
    Rayfield & Wife v. Gaines & als.
    April Term, 1866,
    Richmond.
    1. Wills — Construction of — Case at Bar.— C by his will, lends to his wife E. for and during' her natural life, all his personal and real estate. At her death he gives the property to be equally divided between a child living, and one of which his wife was then enciente. After other bequests over on failure of issue of his children, he says: It is also my desire that my wife should never marry without entering into a marriage contract to secure the property for the benefit of her and my children. Held: The last clause does not affect the provision in favor of the wife, so as to reduce her interest upon her marriage.
    2. Same — Same.—Clear and unambiguous provisions in a will exfbressly made cannot be controlled by mere inference and argument from general and ambiguous provisions in other parts of the will.
    *This was a bill filed in the Circuit court of Gloucester county in 1859, by William 13. Gaines, in his own right, and as administrator of his deceased wife Ann B. Gaines, the daughter of Lewis B. Callis deceased, and Amanda Gaines, an infant child of William 13. Gaines and said Ann B., by her next friend, against William Rayfield and his wife Elizabeth, and another child of Lewis B. Callis, and others, to have an account of the estate, and of the administration of the defendants as executors of Lewis B. Callis, and a decree for one-third of the estate.
    Lewis B. Callis died in the latter part of the year 1840, having made a will, which was duly admitted to probate in the County court of Gloucester. So much of the will as was involved in the decision of this case is as follows: ! !I lend to my beloved wife Elizabeth, for and during her natural life, all my personal and real estate, both in Gloucester and Mathews counties. Out of the bonds that I may leave yet due, I wish her to pay all my just debts. If they are not sufficient, I wish her to sell such property as she pleases to make up the deficiency ; and should there be a surplus money, put it out on interest for the purpose of supporting my child or children, as the case may be, and schooling them. After my wife’s death, and the child she is now pregnant with should be living, I then wish the property in her possession to be equally divided between that child and my daughter Ann B. Callis. In the case of the death of my child or children, as the case may be, it or they leaving no lawful issue, it is then my request or wish ‘that my wife Elizabeth should have all my estate in fee simple. But in case my wife and my child or children all die, leaving no lawful issue, I then wish the estate to go to their nearest relations by blood and kindred. It being my intention to utterly deprive my blood relations from enjoying or possessing one cent of my estate and possessions, with this exception : *that in case my wife and children should all die without lawful issue, I then wish that fifteen hundred dollars should be equally divided among my sister’s children (Eliza Creighton) of Middlesex county. It is also my desire that my wife should never marry without entering into a marriage contract to secure the property for the benefit of her and my children or child, as the case may be.’ ”
    The testator appointed his wife Elizabeth sole executor to settle up his estate, without qualifying or giving any security for her administration. In May, 1841, Mrs. Callis qualified as executrix of the will of the testator; and in 1842 she married William Rayfield, having before her marriage conveyed all her property in trust, that Rayfield should .enjoy the profits during their joint lives; and reserving to her the power of disposing of it during the cover-ture, either by deed or will; and if she survived him, that it should be transferred and paid back to her. The plaintiffs, in their bill, charged that this deed was intended to defeat the plain intent and meaning of the will of Rewis B. Callis, and to deprive them of their rights: and they insisted that upon the marriage of Mrs. Callis, the children, of whom one was born after the death of the testator, were each entitled at once to a third of the whole estate.
    Rayfield and wife answered the bill, and contested the construction put upon the will of Callis by the plaintiffs. They insisted that the female defendant was entitled to the whole estate during her life, the bonds mentioned in the will not having been sufficient to pay the debts of the testator, and that the deed was only intended to convey, and did only convey, her interest in the propertj’.
    In July, 1859, the cause came on to be heard, when the. court held “that the testator, Rewis B. Callis, by the last clause of his will, so far revoked the prior clauses ^thereof as to give to his wife and children, upon the marriage of his wife to the defendant Rayfield, an equal interest in his estate, both real and personal; and that upon her marriage as aforesaid, the estate of the testator ought to have been divided into three equal parts, and one part thereof allotted to Rayfield and wife, to be held during her life, and the other parts allotted to the two children.” And the court made a decree accordingly; and directed various accounts to be taken. From this decree, Rayfield and wife obtained an appeal to this court,
    Daniel, for the appellants.
    Wellford, for the appellees.
    
      
       Wiits - Construction of. — The rule laid flown in the principal case that clear and unambiguous provisions in a will expressly made cannot be controlled by mere inference and argument from general and ambiguous provisions in other parts of the will, seems well settled.
      The principal case was cited as authority for this proposition in Barksdale v. White, 28 Gratt. 228, and foot-note ; Simmerman v. Songer, 29 Gratt. 16, and foot-note ; Haymond v. Jones, 33 Gratt. 340 ; Withers v. Sims. 80 Va. 662 ; Gish v. Moomaw, 89 Va. 355, 15 S. E. Rep. 868 ; Gaskins v. Hunton, 92 Va. 531, 23 S. E. Rep. 885 (deeds also); Nye v. Lovitt. 92 Va. 715, 24 S. E. Rep. 345 (deed); Houser v. Ruffner, 18 W. Va. 255 ; Bartlett v. Patton, 33 W. Va. 80, 10 S. E. Rep. 24.
      See also, in accord. Mooberry v. Mayre. 2 Munf. 453; Stark v. Lipscomb, 29 Gratt. 322, and foot-note ; Bell v. Humphrey, 8 W. Va. 1, 18.
      In Couch v. Eastham, 29 W. Va. 788, 3 S. E. Rep. 26, the court said : “When the language of the testator is plain, and his meaning clear, the courts have nothing to do but to carry the expressed will of the testator into effect, if it is not inconsistent with some rule of law. Whelan v. Reilly, 5 W. Va. 356 ; Graham v. Graham, 23 W. Va. 36; Rayfield v. Gaines, 17 Gratt. 1."
      
    
   JOYNES, J.

Rewis B. Callis died in the latter part of 1840, leaving one child, Ann B., who subsequently intermarried with the appellee William E- Gaines, and a 'widow who was enciente of another'child, who was afterwards born, and is the appellee Elizabeth R. Callis. The widow intermarried in 1842 with William Rayfield; and by a marriage contract, among other provisions which need not be specified, the property which Mrs. Callis took by the will of her first husband was conveyed to a trustee for the benefit of Rayfield, the second husband, during her life.

After the death of Mrs. Gaines, the ap-pellee-William E. Gaines, in his own right and'as administrator of his deceased wife, and Amanda Gaines, their daughter, filed their bill in this cause, insisting that, upon the true construction of the will of Rewis B. Callis, his property became, upon the second marriage of the widow, liable to division among her and the children of Callis. The court below sustained this view, reciting, as the-ground of its opinion, that the last clause of the will so far revoked the preceding clauses that, upon the second marriage of Mrs. *Callis, the property became divisible into' three equal parts: one to be held absolutely by each child, and the other to be held by the widow and her second husband during her life.

I am of opinion that the court erred in this construction.

The first clause of the will gives to the widow, in clear and unequivocal terms, a life estate in the entire property of the testator, real and personal. The only clause which (leaving out of view for the present the last clause) qualifies this provision in any respect, is that which directs the widow, who was also the executrix, in case there should be “a surplus money,” to put it out on interest for the purpose of supporting and schooling tile children. But this clause, whatever its meaning was, applied only to the “surplus money,” if there should be any, and did not qualify or impair the rights of the widow as tenant for life of the residue of the property. There was no “surplus money,” and this clause may be laid out of view.

The clause upon which the decree rests is in the following words: 1 ‘It is my desire that my wife, should never marry without entering into a marriage contract to secure the property for the benefit of her and my children or child, as the case may be.”

The construction placed upon this clause by the court below gives it the effect of controlling the express provisions of previous clauses, in two important particulars: 1. It reduces the estate for life in the whole property, expressly given to the widow by a previous clause, to an estate during widowhood in two-thirds, and an estate for life in only one-third. 2. It converts the estate in remainder, after the death of the wife, in -the whole property, which is expressly given to the children by a previous clause, into an estate which, as to two-thirds of the property, is to take effect upon her marriage.

*'There is certainly nothing in the language of this clause which requires such a construction. Indeed, the language will not admit of it without a departure from its plain and ordinary sense. All that can be said is that the intention imputed to the testator in the event of the second marriage of his wife, may be inferred by argument from this and other parts of the will. But, if entertained, it was not expressed; and it can only be established by overthrowing other purposes distinctly and expressly declared. Clear and unambiguous provisions expressly made cannot be controlled by mere inference and argument from general or ambiguous provisions in other parts of the will. Blake v. Bunbury, 1 Ves., Jr., R. 194, note 4, and cases cited.

The manifest intent of the testator seems to have been that, in the event of the marriage of his wife, the property left by him should, by a marriage contract giving her a separate estate, be protected against her second husband, into whose hands it would otherwise pass by reason of her life estate. The property would thereby be secured for the testator’s wife and children, according to their respective interests therein, as provided by his will. The language of this clause does not import the bestowal of new interests upon the wife or children, but has reference to interests already bestowed, and which were to be “secured” to them in the event of the second marriage of the wife. This construction is consistent with every other part of the will, accords with the language of the clause under consideration, and satisfies every word of it.

It is not difficult to surmise the views which influenced the testator in making this provision. He had left the support and education of his children to be provided for by his wife, to whom he gave his whole estate for life. The second husband, who upon his marriage would ^become entitled to the whole income, might neglect these provisions, while a separate estate, secured to the wife by marriage contract, would give her the same power of providing for the children as before the marriage. The testator probably desired the property to be secured to the children because, though the second husband would have no legal power to affect their interests by any act of his, he might eloign or waste the property to their prejudice.

- I am of opinion that the decree should be reversed, with costs, and a decree entered dismissing the bill, but without costs ; and without prejudice to any suit which the appellees may be advised to bring for the purpose of ascertaining the property in which they are interested, under the will of Ivewis B. Callis deceased, or of protecting their interests therein.

MONCURE, J., concurred in the opinion of Joynes, J.

Decree reversed.  