29 S.E. 823 | Va. | 1898
delivered the opinion of the court.
The assignments of error relate to the action of the circuit court in overruling the exceptions of the appellant to the report of Commissioner Taylor.
The first exception-is for the failure of the commissioner to credit the appellant with the sum of $2,15J, with interest
It is apparent from the will that the testator designed that each of his children should receive land as a part of his share of the estate, and their respective shares in the realty should be as nearly equal as practicable. It was provided in the will that ‘ ‘the lots of less value should be made equal to the best by contribution either in money or personal property’ ’; and he no doubt intended that this should be done, as the children severally came into possession of their respective lots, he having left an estate which he had every reason to believe was ample to this end.
But it is equally apparent from the will that it was his intention that equality should be the controlling principle in the division of his estate among his children. This intention is plainly manifested from the beginning to the end of his will, and any distribution that, in the final result, would produce inequality and injustice, would be contrary to his intention and subvert the scheme of his will.
The testator died in 1845, and left a large estate, consisting of real and personal property. He devised and bequeathed a largo, if not the greater, part of it to his wife for her natural life. The property given to her would have been ample to make equal in the final distribution of his estate after her death the shares of all his children, if it had not been for the loss of property and great depreciation in values consequent upon the result of the war between the states. But when that period arrived — upwards of a quarter of a century after his death— the amount remaining for distribution, outside of the land devised to her for her life, was comparatively of small value.
It was contended by the appellant that by the decree of October term, 1867, and that of April term, 1895, it was adjudged that the difference in value between the land devised to Edwin Booton and that given to him should be made equal as of the time he received it, and that the court could not in the final distribution of the estate of the testator disregard such adjudication, and, for the purpose of making up to him the difference between the said parcels of land, take into account the sums of money paid to him from time to time after the land came into his possession. Those decrees were necessarily based upon the assumption that there was sufficient property to equalize the shares of all the children in the final distribution. When it appeared to the court that this was not the case, it was its duty to observe and enforce the principle of equality accoi’ding to the intention of the testator as disclosed in his will.
The decrees of October term, 1867, and April term, 1895, were merely interlocutory, and it was competent for the court to rehear and amend them. Viewing the matter from a purely technical standpoint, this could only be done on a petition to rehear the said decrees. If, however, we were to reverse the decrees complained of, for the error of not having reheard and amended the decrees of October term, 1867, and April term, 1895, before entering the decrees appealed from, in so far as
The second exception is to the allowance by the commissioner to Edwin Booton’s estate of one-half of the fund in the hands of the executors for distribution, and of the other half to Dr. W. A. Hill and wife. Both this fund and the proceeds of the sale of the Goodwin tract of land were insufficient to make the shares of Edwin Booton and Mrs. Hill and the shares of A. P. H. Booton and Lucy M. H. Graves, deceased, equal to the property and moneys which the appellant had received, and the said fund and the amount for which the Goodwin land was sold were properly allowed to the other children to the exclusion of the appellant.
The third exception is for the same matter as the first exception, and need not be separately considered. It was likewise properly overruled, for the reasons given in disposing of the first exception.
The fourth exception is for the failure to charge the executors with the sum of $3,015.24, reported in the inventory of the estate of the testator as cash in hand at the death of the testator, instead of only $1,175. It was satisfactorily shown that the sum of $3,015.24 was entered in the inventory by the executors through mistake, and that the actual amount on hand at the death of the testator was $1,175, except between $50 and $100 in gold which was retained by the widow, and-equally distributed among the legatees, including the appellant. The
The suit was brought by the appellant in 1857. Either from lack of interest, or the conviction that he had nothing to gain by its prosecution, he allowed it to slumber on the docket without any action being taken in it for nearly 30 years after the late war, and the consequent great loss and depreciation in the value of property. In the meantime Edwin Booton, who was a devisee and legatee, and also one of the executors, had died, and W. A. Hill, who was the other executor, and whose wife was likewise a devisee and legatee, had also died. These parties were materially interested in a proper final settlement of the estate'. After such long lapse of time, and so great laches and the death of parties, the litigation should come to an end, and not be prolonged in consequence of the commission of a mere technical error, which did not affect the merits of the controversy.
The action of the circuit court, of which the appellant complains, was manifestly not to his prejudice, and the decrees appealed from must be affirmed.
Cardwell, J., absent.