Watson v. Conrad
| Decision Date | 29 November 1893 |
| Parties | WATSON et al. v. CONRAD et al. |
| Court | West Virginia Supreme Court |
Estoppel — Partition — Sale of Estate in Remainder—Title of Purchaser.
1. By the eleventh clause of the will of John Hoge, he directed "that the lands, property, money, bills, or notes devised to my executors hereinafter named shall be held by them, or the acting or surviving part of them, upon trust for the necessary support of my daughter Eliza A. Long, to be paid out by them for said purpose, and in such proportion, as they might think necessary from time to time, and, if they might think it advisable, to sell the lands which were therein devised to them, and, on receipt of the purchase money, convey the same to the purchaser or purchasers, holding the money in trust for the purposes aforesaid;" and they were thereby authorized, when they thought proper, to make sale of any property which might come into their hands by virtue of the devises aforesaid, or collect moneys due to them by virtue of the devises aforesaid, and loan out said moneys on interest when they might think it advisable to do so, so as that the moneys be kept safe and ready for the purposes aforesaid; and, if the whole of the funds then placed in the hands of his executors as aforesaid, for the purposes aforesaid, he not all paid out and disposed of for the purposes aforesaid during the natural life of his daughter Eliza A. Long, then the residue was to be paid to her children, naming them. With funds thus acquired, said executors purchased a tract of land in Lewis county on the 28th day of March, 1854, which purchase was adopted by the said Eliza A. Long, and acquiesced in until her death, which occurred in March, 1868. She left three children, who acquiesced in said purchase, and treated the property as land, by conveying their undivided interest therein to third parties. They are thereby estopped from treating said property as personalty, and a party holding one-third of said land by virtue of a conveyance of one of said children is entitled to a partition thereof.
2. One of said children of Eliza A. Long having filed his petition in bankruptcy on the 10th day of October, 1867, and having become a voluntary bankrupt, and having included his interest in said land in his schedule, and his assignee having been directed to proceed to sell the interest of said bankrupt in the lands mentioned in his schedule at the time of filing his petition therein, said Eliza A. Long being then in life, a purchaser at such sale acquired no interest in said land, for the reason that said property, although held by trustees, was the absolute property of said Eliza A. Long.
(Syllabus by the Court.)
Appeal from circuit court, Lewis county; M. Edmiston, Judge.
Action by John M. Long and Charles W. Watson against James F. Conrad and others for partition and other relief. There was decree for plaintiffs, and William G. Harrison, guardian for the heirs of defendant Conrad, appeals. Affirmed.
A. Edmiston and W. W. Brannon, for appellant.
Geo. J. Arnold, for appellees.
ENGLISH, P. The last will and testament of John Hoge, who was a resident of the county of Pulaski, and state of Virginia, at the time of his decease, contained the following clause, to wit: "I direct that the lands, property, money, bills, or notes devised to my executors hereinafter named shall be held by them, or the acting surviving part of them, upon trust for the necessary support of my daughter Eliza A. Long, to be paid out by them for said purpose, and in such proportion, as they may think necessary from time to time, and, if they may think it advisable, sell the lands which are herein devised to them, and, on receipt of the purchase money, convey the same to the purchaser or purchasers, holding the money in trust for the purposes aforesaid; and they are hereby authorized, when they may think proper, to make sale of any property which may come into their hands by virtue of the devises aforesaid, or collect moneys due to them by virtue of the devises aforesaid, and to loan out said moneys on interest when they may think it advisable to do so, so as that the moneys be kept safe and ready for the purposes aforesaid; and if the whole of the funds now placed in the hands of my executors as aforesaid be not all paid out and disposed of, for the purposes aforesaid, during the natural life of my daughter Eliza A. Long, then the residue is to be paid unto her children, to wit, Margaret Jane Long, John Montgomery Long, James Thomas Long, and Ann Elizabeth Long, and, if my daughter Eliza A. Long should hereafter have any more chil-dren, they are to come in equal with the above-named children;" and he appointed Moses H. Hoge, John M. Hoge, and Moses B. Floyd executors of said will. The two first named alone qualified as such executors. On the 28th day of March, 1854, said Moses H. Hoge and John M. Hoge purchased from Jacob Bush a tract of land situated in the county of Lewis, on Canoe run, a branch of the Monongahela river, described as containing 141 1/2 acres and 36 1/2 poles, more or less, the deed for which tract of land was acknowledged and admitted to record in said county on the 3d day of April, 1854. On the face of said deed it was provided that the said Moses H. and John M. Hoge should hold the above-conveyed tract of land for the uses and purposes following, and no other; that is to say, that the said tract of land, and the profits of the same, is to be for the exclusive use and benefit of said Elizabeth A. Long and her children that she then had, or might thereafter have, free from the control of the said Adam Long, and not liable to his debts then existing or thereafter to be contracted; and it was expressly declared to be the true meaning of said deed that the said trustees should not suffer the said tract of land, nor the profits thereof, to be applied to the debts of the said Adam Long, then existing or thereafter to be contracted, and that, from and after the death of the said Eliza A. Long, the children of said Eliza were to have the said land in fee simple. Said Eliza A. Long died on the 16th day of March, 1868, and her husband, Adam Long, died in the year 1856. In October, 1867, John M. Long, one of the sons of said Eliza and Adam Long, filed his petition in bankruptcy, and in his "Schedule B, " filed with said petition, in describing and setting forth his property in reversion, remainder, or expectancy, including property held in trust for him, or subject to any powers or right to dispose of or to charge, set forth and described said tract of land conveyed by Jacob Bush and wife on the 2Sth day of March, 1854, to M. H. Hoge and J. M. Hoge, of Pulaski county, Va., in trust for his mother, Eliza A. Long, during her life, and the remainder to her children, of whom there were four, viz. John M. Long, Margaret J. Long, James T. Long, and Ann E. Evans, the latter of whom had died without issue and intestate. The interest in the land so described was on the 19th day of March, 1870, sold by D. M. Bailey, assignee in bankruptcy of the said J. M. Long, at which sale E. Ralston, assignee of E. M. Tunstill, surviving partner of Bailey & Tunstill, and A. A. Lewis, became the purchasers thereof; and on the 31st day of August, 1874, said D. M. Bailey, assignee as aforesaid, conveyed to said Ralston and Lewis the undivided interest of said J. M. Long in the reversion in 141 1/2 acres of land, which was described therein as the same interest in said land surrendered by said J. M. Long: in his schedule of property as such bankrupt, which interest was sold and conveyed by said E. Ralston and wife and A. A. Lewis to James F. Conrad. On the 20th day of January, 1874, said John M. Long and wife, by their deed, of that date, conveyed to Charles W. Watson all of his right, title, and interest in said tract of land, describing it as containing 107 acres, more or less. James K. Bywater married said Margaret Jane Long, and they, together with said James Thomas Long, conveyed their interest in said land after the death of said Ann Eliza Long, who died without issue, to said James F. Conrad. And in this way said James F. Conrad claims to be the owner of said entire tract of land, while Charles W. Watson claims to be the owner of the undivided interest of said John M. Long under said deed of conveyance from said Long and wife. This state of facts existing, said John M. Long and ...
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