Thompson's administrator v. Thompson's

6 Va. 514

• Court: Supreme Court of Virginia
• Decided: March 4, 1820
• Status: Published

Opinion

Judge Roane

pronounced the opinion of the Court as follows:—

The Court is of opinion, that the provision contained in the 54th section of the Act concerning Wills, &c., (R. Code of 1819, 1st vol. p. 388,) and which provides that the Emblements, severed between the 1st of March and 31st of December in any year, shall be assets in the hands of the executors, does not apply to this case, if it .applies to the case of lands held for life only; it being a new provision materially affecting the rights of the parties, and introduced into our Code subsequently to the execution of the marriage contract in the proceedings contained:—but the opinion of the Court is, that the principle of the common law in relation to Emblements, and which is in some respects more favourable to the representatives of the tenant for life than the provision of that section, is to govern in this case; it being wholly unimportant whether the husband holds in right of his wife by virtue of a marriage contract, or by the general principles of law. That principle gives to the executors such emblements, and such only, as were seeded in the lifetime of the tenant for life:—but, in relation to such crops as were afterwards put in, the Court is of opinion that, in the case which has happened, the executors should be charged a reasonable rent for the land, to be paid to the wife and the children, according to their several rights accruing on the death of the husband, and for which purpose the said children ought also to have been made parties.

The Court is farther of opinion that, as the provision contained in the 53d section of the said Act, was in force at the date of the contract aforesaid,

(1) it concludes the said wife and children from demanding any hires for the slaves remaining on the land at the time of the death of the testator, but that the same were to continue thereon until the end of the year.

Both decrees are to be therefore reversed with Costs, and the cause remanded to have the requisite parties made, and the cause finally proceeded in, pursuant to the principles of this decree.

Note. See 4 Hen. St. at large, p. 21, 284; edit. 1733, acts of 1711. c. 2, § 17; edit. 1752, c. 3; and 1769, c. 3; acts of 1748. § 30, 25.