Appeal from a judgment of the Circuit Court of Russell County. Hon. Glyn R. Phillips, judge presiding.
Cochran, J., delivered the opinion of the Court.
The question for determination in this appeal is whether the illegitimate son of a male devisee under a will is "issue" of the devisee within the meaning of the will.
James P. Keith died on February 15, 1904, leaving a will dated February 10, 1904, and probated in May of 1904. The will contained the following provisions:
Fourth: I will my grandson W. S. Salyer also one third of all my Real Estate to be given him on the upper end of my farm and if he should die without Issue, I then want Jennie Vicars my Daughter to have it during her life, and then to go to her son Garfield if he is living, but if he die without issue then to go to her son Hobart Vicars.
In 1978, Mary Lee Vicars, Rufus H. Vicars, Vivian Vicars, Oshia Arbutus Stivers, Ancil M. Vicars, Shirley Vicars, Cecil E. Vicars, Judy Vicars, and Ossie Lee Nickles, filed a bill of complaint in the trial court seeking construction of the Fourth clause in the Keith will. They alleged that W. S. Salyer never married and that he died without issue in 1956, predeceased by Jennie Vicars, and by Garfield Vicars, who also died unmarried and without issue, leaving Hobart Vicars as the devisee under the Fourth clause of a tract of land containing approximately 55 acres described by metes and bounds. Complainants alleged that Hobart Vicars died intestate in 1971 leaving his widow, Mary Lee Vicars, and his children, Rufus H. Vicars, Oshia Arbutus Stivers, Ancil M. Vicars, Cecil E. Vicars, and Ossie Lee Nickles, the owners of the tract. They further alleged that Gilbert Willard Salyer, who "apparently" had been adopted by W. S. Salyer, and his wife purported to convey the land in 1977 to Lois Frances Mullins, who, with James A. Mullins, her husband, purported to convey a part of the land in 1978 to Raymond Howard Mullins and Emma Lou Mullins.
The bill of complaint named as defendants Lois Frances Mullins, James A. Mullins, Raymond Howard Mullins, and Emma Lou Mullins. Complainants sought an order to restrain defendants from going upon the land, an award of rents and profits for the period defendants unlawfully detained the tract, and an adjudication that complainants were the owners of the tract under the Keith will or by adverse possession. Defendants filed an answer alleging that Gilbert Willard Salyer was the natural as well as the adopted son of W. S. Salyer, that he was W. S. Salyer's issue, that he acquired the land as W. S. Salyer's sole heir at law, and that defendants as purchasers were Gilbert's successors in title.*fn1
The trial court referred the case to a commissioner in chancery to report on the matters in controversy. In his report, the commissioner summarized the evidence taken before him. He stated that W. S. Salyer, also known as Scott W. Salyer and Willard Scott Salyer, adopted Gilbert Willard Johnson on May 18, 1918, and that defendants offered evidence to show that W. S. Salyer was the natural and biological father of Gilbert, who was born in 1901. The commissioner reported that W. S. Salyer did not marry Maggie Johnson, Gilbert's mother, and that defendants offered evidence that her father threatened to prosecute W. S. Salyer because of her pregnancy and that James P. Keith paid $500 to her parents "to stop the prosecution."
The commissioner found that W. S. Salyer had not complied with the applicable statute as required to legitimatize an illegitimate child and that the adoption did not make Gilbert legitimate. Accordingly, the commissioner was of opinion that Gilbert was not W. S. Salyer's "issue" within the meaning of the Fourth clause of the Keith will. He concluded that Hobart Vicars became vested with fee simple title to the land upon W. S. Salyer's death in 1956. The commissioner reported that Hobart died intestate in 1971, that his widow, Mary Lee Vicars, thereafter conveyed her dower interest to Ossie Lee Nickles, and that the land was owned by Hobart's five children, complainants Rufus H. Vicars, Oshia Stivers, Ancil Vicars, Cecil Vicars, and Ossie Lee Nickles, with
Nickles also owning her mother's dower interest.*fn2 The commissioner further reported that the land described in the bill of complaint incorrectly included a parcel of 1-1/2 acres acquired by W. S. Salyer by purchase.
Defendants filed exceptions to all portions of the commissioner's report except the finding as to the 1-1/2 acre parcel. The trial judge filed a written opinion dated July 29, 1981, in which he stated that defendants' exceptions should be sustained, "that the defeasible fee of W. S. Salyer vested in him as Fee simple upon his death with issue, and then passed to his adopted son Gilbert Willard Salyer by the Virginia laws of descent and distribution." In the opinion, the judge made findings of fact which amplified those in the commissioner's report. For example, the judge found unequivocally that Gilbert Willard Salyer was the natural and biological son of W. S. Salyer. He also found that W. S. Salyer offered marriage to Gilbert's mother, Maggie Johnson, but that the offer was rejected by her father who instead threatened prosecution, and that Keith (who the record shows was at that time the legal guardian of W. S. Salyer, a minor) borrowed $500 and paid it to Maggie's father as a "paternity fee."
The opinion itemized the evidence upon which the judge relied, including the written consent of Gilbert Willard Johnson and his mother, Maggie Johnson Castle, which was filed with W. S. Salyer's petition for the adoption of Gilbert and the change of his name to Salyer.*fn3 The judge reached the conclusion of law that Gilbert was issue of W. S. Salyer within the meaning of Keith's will. A final decree entered by the trial court on September 3, 1981, confirmed that title to the land passed to Gilbert as sole heir at law of W. S. Salyer and thereafter to defendants as Gilbert's successors in title. The decree approved, without objection, the commissioner's finding that the 1-1/2 acre parcel was not a part of the land devised under the will.
As the trial court concluded, under the Fourth clause of Keith's will the testator devised to W. S. Salyer a fee simple estate defeasible if Salyer were to die without issue. See Daniel v. Lipscomb, 110 Va. ...