Freeman's Adm'r v. Butters

• Decision Date: 18 March 1897
• Citation: 94 Va. 406,26 S.E. 845
• Parties: FREEMAN'S ADM'R et al. v. BUTTERS et al.
• Court: Virginia Supreme Court

26 S.E. 845

94 Va. 406

FREEMAN'S ADM'R et al.

v.BUTTERS et al.

Supreme Court of Appeals of Virginia.

March 18, 1897.

Power to Dispose of Property by Will — Effect of Execution—Rights of Creditors of Testator.

Where a testitor willed his property to his wife during widowhood, with absolute power to dispose of it by will, which power the widow executed by devising the property to volunteers, leaving debts of her own unprovided for, the property so devised became a part of her estate on her death, subject to the claims of her creditors.

Appeal from circuit court, Culpeper county.

Bill by George D. Coons, as administrator of George L. Freeman, and others, against William H. Butters and others, to subject certain lands to the payment of a debt due plaintiffs from Maria L. Hurt, deceased. From a decree dismissing the bill, plaintiffs appeal. Reversed.

J. C. Gibson, for appellants.

Rixey & Barbour, for appellees.

KEITH, J. Freeman's administrator filed his bill in the circuit court of Culpeper county, in which he shows that William Hurt died in 1851, leaving a will which was duly probated, by the second clause of which he gives and devises to his wife, Maria Louisa Hurt, the whole of his estate, real and personal, during her widowhood, "with full power and authority to dispose of the same by her last will and testament, in any manner she may think proper."

He further shows that his intestate is theassignee of a bond executed by Maria L. Hurt for the sum of $1,000, bearing 6 per cent. interest.

On the 4th of March, 1872, Mrs. Hurt, in consideration of the high esteem she has for the party of the second part, and in the further consideration of the sum of $10, conveyed to William H. Butters, of Chicago, Ill., 75 acres of the tract of land devised to her by the will of her deceased husband. On the 18th of November, 1876, she conveyed to William H. Butters, trustee, in consideration of certain advances of money from time to time made from the said Butters and Susan E., his wife, and for the further consideration of $1, another parcel of land, containing 130 acres, to hold on the following uses and trust, that is to say: To allow "the said Maria L. Hurt to take and receive the rents of the land during her natural life, to be applied to her support and maintenance as may be necessary, the balance to be used as she may think best, and, after her death, to hold the said tract of land for the sole and separate use of Susan E. Butters, the wife of William H. Butters, trustee." On the same day, she conveyed to William H. Butters, trustee, for his wife, Susan E. Butters, and her heirs, another tract of land, containing 43 acres, the consideration being $1,000 in hand paid. On the 19th of February, 1878, she executed another deed, in consideration of $5, by which she relinquished the interest in the rents and profits of the land reserved to herself in the deed of February 18, 1876, to William R Butters, trustee for his wife; and on the 5th day of March, 1887, she executed a will, which was duly probated in the county court of Culpeper, on March 19, 1888, by which she devises to Susan E. Butters, wife of William H. Butters, "the 142 acres of land heretofore conveyed to her by deed of bargain and sale." By other clauses of the will, she makes sundry other devises and bequests. The several deeds and wills referred to are exhibited with the bill.

William H. and Susan E. Butters filed their answer and demurrer to this bill, and the guardian ad litem of the infant defendants also answered; and, the cause coming on to be heard upon the demurrer and the answer of the guardian ad litem, and upon the demurrer of William H. Butters, Susan E. Butters, Alice, Lucy B., and Horace Finks, it was adjudged and ordered that the demurrer be sustained, and the bill of complaint be dismissed, with costs.

At a subsequent day, the plaintiffs were allowed to file a bill of review, and the court set aside the decree dismissing the bill, and permitted the plaintiffs to file an amended bill. The object of the amendment was to implead the administrator of Maria L. Hurt, deceased, and to aver that she died possessed of personal estate liable to the payment of her debts, but inadequate thereto, and that, therefore, the lands devised by her under the power given by the will of William Hurt, de ceased, upon her exercise of that power, in favor of volunteers, became subject to the payment of her debts.

On the 9th of June, 1894, the cause was brought on again to be heard upon the papers formerly read; and the court, being of opinion that the real estate devised by the will of Maria L. Hurt to Susan E. Butters is not liable to the debts set up by the plaintiffs in the bill of complaint, ordered and decreed that the original and amended bill be dismissed as to Susan E. Butters and her children.

It...