Noel's Adm'r v. Noel's Adm'r

• Decision Date: 02 May 1889
• Citation: 9 S.E. 584,86 Va. 109
• Parties: Noel's Adm'r v. Noel's Adm'r et al.
• Court: Virginia Supreme Court

9 S.E. 584

(86 Va. 109)

Noel's Adm'r

v.Noel's Adm'r et al.

Supreme Court of Appeals of Virginia.

May 2, 1889.

Wills—Construction—Decree.

1. Testator, after devising certain land to his wife, directed all the residue to be equally divided among his children. The will referred to a memorandum book of advancements, which testator wished to accompany the will "in order that an equal distribution of my estate may be made." Having survived his wife, he added a codicil, devising to a son certain land, and reciting that the death of his wife and other considerations induced him to modify his will. The codicil referred to the fact that the son had lived with him, and been of great service and comfort to him. It then revoked so much of the will as was inconsistent with it. The land was not valued in the codicil, nor was there any entry concerning it in the memorandum book. Held, that the son took the land, in addition to his share under the original will, without any accountability therefor.

2. A decree construed a will and adjudged that a devisee was entitled to certain land, but to no other property of the testator, unless he would' bring into hotch-pot and account for the land, and in that event that he might share in other property. The value and boundaries of the land had not been ascertained. The residue of the estate had not been sold, nor the debts ascertained, nor any account taken of advancements. Held, that thedecree was interlocutory, and not final, as concerning the devisee.

3. A later decree confirming a survey made under an order in the former decree, and adjusting costs in the suitj did not, together with the former de cree, constitute a final adjudication, so as to bar a petition for rehearing, not filed within a year after the entering of the later decree.

4. The fact that the devisee had filed and withdrawn with leave of court a petition for a rehearing of the decree does not estop his administrator from filing a similar petition.

Petition by James P. Noel's administrator for a rehearing of a decree construing the will of Richard Noel. The rehearing was denied, and the petitioner appeals.

W. B. Pettit, for appellant. Shepherd & King and Thomas S. Martin, for appellees.

Lewis, P. This is an appeal from sundry decrees rendered by the circuit court of Fluvanna county in a suit which was brought to obtain a construction of the will of Richard Noel, deceased, and to have the proper accounts taken, and the estate administered under the supervision of the court. The will is dated September 16, 1853, and, after devising certain property to his wife for her life, the testator directs that all the rest and residue of his estate be equally divided among his children, of whom, at the date of the will, there were six. The will also refers to a certain memorandum book kept by the testator to show the advancements made by him to his children, and "which book, " he says, "I intend to accompany this will, in order that an equal distribution of my estate may be made after my death." The testator survived his wife, and on the 20th of October, 1880, he added a codicil to his will, whereby he devised to his son, James P. Noel, a portion of his mansion-house tract of land in fee-simple, reciting that the death of his wife and other considerations had induced him to desire to make certain modifications of his will, which he thereupon proceeded to specify. And in the third item of the codicil he said: "I hereby revoke and annul so much of my will aforesaid as may in any wise be inconsistent with the provisions of this codicil." The principal question in the court below upon the merits of the case was as to the effect of the devise to the said James P. Noel of the land mentioned in the codicil. By a decree entered on the 13th of September, 1884, the circuit court held that he was "entitled to have and to hold in fee-simple the specitic parcel of land mentioned in the codicil, but that he is not entitled to share, and shall not be allowed to share, in any other estate, real or personal, of which the said Richard Noel died seised or possessed, unless he is Willing to bring, and does bring, into hotch-pot, and account for the value of the said land mentioned in the codicil." In November, 1885, James P. Noel filed a petition for a rehearing of the above-mentioned decree, which petition, at a subsequent term, was, by leave of the court, withdrawn, and at the April term, 1887, a petition to the, like effect was presented by the administra tor of the said James P. Noel, who in the mean time had died. But the court, being of opinion that the decree of the 13th of September, 1884, was a final decree, so far as the said James P. Noel was concerned, and therefore that the petition was not filed in time, entered a decree, and dismissed the petition, whereupon this appeal was taken.

The first question, therefore, to be determined is whether the decree of the September term, 1884, is, as the circuit court held, a final decree; for, if it was, then the application to rehear it was not made within the time prescribed by the statute for a bill of review to be filed, and the decree dismissing the petition is right, and must be affirmed. The characteristics of a final decree, as contradistinguished from an interlocutory decree, have been so often pointed out by this court, and are now so familiar to the profession, that little need be said upon the subject in this opinion. "According to the uniform decisions of this court, a decree which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court, is only to be regarded as final. On the other hand, every decree which leaves anything in the cause to be done by the court is interlocutory as between the parties remaining in court." Ryan v. McLeod, 32 Grat. 376. If anything, no matter what, remains to be done by the court in the cause, and the parties, nor any one of them, are not put out of court, the decree is not final, but interlocutory. No case has been decided by this court, said Judge Baldwin in Cocke v....