A lawsuit brought by the Administrator of the Estate of Mary (LEWIS) THOMSON for her heirs against the Executor of the estate of Waddy THOMSON. The court decided for her heirs and said they should receive rent monies for past usage of Mary LEWIS' lands, which were not included in Waddy THOMSON's estate.
Virginia Reports, Jefferson-33 Gratton, 1730-1880, Argued and Determined in the Supreme Court of Appeals of Virginia by William Munford, by Thomas Johnson Michie; Thomas Jefferson; Peachy Ridgway Grattan, 1904, The Michie Co. [online on Google Books books.google.com]
Thompson's Administrator vs. Thompson's Executor
Decided, March 4th. 1820.
Deputy Sheriff—Administration of Estate—Submission to Arbitration.*—The deputy of a Sheriff to whom administration of the estate of a deceased person has been committed, is not authorised to submit to arbitration a suit revived in the name of the Sheriff as administrator, to which the deceased, in his llifettme. was a party as are put in after his death, the executors, (in a case where the common law rule governs.) should be charged a reasonable rent for the land, to be paid to the persons entitled in reversion or remainder, according to their several rights.
Mary Thompson widow of Waddy Thompson, filed a bill in Chancery in the County Court of Albemarle in September 1805, stating that, by a marriage contract, dated the 12th of December 1766, and recorded in May 1767, all the estate which the said Waddy Thompson might claim in her right under the Will of Samuel Cobbs her first husband, was vested in William Lewis as trustee for the use of herself and her heirs forever; and all the estate which she claimed or then had under the Will of her father Robert Lewis, was vested in the said William Lewis, in trust, for the use of the said Waddy Thompson and herself during their lives and the life of the longest liver; and, in case hp should die without issue by her, *then the said estate was to return and be vested in her in the same manner as she then held it; but, if she should die leaving only one child, she was to have a right to dispose of one half; or, if two or more children, of one third part, in fee simple:—that the true meaning of the contract was, that, in the event of her being the survivor, she should enjoy the whole during life:—that Waddy Thompson died in March 1801; having, by his Will, but not intentionally, made a different disposition: that Waddy Thompson, executor of the deceased, insisted that the crops made that year were assets in his hands, although the plaintiff was entitled to them under the marriage contract, by virtue of which her interest, for her sole use and benefit, vested at his death; and especially, because, at least one half of the hands employed on the plantation of the decedent were of her own estate:—that, at the time of her said husband's death, she had issue by him five daughters:—that, after his death, and during the year in which he died, a considerable crop was made on the land which was in his occupation at the time of his death, besides a crop of tobacco, on hand, of the preceding crop, all which came to the hands of the executor, who refused to allow her any part for the maintenance of herself and two daughters living with her.
The Bill therefore prayed an account to be rendered by the said executor; and for such decree as might be agreeable to equity.
The defendant, by his answer, referred cree, and directed the bill to be dismissed with costs:—from which last decree the plaintiff appealed to this Court; and, afterwards, upon her death, the cause was revived in the name oi Rice Garland, Sheriff of Albemarle County, to whom administration of her estate was committed.
Stanard and Call for the appellee, moved that he be permitted to file a plea here in the following words; viz.:—"And the appellee Waddy Thompson executor of Waddy Thompson, by his attorney, comes and
says that the appeal prayed by Mary Thompson from the decree of the Superior Court of Chancery for the Richmond District, atjd which now depends in this Court in the name of Rice Garland as her administrator, (the same appeal having1, since the same was prayed, abated by the death of the said Mary Thompson, and been revived in the name of her said administrator,) ought not to be farther prosecuted by the said administrator against the said appellee ; because he says that, after the decree from which the said appeal was prayed, and the said appeal had been prayed and allowed, and after the death of the said Mary Thompson, administration on her estate was duly committed to the said Rice Garland as Sheriff of Albemarle, by the order of the County Court of Albemarle; and George W. Kinsolving, being the duly qualified deputy of the said Rice Garland, took upon himself, (as rightfully he might as deputy aforesaid,) the administration on the estate of the said Mary Thompson, with the knowledge and full assent of the said Rice Garland; and, being so qualified and acting as the administrator of the said Mary, with full authority from his said principal to act, in all things touching the same, with like effect as his said principal could, afterwards, to wit, on the 6th day of April in the year 1313, the said George W. Kinsolving as administrator aforesaid, and the said appellee, by their bond, sealed with their respective seals, and now to the Court here shewn, did mutually and interchangeably bind themselves, each to the other, in the sum of *one thousand dollars, to
be paid when thereto required, with a condition there underwritten, reciting the facts, of the said decree of the Superior Court of Chancery for the Richmond District; the appeal therefrom by the said Mary Thompson, and her death; and stating that the said George Kinsolving administrator of the said Mary Thompson, and the said appellee had by mutual consent referred the matter in controversy to the decision of Samuel Shelton, Charles Yancey and William Woods, and to abide by their award, to be binding on them as if determined in the regular course of law; and, in that event, if the party against whom the award should be made, should abide thereby, then the said obligation to be void, else to remain in full force: and the said appellee avers, that the said referees did take upon themselves the burthen of the said arbitrament, and did, thereafter, to wit, on the 6th of April 1813, at the County of Albemarle. in the presence of the parties to the said submission, in pursuance of the said submission, arbitrate and determine of and concerning the matter in controversy in the said appeal, and did then and there award and determine that the said Mary Thompson was not entitled to any part of the crop made, in the year 1801, on the land held by her deceased husband Waddy Thompson the testator of the appellee; the said year 1801 being the year of the death of her deceased husband, and the crop made that year, claimed by the said Mary, being the matter in controversy in the said appeal; and they did farther award, that the said George W. Kinsolving should pay the appellee the costs by him expended in the said suit, in which the said appeal was prayed, up to the time of the said award; which award, subscribed by the said arbitrators, is also to the Court here shewn, and of which the said George W. Kinsolving then and there had notice; by reason of all which premises, the said appellee says all manner of error and errors, defects and imperfections, done or suffered, in or by the said decree, were removed, destroyed and released, and the said representative of the said Mary "Thompson disabled from urging the same on the said appeal; all which the said Waddy Thompson is ready to verify.''
Upon the motion to receive this plea, the following was the Court's opinion.
The Court, not deciding whether a plea, such as that offered in this case, would have been proper in this Court, had the alledged submission been agreed to by Rice Garland the Sheriff, who is the party to the suit now depending, is of opinion that the Deputy Sheriff had rib right to make the submission; and therefore the plea offered is rejected by the Court. The case is therefore to come on, upon it's merits.
After argument, by Wickham for the appellant, and Stanard, Call and John Robertson (Attorney General,) for the appellee, JUDGE ROANE pronounced the opinion of the Court as follows:—
The Court is of opinion, that the provision contained in the 54th section" of the Act concerning Wills, &c. (R. Code of 1819, 1st vol. p. 388,) and which provides that the Emblements, severed between the 1st of March and 31st of December in any year, shall be assets in the hands of the executors, does not apply to this case, if it applies to the case of lands held for life only; it being a new provision materially affecting the rights of the parties, and introduced into our Code subsequently to the execution of the marriage contract in the proceedings contained:—but the opinion of the Court is, that the principle of the common law in relation to Emblements, and which is in some respects more favourable to the representatives of the tenant for life than the provision of that section, is to govern in this case; it being wholly unimportant whether the husband holds in right of his wife by virtue of a marriage contract, or by the general principles of law. That principle gives to the executors such emblements, and such only, as were seeded in the lifetime of the tenant for life:—but, in relation to such crops as were afterwards put in, the Court is of opinion that, in the case which has happened, the executors should be charged a reasonable rent for the land, to *be paid to the wife and the children, according to their several rights accruing on the death of the husband, and for which purpose the said children ought also to have been made parties.
The Court is farther of opinion that, as the provision contained in the 53d section of the said Act. was in force at the date of the contract aforesaid,(1) it concludes the said wife and children from demanding any hires for the slaves remaining on the land at the time of the death of the testator, but that the same were to continue thereon until the end of the year.
Both decrees are to be therefore reversed with Costs, and the cause remanded to have the requisite parties made, and the cause finally proceeded in, pursuant to the principles of this decree.
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