117 Va. 318 | Va. | 1915
delivered the opinion of the court.
The will of John S. Kelly gave to his wife, Indiana M. Kelly, one-half of all his real and personal estate, “as her. absolute property,” and the other half for and during her natural life, with remainder to his heirs and distributees in accordance with the provisions of the statute of descents and distributions. The real estate consisted of two separate tracts, one known as the home tract, estimated to contain 345 acres, and the other known as the Vaden tract, estimated to contain 481 acres.
This suit, which was brought by the widow against the heirs of John S. Kelly, involves, so far as we are concerned with it, a partition of the aforesaid lands. The
The decrees complained of resulted in an assignment of the home tract to Mrs. Kelly in fee, a salé of the Vaden tract and an allotment to her of a part of the proceeds as her- own money to make up her one-half absolute interest in the real estate; and the decrees contemplate further proceedings not as yet had under which she will be. secured a life estate or its equivalent in the balance of the purchase price of the Vaden tract, with remainder to the heirs. The other facts, so-far as necessary to an understanding of the questions arising on this appeal, will appear as we proceed.
The first error assigned is that the decree in the cause directing a sale of a portion of the real estate was premature and erroneous. The argument here made is that the shares of each of the parties to the suit should have been ascertained before any sale was ordered, and that a failure to have this done tended to sacrifice the property by discouraging bids which the parties would probably have made if they had known in advance what their interests were. A number of authorities were cited to support this contention, most of them, typified by Cole v. McRae, 6 Rand. (27 Va.) 644, and Horton v. Bond, 28 Gratt. (69 Va.) 815, dealing merely with the well established principle that a sale is premature if made before the liens on the property to be sold are ascertained and the order of their priority established. This principle is not' involved in the present case. The will fixed the interests of the parties, namely, one-half in fee to the widow and the other half to her for life, with the remainder to the heirs according to the statute of descents. The bill sets out in full the names of all the heirs and makes them parties defendant. There is no dispute as to the title or the interest of any party to the suit. Hence, it is clear that the case of Stevens v.
The second and fourth assignments of error may be considered together. They embody in substance three propositions—first, that the report does not properly respond to the directions of the decree of reference; second, that from the record it does not satisfactorily appear that both tracts may not be partitioned as a whole and divided in kind; and, third, that the assignment to Mrs. Kelly of the home tract, and a sale of the Vaden tract and payment of part of the proceeds to her is a violation of the provisions of section 2564 of the Code, as that section is construed by this court in Jackson v. Jackson, 110 Va. 393, 69 S. E. 721.
Neither of these propositions can be sustained.
The pertinent directions of the decree appointing the commissioners were, “that the commissioners do proceed to go upon the lands, taking with them a competent surveyor, if necessary, and lay off and divide the said two tracts of land, having regard to quality and quantity, and assign one-half thereof to Indiana M. Kelly, to be held in fee simple, and the other half to her to be held by her for life; but if the said commissioners should find it impracticable to so divide the said land and should be of the opinion that the interest of all parties would be more prompted by a sale, they are to report the facts upon which their opinion is based to the court, and also what, in their opinion, is the fee simple value of each of said tracts.”
In response to this decree the commissioners reported that after a careful examination of the lands they fixed the
Nor do we think the report and decree confirming the same are in conflict with the decision in Jackson V. Jackson, supra. The estates of the parties and the action of the trial court in the case cited were quite different from those in the case on trial. The case cited merely held that in a per capita partition among members of a class springing from a common stock, it would be a violation of the statute to allot a part and sell a part of the land, unless the part allotted and likewise the proceeds of the part sold should be divided among all those entitled to share in the estate partitioned. There is nothing in the decision in that case which conflicts with the principles upon which the circuit court proceeded in the case here, and this would seem clear from the more recent interpretation of the statute in Dennis v. Dennis, 116 Va. 619, 82 S. E. 696.
In the present case the circuit court followed, in principle at least, a common and long-established practice in partition suits and compensated Mrs. Kelly in money for an inequality resulting to her in a partition in kind. Martin v. Martin, 95 Va. 26, 27 S. E. 810; 2 Minor on Real Prop., section 963; 2 Minor’s Inst. 489.
The next assignment of error is that “The complainant, Indiana M. Kelly, has only a reversion of that portion of the real estate known as the Vaden tract and is, therefore, incompetent 'to maintain a suit for partition thereof.”
This assignment rests upon the fact that at the time of the institution of this suit the Vaden tract was under a lease from Mrs. Kelly to one Richard Johnson, dated July 22, 1911, to take effect January 1, 1912, and to continue for a period of five years. Johnson appears to have been
It is further contended that the decrees complained of were erroneous because Mrs. Kelly owns the fee simple in a moiety of the estate and a life estate with remainder over in the other moiety, and, therefore, has no right to maintain a suit for partition.
If this contention should be upheld, it would produce a result which could hardly have been contemplated by John S. Kelly in his attempt to make a substantial provision for his widow, for her life estate in one moiety would very seriously hamper her fee simple ownership in the other moiety. Counsel for appellants concede, however, that the contention here made by them is in conflict with the case of Otley v. McAlpine, 2 Gratt. (43 Va.) 340, but insist that the latter ought not to be regarded as conclusive authority. Without entering upon a discussion of this question, we are of opinion that the court did not err in holding that the complainant was entitled to maintain the suit. This is the settled rule in Virginia, 2 Minor’s Inst., 484; 2 Minor’s
Appellants claims that the commissioners were studious of the interests of Mrs. Kelly and paid small regard to the rights of the other parties interested. We fail to see any evidence of unfairness in the report of the commissioners, and no evidence thereof is offered by the defendants. In fact, of the forty or more heirs of John S. Kelly interested in this suit, only a small proportion of them, both in number and interest, appear in the record, as making any complaint. Of those complaining only one is an adult, the others being infants and defending by guardian ad litem, and the adult defendant appears to have precipitated this suit by a previous one which he brought, one of the objects of which was to restrain Mrs. Kelly from cutting timber on either of the tracts. It may be proper to state in passing that in a partition suit the rights of infants and adults are governed by like principles. Lytton v. Flanary, 116 Va. 710, 82 S. E. 692.
We are, therefore, of opinion upon the whole case that there was no error in the decrees complained of in so far as they resulted in the allotment to Mrs. Kelly of the home tract, the sale of the Vaden tract and the provision for making up her one-half interest in fee by a payment to her from the proceeds of the Vaden tract. We do think, however, that the decree of May 22, 1914, should be amended in one respect. The commissioners appointed to partition the land fixed the value of the home tract at $4,312.50, and of the Vaden tract at $9,620.00. The Vaden tract actually sold for $9,200.00, which was $420.00 less than the estimate made by the commissioners, but the court, nevertheless, proceeded to allow Mrs. Kelly the full amount which the commissioners in their report and upon their previous estimate showed would be necessary to equalize
Amended and affirmed.