Sims v. Sims

Citation94 Va. 580,27 S.E. 436
CourtSupreme Court of Virginia
Decision Date20 April 1897
PartiesSIMS v. SIMS.

Equity Practice — Interlocutory Decrees — Wills—Construction—Beneficiaries—Parol Evidence—Insane Persons.

1. In a suit for the construction of a will and the administration of the estate under direction of court, a decree referring the cause to a commissioner to report accounts of transactions with the executor and of the debts, though it construed the will and directed the manner of distribution, was interlocutory, since it required further action by the court, and hence a beneficiary under the will was entitled to have the decree reheard.

2. Where a will bequeathed a share of the estate to S., "to be disposed of by him as a private trust, about which I shall give him specific verbal directions, " parol evidence was inadmissible to prove the directions, under Code, § 2514, providing that no will shall be valid unless in writing, and signed by testator.

3. Where a will bequeathed a share of the estate to S., "to be disposed of by him as a private trust, about which I shall give him specific verbal directions, having full confidence in his honesty to carry out my wishes, " and provided that, "if my afflicted son, J., who is now an inmate and patient of the Western Lunatic Asylum, should die before my dtath, * * * this bequest * * * shall be revoked, * * * and the legacy thus conditionally bequeathed to the said S. I give" to certain others, though the verbal directions were inoperative, the will designated the son as beneficiary.

4. Where a will bequeathed a legacy in trust without specification or directions, the beneficiary, who was a lunatic, was entitled to have the corpus of the trust decreed to his committee.

Appeal from circuit court, Green county.

Bill by F. M. McMullen, executor of the last will and testament of James P. Sims, deceased, against Lucy C. Sims and others, for a construction of the will and the administration of the estate under the direction of court. From a decree holding that the provision of the fifth clause of the will, referred to in the opinion, was intended to bequeath the part of the estate referred to therein to W. B. Sims in trust for the benefit of John B. Sims, a lunatic, and directing the money theretofore paid W. B. Sims to be paid to the committee of the lunatic, defendant W. B. Sims appeals. Affirmed.

F. M. & C. F. McMullen, Hay & Jeffries, and T. C. Gordon, for appellant.

Patrick & Gordon, Dan'l Harmon, and Geo. Perkins, for appellee.

RIELY, J. 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 to be regarded as final; and, on the other hand, every decree which leaves anything to be done by the court in the cause is interlocutory as between the parties remaining in the court. Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 20; Ryan's Adm'r v. McLeod, 32 Grat. 367; Rawlings' Ex'r v. Rawlings, 75 Va. 76; and Wright v. Strother, 76 Va. 857.

Applying this test to the decree of November term, 1893, it cannot be pronounced to be a final, but is an interlocutory, decree.

The bill was filed by the executor of the decedent against the legatees for the construction of the will and the administration of the estate under the direction of the court. It prayed that an account be taken of the outstanding debts, that the executorial account be stated and settled, and that the estate be distributed among the parties entitled thereto. The decree referred the cause to one of the commissioners of the court to take, state, and report to the court at its next term an account of the transactions of the executor, and also an account of the debts, if any, against the estate. Such an order is of the very essence of an interlocutory decree. Temple-man v. Steptoe, 1 Munf. 339, Barker v. Jenkins, 84 Va. 899, 6 S. E. 459, and Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91. It is difficult to understand how a decree which ordered such accounts to be taken and reported to the court could be considered final. It wholly lacked the characteristics of a final decree. It plainly contemplated and required further action by the court in the cause in order to give the requisite relief. The confirmation by the court of the report of the commissioner was necessary to establish the debts, if any, reported against the estate, to give finality to the settlement of the transactions of the executor, to determine and settle the shares of the respective legatees, and enable the court to decree the payment thereof. It is true that the decree proceeded to construe the will, and declare in what manner the estate should be distributed; but this was simply to decide the principles of the cause as preliminary to the complete relief to be granted.

The decree being interlocutory, it was entirely competent for the committee of John B. Sims, a lunatic, to file his petition in the cause to have the decree reheard, the will of the decedent construed, and the estate distributed In accordance with...

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25 cases
  • Atwood v. Rhode Island Hospital Trust Co., 1479.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 14 Enero 1921
    ... ... Reynolds, 66 N.J.Law, 242, 49 ... A. 540; Magnus v. Magnus, 80 N.J.Eq. 348, 84 A. 705; ... Smith v. Smith, 54 N.J.Eq. 1, 32 A. 1069; Sims ... v. Sims, 94 Va. 580, 27 S.E. 436, 64 Am.St.Rep. 772; ... Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382, 31 ... Am.St.Rep. 29; In re ... ...
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    ...before or after the execution of the will. (Olliffe v. Wells, 130 Mass. 221;Phelps v. Robbins, 40 Conn. 250, 273;Sims v. Sims, 94 Va. 580, 27 S.E. 436,64 Am.St.Rep. 772;Uloth v. Little, 321 Mass, 351, 73 N.E.2d 459;Restatement Trusts, sec. 55; Atwood v. Rhode Island Hospital Trust Co., 1 Ci......
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    ...35, 36, 97 S.E.2d 668, 669 (1957); Russell's Executors v. Passmore, 127 Va. 475, 501, 103 S.E. 652, 660 (1920), and Sims v. Sims, 94 Va. 580, 584, 27 S.E. 436, 437 (1897). Another principle of law which is involved concerns the transfer of a stock certificate into a person's name without qu......
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