9 Gratt. 242 | Va. | 1852
Joseph McReynolds, by his last will, devised that his wife Rebecca McReynolds, during her life, should' have the use and profits of all Bis real estate, as a home and support for her during her life, and, after her death, to pass unencumbered in absolute fee simple to his son Isaac, who is the appellant here. The personal estate, after payment of his debts, the testator directed to be divided into eight equal shares, one of which he gave to each of his seven living children, and one to the children of a deceased son. The widow waived and renounced the provision made for her by the will of her husband, and claimed her dower in the real estate, and her distributive share in the personal estate, as if her husband had died intestate. After this renunciation, the widow’s dower not having been assigned to her, she continued for some years to occupy the land. 1 Rev. Code, ch. 107, § 2, p. 403. A bill was then filed by some of the children of Joseph McReynolds for the purpose of assigning the widow’s dower, and making partition of the other two-thirds, and seeking an account of the rents and profits thereof. The Circuit court approving the principles asserted in the bill, by its decree directed
Applying these principles to the case, I am of opinion to affirm so much -of the decree as directs the assignment of dower to Rebecca McReynolds; to reverse so much of it as directs an account of the rents and profits of the remaining two-thirds of the land, and as directs a partition thereof amongst the heirs of Joseph McReynolds, with costs to the appellant; to remand the cause to the Circuit court with directions to ascertain to what amount, if any, the legatees in Joseph McReynolds’ will have-been disappointed by the renunciation of. the widow, and to cause the rents and profits during Rebecca McReynolds’ lifetime, of two-thirds of the land to be applied as far- as may be necessary to indemnify those 'legatees ; and after full indemnification to the legatees, or after Rebecca McReynolds’ death, whichever shall first occur,to place the land in the hands of Isaac McReynolds. *The decree was as follows: - It seems to the court here, that so much of the decree of the Circuit court.‘as directs an assignment of dower to Rebecca McReynolds in the estate of her late husband, Joseph McReynolds, is correct. But it further seems to the court here, that there is error in that part of the decree which directs an account of the rents and profits of the remaining two-thirds of Joseph McReynolds’ land, and which directs partition thereof. It is therefore adjudged, ordered and decreed that so much of said decree as is hereby declared to be correct, be affirmed; and so much of it as is declared to be erroneous, be reversed and annulled; and that the appellees pay to appellant his costs expended in prosecuting his appeal here. It is further adjudged, ordered and decreed that the cause be remanded to the Circuit court, with directions to ascertain to what amount, if any, the legatees named in Joseph McReynolds’ will, have been disappointed by the renunciation of , the widow; and that for a period not exceeding the lifetime of Rebecca McReynolds, the rents and profits of the two-thirds of .the land left, after assigning dower, be..taken under the control of the court, and applied to indemnify the legatees for such .disappointment. After indemnification to the legatees, or after the death of Rebecca McReynolds, whichever shall first occur,,it is further adjudged and ordered that the land be placed in the hands of Isaac McReynolds, the remainderman.