Stewart v. Conrad's Adm'r

• Decision Date: 23 January 1902
• Citation: 40 S.E. 624,100 Va. 128
• Parties: STEWART v. CONRAD'S ADM'R.
• Court: Virginia Supreme Court

40 S.E. 624

100 Va. 128

STEWART

v.CONRAD'S ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 23, 1902.

MARRIED WOMAN — POWER TO CONTRACT-HUSBAND AN ALIEN ENEMY — ESTOPPEL — TRUSTS — VIOLATION — RIGHTS OF REMAINDER-MEN—LACHR!S—LEGACY-SATISFACTION OF DEBT—PLEADING—OBJECTIONS—WAIVER.

1. Under Code, § 3279, providing that, where a declaration or other pleading alleges that any person made any writing no proof of his handwriting shall be required unless the fact is denied by affidavit with the pleading which puts it in issue, a general replication to an answer setting up an agreement of release will not put in issue the genuineness of complainant's signature thereto, where there is no affidavit denying the signature.

2. A general replication to an answer setting up an agreement of release will put in issue the pleader's coverture.

3. An agreement of release, executed by a married woman while under the disability of coverture, is absolutely void at the common law.

4. The mere fact that a married woman resided in Pennsylvania during the Civil War while her husband was in the Confederate army would not so affect their marital status as to give her the rights of a feme sole, especially where she went through the lines of the belligerents to visit her husband, and where all the time they have fully recognized their marital relation.

5. A married woman executing a release cannot be estopped from denying its validity where there is no evidence of fraud, misrepresentation, or concealment, or that the other party did not know that she was married, and unable to execute the same.

6. Remainder-men under the terms of a will creating a trust fund, though having a right to invoke the aid of equity to prevent or remedy a violation of the trust during the life of the life tenant, cannot be barred of their right to do so by laches or acquiescence during that time, being under no legal obligation to invoke such equitable interference.

7. The presumption that a legacy given by a debtor to his creditor, which is equal to or greater than the debt, is in satisfaction thereof, does not arise where the legacy is contingent, as in the case of residuary legatees, as in such case the legacy may not equal the debt.

8. An objection to the competency of a witness making a deposition, not taken in the court below, is waived.

Appeal from circuit court, Middlesex county.

Bill by Sarah A. Edwards and others against W. C. Conrad's administrator. Decree dismissing the bill, and certain complainants appeal. Reversed.

T. G. Jones, A. J. Montague, S. A. Anderson, for appellants.

Jones, Woodward & Phillips, for appellee.

BUCHANAN, J. The bill in this case, which was filed by Mrs. Sarah A. Edwards, her three sons, Enoch, John B., and W. C. Edwards, and her daughter, Mary C. Stewart, and the latter's husband, James M. Stewart, alleges, among other things not material on this appeal That the will of Mathew Conrad, deceased, which was admitted to probate in the orphans' court for the city of Philadelphia, state of Pennsylvania, in April, 1851, contained the following provision.

"I give and bequeath unto William A. Potter and John B. McKeever the sum of ($20,-000) twenty thousand dollars, in trust to put or place and keep the same out at interest on good real security, and to collect and receive the interest arising therefrom and pay the same over from time to time when and as the same shall be got in and received unto my daughter, Sarah Ann Edwards, wife of William C. Edwards, in each and every year during all the term of her natural life, * * * and from and Immediately after the decease of my said daughter, Sarah A. Edwards, then in trust to pay over the said principal sum of $20,000, and the interest accruing thereon, unto all and every the child and children which she, my said daughter, Sarah Ann, may leave, and the lawful issue of any of them who may then be deceased having left such issue; such issue, if one person, solely, or, if several persons, in equal shares, taking and receiving only such part or share thereof as his, her, or their deceased parent or parents would have had and taken had he, she, or they been then living." That subsequently, in November, 1851, by an order of said orphans' court, Potter and McKeever, the trustees named, were removed, and W. C. Conrad was appointed trustee in their place, and gave bond and security. That in July, 1860, the orphans' court, upon the petition of the complainant, Sarah A. Edwards, directed Conrad, trustee, out of the principal of the trust fund to pay $775, reducing that fund to the sum of $19,225 That Conrad, trustee, has paid a portion of the interest due the life tenant, but there is a large balance of interest due her. That he did not, as it was his duty to do under the will, "put and keep" the trust fund at interest on good real estate security, but mingled the same with his own private funds, and used it in private speculation or otherwise, in violation of his trust; and that they are advised, believe, and charge that a large part of the trust fund was used by the trustee in the purchase of real estate of which he died seised and pos sessed in the county of Middlesex, In this state. That the complainants Mary C. Stewart, Enoch Edwards, John B. Edwards, and W. C. Edwards, or their descendants who may be living at the death of their mother, will be entitled to the said trust fund In fee simple; and that they are advised that the estate of said Conrad, trustee, who departed this life testate in the year 1897, is liable for the interest now due the life tenant, and also for the payment of the principal, which the complainants are advised should be collected by the aid of the court, and so disposed of under its direction as that the same shall be held subject to the uses and trusts created by the will of Mathew Conrad.

The personal representative of the trustee filed his answer to the bill, in which he admitted that his testator was appointed trustee, and had accepted the trust, as alleged in the bill, but denied that he had misappropriated the trust fund, or used it as his own, or that his testator's estate was indebted to the complainants on that account, but alleged that his testator in his lifetime paid off and discharged the whole of said trust fund to the parties entitled in the following manner, viz.: That in 1862 his testator, as trustee, made up a statement of his accounts, under oath, showing that as of the 1st day of March of that year there was a balance in his hands of $15,451.8S, which account he presented to the parties in interest; that by a writing dated May 2, 1862, they acknowledged the same to be correct, and agreed upon a transfer of certain securities held by him as such trustee to a substituted trustee, and that the securities, aggregating $19,500, should be received in full settlement of the trust; that on the 6th day of June following, the complainants entered into a contract under seal, by which they released his intestate as trustee from the trust and from all liability on account thereof; that at the date of the release two of the complainants, Enoch and J. B. Edwards, were under 21 years of age, and that the other complainants, who were adults, by the same writing, pledged their interests in the trust fund for the protection of the trustee against any claim that the said minors might thereafter make against him as trustee; that the said last-named agreement (which, together with the other writings referred to in the answer, are filed as exhibits therewith) was signed by all the parties in interest, and turned over to the said trustee in his lifetime, who transferred, assigned, and delivered to the complainant W. C. Edwards, substituted trustee, all the evidences of debt and securities named, which at that time were listed at $19,500; that the said W. C. Edwards afterwards, with the consent of the life tenant paid over the trust fund to her children, the remainder-men; that the claim...