89 Va. 786 | Va. | 1893
delivered the opinion of the court.
This is the sequel to Beckwith v. Avery, 31 Gratt. 533. The ease may be shortly stated as follows:
By his will, which was duly admitted to probate in 1818, Asa Avery devised and bequeathed, after the payment of debts, the whole of his estate, real and personal, to Haney E. and Mary J. Hawthorne for their lives, with a limitation over, in the event of their dying without children, to their brothers’ .and sisters’ children. In 1819 the administrator c. t. a. tiled his bill in the court below for a construction of the will and a settlement of the estate. The bill stated that he had sold the perishable property, and had delivered the lands and slaves to the life tenants. It was also stated that the latter wished to receive the money, but that he was unwilling to pay it over to them without their giving security for the payment of the principal at their deaths, and lie prayed instructions of the court in the matter.
The life tenants, who were made defendants, answered, admitting the truth of the allegations of the bill, and saying they desired to receive the money without security being required of them.
The court, however, in construing the will, held that the defendants, being life tenants, were not entitled to possession -of the money without security, and directed that the fund be paid to them, upon their executing bonds-, with ample security, for the return nf the principal at their deaths. The decree also directed that, in the event of their not electing to take-the money on those conditions, then that it should be invested by the administrator in six per cent. Virginia state stock, the dividends to be received by the defendants, &c. '
The defendants, electing to take the fund, it was after-wards paid to them by the administrator, upon their giving
Upon appeal from that decree four points were expressly adjudged—viz., (1) that Mrs. Beckwith, who was formerly Nancy E. Hawthorne, took under the will a life interest; (2) that the penalty of the bond required by the last-mentioned decree was excessive; (3) that the proceeding by rule was not. a regular and proper one; and (4) that the cause ought to be remanded, with liberty to the plaintiff in the rule to file a .bill in the nature of a supplemental bill; which was ordered accordingly. In the opinion of the court, delivered by Mon-cure, P., several reasons were given why the proceeding ought to be by such a bill, instead of by a rule, the third of which was “because the remaindermen, the only persons interested in the fund except the tenants for life, were not parties to the original cause.”
After the cause went back to the circuit court, a supplemental bill was filed, soon after which Mrs. Beckwith died. Mary J. Hawthorne had previously died, and both died without children. Upon the death of Mrs. Beckwith, the remain
The principal grounds upon which this decree is sought to be maintained by the appellees are (1) that Nancy E. and Mary J. Hawthorne each took under the will, according to the rule in Shelley's Case, a fee tail, which the statute converted into a fee simple; and (2) that, conceding they only took life estates, they were trustees for the remaindermen, and that, having loaned the money on security, which was ample at the time, neither their estates nor the sureties in their bonds ought now to be held liable for the loss of the fund.
As to the first point, it is enough to say that the rule in Shelley's Case is not applicable to executory limitations. 2 Min. Insts. (4th ed.) 437. Besides, the circuit court having construed the will as it originally did, and that construction having been approved by this court, the question is res judicata, and must now be considered as finally and irreversibly settled. Campbell v. Campbell, 22 Gratt. 649; Frazier v. Frazier, 77 Va. 775 ; Stuart & Palmer v. Preston, 83 Id. 625 ; Findlay v. Trigg, Ibid. 539.
The appellees, however, contend that the doctrine of res judicata has no application, on the ground that the appellants were not parties to the suit when the case was before this court. But to this there are several answers. The first is that although they were not parties originally, they are bound by all the decrees in the case, because, until the death of the life tenants, their interests were altogether contingent, and “ in no case is it necessary to make those persons parties who are entitled only to future and very uncertain and con
This is on the ground of representation, upon which ground Baylor v. Dejarnette, 13 Gratt. 152, proceeded. In that case Judge Lee, in delivering the opinion of the court, quoted with approval the remark of Lord Redesdale in Gifford v. Hort, 1 Sch. & Lef. 386, that “ courts of equity have determined on grounds of high expediency that it is sufficient to bring before the court the first tenant in tail in being, and, if there be no tenant in tail in being, the first-person entitled to the inheritance, and, if no such person, then the tenant for life.” See also Faulkner v. Davis, 18 Gratt. 651 ; Fitzgibbon v. Barry, 78 Va. 755.
Besides; the fair inference from the record is’ that those of the appellants who were not before this' court as persons claiming to be remaindermen were not then in esse. At all events, a number of the appellants were then actually before the court, and.it was undoubtedly competent for them to sue for the benefit of those having a common interest with them. To the general rule that all persons in interest must be made parties to a suit in equity. Judge Story mentions several exceptions, the first of which is that, where the quest-ion -is one of a-common or general interest, one or more may sue or defend for the benefit of the whole. Story Eq. Pl., § 97.
The second position of the appellees, above mentioned-,' is also untenable.- The life tenants, quoad the fund in question, were in no sense trustees for the remaindermen. They were borrowers of the fund, and the doctrine of Elliott v. Carter, 9 Gratt. 559 ; Myers v. Zetelle, 21 Id. 201, and of other cases 'of the same' class, in regard to the management-'by trustees of the trust estate, has no application.-
So that in electing to take the fund in the present case, as the life tenants did, they took it, not as trustees, but as borrowers, and the obligations -which they gave for its return .are to be viewed in that light. Had they not,so elected, the fund would have been.in vested as the cotji’t directed, and they wouldhave received the interest, which is all to which under the will they were entitled. It appears, moreover, that they regularly received the interest for a number of years, the sums so received amounting in the aggregate to several thousand dollars. There is, therefore, no hardship in the case, or certainly much less than there would be were the loss held to fall on the innocent remaindermen.
Another point made by the appellees is that the limitation over in the will is void for remoteness. But this question, also, must be regarded as settled by the former appeal. By the decree from which that appeal was .taken, the validity of the limitation was in effect recognized, in requiring new security, at the instance of those claiming as remaindermen, and although this court reversed the decree, for the reasons already stated, yet it also virtually recognized the validity •of the limitation in remanding the cause, as it did, with liberty to those persons to regularly proceed “ to have the said money secured, if necessary, and to recover it for distribution among themselves,” upon the happening of the event that has since happened—viz., the dying of the life tenants without children. If the limitation was void, they would have had no standing in court at all, and it would have been improper to remand the cause for further proceedings on their part. The validity of the limitation, therefore, is not now to be questioned.
Only a wmrd need be added in regard to the first bond executed by Nancy E. Hawthorne, who afterwards intermarried
It follows that the decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.