128 Va. 62 | Va. | 1920
after making the foregoing statement, delivered the following opinion of the court:
The questions presented for our decision by the assignments of error will be disposed of in their order as stated below.
1. Should the appeal in the first above entitled case be dismissed on the ground that no appeal bond was given as the statute requires?
The answer to this question depends upon whether the statute on the subject requires an appeal bond to be given in such a case. The precise question seems to be a novel
Now it cannot be doubted that upon and after the death of J. C-. Poff, after the appeals aforesaid were allowed, the appeal in the first above entitled case became and still remains an appeal proper to protect such decedent’s estate. But it is argued that it was not such an appeal at the time it was applied for or allowed, and that the statute of limitations on the subject of appeal bonds speaks as of the time
Now the statute does not by its terms say that the person taking the appeal is at all material, but only, in substance, that where the appeal itself is proper to protect the estate of a decedent no appeal bond is required. And after an appeal has been takén by a party himself, in due time so far as the appeal is concerned, as in the case in question before us, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case certainly falls within the reason of. the provision of the statute which exempts cases involving the estates of decedents from the need of the giving of an appeal bond. Any other construction would be extremely technical, and would deny the remedial effect of the statute, to which the estate of such a deceased party seems plainly entitled. when we consider the object aforesaid of the provision making said exemption, as such object is stated in the statute itself.
As to the view urged in- argument, that the statute of limitations on the subject of appeal bonds speaks as of the time of the application for and the allowance of the appeal, this can find support only in the theory that there is some inseparable connection between the application for or the allowance of the appeal, and the giving of the appeal bond. This view may seem to receive some color from the consider
Prior to the Code of 1849, there was no statute of limitations fixing any definite period within which appeal bonds must be given. The statute of limitations fixing a definite period within which appeals and writs of error must have been applied for was then in existence, practically in the same form as it exists at the present time, except that the statutory period was then different. The statute prior to the Code of 1849 also provided for appeal bonds to be given; but there was no provision therein, as there is now, for the dismissal of the appeal if the appeal bond was not given as required. In that state of the law, it was held that where the appeal was once allowed within the statutory period, the appeal remained pending although no appeal bond was given as required by the statute, and the appeal could not be dismissed by the appellate court merely for lack of such appeal bond. Williamson v. Gayle, 4 Gratt. (45 Va.) 180.
Then came the énactment in the Code of 1849 (section 17, p. 686), of our present statute aforesaid (Code, 1919, section 6355), except that the statutory period thereunder was different, providing that “The appeal * * * shall be dismissed whenever it appears that” (the statutory period) “has elapsed * * *. before such bond is given as is required to be given before an appeal * * * takes effect.”
We are, therefore, of opinion that upon a motion to dismiss an appeal the statute last mentioned speaks as of the portion of the time which may remain.of the statutory period aforesaid within which the appeal bond must be
It is immaterial whether when an appeal is allowed the ‘decedent had died and' his personal representative is then a party to the cause, or whether the death occurs afterwards and the personal representative is not a party to the cause. After the'appeal has been once properly allowed, it is the appeal itself with which the statute deals, and with the need of its continued pendency in order to protect the estate of the decedent, and not with the question of whether the decedént or his personal representative is a party before the appellate court.
To sustain the view urged upon us for appellees that the statute in its-requirement of appeal bonds has in view the parties to the cause as of the time that the appeal is applied for and is’ allowed, and that the statute of limitations oh the subject is then set in motion, and that it thereafter, like other statutes of limitations, runs over all supervening disabilities, the case of Pace v. Ficklin, 76 Va. 292, is cited and relied on. There are expressions in the opinion of the court in that case which may seem to support the views contended for. It is said in that opinion, delivered by Judge Staples, that “The statute” (in its exemption dispensing with the requirement of appeal bonds when the appeal is proper to protect the estate of a decedent), “only applies to those cases where the estate of a dead man is injuriously affected by a decree, and the appeal is taken by the personal representative to protect his estate.” But in that case the
What is said in the case last cited, on the subject of the running of the statute of limitations over all disabilities when it once commences to run, has reference to a different subject altogether from that which we have under-consideration, and is not in point. The reference is to that aspect of the case in which it was granted that an appeal bond is required where the appeal is necessary to protect the estate of a bankrupt, who is not dead, so that the statuté of limitations in question began to run, and the question was whether the running of the statute was suspended between the death of one assignee in bankruptcy and the qualification of his successor. In the case before us, as it is not one in which an appeal bond is required, the statute of limitations on the subject never began to run.
The appeal in'the.second above entitled case must be dismissed, but without prejudice to the rights of the appellants involved therein, which are inseparably involved in the appeal in the first above entitled case, and will be determined by the decision we shall make in such case touching the same.
We are óf opinion that this question must be answered in the affirmative.
The statute in question has not been changed since the cause of action in the case before us arose, and was then, as it is now, in the form in which it appears in the Code of 1919, section 5278, as follows:
“Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime,- or under his will, any estate, real or personal, by way of advancement, and he, or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper proportion of the estate, real and personal.” (Italics supplied.)
What is a gift “by way of advancement” is defined in the opinion of this court handed down at the present term by
which is presumed to have been intended.” 1 R. C. L., sec
“I have other property that I do not attempt to dispose of in this will concerning the farm. I may some time in the future make a will as to the residue of my estate, or I may dispose of it in my lifetime, or I may die intestate as to said residue.”
The most that can be said of this declaration is that it is silent on the subject of whether he intended the gift of the farm to be a gift “by way of advancement.” It certainly does not furnish any affirmative proof that the gift was not intended to be such a gift. In such state of the proof, the presumption aforesaid attaches to the gift.
The case of Biedler v. Biedler, 87 Va. 300, 12 S. E. 753, is relied on by appellants, but in that case the will not only made the specific devise constituting the gift in question, but added the provision that the- remainder of the estate was to go “as the law decrees,” manifestly referring'to the direction of the statute of descents and distribution. The testator in that case thus expressed affirmatively the intention that the gift was not intended “by way of advancement,” for in such case the remainder of the estate could not have been divided in accordance with the statute just mentioned.
We are therefore of opinion that the decree under review was correct in its holding on this subject.
We are of opinion that this question must be answered in the negative.
The payment of the money in question by J. W. Poff for the younger sons unquestionably created the relationship of creditor and debtor between them. The presumption of gift to the younger sons, which might have arisen from the bare fact of the payment, is rebutted by the express evidence in the case that J. W. Poff told such sons that they owed him the amount of the money so paid, and that they admitted the existence of such obligation.
The transaction was not a deposit of money, or other thing, by J. W. Poff into the hands of such sons in trust for the daughters, where the act of the donor in making the deposit accompanied the creation of a trust, so that there was a complete assignment or transfer of the subject of the gift in trust, as was true in the case of Russell’s Ex’rs v. Passmore, 127 Va. 475, 103 S. E. 652. In such a case as that just cited, the act of making the deposit into the hands, not of a mere agent of the donor, but of a trustee who accepts the trust, is equivalent to the act of a donor in delivering the possession of tangible personal property, which is indispensable to the validity of a gift thereof causa mortis, and also of a gift thereof inter vivos, except that in the case of the latter character of gift of personal chattels, the acquiescence of a donor in a previously acquired possession of the donee has been held to be sufficient evidence from which to imply delivery of the possession. Shankle v. Spahr, 121 Va. 598, at pp. 607-8, 93 S. E. 605; Wood v. Treadway, 111 Va. 526, 69 S. E. 445, and authorities there cited; Rus
But the gift to the daughters in the case before us comes within none of the exceptions above mentioned, and is plainly an attempted equitable assignment of a chose in action, i. e., of the debt due the donor by the younger sons.
We conclude, therefore, that there is no error in the holding of the decree under review on the question last disposed of, and it will be affirmed.
Affirmed.