Spangler v. Vermillion

• Decision Date: 27 March 1917
• Parties: Spangler v. Vermillion, Trustee, et als.
• Court: West Virginia Supreme Court

80 W.Va. 75

Spangler

v.Vermillion, Trustee, et als.

Supreme Court of Appeals of West Virginia.

Submitted March 13, 1917.

Decided March 27, .1917.

1. Acknowledgment Wife's Deed RecitaU of Acknowledgments

Presumption and Burden of Proof.

Upon a bill by a husband, after the death of his wife, to set aside a deed executed and acknowledged by her in due form, but not joined in by him, and alleged not to have been lawfully executed by her, while living separate and apart from him, but a copy of which is exhibited with the bill, the certificate of acknowledgment thereto, by section 6, chapter 73, Code 1913, constitutes prima facie evidence of the facts recited therein, and a general replication of plaintiff to defendants' answer denying all the material allegations of such bill, and denying the invalidity of said deed, does not put defendants upon proof of the facts recited in such certificate, (p. 82).

2. Appeal and Error Bond Limitation Statute.

The riling in the clerk's office of the circuit court of a petition for an appeal or writ of error and a bond, pursuant to section 5, chapter 135, of the Code, within the period of one year, will not excuse compliance with the provision of section 3, of said chapter, or stop the running of the statute of limitations. Such petition must be presented to this court or to a judge thereof in vacation within one year from the date of the decree or judgment complained of. (p. 83).

3. Equity Bill of Review Parties Dismissal.

A bill of review which names no parties or makes no allegations affecting the rights of the parties to the decree complained of is defective and should be dismissed on demurrer, (p. 84).

4. Husband and Wife Wife's Estate Conveyance Joinder of

Husband.

A married woman who in good faith is in fact living separate and apart from her husband, regardless of the cause for such separate domicile, may by deed, executed ar.d acknowledged by her in the form prescribed by statute, make a valid disposition of her separate real or personal estate without joining her husband therein, (p. 84).

5. Curtesy Wife's Separate Estate Husband's Interest Statute.

The interest of a husband in the separate estate of his wife is prospective only, and attaches to no real estate except that of which she dies seized of an estate of inheritance. (p. 84).

6. Wills Deed or Will Construction of Instrument.

An instrument in the form of a deed, purporting to convey property to a trustee absolutely, free from the control of the grantor, though upon certain trusts, and providing for the maintenance by him of the grantor during his life, and after his death, for a distribution by the trustee to certain beneficiaries named in the deed, is a valid deed of the property, and does not constitute a testamentary disposition thereof. (p. 85).

7. Gifts Personalty D e Uv ery Statute.

Such a deed conveying real and personal property is not invalid as a gift to the donees for want of delivery of the property. Being by deed such gift of personal property, by section 1, chapter 71, Code 1913, is valid without delivery of the personal estate conveyed. (p. 86).

Appeal from Circuit Court, Mercer County.

Suit, by L. P. Spangler against E, N. Vermillion, trustee, and others. Decree dismissing the bill, and complainant appeals.

Reversed in part. Affirmed in part.

Samuel W. Williams, for appellant.

McNutt, Ellett & McNutt and John R. Pendleton, for appellees.

Miller, Judge:

In his original bill, brought to October rules, 1914, plaintiff alleged his citizenship and residence in the State of Virginia, and his marriage in May, 1900, to Sallie M. Shumate, he a widower residing on his farm in Virginia, she a widow residing in Mercer County, West Virginia; that after the marriage she continued to reside with him on his farm in Virginia until 1905, when without any reasonable cause she voluntarily left his home, returned to her home in West Virginia, and though repeatedly urged to return persistently refused to do so, and continued to reside in West Virginia until her death, which occurred in 1913.

Plaintiff further alleged that after his said marriage he provided his said wife with a comfortable home, treated her kindly and affectionately, and with proper consideration, and that she had no valid grounds or reasons for abandoning him; that after so abandoning him she instituted a suit for divorce in Mercer County, West Virginia, which he prepared to defend, but which was abandoned and never prosecuted to final decree.

He also alleges that he is advised that regardless of her abandonment and again taking up her residence in West Virginia, the true residence and domicile of his said wife, from the date of her marriage to the date of her death, continued to be in Giles County, Virginia, at his residence, and that without obtaining a divorce or proving facts justifying the same she could not and did not effect a change of residence or domicile different from, his residence and domicile in the State of Virginia; that after her death he was duly appointed and qualified as her administrator in Virginia, and that the prior appointment and qualification of H. A. Shumate as her administrator in Mercer County, West Virginia, was ancillary to that of the true and lawful administration by him of her estate in Virginia.

The bill then alleges the recordation in said Mercer County, of what purports to be a deed, dated March 18, 1911, executed by said Sallie M. Shumate, (or Spangler), and signed by her as Sallie M. Shumate, to defendant, R. N. Vermillion, trustee, and wherein it is recited, contrary to the facts as aforesaid alleged, that the grantor was a married woman living separate and apart from her husband, and which deed, a certified copy of which is exhibited with the bill, after so reciting her separate residence, and that the property which the deed purports to convey was her sole and separate property, and that the grantor was desirous of conveying the same to the said trustee for the uses and purposes of the trust therein set forth, contains this granting clause: '' NOW, THEREFORE, THIS DEED, WITNESSETH: That the said Sallie M. Shumate doth hereby grant, convey and assign unto the said R. N. Vermillion, Trustee, the following real and personal property, to-wit:" Then follows the description of two separate lots or tracts of land in the City of Princeton, and a large lot of personal property, consisting of stocks in various coal companies, bank, building association, and notes, and other personal estate and effects.

"UPON THE FOLLOWING TRUST, HOWEVER, That the said R. N. Vermillion, Trustee, whenever in his opinion it is most expedient to do so, shall sell and dispose of the real estate and the stocks of corporations hereby conveyed and all other tangible personal property, either publicly or privately as to him may seem best; and also collect, whenever in his judgment it is best to do so, the money due upon the notes and other evidence of debt hereby conveyed and assigned; and out of the fund so constituted from such sales and collections, the said R. N. Vermillion, Trustee, shall support, maintain and provide for the said Sallie M. Shumate during her natural life, according to her condition and station in life and according to the judgment and uncontrolled discretion of the said trustee (2) said Trustee shall pay off all of the indebtedness of the said grantor; (3) the residue of the said fund which may remain in the hands of the said trustee at the time of the death of the said Sallie M. Shumate shall be paid over by the said trustee to the following named persons to whom the same is hereby given in the following amounts, viz: "

Following this provision are the names of a large number of beneficiaries with the amounts given to each and after these the following provisions:

'' Should there be any residue of said fund left after paying the persons above named the amounts given them respectively, as aforesaid, then such residue, shall be divided among said persons pro-rata according to the amounts given them above, but should the residue of said fund be insufficient to enable said Trustee to pay off in full the amounts hereinbefore specified, then, any such deficiency shall be deducted pro-rata from said sums.

"But before any disbursements are made by said trustee of the fund which is provided for by this deed, the said trustee shall deduct as a compensation to himself for his services to be rendered in connection with the trust created by this deed 5 per cent upon the amount of said fund."

And then the following habendum and covenant: "TO

HAVE AND TO HOLD unto the said R. N. Vermillion,

Trustee, as aforesaid, for the uses and purposes aforesaid, and to his successors forever. And the party of the first part warrants generally the title to the property hereby conveyed.''

The certificate of acknowledgment by the Notary Public is in due and proper form as provided by statute for certifying the acknowledgment of a married woman to a deed conveying her sole and separate property when living separately and apart from her husband.

Plaintiff further alleged that as tenant by the curtesy he is entitled to a life estate in said real estate, and to interest thereon, and to have the possession thereof from the death of his said wife, and to administer the personal estate in the State of Virginia, by the laws of which state, she having died without children, he is entitled to take and hold the same by inheritance as his absolute property.

And after alleging, on information and belief, that said stocks and other personal property were never delivered to said trustee, but during the whole of her life were retained by said decedent, and that though said deed be conceded or held to be a valid instrument, it is furthermore alleged that said pretended gifts were void, because the funds and property, the subjects thereof, were never delivered to the beneficiaries named, and that the reservation therein for the support and maintenance of the...