Poff v. Poff

• Citation: 104 S.E. 719
• Parties: POFF et al. v. POFF et al. NOLLEY et al. v. SAME.
• Decision Date: 16 September 1920
• Court: Supreme Court of Virginia

104 S.E. 719

POFF et al.

v.POFF et al.

NOLLEY et al.

v.SAME.

Supreme Court of Appeals of Virginia.

Sept. 16, 1920.

Appeal from Circuit Court, Montgomery County.

Suit by Poff and others against Poff, Mrs. Nolley and others. Prom the decree, both parties appeal. Affirmed.

The appeals before us are in but one suit in equity, and involve the following questions:

(1) Whether the appeals should be dismissed on the ground that no appeal bond was given as the statute requires.

(2) Whether the gift of a certain farm by J. W. Poff, deceased, by his will, to his four younger sons, James C. Poff (the J. C. Poff mentioned in the title of these causes), John H. Poff, Roy A. Poff, and Christie H. Poff (who will hereinafter be referred to as the younger sons), was by way of advancement under the statute on that subject, so that the younger sons must bring such gift into hotchpot in order to entitle them to share in the partition or distribution of that portion of his estate of which the said decedent and testator died intestate; and

(3) What was the effect of the payment by the testator in his lifetime of a part of the lien debt on said real estate which was made by the will a charge on said farm?

The facts shown by the record bearing on the first question mentioned are as follows:

The second above entitled case is not a separate suit. The plaintiffs therein are plaintiffs merely as petitioners to this court They were among the defendants in the first above entitled case, and set up their claims by answer therein, and, the decree presently to be mentioned being against them, they, as well as the plaintiffs in error in the first entitled cause, appealed.

The decree appealed from was entered on July 17, 1918; the same decree being involved in both of the appeals.

The petitions for appeal, accompanied by the record, were presented to one of the judges of this court on April 14, 1919. The appeal and supersedeas was allowed by this court on each petition on June 23, 1919, subject to the provision in the orders allowing the same that the petitioners or some one for them should execute the appeal bond with sufficient security in the penalties fixed by such orders and conditioned as the law directs.

After making the proper deduction for the time during which the petition and record were in the hands of one of the judges of this court, the 25th day of September, 1919, was the last day on which the appeal bonds could have been executed within the period of one year from the entry of the decree appealed from. No appeal bonds were executed within that period.

In August, 1919, however, the said J. C. Poff died., His executor qualified on September 1, 1919, and gave bond as such executor. It is claimed by the petitioners that up on the death of J. C. Poff the appeal in both causes became "an appeal * * * proper to protect the estate of a decedent, " within the exception provided by statute (Code 1919, § 6351), under which no appeal bond Is required to be executed.

The facts shown by the record bearing on the other questions mentioned are as follows:

The will above mentioned was executed on the day of its date, November 2, 1912, was probated on June 10, 1915, three days after the death of the testator, and is as follows:

"I, J. W. Poff, of Montgomery county, Virginia, do hereby make this my last will and, testament in reference to my farm hereinafter described in this will.

"First. I give and devise to my four younger sons, namely: John H. Poff, Roy A. Poff, James C. Poff and Christie H. Poff, the farm on which I now live, which is in Montgomery county, about three miles west of Christiansburg on what is called the dirt road. Said farm contains 309 acres, and was conveyed to me by W. F. Flannagan and wife by deed dated the 31st of October, 1911, and recorded in deed book 60, page 531.

"There is $6,292.00 as of November 1, 1912, yet unpaid on said farm, which is evidenced by four bonds of $1,572.00 each, dated October 31,

1911, and bearing interest from the 12th of January, 1912, said bonds are due and payable as follows: One on the first of November,

1912, and one on the first of November thereafter, the last one due and payable November 1, 1916. This balance of purchase money I hereby make a charge on said land, and my four sons above mentioned are to pay the same.

"Second. There is a marriage contract between me and my wife, Nancy Poff, which contract provides that in the event of my said wife, Nancy Poff, outliving me, then she is to get $150.00 a year from my estate in lieu of all of her dower right. The $150.00 per year I hereby make a charge on said land, and my said sons are to pay the same to my said wife each year as long as she may live. One-half of the said amount is to be paid on January 1st, and one-half on the first of July of each year.

"Third. My said four younger sons above mentioned are now in possession of said farm under a rent contract, which rent contract shall continue so long as it is mutually agreeable between my four said younger sons and myself.

"Fourth. In the event of my making any other disposition of the farm herein willed to my four younger sons, they are to have a lien on said farm for whatever amount they have paid on the said balance due thereon, as set out in the first clause of this will.

"Fifth. I have other property that I do not attempt to dispose of in this will concerning the farm. I may some time in the future make a will as to the residue of my estate, or I may dispose of it in my lifetime, or I may die intestate as to said residue.

"In witness whereof, I hereunto set my hand and affix my seal this 2d of November, 1912.

"J. W. Poff. [Seal.]

"The above signature of the testator, J. W. Poff, was made and the foregoing will wasacknowledged by the said J. W. Poff in the presence of us, two competent witnesses, present at the same time; and we, the said witnesses, do hereunto subscribe said will in the presence of said testator and each other at the request of the said testator, this the 2d day of November, 1912. Chas. I./Wade.

"B. M. Hagan."

There is parol testimony in regard to the gift of the farm to the younger sons, which in substance is as follows: A day or two before the will was executed the father told the younger sons that he was going to give them the farm, to belong to them "after his death, " if they would pay the lien debt aforesaid, which they consented to do, and it was understood between the parties that the father would in some way execute a proper instrument in writing to make a valid transfer of the farm. Accordingly a day or two thereafter the father and one of the younger sons went to Christiansburg to have a lawyer draw up the proper paper for the father to execute. There was no prior understanding as to what the character of the paper was to be. The sou who accompanied the father on this trip thought it was going to be a contract. The will was then drawn by the lawyer and executed by the father and testator, but not in the presence of the son last mentioned. After the will was executed this son paid the lawyer his fee for the draft of it, and, not knowing the character of the paper, asked the lawyer if the younger sons should sign it. The lawyer told him that the matter was all fixed according to the way the father wanted it, from which this son thereafter understood that the paper was a will, although he was not so told by the father or the lawyer or any one else. The father soon after the execution of the will, in 1912, mentioned to this and to the other younger sons that "he had fixed" the matter of the gift of the farm in a way which was to the effect that he made the gift to be theirs after his death, subject to their payment of the lien debt aforesaid binding thereon, which he had made a charge upon it.

The farm was rented to the younger sons by the father from the time he acquired it in 1911 until his death.

The lien debt aforesaid was for the unpaid purchase money for the farm, as stated in the will, and one W. P. Flannagan, the vendor, held the bonds evidencing such debt. The younger sons did not in fact expressly assume the payment of such debt by any indorsement on such bonds or otherwise, and they executed no express obligation to the father to pay such debt.

The said testator was married twice and had a number of other children besides those above mentioned, and at his death left surviving him three other sons, hereinafter designated the older sons, two daughters who are the plaintiffs in the second above entitled case, and four infant grandchildren, the offspring of another, but deceased, daughter. The testator's second wife also survived him, but she was provided for by the marriage contract which is mentioned in the will, about which there was considerable litigation in the court" below, but that is not involved in the appeals before us, and hence will not be further mentioned.

Said testator died intestate as to the following estate: A house and lot in the possession of Mrs. Nolley; 51 per cent, of the mineral interest in a tract of 670 acres of land the value of which is altogether problematical; the $4,000 debt to him of his younger sons, presently to be mentioned; and a small amount of personal assets consisting of debts due his estate.

The holder of the bonds evidencing the aforesaid lien debt charged on the farm aforesaid by the will placed them in bank for collection as they fell due, and the testator paid to the bank two of those bonds and made a partial payment on a third one of such bonds by the fall of 1914. Such payments aggregated, as of the latter date, about $4,100, approximately; but it will be hereinafter referred to, as it is in the record, as being the sum of $4,000. The testator took no assignment from the bank, or from the owner of them, of the two bonds which he thus paid, nor of any portion of the bond which he partially paid as aforesaid. The two bonds thus paid in full were stamped by the bank as paid, and turned over to the...