Shackelford v. Newbill

2 Patton & Heath 232

• Court: Court of Appeals of Virginia
• Decided: January 15, 1856
• Status: Published

Opinion

The decree of the court was as follows:

The court, concurring in opinion with the court, below, that the appellant, who was executor of Roger Shackelford, deceased, ¡never paid to Rebecca Newbill in her lifetime, nor to Oscoe A. Newbill, her only child, since her death, a child’s part, being one-sixth, of the balance reported to be due from him, on a settlement of his executorial accounts, made under an order of the *County Court of Essex; and admitted to record on the 20th March, 1837, is therefore of opinion to affirm so much of the decree of the 19th May, 1849, as was rendered in conformity with that opinion ; but, differing with that court in its construction of the fourth clause of the will of Roger. Shackelford, dec’d, is of opinion that James Shackelford, instead of taking a fee, as held by that court, which passed t.o his brothers and sisters in consequence of his having survived the testator and died childless, unmarried and intestate, took only a life estate, with contingent remainder in fee to his children, in case he married and had children, and having died unmarried aand childless, the remainder sunk into, the residuum and passed under the residuary clause, and is therefore of opinion, that the residue of said decree, affirming the.right of the brothers and sisters of the said James Shackelford to distribution of the one-fifth of the personal estate of Roger Shackelford, bequeathed him by the fourth clause of the will of the said Roger, and for the purpose of enforcing and effectuating that right, directing an account to be taken, by a master commissioner of the court, of said one-fifth, its value, and what disposition had been made of the same, is erroneous, and must be reversed, and th.e bills of the plaintiff, original and amended, so far as they seek any relief as to the said one-fifth bequeathed to the said James, must be dismissed.

• It is therefore decreed and ordered, that so much of the said decree of the late Circuit Superior Court of Taw and Chancery for the county of Essex, rendered on the 19th day of May, 1849, as adjudged and ordered the appellant to pay to Oscoe A. Newbill the sum of . $263 29, with interest on $230.04, part thereof, from the 6th February, 1837, till paid, with the provision suspending the force and effect of the decree, until the plaintiff, or some one for him, should execute a refunding bond in the penalty and with the condition required by law, be and' the same is hereby affirmed, and that the residue of the said decree be reversed and annulled, *and that the appellee, out of the estate, &c., do pay unto the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court, proceeding to. pronounce such decree as the said circuit superior court of law and chancery should have pronounced in the premises, instead of that which has been hereinbefore reversed and annulled, doth adjudge, order and decree, that so much of the bills, original and amended, as sets a claim to relief founded upon an assertion of rights and interest in the one-fifth of the personal estate of Roger Shackelford, dec’d, bequeathed to James Shackelford, dec’d, by the fourth clause of the will of the said Roger, be dismissed, and that the appellant, who was executor of Roger Shackelford, dec’d, do, out of his own estate, pay unto the appellee the costs by his testator about his suit in the said circuit superior court of law and chancery expended.. _