notice to counsel

NOTICE TO COUNSEL

This case probably will be called at the session of court to

be held. [ V 957 You will be advised later more definitely as to the date.

Print names of counsel on front cover of briefs. Howard G. Turner, Clerk

· IN THE

Supreme Court of Appeals of·Virginia AT RICHMOND.

· Record No. 4765

VIRGINIA:

In the Supreme Court of Appeals held at the Sup1·eme Court of Appeals Building in the City of Richmond on Wednesday the 12th day of June, 1957.

ANNE REAMS ARNOLD W. BLACKBURN, Appellant,

against

LINNAE BELLE REDD HEDGBETH, ET AL., Appellees.

From the Circuit Court of Hanover County

Upon the petition of Anne Reams Arnold W. Blackburn an appeal is awarded her from decrees entered by the Circuit Court of Hanover County on February 16, 1957, and February 22, 1957, in a certain chancery cause then therein depending wherein Linnae Belle Redd Hedgpeth was plaintiff and James Thomas Redd and others were def endnnts; upon the petitioner, or some one for her, entering into bond with sufficient security before the clerk of the said Circuit Court in the pe:. nalty of twenty-five hundred dollars, with condition as the law directs.

2 Supreme Court of Appeals of Virginia

RECORD

• • •

Linnae Belle Redd Hedgbeth, Complainant

v.

James Thomas Redd

Filed Sep. 27, 1955.

Teste:

page. 6}

F. A. TAYLOR, Clerk.

EXHIBIT A.

Nov. 20th, 1906.

I will and bequeath all of my personal property and my farm known as Scotchtown to my sister Sallie L. Taylor, (she must finish paying Mrs. Annie Constable the little I now owe her and l\fr. Thos. N. Page $60.00 and interest I owe him) as a support her life time at l1er death·I leave it !Q__the ~hildren my niece Bessie C. Arnold and the cl1ildren of my nephew Thomas D. Arnold (bodily heir~), they having the use of it their life time-If tlley die one or the other inherits the property. If they leave l!Q_ bodily heirst. then my propet·ty must go to my brother William Coleman's children and to my brother Edmund T. Taylor's children-to my brother John J. Taylor I leave one shilling, To my brother ·wmiam C. Taylor I leave one shilling.

LAVINIA S. TAYLOR .

• • •

page 65}

• • • • •

/

Anne R. A. ,v. Blackburn, v. Linmi.e B. R. Hedgbeth, et al. 3

ON CONSIDERATION WHEREOF the cause is referred to LESLIE D. CAMPBELL, JR., one of the Commissioners in Chancery of this Court, who will inquire and report as follows:

(1) To determine who were the devisees, legatees, and/or heirs under the will of Lavinia S. Taylor, which was admitted to probate on December 7, 1911, and recorded in this Court, in Will Book 2, at Page 192, and further desig'Ilated as "EXHIBIT A" of the Complainant's Bill.

(2) Who are the present owners, and in what proportion, of the real property known as "SCOTCH TOWN", lying and being in Beaverdam Magisterial District, Hanover County, Virginia, and estimated to contain 971h acres.

(3) 'Wha.t liens are against the property, their priorities, and by whom held.

( 4) What is the fee simple and annual value of the real property.

( 5) Whether the real property is susceptible of partition in kind amongst the owners in any of the modes prescribed by law; and if not-

( 6) Whether any of the owners is willing to take the whole property and pay to the others such sums of money as their interest may entitle them to; and if not-

( 7) Whether the interest of those who are entitled to the · subject or its proceeds will be promoted by a sale page 66 } of the entire subject and division of the proceeds;

and if so-(8) ,Vhether the proper parties are before the Court in

this cause to enable the Court to effect such sale. (9) Any other matter, specially stated, which the Com

missioner may deem pertinent or which any party may re-quest to be so stated. ·

But before proceeding to execute the Reference the CommissioneP shall give notice as requh·ed by law of the time ancl place fixed for executing the same.

Enter.

LEON M. BAZILE, ,Judge.

April 26, 1956.

• • • • •


page 82}

e e • e

Your Commissioner has considered the pleadings in this cause, the depositions and the exhibits filed, and reports as follows:

REPORT.

FIRST INQUIRY:

"(1) To determine who were the devisees, legatees, and/or heirs under the will of Lavinia S. Taylor, which was admitted to probate in this Court on December 7, 1911, and recorded in Will Book 2, at Page 192, and further designated as "EXHIBIT A,' of the complainant's bill.

page 83 } REPORT:

It appears from the evidence before your Co·mmissioner, and he accordingly 1·eports that Sallie L. Taylor, John J. Taylor, Edmund T. Taylor, and William C. Taylor are the legatees under the will of Lavinia S. Taylor, they having been beneficiaries of the personal property therein bequeathed.

The devisees under the will of Lavinia S. Taylor were Sallie L. Taylor, Bessie C. Arnold, Thomas D. Arnold, and the children of Bessie C. Arnold and Thomas D. Arnold. Sallie L. Taylor received a · life estate subject to certain charges set forth in said will, and upon her death, Bessie C. Arnold and Thomas D. Arnold were joint life tenants, and upon the death of. either life 'tenant the other received the entire life estate. Upon the death of the life tenants, Bessie C. Arnold and Thomas D. Arnold, the property vest. in fee in the children of Bessie C. Arnold and Thomas D. Arnold. Should the af oresaicl life tenants have no children, upon the survivors cleath the property would vest in the children of ,vmiam Coleman Taylor and Edmund T. Taylor.

The heirs of Lavinia S. Taylor are John Taylor, Gordon , T. Taylor, Patrick Henry Taylor, Louise Johnson Taylor,

widow of Alfred Taylor, Martha T. Golden, Louise T. Parlier, Dolly G.rizzard Taylor, widow of Page Taylor, Virginia Hawthorne Taylor, Betsy Taylor, William Peacock, Beele Peacock Hooks, William Eric Taylor, Jr., Ernest Moore Taylor, Willis

Anne R. A. ,v. Blackburn, v. Linnac B. R. Hedgbeth, ct al. · 5

Dillard Taylor, Woodsie Taylor Munro, Louise Taylor Gresham, Annie Reams Arnold, Anne Arnold Wojichowski Black, A. Walton Redd, widower of Bessie Arnold Redd, Lavinia Redd Killoren, Elizabeth Redd Johnson, J amcs Thomas Redel, William Coleman Redd, Lydia Arnold Redd, Linnae Belle Redd Hedgbeth, Loretto :McLaughlin Redd, and J olm Lle-

wellyn Redd. Your Commissioner reports that the page 84 ~ aforesaid will of La,•inia S. Taylor makes a valid

testamentary disposition of her estate, and that the last mentioned parties have no interest therein by virtue of their relationship to the testatrix, or the fact that they are her heirs.

SECOND INQUIRY:

"(2) Who are the present owners, and in what proportion, of the real property known as '' SCOTCHTOWN,'' lying and being in Beaverdam Magisterial District, Hanover County, Virginia, and estimated to contain 97 ¥2 acres."

REPORT:

In order to report on this inquiry, it is necessary that your Commissioner construe the will of Lavinia S. Taylor. It is .a holographic will, and upon its face it is apparent that the testatrix was not assisted by counsel.

Bessie C. Arnold and Thomas D. Arnold being both deceased and survived by children, the following portion of the will governs in determining who the present owners of the real property known as Scotchtown are: ''-at her death I leave it to the children my niece, Bessie C. Arnold, and the children of my nephew, Thomas D. Arnold (bodily heirs) they having the use of it their lifetime-if they die one or the other inherits the property-If tl1ey leave no bodily heirs-then my property must go to-.'' The testatrix on two occasions uses the term "bodily heirs. it The other expressions used in the will in conjunction with this technical term indicate that it was the testatrix 's intention that bodily heirs be used synonymously with children. Having twice grouped the children of her niece and nephew and ref erred to them as a unit, "bodily heirs," your Coµimissioner reports that at the death of the surviving life tenant, (Bessie C. Arnold Redd,


died March 15, 1948) the property vested in fee simple in the children of Bessie C. Arnold Redd and Thomas D. Arnold, as

a devise to a class, the will haYing established a page 85 ~ devise to a body of persons, ·uncertain in number

at the time, to be ascertained at a future time, who are to take in equal proportions, the share of each being de

. pendent for its interest upon the ultimate number. Andrew Walton Redd, Jr., one of the children of Bessie C.

Arnold Redd predeceased his mother, having died January 23, 1936. His heirs are not entitled to take since he was not alive at the time for :fixing the membership of the class, (i. e. the death of the surviving life tenant, Bessie C. Arnold Redd) .. Where a devise is to a class and it fails as to one of the class because of death, the survivors of the class will take the whole. Here the will clearly fhrns the death of the survivor of the life tenants as the date for determining the class.

Annie Reams Arnold and Andrew 1Yalton Redd, Sr., widow and widower respectively of the life tenants, have no interest in the real property in question since their spouses had only a life estate.

The chilclren of ,vmimn Coleman Taylor and Edmund T. Taylor have no interest in Scotchtown. At m.ost they were contingent remaindermen whose estate was subject to the condition precedent that Bessie C. Arnold Redd and Thomas D. Arnold die without children. Since this condition never occurred, their interest never vested.

The children of Bessie C. Arnold Redd and Thomas D . .Arnold are therefore tbe fee simple owners of Scotchtown. They are as follows: Lavinia Redd Killoren, Elizabeth Redd .Johnson, James Thomas Redd, William Coleman Redd, Lydia Arnold Redd, Linnae Belle Redd Hedgbeth, Loretto :McLaugblin Redd, and John Llewellyn Redd, and Annie Arnold W ojichowski Blackburn.

Their proportionate interest in the real estate depends upon the intention of the testatrix. She twice refers to the children

of her niece and nephew as bodily heirs, which page 86 ~ is a grouping of the children of both as a whole and

is an expressed indication of an intention of equality among the members of the class. Effect ·must be given the expressed intention of the testatrix. If there is nothing in the will to be construed which shows an intention to have tlrn property divided per stirpes, the general rule is that the beneficiaries take per capita. The proportionate interest of the owners are therefore as follows: ·

Anne R. A. ,v. Blackburn, v. Linnae B. R. Hedgbeth, et al 7

Lavinia Redd Killoren 1/9 Elizabeth Redd Johnson 1/9 James Thomas Redd 1/9 William Coleman Redd 1/9 Lydia ·Arnold Redd 1/9 Linnae Belle Redd Hedgbeth 1/9 Lor.etto McLaughlin Redd 1/9 J olm Llewellyn Redd 1/9 Annie Reams Arnold Vl ojichowski Blackburn 1/9

In reporting on this inquiry, your Commissioner feels obligated to call to the attention of the Court the statements of counsel, and the Commissioner in the taking of the depositions as set forth therein on pages 45, 46, nnd 47.

THIRD INQUIRY:

"(3) ,v11at liens are against the property, their priorities, and by whom held.''

REPORT:

It appears from the evidence and the examination of the records at the Clerk's Office of the Circuit Court of Hanover County, Virginia, and your Commissioner so reports that there are no valid liens affecting the real estate proposed to be sold except the current taxes for the year 1956, which should be prorated as of the date of sale, should the property be ordered sold.

FOURTH INQUIRY:

" ( 4) ·what is the fee simple and mmunl value of the real property known as SCOTCHTO,VN. ''

page 87 } REPORT:.

It appears from the evidence before your Commissioner and he accordingly reports that the real estate in question known, as the Scotchtown Tract, contains 99.6 acres, and has a fee simple value of Twenty Eight Thousand ($28,000.00) Dollars. The dwelling is valued at Eleven Thousand Six Hundred ($11,600.00) Dollars, the timber at Ten Thousand Ei~ht Hundred ($10,800.00) Dollars, and the land, exclusive of timber,


is valued at Five Thousand Six Hundred ($5,600.00) Dollars, One Thousand ($1,000.00) Dollars of which is contributed to approximately three (3) acres of land at the dwelling site. The annual value of the property at tl1e p1·esent time is negligible when compared with the cost of upkeep and tax.es thereon. The dwelling produces no rent. A small portion of the property capable of being cultivated has produced an average rent of Forty ($40.00) Dollars per year over the past five (5) year period.

'' (5) Whether the real property known as SCOTCHTOWN is susceptible of partition in kind amongst the owners in any of the modes prescribed by law; and if not-"

REPORT:

It appears from the evidence and your Commi~sioner accordingly reports that the real estate known as Scotchtown is not susceptible of partition in kind amongst the owners due to the location of the property, its shape, the variance in value of parts thereof, and the improvement located thereon.

SIXTH INQUIRY:

"(6) V\7hether any of the owners is willing to take the whole property and pay to the others sucl1 sums of money as their interest may entitle them to ; and if not-''

page 88 ~ REPORT:

It appears from the pleadings and the evidence and your Commissioner accordingly reports that none of the owners are willing to take the whole property and pay the others such sums of monev as their interest may entitle them to. However, your Coiiunissioner wishes to call to the attention of the Court that Mr. George E. Allen, counsE\l for Annie Arnold "r ojichowski Blackburn, stated that they would have an offer to make under this paragraph of the decree of reference if and when it is decided that his client is entitled to half of the property, but that they were not in a position to make an offer until that decision is rendered.

Anne R. A. '\V. Blackburn, v. Linnae B. R. Hedgbeth, et al. 9

SEVENTH INQffiRY:

"(7) Whether the interest of tl1ose who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject and division of the proceeds; and if so-" .

REPORT:

It appears from the evidence and the exhibits filed herein and your Commissioner accordingly reports that the interest of those entitled to the subject or its proceeds will be promoted by a sale of the property, and a division of the proceeds. The Scotchtown tract, consisting of 99.6 acres, has two distinct items of value located thereon. One item of value is timber which covers the great majority of the 99.6 acres, excepting approximately five to ten acres in the northwest corner on which is located the house site. The other item of value is the dwelling or manor house located on the house site as described above. Due to these separate and distinct values, your Commissioner reports that the best interest of the parties would be served by offering the house and approximately five acres of land adjoining thereto for sale as a dwell-

ing or shrine, and by offering the remainder of the page 89 } property for sale as timber land.. Then the entire

99.6 acre tract should be offered for sale. By offer. ing the property for sale .in these two manners, the best interest of the parties would be promoted and the highest possible bid received.

• • • •

page 90}

• • • • •

· PAPERS AND EVIDENCE RETURNED HEREWITH:

The papers formerly read, the depositions duly taken, and exhibits filed are returned herewith .

• • • • •

10 Supreme Court of Appeals of· Virginia

page 93}

Filed Oct., 8, 1956.

Teste:

e e.

F. A. TAYLOR, Clerk.

IN CHANCERY .

. EXCEPTIONS.

Exceptions taken by Annie Reams Arnold vVojichowski Blackburn, one of the above named defendants, to the report of Commissioner Leslie D. Campbell, Jr., to whom this cause was ref erred by decree made herein on the 26th day of April, 1956, and which report bears date on the 1st day of October, 1956.

FIRST. EXCEPTION: For that said Commissioner instead of confining his 1·eport to facts, assumed authority to ·decide a strictly legal question involved in tlrn construction or the will of the said Lavinia S. Taylor.

SECOND EXCEPTION: ·without waiving the first Exception, but insisting upon the same, this defendant excepts to said report upon the ground that the said Commissioner construed the said will erroneously in ruling that this defendant is entitled to only a one-ninth undivided interest in said property instead of a one-half undivided interest. This defendant is in fact under a proper construction of the said will, according to Horne v. Horne, 181 Va. 685, 26 S. E. (2d) 80, entitled· to a one-half undivided interest in said property, instead of a one-ninth interest.

page 94 } THIRD EXCEPTION: For that said Commissioner erroneously reports that none of the own

ers of the said property are willing to take the whole prop-

Anne R. A. \Y. Blackburn, v. Linnae B. R. Hedgbeth, et al. 11

erty and pay the others such sums of money as their interest may entitle them to. This defendant owns a one-half undivided interest in the said property under the will of the said Lavinia S. Taylor. She now offers to pay her co-owners the reasonable value of the other one-half undivided interest, and so the report is erroneous in stating that none of the owners are willing to take the whole property and pay the others such sums as their interests may entitle them to.

FOURTH EXCEPTION: For that said Commissioner reported that the interests of those entitled to the said property will be promoted by a sale of the property and a division of the proceeds, whereas, in fact, the interests of this defendant will not be promoted by a sale. She is the owner of a onehalf undivided interest in the property under the will of the said Lavinia S. Taylor and she is willing to pay the other parties what their one-half interest entitles them to and, therefore, entitled to thus acquire the whole property. Moreover, the property is readily susceptible of partition, one-half to this defendant and the other one-half to the other eight parties listed as co-owners.

WHEREFORE, this defendant doth except io the said report of said Commissioner and prays that her said exceptions may be sustained and that the said report may be corrected in the manner indicated by said exceptions.

GEO E. ALLEN,

e

page 115 ~

•

Filed. November 26, 1956.

Counsel for Annie Reams Arnold ,v ojichowski Blackburn.

•

L.M.B.


OPINION OF THE COURT.

This is a suit for the partition of the Scotchtown House tract.

This is one of the most historic places in Hanover County and the mansion house was built somewhere between 1717 and 1723 and is still standing.

The grant to the Scotchtown tract was made to Charles Chiswell on 15 July, 1717 (Patent Book 10, page 327). The grant from the Crown contained 9,925 acres of laud and extended from the mouth of Chiswell's Swamp down the New Found River almost to its mouth .

. On the Jeath of Charles Chiswell it passed to his son and heir Colonel John Chiswell. Some time before his death Colonel John Chiswell conveyed Scotch town to his son-in-law ,J ohu Robinson, Speaker of the House of Burgesses. At the ' time of John Robinson's death Scotchtown contained 4,000

acres of land. · page 116 ~ John Robinson on his death was found to be

greatly indebted to the Colony and Edmund Penclleton and Peter Lyons were appointed his administrators. They cut Scotchtown up into tracts containing approximately 400 acres each except the House tract which contained 960 acres. On Tuesday, 9 January, 1770 the Administrators sold the Scotch town House tract to John Pavne · who was the father of Dorethea Payne wbo married J ~mes Madison, the Fourth President of the United States.

Sometime during the year 1771 Patrick Henry purchased Scotch town, and here his first wife Sarah Shelton died and was buried, in the cemetary in which Colonel J olm Chiswell had been buried. John J. Taylor a later owner of Scotchtown destroyed this cemetary.

Sometime after August 1777 Patrick Henry sold Scotchtown to Colonel \Vilson Miles Cary of Elizabeth City County who was seeking a refuge from the invading British.

Cary lived with his family at Scotcbtown until after the Yorktown campaign and on 19 June, 1787 he conveyed Scotchtown to Benjamin Forsythe who was distinguished enough to have a biographical sketch in Appletons Cyclopaedia of American Biography.

Benjamin Forsythe sold Scotch town to John Mosbv Shep-pard circa 1803 or 1804. • ·

When Sheppard died Scotch town was trans£ erred to John ,J. Taylor in right of his wife Lavinia Sheppard Taylor who was a daughter of John Mosby Sheppard.

Anne R. A. ,v. Blackburn, v. Linnae B. R. Hedgbetb, et al. 13

page 117 ~ John J. Taylor bought more land so that at the time of his death the tract contained approxi

mately 1500 acres. John J. Taylor left a large number of children and when

his estate was partitioned among his children the House tract was reduced to 84 acres and assigned to his son Edmund Taylor.

Lavinia S. Taylor acquired the Scotchtown House tract from Edmund Taylor, D. B. 44, p. 34 and another tract from John Henry ,vickham et al. D. B. 19, p. 237, so that the tract now contains 99.6 acres of land lying on both sides of the road from Fork Church to N egrof oot.

On 20 November, 1906 Miss Lavinia S. Taylor drew her will. The will is as follows:

"I will and bequeath all of my personal property, and my farm known as Scotchtown to my sister Sallie L. Taylor (she must finish paying Mrs. Annie Constable the little I now owe her and Mr. Thos. N. Page $60.00 and interest I owe him) as a support her life time at her death I leave it to the children of my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs), they having the use of it their life time-If they die one or the other inherits the property. If they leave no bodily heirs, then my property must go to my brother William Coleman's children and to my brother Edmund Taylor's children-to my brother ,John J. Tayor I leave one shilling-to my brother William C. Taylor I leave one shilling.

LAVINIA S. TAYLOR."

This will was probated 7 December, 1911 and recorded in W. B. 2, p. 192. .

page 118 ~ Miss Sallie L. Taylor died 28 ,July, 1941. Thomas D. Arnold, Jr. died 19 January, 1919

leaving his sole issue a daughter the defendant Annie Arnold Wojoiechowski Blackburn. .

Bessie C. Arnold married "\Valton Redd and she died 15 March, 1948 having borne the following children:

1. Linnae Belle Redd Hedgbeth 2. James Thomas Redd 3. William Coleman Redd 4. Elizabeth Redd Johnson


5. Lavinia Redd Killoren 6. Loretto :McLaughlin Redd 7. John Llewellyn Redd 8. Lydia Arnold Redd ah.a 9. Andrew ,valton Redd who died 23 January, 1936

The cause having been duly matured on 26 April, 1956 a decree of reference was entered in this cause ref erring it to Leslie.D. Campbell, one of the Commissioners in Chancery of this Court to take the evidence and report on certain inquiries.

On 5 October, 1956 he filed his report in the Clerk's Office of this Court.

On 8 October, 1956 George E. Allen, Counsel for Annie Reams Arnold vVojoiechowski Blackburn filed exceptions to the report and on 13 October, 1956 Robert E. Pemberton, Guardian ad Liteni for Lydia Arnold Redd ·filed exceptions to the report. .

The second inquiry in the decree of reference endorsed by all of the counsel in the case and the gun rdian ad

page 119 ~ Lit em reads as follows:

""1ho are the present owners and in what proportion, of

the real property known as '' Scotch town,''· lying and being in Beaver Dam Magisterial District, Hanover County, Virginia, and estimated to contain 97 1/2 acres 1''

In response to this inquiry the Commissioner said: "In order to report on this inquiry it is necessary that your commissioner construe the will of Lavinia S. Tav]or. It is a ho}ogTaphic Will, and Upon its face it is apparent tliat the testatrix was not assisted by counsel.''

The first exception to the report is that the Commissioner instead of confing his report to facts, assumed authority to decide a strictly legal question ivolved in the construction of the will of Lavinia S. Ta:vlor. ·

The exception of the Guardian ad. Litem- is based on the same ground.

How l\fr. Allen can justify this exception is not perceived. When :Mrs. Hedgbeth was on the stand her counsel asked the question (p. 5): "Now, in the light of that, who would you SR)' from your observation of the recorded will owns Scotchtown ¥"

l\Ir. AUen made this objection: "This question and any answer that may be made thereto is objected to for the rea-

Anne R. A. "\V. Blackburn, v. Linnae B. R. Hedgbeth, et al. 15

son that tbat is one of tbc inquiries to be determined as a matter of law by the Commissio1ier and the Court. The witness should state the names of the persons and the relationships to the parties and leave the question. of OU,"llersliip to be determined by the Commissioner and the Court. (Italics sup-

plied). page 120 ~ It would seem from the inquiry that it was the

duty of the commissioner to construe the will in order to answer the same, and that counsel who now complains of bis doing so invited him to construe the same.

It is well settled that a party cannot occupy inconsistent grounds or positions; and that where he has an election between inconsistent courses of action he will be confined to that which he first adopts.

Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 S. E. 366 (1898); Duck v. Boatwright, 157 Va. 490, 162 S. E. 53 (1932); and Bonding, Etc. Co. v. Pied1nont Service Station,, 165 Va. 167, 181 S. E. 397 (1935 ).

In Hurley v. Bennett, 163 Va. 241, 252, 176 S. E. 171 (1934) Mr. Chief Justice Hudgins then Hudgins, J. speaking for the Court, said: ",. ,. • A party cannot in the course of the same litigation occupy incot)sistent positions. Upon that rule election is founded; a litigant will not be allowed in the language of the Scotch law to 'approbate and 1·eprobate.' ·where he has an election between inconsistent courses of action, he will be confined to that which he first adopts. The first election, if made with knowledge of the facts, is itself binding. Arn,ood v. Hill's, Adm. 135 Va. 235, 117 S. E. 603; Nagle v. 8.l}er, 150 Va. 508, 143 S. E. 690; Tl'liite v. Bott, 158 Va. 442, 158 S. E. 880, 163 S. E. 397 and cases therein cited.

In 8yd1ior-H owey & Co. v. Sydtior, 172 Va. 545, 2 S. E. (2d) 309 (1939), :Mr .• Justice Eggleston speaking for the Court said '.'It is elementary that a litigant may not assume incon

sistent positions in a suit." page 121 ~ For the f ore~oing reasons the first exception to

ruled. the report of Commissioner Campbell is over-

This brings us to the second exception to the Commissioner's report which is that the commissioner construed the said will erroneously in ruling· that the excepte1it is entitled to only one ninth undivided interest in said property instead of a one-half interest.

In order to consider this exception the finding of the commissioner sl1oulcl also be considered. In his report he said:


'' Bessie C. Arnold and Thomas D. Arnold being both deceased, and survived by children, the following portion of the will governs in determining who the present owners of the real property known as Scotchtown are: ' 11 11 11 at her death I leave it to the children of my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs) they having. the use of it their life time. If they die one or the other inherits the property-If they leave no bodily heirsthen my property must go to e " e' The testatrix on two occasions uses the term 'bodily heirs.' The other expressions used in the will in conjunction with this technical term, indicate that it was the testatrL"t 's intention that bodily heirs be used synonymously with children. Having twice grouped the children of her niece and nephew and ref erred to them as a unit, 'bodily heirs,' your commissioner reports tl1at at the death of the surviving life tenant (Bessie C. Arnold Redd died 15 l\Iarch, 1948) the property vested in fee simple in the children of Bessie C. Arnold Redd and Thomas D. Arnold, as a devise to a class, the will having established a devise to

a body of persons, uncertain in number at the page 122 ~ time, to be ascertained at a future time who are

to take in equal proportions, the share of each being dependent for its interest upon the ultimate number."

The foregoing exception and this excerpt from the report of the Commissioner fully sets forth the issue to be decided, which is the real issue in the case. · Counsel for the exceptatit relies on Horne v. Horne, 181 Va .

. 685, 26 S. E. (2d) 80 (1943). That was a case in which the grautor in the deed under

construction partioned the land granted between his two sons, specifying that his son George R. Home was to have the dwelling house '' and seventy-five acres of land and no more running from the main road towards Chickahominy Swamp.'' During their lifetime the grantees established a line of partition between the house tract given George R. Horne for his· life and the balance of said farm given his son C. R. Horne for life, and a survey was made showing the line of partition thus established.

The deed in question conveyed the land to the two brothers for their lives with remainder after theh· deaths "to their lawful children.'' C. R. Horne died 15 July, 1930 leaving four children. George R. Horne died without issue sometime thereafter. The children of C. R Horne nnd the heirs of the

Anne R. A . ."W. Blackburn, v. Linnae B. R. Hedgbeth, et al. 17

grant or in the deed who was their grand-father R. R. Hoi:ne claimed the Grove left by George R. Horne.

The Court held that George R. Horne's part of the grove reverted to the estate of R.R. Horne, the grantor on the death

of George R. Horne without issue and became page 123 } vested under the residuary clause in the will of

R.R. Horne. The facts in the case at bar are entirely different from those

in the case of Horne v. Horne, s·upra. Here the testatrix devised her farm known as Scotch town

to her sister Sallie L. Taylor for her life '' and at her death I leave it to the children of .my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs), they having the use of it their life time.-If they die-one or the other inherits the property. If they leave no bodily heirs, then my property must go to my bi·other ·wmiam Coleman's children and to my brother Edmund T. Taylor's children . • e e ,,

.This devise was made as a unit and at the time the will was made, 20 November, 1906, the only thing of value about the Scotchtown farm was the Scotchtown mansion House. The land at that time was of negligible value, and the timber that is on it was then not grown and of slight value.

Here also the devise was to the children of her "niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold.''

"And" is a conjunctive word and as used by the testator is of significance.

The devise of the life estate was also joint "they having the use of it their lifetime" and if one died the other succeeded to the life estate.

"If they leave no bodily heirs-then my property must go to the children" of two of her brothers.

At the time :Miss Lavina Taylor's will was made pag·e 124 } both Thomas D. Amold and his sister Bessie C.

Arnold were unmarried. The exceptant was not born until 1918, and the children of Bessie C. Arnold were all born after the date of the will, so that none of them were known to the testatrix, when her will was made.

The general rule governing the construction of such devis<>s is thus states in 2 ,Jarman on Wills (6th Ed.)• p. 1050, p. 205: ""Where a gift is to the children of A and B. or to the children of A and the children of B. thev take per capita, and not per stirpes." •


In the article on W'ills in 20 ::\Iichie Juris., sec.125 it is said: "If there is nothing in the will which shows an intention to have the property divided per stirpes, the general rule is that the beneficiaries take per capita.

In Murchison, v. Wallace, 156 Va. 728, 739-740, 159 S. E. 106 (1931) it is said: "The cases all lay down that where a legacy is to several, whatever may be their relations to each

. other, or, however the statute of distributions might operate upon such relationship, equality shall be the rule, unless the testator has established a different one. Thus to A. and B. and the children of C. all take per capita. To A. B. and C. and their children, all living at the testator's death, take equally so do the descendants of A. and B., all their descendants, children, grand-children, etc. take per capita Crow v. Crow, 1 Leigh (28 Va.) 74.

"In the case of Driskell v. Ca.rwile, 145 Va. 116, ms S. E. 773, 775--P1·entis, P., said: 'The primary maxim

page 125 ~ is that effect must be ::,riven to the expressed inten-tion of the testator. If, however, there is nothing

in the instrument to be construed which shows an intention to have the property divided ver stirpes, the general rule is that the beneficiaries take per cwpita, and this is true in this jurisdiction, so well expressed in Walker v. lVebster, 95 Va. at p. 381, 28 S. E. 571 where Riley, .J. said: '\:Vhere a bequest is made to several per8ons' said this Court in Boxton v. Griffith, 18 Gratt. (59 Va.) 577 'in general terms indicating that they are to take equally as tenants in common, each inditjdual will, of course, take the same share; in other w01·ds the legatees will take per capita. The same rule applies where a bequest is to one who is living and the children of another who is <lead, whatever may be the relation of the parties to each other, or, however the statutes of distributions might operate upon those relations in case of intestacy. Thus where property is given 'to my brother A. and to the children of my brother B.' A. takes a share only equal to that of the children of B. So wllere the gift is to A's and B's children or to the children of A. and the children of B., the children take as individuals per ca.pita. The substance of this rule of construction is that, in the absence of explanation, the children in such case are presumed to be ref erred to as individuals, and not as n class and that the relations existing between the parties, and the operation which the statute would have upon those relations in the case of intestacy are not sufficient

Anne R. A. ,v. Blackburn, v. Linnae B. R. Hedgbeth, et al. 19

to control this presumption. The general rule is well established and has been fully recognized by the decisions of this

Court. Brewer v. Opie, 1 Call (5 Va.) 212; Crow page 126} v. Crow, 1 Leigh (28 Va.) 74; Mdlfaster v. Mc

Master, 10 Gratt 2i5; Whittle v. Whittle, 108 Va. 22, 60 S. E. 158, Ann. Cas. 1916-C 409. ''

In an able opinion by Carr, J. in Crow v. Crow, 1 Leigh 74, 77 (1829) it is said: "• 8 8 The cases all lay it down, that where a legacy is to several, whatever may be their relations to each other, or however tbe statute of distributions might operate upon such relations, equality shall be the rule, unless the testator has established a different one. Thus, to A. and B. and the children of C. all take per capita: to A., B. and C. and their children; all living at the testator's death take equally. So to the descendants of A. and B., all their descendants, children, grand-children & C. take per capita. Richardson v. Sprang, 1 P. ·wms. 434; Blackler v. 1'Vebb, 2 P. ·wrns. 383; Eccard v. Brooke, 2 Cox, 213; Butler v. Stratton, 3 Bro. C. C. 367; H' eld v. Bradbur.lJ, 2 Vernon 705; N ortley v. Stran,qe, 1 P. \Vms. 340; Wicker v. J.lfilford, Harf. Law tracts 513; "llfalcoim. v. Martin, 3 Bro. C. C. 50; Phillips v. Garth, Id. 64; Da.ven,port v. Hmibury, 3 Vez. 257; and, Freeman v. Parsley, Id. 421." ·

In lJThittle v. Whittle, 108 Va. 22, 25, 60 S. E. 748 (1908) the Court said: "In arriving at the intention of the testatrix, not only the whole of her will, but the established rules of law as to the construction of wills are to be considered, and the Court is to be guided by such rules in the construction of this will.

"The general rule is well established in Virginia, that if a bequest is made to several persons in general terms, each individual will, of course, take the same share, or per capita. The same is the rule where a bequest is to one who is living and to the children of another who is dead, or where the gift is to A's and B's children, or to the children of A. and the

children of B. page 127 ~ '' The substance of this 1·ule of construction is,

that in the absence of explanation the children in such case are referred to as individuals and not as a class, and that the relations existing· between the parties, and the operation which the statute woultl have upon those relations in case of intestacy, arc not sufficient to confrol this presumption. Hoxton, v. Griffith, 18 G1·att. 577-8."


In Perdue v. Starkey, 117 Va. 806, 807-8, 86 S. E. 158, Ann. Cas. 1916 C 409 ( 1915) the Court quoted from the opinion of Joynes, J. in Hoxtotz. v. Griffith, 18 Gratt. (59 Va.) 574: "When a bequest is made to several persons in general terms, indicating that they are to take equally as tenants in common, each individual will of course take the same share; in other words the legatees will take per capita. The same rule applies where a bequest is to one. who is living, and to the children of another who is dead, whatever may be the relations of the parties to eacl1 other, or however the statute of distributions might operate upon those relations in case of intestacy. Thus, when property is given 'to my brother A. and to the children of my brother B. ', A. takes a share only equal to that of each of the children of B. So where the gift is to A's and B's children, or to the children of A. and the · children of B. the children take as individuals per capita. e • t)'

The reason for this rule is stated in Northey v. Strange, 1 P. ·wms. 340 (1716) is that the taking is per capita and not per stirpes when they take in their own right and not by way

of representation. page 128 ~ The same rule was applied lV eld v. Bradbury, 2

Vernon Chy. 705 (1715). There the testator willed one moiety of his estate to the children of J. S. and J.M. Neither had children at the time the will was executed nor when the testator died. The Court said: "It must be intended an executing devise and to be to such cl1ildren, as tliey or either of them may have; and the children take per capita, and not per stirpes they claiming in their own right and not as 1·epresenting their parents."

In Daven,port v. lia-nbury, 3 Vez. j. 257,259 (1796) the Master of the Rolls had before him a will which gave a bequest to '' Mary Davenport or her issue.'' She left a son and two grandchildren, the children of a deceased daughter. It was held that "issue" embraced grand-children and as to whether the distribution was to be per capita or per stirpes the Court said : '' The word 'issue,' therefore, there being no particular words in the will ..., • "' embraces all the descendants and as there are no words of severance nor anything to show they should take, not in their own rights, but as representing others, the son and the children of the daughter must be considered as personae desig·1z.atae and will take as joint tenants.'' It was therefore held that they all took per capita and not per stirpes. So here it is clear that the children of Bessie ·c.

Anne R. A. "\V. Blackburn, v. Linnae B. R. Hedgbeth, et al. 21

Arnold ancl the children of Thomas D. Arnold take in their own right under the will and not as representatives of their parents.

While none of these children were born when the will was executed nor when: the testator died as was said in Davenport v. Hmibury, supra they must be regarded a persotuie desig

natae and taking in their own right it necessarily page 129 ~ follows that they take per capita. and not per

stirpes. In Johnson v. Kelly, 171 Va. 153, 156, 198 S. E. 474 (1938)

in which it was held that the devise was intended to pas per stirpes and not per capita. great stress was laid that the testator said that upon Jonas death without issue his share shall "go to his brothers surviving him or to the children of any of· said brothers who may be dead.''

The Court said "the use of the disjunctive 'or' instead of the conjunctive 'and' is significant. It indicates, we think, that the testator intended that Jonas 's share should go to such of Jonas' brothe1·s as survived him, with the substitution of the children of any deceased brother to take their parent's share.''

Here the use of the word ''and'' is as significant as was the use of the word "or" in Johnson v. Kelly, supra.

In Penick's Exor. v. Walker, 125 Va. 274, 278, 99 S. E. 559, 560 (1919) Kelly, J. speaking for the Court said: "The primary consideration and rule of construction is to determine the intention of the testator from the language which he has used. If the meaning of his language is plain, the will must be given effect accordingly. This rule is familiar and elementary, and to it all others are subordinate and subservient If there be doubt as to the meaning then the auxiliary and subordinate to be first applied, and the one of most usefulness and importance, is for the Court to place itself as nearly as possible in the situation of the testator at the time of the execution of the will."

The testatrix willed and bequeathed all of her personal property and her farm known as Scotch town to

page 130 ~ her sister Sallie L. 'Taylor for her life. "And at her death I leave it to the children of my niece

Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs), they having the use of it their life time-If they die one or the other inherits the property."

The only ambiguity in the above language is found in the


words '' they having the use of it their life time, if they die one or the other inherits the property.'' ·

"They" evidently referred to Bessie C. Arnold and Thomas D. Arnold who were to have life estates in the same.

So far as the devise to their children is concerned this will is free from ambiguity. "On her death I leave it to the children of my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs).''

Stripped of its non-essentials the devise is as follows: "I will and bequeath • • • my farm known as Scotchtown to my sister Sallie L. Taylor e • • as a support for her life time. At her death I leave it to the children ( of} my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs), they having the use of it their life time-If they die-one or the other inherits the property. If they leave no bodily heirs, then my property must go to my brother ·wmiam Coleman's children and to my brother Edmund T. Taylor's children. • • • ''

"At her death I leave (Scotchtown) to the children my niece Bessie C. Arnold and the children of my nephew Thomas D. Arnold (bodily heirs). If they leave no bodily heirs'' then, to the children of two of her brothers.

In Perd1ie v. Starkey, 117 Va. 806, 808, 86 S. E. 158 (1915) the Court quoted from the opinion of Joynes, J.

page 131 ~ in Hoxto·n v. Griffith, 18 Gratt. (59 Va.) 574 as follows: '' Thus where property is given 'to my

brother A. and the children of my brother B,' A. takes a share only equal to that of each of the children of B. So where the gift to A's and B's children or to the children of A. and the children of B. the children take as individuals, per capita • • •"

Here the gift is to the children of B. C. A. and the children of T. D. A.

And in accordance with the well established rule in this State which has been recognized and applied since Crow v. Crow, 1 Leigh 74, 777-78 (1829), unless there is something in the will to show a different intention on the part of the testator this rule must be applied.

So far as the Court can see there is nothing in the short will of the testatrix which shows an intention different from that imputed by the words quoted above.

It is said however that the rule applied in Hor-ne v. Horne, 181 Va. 685, 26 S. E. (2d) 80 (1943) should be applied here.


The facts in that case are in no manner similar to the facts ]1ere. In that case t1ie gr~ntor partitioned the land between tbe grantees in the deed in question so that the grantees held the land conveyed as tenants in common in two separate tracts of land. It was held that this fact sl10wed that the language used by the grantor in the deed was intended to create two separate classes who took per stirpes and not per capita.

Here the devise was of a single tract of land, the principal value of which at that time was the Scotchtown Mansion

house. Aud this was as true at the time of the page 132 ~ testatrix 's death as it was when the will was dated.

The life tenants had an undivided interest in the whole and not separate and no separate estate therein. "While the devise to the second set of life tenants is somewhat ambiguous, on the death of either it passed to the survivor for life and then to the children of B. C. A. and the children of T. D. A. in fee.

Certainly there is nothing in this wiil which shows an intention to have the property divided per stirpes, and in the opinion of the Court the general rule viz. that the beneficiaries take per capita is to be applied here.

· A will speaks as of the time of the death of a testator. At that time almost the whole value of the farm was confined to the Scotchtown Mansion house.

The land at that time was of slight value and such timber as was then on the property was also of slight value.

Due to the present inflation the land has become valuable and the timber even more valuable but none of these events were apparent to the testatrix in her life time.

And there being nothing in the will to show a contrary intention it is held that the children 0£ Bessie C. Arnold (The Redds) and the cliild of Thomas D. Arnold take per capita and not per stirpes.

The ref ore, the exceptions to the construction of the will by the Commissioner is overruled.

October 25, 1956.

page 133 ~

• • •

LEOX l\I. BAZILE, Judge.

• •


ORDER CONFIRMING COMMISSIONER'S REPORT AND OVERULING EXCEPTIONS TAKEN

THERET·o.

This cause came on this day to be heard again, upon the papers formerly 1·ead, the orders and decrees heretofore entered, the report of Leslie D. Campbell, Jr., Commissioner, dated October 1, 1956, together with the depositions, taken after due notice, and exhibits therewith returned; upon exceptions taken to said report by Annie Reams Arnold W ojichowski Blackburn; upon exceptions taken to· said report by Robert E. Pembleton, .Guardian Ad Litem, for Lydia Arnold Redd; upon oral argument in open court by counsel; and upon the Opinion of the court, dated October 25, 1956.

ON CONSIDERATION "WHEREOF, and it appearing to the court, from the Opinion of the Court, dated October 25, 1956, that the exceptions taken to the Commissioner's report by Annie Reams Arnold Wojichowski Blackburn are not well taken, the court doth l1ereby overule said. exceptions, and the court doth so ADJUDGE, ORDER and DECREE

And it further appearing to the court, as to the exceptions taken to. the Commissioner's report by Robert E. Pembleton, Guardian Ad Litem for Lydia Arnold Redd, that the "FIRST" exception was withdrawn orally by the said Robert E. Pembleton, the court doth hereby overrule the said second exception and the court doth so ADJUDGE, ORDER and DECREE.

UPON FURTHER CONSIDERATION WHEREo~·', the court doth confirm the report of Leslie D. Camp

page 134 ~ bell, Jr., Commissioner, dated October 1, 1956, filed in the papers of this cause, and doth so AD

JUDGiE, ORDER and DECREE. It further appearing to the court that Lavinia S. Taylor

departed this life, sized and possessed of the fee simple estate in that tract of land, with dwelling house and appurtenances thereunto attached, known as '' Scotch town,'' lying and being in Beaverdam Magisterial District, Hanover County, Virginia; that the will of the said Lavinia S. Taylor, made November 20, 1906, probated December 7, 1911, recorded in the Clerk's Office of this Court, in Will Book 2, page 192, made a valid testamentary disposition of the aforesaid '' Scotchtown"; that under the terms of the said will the devisees of

. Anne R. A. ,v. Blackburn, v. Linnae B. R. Hedgb_etb, et al. 25

'' Scotchtown'' were Sallie L. Taylor, Bessie C. Arnold, . Thomas D. Arnold, the children of Bessie C. Arnold and the

children of Thomas D. Arnold; that under the terms of the said will the estates of Sallie L. Taylor, Bessie C. Arnold, and Thomas D. Arnold were· all in the nature of life tenancies, and since each of them are now deceased, the remaining devisees of the fee simple estate in "Scotchtown" are the surviving issue of Bessie C. Arnold and the surviving issue of Thomas D. Arnold, and the court does so ADJUDGE, 0~ DER, and DECREE.

It further appearing to the court that Linnae Belle Redd Hedgbeth, James Thomas Redd, William Coleman Redd, Elizabeth Redd Johnson, Lavinia Redd Killoren, Loretto McLaughlin Redd, John Llewellyn Redd, Lydia Arnold Redd, and Annie Arnold \Vojichowski Blackburn are the surviving issue of Bessie C. Arnold and the surviving issue of Thomas D. Arnold and as such issue, are the present owners, in fee simple, in equal undivided shares, of the said "Scotchtown," and that none of the other parties have ·any interest in Scotchtown, and it is so ADJUDGED, ORDERED and DECREED.

It further appearing to the court that the real property is not susceptible of partition in kind amongst the owners in any of the modes prescribed by law; that none of the owners have offered to take the whole property and pay to the others such

. sums of money as their interest would entitle them page 135 ~ to; that the interests of the owners of '' Scotoh-

town, '' most particularly Lydia Arnold Redd, will be promoted by a sale of '' Scotch town,'' as a whole or in part, and a division of the proceeds; that all of the proper parties are before the court in this cause; that the Complainant has a clear right to demand partition; that in order to effect partition thereof amongst the parties "Scotch town" must be sold, and the court doth so ADJUDGE, ORDER, and DECREE, and this cause is continued.

To which counsel for Mrs. Blackburn excepts.

February 16, 1957.

Enter.

LEON M. BAZILE, Judge .

• •


page 136 ~

•

ORDER APPOINTING SPECIAL COMlUSSIONERS.

This cause came on this day to be heard again, upon the papers formerly read, the orders and qecrees heretofore entered, and was argued by counsel.

ON CONSIDERATION "WHEREOF, and it appearing to the' court that a sale of the real property known as the '' Scotch town'' tract and dwelling house had heretofore been ordered, now therefore, in order to effect said sale, it is ADJUDGED, ORDERED and DECREED that James C. Kent and George E. Allen, who are hereby appointed Special Commissioners for the purpose, shall after having advertised the time, terms and place of sale once a week for two consecutive weeks, in the Herald Progress, a newspaper published and having~ general circulation in the County of Hanove1·, Virginia, and by such other means as they deem advisable, proceed to sell at public auction, to the highest bidder, for cash, on the premises subject to the approval of the court, the real estate which is the subject matter of the bill and proceedingz, herein; and that the property shall be described for sate mid conveyed in conformity with the plat of survey, made, by "William Hugh Redd, Certified Land Surveyor, dated June 22, 1956, in pursuance with order heretofore made in this cause; provided, however, that if said Special Commissioners shall receive a private offer for said real estate which they deem advantageous to accept, they sliall report said private offer to this court, and if the same is accepted and approved by the court, shall make a conveyance as may then be directed by the court; and it is further provided that the Special Commissioners are not allowed to receive or accept any money

under this decree and the ref ore no bond is repage 13i ~ quired of them before acting under this decree;

and it is further provided that the said Special Commissioners shall advertise the property for sale, as a whole tract, and also as two parcels; one parcel containing 26.6 acres, including the dwelling house, and lying north of state route #685; the other parcel containing 73. acres, and lying south of state route #685; and the said Special Commissioners are lrnreby directed to make a further report of their actions hereunder.

Anne R. A. ·w. Black~urn, v. Linnae B. R. Hedgbeth, et al. 27

In making the sale tlie two parcels shall be offered separately before the tract is offered as a whole.

• 8

Annie Reams Arnold '\Vojichowski Blackburn having indicated her intention to appeal to the Supreme Court of Appeals of Virginia for an appeal from and supersede as to this decree, it is ORDERED that the execution of this decree be suspended for a period of 90 days upon condition that the . said Annie Reams Arnold W ojichowski Blackburn within 21 days from this date enter into a suspension bond in the penalty of $2,500.00 payable and conditioned as the law directs and with security approved by the Clerk of this Court.

Enter.

February 22, 1957.

•

page 141 ~

Filed irar. 25, 1957.

Teste:

LEON :i\I. BAZILE, Judge .

• • •

F. A. TAYLOR, Clerk By VIRGJNIA ·w. JOHNSON

Dep. Clerk.

NOTICE OF APPEAL AND ASSIGNMENTS OF ERROR.

Annie Reams Arnold ,v ojciechowski Blackburn, one of the defendants in the above-styled case hereby gives notice of her appeal to the Supreme Court of Appeals of Virginia from the decrees entered by the Court in said cause on the 16th day of February, 1957 and the 22nd day of Fel,lruary, 1957; and duly :files her appeal to the Supreme Court of Appeals of Virginia from said decrees; together witb the following Assignments of Error:


Andrew TValton Redd.

1. The Court ened in overruling the second exception of Annie Reams Arnold ,v ojciechowski Blackburn to the report of Commissioner Leslie D. Campbell, Jr., and in thereby holding that Annie Reams Arnold "\Vojciechowski Blackburn is entitled to only a one-ninth undivided interest in the property described in the will of Lavinia S. Taylor, instead of a onehalf undivided interest.

2. The Court erred in ovel'ruling the third exception of the · said Annie Reruns Arnold Wojciechowski Blackburn to tho

report of Commissioner Leslie D. Campbell, Jr. page 142 } 3. The Court erred in overruling the fourth ex

ception of the said Annie Reams Arnold W ojiechowski Blackburn to the report of Commissiqner Leslie D. Campbell, Jr.

Given under my hand this 23rd day of March, 1957.

page 158 ~

f) f)

e e

GEOE.ALLEN Attorney for Annie Reams Arnold Wojciechowski Blackburn.

&

f) & e

ANDREW "\V ALTON REDD, a witness being duly sworn, deposes and says as follows:

• e • 8

page 168 ~

e e f) e f)

CROSS EXAMINATION.

By J\fr. Allen: / Q. Mr. Redd, do you know when Bessie C. Arnold died Y ·

A. She died the 15th day of March, 1948. Q. How old were you when Lavinia S. Taylor died 1 A. Well I don't remember the date of her death, but I was

approximately 21 years old. .


.Annie Ream.'l .Arnold.

Q. How old was Bessie C. Arnold then 1 A. She was about 20. Q. She was not married 'I A. Not married. . Q. And, of course, no children 7 A. No children. Q. When did Thomas D. Arnold die f A. About 1919. Q. Did Thomas D. Arnold have any children when Lavinia

S. Taylor died 'l A. Thomas D. Arnold had no children when Lavinia died .

• • • • page 191 ~

e • • •

By the Commissioner: By stipulation of all counsel of record, a photostatic copy of the original will of Lavinia S. Taylor is filed with the papers in this cause .

• • •• • . . page 193 ~

• •

Ai~NIE RE.Ai"\fS ARNOLD, a witness being duly sworn, deposes and says as .f~llows:

Questions by Mr. Allen: Q. Mrs. Arnold will you state your age please? A. 59. Q. Are you the widow of Thomas Arnold? A. Yes. Q. And the mother of Anne Blackwell f

A. Yes. page 194 ~ Q. When did Mr. Thomas Arnold die'/

A. ,T anuary 19, 1919. Q. How old was your daughter, Anne, then Y A. Eleven months old.


Annie Reams Arnold.

Q. Well :what happened then with reference to where you were to live, and what did you dot

A. Well he. was buried at Scotch town, and after the burial aunt Sallie Taylor said that Anne heired her father's half of Scotchtown, and.she thought it was iny duty to raise Anne there at Scotcl1town, and I moved to Scotchtown. Bessie Redd and ,valton Redd took Anne and I up in the car, and uncle Ed Taylor and his boys arranged to move the furniture.

Q. ,v as any demand made upon you by Bessie with ref er- · ence to payment of any of the expenses for repairs, and if, so in what proportion 7

A. When Walton, Jr. died, somewhere about that time, Bessie wrote me a letter and ask me if we wouldn't help to put a new roof on Scotochtown, and that it would cost approximately $1,500.00.

Q. ·what did she say would be your part 7 A. Half of it would be $750.00. Q. How long did you live at Scotchtown? A. I moved there in the late fall. Q. You were there a little less than a year? A. Yes. Q. While you were there did the various residents, includ

ing Mr. Walton Redd, Bessie, 'and others, visit Scotch town Y A. Yes, they came down and they bad dinner and we visited

them. Q. Have you been seeing them off and on ever since t

A. Yes. page 195 ~ Q. Had any claim been made by any of them

prior to the instituting of the suit that that property was o:wned other than half by Anne, and half by the children of Bessie Redd Y

A. No, sir.

By Mr. Pembleton: Q. Mrs .. Arnold, this letter you spoke of that you received.

from Bessie, you don't have that letter do you Y A. No. Q. Then it fs just your recollection tllat you did receive

such a letter at that time, is that righU A. No its no recollection, my daughter saw it, and it was

written on tablet paper, and I didn't think it had any value because my daughter and I baa made arrangements with

Anne R. A. w·. Blackburn, v. Linnae B. R. Hedgbeth, et al. 31

.A. TVaUon Redd.

Bessie to put it on, and pay her for the half when they made settlement.

Q. But the letter, as far as you know, is no longer any good¥

A. It may be here, but I have so many pnpers that I am not sure.

By :Mr. Kent: Q. :Mrs. Arnold, you stated a few minutes ago that to your

knowledge none of the children had raised any other claim other than a one-half proposition that you stated that you discussed with Bessie Redd r

A. That's correct. Q. Have you or your daughter, to your knowledge, claimed

any specific amounts as to the estate? Has there been any claims at all as to who owns wliat of the estate prior to the suit? ·

A. vVell it never I1as been any cause to make any claim because it was always acknowledged by everybody, it was a fact, generally known and accepted as far as I knew.

page 196 ~ And further this deponent saitl1 not.

Signatures waived by consent of counsel.

A. WALTON REDD, being recalled, deposes and says as follows:

Questions by l\fr. Kent: Q. Mr. Redd, do you recall having discussed the matter of

Scotchtown and the shares that the different people were to have with your wife during her lifetime?

A. Yes, sir. Q. Will you please state what these shares were, and how

the discussion came up 1 . A. \Vell it was the wish of l\f rs. Redd for her child to have

lmlf interest in it. She was willing for her to have half interest in it, and I think so stated to Mrs. Arnold, but sl1e ]ms got the amounts wrong in the cost. There was never any such figure as that anytime. Actually the thing cost less than a thousand dollars to put it on there. That was the wishes of l\frs. Redel that Annie or Anne Arnold as she calls her


A. Walton Redd.

to have· half· of it, but on the other hand, I heard her say time and again, n.umerous occasions that Aunt Lavinia took one sheet of five cent tablet paper and wrote her will that takes a Court to decide who it belonged to.

And further this depone~t saith not.

Signatures waived by consent of coun.sel.

• • • •

A Copy-Teste:

•

H. G. TURNER, Clerk.

INDEX TO RECORD

Page

Appeal Awarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

·wm of Lavinia S. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Decree of Reference-April 26, 1956 . .. . . . .. . .. . .. . . . . 3

Commissioner's Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Exceptions to Commissioner's Report by Annie Reams

Arnold ,v ojichowski Blackburn . . ......... ; . . . . . . 10

Opinion ........................................... 12

Order Confirming Commissioner's Report, &c. . . . . . . . . . . 24

Order Appointing Special Commissioners . . . . . . . . . . . . . . 26

Notice of Appeal and Assignments of Error ............ 27

Witnesses:

Andrew Walton Redd .............. · ............ 28, ·31

Annie Reams Arnold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

•

notice to counsel

Documents