Johnson v. Mundy

• Court: Virginia Supreme Court
• Writing for the Court: SIMS
• Citation: Johnson v. Mundy, 97 S. E. 564 (1918)
• Decision Date: 14 November 1918
• Parties: JOHNSON. v. MUNDY et al.

97 S.E. 564

JOHNSON.

v.MUNDY et al.

Supreme Court of Appeals of Virginia.

Nov. 14, 1918.

Appeal from Circuit Court, Nelson County.

Bill by John E. Johnson, in his own right and as administrator of C. I. Johnson, deceased, against Annie C. Mundy and others for the settlement, distribution, and division of the estate of said deceased. There was a decree or order overruling exceptions taken by plaintiff to insufficiency of answer, filed by named defendant and her husband, and plaintiff petitioned for an appeal, which was granted. Order complained of affirmed.

The appellant was "plaintiff" and the appellees "defendants" in the court below, and they will be hereinafter referred to accordingly.

The questions presented in the cause are raised by exceptions of the plaintiff to the answer of the defendants for insufficiency.

The bill was filed for the settlement, distribution, and division of the estate, real and personal, of C. I. Johnson, deceased, who died intestate, and was the father of the plaintiff and of the defendant Mrs. Annie C. Mundy; the two being the only children and heirs at law of the decedent. J. A. Mundy is the husband of Mrs. Annie C. Mundy.

The material allegations of the bill are contained in the sixth paragraph thereof, and are the following:

"(6) Complainant further shows unto your honor that his sister, Mrs. Mundy, received from her father in his lifetime certain estate, both real and personal; that J. A. Mundy, the husband of complainant's said sister, received from said C. I. Johnson in his lifetime other estate of very considerable amount. The said C. I. Johnson also gave considerable property to the daughter of said J. A. Mundy, which upon the death of said daughter passed to the said J. A. Mundy.

"Complainant's said father, in his lifetime, gave to complainant certain real and personal property, the value of which complainant supposes to be between $40,000 or $45,000. A full and accurate list of such property will be filed in this cause during its progress, if desired. The said C. I. Johnson gave to complainant's son property of the aggregate value of about $40,000.

"Complainant avers that it was the purpose and intention of his said father that the money and property received by complainant and his sister and her husband, as aforesaid, should stand upon the same footing and be treated exactly alike, and he is advised that such is the law.

"Complainant is advised that, to the extent either of his father's children or the husband of his daughter may have received any property from his said father in his lifetime, the amount or value thereof will be brought into hotchpot, before the party receiving the same will be entitled to receive anything more from the said estate.

"Complainant believes not only the statute in such case made and provided requires, but that equity and justice demand, that in the division of his father's said estate his sister should be charged with the money and property received by her and her husband aforesaid, and complainant charged with the money and property received by him, and he is willing and desirous that it shall be done. Certain it is that it will be impossible to settle up and distribute the said estate between his sister and himself, until it is settled and determined just what relation these items have or bear to the said estate."

The bill waives answer under oath, and the prayer thereof, so far as material, is as follows:

" * * * Complainant prays that * * * the said * * * Annie C. Mundy and J. A. Mundy may be made parties defendant thereto, with leave to answer the same, but not under oath, such oath being hereby waived; that the said Annie C. Mundy and J. A. Mundy may be required to show any and all sums of money or property received by them or either of them from the said C. I. Johnson in his lifetime; that it may be settled and determined to what extent money or property given by the said Johnson to his children and son-in-law are to be charged in the division of his estate. * * * "

The defendants, Mrs. Annie C. Mundy and J. A. Mundy, her husband, filed their joint and separate answer, not under oath, to the plaintiff's bill. The answer responds directly, distinctly, categorically, and unequivocally to every paragraph of the bill, except to the sixth paragraph thereof, above quoted. The response of the answer to such paragraph of the bill is as follows:

"(6) Respondents deny that it was the purpose and intention of the said C. I. Johnson that any money or property that he may have given respondents in his lifetime should be treated as advancements and now brought into hotchpot and charged to respondent Annie C. Mundy, before she will be entitled to receive anything more from the said estate.

"On the contrary, respondents aver that any money or property given them by the said C. I. Johnson in his lifetime were intended by him as gifts and not as advancements. Any gifts made to the said respondent J. A. Mundy by said C. I. Johnson were for a valuable consideration, the said J. A. Mundy having been induced by the said C. I. Johnson to give up his work as a contractor and to come and live near the said C. I. Johnson and assist him.

"Respondent Annie C. Mundy was her father's favorite child, with whom he spent much of his time, and she in innumerable ways ministered to his comfort. He testified to his preference for her on many occasions, and indeed at one time made a will in which he gave herall of the property that he might own at his death.

"In his lifetime he made such provision as he desired to make for the said complainant, John E. Johnson, by making him large gifts of money and property, including a one-half interest in the very profitable business of the firm of C. I. Johnson & Son.

"The said will was made in duplicate, one copy being given respondents to keep, and the other being kept by the said C. I. Johnson, and both copies after having been kept for several years were destroyed by the said C. I. Johnson, at the request of respondents, who desired to avoid the family disagreement likely to follow therefrom if such a will should be in force at the time of the death of the said C. I. Johnson."

The exceptions to the answer are as follows:

"The plaintiff, by counsel, excepts to the joint answer filed in the above-styled causes by Mrs. Annie C. Mundy and J. A. Mundy, her husband, because:

"(1) The said answer is insufficient, in not disclosing what sums of money and property were received by them, or either of them, from the said C. I. Johnson, in his lifetime, as required by the bill.

"(2) The said answer, instead of giving the information asked for in the bill, whilst practically admitting that they did receive money or property, or both, from the said C. I. Johnson, in his lifetime, fails to disclose the character and amount thereof, as required by the bill.

"(3) The said answer seeks to evade the issue, by stating a legal conclusion, upon which the said defendants are not entitled to pass, and as to which they were not called upon to make any response.

'Wherefore, the plaintiff prays that the said defendants may be required to file a further answer, fully setting out all the various items of money or property received by them, or either of them, from the said C. I. Johnson, in his lifetime."

The court below, being of opinion that the answer was legally sufficient, entered the order complained of, which overruled the exceptions, and the plaintiff assigns such action as error.

The defendants submit that the appeal should be dismissed "on the ground that the order appealed from is not a final decree"; that "it is a mere refusal of the court to allow exceptions to an answer for insufficiency"; that "it settles no question involved in the proceedings, but merely a question of pleading"; and they submit that "it is * * * clearly not an appealable order, and the appeal should therefore be dismissed as improvidently awarded. Hobson v. Hob-son, 100 Va. 216 [40 S. E. S99]; Smith v. Pyrites Mining, etc., Co., 101 Va. 301 [43 S. E. 564]."

Caskie & Caskie, of Lynchburg, for appellant.

Harrison & Long, of Lynchburg, and Aubrey E. Strode, of Amherst, for appellees.

SIMS, J. (after stating the facts as above). [1, 2] 1. We are met on the threshold of the case by the question whether the order complained of is appealable.

This question is not free from difficulty. Its determination depends, of course, upon the proper construction and application of section 3454 of the Code. That statute, so far as material, provides as follows:

" * * * Any person who is a party to any case in chancery wherein there is a decree or order * * * adjudicating the principles of a cause, or any person thinking himself aggrieved * * * by a final * * * decree, or order in any civil case, may present a petition, if the case be in chancery, for an appeal from the decree or order. * * * "

We do not consider the order complained of a final decree or order. Did it adjudicate "the principles of the cause"?

In Hobson v. Hobson, 100 Va. 216, 40 S. E. 899, cited by the defendants, the appeal was sought from an order sustaining a demurrer to an amended bill filed at rules and dismissing same upon the ground that it made an entirely new case inconsistent with and repugnant to the case stated in the original bill. This court dismissed the appeal. The court said:

"The order appealed from is not a final decree. The original proceedings are still pending, may be revived against the representatives of the deceased parties, and proceeded with as if the amended bill had never been filed."

It is true this court in that case held that the order did not adjudicate the principles of the cause. But, as stated in the opinion therein, that was "a mere refusal of the court to allow the pleadings to be amended in the manner attempted by the amended bill, and settles none of the questions involved in the original proceedings." The latter cannot be said of the order complained of in the instant cause.

The...