Hutchings' Adm'r v. Bank

• Decision Date: 06 April 1893
• Citation: 17 S.E. 477
• Parties: HUTCHINGS' ADM'R. v. COMMERCIAL BANK et al.
• Court: Virginia Supreme Court

17 S.E. 477

HUTCHINGS' ADM'R.

v.COMMERCIAL BANK et al.

Supreme Court of Appeals of Virginia.

April 6, 1893.

Curtesy—Property Subject to.

Acts 1877-78, c. 248, § 2, after providing that nothing therein shall be so construed as to deprive a husband of curtesy in the real estate of the wife, or the wife of dower in the real estate of the husband, provides that the sole and separate estate created by any gift, grant, or devise, shall be held according to the terms and powers and be subject to the provisions and limitations thereof, and to the provisions and limitations of the act "so far as they are in conflict therewith." Held, that the husband is entitled to curtesy in the wife's separate estate, notwithstanding that the estate is so held under deeds of settlement as to bar the husband of curtesy; the power being given the wife to devise at pleasure, and she having devised to others than the husband.

Appeal from circuit court of city of Danville.

Bill by the Commercial Bank and others against Sue R. Hutchings' administrator. Decree, from which defendant appeals. Affirmed.

E. E. Bouldin, for appellant.

Peatuss & Harris, for appellees.

LACY, J. This is an appeal from certain decrees of the circuit court of the city of Danville, rendered on the 11th day of June, 1891, and on the 24th day of March, 1892, respectively. The bill was filed in this cause by the appellee the Commercial Bauk against the appellant. Boisseau, administrator of Sue R. Hutchings, and as the next friend of the infant children of the said Sue R. Hutchings and J. R. Hutchings, seeking to subject the separate estate of the said Sue R. Hutchings to the payment of her note as security for her husband, John R. Hutchings, and to subject the curtesy of John R. Hutchings in her real estate to the payment of his debts, and to settle an account between the estate of the said Sue R. Hutchings and John R. Hutchings, and to have an account of the money advanced by John R. Hutchings to his wife and expended in erecting a dwelling house upon her lot. The defendant John R. Hutchings answered that his late wife did not agree to become his security to the plaintiff for more than $2,500, but that she agreed to become his security for $2,500, and no more; but that in his transactions with the bank he had become indebted to the bank in the sum of $2,497. That he executed a deed in trust to his codefendant P. H. Boisseau, mentioned in the bill, by which he conveyed to him and delivered certain choses in action to C. B. Keesee to aid the said trustee in collecting them. That he had no interest in the said dwelling house. That he and said Sue R. Hutchlngs were married in 1880, and on the 10th of June, 1881, Thomas B. Doe, her father, conveyed to a trustee a lot on West Main street for the sole and separate use and benefit of his daughter, free from the debts and liabilities of her husband. That the said respondent, being then in good circumstances, free of debt, built a dwelling house on said lot with his money, and he and his wife lived there for some years. That his wife bought a lot on Broad street, at the sale of her father's lands, and it was paid for out of her interest in her father's estate. That on the 16th of April, 1884, lot No. 9 and the half of lot No. 11, on Broad street, were sold to Sue R. Hutchings, and conveyed to a trustee for the sole and separate use of said Sue R. Hutchings, to sell, convey in trust, or devise, as she might desire. This deed was signed by respondent and his wife. That this is the lot on Broad street referred to in the will of Sue R. Hutchings, on which a dwelling house was built, and which the will gives respondent the privilege of living in. That to build this house on the Broad street lot the house and lot on Main street was conveyed in trust to secure $2,000 borrowed to build the house on Broad street, as is stated in the said deed, and it was so used, and, in addition, respondent paid $500 on the said dwelling; and denies the charge in the plaintiffs' bill that the debts secured in the Boisseau deed were not bona fide, and says that the several amounts stated to be due to Sue R. Hutchings were due to her, and were part of her separate estate. The defendant P. H. Boisseau answered that he knew little, of his own knowledge, concerning the circumstances stated in the answer of his codefendant John R. Hutchings, but he believes them to be true; that he is not advised whether the said John R. Hutchings took any estate in the Broad street dwelling or not, and submits the question to the court. Theinfant defendants made formal answer by their guardian ad litem, and submit their interest to the court. The will of Sue K. Hutchings gave (1) to her children, the infant defendants, all of her estate, real and personal; (2) to her husband "the privilege of staying or living in the dwelling house on Broad street during his life, free of charge, as a home for him;" (3) "but the said house and lot should in no way be liable for his debts, nor the rents and profits thereof."

The circuit court decreed an account (1) of the debts due from the estate of Sue R. Hutchings' estate; (2) an account of her real estate, and what had been done with It; (3) an account of the transactions of her administrator, and of the trustee, Boisseau; (4) an account of what property and interest in property said John R. Hutchings owned, whether as tenant by the curtesy or otherwise; (5) an account of what money John R. Hutchings paid on the building on the lot on Broad street, standing in the name of his wife; (6) an account of the debts due estate of Sue R. Hutchings at the time of her death, Including what her husband owed, if any. The commissioner reported: (1) Sue R. Hutchings' personal property, $3,657.36; (2; her real estate and her personal estate together, $15,590.64; (3) the amount received by her trustee, and expended, $562.67; (4) ou settlement of her administrator's transactions, balance due her administrator, $44.59. As to the amount paid by John R. Hutchings on the Broad street dwelling, —$1,978.94—as stated in said Hutchings' answer, and...