Blackwell's Adm'r v. Bragg

78 Va. 529, 1884 Va. LEXIS 28
CourtSupreme Court of Virginia
DecidedApril 17, 1884
StatusPublished
Cited by22 cases

This text of 78 Va. 529 (Blackwell's Adm'r v. Bragg) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackwell's Adm'r v. Bragg, 78 Va. 529, 1884 Va. LEXIS 28 (Va. 1884).

Opinion

Lacy, J.,

delivered the opinion of the court.

This case, so far as the facts are necessary to be stated, is as follows: In may, 1877, William J. Bragg and others instituted their suit in the circuit court of Dinwiddie county, setting up a claim to the estate of Upton E. Hardy, deceased, against the appellants, on account of the transactions of Robert Blackwell, deceased, as guardian of the said Upton E. Hardy, he having qualified as such in 1839, andas administrator of said Upton E. Hardy, he having qualified as such in 1850; alleging that the said Robert Blackwell had never properly accounted for the said estate, either as guardian or administrator, and seeking to hold his sureties in the guardian bond, and also his sureties in the administration bond, responsible.

Robert Blackwell died in 1860, but his administrator, the appellant, answered and denied the allegations of the bill and alleged that the said Robert Blackwell had fully accounted for the said estate, both as guardian and as administrator, and filed his regularly settled accounts in the county court of Lunenburg, where he resided, and the receipts of the ascertained balances of the parties in his life [533]*533time. The plaintiffs then amended their bill and sought to assail certain items in the settled accounts as of the years 1851-52, which were claimed to show that the several amounts therein entered were paid to a person not properly authorized to receive the same.

The record shows that one of the sisters of the said Upton E. Hardy having married, her husband and herself instituted their suit in the county court of Lunenburg against the said Robert Blackwell and the other two sisters of Upton E. Hardy, alleging that the said Upton E. Hardy died possessed of slaves, &c., and praying for a division of the same in the hands of said administrator, Blackwell; and for all equitable relief in the premises,” as it is termed in the bill.

The said county court decreed a division or sale of the slaves, and a sale and distribution of the proceeds were had. ' It ordered the said administrator to settle his transactions as such before one of its commissioners, which was done, and the balance decreed to be paid to the said parties thereto entitled, which several amounts so ascertained were paid in full.

But Bragg and wife and Hatchett and wife seek in their suit to attack the proceedings in that suit and correct the errors therein on the ground that they were in fault when the decree was rendered; and because the county court in said suit did not have the said administration accounts before it properly, but under the pleadings could only divide the slaves, or sell the same for distribution of the proceeds; and that they were not bound by the said decree because their answers by guardian ad litem were not sworn to and not signed.

The plaintiff, Mrs. Bragg, married in 1858, and became of full age the same year. The plaintiff, Mrs. Hatchett, became of full age in 1860, and then married.

The said Bragg filed his bill, as trustee for his wife, but the record shows that he was not so appointed until 1875.

[534]*534• In 1873, when the appellee, Wm, J. Bragg, was adjudged a bankrupt, his wife’s property was settled upon a trustee, John O. Bragg, for her benefit, on the 3d of June of that year.

The first question in this case is, are the said plaintiffs, Bragg and wife, and Hatchett and wife, bound by the decree of the county court in a suit to which they were parties, or have they the right to set aside the same in a collateral proceeding ? The appellees, Mrs. Bragg and Mrs. Penn, were infants at the time the decree was entered in 1854. Mrs. Bragg married before she became of full age, and Mrs. Penn afterwards; the first became of age in 1858, the second in 1860. This suit was instituted in 1877. The circuit court, by the decree of October, 1881, in the cause, held that Mrs. Penn was barred because she became of full age before she married, but that Mrs. Bragg was not barred because she had been under disabilities continuously from the time the cause of action arose, by reason of the alleged erroneous payment, up to the time of the decree of the district court of the United States settling the right upon her as separate estate.

Under § 10, ch. 174 of the Code of Virginia, both had six months after they came to full age to show cause against the decree of 1854. The circuit court did not err in deciding that Mrs. Penn had lost her right to have the said decree enquired into, and to show cause against it.

• Did the fact that Mrs. Bragg voluntarily incurred the second disability of coverture before she was relieved of the first constitute a saving in her case ?

In the case of Harrison v. Gibson and Others, 23 Gratt. 223, this court said : “ It is urged that the female complainants were infants at the death of their mother; to which was superadded the disability of coverture. . . . It is true they were femes covert, and so continued to the institution of this suit. But the bill in this case, though in the [535]*535name of husbands and wives, is the bill of the former only; for it is well settled that every bill by husband and wife, jointly claiming in right of the wife, is the act of the husband, though in right of his wife. She is, however, joined for conformity. ... In this case, the husbands were under no disability, and they could have filed their bill as easily in 1840 or 1841 as in 1854. At that time John Gibson, Jr., was alive, . . . and although the time which has elapsed since the death of Mrs. Waggoner may not of itself constitute a statutory bar to the claim, still the unaccountable neglect of the parties for fourteen years thereafter to prosecute any suit, when considered in connection with the other circumstances, is very persuasive against the equity and justice of that claim, and I think fully justified the court below in dismissing the bill.”

In the case of Caperton v. Gregory, 11 Gratt. 505, this court said: “ The counsel for the defendants here seek to exempt some of them by bringing them within the proviso in favor of femes covert and infants. ... In regard to an infant, it has been decided that the right of action exists continually, from its accrual until the end of the time allowed after the disability is removed. . . . However this may be as to such persons, a feme covert stands on a different ground. She and her husband are jointly seized in her right, but the husband has also certain interests in the property, and capacity to dispose of such interests without the concurrence of the wife and against her consent.” After reciting the powers of the husband in that case, this court said further: “ If the husband may do all this by direct conveyance, ... I perceive no reason why he may not allow his or her right of entry to pass away by operation of law..... I am of opinion that no recovery can be had in this action under the title of Call and wife, or that of Ballard and wife.”

In the case of Parsons v. McCracken, 9th Leigh, 501-2, [536]*536the judges all concurred that one disability could not be mounted upon another. Judge Parker said:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Funny Guy, LLC v. Lecego, LLC
795 S.E.2d 887 (Supreme Court of Virginia, 2017)
Brock v. Voith Siemens Hydro Power Generation
716 S.E.2d 485 (Court of Appeals of Virginia, 2011)
Caperton v. AT Massey Coal Co., Inc.
679 S.E.2d 223 (West Virginia Supreme Court, 2008)
Whitehurst v. Duffy
26 S.E.2d 101 (Supreme Court of Virginia, 1943)
Hartley v. Ault Woodenware Co.
113 S.E. 901 (West Virginia Supreme Court, 1922)
Cline v. Bailey
101 S.E. 171 (West Virginia Supreme Court, 1919)
Elk Garden Co. v. T. W. Thayer Co.
206 F. 212 (W.D. Virginia, 1913)
Miller v. Smith
64 S.E. 956 (Supreme Court of Virginia, 1909)
Chesapeake & Ohio Railway Co. v. Rison
37 S.E. 320 (Supreme Court of Virginia, 1900)
Beale's Adm'r v. Gordon
21 S.E. 667 (Supreme Court of Virginia, 1895)
Diehl v. Marchant
12 S.E. 803 (Supreme Court of Virginia, 1891)
Yates' Adm'r v. Wilson
10 S.E. 976 (Supreme Court of Virginia, 1890)
Fishburne v. Ferguson
7 S.E. 361 (Supreme Court of Virginia, 1888)
McCullough v. Dashiell
6 S.E. 610 (Supreme Court of Virginia, 1888)
Legrand v. Rixey's Adm'r
3 S.E. 864 (Supreme Court of Virginia, 1887)
Washington, O. & W. R. R. v. Cazenove
3 S.E. 433 (Supreme Court of Virginia, 1887)
Bradley v. Zehmer
82 Va. 685 (Supreme Court of Virginia, 1886)
Effinger v. Kenney
79 Va. 551 (Supreme Court of Virginia, 1884)
Caperton v. Gregory
11 Gratt. 505 (Supreme Court of Virginia, 1854)
Evans v. Spurgin
11 Gratt. 615 (Supreme Court of Virginia, 1854)

Cite This Page — Counsel Stack

Bluebook (online)
78 Va. 529, 1884 Va. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackwells-admr-v-bragg-va-1884.