Thomas v. Armstrong

• Decision Date: 17 September 1889
• Citation: 10 S.E. 6,86 Va. 323
• Parties: Thomas v. Armstrong et al.
• Court: Virginia Supreme Court

10 S.E. 6

(86 Va. 323)

Thomas

v.Armstrong et al.

Supreme Court of Appeals of Virginia.

Sept. 17, 1889.

Statute of Frauds.

An agreement to leave a person a support after the death of the promisor, in consideration of services to be rendered during the balance of her life, being performed by the promisee, and being dependent for full performance upon a contingency that may happen within a year, is not within Code Va. § 2840, cl. 7, prohibiting an action upon an agreement not to be performed within a year, unless the same is in writing.

Code Va. § 2840, provides that no action shall be brought on any agreement not to be performed within a year, unless the same is in writing, etc.

A. C Braxton, for appellant. Wm. Patrick, for appellees.

Lacy, J. This is an appeal from a decree of the circuit court of Augusta county, rendered on the 8th day of December, 1888. The case is as follows: On the 13th of March, 1886, one James E. Beard, claiming to be a creditor of George B. Rusmiselle, filed his bill in the circuit court of Augusta county against the said George B. Rusmiselle and others, to subject the land of the said Rusmiselle to the payment of his said debt, —which amounted to the sum of $487, and which accrued by reason of a decree of the circuit court of Augusta county for the same, rendered against said Rusmiselle, as prneipal debtor, and said Beard and one W. W. Call, as sureties, on the 16th day of November, 1883, and which had been paid, in part, by said Beard, —setting forth that the said Rusmiselle, on the 13th day of June, 1882, had conveyed certain real estate mentioned—and now sought to be subjected as stated—to a trustee for the benefit of his wife, Mary E. Rusmiselle; that she had recently died intestate, and that the trust had now expired, and the said land was now subject to the debts of the surviving husband, the fee-simple to the said land being vested in him by reason of the death of his wife intestate. George B. Rusmiselle answered that the real estate in question was not his; that two of the lots belonged to his wife before her marriage to him, and were included in the deed made by him of the third lot, by mistake, and, as he never had any interest in them, his deed conveyed nothing; but the third lot was purchased with his wife's money, and for that reason was properly hers; and that all interest he could have had in these lots had terminated by the death of his wife. On the 21st day of June, 1886, a decree was rendered for the necessary accounts: (1) Of what the estate consisted, real estate and personal property; (2) the amount of the debts binding the same; (31 to whom the real estate descended; (4) what was the interest of George B. Rusmiselle therein, and what debts of his bound his interest, if any? Thereupon the appellant filed her petition, claiming to be a creditor, and asking for leave to present the same before the commissioner, —which was a claim against Mrs. Rusmiselle, —and claiming that the lands m question were liable for the debts of Mrs. Rusmiselle, and not of...