
    Richmond.
    Mosby v. Paul’s Adm’r.
    January 7th, 1892.
    Wills - Construction—Words of limitation. -Testator Avilled that his son have certain real estate valued at 810,000, of which he is to pay 83,000 to testator’s “ daughter and her children in trust.” He then willed residue of his estate to be divided into five equal parts, and one part to each of his five children, giving one part to said “daughter and her children” ;
    Held :
    The daughter is entitled to the absolute fee-simple in the devises and legacies to her and her children, who are named merely to indicate the motive of the gift to her.
    Appeal from the decrees of circuit court of Augusta county, rendered June 2d, 1891, and August 14th, 1891, respectively, in the cause wherein John W. Paul, administrator Avith the Avill annexed of James M. Paul, deceased, Avas complainant, and said decedent’s legatees Avere defendants on a petition to rehear the said cause, filed by Victoria V. Mosby, the appellant.
    Opinion states the case.
    
      George M. Cochran, for appellant.
    
      William Patrick, for appellees.
   Fauntleroy, J.,

delivered the opinion of the court.

The record shows that James M. Paul, of Augusta county, Virginia, died in January, 1891, leaving a Avill, Avhich was duly probated in the county court of Augusta county at the January term, 1891. 2ÑTo executor being named in said will, John W. Paul, a son of the testator, was, by consent of all parties in interest, duly appointed by the said court as administrator of the said estate with the will annexed. The said John W. Paul, as administrator c. t. a., instituted this suit at the May term, 1891, in the circuit court of Augusta county, for the .administration of the said estate under the instructions of the said court and for the construction of his testator’s will.

The testator left, three sons, John ~W. Paul, James C. Paul, and Lamartine H. Paul; and two daughters, Mrs. Louisa S. McComb, and Victoria V. Mosby.

The questions presented arise on the proper construction of the devises and bequests to the said daughters of the testator, made in the first, third, and eighth clauses of the will, as follows : “ 1st. I bequeath to my daughter, Louisa S. McComb, and her children, the tract of land upon which I now reside, containing about one hundred and forty-seven acres, valued at six thousand dollars. I also give them the one-half interest in the plantation in Louisa county, Virginia, on which W. A. B. McComb and family now live.” The third clause reads: “I desire that my son, James C. Paul, have the homo place in Port Bend county, Texas, estimated at ten thousand dollars, three thousand dollars of which he is to pay to my daughter, Victoria V. Mosby, and her childrefi, in trust.” By the eighth clause the testator divides the residuum of his estate into-five equal parts, and gives one part to each of his children. In giving to his daughters he uses this language: “ Louisa S. McComb and her children, one share; Victoria V. Mosby and her children, one share.”

The court was invoked in the bill to construe these devises and legacies to the daughters and their children, and to determine wdrat is the estate of the mothers, and what the interest, if any, of their children under the will.

The court, by its decree of June 2d, 1891, reaffirmed by its vacation decree of August, 1891, upon the petition for a rehearing, construed the devises and legacies to give to each of the said daughters a life estate, with remainder to her children; and directed the pecuniary legacies to the said daughters to be paid to the general receiver of the court; and the said receiver to invest and manage the same, and pay over to the said daughters the yearly interest, thereby making the said daughters of the testator wards of chancery the balance of their lives. From these decrees the said Victoria V. Mosby has obtained this appeal; and she charges that the said decrees are erroneous in the construction given to the will of James M. Paul as to her rights thereunder.

The guardian ad litem of the infants and counsel for the children contends that the ancient common law rule as established in Wild's Case, 6 Coke R. 17, shall be applied to the language used by the testator, which would give these devises and legacies to the mother and the children jointly in each case.

The appellant, Mrs. Victoria V. Mosby, contends that the whole of these devises and legacies goes to the mother, the children being named simply “ to show the motive for the gift ”; that the words, “ and her children,”, annexed to the gift to the daughter, are words of limitation and not words of purchase; and that they were not intended by the testator, nor do they operate in law, to diminish the portion given to the daughter.

The court below, by its construction, ignores both of these contentions, and makes the mother a life-tenant, and “ her children. ” vested remainder-men in fee — a construction which is untenable and unprecedented; and all that is left for this court to do is to adopt the construction claimed by the appellant, or to apply the old rule in Wild’s Case, and say that the children have, by the will, present equal rights as tenants in common, or joint tenants, with their mother, to the exclusion of after-born children. At the date of her Avill Victoria V. Mosby AAras, and she yet is, a young married Avoman, and she may yet haA'e many more children. There are many cases decided by this court in which the language of these legacies has heen construed, and the question has heen presented in every conceivable form; yet, in every instance, the mother was held to take the whole estate given, and the language, “ and her children,” construed to merely indicate the motive of the testator in making the devise or bequest, and his intention that his bounty should go to the mother and her issue, or to the mother and the heirs of her body. And this is equally the rule or’rationale of the decisions where the estate given to the “ mother and her children.” is the absolute, and not merely a life-estate. Wallace v. Dold, 3 Leigh; Leake v. Benson, 29 Gratt.; Rhett v. Mason, 18 Gratt.; Bain v. Buff, 76 Va.; Siebel v. Rapp, 85 Va.; Merryman v. Merryman, 5 Munf.; Atkinson v. McCormick, 76 Va.; Mauzy v. Mauzy, 79 Va.; Smith v. Fox, 82 Va.; Waller v. Catlett, 83 Va.; East v. Garrett, 84 Va. In 3 Lomax Digest, 304, it is said : In some instances, however, notwithstanding the existence of children, the court seemed to have inclined to construe children as a word of limitation.”

In the third clause of the will the testator says: “I desire that my son, James 0. Paul, have the home-place in Port Bend county, Texas, estimated at $10,000, $3,000 of which he is to pay to my daughter, Yictoria Y. Mosby, and her children, in trust,” thereby indicating and directing that his daughter was the hand to receive the money which his son wTas directed to pay to the mother, and not to hold in trust, though, even had he heen interposed and constituted a trustee, it would not have altered the case. In Waller v. Catlett the testator, Thurston, gave to Catlett $1,000 in trust for the sale and separate use o Uannie Waller and her children ; and in that case it was held, Judge Lacy delivering the opinion of the court, the gift to the wife and her children was a gift to the wife of the entire estate, and that the reference to the children only indicated the motive for the gift. In Mauzy v. Mauzy, 79 Va., Lewis, P., says: £‘ The language (wife and children) merely indicated the motive for the conveyance to her.”

In East v. Garrett, 84 Va., Judge Richardson, delivering the opinion of the court, says: “ The language “ and her children,” is synonymous with “ her issue,” and not intended to indicate the donee or legatee, but the duration and limitation of the estate given.” So in Bain. v. Buff, 75 Va., this court held that the estate was given to the mother alone, and that the words “ for use of herself and children” did not give any estate to the children, but simply indicate the motive for the gift to the mother.

Under this unbroken line of decisions by this court we are of opinion to annul and reverse the decrees complained of as wholly erroneous in the construction given to the third and eighth clauses of the will of James M. Paul, and our judgment is that the appellant, Yictoria Y. Mosby, is entitled, under the will, to the absolute fee-simple estate in the devises and legacies to her and her children, who are named merely to indicate the motive of the gift to her.

The case will be remanded, with directions to the circuit court of Augusta county to proceed in accordance with this opinion.

Decree reversed.  