Dillard v. Dillard's Ex'rs 1

• Decision Date: 04 April 1895
• Citation: 21 S.E. 669
• Parties: DILLARD . v. DILLARD'S EX'RS et al.1
• Court: Virginia Supreme Court

21 S.E. 669

DILLARD .

v.DILLARD'S EX'RS et al.¹

Supreme Court of Appeals of Virginia.

April 4, 1895.

Married Women—Control of Separate Estate —Disposition by Will—Trustees—Discretionary Powers—Continuance.

1. A married woman, as to property settled to her use. is to be regarded as a feme sole, and has a right to dispose of all her separate personal property, and the rents and profits of her separate real property, in the same manner as if she were unmarried, unless her power of alienation is restrained by the instrument creating the separate estate; and, when absolute dominion is given her over her separate property, it vests in her the absolute estate.

2. A woman had no power to dispose of her separate real estate acquired prior to January 1, 1850, unless the deed or instrument creating the same confers such power; but by Code 1849, c. 122, § 3, and Code 1887, § 2513, she is given power to dispose of her separate property by will.

3. If a married woman is given power to dispose of her property in fee or for a less estate, she has absolute ownership thereof, and may delegate to trustees the power to appoint one of two classes who shall hold the fee.

4. A court of chancery cannot control trustees in the exercise of a discretionary power reposed in them, nor compel them to exercise such discretion.

5. Where the record fails to show that complainant asked for further time to prepare his case, there can be no error charged to a failure to grant further time.

Appeal from circuit court, Nelson county; D. A. Grimsby, Judge.

Action by J. T. Dillard against the executors of N. E. Dillard and others. Decree for defendants, and complainant appeals. Affirmed.

P. P. Fitzpatrlck, for appellant.

Caskie & Coleman and J. Thompson Brown, for appellees.

BUCHANAN, J. This is an appeal from a decree of the circuit court of Nelson county rendered in the cause of J. T. Dillard against the executors of N. E. Dillard and others, in which the complainant in that court is the appellant here.

The object of the suit, the proceedings had, and the reasons of the court for rendering the decree complained of are so clearly stated in the written opinion of the circuit judge filed in the cause, and printed in the record, that we will adopt that opinion, so far as it discusses the questions raised by this appeal, as our opinion. It is as follows:

"The primary object of the bill of the plaintiff is to obtain from the court a construction of the will of Narcissa E. Dillard, and to have the alleged devise to John Dillard stripped of all restrictions thrown around it by the testatrix, and of the discretionary power in regard to the subject-matter vested in the trustee by the will; and, secondly, in the event that the construction placed upon the will by the court should be adverse to the pretensions of the complainant, then the plaintiff asks for an account of personal property, and of the rents and profits of the real estate which passed to trustees for Mrs. Dillard for life, and, after death, to her children under the deed of 1830, and also an account of the profits of John Turner's estate, from his death, in 1872, to the death of his mother, in 1877, both of which, it is alleged, were appropriated by Mrs. Dillard or her acting trustee, her husband, and were used to augment the estate disposed of by will, and as to plaintiff's share of which he claims and asks to be regarded as a creditor of her estate; and the bill also embraces a third object, to wit, the specific execution of an alleged understanding and agreement between his father and mother and himself, to be remunerated for his interest in the Amherst estate, conveyed in 1860. * * * So far as the estate of John Turner is concerned, the court holds that, under the will of his father, Narcissa E. Dillard had a mere naked power of appointment, not coupled with any interest; and that upon the death of John Turner, in 1872, the estate passed to the children of N. E. D. as tenants in common, and that they were entitled to the rents, issues, and profits thereof, until their interest in the estate was divested by the exercise of the power of appointment; and if, as alleged in the bill, N. E. D. in her lifetime, from the death of John to her own death, appropriated the rents to her own use, she would be responsible therefor; but, as her executors rely on and have pleaded the statute of limitations to this demand, it is a complete and effectual defense to any recovery therein.

"The plaintiff alleges an understanding and agreement with his mother and father (her acting trustee), in consideration of his uniting in the deed of the Amherst property to his brother Terisha, to compensate him therefor by a suitable provision. This is, however, denied by the answer of the defendants, and there is no proof in the cause of such an agreement; in fact, what the agreement or understanding, if any, is, is not set out with any degree of certainty or definiteness. But, even if it were so, the court is further of opinion that the statute of a parol agreement, as well as the laches and delay of the plaintiff in asserting his rights, and the vagueness and uncertainty of the understanding, is a complete bar to any recovery on this question.

"This brings us, then, to the main question in the case, viz. the true construction of the wills of Terisha Turner and of Narcissa E....