Parrish v. Parrish

Supreme Court of Virginia

Parrish v. Parrish

14 S.E. 325, 88 Va. 529, 1892 Va. LEXIS 2

CourtSupreme Court of Virginia

DecidedJanuary 6, 1892

StatusPublished

Cited by5 cases

This text of 14 S.E. 325 (Parrish v. Parrish) 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

Parrish v. Parrish, 14 S.E. 325, 88 Va. 529, 1892 Va. LEXIS 2 (Va. 1892).

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Opinion

Lewis, P.,

delivered the opinion of the court.

1. There is no evidence tending to show that the assignment of dower, as respects the mansion-house, is not fair and proper, and in the absence of such evidence we must presume the action of the commissioners in that regard was rightly confirmed by the county court. The general rule at common law is that the assignment of dower must he by metes and bounds; but to this rule there are exceptions, one of which is that when the thing is entire, as a house, the assignment may be of so many rooms, and not a third part of it, in which case it is usually essential to the beneficial enjoyment of the property that passages, stairways, etc., be assigned to be used by the widow conjointly with others. 1 Rop. Husb. & Wife, 396; Simmons v. Lyles, 27 Gratt. 922.

2. Another exception to the rule is that when from the nature of the husband’s interest in the property there can he no assignment in severalty, an assignment by metes and bounds will of necessity be dispensed with; as where lands are held in common, in which case the dower interest is assigned to be held in common with the other tenants. Co. Litt. 32 b; 4 Kent. Comm. 64. And the same is now true with respect to lands held by the husband as a joint tenant, the jus accrescendi having been abolished in Virginia by statute, except as to estates held jointly by executors or trustees, or where otherwise provided in the instrument creating the estate. Code, §§ 2430, 2431; 1 Washb. Real Prop. 157.

In the present case, although the fact does not distinctly appear from the record, yet the fair inference is that the husband was seised of the. tobacco warehouse at Cartersville, either as a joint tenant or as a tenant in common, and in either case the assignment of dower therein in common, of which the appellant complains, was right. And in regard to the part *532 nership lot, as it is called, there is nothing to shoiv that she is entitled to dower at all, since it is settled law in Virginia, as it is in England, that real estate purchased with partnership funds for partnership purposes is so far considered as personalty as not to be subject to dower or curtesy in favor of the consort of a deceased partner. 2 Min. Insts. (3d ed.), marg. p. 121; Pierce v. Trigg, 10 Leigh, 406.

Here, from the general description of the lot in the report as “ partnership property,” the presumption is that it was purchased with partnership funds, and held for partnership purposes ; and if it ivas, then the commissioners erred in respect to it in the appellant’s favor. Ho exception to the report, however, was taken by the appellees in the court below, nor are they objecting to it in this court.

3. It is also assigned as error that it does not affirmatively appear from the record that C. C. Parrish, on whose motion commissioners were appointed, was an heir or devisee of the decedent; and upon this ground it is contended that the proceeding cannot be maintained, inasmuch as the statute, now carried into section 2275 of the Code, authorizes such a proceeding only at the instance of one or more, of the heirs or devisees of the deceased husband. This objection, however, not having been made in the court below, and being in the nature of a dilatory plea, comes too late. It cannot be raised for the first time in the appellate court.

JüD&MEHT AFFIRMED.

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Lewis, P.,

delivered the opinion of the court.

1. There is no evidence tending to show that the assignment of dower, as respects the mansion-house, is not fair and proper, and in the absence of such evidence we must presume the action of the commissioners in that regard was rightly confirmed by the county court. The general rule at common law is that the assignment of dower must he by metes and bounds; but to this rule there are exceptions, one of which is that when the thing is entire, as a house, the assignment may be of so many rooms, and not a third part of it, in which case it is usually essential to the beneficial enjoyment of the property that passages, stairways, etc., be assigned to be used by the widow conjointly with others. 1 Rop. Husb. & Wife, 396; Simmons v. Lyles, 27 Gratt. 922.

2. Another exception to the rule is that when from the nature of the husband’s interest in the property there can he no assignment in severalty, an assignment by metes and bounds will of necessity be dispensed with; as where lands are held in common, in which case the dower interest is assigned to be held in common with the other tenants. Co. Litt. 32 b; 4 Kent. Comm. 64. And the same is now true with respect to lands held by the husband as a joint tenant, the jus accrescendi having been abolished in Virginia by statute, except as to estates held jointly by executors or trustees, or where otherwise provided in the instrument creating the estate. Code, §§ 2430, 2431; 1 Washb. Real Prop. 157.

In the present case, although the fact does not distinctly appear from the record, yet the fair inference is that the husband was seised of the. tobacco warehouse at Cartersville, either as a joint tenant or as a tenant in common, and in either case the assignment of dower therein in common, of which the appellant complains, was right. And in regard to the part *532 nership lot, as it is called, there is nothing to shoiv that she is entitled to dower at all, since it is settled law in Virginia, as it is in England, that real estate purchased with partnership funds for partnership purposes is so far considered as personalty as not to be subject to dower or curtesy in favor of the consort of a deceased partner. 2 Min. Insts. (3d ed.), marg. p. 121; Pierce v. Trigg, 10 Leigh, 406.

Here, from the general description of the lot in the report as “ partnership property,” the presumption is that it was purchased with partnership funds, and held for partnership purposes ; and if it ivas, then the commissioners erred in respect to it in the appellant’s favor. Ho exception to the report, however, was taken by the appellees in the court below, nor are they objecting to it in this court.

3. It is also assigned as error that it does not affirmatively appear from the record that C. C. Parrish, on whose motion commissioners were appointed, was an heir or devisee of the decedent; and upon this ground it is contended that the proceeding cannot be maintained, inasmuch as the statute, now carried into section 2275 of the Code, authorizes such a proceeding only at the instance of one or more, of the heirs or devisees of the deceased husband. This objection, however, not having been made in the court below, and being in the nature of a dilatory plea, comes too late. It cannot be raised for the first time in the appellate court.

JüD&MEHT AFFIRMED.

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14 S.E. 325, 88 Va. 529, 1892 Va. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parrish-v-parrish-va-1892.

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