Isaacs v. Guardian

• Decision Date: 09 September 1915
• Citation: 117 Va. 780,86 S.E. 105
• Parties: ISAACS. v. ISAACS' GUARDIAN.
• Court: Virginia Supreme Court

86 S.E. 105

117 Va. 780

ISAACS.

v.ISAACS' GUARDIAN.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Appeal from Circuit Court, Russell County.

Suit by Minnie L. Isaacs against the guardian of H. B. Isaacs. From a decree for defendant, plaintiff appeals. Reversed and remanded.

See, also, 115 Va. 562, 79 S. E. 1072.

W. W. Bird and H. A. Routh, both of Lebanon, for appellant.

Finney & Wilson, of Lebanon, for appellee.

HARRISON, J. This is a contest between the appellant, who was the wife of G. G. Isaacs, and the appellee, guardian of H. B. Isaacs and others, as to the priority of their respective liens against the estate of G. G. Isaacs, who is now deceased; such estate being insufficient to pay the claims of both.

The lien of the appellant is evidenced by a temporary decree for alimony of $50 per month, rendered in her favor January 11, 1909, by the circuit court of Wise county, which allowance was made permanent by a subsequent decree of the same court dated February 4, 1910. The lien of the appellee is evidenced by a judgment confessed in his favor in the circuit court of Russell county at its February term, 1909, which was after the date of the temporary decree for alimony, and before that which made the allowance permanent

This case was once before in this court. Isaacs v. Isaacs, 115 Va. 562, 79 S. E. 1072. By reference to the opinion then rendered it will be seen that, after deciding other questions, the court said:

"That the lien, to the extent that it is reported in favor of Minnie L. Isaacs, is a valid and subsisting one, we have no doubt; and we are not prepared to say that the chancery court, having acquired jurisdiction over the subject-matter and over the parties in the Wise county suit, and having granted a divorce from bed and board and fixed the permanent alimony of Mrs. Isaacs at $50 a month during her life, does not override and take precedence of the judgment confessed by G. G. Isaacs after the institution of the suit and the entry of the decrees of the 11th of January, 1909, and of February 4, 1910. The question is one of great interest and importance, and should only be decided after full investigation by counsel and the court. We shall therefore content ourselves for the present with reversing the decree appealed from, in so far as it sustains the exceptions taken by S. F. and G. G. Isaacs, and will enter a decree to that effect, and directing the circuit court to refer the case to a commissioner, to ascertain and report what amount is due for alimony and suit money upon a statement of the decree upon the basis heretofore considered by the commissioner in his report, and what amount would be due as alimony and suit money if the court should be of the opinion that the monthly installments of alimony accrued and accruing under the decrees heretofore entered in the divorce suit constitute a primary charge upon all of the real estate of G. G. Isaacs within the jurisdiction of the court"

In pursuance of the foregoing mandate the circuit court of Russell county referred the cause back to its commissioner to report the matters thereby directed. The report of the commissioner was returned in due time, ascertaining the real estate owned by G. G. Isaacs, subject to the liens of his creditors, and further ascertaining that under the decrees for alimony and suit money there was due the appellant, Minnie L. Isaacs, $2,028.25 as of April 1, 1914, which amount he found to be a prior lien to that of the appel-lee, amounting as of the same date to $2,371.79. The circuit court sustained exceptions taken by the appellee to this finding, and held that the appellant had a prior lien only for such sums as had accrued under her decrees up to the date of the judgment confessed in favor of the appellee, and that all installments for alimony which fell due after that date were subsequent...