89 Va. 258 | Va. | 1892
delivered the opinion of the court.
The bill was filed by the appellees to annul a deed executed by one Adam Oollup to George W. Allison, trustee for Sarah Ann Collup, in words and figures following—to-wit:
“ This deed, made this, the 8th day of July, 1887, between
“ Witness the following signatures and seals the date above written.
“Adam Collup.”
“ Virginia, Smyth County—to-wit:
“ I, A. M. Dickinson, a commissioner in chancery for the
“ Given under my hand this, the 8th day of July, 1887.
“A. M. Dickinson,
“ Corn’r in Chancery for the County Court
of Smyth County.”
“ Virginia:
“ In the Cleric’s Office of Smith County Court, 1
5th of September.- j
“ The foregoing deed of conveyance from Adam Collup to George W. Allison, trustee, was presented in the office aforesaid the above date, and, with the certificate of acknowledgment annexed; admitted to record.
“ Teste :
“ J. H. Gollbhon, D. C.”
—upon the ground that the said deed was never fully executed by delivery to the grantee; and upon the further ground that the trustee and the beneficiary therein had never formally accepted the deed, and never actually recorded it until after the death of the grantor; and that it was without a valuable consideration, unless the consideration named in the deed was now- paid to the administrator. Also upon the ground of undue influence exercised upon the grantor, and because the deed was not a fair provision for the children of the grantor. And, moreover, that the grantor in the deed aforesaid had made a will in 1872, which he never had revoked, which will was as follows:
“ I, Adam Collup, of Smyth county, Yirginia, being of sound mind and disposing memory, mindful of the uncertainty*261 of life and the certainty of death, do make this, my last will and testament.
“ Clause 1st. I will that all my just debts, funeral expenses, and expenses of administration be paid.
“ Clause 2d. It -is my will that my beloved wife, Sarah, shall have, absolutely, one third of all the estate, (remaining after making proper allowance for the execution of clause first,) both real and personal, of which I may die seized—that is to say, one third in value of my personal property and one third in value of my real estate, including and adjoining the mansion-house.
“ Clause 3d. I devise, will, and bequeath to Thomas J. Smith and his wife, my beloved daughter, Minerva Jane, and heirs, forever, one third of the remaining portion .of the land and one third of the remaining portion, of my personal property, after executing the foregoing provisions made in clauses first and second. ■ . • •
“ Clause 4th. It is my will that my beloved daughter, « Frances Collup, shall-he made equal in real estate and personal property to Thomas J. Smith and wife.
“ Clause 5th. It is my will,that my beloved son, Ezra Sheffey Collup, shall be made equal in real and personal property with my daughter, Frances Collup ; it being my intention to divide equally between my three children the two thirds of my estate remaining after the allotment hereinbefore made to my wife.
“ Clause 6th. To forever put to rest .any question that may arise as to the legitimacy of my said , children, I hereby acknowledge .and declare-that-my said .daughters, Minerva Jane Smith and Frances Collup, and my son, Ezra Sheffey Collup, though born before my marriage to their mother, who is now my. lawful wife, are truly my children ; and I hereby provide, out.of abundant caution, that any property of mine remaining at my death, and not hereby otherwise disposed of by me, shall be equally divided between them.
*262 “Clause 7th. It is my will that my personal property be appraised by three competent appraisers, to be appointed by Smyth county court or circuit court, and if my wife, or either of my children, including my son-in-law, the said Thomas <7. Smith, should desire to have any of the personal property in kind, that the one so desiring may be permitted to take it at its appraised value as so much upon his or her share.
“ Clause 8th. It is my will that the residue of my personal property be sold, and the debts due me,*if-any, collected, and the proceeds divided according to the provisions of this will; and that the division of the lands directed be made by the appraisers, one of whom should be a good surveyor, by metes and bounds, having in view quantity, quality, and value, and be recorded in the clerk’s office of Smyth county court.
“ Clause 9th. The children, or legal representative of such of the persons named in the will as may not survive me, are to succeed to their rights under this will.”
The defendants demurred to the bill, and answered the same, and set forth that Adam Collup departed this life on the 5th day of August, 1889; that in 1872—seventeen years before his death—he did prepare his will, and that he did afterwards, and before his death, and, therefore, before his will became effectual, make the deed in question, signed, sealed, and delivered to the clerk for recordation ; but denying any undue influence in its procurement, and denying that grantees therein had never accepted it; that it was duly and completely delivered to the grantees, and by them accepted as an absolute conveyance. The beneficiary under the deed is the wife of the grantor, and when the deed was executed the grantor was in as good condition as he ever was. That the object of the deed was to put the wife in control of the property, to protect her against a son-in-law, the plaintiff Smith, who had told his father-in-law that, in case of his death, he would give the widow no rest, as he had given the father-in-
Depositions were taken on both sides, the plaintiffs seeking to show undue influence brought to bear on Adam Collup to induce the execution of the deed, and by the defendants establishing his competency. The circuit court set aside the deed as incompetent in the lifetime of the grantor, and annulled the same, and enforced the will of Adam Collup, and made dis
"We are of opinion that the-circuit court erred in setting aside the deed at the suit of the plaintiffs. The deed was duly executed and acknowledged and-delivered by the grantor to the grantee, during his life, as a valid and- binding deed, and is effectually completed as such. It was not actually recorded-until after the death of the grantor,-but there are no creditors or lienors whose rig’hts have intervened, or which, are now asserted; and, as between the beneficiaries under, the will, the will was inoperative as to such property as' was parted with .during, the life of the testator. It was competent for the testator during his life to revoke any part of his will; but the deed was a valid deed, not revocable by the grantor, by his will nor otherwise. As 'a valid gift by deed it was irrevocable, and -was not affected by the will.
The decree complained of must, therefore, be.reversed and annulled; and this court, proceeding to render such decree as the circuit court ought to have rendered, will dismiss the bill of the plaintiffs, with costs, without prejudice to.any suit which may be necessary to duly administer such estate of the said Adam Collup as may not be affected by said deed.
Decree reversed.