Harper v. Vaughan

• Decision Date: 05 February 1891
• Citation: Harper v. Vaughan, 87 Va. 426, 12 S.E. 785 (1891)
• Parties: Harper et al. v. Vaughan et al.
• Court: Virginia Supreme Court

12 S.E. 785

87 Va. 426

Harper et al.

v.Vaughan et al.

Supreme Court of Appeals of Virginia.

Feb. 5, 1891.

Dower—Charges on the Lanl—Rights of Heirs—Appeal.

1.Parties aggrieved by interlocutory orders need not appeal therefrom until final decree.

2."Where the owner of land charged with a legacy dies leaving a widow, she is not entitled to have the heirs' shares subjected to its payment before subjecting her dower interest.

3.In such case the widow is to pay a sum equal to the aggregate of her annual payments of interest on the legacy during her life, calculating at compound interest, her probable life to be ascertained from the tables of mortality; and the heirs are to pay the balance.

Geo. J. Hundleyand W. W. Henry, for appellants.

Meade Haskins, Willis B. Smith, and T. M. Miller, for appellees.

Lacy, J.This is an appeal from a decree of the circuit court of Amelia county rendered at the March term, 1889.The case is briefly as follows: In 1859the bill was filed by one Egbert G. "Vaughan, as trustee for one Edwin A. Vaughan, against Sarah E. Vaughan, the widow and executrix of James O. Vaughan, deceased, who is now the appelleeSarah E. Flippin, the wife of the appelleeE. F. Flippin, seeking to charge the lands of her testator and deceased husband, James O. Vaughan, with a legacy of $1,500, bequeathed in trust to the said James O. Vaughan for the benefit of the said Edwin A. Vaughan in the wall of his father, Milton Vaughan, deceased, who died in 1847, the profits and issues thereof to be applied to the maintenance of the said Edwin A. Vaughan during his life, at his death the same to be divided among his children, etc. in the progress of the suit the rights of Edwin A. Vaughan were adjudicated, and are not in controversy here.But, the said Edwin A. Vaughan being dead, the claim is now prosecuted by his children for the corpus of the.said trust fund.Commissioners appointed to divide the lands of James O. Vaughan between his said widow and their children divided the land, giving the widow 250 acres of the 003 acres, devised to James O. Vaughan by the will of his said father, Milton Vaughan, deceased, and allotted the residue to the children of James O. Vaughan, — Amanda R., who had married the appellantC. H. Harper, Emma O. Vaughan, who had married the appellantE. M. Noble; but the said commissioners, who were appointed by the county court of Amelia, never made any report of their alleged action, which was therefore never confirmed by the said court, and no dower, therefore, actually assigned, but the cause has proceeded as if such were the case, and a commissioners' report in the cause so alleging was confirmed by the court.And on the 13th of September, 1880, a decree was rendered in the cause, by which it was held that all the land of the said James O. Vaughan derived under the will of Milton Vaughan was chargeable with the claim of the children of Edwin A. Vaughan, but that the portion assigned to the children of James O. Vaughan was first liable for the debt, and the portion of the land alloted to the widow liable only if the other lands should prove insufficient to satisfy the claim in question; and decreed that, unless the said children of James O. Vaughan and their husbands should pay the sum of $1,642.44 to the parties named, the children of Edwin A. Vaughan, within 60 days, the said lands should be sold by a named commissioner, who should sell the said land on terms there designated, and leave was reserved to the petitioners(the children of Edwin A. Vaughan, who had so appeared) to sell the land of the said Sarah E. Flippin to satisfy any deficiency.In 1881 there was a petition by Harper and wife and Noble and wife to rehear this decree as erroneous.Nothing seems to have been done with this petition, but the said special commissioner appointed to sell the land ordered to be sold as stated above reported a sale of the same to Harper and wife, and Noble and wife, and that they had not complied with the terms of sale in any degree; and forthwith, without regarding the petition for rehearing, and without a rule to show cause, a resale was ordered of the said land at the risk and cost of the said purchasers, unless they complied within 30 days.The first...