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((1923) 2 Ch. 565.) The testator here carried on a ceipt of board wages, in lieu of food, large business, with numerous em- did not participate in the bequest, ployees engaged in it, and he recog- apparently because it was thought nized his obligation to one, at any that he could not have been intended rate, of these

employees. If there by the testator to receive a sum so had been no authority upon the greatly in excess of that payable point I should have thought that in to the testator's indoor servants, the will of such a testator the term who, being dieted in the testator's "domestic servants,” in contrast household, and at his expense, rewith servants employed in his busi- ceived wages proportionately smallness, referred to those who were er in aniount. It is said now that employed by him to minister to the a decision based upon a ground so comfort and convenience of his do- narrow is to govern all future decimestic establishment, whether in sions on this question, arising on all town or country, irrespective of wills, whatever the circumstances of whether their work was carried on the testator, provided only that the in the house or outside. That would same or similar words are used seem to be the natural interpreta- therein. With the other members tion of the words in the mouth of of the court, I think that that canthis testator. But it is said that in not be so. At the same time I agree view of the decision in Ogle v. Mor- with what has been said by my lord gan, 1 De G. M. & G. 359, 42 Eng. that neither are we bound by the Reprint, 590, and other authorities decisions as to the meaning of the which followed it, the court is pre- expression "domestic servants" in cluded from attaching that meaning cases under the Unemployment Into the words in this will. Now, look- surance Act. On the whole, howing first at Ogle v. Morgan, supra, ever, looking at the wording of this one sees at once how slight is the will in view of all the relevant cirjustification for treating it as a lead- cumstances of the case, I am of ing case of general application for opinion that these appellants are enall time. It was there decided that titled to share in this gift. a gardener must be excluded from Appeal allowed. sharing in benefits given to "serv

Solicitors: Batten & Co., for all ants in my domestic establishment"

parties. by the will of a nobleman who had obviously no business employees,

NOTE. and of whom it could not be affirmed that he used the expression “do- Devise or bequest to beneficiary desmestic establishment” in contradis. ignated only as one who shall render tinction, in any sense, to his busi- service, or occupy specified position or ness or any other establishment. In status other than mere relationship, those circumstances it was there is the subject of the annotation comheld that a gardener who was in re- mencing post, 775.


J. E. BURTON et al.

Virginia Supreme Court of Appeals – November 18, 1923.

(137 Va. 502, 120 S. E. 261.) Wills, $ 201 - bequest to one caring for testator in last illness - validity.

, 1. A will leaving property to "those who shall take care of me during

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my last days, whoever they may be," is not void for vagueness or uncertainty nor because not wholly in writing.

[See note on this question beginning on page 775.] Wills, % 201 validity description the one "who shall take care of me of legatee.

during my last days” is sufficiently 2. A will is not invalid because it

identified by evidence that testator, does not designate the devisee or

when making the will, suggested to legatee by name, if he is so described as to be readily ascertained and iden

the scrivener that it would probably tified by the aid of extrinsic evidence. be the one with whom he was then [See 28 R. C. L. 275.]

living, and that he stayed at such Wills, $ 201 - necessity of testator person's house until a few days before

a having object of bequest in mind. his last illness, when he left to attend 3. A testator need not have in mind

a funeral, was taken ill before his rethe particular individual upon whom

turn, but immediately brought back his bounty will fall if he makes the object of his bequest ascertainable

by the person named, who furnished with certainty.

all possible care until his death, al[See 28 R. C. L. 275.]

though death occurred within a short Evidence, $ 1508 - designation of

time after the return, and there is legatee sufficiency.

some evidence of negotiations for 4. A legatee described in a will as other care.

APPEAL by petitioner from a decree of the Corporation Court of the City of Staunton (Ker, J.) construing the will of Rebecca H. Burton, deceased, in favor of her son. Reversed.

The facts are stated in the opinion of the court.

Messrs. Rudolph Bumgardner and 2 Minor, Real Prop. § 1067; Early J. A. Alexander, for appellant:

v. Arnold, 119 Va. 500, 89 S. E. 900; The devise to "those who shall take Sims v. Sims, 94 Va. 584, 64 Am. St. care of me during my last days, who- Rep. 772, 27 S. E. 436; Sprinkle v. ever they may be,” is a valid devise Hayworth, 26 Gratt. 392. of property.

The beneficiary, if not named in Dennis v. Holsapple, 148 Ind. 297, the will, must be susceptible of cer46 L.R.A. 168, 62 Am. St. Rep. 526, tain and exact identification. 47 N. E. 631; Lear v. Manser, 114 Me. Summers v. Summers, 198 Ala. 30, 342, 96 Atl. 240; Summers v. Summers, L.R.A.1917C, 597, 73 So. 401; Stubbs 198 Ala. 30, L.R.A.1917C, 597, 73 So. v. Sargon, 3 Myl. & C. 507, 40 Eng. 401; McBride v. McBride, 26 Gratt. Reprint, 1022; Powell V. Davies, 1 476.

Beav. 532, 48 Eng. Reprint, 1047; The identity of the beneficiary is Blackburn v. Stables, 2 Ves. & B. 367, clearly established by the parol evi- 35 Eng. Reprint, 358; Bate v. Amherst, dence in the case.

T. Raym. 82, 83 Eng. Reprint, 45; McBride v. McBride, supra.

Murdock v. Bridges, 91 Me. 124, 39 A decedent is entitled to have Atl. 475. a testamentary trust administered by a friendly hand in sympathy with his

Burks, J., delivered the opinion of wishes and desires, and fair effort

the court: made to give his testamentary paper

Rebecca H. Burton, a spinster of force and effect.

seventy-six years, made a will by Re Pritchard, 30 Wash. L, Rep. 9; which she gave to her natural son Roy v. Roy, 16 Gratt. 418, 84 Am. Dec.

$1, and disposed of the residue of 696; Allison v. Allison, 101 Va. 537,

her estate as follows: 63 L.R.A. 920, 44 S. E. 904. Messrs. Timberlake & Nelson, for

“After the payment of my debts appellees:

and funeral expenses, and the above The will in question is so vague and

legacy of one dollar, I devise and uncertain that it must be declared bequeath all the rest and residue of null and void.

my estate, of every kind and nature,

may be.

(137 Va. 502, 120 S. E. 261.) to those who shall take care of me B. Bosserman, a resident of the city during my last days, whoever they of Staunton, claims that the paper

above named is a good and valid "I cannot now name them by will, and that he is entitled under name, as I at this time have no said paper to the entire estate of home and will do the best I can to the said Rebecca H. Burton. find a place to spend my last days, “Under this state of facts, your and it is to those who shall take complainant is advised that he is care of me during my last days that entitled to come into a court of I want the said residue of my estate equity and have the court construe to go in fee simple."

said paper and advise him as to how The will bears date February 18, he shall administer and settle the 1920. At that time she was stay- estate of the said Rebecca H. Buring at the home of the appellant, ton, deceased." and was in normal health. On J. E. Burton, the illegitimate son March 18, 1920, she went to the of the testatrix, and appellant, were home of her sister in the neighbor- made parties defendant, and filed hood to attend the funeral of her their several answers, in which they brother-in-law, and on March 21 set forth their respective claims to she was taken suddenly ill, and ap- the estate. Evidence was taken, pellant was notified of the fact, and and the trial court, being of opinion he and his wife went after her in that the appellant, “L. B. Bosseran automobile and brought her to man, does not answer the descriptheir home, where she died on tion of the person designated and March 25. A few days after her described by the testatrix in her death her will was admitted to pro

last will and testament as the perbate, and the appellant claimed the son entitled to take her estate at residuary legacy. On November 7, .

her death," directed the executor, 1920, the bill in this cause was filed after the payment of debts and by the executor of Rebecca H. Bur- costs of administration, to "turn ton, in which the following charges, over the residue of said estate to allegations, and statements are John E. Burton, the only child and made:

heir at law of the testatrix." From "Your complainant is advised, be- that decree an appeal was taken by lieves, and charges that the paper L. B. Bosserman. writing above mentioned is so vague, In the brief of counsel for the apuncertain, and indefinite that it is pellee John E. Burton, it is said: in law null and void and of no effect, “The two clear-cut and distinct but your complainant desires to ask grounds upon which our claim of the aid and advice of your honora- invalidity is based are: ble court in a construction of said "First, that the will is so vague paper as to whether said paper is and uncertain that it must be dein fact null and void and of no effect clared null and void; and, further, and should be so treated by your that it does not satisfy the requirecomplainant in the administration ment of our statute requiring part of the estate of the said Rebecca H. of a will to be in writing; and, Burton.

second, that the evidence conclu"Your complainant is further ad- sively shows that it was not the purvised, believes, and charges that pose or intention of testatrix, either there is no person in existence who at the time the will was drawn, or could claim properly to come under at any time thereafter, that appelthe provisions of said paper if it lant should become the beneficiary should be construed to be a valid of her will. and legal will of the said Rebecca H. "The learned court below did not Burton.

pass upon the first question for the "Your complainant, however, has reason that the evidence demonheard and been advised that one L. strated to its satisfaction that the

38 A.L.R.-49.

testator in last

second ground was so well taken by the aid of extraneous facts. It that it was not necessary to pass was, at least in this respect, suffion any other question.”

ciently certain as to fall within the The will is not void for vagueness principle of the ancient maxim of

or uncertainty, nor the law, 'id certum est quod certum Wills-bequest to one caring for because not wholly reddi potest.””

in writing. It is Lear v. Manser, supra, is on all illness-validity.

not essential to the fours with the case in judgment. validity of a will that a legatee or In that case the testator devised devisee shall be designated by name and bequeathed all the residue of in the will. It is sufficient if he be his estate "to my said executor, so described therein

in trust, to be paid by him to such -validity-description of as to be readily as- person or persons, or such institulegatee.

certained and iden- tion as shall care for me in my last tified by the aid of extrinsic evi- sickness, such payment to be made dence. The extrinsic evidence in to the person or persons, or institusuch cases does not create the leg- tion, or any or all of them as may atee or devisee, but simply points in the discretion of my said executor out the person described in the will. be equitably entitled thereto, and It applies the will to the objects or the payment by my said executor subjects therein described or re- and receipt taken by him therefor ferred to. 1 Redf. Wills, 4th ed. 274; shall be a sufficient voucher and dis30 Am. & Eng. Enc. Law, 2d ed. 682; charge to him under the provisions Dennis v. Holsapple, 148 Ind. 297, of this item.

of this item. This provision of my 46 L.R.A, 168, 62 Am. St. Rep. 526, will is to be considered a legacy or 47 N. E. 631, and cases cited; Roy bequest and not as a performance v. Rowzie, 25 Gratt. 599; Hawkins of any contract obligation on my . . v. Garland, 76 Va. 149, 44 Am. Rep. part.” 158.

It was held that the will created “Nor is it essential that the tes- a private trust in favor of the detator have in mind the particular fendant, who cared for the testator individual upon whom his bounty in his last sickness, and that she

may fall. If he was sufficiently specified and desig-necessity of testator having makes the particular nated by the will; that it was unobject of be

object of his bequest in mind.

necessary to designate the benequest ascertainable ficiary by name, or that the testator with certainty that will be suffi- have in mind the particular individcient." Lear v. Manser, 114 Me. 342, ual who would become the bene96 Atl. 240; Knowles v. Knowles, ficiary under his will. It was said, 132 Ga. 806, 65 S. E. 128.

among other things: “It is not reIn Dennis v. Holsapple, 148 Ind. quired that the beneficiary of a pri297, 46 L.R.A. 168, 62 Am. St. Rep. vate trust should be designated by 530, 47 N. E. 631, in speaking of a name in the instrument creating the very similar bequest to that here trust. Some other designation will under consideration, it is said: “It suffice if it make certain the beneis true, as insisted, that it did not ficiary intended. Nor is it essential name any particular person as dev- that the testator have in mind the isee, nor was there anyone at the particular individual upon whom his time of its execution who occupied bounty may fall. If he makes the the status, or answered to the bene- particular object of his bequest asficiary therein described; still, how- certainable with certainty, that will ever, it so designated the person be sufficient. Gifts in trust for a whom the testatrix contemplated specified class of persons, or for and intended should have the estate persons specifically defined and debequeathed that he or she, by the scribed, though not named, are not means thereof, at her death, could void for uncertainty in respect to be clearly identified and ascertained the beneficiaries, because such bene


(137 Va. 502, 180 S. E. 261.) ficiaries are capable of identification ful in construing the will here in by the terms of the instrument controversy. creating the trust." See also 1 Sims v. Sims, 94 Va. 584, 64 Am. Redf. Wills, 4th ed. 275.

St. Rep. 772, 27 S. E. 436, and In 28 R. C. L. 275, the law on this Sprinkle v. Hayworth, 26 Gratt. subject is stated as follows: "It is 384, are relied upon to support the not necessary for a testator to give proposition that every part of a will the full name or description of a must be in writing. That proposilegatee or devisee, in order to give tion is not disputed, but it has no effect to the bequest. It is sufficient application to the case in judgment. if the beneficiary is designated with Every part of the will is in writing, reasonable certainty; and in such a and the only question involved in case the beneficiary may be identi- this branch of the case is: Can a fied by parol evidence of surround- legatee in a will be designated by an ing facts and circumstances. Such adequate description by which he evidence is admissible to show the can be readily ascertained and idenlegatee, either where the descrip- tified by the aid of parol evidence, tion in the will applies to several, as well as by name? We do not or when it does not apply to any doubt that he can be. with accuracy

Extrinsic evidence, Having determined that the will in such cases, does not create the is not void for uncertainty, we pass devisee or legatee, but only serves to the inquiry whether there are . to point out the person intended as any persons who answer the descripsuch by the testator in his will.”

tion of the residuary legatees given In Summers v. Summers, 198 Ala. in the will. 30, L.R.A.1917C, 597, 73 So. 401, a

The testatrix was seventy-six different conclusion was reached, years of age, and had by her own but the only opinion delivered was labor and strict economy accumulatthat of the minority judge, whose ed an estate of $1,800. She was in whole argument is adverse to the a normal condition of health and conclusion of the majority, and it is vigor for one of her years, but she said by the annotator in L.R.A. had no home where she could expect. 1917C, supra, that the conclusion of the care and attention which her the majority of the court is "not advancing years admonished her in accord with other cases involving would soon be needed, and she had a similar situation."

no near relatives who were in a conEarly v. Arnold, 119 Va. 500, 89 dition to provide the same for her, S. E. 900, is relied on by the ap

except her natural son, who lived in pellees in support of the contention

Kentucky. She had a maiden sisthat the bequest in the case in judg- ter, Kate Burton, who was also adment is too vague and uncertain to

vanced in years, and practically be enforced. In that case there was

without means, a brother, William a devise to a son, with a remainder C. Burton, who lived at Parnassus, over, if he died without heirs, "to

in Augusta county, who had a famwhoever has been his best friend." ily of his own, but was not in condiThe son made a will declaring that

tion to provide her a home, and a his uncle and aunt had been his best

sister, Susan Alexander, the wife friends. The court held that the

of J. W. Alexander, who lived in

Augusta, but were both old and devise of the remainder over was

feeble, and had contracted with a void for uncertainty, that who had

neighbor to give him their property been the best friend of the son in

in consideration of the fact that he his lifetime was not susceptible of would look after and care for them proof, and that even the will of the the residue of their lives. She Iso son showed an inability on his part had two nephews living in West Virto discriminate between his uncle ginia, one of whom had for some and his aunt. The case is not help- years provided a house at Parnassus

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