O'Neill v. Cole

• Decision Date: 10 September 1952
• Docket Number: No. 3946,3946
• Citation: 72 S.E.2d 382,194 Va. 50
• Court: Virginia Supreme Court
• Parties: MARGARET C. O'NEILL v. GRACE W. COLE AND EDWARD S. COLE, JR. Record

Page 382

72 S.E.2d 382

194 Va. 50

MARGARET C. O'NEILL v. GRACE W. COLE AND EDWARD S. COLE, JR.

Record No. 3946.

Supreme Court of Appeals of Virginia

September 10, 1952.

Thomas G. Mays, Jr. and Adams, Porter & Radigan, for the appellant.

Robert Whitehead and John B. Boatwright, for the appellees.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

The subject matter of this litigation is a tract of farmland in Buckingham county, Virginia, containing about 400 acres, with improvements thereon.

On November 10, 1950, Margaret C. O'Neill, formerly Margaret S. Cole, filed suit in the circuit court of Buckingham county against Grace W. Cole, her mother, and Edward S. Cole, Jr., her brother. She sought to have a decree, which had been entered by that court at its December term 1937 in the chancery cause of Edward S. Cole v. Fanny C. Young, and others, declared void.

The parties will be designated complainant and defendants in accordance with their positions in the trial court, and the chancery suit of 1937 will be styled Cole v. Young, et als.

In her bill, complainant alleges that the decree entered in the chancery cause in 1937 was obtained by fraud and says that it should be annulled for that reason. An adjudication to that effect would establish her as full owner of the tract of land in controversy.

The bill of complaint impleaded all of the papers in the suit of Cole v. Young, et als., and with those papers so made a part of the bill, it states the following facts:

On February 19, 1937, W. Thomas Cole, then a resident of Buckingham county and owner of the farm in controversy, died testate. He left a brother, Edward S. Cole, father of complainant, as his nearest kinsman. On May 22, 1937, W. Thomas Cole's will, dated March 6, 1926, was admitted to probate, and recorded in the clerk's office of the circuit court of Buckingham county in Will Book 4, page 215. By this will he devised to complainant, his niece, the proceeds to be derived from the sale of this farm after deducting certain charges made against it in the will. Those charges were, however, relinquished or paid from other sources, the effect of which was to leave complainant as devisee of the unencumbered farm.

The bill further alleges that on July 26, 1937, Edward S. Cole instituted the suit of Cole v. Young, et als., the purpose of which was to remove the farm from the operation of the will on the grounds that the testator had, for considerations rendered, contracted and promised to will the farm to Edward S. Cole. Margaret S. Cole, who was then sixteen years of age, was the principal defendant in that suit. The present bill also makes the following specific allegations:

'8. That your Complainant was never shown the will of W. Thomas Cole, and your Complainant was never told the contents of the said will, and your Complainant did not know the contents of said will, nor did she see any of the suit papers in the aforesaid chancery cause until August, 1950.

'9. That on the contrary your Complainant was told by Edward S. Cole that the title to the property was so involved that none of the parties would benefit unless a chancery cause was instituted and the property taken in his name, and further that he, Edward S. Cole, would not be able to send your Complainant to college unless this was done.

'10. That your Complainant, because of her youth and inexperience in such matters and placing her faith and trust in the representations of her father, Edward S. Cole, and under the inducement that she would not be sent to college unless Edward S. Cole took title to the said property, made no further inquiries and raised no objection to the said chancery cause.'

The bill then recites that the depositions given in the suit of Cole v. Young, et als. by complainant's father, mother, and one John Lee were 'fabricated and designed to mislead the court and defraud your complainant, denying to her her rightful share in the estate of W. Thomas Cole. ' The bill further charges that by these fraudulent actions and practices, the complainant was prevented from knowing her true interest in the matter and prevented from protecting her rights, and that the court was defrauded, imposed upon and misled into decreeing Edward S. Cole to be the owner of the farm. Recital is then made that Edward S. Cole died intestate in January, 1949, leaving Grace W. Cole, his widow, Edward S. Cole, Jr., his son, and complainant as his sole heirs and distributees, and that his widow and son now wrongfully claim interests in the farm to the exclusion of complainant's full ownership.

On December 4, 1950, answer was filed by Grace W. Cole to the bill of complaint. She denied the allegations of fraud and asserted that complainant, Margaret C. O'Neill, was fully advised of and consented to what was done in the suit of Cole v. Young, et als. In 1950 Edward S. Cole, Jr., had not attained his majority, and John B. Boatwright, who was also counsel for the adult defendant, was appointed as his guardian ad litem. On December 22, 1950, the guardian ad litem filed a brief answer on behalf of the infant which adopted the answer of the adult defendant theretofore filed.

On March 12, 1951, before any evidence had been heard or action taken by the court, suggestion was made that Edward S. Cole, Jr., had attained his majority, and a decree was entered reciting that fact and relieving the guardian ad litem from further responsibility in the premises. By this decree Edward S. Cole, Jr., was also allowed, over the objection of complainant, to file his demurrer to the bill. Thereafter, complainant 'moved the court to strike the demurrer * * *' on the ground that the infant had theretofore answered by his guardian ad litem and 'the demurrer could not be properly filed after the answer had been filed. ' Before ruling upon the motion to strike, the court heard argument upon the merits of the demurrer. Upon indication by the chancellor of his intention to strike the demurrer, Edward S. Cole, Jr., moved to be allowed to withdraw his answer theretofore filed by his guardian ad litem and refile his demurrer. Over complainant's objection, that motion was granted, and the guardian ad litem's answer was withdrawn and the demurrer refiled. The cause then came on to be heard on the bill with exhibits impleaded and the demurrer.

The chief grounds of the demurrer were: (a) that the bill failed to allege such fraud in the suit of Cole v. Young, et als., as would justify avoidance of the decree entered in 1937, and (b) the bill disclosed laches on the part of complainant that precluded a finding in her favor. After consideration, the demurrer was sustained and the bill dismissed.

The questions presented for decision are: (1) should Edward S. Cole, Jr., upon attaining majority, have been allowed to withdraw his answer filed by his guardian ad litem and interpose a demurrer to the bill, and if so, (2) should the demurrer have been sustained.

When the guardian ad litem filed his answer on December 22, 1950, he was rightfully exercising a power and performing a duty within the limits of his authority. Though his act is binding upon the infant, there is no statute or rule of law which prevents the court from allowing withdrawal of that answer if the suit be not unduly delayed, and if it be consonant with justice to do so.

If the status of a cause be such that the rights of no one will be prejudiced by withdrawal of a guardian ad litem's answer and interposition of a demurrer, such procedure rests within the sound discretion of the chancellor.

Rule of court, 2:23, effective February 1, 1950, provides:

'The time for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed has already expired; * * *'

The procedure adopted by the chancellor does not violate this rule of court.

The withdrawal of the answer was sought before any evidence had been taken or decree of any character entered. It was not for the purpose of delay, for the demurrer, which went to the substance of the cause, was promptly interposed.

Though a demurrer, an answer and other defensive pleadings may be filed at the same time, yet after an answer has been properly filed in a chancery cause, and so long as it remains filed, a litigant, adult or infant, should not thereafter be allowed to demur to the pleading that has been previously answered. Whether or not the answer may be withdrawn and the litigant then allowed to demur rests in the court's sound discretion. Section 8-134, Code 1950, Elmore v. Maryland, etc., Milk Producers' Ass'n, 145 Va. 42, 134 S.E. 472, 1 Barton's Chancery Practice, 3d ed., 331, 332.

The infant, upon coming of age during the pendency of the suit, 'is entitled personally to manage his own defense. He may disregard the answer set up for him by his guardian ad litem, and file an entirely new answer for himself, or have the former answer amended, but after decree or judgment he cannot file a defendant's pleading.' 43 C.J.S., Infants, sec. 116(b), p. 322.

In the chancery cause of Weisiger v. Richmond Ice Mach. Co., 90 Va. 795, 796, 20 S.E. 361, withdrawal of an answer by an adult and the filing of a demurrer was allowed. The court said:

'The company and several of its officers were made defendants, all of whom answered. Afterwards, and before any further proceedings were had in the cause, the defendants asked and obtained leave, over the objection of the plaintiffs, to withdraw their respective answers and to demur, which was done, whereupon the demurrers were sustained and the bill dismissed by the decree complained of. 'The objections that have been urged to this decree are (1) that the court erred in allowing defendants to demur after they had answered, and (2) that, independent of this consideration, the demurrers ought to have been overruled.

'As to the first point, it is enough to say that it was within the discretion of the court to allow ...