3 W. Va. 200 | W. Va. | 1869
delivered the opinion of the court.
Thi3 was a pending appeal in the supreme court-, of appeals of Virginia, at Richmond, on the 17th day of April, 1861. Afterwards, pending the war, viz: on the 19th of November, 1861, a so-called decree was made in the case by certain learned gentlemen, who had been on the said 17th of April, 1861, and prior thereto, judges of the said court. This court will take judicial notice that the said gentlemen, who assumed to be a court, acted under the authority of those citizens of Virginia then in insurrection and open war against the government of the United States and the restored government of Virginia, and without and against the authority of the said government of Virginia; and by reason thereof and of the ordinance of the loyal people of Virginia in convention assembled, in June, 1861, were not, according to the principles laid down in the cases of Seldenridge vs. Hawver, 2 West Va., 274, and Burkhart vs. Jennings, 2 West Va., 242, either judicial officers, or a court of the State of Virginia, nor were their acts as such obligatory upon the parties to this cause. The court is of opinion, therefore, that the circuit court of Berkeley rightly overruled the motion made in that court after the formation of the State of West Virginia to enter the said pretended decree as the judgment of the court in the cause.
And this court is further of opinion that the power given by the will of the testator Abraham Snider, to his executor, to sell his real estate, was conceived in the expectation that his widow would accept and abide by the'provisions made for her in said will, and with the purpose and intent that all his lands should be sold, free from incumbrance, and the proceeds of the sale disposed of as directed in his will; and that the widow having elected to renounce the provisions of the will, and the tract of 331 acres in the bill and proceedings mentioned, having been assigned to her as and for her dower in the real estate of the testator, the sale by the administrator, with the will annexed, of said tract of land subject to the incumbrance of the widow’s life estate therein, was not within the time, scope, and spirit of the power of
The court is further of opinion, that as it is shown by the proofs in the cause that the improvements put by the appellant Gedrge Snider, on said tract of land, have all been made since the service of the subpoena and the filing of the bill stating the object of the suit, the circuit court did not err in refusing to allow the appellant anything on account of said improvements.
The court is of further opinion, that,the circuit court did not err in holding the appellant George Snider to account for the rents and profits of said tract of land for the period that lias elapsed since the death of Catherine Snider, the widow of the testator.
The court is, ho-wever, further of opinion, that it does not appear by the record how much has been realized from the sale of the lands of the testator, other than the tract of 331 acres, nor how much has been received by the seven legatees mentioned in the will, severally, on account of their respective pecuniary legacies, and so it does not appear satisfactorily that the residuary devisees would not be prejudiced by allowing the said legatees to take said tract of land in lieu of their legacies, or of the balance that may be due thereon ; and, consequently, that the circuit court erred in its order of the 3d of May, 1856, and in its final decree, in allowing the said legatees, without the consent of all the devisees interested in the residuum of the estate, to elect, and in confirming their election, to take said land iii preference to and in lieu of their pecuniary legacies.
The court is further of opinion, that no sufficient reason is shown why the said court did not, in its final decree, make provision for the return to the appellant George Snider of the 180 dollars and 39 cents, the purchase money of the reversion of the tract of 331 acres, with its interest.
