Penn v. Guggenheimer

• Decision Date: 16 October 1882
• Citation: 76 Va. 839
• Parties: ANN S. PENN v. GUGGENHEIMER ET ALS.
• Court: Virginia Supreme Court

76 Va. 839

ANN S. PENN v. GUGGENHEIMER ET ALS.

Supreme Court of Appeals of Virginia.

October 16, 1882

Appeal from the decrees of the circuit court of Botetourt county rendered on the 27th October, 1876, and on the 25th of October, 1879, in the chancery cause therein pending, wherein Max Guggenheimer, Senior, and others were plaintiffs, and William J. Penn, in his own right and as administrator of Stuart B. Penn, deceased, Ann S. Penn, George Skillen Penn L. U. Mayo and Frances L. Mayo, were defendants. The object of this suit was to ascertain the interest of William J. Penn in the estate whereof Stuart B. Penn died seized and possessed, and to subject that interest to satisfy the liens of the plaintiffs' judgments against William J. Penn.

In Botetourt in 1849, died Charles B. Penn, testate, leaving Ann S., his widow, George S., Stuart B., William J. Penn, and Frances L., wife of L. U. Mayo, his children and heirs; also several tracts of land, numerous slaves and other personalty. By his will he gave George S. his " Lipse place," valued $12,000; to William J., his " Cherry Tree Bottom," valued at $14,000; to Frances L., $10,000 in bank stock and a house and lot in Jackson, valued at $1,200. He owned other tracts of less value, and one undivided third part of a tract of 820 acres on James river, valued at $25,000, the other two-thirds belonging to his wife, Ann Skillen Penn, and derived by her from her father, Colonel George Skillen. It was never divided. At his decease and long before, Charles S. Penn and his wife cultivated it as a whole, and occupied it as their joint residence (the mansion house being on the part thereof owned by her), and it was known as " the home place." In view of these facts by the third clause of his will he made provision for his son Stuart in these words: " It is my will and desire that my wife shall retain the home place, and that at her death it shall be the property of my son, Stuart B. Penn, which I hereby give to him, his heirs and assigns forever. "

To his wife testator gave, as aforesaid, the home place for her life; all his slaves, and the residuum of his estate after paying his debts, which were insignificant. Mrs. Penn remained in possession of the home place, and exercised full ownership over it, until her death, about thirty years afterwards. In 1850, she received of the executors the slaves and personal estate appraised at the sum of $18,375, and gave therefor her receipt in writing, duly witnessed and recorded and as follows: " Received of George S., Stuart B., and William J. Penn, executors of the last will and testament of my late husband, Charles B. Penn, all the personal estate of the said Charles B. Penn, agreeable to the provisions of his said last will and testament, which is embraced in the following inventory, viz:" then follows the inventory, containing the items of property and the names of the slaves, with the valuation of each.

In the same year, the home place was put on the landbook of Botetourt county, and assessed for taxes in her name as tenant for life and devisee of Charles B. Penn. Of these slaves she remained possessed, except twelve, until their emancipation in 1865. The twelve she divided among her children, as the testator in his will expressed his confidence she would justly do. She never renounced the will, nor had dower assigned her, nor expressed any dissatisfaction with its provisions, until she filed her answer in 1867 to the bill of the plaintiffs. Then she denied that " she had done or suffered anything which could justly, either in in law or equity, divest her of her two-thirds of the said home place, and that the plaintiffs could, in any manner, subject the same to the satisfaction of their judgments against her co-defendant, William J. Penn."

The other defendants appeared not.

Besides the emancipation of the slaves and the perishing of the personal property, many changes had occurred since she received under the will in 1850. William J. Penn had aliened " Cherry Tree Bottom," become insolvent, and been adjudicated a bankrupt. Stuart B. Penn had died in 1857, intestate and childless, leaving as his heirs at law his mother, his brothers, George and William, and his sister, Mrs. Mayo. During his lifetime, being unmarried, he resided with her on the home place and managed as her agent. William J. Penn qualified as his administrator. He left very little personal estate and many debts, which were afterwards discharged by the administrator with his mother's means.

On the 27th October, 1876, the cause was heard on the pleadings, exhibits, depositions, and reports of masters; and the circuit court entered the following decree, viz:

On consideration whereof (and for reasons stated in a written opinion filed in this cause), the court doth consider that the defendant, Ann S. Penn, under the will of her husband, the late Charles B. Penn, is entitled to retain the whole of " the home place," in the bill and proceedings mentioned, until her death, and that having elected to accept the provisions made for her in the will of her husband, the said Charles B. Penn, she must abide by all the bequests and devises contained in said will, and the court doth also consider that under the said will and the election aforesaid of the said Ann S. Penn, the remainder in the whole of " the home place" aforesaid, consequent upon the life estate of the said Ann S. Penn (as well the portion thereof which belonged to the said Ann S. Penn, as the portion of which the said Charles died seized), passed by devise from the said Charles B. Penn to his son, Stuart B. Penn, and that the said Stuart having died intestate and without children, the remainder consequent on the life estate of the said Ann S. Penn passed by inheritance to the said Ann S. Penn, William J. Penn, George Skillen Penn and Frances L. Mayo, and that therefore the said William J. Penn is entitled to an interest of one-fourth in the whole of the home place, subject to his mother's life estate, which interest is liable to be subjected by his creditors to the satisfaction of their judgment liens. But before passing a decree to enforce such liens, it appears to the court that there should be an account of the amount and priority of the liens, and this cause is recommitted to Master T. J. Godwin, with instructions to inquire what debts, if any, of the late Stuart B. Penn remain a charge on his estate in remainder in " the home place," and also to take an account of the liens in the inheritance therein of the defendant William J. Penn, having respect to their priorities, and state the same in the order thereof and make report thereon, with any other matters deemed pertinent by himself or required by any of the parties, in time for action at the next term.

In obedience to this decree the master reported liens on the real estate of William J. Penn in favor of the plaintiffs and others to the amount of $11,066.77 as of 1st April, 1878, and that William J. Penn, as administrator of Stuart B. Penn, deceased, " had no claim against the estate of his intestate. " To this report the plaintiffs excepted.

The master reported two alternate statements made at the instance of the plaintiffs--one showing an indebtedness of said estate to said administrator in the sum of $14,736; the other in the sum of $11,561.00. To these statements Mrs. Penn's counsel filed exceptions. On 25th October, 1879, the court sustained the last mentioned exceptions, and disallowed the two alternate statements, but confirmed the report in all other respects; and decreed that unless within sixty days thereafter, the defendant William J. Penn should discharge the liens of the plaintiffs and others in the report set forth, then John J. Allen, Esq., special commissioner, should sell the interest of William J. Penn in the real estate of Stuart B. Penn, deceased, the same being one undivided fourth part of the said home place. From these decrees the said Ann S. Penn obtained an appeal to this court. Pending the appeal she died. The appellees, who were the plaintiffs below at the hearing of this cause, insisted, under the rule of this court allowing a counter appeal, upon the reversal of the last of the said decrees so far as it disallowed the last of the said alternate statements of the indebtedness of the estate of Stuart B. Penn, deceased, to the administrator, and overruled their exception to the report stating that said administrator had no claim against the said estate. The remaining facts are fully stated in the opinion of the court.

Edmund Pendleton, for Mrs. Ann S. Penn.

J. H. H. Figgatt and John J. Allen, for Max Guggenheimer and others.

G. W. & L. C. Hansbrough, for George Skillen Penn and Mrs. Frances L. Mayo.

OPINION

STAPLES, J.

The main question in this case turns upon the construction to be given to the will of Charles B. Penn, which was admitted to probate at the September term of the county court of Botetourt, in the year 1849. The testator, at the time of his death, was possessed of a valuable real and personal estate which he devised and bequeathed to his wife, Mrs. Ann Penn, and to his four children. To his two sons, George S. Penn and William Penn, he gave severally a tract of land. To Mrs. Mayo, his married daughter, he gave certain real estate and a sum of ten thousand dollars in bank stock. To his wife, he bequeathed all his slaves, with the full confidence that she would make such disposition of them among his children as should be just and equitable, after retaining such of them as she might desire for her own use during her lifetime. His other personal estate he directed to be sold, and the balance remaining, after the payment of his debts, together with the proceeds of any real estate not specifically devised, he...