Baylor's Lessee v. Dejarnette

• Decision Date: 29 February 1856
• Citation: 54 Va. 152
• Parties: BAYLOR'S lessee v. DEJARNETTE.
• Court: Virginia Supreme Court

54 Va. 152

BAYLOR'S lessee v. DEJARNETTE.

Supreme Court of Appeals of Virginia.

February 29, 1856

A dies indebted to K, and by his will gives large estates to his three sons B, C and D, and directs that B shall pay one-half of his debts, and that C and D shall each pay one-fourth. B qualifies as executor of C and dies, and by his will gives an estate to E for life, and at his death to the eldest son of E living at his death, E not having a son at the death of B. K had sued B in equity to recover his debt, and after B's death and before E had a son, the suit is revived against the executor of B and against E, and after the birth of E's son there is a decree for a sale of a part of the land devised by B for the payment of B's half and C's fourth of the debt, and the land is sold and conveyed to the purchaser, the son of E not being a party to the suit. On the death of E his son brings ejectment to recover the land sold against a party claiming under the purchaser under the decree. HELD:

1. The son of E took a contingent remainder in fee in the estate devised by B, dependent upon his being alive at the death of E.

2. The son of E not having been in being when the suit was revived against E, and having no certain interest in the estate, was not a necessary party, but is concluded by the decree against E, the tenant for life.

3. The debt due to K not having been barred at the death of A, his will created a charge upon the lands devised to his three sons B, C and D, for the payment of his debts in the proportions named therein; and this charge would prevent the bar of the statute of limitations as to the real estate taken by the sons under the devise to them.

4. By accepting the devises the devisees became personally liable in respect to the subject devised to them respectively, each for his share of the debts; and the creditors were under no obligation to look to the general estate of A before asserting their claims against the devisees and the subject devised.

5. B having received assets as executor of C and having executed a bond as executor, C's fourth of the debts of A were charged upon the real estate of B (if not otherwise) by his executorial bond.

6. But if the decree was erroneous in this respect, or if it was collusive as between the creditor and E, these subjects cannot be examined into in this collateral proceeding, but the decree is conclusive in this cause, upon the matters thereby adjudicated, and has the effect to devest the title out of E and his son claiming in remainder after him.

7. The record in the chancery cause is legal evidence for the defendant as a link in his chain of title, though the plaintiff was not a party to the cause.

This was an action of ejectment in the Circuit court of Caroline county by the lessee of John N. Baylor against Daniel Dejarnette in his lifetime, and on his death revived against his devisee John H. Dejarnette. The matters in controversy were submitted to the court on a case agreed, in which it was agreed that the court in giving judgment upon the case should be at liberty to draw all fair inferences which a jury might draw from the statement of facts and evidence; and a record and deed were made a part of the case to which the plaintiff excepted, and his exceptions were to be considered as a part of the case submitted to the court. The following are the material facts in the case:

John Baylor 1st, of New Market in the county of Caroline, died previous to the 14th of May 1772. By his will he gave to his son John Baylor 2d, his New Market estate as well as other property. He also gave a large property to his sons George and Robert; and after providing a fund for the payment of debts, which proved inadequate, he directed that the balance of his debts not satisfied out of the fund should be paid one-half by his son John 2d, and one-fourth each by George and Robert. John Baylor 2d and John Armistead the son in law of the testator, were appointed executors of the will, and both of them qualified as such; though John Baylor 2d did not qualify for some time after the qualification of Armistead.

During the lifetime of John Baylor 1st he seems to have dealt with the firm of Dunlops & Crosse, merchants of Scotland, who by their agent carried on a store in the town of Port Royal in the county of Caroline; and after his death, a bond prepared to be executed by both the executors, was executed by Armistead alone, to Dunlops & Crosse for the sum of five hundred and twenty-six pounds seven shillings and three pence, for the amount of their account. This bond bears date on the 24th of July 1795; and was given for the balance due on their account, which commenced in 1764 and continued down to 1773, embracing articles furnished to the estate after the death of John Baylor 1st.

John Baylor 2d died about the early part of the year 1808. The first four clauses of his will are as follows:

1st. I give to my well beloved wife Frances Baylor, for and during her natural life, the New Market mansion-house and garden and all houses therewith conveniently connected; also one-fourth part of all the rents now arising and which may hereafter arise from that part of my estate herein after devised to my eldest son John; and likewise one-fourth part of all rents now arising or which may hereafter arise from that part of my estate herein after devised to my son George which shall be in lieu of all dower in and claim to my estate.

2d. I lend to my eldest son John one-half of my New Market landed estate, which shall be so divided that my said son John may take and have the mansionhouse and brick improvements which I had commenced, one-half of the high land and one-half of the low land, with an equal moiety of all improvements conveniences and advantages appurtenant, and one-half of the water and mill seat. I also lend to my said son John one-half of all my farming utensils and one-half of my library consisting of from twelve to thirteen hundred volumes; one-half of my interest in all my Loyal company lands, and one-half of all those lands, for which I have brought suit in the county of Orange, if recovered, except three hundred acres thereof, which I intend for my daughter Courtney Orange Fox.

All which estate above mentioned I lend as aforesaid to my said son John during his natural life, and after his death I give and devise the same absolutely and in fee simple to his eldest son lawfully begotten then living; but if my said son John should die leaving no male child lawfully begotten, then my will is, that my son George have and hold, during his natural life, all the said estate lent to my son John; and at the death of my son George, I give and devise the same absolutely and in fee simple to the eldest son of the said George lawfully begotten then living; and if my son John should survive my son George, and die leaving no male child, then my will is that the eldest son of the said George lawfully begotten, shall have and receive absolutely and in fee simple all the said estate at the death of my son John. And in this case it is my will and I do direct that the said George and his son, who shall take the said estate above mentioned under this devise, shall pay to the daughter or daughters of my son John, if any, an annuity of one hundred pounds current money, for her or their natural life or lives.

3dly. I lend to my son George the other half of all my New Market landed estate, including one-half of the high land and one-half of the low land, and an equal moiety of all improvements, conveniences and advantages appurtenant, (except the mansion-house and brick improvements above mentioned,) one-half of my mill, or one-half of the water and mill seat. I also lend to my said son George one-half of all my farming utensils, one-half of my library, consisting of the aforesaid number of volumes, and my gold watch; likewise one-half of all my interest in all my Loyal company lands, and one-half of all those lands for which I have brought suit in the county of Orange, except three hundred acres thereof, which I intend for my daughter Courtney Orange Fox, as before mentioned. All which estate I lend to my said son George, during his natural life, and at his death I devise and give the same in fee simple and absolutely to his eldest son lawfully begotten then living; but if my son George should die leaving no male child, then my will is that my son John have and hold all the estate (lent to my son George) during his natural life, and at the death of my son John, I devise and give the same in fee simple and absolutely to the eldest son of the said John lawfully begotten then living; and if my son George should survive my son John, and die leaving no male child, then my will is that the eldest son of the said John then living shall have and receive in fee simple and absolutely all the said estate at the death of my son George. And in this case it is my will, and I do direct that the said John and his son who shall take the said estate as above mentioned under this devise, shall pay to the daughter or daughters of the said George, if any, an annuity of one hundred pounds current money during her or their natural life or lives.

4thly. I direct that no division of my estate be made between my sons John and George until the latter attains to twenty-one years of age, when the same shall be done in such manner as they shall agree upon, or in case of their disagreement, by one or more disinterested persons, who shall be mutually chosen by them for that purpose; and the division so made shall be final and obligatory.

John Baylor 2d survived his brother George Baylor and qualified as his executor; and as such received assets sufficient to pay George Baylor's fourth part of his father's debts.

After the death...