McCamant v. Nuckolls

Citations

• 85 Va. 331
• 12 S.E. 160
• 1888 Va. LEXIS 40

Syllabus

<p>1. Wills&emdash;Construction&emdash;Discretionary powers&emdash;-Trusts.&emdash;Intention is the life of a will, and when clear and violates no rule of law, it must govern with absolute sway. In a discretionary power, the party may act, or not act in his discretion. In a trust, though the party may omit to act, yet the trust will be executed. In the former, if the party exercises his discretionary power honestly, the chancery court will not interfere.</p> <p>2. Idem&emdash; Case at bar.&emdash;P., by clause 1, devises his land, except “ B. place,” to his wife, during widowhood, to use as she sees proper, and to dispose of as she sees proper, according to the necessities of his five daughters. By clause 4 he directs that after his wife’s death his property be equally divided between his five children, unless his wife sees proper, while in her natural mind, to make such difference as she thinks the health and necessities of the children demand. By clause 2 he provides that after paying his debts, all his children shall come into hotchpot and his remaining personal property be equally divided among them. By clause 3 he gives his wife such property as she may select as necessary for herself and family. Widow survived husband eighteen months. She made no distribution under clause 2; but she gave the larger part of the personal property to her afflicted single daughter, L. By her own will she exercised the said powers, and gave to said L. the furniture, stock, money, grain, hay and meat on hand, and one-half the lands, except B.; the other half and the small remnant of personal property she gave to the other four daughters. In suit to^onstrue these wills ;</p> <p>Held :</p> <p>1. Clauses 1 and 4 gave to widow estate for widowhood in all the lands, except B., as to which testator died intestate, and also the power to divide the remainder interest between the five daughters, discriminating at her discretion, and the division, being bona fide and not illusory, is not unde