Mort v. Jones

51 S.E. 220, 105 Va. 668, 1905 Va. LEXIS 60

• Court: Supreme Court of Virginia
• Decided: June 22, 1905
• Status: Published

Opinions

Keith, P.,

delivered the opinion of the court.

Joseph W. Jones, who was, in his lifetime, seised of certain real estate situated in Bristol, Virginia, and Bristol, Tennessee, died intestate on May 1, 1901. He had been twice married, and left surviving him John W. Jones and two daughters, children of his first wife, and a grand-daughter, the sole surviving heir of another child of his first wife, who died leaving William Grossman as her devisee; his second wife and her six infant children also survived him, and another infant daughter, who married Walter D. Have, who died intestate after the death of the grand-daughter, without leaving issue.

In September, 1903, suit for partition was instituted in the Corporation Court of the city of Bristol, Virginia, by J. W. Mort, guardian. The bill alleges that the adult heirs, children of the first wife, had, during the lifetime of their father, released and conveyed to him their expectancy in any property he then owned, or which he might own at his death.

The adult heirs filed an answer and cross-bill in the Virginia court, wherein they alleged that the conveyances of their expectancy to their father were obtained by fraud, duress, and undue influence, and were inoperative as a matter of law; and prayed that they be declared null and void, and that they might be permitted to bring the consideration for said deeds into hotchpot, and participate in the division of the estate.

Hpon these issues evidence was taken, and the cause came on to be heard in the Corporation Court, and by so much of its decree as we deem necessary to consider upon this appeal the court held “that it would be inequitable to require the adult heirs ... to bring the amount, with its interest, which they had received in consideration of the contracts mentioned in this decree and in the pleadings, into hotchpot for the benefit of the infant heirs, and yet to allow them (the infant heirs) to set up said contracts in the courts of Tennessee in bar of the rights of the adult heirs to participate in the partition of their father’s estate situated in Tennessee. It is therefore adjudged, ordered and decreed that the said contracts . . . which are filed with the papers in this cause, be given up and canceled upon the payment into hotchpot of the amount of consideration mentioned therein, with interest from the death of Joseph W. Jones, deceased, being May 1, 1901.

“It is further adjudged, ordered and decreed that J. W. Mort, guardian, . . . personally or in any official capacity, and Henry Roberts, their guardian ad litem, and Elizabeth Jones (the widow) are hereby perpetually enjoined from setting up, proving or attempting to set up or offer in proof in the Chancery Court of the city of Bristol, Tennessee, or any other court, the said contracts hereinbefore mentioned.”

This court held in Headrick v. McDowell, 102 Va., at p. 124, 45 S. E. 804, 65 L. R. A. 578, that upon the death of a parent intestate the descent is cast by operation of law upon his heirs, and his personalty passes in accordance with the statute of distribution. Where advancements have been made in the lifetime of the parent they must be brought into hotchpot by the one who has received it, and thus perfect equality attained. This rule is unaffected by the fact that some of the heirs, at the time of receiving their advancements, entered into covenants with the parent whereby they relinquished all interest in or claim to any portions of the estate then owned or which may he thereafter acquired by the parent, and as to which he may die intestate.

It appears, therefore, that the deeds given by the adult heirs to their deceased parent, in consideration of the advancements made to them during his lifetime, are in this State inoperative, and that upon the death of Joseph W. Jones the descent was, by operation of law, cast upon all of his heirs, and his personalty passed to thorn in accordance with the statute of distribution.

In the State of Tennessee a contrary rule prevails, and the deeds from the children to the parent are effectual to bar their participation in his estate after his death, whether as heirs or distributees.

It is apparent, therefore, that it would be inequitable to require the adult heirs to surrender, or, what is the same thing, to bring into hotchpot and account for the sums advanced to them, and which constitute the sole consideration of the contracts under investigation, as a condition of their participation in the estate of their parent situated in Virginia, and at the same time to permit the infant heirs to plead those contracts in bar of the participation of the adult heirs in so much of the estate of their common ancestor as passes under the laws of Tennessee. We think, however, that the method by which the Corporation Court undertook to enforce this obvious equity cannot be maintained.

In Minor on Conflict of Laws, sec. 11, p. 28, it is said: “It is generally admitted that transactions relating to lands or immovable property of any kind are to be governed by the law of the place where the property is situated.”

The courts of other States will not, it is said, “attempt to enforce their own laws with respect to land situated elsewhere, not only because of the spirit of comity and their unwillingness to engage in conduct towards other States, which they would not tolerate in other States towards themselves, but also, and perhaps chiefly, because of their utter inability to render any judgment or decree that would be final and effectual to transfer any interest in the land. Instead, therefore, of rendering idle judgments in accordance with their own law, the courts, in dealing with the title to foreign real estate, will seek to determine the rules laid down by the lex situs of the land, and will decide in accordance with that law, for to it the parties must finally appeal in any event. Thus it comes to be a well-settled principle of private international law, fortified by a great mass of authority, that all questions relating to the transfer of title to immovable property, wherever arising, will be governed by the lex situs, the law of the ultimate forum in which all such questions must finally be decided.” Idem, p. 29.

So rigidly is this principle enforced that, contrary to the general rule with respect to the limits upon personal covenants, “the better opinion seems to be that the lex situs of the land should govern, so far as covenants of title running with the land are concerned.” Idem, sec. 185.

We are, therefore, of opinion that the Corporation Court erred in enjoining the infant defendants in this suit, their guardian and guardian ad litem, from setting up the deeds in controversy in the courts of Tennessee, and in attempting to control the course of procedure in those courts. We are of opinion, however, that justice may be, in part at least, attained without undertaking to interfere with the courts of a foreign jurisdiction, and to that end we think that it is proper for the Corporation Court of Bristol to ascertain the estate of which Joseph W. Jones died, seised and possessed, wherever it may be situated, and then proceed to divide and distribute the estate in Virginia among all the heirs and distributees without, requiring the adult heirs to bring into hotchpot the advancements they have received and which constitute the consideration for the deeds in controversy, unless it shall be made to-appear that the advancements so received, added to their aliquot portion of the estate in Virginia, shall exceed the shares of the-infant heirs in the entire estate, in which event they shall be required to account for so much of such advancements to each of them as will produce equality.

fifor the reasons given the decree of the Corporation Court must be reversed, and the cause remanded to be proceeded in in accordance with this opinion.

Inasmuch as this is a suit for partition, we are further of opinion that the costs should be paid ratably out of the estate, of Joseph W. Jones, deceased.