerson;
(3)
(4) That m;ne of the children· or grandchildren named in
the wiii of 'Villiam Will.:erson died without issue:
/
That the plaintiffs liave been guilty of laches in not sooner
asserting their alleged rights in said properties.
A11d now on this dn:v, to-wit:
[27]
In Bedford Circuit Court, September 3, 1927.
'I'his cause came on this day to be heard on the bill of
the complainants, together with the exli.fbits therewith filed; the
demurrer of Gilbert vViike1·son to 'said bill; the answer of said
Gilbert Wiikerson to said bill: the joint and separate demurrer
of Francis F. Fauntleroy and .T. D. Fauntleroy to said bill; the
supplemental and amended demurrer of the said Francis F.
},auntleroy and J. D. l!';mnth•!·oy to said bill; the plea of the
statute of limitations fiied on behalf of all of the defendants to
the said l.Hil; the :1nswer of thP infant defendant, Sybil Bennett
Musgrove. l.jy A . •T. Cautho1·n, her guardian ad litem, and. was
argued h,r ('Ounsel.
On consideratjon wh·~reof, and the Judge of this Court being
of the opinion that the grounds of the said several dPmmT~rs
i\led to tlw ~aid bill are well taken, and that the complainants\
have no interest whatever in the subjec.t matter of this snit, and
ihnt thf'I'f' is no erp1itv in sairl hill, doth l'mstain the said demnrrerR, doth tber·efore. adjndg~. or-der and. decree that the said bill
of the Raiit eomnJnimmt~ he .u~mis~ed. and doth further adjudge,
order and decree, that tl!e snirl defendants do recover of the said
f'Orrinlain:mh~ their rost~ hY tllem in this hehalf exnended in defenrlin!!· sni•l suit. The snicl nlaintiffR feeling !lggrieved hv this
rlerrPP. on 1,he mothn of the nhint1ffs, it is ordered that this def'.ree he sm~ilenrled for a nerioti of ten davs. nDon conrUtion that
thev or ~m-•te one for them r>nter into a hond before the elerl;:: of
thiA ~ourt rondit~oned aecording- to law in the penalty of $100.
Virginia,
rn Bedford Circuit Court Clerk's Office.
I. V. W. Nichols, clerk of the Circuit Court of Bedford
county, Virginia, do hC'reby certify that the foregoing is
a i::>tle t~>Jscript of the record in the cause in chancery
pending in thQ said Court under the style of Irene 0. Wilker>~on
and other~ against Gilbert Wilkerson and others, or so much
thereof aR was directed to lw eertified, and I further certify that
[~9]
36
the ·provisions of Section 6339 have been complied with by· .the
appellants.
Given under my hand this 14th day of February, 1927.
. V. W. NICHOLS, Clerk of the
Circuit Court of Bedford County, Virginia.
A Copy:
'l~este:
· J. :W:. KELLY,
Clerk.
INDEX
--0--
Petition .-. . . . . . . . . . . ..
Record . . . . . . . . . . . . . . . . .............................. .
Bill . . . . . . . . . ................... · · . · · · · · · · · · · · · · · · · · ·
Demurrer of Francis Fauntleroy ......................... .
Demurrer of Gilbert Wilkerson . . . . . . . . . . ................ .
D.ecree Sept. 3, 1927 .................................. .
Clerk's Certificate . . . . . . . . . . ........................... .
1
17
17
31
33
35
35
-· ""'
.
~
. .. . . ...
~.
·......;
•