"In Tilt v. Kelsey, 207 U. S. 43 [28 Sup. Ct. 1], 52 L. Ed. 95, the will of Albert Tilt was probated in New Jersey, the letters testamentary granted by the surrogate described him as late of the county of Morris, deceased,' and his estate was fully administered by the probate court of New Jersey. The state of New York sued the executors of Tilt's will in the state courts of New York for a succession tax due the state of New York, claiming that Tilt died domiciled in New York, and the question presented to the court was whether the adjudication of the New "The bill alleges that William C. Smith was Jersey court that Tilt was, at the time of his domiciled in Maryland, while the answer of the death, a resident of New Jersey, was conclusive Graveses denies all and singular the allegations upon the state of New York, a stranger to the of the bill except those admitted to be true, so proceeding. If it was, that ended the matter. that the domicile of W. C. Smith must be deter-In rendering the opinion of the court, Mr. Jus mined. tice Moody said: 'But, upon principle and authority, that adjudication, though essential to the assumption of jurisdiction to grant letters

V.

in Virginia was to be near his two daughters and to have a home there with them, and that their father so considered it and always spoke of it as home. C. L. Graves testified to the same effect. They also said their father, W. C. Smith, stocked the farm and furnished the dwelling with a view of making it his home. The record further shows that Robert Courtney, the father of Martha E. Smith, had in August, 1850, conveyed a house and lot on Second street, Richmond, Va., in trust for Martha E. Smith and her children, and the will of W. C. Smith expressly shows that the Orange county farm had been purchased in part with $2,400, the proceeds of the sale of trust property in Richmond, and that this had been done under decrees of the chancery court of Richmond. Is it not fair to presume that this transaction was with the consent of Martha E. Smith, and that the purchase of the farm was for a family home

testamentary, was neither conclusive on the' that his idea and purpose in buying the farm question of domicile, nor even evidence of it in a collateral proceeding'-citing Thormann zrame. 176 U. S. 350 [20 Sup. Ct. 446, 44 L. 001; Overby v. Gordon, 177 U. S. 214 120 Sup. Ct. 603, 44 L. Ed. 741]; Dallinger v. chardson, 176 Mass. 77 [57 N. E. 224]; Murual Ins. Co. v. Tisdale, 91 U. S. 238 [23 L. Ed. 314]: De Mora v. Concha, L. R. Ch. Div. 268, ::ffirmed in L. R. 11 App. Cas. 541; Brigham V. Fayerweather, 140 Mass. 411 [5 N. E. 265]. "The opinion of Mr. Justice Moody, after quoting from the opinion of Mr. Justice Holmes in the case of Brigham v. Fayerweather, supra, says: 'We think that this quotation expresses the correct rule and that it is sustained by the decisions of this court. Applying it here, it follows that the full faith and credit due to the proceedings of the New Jersey court do not require that the courts of New York shall be bound by its adjudication on the question of domicile. On the contrary, it is open to the courts of any state, in the trial of a collateral issue to determine upon the evidence produced, the true domi

cile of the deceased.'

stead?

"On October 19, 1880, Martha E. Smith as executrix (the printed advertisement is in evidence) sold all of the personal property of W. [6] "It is insisted by the plaintiffs that even if C. Smith, deceased, on this Virginia farm, conthe letters of administration and probate of the sisting of household and kitchen furniture, highorphans' court of the city of Baltimore are not grade cattle, hogs, three horses, farming impleevidence of the domicile of Wm. C. Smith, yet ments, etc. Among the items of personal use the testator in his will styled himself, William of the family thus sold it may be well to Smith, of the city of Baltimore, Maryland, ily carriage sold for $125, a buggy horse, a drivenumerate household and kitchen furniture, famand that such declaration on his part is proofing horse for Mrs. Smith, W. C. Smith's own of his Maryland,domicile.

"In Story on Conflict of Laws, Judge Story, in discussing 'What Constitutes Domicile,' in chapter III, section 44, note (d), on page 45 at page 46, says: 'His description of himself in legal instruments are treated as declarations, but in some cases it has been said that by them selves they are entitled to but little weight, and he cites numerous authorities in support of

his statement.

[7] "It is therefore manifest that the domicile of William C. Smith being an issue in this suit, his domicile must be determined from all of the evidence in the suit in like manner as any other fact.

The evidence established Virginia his domicile of origin, he having been born and spent his life until middle age in Henrico county, Va., and the vicinity of Richmond. Prior to the Civil War he was in command of steamboats plying between Richmond and Norfolk, and between Washington and Quantico, Va.. His wife was domiciled in Virginia before her marriage. After the Civil War, in the year 1865, he went to Ealtimore as superintendent of the Baltimore Steam Packet Company, which ran steamers between Baltimore and Norfolk, Va. He owned no real estate in Baltimore, but lived with his family in a rented house or boarded. On June 10, 1875, his youngest daughter, Margaret, and the only unmarried child, was married to Jos. C. W. Graves, a farmer of Orange county, Va. After the marriage Margaret and her husband occupied as a home the husband's farm in Orange county.

"At that time Lavinia Smith Graves, another daughter of W. C. Smith, was also living with her husband, C. L. Graves, on his farm in Orange county. C. L. Graves and Jos. W. C. Graves were brothers and the two sisters, Margaret and Lavinia, having married brothers, were living near to each other, in fact their farms were subdivisions of a larger farm of the Graves estate. In October, 1875, W. C. Smith purchased a farm in Orange county, Va., which seems to have been the only real estate he ever owned, adjoining, or near to the homes of these two daughters. After the marriage of Margaret in June, 1875, W. C. Smith broke up housekeeping in Baltimore and boarded with his son, Carroll. W. C. Smith's will is dated May, 1877. Not attempting to quote their exact language, but only the substance, his two daughters, Margaret and Lavinia Graves, testified

Graves says that after her father bought this riding horse, and his shotgun. Margaret W. farm her mother, Martha E. Smith, spent much of her time there looking after the farm. It is also shown that W. C. Smith came up to the farm all of his holidays and week-ends. The last time he was at the farm he said he intended to go to Baltimore, close up his business, and come back there for good. He was then advanced in years, returned to Baltimore, and was suddenly stricken with paralysis, died, and was buried in Richmond, Va.

"It is therefore reasonable to say that, after the purchase of the Orange county, Va., farm and his relation to it as set out above, his domicile was Virginia, even though from the necessity of his business he was a resident of Maryland.

"The will of William C. Smith, both as to realty and personalty, is therefore to be construed in accordance with the laws of Virginia.

"The question then is, What is the meaning of his will? What estate did his widow, Martha E. Smith, take under it?

[8] "Intention, it is often said, is the polar star to guide in the construction of wills, and when discovered effect must be given to it, unless it violates some rule of law.' Judge Burks, in Miss. Society v. Calvert, 32 Grat. (73 Va.) 361.

"The intent of the testator must be gathered from the will itself; from the words used, the true meaning of the words. While decided cases give much assistance in the interpretation of wills, it is also fairly true, as has been said, that 'No will has a twin brother'; therefore it frequently happens, as in this case, that no decided case is exactly in point, the words of the will differing, though slightly, in each case.

[9] "What then do the words, 'to be used and enjoyed by her as she shall think proper, as fully as if the same were hers in fee simple,' as used by the testator, mean?

"It is clear that without these words Martha E. Smith would have taken a life estate only and if these words mean nothing, then she took only a life estate. But are these words meaningless? I do not think so.

"The testator's primary object was to provide for his wife, Martha E. Smith, and to this end he applied his entire estate. He begins by giving and devising to her all my estate real and personal for and during her natural life.' This language of itself would have given her only a

"In the case of Honaker v. Duff, 101 Va. 675 [44 S. E. 900], the doctrine of May v. Joynes is reviewed at length and the two articles on the subject, one by Judge Burks in 1 Virginia Law "In Burwell's Ex'r v. Anderson, 3 Leigh (30 Register, at page 219, the other by Prof. Charles Va.) 355, 356, Judge Tucker said: 'From the A. Graves, in 3 Virginia Law Register, at page earliest time, it has been among the received doc 65, are fully considered, and from that case the trines of the common law that an absolute and doctrine may be thus stated: Where the limitaunqualified power of disposing, conferred by will, tion is of a life estate, but there is given full and not controlled or explained by any other power of disposition over the fee, which, if conprovision, should be construed as a gift of the ferred without limitation or restriction as to absolute property. In this the law but cor- time, mode, or purpose of its exercise, such full responds with the dictates of common reason. power of disposition would serve to enlarge the Every man of ordinary capacity would under-life estate expressly given into a fee simple by stand a power to dispose of a thing as he pleas- implication. ed as a gift of the thing itself; and hence every one who uses the phrase without qualification is understood by the law as intending a gift. The power of absolute disposition is, indeed, the eminent quality of absolute property. He who has the absolute property has, inseparably, the absolute power over it; and he to whom is given the absolute power over an estate acquires thereby the absolute property, unless there is something in the gift which negatives and overthrows this otherwise irresistible implication.'

There is a

the case of Sydnor v. Graves, 119 Md. 321 [86 | the North Fifth street front. Atl. 341], was in favor of the defendants on vacant space in rear of the storehouse, which grounds which did not preclude this suit. "The conclusion reached is that under the runs back to a temporary wooden shed atwill of W. C. Smith his wife had an absolute tached to the side of the stable toward its estate (fee simple) in the entire property, and rear end. she having by her will disposed of her own estate, in which the plaintiffs had no interest, they

cannot recover in this suit.

"The bills will be dismissed." Affirmed.

Where the vendee ascertained by reference to the land records that the description "No. 504 East Marshall street" in the written contract of sale covered a frontage of 26 feet on such street and extended back 98.70 feet, he was entitled to specific performance as to the entire lot, although the vendor intended to except the portion of the tract not covered by the building thereon.

2. VENDOR AND PURCHASER

TION BY NUMBER-SUFFICIENCY.

22-DESCRIP

In a city having a known system of notation regulated by municipal laws, description of premises by number is sufficient, as in such case the premises intended to be conveyed may be identified by means of the description.

Appeal from Chancery Court of Richmond. Suit by Henry S. Wallerstein against C. B. Harper and another. Judgment for plaintiff, and defendants appeal. Affirmed.

John B. Gayle and Daniel Grinnan, both of Richmond, for appellants. Arden Howell and S. A. Anderson, both of Richmond, for appellee.

WHITTLE, P. From a decree of the chancery court of the city of Richmond, granting to the appellee specific performance of a written contract of sale between appellants and appellee of "that certain property situated in the city of Richmond, Va., 'No. 504 East Marshall street and all improvements thereon,'" which the court ascertained fronted 26 feet on East Marshall street, and extended back at a right angle and between parallel lines 98.70 feet, this appeal was

granted.

tract of sale, but say that they had in mind Appellants admit the execution of the conand only intended to sell the 66 feet and 3 inches of the lot fronting on East Marshall street actually covered by the buildings; but they did not disclose that fact to appellee. Appellee, on the other hand, examined the land books and records to identify the property designated No. 504 East Marshall street. On the land books he found it charged to appellants as No. 504, containing 26 feet by 98.70 feet. He, moreover, inspected a partition deed dated February 18, 1880, between T. H. Ellett and Mary Etta Brown, in which reference was made to a plat drawn by Bates and Bolton January 30, 1880, which papers and the deed from Ellett, trustee, and Mary Etta Brown and her husband to appellants also described lot 504 as having a depth of 98.70 feet. These records and the testimony of J. S. Clark, a civil engineer, fully and plainly identify the property described in the contract of sale and fix its dimensions as understood by appellee and established by the decree under review. Indeed, appellants themselves must so have regarded it, at least for purposes of taxation, since it was their duty to cause it to be correctly entered on the land books, where, as observed, the foregoing dimensions appear. Code, § 634. These, then, being the established facts, the controlling principles of law are not difficult of application.

The case of Virginia Iron, etc., Co. v. Cranes Nest Co., 102 Va. 405, 410, 46 S. E. 393, holds that:

"A conveyance of all the coal underlying the grantor's tract of land known as the 'Sandy Ridge tract,' adjoining the lands of certain named owners, though not a complete description, will convey the coal underlying the tract as it has been known for 20 years prior to the conveyance, although the grantor may have intended to except a portion of the tract the coal under which he had previously contracted to sell to another, and although the description would have been equally as accurate if the excepted land was not included. A grantor will not be allowed to change the effect of his conveyance by a statement that he did not intend to include this or that parcel of land therein when such intention was not made known to his grantee at the time and acquiesced in by him."

In Trout v. N. & W. Ry. Co., 107 Va. 576,

[1] The sale was negotiated by an employé of real estate brokers, agents for appellants, and the contract was prepared in their office. The sole question is: what property is embraced by the description, the following property, to wit: No. 504 East 583, 59 S. E. 394, 397, 17 L. R. A. (N. S.) 702, the court quotes with approval from MelMarshall street and all improvements thereton v. Watkins, 24 Ala. 433, 60 Am. Dec. 481, on"? as follows:

The entire property owned by appellants was L-shaped, one end of which fronted on East Marshall street, and the other end on North Fifth street. The former was improved with a store building 66 feet and 3 inches in length; the latter with a brick stable extending entirely across the lot from

legal effect of the deed and took from the gran*It [the parol evidence] varied by parol the tee an interest which the deed conveyed to him. The rule is too well settled to require the citation of authority that all previous or contempobetween the parties materially altering or varyraneous parol agreements or understandings ing by adding to or subtracting from the writ

ten agreement must be considered as merged in that agreement, and the writing must be regarded as the evidence and sole expositor of the contract of the parties when it is clear and unambiguous."

And in the opinion, at pages 330 and 331 of 89 Ind. it is said:

"The rule prohibiting the contradiction of written instruments by oral evidence is not invaded by permitting testimony of the declara

In Warren v. Syme, 7 W. Va. 474, it is tions of the grantor as to the character and consaid:

"Intrinsic certainty in a deed relative to specific property is simply impossible. The description can be made certain only by proof or recognition of the identity of the subjects to which it refers, or other objects or things that more or less directly and distinctly indicate and determine it. And in the application of deeds and other documents to lands and lots extension

latitude is allowed for the discovery and proof,
not only of visible monuments or objects men-
tioned, but of mathematical lines of other lands
and lots, and various classes of facts to which
the description or suggestions in the deed may
apply.
The certainty of a deed is de-
termined by the principles of the common law.
The recordation is regulated by the statute
alone."

串 * *

In Thorn v. Phares, 35 W. Va. 772, 14 S. E. 399, it is held:

"The main object of a description of the land sold or conveyed, in a deed of conveyance, or in a contract of sale, is not in and of itself to identify the land sold. That it rarely does or can do without helping evidence, but to furnish the means of identification, and when this is done it is sufficient. That is certain which

can thus be made certain."

[2] With respect to the sufficiency of the description of lot No. 504:

In Flanigen v. City of Philadelphia, 51 Pa. 491, syllabus, it is said:

"In a city having a known system of notation, regulated by municipal laws and acted upon by every one, the description of premises in ejectment by a number is sufficiently definite." That the city of Richmond has such a system, see City Code, § 35, p. 312.

a

dition of the property in cases where there is which the grantor assumes to convey. Where mere general description of the real estate there is a general designation of the property intended to be conveyed, it is competent to show by parol what property the description covers." In Pittsburg, C., C. & St. L. Ry. Co. v. Beck, 152 Ind. 421, 53 N. E. 439, it is said: immaterial, if the premises intended to be con“Uncertainty in the description in a deed is eyed can be identified by means of the descripplats, lines, or records, well known in the neightion, in connection with other conveyances, borhood, or on file in public offices."

The latest pronouncement of this court on the subject will be found in the case of Asberry v. Mitchell, 121 Va. 93 S. E. 638.

We think the cases relied on by appellants, of which Grayson L. Co. v. Young, 118 Va. 122, 86 S. E. 826, is a type, are distinguishable from the case in judgment. In that case it was sought by extrinsic evidence to supply defects and omissions in the terms of the written contract, not, as in this case, merely to apply the contract to its subject

matter.

Upon the whole case, we are of opinion that the decree appealed from is without error, and should be affirmed. Affirmed.

BURKS, J., absent.

(122 Va. 266)

Ex parte MALLORY.

So in Tallman v. Franklin, 14 N. Y. 584, (Supreme Court of Appeals of Virginia. Jan. 592, it is said:

*

"Nor do I think there was such an uncertain-1. ty in the * lots as to render the contract incapable of execution, and therefore void. They are described as building lots on 132d and 133d streets, between the Fifth and Sixth avenues. The numbers of the lots are given."

So also in Engler v. Garrett, 100 Md. 387, 397, 59 Atl. 648, 650, the court says:

24, 1918.)
INFANTS 19
STATUTE.

CUSTODY

Acts 1910, c. 289, providing for the detention or commitment of minors under 17 for certain offenses, for placing them in suitable homes and institutions, and providing for pro1914, c. 350, prescribing the procedure in such bation, etc., was impliedly repealed by Acts

matters.

STATUTE-NOTICE.

"Nor do we think there can be any objection | 2. INFANTS 19-CUSTODY OF CHILDRENto the contract on the ground of uncertainty. It describes the property as No. 2035 North Fulton avenue, and further designates it as the property occupied by Samuel S. Linthicum. This certainly is quite as definite and certain as the description we held good in the case of Kraft et al. v. Egan, 76 Md. 252 [25 Atl. 469], where it is said that a decree for specific performance will not be refused merely because the contract does not state in what county or state the lands agreed to be conveyed lie, provided the description of the premises is not thereby Fendered altogether indefinite."

In eible v. Slagle, 89 Ind. 324, syllabus,

it is sai

An order of the juvenile and domestic court of the city of Richmond, committing the custody and control of children charged only with being dependent and neglected children to the Children's Home Society upon complaint and information during their father's temporary absence, without any notice whatever to him, as required by Acts 1914, c. 350, or any procedure dispensing with notice, was beyond the court's jurisdiction and void.

Habeas corpus by Geo. W. Mallory. Petition granted.

P. A. L. Smith and R. W. Ivey, both of Richmond, for plaintiff Mallory. S. S. P. Patteson, of Richmond, for respondent Children's Home

Society.

"The office of a description in a deed is not to identify the land conveyed, but to furnish the means of identification; and, when there is a general designation of the property intended to be conveyed, parol evidence is competent to PER CURIAM. [1] The Children's Home show what property the description covers.' Society of Virginia relies upon an order of