Philips v. Williams , 5 Gratt. 259 ( 1848 )

Allen, J.

delivered the opinion of the Court.

This Court is of opinion, that as by the interlocutory decree of the 26th May 1838, the commissioner was directed to take an account of the balances due the plaintiffs and the defendant Lucy Jennings, on account of the annual provision of 400 pounds of pork and ten barrels of corn, crediting the said plaintiffs and defendant with the annual value of said pork and corn, and charging them with any payments they have received on account of such annual provision ; and as said interlocutory decree was on the 25th January 1842, in consequence of an equal division of opinion in this Court, in pursuance of the act of Assembly, duly affirmed ; such affirmance must be regarded as a decision upon the pleadings and proofs in the cause, that the principles upon which such account had been ordered to be taken in and by said interlocutory decree, had been correctly settled. The Court is further of opinion, that said decree so affirmed under the issue presented by the pleadings in the cause, ascertained and determined that the provision of pork and corn made in the will of William Pickett, sr. did not terminate with the life either of Mrs. Pickett or Mrs. Helm, and that the whole thereof survived to the daughters of Agga Helm during their lives and the life of the survivor.

But the Court is further of opinion, without intending to decide whether as a general rule interest can properly be allowed upon the arrears of an annuity, that under the circumstances of this case, where the annuity was to be paid in pork and corn, delivered at a particular place, the value of which was to be ascertained by testimony, and in the absence of any satisfactory proof of a demand at the place where it was to be paid, or of an agreement to dispense with such demand and convert the same into money, no interest should have been allowed on the arrears thereof; and that said Circuit Court erred in overruling the exception taken to the report of the commissioner for allowing such interest. The Court is further of opinion, that there is no error in the residue of said decree. It is therefore adjudged, ordered and decreed, that the same, so far as it is herein declared to be erroneous, be reversed with costs; and 1 1 that the same be in all other respects affirmed. And that the cause be remanded in order that the same may be proceeded in according to the principles herein declared, and for a final decree.