Smith v. Smith's Adm'r. Virginia Court of Appeals: At Richmond. March 19, 1896

1896 The Virginia Law Register  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. VIRGINIA LAW REGISTER. VIRGINIA LAW REGISTER. context and the language of the instrument taken as a whole. We submit, that if the language is to "the woman and her children," they take-the woman and her children-a joint estate, unless there is some other language in the instrument manifesting the intention that the woman shall take the whole estate and the children nothing. " It was resolved in Wild's Case, as reported in 6 Coke's R. 228, and has been hitherto treated as an undeniable position, that under a devise to a parent and children,the children,if there be any,and if no manifest and certain intent appears in the will to the contrary, will take jointly with their parent by purchase." Judge Moncure in Nickell v. Hendly, 10 Gratt. at p. 344. It is true, it is broadly stated by Judge Lacy in Seibel v. Rapp, 85 Va. at p. 30, that " from the case of Wallace v. Dold, 3 Leigh, marg. p. 258, it has been held-with some respectable dissent at first-that the gift to the wife and her child was a gift to the wife-the reference to the children indicated the motive for the gift." The cases cited by him do not support the proposition as stated by him. They only show, as has been before mentioned, that when the gift is to the woman and her child or children, or is in trust for them, or like phraseology is used, the children are excluded only when it appeals from the context or the whole instrument taken together that it was the intention to exclude them. We insist that the resolution in Wild's Case, above cited, is still the law of Virginia, and that the decisions do not go counter to it, although some incautious expressions of the judges in delivering their opinions may give color to the contrary doctrine. We challenge the examination in detail of the cases to this point.
doi:10.2307/1098209 fatcat:odxibkehareerce5nz3qgjggyi