Citation Numbers: 105 Va. 668
Judges: Harrison, Keith, Whittle
Filed Date: 6/22/1905
Status: Precedential
Modified Date: 7/23/2022
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
“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
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 else
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
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.