The times. [volume] (Richmond, Va.) 1890-1903, 1897-03-19

tcct applicants for insurance ineXpc-
rienced in such matters by requiring that
conditions and restrictive provisions shall
not constitute a defence unless printed IN
, the policy In bold type. but II does not
prohibit such limitations and restrictions
upon the liability OF the company II
printed in type OF the required size and
plainness. II defence could have been
made on this point I'm the lower court II
Is not doubted II would have been there
made. Not having been made there. II
cannot be made In This court for the nrst
time Warren ". Warren. % Va. The
Judgment IS here upon a certificate OF the
evidence and Is 10 be considered as upon
a demurrer 10 evidence. Every presump-
ton is I'm favor Of rs correctness, and il
cannot be disturbed unless error TO the
prejudice Of the plalntin in error be made
10 appear upon tho record.
CONSTRUCTION or \ WILL.
Cfeatnam etc vs. Cover. Reversed.
Opinion by Judge Cardwen.
II give to my nephew, T. NJ CHEAT
ham. during his life. my mansion house
and 500 acres Of land, including my mill,
and the land known as the Burfoot tract.
and at his death tc his surviving chill
drcn." is the first and material paragraph
OF the will in this case. The agreed
several hours before the death OF testa-
trix. who was about seventy years old.
that she was well acquainted with
Cheatham and his wife. who were young.
and with their three children. the oldest
being only three or four years old, tina,
they had previously lost two children;
that testatrix knew the names Of all tie
children. and the character ana habits
of Cheatham. who was an improvident
man: that the land devised was at the
time a good farm. with comfortable
buildings and a grist-mill on IL. and
was "a source Of considerable income.
After the death of testatrlx. and dur
ine Cheathams life two of his children
died. one an infant. and the other mar
ried and leaving a husband and one child.
There were born 10 Cheatham after tes-
tafrix's death. three children. az or
whom. together with the one that was
living during testatriN's life. ana the
infant OF the deceased married daughter.
survived him.
The Court below held that the land de-
viscd passed TO Chcatham for his life
with vested remainder n the children
living at tcstatrix s. death, that on the
death OF one. unmarried and an infant.
her share passed TO her father. and WIS
subject 10 bis debts. subject &c his wid-
ows dover, that the share OF tho de-
ceased married daughter descended 10
her infant chad. and that the children
Of Cheatham. born after the testatrix s.
death. take no interest IN the land.
Held. J. The rule that after a devise
or bequcst for the life Of the first taKer
words Of survivorship are always re-
fcrred 70 tie period Of the testato s.
10 the contrary" is settled rule Of con-
struction and has been properly applied
in many Virginia cases. from Hansforo
VS. Elliott. in Leigh. 10 Stanley VS..
Stanley. - % Va. il is equally well set
tied that the law favors the vestine OF
estates at tho earliest time consistent
with the Will and sound public policy.
but the construction Of wills depends so
much upon the peculiar expressions used
in each that not much can be derived
from adjudqed cases. Olncy vs.. HUI.
Il Pick. 3ll.
In the "a and 4th clauses OF tho viii
the be0ucsts are 10 IL. l.. Testers and T.
NJ Chcatham's children" and there can
Doe no question that the gift is 10 all The
children of Lester and Chcatham. There
are no conditions attached and words Of
surviv0rship are not used. But in the
fILNrF NlAfi fhlIrIflf.i ION l4llflfliA iaNi7
puaee is omploycd-"to my nephew r.
NJ. Choatham during his life and
HIS DEATH 10 HIS SURVIVING
CHILDREN" showing different inten-
ti0n-au intention 90 provide him with
home for life and after his death FOR
such of his children ass might survive
HIM.
Those living at her death were provided
for by the "a and 4th clauses Had she
reasonable 90 suppose she would have
used the same words I'm the 1st clause.
or named the children or omitted tho
word Surviving" Any other con-truc-
ton would violate another wcll-known
rule thar III possible some effect must De
given 10 every word Of the will
The conclusion is that "a true intcrpre-
tation of the LIST clause is 90 this effect:
that "a. Of The children ~ Cheatham.
including those born after testatriX
death who were living at his Cheat
ham's) death. and these only. took AN
interest IN the property therein devised.
MANDAMUS.
Kerfoots Ex'cr US. shcn. Valley Nation
al Bank Petition for Mandamus. De
MED. Opinion bv Judge Cardwcll.
Kerfoot died. leaving "a will by which he
undertook 10 make preferences among
his creditors ana among the preferred
was the bank.
Tho will was sustained I'm tho lower
court. and the executor paid the bank
I'm fun telling the officers that there
would be an appeal. and that II the debts
shout be ordered pro rated. the bank
wou. have 20 pay back any excess re-
cofved. which was agreed 10. The debts
were pro rated. and suit was brought
against the bank for excess. Assump
sit with the common courts. and spe-
cial court setting ont the facts. Plea in
abatement al rules. demurred 10 and
demurrer sustained as 20 the plea and
held also TO involve a demurrer by dee
PENDANT 10 second court OF declaration as
stating a cause of action which could only
De asserted On the suit in chancerv pend
Ing for the construction of the will. with
permission 70 plaintiff 10 amend his bill
of particulars and continuing the cause
10 the next term.
Petition for mandamus on tho ground
thar the plea having been thrown ont
of the case on demurrer. there was no
defence TO the action. and that an office
Judgment should have been entered by
the clerk becoming a final judgment on
the adjournment Of the court. and tho
PRAYER that mandamus issue against the
clerk 20 compel him TO enter up such
judgment.
The defence is that no office Judgment
could have been entered by the clerk. be-
cause Of the plea filed at rules and iudg-
mcnt could be rendered thereafter only
by the court The court entered none.
hut continued the case 10 enable plain
tiff to amend his bin Of particulars.
Pryor W.. Commonwealth Affirmed.
Opinion by Rely J. This case IS OF 10
general interest