Lee v. Lee

• Decision Date: 11 June 1925
• Citation: 128 S.E. 524
• Parties: LEE. v. LEE et al.
• Court: Virginia Supreme Court

128 S.E. 524

LEE.

v.LEE et al.

Supreme Court of Appeals of Virginia.

June 11, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

Appeal from Circuit Court, Fairfax County.

Suit by George Boiling Lee, in his own right and as executor of estate of W. H. F. Lee, deceased, against Mary M. Lee (Mrs. Robert E. Lee, Jr.), for construction of wills and other relief. From a decree rejecting and disallowing defendant's pleas, and requiring defendant to answer, she appeals. Appeal dismissed.

Jas. D. Johnston, of Roanoke, Claudian B. Northrop, of Washington, D. C, and Randolph G. Whittle, of Roanoke, for appellant.

Thomas R. Keith and John S. Barbour, both of Fairfax, for appellees.

WEST, J. Gen. W. H. F. Lee, who was a resident of Fairfax county, Va., died testate in 1891, and his will was duly probated in Fairfax county in November of that year. His two sons, Robert E. Lee, Jr., and George Boiling Lee, were named as executors, and Robert E. Lee, Jr., qualified as executor under the will; his brother, George Boiling Lee, being at that time a minor. Robert E. Lee, Jr., acted as executor until his death on September 7, 1922, but never filed any inventory or settled any account as executor. On October 10, 1922, George Boiling Lee qualified as executor in Fairfax county, but has never filed an account or made any settlement as executor.

Among the provisions in the will of Gen. Lee is the following:

"I bequeath all of my personal and real estate of every nature and kind and description, and wheresoever situated, to my wife, Mary Tabb Lee, during her life, and at her death, to be divided between my two sons, R. E. Lee, Jr., and George Boiling Lee, provided they or their children are alive at the death of their mother. Should neither of my sons or their children be alive at their mother's death, without having devised the estate bequeathed to them, the said estate shall pass and descend to my heirs at law. But should either of my sons die prior to their mother leaving no issue of their body and without having devised the property given them by my will, the same shall descend to the survivor or to the children of the survivor of them."

Mary Tabb Lee, life tenant named in the will, died May 5, 1924. Robert E. Lee, Jr., who was a resident of Fairfax county, left a will which was probated in Fairfax on September 30, 1922, and contains the following clause:

"Second. Whereas my father, William H. F. Lee, died about thirty years ago, leaving his estate to my mother for and during her life, with remainder in fee in said estate to myself and to my brother George Boiling Lee, I hereby devise and bequeath to my wife, Mary M. Lee, my interest in the estate so left by my father, until she remarries, or, should she not remarry, then during her lifetime, with the remainder, after her remarriage or death, as the case may be, to my said brother, George Boiling Lee."

Gen. W. H. F. Lee left considerable personal property, and owned at his death valuable real restate, consisting of his home "Ravensworth, " in Fairfax county, mercantile buildings in the city of Richmond, the "White House" tract of land in New Kent county, Va., and other real estate in the city of St. Louis, Mo.

George Boiling Lee contends that upon the death of his mother he became the owner of the fee simple in the entire estate of his father, while Mrs. Mary M. Lee, the widow of his brother, Robert E. Lee, Jr., deceased, claims that she is entitled during her life, or widowhood, to a one-half interest in the estate of Gen. W. H. F. Lee, with remainder to said George Boiling Lee.

On June 24, 1924, Mary M. Lee (Mrs. Robert E. Lee, Jr.) instituted a chancery suit against George Boiling Lee, in his own right and as executor of Mary Tabb Lee, and as executor of William H. F. Lee, in the law and equity court of the city of Richmond. The subpoena was delivered to the city sergeant on that day to be executed, and was returnable to first July rules 1924. At first July rules, the bill and exhibits were filed, subpœna returned not executed, and cause continued for order of publication. At second August rules the order of publication was completed and cause docketed and set for hearing.

Certified copies of the wills of W. H. F. Lee and Robert E. Lee, Jr., are filed as exhibits with the bill, and the prayer is for a partition of the personal and real property belonging to the estate of W. H. F. Lee, for an accounting, and for general relief; also for an injunction enjoining and restraining the defendant from removing any of the personal property out of the state and from interfering with complainant in any lawful use and enjoyment of the property, real and personal, owned by them as tenants in common.

On June 25, 1924, George Boiling Lee, in his own right and as executor of the estate of W. H. F. Lee, deceased, instituted a chancery suit in the circuit court of Fairfax county against Mary M. Lee. The defendant being a nonresident, the proceeding was by order of publication, which was completed at second August rules, 1924. The bill was filed on June 25, 1924, and an injunction was awarded thereon, enjoining the defendant from occupying or attempting to occupy any of the real estate left by W. H. F. Lee, until the court should decide that Mrs. Mary M. Lee was, under the two wills above referred to, entitled to an undivided interest in the estate of W. H. F. Lee, deceased. A subpœna was issued on June 25, 1924, to first August rules, 1924, at which time it was returned not executed. On August 2, 1924, a further injunction was obtained from the judge of the circuit court of Fairfax county, enjoining Mrs. Mary M. Lee and her attorneys from further prosecuting her suit in the law and equity court of the city of Richmond, and process issued upon the petition for this injunction was served upon her attorney. Both injunctions were continued in operation by decree of the September term, 1924.

The prayer of the bill is that the administration of the estate of W. H. F Lee may be taken charge of and directed by the court; that the wills of W. H. F. Lee and Robert E. Lee, Jr., which are made a part of the bill, so far as pertinent, may be construed; that, in the event it is determined that Mary M. Lee is entitled to a share in the estate of W. H. F. Lee, deceased, partition thereof may be made, and for general relief; and that Mary M. Lee be enjoined from occupying or attempting to occupy any of the real estate belonging to the estate of W. H. F. Lee, deceased.

At second August rules, on August 18, 1924, Mary M. Lee, defendant, entered a special appearance in the Fairfax county case, and filed a plea of prior suit pending between the same parties for the same cause. At first September rules, 1924, Mary M. Lee filed two separate pleas of prior suit pending in the law and equity court of the city of Richmond between the same parties for the same cause.

The pleas were set down for argument, on motion of the plaintiff. The argument was heard, and on September 24, 1924, a decree was entered, rejecting and disallowing all the pleas, and requiring the defendant, Mary M. Lee, a nonresident of the state of Virginia, to file her answer within 20 days from the rising of the court. This is the decree appealed from.

In disposing of the assignments of error it will be necessary to consider only one or two questions:

(1) Is the decree under review an appealable decree?

(2) Did the law and equity court acquire such jurisdiction of the subject-matter or the parties as to preclude the further prosecution of the suit in Fairfax county?

The decree is not appealable unless it be a final decree, or one that adjudicated the principles of the cause. Code, § 6336. A final decree is a decree which terminates the suit or definitely determines the rights of the parties, and leaves nothing further to be done by the court in the cause, though it may still enter such decrees and orders as may be necessary to carry the decree into execution. Brown v. C, C. & O. Ry. Co., 116 Va. 599, 83 S....