Watts v. Watts' Ex'x

• Decision Date: 28 June 1905
• Citation: 51 S.E. 359,104 Va. 269
• Court: Virginia Supreme Court
• Parties: WATTS. v. WATTS' EX'X.

104 Va. 269

51 S.E. 359

WATTS.

v.WATTS' EX'X.

Supreme Court of Appeals of Virginia.

June 28, 1905.

1. Use and Occupation—Persons Liable.

Where, in a suit to recover rents and profits of land occupied by defendant after a conveyance of a portion thereof by plaintiff's father, it appeared that defendant's sons only assisted her in running the farm, their occupation being subservient to hers, they were not liable to plaintiff for use and occupation.

[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Use and Occupation, §§ 17, 18.]

2. Same—De Facto Guardian.

After the death of plaintiff's mother, seised of an undivided interest in a farm, leaving plaintiff, and his brother who died soon after, her sole heirs, plaintiff's father married defendant, and thereafter conveyed the land to her, and she occupied and used the same after such conveyance as her own until the death of plaintiff's father. Held, that plaintiff's father and defendant, from the death of his mother and from the date of the conveyance by the father to defendant, respectively, were plaintiff's de facto guardians, and, having received the rents and profits from plaintiff's share of the land, were liable to account therefor, with compound interest thereon during the period each enjoyed the whole estate.

3. Same—Tenants in Common.

Plaintiff's father and stepmother were not plaintiff's tenants in common only liable to account in accordance with Code 1887, § 3294 [Va. Code 1904, p. 1735], providing that an action of account may be maintained against the personal representative of any guardian, and also by one tenant in common or his personal representative against the other as bailee, for receiving more than comes to his just share or proportion, and against the personal representative of any such joint tenant or tenant in common.

4. Same—Partition.

Where plaintiff was entitled to an undivided interest in a certain farm as heir of his deceased mother, it was not material to the liability of the estate of his father and of his stepmother for rents and profits of plaintiff's interest during the time they occupied the same that such interest was not ascertained nor partitioned.

5. Same—Division.

Where, in partition of a certain farm containing 494 acres, plaintiff was awarded 284 acres with the improvements, plaintiff, in a suit against his de facto guardians for an accounting of rents and profits, was entitled to the annual rental value of the part set off to him, and not to 284/494 of the annual rental value of the whole farm.

6. Gifts—Presumptions.

Where plaintiff's father was indebted to him at the time he placed a certain sum of money in a bank to plaintiff's credit, it will be presumed, in the absence of clear and convincing evidence, that the deposit was intended as a payment on the debt, and not as a gift.

7. Use and Occupation—Credits—Support.

Where plaintiff's father had possession and used an entire farm after the death of his wife, from whom plaintiff inherited an interest therein, the father's estate was not entitled to credit for support and maintenance rendered to plaintiff, as against his father's liability to account for rents and profits derived from plaintiff's interest in the farm.

8. Same.

Where, after the death of plaintiff's mother, from whom plaintiff acquired an interest in a farm, his father conveyed his remaining interest to plaintiff's stepmother, who thereafter had possession of the entire farm and supported the family, the father being insolvent, she was entitled to credit for support and maintenance afforded to plaintiff, as against her liability to account for rents and profits of plaintiff's interest in the farm.

Appeal from Circuit Court, Tazewell County.

Suit by R. B. Watts against John G. Watts' executrix. From a decree in favor of plaintiff, defendant appeals. Reversed.

Henry & Graham, for appellant.

William H. Werth, for appellee.

HARRISON, J. For some time prior to the year 1890, John G. Watts and Hattie B. Watts, his wife, owned and lived upon a very valuable farm, containing, as shown by recent survey, 494 acres, situated about three miles east of Tazewell Courthouse.

In 1890 Mrs. Watts departed this life, leaving surviving her two infant sons, one of whom died soon after his mother, leaving surviving him his brother, R. Bowen Watts, the complainant in this cause. In 1892 John G. Watts was married again to a widow with four sons, all of whom came to live with him upon the farm mentioned.

On the 28th day of March, 1895, John G. Watts conveyed all of his interest in the farm to his second wife, Mrs. F. G. S. Watts, except 101 acres, known as the "Dill's Meadow Tract, " conveyed by him on the same day to A. P. Gillespie, trustee, for the benefit of his creditors. From the death of the first wife to the date of the deed conveying his interest in the farm to the second wife, the entire property was in the exclusive possession and control of John G. Watts, he enjoying and appropriating to himself the entire rents and profits. From the time that the second wife acquired the interest of her husband in the farm, she used and managed the whole tract and received the entire rents and profits.

This suit was instituted by R. Bowen Watts, suing by his next friend and guardian, for a partition of the land, and to recover his share of the rents and profits due him since the death of his mother, to whose interest in the farm he had fallen heir.

By decree of August 31, 1901, the court settled the respective rights of the parties in the land, and appointed commissioners to partition the farm in accordance with the directions of the decree. The commissioners made a report, from which it appears that they laid off by metes and bounds to the complainant 284 acres of land, with the residence and other buildings thereon, as that portion of the farm to which he was entitled as the heir of his mother; that they laid oft by metes and bounds the Dill's Meadowtract, containing 101 acres, to the estate of John G. Watts, who had died before the partition was completed, subject to the deed of trust in favor of A. P. Gillespie for the benefit of creditors; and that they laid off to Mrs. P. G. S. Watts, by metes and bounds, 109 acres, that being the residue of the interest of John G. Watts which had been conveyed to her by him.

To this report no exception was taken by any party, and it was confirmed by decree of December, 1901, and the several parties put into immediate possession of their respective interests; R. Bowen Watts having attained his majority on the 13th day of the preceding March.

The cause having been revived in the name of Mrs. P. G. S. Watts, executrix of John G. Watts, deceased, it was by decree of August, 1902, referred to a commissioner to ascertain and report how much was due to the complainant on account of rents and profits from the estate of his father, and the credits, if any, to which the estate was entitled, and also to ascertain and report how much rent was due complainant, on account of rents and profits, from the defendants, Mrs. P. G. S. Watts and her two sons, D. H. Smith and J. T. Smith, for their alleged use and occupation of the land of complainant, together with any credits to which they were entitled.

The present controversy arises entirely upon the report made in response to this last-mentioned decree, and the action of the lower court with respect thereto. These several contentions will now be considered.

We are of opinion that it was not error to dismiss complainant's bill as to the defendants D. H. and J. T. Smith. As already seen, in 1895 John G. Watts conveyed the residue of his interest in the farm to Mrs. P. G. S. Watts, and after that time, and up to 1900, the evidence shows that she controlled and managed the entire property and received the rents and profits of the whole place. It further appears that her sons, the defendants D. H. and J. T. Smith, by her permission and consent, assisted in running the farm, but this was not a sufficient ground for holding them responsible for the use and occupation of the land of complainant by their mother.

We are further of opinion that from the date of the death of Mrs. Hattie B. Watts to the date of the deed conveying the residue of his interest in the farm to the second wife, during which time he received the entire proceeds, John G. Watts occupied the relation of de facto guardian to his infant son, and, as such, became liable to account for the rents arising from that portion of the land belonging to his son, in accordance with the established rule for the settlement of the accounts of de jure guardians; and from the date that she received a deed to the residue of her husband's interest, and took possession of the whole farm, and received the entire proceeds thereof, Mrs. P. G. S. Watts became the de facto guardian of the complainant with respect to that portion of the rents and profits arising from his land, and became liable to a like accounting. These de facto...