Garland's Adm'r v. Garland's Adm'r

• Decision Date: 30 April 1891
• Citation: 87 Va. 758,13 S.E. 478
• Parties: Garland's Adm'r v. Garland's Adm'r et al.
• Court: Virginia Supreme Court

13 S.E. 478

87 Va. 758

Garland's Adm'r

v.Garland's Adm'r et al.

Supreme Court of Appeals of Virginia.

April 30, 1891.

Will—Trusts—Unexpended Profits — Remainder.

A testator set apart in trust in the hands of his executor, for the benefit of his brother, certain plantations and personal property, and provided that "the profits of the estate is set apart for his use, under his superintendence; but neither the estate nor profits shall be bound for his past debts, or for future debts or liabilities, other than decent and comfortable support. At his death, all the said property is to pass to a trustee, in trust for certain other devisees. " Held, that the brother took only a qualified right to support from the profits, subject to no debts except to those who furnished him supplies, and that unexpended profits passed at his death to the remainder-man.

Appeal from circuit court of city of Lynchburg.

Action by John F. Slaughter, administrator d. b. u. c. t. a. of Samuel Garland, Sr., against Charles Y. Morriss, administrator c. t. a. of B. Garland, and others, to enforce a decree rendered in the state of Mississippi, and for distribution thereunder. Decree for plaintiff, and defendants appeal. Reversed.

W. J. Robertson and E. S. Brown, for appellants.

J. S. Diggs, R. G. H. Kean, and E. C. Burks, for appellee.

Hinton, J. This is the sequel to the case of Garland's Adm'r v. Garland's Adm'r, reported in 84 Va. at page 181, 4 S. E. Rep. 334. As the case was then presented, it appeared that William H. Garland, executor of Burr Garland, deceased, had brought a suit in the proper court in Mississippi to settle the administration accounts of his testator as administrator c. t. a. of Samuel Garland, Sr., deceased; that the court in Mississippi ascertained the amount due to be $04,130.88, and decreed that the domiciliary executor, the said William H. Garland, should pay the same to John F. Slaughter, who had qualified in Virginia as administrator de bonis non e. t. a. of the said Samuel Gar-laud, Sr. Burr Garland died in Virginiain December, 1869. On his death there was found in the hands of John T. Murrell, in Lynchburg, Va., the sum of $1,421.52, which was the remains of a sum of money said Burr Garland had deposited with him on call, and subject to his (Burr Garland's) order. It also appeared that when Burr Garland died he was in possession of certain conveyances or assign ments to himself from several legatees of the said Samuel Garland, Sr., who were children of Nicholas Garland, a brother of the testator, of the legacies given to them in the will of Samuel Garland, Sr. Slaughter being unable, by reason of Burr Garland's insolvency, to make the money decreed by the Mississippi court in that state, and finding these assets in Virginia, brought suit in Virginia to enforce the Mississippi decree. To that suit Charles Y. Morriss, administrator with the will annexed of Burr Garland, deceased, and Mary Garland, his surety, were made defendants. Upon this state of facts, this court held that the decree of the Mississippi court must be accepted as final and conclusive evidence of the fact and amount of indebtedness by Burr Gurland, the Mississippi administrator of Samuel Garland, to Samuel Garland's estate. And, further, that the decree of that court did not undertake to distribute it, nor to determine who are entitled to receive it, under Samuel Garland's will, but decreed it to be paid over to the Virginia domiciliary executor, to be by him distributed to those entitled, according to the declared intention of the testator; "hut this decision is without prejudice to any right of action which Paulina B. Morriss may have in this or in an independent suit." When the case got back to the circuit court, the plaintiff filed bis amended bill, making Paulina B. Morriss and her children parties.

After the case had been matured for hearing, on application for an order directing accounts, the court proceeded to construe the ninth clause of the will of Samuel Garland, Sr., upon the true construction of which the present controversy must turn. That clause is in these words: "(9) My favorite brother, B. Garland, raised by me, and long a resident of Mississippi, is, and has for a long time past been, embarrassed in debt by losses of trade in 1837, and liabilities as surety for others. It might be unsafe to devise property to him absolutely. I therefore set apart in trust in the hands of my executor for the...