(2)BRANT v. VIRGINIA COAL AND IRON COMPANY ET AL.

October Term, 1876

APPEAL from the Circuit Court of the United States for the District of West Virginia.

In April, 1831, Robert Sinclair, of Hampshire County, Va., died, leaving a widow and eight surviving children. He was, at the time of his death, possessed of some personal property, and the real property in controversy, consisting of one hundred and ten acres. By his last will and testament he made the following devise: 'I give and bequeath to my beloved wife, Nancy Sinclair, all my estate, both real and personal; that is to say, all my lands, cattle, horses, sheep, farming utensils, household and kitchen furniture, with every thing that I possess, to have and to hold during her life, and to do with as she sees proper before her death.' The will was duly probated in the proper county.

In July, 1839, the widow, for the consideration of $1,100, executed a deed to the Union Potomac Company, a corporation created under the laws of Virginia, of the real property thus devised to her, describing it as the tract or parcel on which she then resided, and the same which was conveyed to her 'by the last will and testament of her late husband.' As security for the payment of the consideration, she took at the time from the company its bond and a mortgage upon the property. The mortgage described the property as the tract of land which had on that day been conveyed by her to the Union Potomac Company.

In 1854 this bond and mortgage were assigned to the complainant and Hector Sinclair, the latter a son of the widow, in consideration of $100 cash, and the yearly payment of the like sum during her life. Previous to this time, Brant and Hector Sinclair had purchased the interest of all the other heirs, except Jane Sinclair, who was at the time, and still is, an idiot, or an insane person; and such purchase is recited in the assignment, as is also the previous conveyance of a life-interest to the company.

In July, 1857, these parties instituted suit for the foreclosure of the mortgage and sale of the property. The bill described the property as a tract of valuable coal land which the company had purchased of the widow, and prayed for the sale of the estate purchased. Copies of the deed of the widow and of the mortgage of the company were annexed to the bill. In due course of proceedings a decree was obtained directing a sale, by commissioners appointed for that purpose, of the property, describing it as 'the lands in the bill and proceedings mentioned,' if certain payments were not made within a designated period. The payments not being made, the commissioners, in December, 1858, sold the mortgaged property to one Patrick Hammill, who thus succeeded to all the rights of the Union Potomac Company.

The defendant corporation, the Virginia Coal and Iron Company, derive their title and interest in the premises by sundry mesne conveyances from Hammill, and in 1867 went into their possession. Since then it has cut down a large amount of valuable timber, and has engaged in mining and extracting coal from the land, and disposing of it.

Brant, having acquired the interest of Hector Sinclair, brought the present suit to restrain the company from mining and extracting coal from the land, and to compel an accounting for the timber cut and the coal taken and converted to its use.

The court below dismissed the bill, whereupon Brant brought the case here.

Argued by Mr. John J. McKinnon and Mr. George W. Brandt for the appellant.

Under the will, Nancy Sinclair took only a life-estate. The testator having failed to devise the fee, it descended to his heirs. She had no power, nor did she attempt to divest them of it.

Real and personal property of an intestate is, under the statute of Virginia, distributed equally among his heirs-at-law. The rule is the same where the owner in fee of lands devises them to another for life, without making any specific disposition of the inheritance.

A rule never to be lost sight of in the construction of wills is, that the heir is not to be disinherited without an express devise, or implication importing so strong a probability, that an intention to the contrary cannot be supposed. 1 Redf. on Wills, p. 425, n. 5, p. 434, sect. 18; Allen's Ex'r v. Allen, 18 How. 391.

Negative words are not sufficient to exclude the title of the heir. There must be an actual gift to some other definite object. Fitch v. Weber, 6 Hare, 145; 1 Redf. on Wills, 425.

Courts will look at the circumstances under which the devisor makes his will, as to the state of his property, his family, and the like. 1 Redf. on Wills, 425.

In a deed, the words govern the intention. In a will, the intention governs the words. Edwards v. Bibb, 43 Ala. 666.

It is an old and equitable rule, that the reversion is not to be defeated, or the heirs despoiled by implication, without express words. Dashwood v. Peyton, 18 Ves. 40.

No words authorizing Mr. Sinclair to sell and convey the fee can be found in the will, either in connection with the life-estate or elsewhere. The leading case of Bradley v. Westcott, 13 Ves. 445, is strikingly analogous to that at bar. In both there is an express devise for life, followed by an ambiguous authority or discretion; and in each the authority or power is confined to natural life.

Applying the doctrine in that case to this, it cannot be contended that the still less potent and greatly more ambiguous language following the express devise for life in this case is to have a different meaning or be differently construed. Smith v. Bell, 6 Pet. 80, Gregory v. Cowgill, 19 Mo. 415, Boyd et al. v. Strahan, 36 Ill. 355, Seigwald v. Seigwald, 37 id. 431, and Cox et al. v. Butt et al., 22 Ark. 568, are to the same effect as Bradley v. Westcott, supra, and settle the question as to what estate Mrs. Sinclair took, and what power she had under the will.

The complainant is in no manner or way estopped by reason of the foreclosure proceeding or by the sale thereunder. To estop him in any view of the case, the defence must show that his language or conduct was the direct motive or inducement to the purchase. This has not even been attempted. Ware v. Cowles, 24 Ala. 446; Jones v. Cowles, 26 id. 612; Brewer v. Brewer, 19 id. 431; Morton v. Hodgdon, 32 Me. 327; Cambridge Inst. v. Rittlefield, 6 Cush. 216; Watkins v. Peck, 13 N. H. 360; Darlington's Appeal, 1 Harris, 430; Carpenter v. Stilwell, 1 Kern. 61.

Ignorance of the true state of the title on the part of the purchaser must concur with wilful misrepresentation or fraudulent concealment on the part of the vendor. Crest v. Jack, 3 Watts, 238; Hepburn v. McDowell, 17 Serg. & R. (Pa.) 383; Ferris v. Coover, 10 Cal. 509; Casey v. Inloes, 1 Gilm. 430; Lawrence v. Brown, 1 Seld. 394; Hill v. Epley, 7 Casey, 331; Goodson v. Beacham, 24 Ga. 150; Parker v. Parker, 2 Met. 421.

No estoppel will arise in the absence of actual fraud, unless the purchaser was not only ignorant of the true state of the title, but had no means of acquiring knowledge by a recourse to the record. Bigelow v. Topliff, 25 Vt. 273; Carter v. Champion, 8 Conn. 554.

Argued by Mr. E. Wyatt Blanchard for the appellee.

Notwithstanding the assumed defect in Mrs. Sinclair's original title under the will, the appellant is entitled to no relief, and is estopped from denying the validity of the appellee's title: first, as privy in estate of Mrs. Sinclair, under whom he claimed in the foreclosure proceedings; second, by his own declarations of record in those proceedings, his non-assertion at that time of the title he now claims, and by various acts in connection with the foreclosure sale, and subsequently thereto.

It is not necessary to the application of the doctrine of estoppel that fraud in fact should be charged or shown. It rests on a broad principle of equity, which will not permit a party to a transaction, even when made under a mistake of title, to receive its fruits, and afterwards repudiate it. Assertions innocently made, but which mislead others; silence as to conflicting claims, or as to facts which should have been disclosed; recitals in deeds; descriptions of title; covenants; warranties,—all or any will give rise to the application of this principle for the protection of a purchaser, in the class of cases known as cases of constructive fraud.

It is a principle of universal application, that a person assenting to an act, and deriving and enjoying a title under it, shall not be permitted to impeach it. 2 Wash. Real. Prop. b. 3, p. 472; 11 How. 322, 325, 326; 5 Johns. Ch. 184; 1 id. 354; 12 Wall. 358; 13 id. 291.

Nor can any controlling authority be found for applying the rule caveat emptor to this class of cases.

The evidence is uncontradicted, that the sum agreed to be paid to Mrs. Sinclair was at the time the full value of the property in fee-simple, subject to the life-estate reserved by her. Whatever, therefore, she conveyed was to be paid for as a fee-simple estate. Her acceptance of the mortgage in fee, to secure the payment of the purchase-money, was a distinct act in pais, recognizing the existence of a title in fee in the Union Potomac Company.

In the application of the doctrine of estoppel, the question whether the acts done by the parties are legally effectual is excluded. The sole question is, What did they intend to do? In this case, the conclusion is irresistible, that Mrs. Sinclair intended to part with the fee for a then fair price. Her opinions, purposes, or unknown views must yield to the force of her solemn acts; and for the protection of others against her and her privies in estate, if the purchaser believed himself acquiring a fee as against her and them, his estate is a fee. Although it is not intended to charge that the complainant in this and in the foreclosure case committed the fraud of conducting that proceeding with his present opinion of his title, or with the purpose of selling the lands, receiving the proceeds, and then reclaiming them, the effect is the same as if he had acted with such guilty purpose. Every line of the record of that proceeding shows that the officers of the court did not sell the life-estate of Mrs. Sinclair, but that they did offer 'the lands mentioned in the proceedings,' with that life-estate reserved, in such explicit terms, that no successful bidder could fail to conclude that he was the purchaser of the fee.

The power of disposition of Mrs. Sinclair, under the will of her husband, equally affects all descriptions of the property devised. Nothing is to be found in the will to indicate any purpose on his part to distinguish her dominion over his real and personal estate.

The construction claimed by the appellant requires that the words of power shall be held to refer to the words creating the estate, so as to read, 'to have and to hold during life, and to do with as she sees proper, according to the powers of a life-tenant.' When the testator gave all to his wife, to have and to hold during her life, he, without superadded words, gave every power incident to that estate. The appellant, in effect, rejects the words of power, and treats them as surplusage.

That construction rests on the presumed intention of the testator to die intestate as to the remainder of his effects, real and personal, in order that they might pass to his heirs-at-law subject to the life-estate devised to his wife; but such intention is not to be presumed if any other construction be possible, especially where a devise like this is of the testator's entire estate. 2 Preston on Estates, 103. Where the devise is general, with words added implying a power of disposition, the devisee takes a fee.

Where an express estate for life is given with such words of power added, the devisee takes an estate for life, and the power must be exercised. 2 Preston on Estates, 81, 82; Cruise, tit. Devise, c. 13, sect. 5; Jackson v. Robins, 16 Johns. 537; Stevens v. Winship, 1 Pick. 318; Reid v. Shergold, 10 Ves. 370; Guthrie v. Guthrie, 1 Call, 7; Shermer v. Shermer's Ex'r, 1 Wash. 266; Burwell v. Anderson, 3 Leigh, 355; 2 Johns. 392; May v. Joynes, 20 Gratt. 692. The power is a distinct gift, and is not limited to a disposition of the life-interest, but will pass the fee. 3 Lomax, Dig. 317; 2 Preston, 81, 82; 8 Viner's Abr. 234, 235, sects. 2, 3, 4, 9, 8, 14. Nor is any special form of words necessary to give the power of disposition of the fee to the life-tenant.

The current of authority is unbroken, that words of power following a gift for life, and uncontrolled by other parts of the will, give either a fee, or a life-estate with power to dispose of the fee. Mrs. Sinclair's deed, therefore, either conveyed, and was meant to convey, nothing, or was intended to operate according to the legal effect of its words

upon the reversion. MR. JUSTICE FIELD stated the case, and delivered the opinion of the court.

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Other Church Scenes

Location______________? Left to right Stellie Cline, Gladys Emma Sinclair Cathell, Clarence Mitchell Cathell, Dorothy Bernard Cathell, Willie Cline, Carl Mitchell Cathell, Jr., David Wayne Cathell. Willie and Clarence were first cousins through their Robinson mothers so perhaps this church is in the Licking district of Tucker County.


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Use this link to go to the Cathell Family in West Virginia Home Page

Green Valley, West Virginia
August 4, 2007

Green Valley, near Etam West Virginia. Platt Mitchell Cathell homestead. Currently owned and occupied by Gerald "Pete" Cathell, grandson of Platt M. Cathell


1907 Map of Etam West Virginia. The Cathell homestead is just off of this map to the southwest.

Platt and Sarah, as well as many of their offspring are buried in the Etam Methodist Church cemetary.

Children of Platt and Sarah Cathell-use "back" to return to this page from links

Name: Cathell, George E.	Year of Birth 1865	Year of Death: 1932	Birth Place: Baltimore MD
Spouse: Sarah E. Robinson	Spouse Birth/Death:1867-1954	Burial:Etam Cemetary	Child: Roy Cathell 1900-1901
Child: Clarence M. Cathell 1890-1983	Child: Bertha I. Cathell Britton1891-1973	Child: James A. Cathell 1895-1964	Child: Nora A. Cathell 1893-1983
Residence: Green Valley WV	County: Preston	Occupation: Farmer	Notes:

Name: Cathell, Joseph Huvington	Year of Birth 1868	Year of Death: 1964	Birth Place: Baltimore MD
Spouse: Callie V. Adams	Spouse Birth/Death:1884-1960	Burial:Etam Cemetary	Child: Perl A. Cathell
Child: Edith J. Cathell	Child: Dora M Cathell	Child:Earl C. Cathell	Child: William E. Cathell
Child: Elsie E. Cathell	Child: Dorothy C. Cathell	Child:T.Gordon Cathell	Child: W. Donald Cathell
Residence: Etam WV	County: Preston	Occupation: Farmer	Notes: 95 years old at death

Name: Cathell, James Mitchell	Year of Birth 1860	Year of Death: 1941	Birth Place: Baltimore MD
Spouse:1) Carrie Coburn 2) Annie Turner	Spouse Birth/Death:__________	Burial:Etam Cemetary	Child:Virgil Cathell
Child: Claude Cathell	Child:	Child:	Child:
Residence: Belington WV	County: Barbour	Occupation:	Notes:Died in Rowlesburg at Will's

Name: Cathell, Steward H.	Year of Birth 1870	Year of Death: 1953	Birth Place: Baltimore
Spouse: Cyrena May Lipscomb	Spouse Birth/Death:1871-1952	Burial:Etam Cemetary	Child: Thomas Oscar Cathell
Child: Anna L. Cathell	Child: Harry Ervin Cathell	Child: Lula Mabel Cathell	Child: Elmer Neal Cathell
Child: Orville Ross Cathell	Child: Theodore Platt Cathell	Child: Boyd Williard Cathell	Child: Stewart Lee Cathell (loved cake)
Child: Goldie Grace Cathell	Child: Everett McKinley Cathell	Child: Mary Katherine Cathell	Child: Kenneth Hall Cathell
Child: Arthur U. Cathell	Child: Avril Cathell	Child: Robert W. Cathell	Child:Ruth M. Cathell
Residence: Hepzibah Community	County: Taylor	Occupation:Farmer	Notes:

Name: Cathell, William Luther	Year of Birth 1878	Year of Death: 1956	Birth Place: Green Valley -Etam, WV
Spouse: Elsie M.	Spouse Birth/Death:1883-1959	Burial:Etam Cemetary	Child:Merrill (Myrl)Cathell
Child: Charles (Charley) Cathell	Child:	Child:	Child:
Residence: Rowlesburg WV	County: Preston	Occupation: Engineer, B&O	Notes: Pension card in Rowlesburg book

Name: Cathell, Charles (Charley)	Year of Birth 1880	Year of Death: 1952	Birth Place: Green Valley -Etam, WV
Spouse: Mable (Mae)Gaines	Spouse Birth/Death:1887-196_	Burial:Etam Cemetary	Child:Betty (Cathell) Sohn
Child: Dolly M (Cathell) Bolyard Dutton 1914-2002	Child: Gerald (Pete) Cathell, Green Valley, WV	Child: Richard (Rich) Cathell, Chesapeake, VA	Child: Violet (Cathell) Carver
Child: Augusta Cathell	Child: Mildred M. Cathell	Child: C. Harold Cathell	Child:
Residence: Green Valley, WV	County: Preston	Occupation:Farmer	Notes: bought homeplace from siblings

Name: Cathell, Jane	Year of Birth 18__	Year of Death: 19__	Birth Place: Baltimore MD
Spouse: Thomas Springs	Spouse Birth/Death:_______	Burial:_______	Child:
Child:	Child:	Child:	Child:
Residence:	County: Taylor	Occupation:	Notes:

Name: Cathell, John Wesley	Year of Birth June 22, 1872	Year of Death: August 25, 1951	Birth Place: Baltimore, MD
Spouse: Jane Haymon or Layman	Spouse Birth/Death:_______	Burial:Concord Church	Child: Callie Cathell Corley
Child: Johnnie Cathell	Child: Ralph William Cathell	Child: Daisy Cathell	Child:Howard Cathell
Child: Mitchell Cathell (of John, not of Clarence)	Child: Carrie V. Cathell	Child: Inez D. Cathell	Child:Myrtle E. Cathell
Child: Bretsel L. Cathell	Child: Bud Cathell	Child: Clifford B. Cathell	Child:Blanch Cathell
Child: Dolly P.Cathell	Child:	Child: Sarah E.Cathell	Child: Nellie R. Cathell
Residence: rural Belington WV	County:Barbour	Occupation: Farmer	Notes:

Name: Cathell, Jonathan	Year of Birth abt 1873	Year of Death: ?	Birth Place: Baltimore MD
Spouse: _____	Spouse Birth/Death:_______	Burial:?	Child:
Child:	Child:	Child:	Child:
Residence:	County:	Occupation:	Notes: Jonathan might be John Wesley-above?

Name: Cathell, Martha W	Year of Birth abt 1876	Year of Death: ?	Birth Place: _________
Spouse: _____	Spouse Birth/Death:_______	Burial:?	Child:
Child:	Child:	Child:	Child:
Residence:	County:	Occupation:	Notes:

Name: Cathell, Rutherford B.	Year of Birth abt 1876	Year of Death: ?	Birth Place: West Virginia
Spouse: Grace E. Francis Cathell	Spouse Birth/Death:12/25/1879/?	Burial:?	Child:
Child:	Child:	Child:	Child:
Residence: Harrison Co. WV	County:	Occupation:	Notes: Married Grace 1899

Notes-Need to classify/verify

1900 Census
Preston County
listed under Stuart (Steward) and May
Arthur U Cathell abt 1899

listed under William L
Charity Cathell abt 1882

listed under Jos. H.
Eunice E Cathelll abt 1872
Perl A. Cathell abt 1890
Edith J. Cathell abt 1892
Dora M Cathell 1894
Earl C. Cathell abt 1897

1910 Census
Preston County
listed under William and Elsie
Merrill Cathell abt 1905
Charley Cathell abt 1908

listed under George E. and Sarah
Florence M. Cathell abt 1890

listed under Charles and Mabel (Charley and May)
Augusta Cathell abt 1907 (Gusty, a visitor to my home in the 1960's ?)

listed under James M.
Virgil Cathell abt 1901

listed under Stewart H. and (Cyrena) May
Arvel Cathell abt 1900 (seen elsewhere spelled Avril ?-if Avril, died Sept 20 1964 Mineral Co WV- retired B&O RR)

listed under John and Jane-Upshur County--assumed to be the same as John Wesley
Daisy Cathell abt 1895
Howard Cathell abt 1904
Mitchell Cathell abt 1904 - spouse was Mary Russie Malcomb-died March 1953

1920 Census
Preston County

listed under John and Jane
Carrie V. Cathell abt 1909
Inez D. Cathell abt 1914
Myrtle E. Cathell abt 1915
Bretsel L. Cathell abt 1916
Bud Cathell abt 1916

(listed in 1930 census--Barbour Co- Under John and Jane)
Blanch Cathell abt 1913
Clifford B. Cathell abt 1918
Dolly P. Cathell abt 1920
Sarah E. Cathell abt 1922
Nellie R. Cathell abt 1922

listed under William L and Elsie
Myrl Cathell (same as Merrill?) abt 1905
Charles Cathell abt 1908

listed under James W. (1861)
Anna Cathell abt 1881 (Annie Turner)
Claude Cathell abt 1909

listed under Stewart and (Cyrena) May
Robert W. Cathell abt 1909
Ruth M. Cathell abt 1918

1930 census

listed under Theodore Platt-Monongalia Co (of Stewart and Cyrena May) Coal miner- died Sept 1936
Hazel M Cathell about 1905-spouse from Maidsville WV
Charlotte C Cathell abt 1925
Harley N Cathell abt 1926
Richard L Cathell abt 1927
Della M Cathell abt 1930

Rita M Cathell abt 1895?

listed under Charles R abt 1908-Preston Co (of _________)
Augusta Cathell abt 1908
Mary L Cathell abt 1926
Jack Cathell abt 1928

listed under Charles (abt 1881) (of Platt and Sarah) and Mabel abt (1888) (May) -Preston Co in addition to above)
Mildred M Cathell abt 1921
C Harold Cathell abt 1924
Gerald L. Cathell (Pete-current owner in 2007 of homeplace) abt 1926
Richard G. Cathell (Rich-resides in Chesapeake VA in 2007) abt 1929

listed under Joseph H. (of Platt and Sarah) and Callie V. ( in addition to above )
William E Cathell-abt 1915
Elsie E. Cathell abt 1916
Dorothy C Cathell abt 1917
Ethel D Cathell abt 1919
T Gordon Cathell abt 1921
W. Donald Cathell about 1924

listed under Thomas O (Oscar)-Preston Co (of Stewart and Cyrena May)
Ora M Cathell (spouse?) abt 1895
Roy E Cathell abt 1915
Thelma E Cathell abt 1917
Mary E Cathell abt 1922

listed under Harry E --Taylor Co (of Stewart and Cyrena May)
Elizabeth Cathell (spouse?) abt 1897
Edwin H Cathell abt 1920
Stewart A Cathell abt 1923
Mary S Cathell abt 1926
Dorsey L Cathell abt 1928

"abt" = about date of birth

source: http://search.ancestry.com

Etam and Rowlesburg Industry



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