Ratliff v. Patton

• Decision Date: 10 December 1892
• Parties: Ratliff, et ux. v. Patton, et at.
• Court: West Virginia Supreme Court

37 W.Va. 197

Ratliff, et ux.

v.Patton, et at.

Supreme Court of Appeals of West Virginia.

Submitted June 18, 1892.

Decided December 10, 1892.

Appear Dismission.

"Where an appeal appears to have been applied for and obtained from a decree by a trustee for real estate of his cestui que trust, and after said appeal has been perfected said cestui que trust appears in this Court and dismisses the appeal, so far as she is concerned, and the trustee does not appear to have any personal or private interest in the matter in controversy, it should be dismissed as to such trustee also under circumstances such as appear in this case.

J. II. Ferguson and Brown, Jackson $ Knight, for appellants cited 24 W. Va. 708; 10 W. Va. 59; 4 Rand. 451; 3 Munf. 29; Bar. Ch'y Pr. § 34; Sto. Eq. PI. § 76; 24 W. Va. 32; Code (1891) e. 125, s. 44; Id. s. 30.

J. S. Swann, for appellees cited Hill. Tr. 317; Sto. Eq. PL §§ 1268-1275; 2 P. Wms. 678; Sto. Eq. PI. § 1353; 10 Am. & Eng. Ency. L. 692; Eos. Fed. Pr. 288; 8 Pet. 128; Dan. Ch'y PI. 216, 222; Eos. Fed. Pr. § 358; 1 P. Wms. 736; 2 Munf. 129; 5 Call. 499; 93 U. S. Rep. 150-154; 26 W. Va 1; Sto. Eq. Jur. §§ 1287-1289; 1 P. Wms. 704, 705; 6 Otto 404; 111 II. S. Rep. 327-334; 1 II. & M. 405; 20 Gratt. 484 (Syll.); 28 Am. Dec, 854; 39 Am. Dec. 716, 717; 1 II. & M 110; Id. 403; 5 Cow. 719; 7 Paige 221, 222; 106 U. S. Rep. 265; 21 W. Va 691; 6 Paige 513; 25 W. Va. 609; 60 Am. Dec. 399; 1 Gratt, 310; 1 II. & M. 403.

English, Judge:

This was a suit in equity brought in the Circuit Court of Kanawha county, and the bill filed at September rules, 1887, by Amanda L. Ratliff and J. Santord Ratliff, her husband, against Oliver A. Pat ton in his own right and as trustee of R, Ellen Patton, R.Ellen Patton, John C. Brown called next next friend of R. Ellen Patton, William Patton, Alice T. Patton, and John P. Patton, the last three infant children of the said Oliver A. Patton and R, Ellen Patton, defendants.

It appears from the allegations of the bill that the defendant R, Ellen Patton was a daughter of one William Tompkins, a resident of Kanawha county, who died testate leaving real estate valued at two hundred thousand dollars, as well as valuable personal property; that shortly before the marriage of said R, Ellen Patton with the defendant Oliver A. Patton a friendly partition of the real estate of which said William Tompkins died seised and possessed was determined upon, and after consultation it was deemed advisable that the portion that should be allotted to said R. Ellen should be conveyed to a trustee, and in pursuance of that determination it was conveyed to Nicholas Eitzhugh in trust that is to say, that lie, the said trustee, would suffer and permit the said R, Ellen Tompkins to take, ac- cept and receive the rents, issues and profits to and for her own use during her natural life, and in the event of marriage of the said R. Ellen Tompkins that the said trustee should hold and retain said trust during the continuance of said marriage, and, if she should die leaving issue, said trust should continue for the benefit of such child or children until the said child or children should arrive at the age of twenty one years, and the said property should then pass to them discharged of said trust; and that, if said R, Ellen Tompkins should deem it advisable to sell said property, she should apply to some court of record in the county of Kanawha, where a greater part of the property lies, for authority to sell the same or any part thereof, and, if such authority be given, the said trustee was authorized to sell the same in such manner and upon such terms as the court might prescribe, and that he should invest the proceeds of sale in such other property or funds as the court should direct, and should hold the same subject to all the terms and provisions of said trust; that on the 7th day of October, 1867, said Fitzhugh resigned as such trustee, and the defendant Oliver A. Patton was appointed trustee, and substituted to all the rights, powers, and responsibilities conferred upon said trustee by said deed; that in October, 1867, an order was entered in a case styled "R. Ellen Patton, by Her Next Friend, J. C. Brown v. 0. A. Patton, Defendant," on petition in chancery, by which order it was decreed that said Oliver A. Patton, trustee, might sell and dispose of any portion or the whole of said real estate, at his discretion and with the consent of the said R. Ellen Patton in writing thereto, on such terms, conditions and prices as he might decide with like consent of his wife, and that he might collect the...