22 Gratt. 1 | Va. | 1872
delivered the opinion of the court, sustaining the decree of the court below overruling tbe exceptions, and decreeing upon the report. Upon the appeal by John Burton, the opinion proceeded as follows;
Having considered and disposed of all the questions directly arising on this appeal, we would now be prepared to say there is no error in the decree appealed from, and that it ought to be affirmed, but for the fact that there is another appeal in this case, which was heard at the same time with this appeal, and the decision of which may affect the decision of this appeal. We will, therefore, proceed now to consider that appeal.
That appeal was taken by John Burton, to the decree of the 28th of March 1848, and also to the decree of the 13th of March 1869. The decree of the 28th of March 1848, was as to the construction of the will of Robert Burton, the younger, and as to the disposition of his estate to be made by his executor. The court was of opinion, that the true intent and meaning of the testator,
In John Burton’s petition for an appeal, four errors are assigned in the decrees appealed from. The first is, that “ in respect of the transactions of James Brown, as executor of Robert Burton the elder, the Circuit court erred in not adjudging to be due from said Brown at least as much as is claimed by the first of the exceptions filed by John Burton on the 8th of March 1869.” This assignment of error has already been disposed of.
The second is, that “ the Circuit court should have held, under the will of Robert Burton the younger, that all his estate, other than what was given for life to the mother of him and of your petitioner, was, after her decease, to pass to your petitioner in absolute property. It
This is the main assignment of error on this appeal, and was the cause of it. The question involved is, as to the i true and proper construction of the will of Robert Burton the younger, who died in 1837. This question was very distinctly presented for the decision of the court, in the original bill filed in this case in February 1843 ; in which it was stated, that “ as a judicial construction of the said will, for guidance and safety of your orators, is among the objects of this bill, 'your orators will, for the convenience of the court, here copy it in extenso,” &c. ; and then the substantial parts of the will are set out, in luec verba, in the bill. An official copy of the will was also filed as an exhibit with the bill. In the answer of John Burton, filed_ on the 27th of June 1845, he distinctly concurred in presenting the same question for the -decision of the court, using in his answer this language : “ This defendant concurs in desiring the court to declare the true construction of the will of Robert Burton the younger ; and he prays that the executorial accounts of the said Heath, on the estate of Robert Burton the younger, may be stated, settled and adjusted, and that a decree may be made for the distribution of the assets in the bauds of the said executor, according to the several
How whether the question in regard to the true construction of the will of Robert Burton the younger, was correctly decided or not by the Circuit court, in the said decree of the 28th of March 1848, (upon which question we express no opinion), we think it is now too late, and was too late when the appeal was applied for by John Burton as aforesaid, to object, for the first time, to the correctness of that decision. We think his right to make such an objection has been lost by acquiescence, express or implied, by lapse of time, and (if not lost before) by his failure to make the objection in this court when the appeal from the decree of the 1st of March 1859 was heard in 1864. The issue upon this question was, as we have seen, very distinctly presented by the pleadings in the cause; the parties seem to have desired to have it speedily decided, and it was accordingly the first litigated question which was decided in the case. It was separate from the other numerous questions involved in the case, although in the consequences of its decision it waB connected with most of them. We find, therefore, that on the 28th of March 1848, without waiting for the maturity of the cause for a full and general hearing, it was brought on for hearing as to this question only, and upon such of the papers and pleadings only as had relation to it, and, after full and able argument, an opinion and decree were pronounced by the court upon the question. If John Burton had not intended to acquiesce in that decision, he would at once have appealed from it.
John Burton not only acquiesced in the decision by failing to appeal from it, but he also acquiesced in it, as we have seen, by receiving money under it. He received his distributive portion of the money which was distributed in pursuance of the decree, by James E. Heath, executor of Robert Burton, the younger. In other words, he received a portion of the estate of Robert Burton the younger, under the will of his mother, Anna P. Brown; and he now claims the whole of that estate against the said will. This is claiming under and against the same will, which in law is inadmissible. "When, therefore, he claimed and received money under the will, he concluded himself from afterwards claiming against it. As a géneral rule, a decree or order made by consent of counsel, cannot be the subject of appeal. 3 Daniel’s Ch. Pl. and Pr. 1602, 1st Am. Ed. ; Atkinson v. Marks,
If John Burton wished to object to the correctness of the decree of the 28th of March 1848, and had not previously given up for lost his right to do so by his acquiescence as aforesaid, he ought to have made such objection, as he might have done, in the Circuit court, when the cause was there heard on the 1st of March 1859 ; or, at all events, in this court, when the appeal was here heard on the 26th of April 1864. That appeal was taken in 1859. John Burton was a party to it as one of the appellees. He was represented by able counsel, who were present in this court when the appeal came on
Whatever may be the rule of equity practice in England, New York, or elsewhere, we think that, according to our law and practice, the decree of this court of the 26th of April 1864 operated as an affirmance of all the-prior decrees rendered in the cause which had not been previously reversed, including the decree of the 28th of March 1848, even supposing that decree not to have become irreversible by acquiescence as aforesaid.
What was said by the Lord Chancellor (Lord St. Leonards) and Lord Brougham, in the case of Birch v. Joy, referred to by the counsel of John Burton, 3 House of Lords cases, 578, to the effect that the part of a decree unappealed from remains as before, and is not rendered final by the decision of the appellate court on the part which is the subject of the appeal, is therefore, not true and not applicable, at least as a general rule, in this State—“As in the case of an appeal from a final decree, not only any error in that, but any error in the former proceedings, ought to be corrected, so upon an appeal from an interlocutory order, not only error in that order, but errors in the former proceedings should be corrected. In either case, the effect of the appeal is to bring up the whole proceedings prior to the decree or order from which the appeal is taken.” Thus the principle is laid down in 2 Rob. Pr.. old ed , p. 433; and in support of it, the following cases are cited: Lomax v. Picot, 2 Rand., 247; Jacques, &c., v. Methodist Episcopal Church, 17 John R., 548; Aikinson v. Marks, 1 Cow. R., 691; Teal v. Woodworth, 3 Page, R. 470. This principle prevails in this State. Huston’s adm’r v. Cantril,
There is another rule of equity practice in this State,, which authorizes the appellate court to correct, not only all errors in the proceedings of the court below against the appellant, but also all errors in those proceedings against the appellee. That rule is thus laid down in 2 Rob. Pr., p. 434; “The whole proceedings prior to-the decree'or order being brought up, if error against’ the appellee is perceived in the record, the appellate-court will reverse the proceedings, either in whole or in. part, in like manner as it would have done if the appellee had brought the same before it by appeal; ” and in support of the rule, the author cites Day v. Murdoch,. 1 Munf., 460. In that case it was held by this court, in. October 1810, that upon an appeal from a decree in chancery, an error to the injury of the appellee ought to be corrected, although he did not appeal. This seems to be the first express reported judicial sanction which was given to the rule; but it has been acted upon ever since; and the same author cites a case from the next volume of Munford’s reports, in which it was acted upon, viz: Defarges v. Lipscomb, 2 Munf., 451. Indeed,, as early as the 2d of October 1811, this court established the following general rule: “ It is the opinion of this-court, founded as well on a full consideration of the law as on various decisions which have heretofore been had,, that in future, where a judgment or decree is reversed, neither in the whole nor in part, on the ground of error against the appellant or plaintiff, in .any appeal, writ of error or supersedeas; yet if error is perceived against the appellee or defendant, the court will consider the-
Then, whether John Burton had a right or not to ask for a correction of the error in the decree of the 28th of March 1848, of which he now complains, when the case was before the appellate court, on the appeal of Lesslie’s ex’or from the decree of the 23d of March 1849, or on the appeal of Alexander S. Brown and others from the decree of the 19th of November 1853, appointing a receiver (those appeals being- from special decrees upon particular questions arising in the case), upon which question we deem it unnecessary now to express an opinion ; there can be no doubt, but that he could have asked for such correction, when the case was before this court on the appeal from the decree of the 1st of March 1859, unless he had previously abandoned his right to do so, or lost or given it up by acquiescence as aforesaid. And unless he had so abandoned, lost or given up such right, or intended to waive it, he ought to have exercised it on that occasion ; and his failure to do so was equivalent to a waiver of such right, and a release of all error as to him. Having then an opportunity to exercise the right when the whole ease was already before the appellate court,
"We are therefore of opinion that the appellant, John Burton, had no right to obtain this appeal upon the-ground relied on in the second assignment, of error, that “the Circuit court should have held under the will of Robert Burton the younger, that all his estate other than what was given for life to the mother of him and your petitioner was, after her decease, to pass to your petitioner in absolute property.”
In regard to the third assignment of error, it has already been disposed of in deciding the other appeal. In regard to the fourth and last, it does notarise, under the view we have taken of the case. As to the suggestion made in the latter part of that assignment of error, that there should be a “provision in respect to descendants of James Brown who shall have received money arising from the proceeds of lands embraced in the deed of October 28, 1824, to George Clark and others;” that “under the distribution in Virginia of the estate of Robert Burton the elder, no portion should be paid to any of those descendants until there shall first be deducted what shall have been paid to them respectively in Kentucky;” that is a subject of which the court below will have control when the cause goes back to it, and which properly belongs to that court. Out of abundant
Upon the whole, we are of opinion, that in the case of Brown's ex'ors, &c. v. Burton's ad'mr, &c., there is no error in the decree appealed from, and that it be affirmed, without prejudice as aforesaid, and that in the other case, that of Burton v. Brown, &c., the appeal be dismissed as having been improvidently allowed.
The decree was as follows :
The court is of opinion, for reasons stated in writing, and filed with the record, that the second of the above named appeals was improvidently allowed from the said decree of the 28th of March 1848, and therefore it is decreed and ordered that the same be dismissed; and that the appellant pay to the appellees in that appeal, their costs by them about their defence in that behalf expended. And the court, for reasons stated and filed as aforesaid, is further of opinion, that there is no error in the said decree of the 13th of March 1869, and that the same ought to be affirmed. But it being suggested to the court that the descendants of James Brown, or some of them, may have received money arising from the proceeds of sales of land in Kentucky embraced in the deed of 28th of October 1824, to George Clarke and others, in the proceedings mentioned; and that, in that event, no portion of the proceeds of the trust estate in Virginia, embraced in the deed of the same date to Charles Copland and others, also in the proceedings mentioned, should be paid to any such descendants as may have so received money as aforesaid, until they shall have duly accounted for the money so received, in order that there may be a just and equitable apportionment of all the trust fund which may be realised under either of the said deeds among the parties entitled to the benefit thereof, according to their respective rights; the court
Appeal of John Burton dismissed.
The Decree arrirmed.