20 S.E. 950 (Va. 1895), Hutchings v. Commercial Bank of Danville

Citation:20 S.E. 950, 91 Va. 68
Opinion Judge:Harrison, J.,
Party Name:Hutchings and Others v. Commercial Bank of Danville and Others
Attorney:E. E. Bouldin, for appellants. Peatross & Harris, for the appellee, the Commercial Bank of Danville, Va.
Judge Panel:Absent, Riely, J.
Case Date:January 31, 1895
Court:Supreme Court of Virginia
 
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Page 950

20 S.E. 950 (Va. 1895)

91 Va. 68

Hutchings and Others

v.

Commercial Bank of Danville and Others

Supreme Court of Virginia

January 31, 1895

Appeal from two decrees of the Circuit Court of the city of Danville, one rendered June 11, 1891, and the other March 24, 1892, in a suit in chancery, wherein the appellee, the Commercial Bank of Danville, Va., was the complainant, and the other appellees and the appellants were the defendants.

Reversed.

SYLLABUS

The opinion states the case.

E. E. Bouldin, for appellants.

Peatross & Harris, for the appellee, the Commercial Bank of Danville, Va.

Absent, Riely, J.

OPINION

Harrison, J.,

Page 951

[91 Va. 69] In April, 1890, the Commercial Bank of Danville, Va., filed its bill in the Circuit Court of Danville against John R. Hutchings, P. H. Boisseau, administrator c. t. a. of Sue R. Hutchings, deceased, Lucy Allen Hutchings and Sue Hutchings, infant children of Sue R. Hutchings, deceased, and J. D. Blair, seeking to subject the interest of said John R. Hutchings, as tenant by the curtesy, in the separate real estate of his wife, Sue R. Hutchings, to the payment of a certain debt due said bank from said John R. Hutchings; and, further, to settle certain accounts between the estate of Sue R. Hutchings and John R. Hutchings, and to subject the separate estate of Sue R. Hutchings to a debt due by her, as indorser for said John R. Hutchings, and to have an account of the money advanced by John R. Hutchings to his wife in erecting a dwelling-house upon her lot, and to have anything thus shown to be due said John R. Hutchings applied to the payment of the debt due plaintiff. Answers were filed, and the cause referred to a commissioner, who made a full report of all the facts and the evidence, and then it came on to be heard by the court upon exceptions taken to said report by both sides. The court, by a decree dated June 11, 1891, partially disposed of the principles [91 Va. 70] of the cause, and recommitted the same for further enquiries; and under this order a second report was made, to which exceptions were taken, and on the 24th day of March, 1892, the court entered a second decree, fully settling the principles of the cause and the rights of the parties. It is from these two decrees that an appeal was allowed to this court. On the 6th day of April, 1893, this court delivered its opinion affirming the decrees appealed from, and on the 21st of June, 1893, a rehearing was granted; and we are now called upon to decide the case upon said rehearing.

It appears from the record that Mrs. Sue R. Hutchings, late of Danville, left a will, which was duly probated in said city on the 14th day of January, 1889, in which she gives to her two children all her real and personal estate. The real estate passing under this will consisted of the following separate estate of Sue R. Hutchings: First, a house and lot on West Main street, in Danville, which was conveyed as a gift, by her father, Thomas B. Doe, by deed dated January 10, 1881, to a trustee for the separate use and benefit of the said Sue R. Hutchings, for her to have, use, and enjoy the same, or her assigns, forever, free from debts and liabilities of her husband. Second, a lot on Broad street in said city, bought by Mrs. Hutchings at the sale for partition of her father's lands, and paid for with her interest in the estate of her father, and conveyed, by deed dated April 16, 1884, by the sale commissioner (Mrs. Hutchings and her husband, John R. Hutchings, uniting in the deed), to a trustee for said Sue R. Hutchings, in trust for the sole and separate use of the said Sue R. Hutchings, the wife of said John R. Hutchings, to sell, convey in trust, or devise the said real estate as the said Sue R. Hutchings may desire. Third, an undivided one-third interest in a lot on Broad street in said city, bought by said Sue R. Hutchings at the sale for partition of her father's lands, and paid for with her interest in the estate of her father, which was [91 Va. 71] conveyed by mistake, by the sale commissioner, to John R. Hutchings, and subsequently, by deed dated June 21, 1888, in which said mistake was recited, conveyed by said John R. Hutchings and Sue Hutchings to a trustee for the sole and separate use of said Sue R. Hutchings, and for her to sell, convey, and otherwise dispose of as she pleases. Fourth, an undivided one-seventh interest in certain unsold lands lying just outside the...

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