Ratlipe Et Ux v. Patten

• Decision Date: 10 December 1892
• Court: West Virginia Supreme Court
• Parties: RATLIPE et ux. v. PATTEN et al.

16 S.E. 464

37 W.Va. 197

RATLIPE et ux.

v.PATTEN et al.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1892.

Dismissal of Appeal by Cestui que Trust.

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.

(Syllabus by the Court.)

Appeal from circuit court, Kanawha county.

Suit by John S. Ratliff and Amanda L. Ratliff, his wife, against Oliver A. Patton, trustee of R. Ellen Patton, R. Ellen Pat-ton, and others, to remove the trustee, appoint John S. Ratliff as trustee, and set aside decrees rendered in a previous suit. A decree was rendered as prayed for. R. Ellen Patton moved to dismiss an appeal from the decree taken by her and Oliver A. Patton, trustee. Appeal dismissed.

James H. Ferguson and Brown, Jackson & Knight, for appellants.

John S. Swann and Okey Johnson, for appellees.

English J. 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. Sanford Ratliff, her husband, against Oliver A. Patton in his own right and as trustee of R. Ellen Patton, R. Ellen Patton, John C. Brown, called 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 $200,-000, 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 Fitzhugh intrust, —that is to say, that he, the said trustee, would suffer and permit the said R. Ellen Tompkins to take, accept, 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 21 years, and the said property should then pass to them discharged of...