The Daily times. [volume] (Richmond, Va.) 1886-1889, 1889-03-22

original motion. at which time Judge
Fnzhugh tciuced 10 appoint
receivef. Since that time the
claimant. Bette T. Lewis. secured
additional counsel and rearlued the mo-
zion ia somewhat "a new light, and The
cssf Was chen submitted 10 the Court for
The final decision ~ 10 the motion FOR
recei, er. aud Yesterday judge Fiizhugh
rendered the following decision, rcvers
Ing his former opinion, and granting the
appointmeat of a receiver. which ne
fully explains In his opinion.
An The counsel for the claimant were
nresenf eNcept Judge Bufks and Colonel
suy. and Mr. NJ. NJ. Gillian Tor The
administrators.
THE OPINION.
Bette T. L,,ri. DC, ~ Thomas Carafor'.
dc-fa q motion tor The ogpotntRe" q
~ reesiacr.
When this motion was originally made
the appointment OF receiver was re-
fused on the ground that by law the
properly which is the subject OF a gift
,sorffs Ctu.r is liable for The debts OF the
donor on the occurrence Of deficiency
Of assets necessary 10 pay his debts after
his death and 10 that extent constituted
assets of the dccedents estate when
might lawfully and rigbtully 90 into the
hands OF hi- personal representative, TO
be by him administered And especially
50 In this case when The curators were
in possession OF the property and the es
tafe bv law dCvOlved on the adminisira-
tor when he was duly appointed ana
qualified. The reasons Tor This conclu-
sion are set forth IN written opinion
which was announced from tn bench.
This was promptly followed by an ap'
pNcation by the plaintiffs counsel for
recruitment The application was read
ilv granted, because the questions IN
volved were ito me at least) novel and
difficult. and because was informed that
the exigencies OF the estate required
prompt action by the Court, and in con-
sequence ! had been constrained 10 act
somewhat hurriedy il deciding the
question
in the interval between the time when
the application for a reargument was
granted axi the day that the reargumen'
was commenced some changes IN the
cause had been made by the filing OF a
petition by the curatOrs and the answers
of Lewis and wife and Page, admins
traitor. to il, and 10y the filing of sddi-
iional sfildavits--sO that the present Is
IN the nature of new motion in some
what altered case rather than strictly a
rearHumeni of the case ss It stood when
the opinion OF the Court was announced.
The able and exhaustive arguments OF
counsel have taken wide range. But
| shall confne myself strictly TO the
single question of the appointment OF
receiver | think the case is not suifi'
GENTLY developed at present for the
Court 10 indicate any opinion on the
merits And looking 10 the issues made
by the pleadings a. they now stand, and
finding that the title 10 the property in
question is disputed, the only question
which il seems 10 me | ought now TO
decide is, whether pending litigation con-
corning the title TO the property In con
froyersv. the Court can lawfully and
with safety 10 the donee Of the gift, if
she shall succeed in maintaining it's vail
dity. place the property which is the sub
1eci of the gift in the hands Of the adj
ministratOr TO be administered by HIM
II hat property can be lawfully and
safely placed ia the hands Of the ad-
ministrator without prejudice to the
rights aud remedies of the d0nee Of the
gift then there Is no necessity for re-
ceiyer.
On the other hand, If her rights or
remedies be prejudiced by doing so, then
IL is the duty Of the Court 10 appoint Il
receiver
After a careful consideration of the
arguments of counsel and of the author
titles To which NY attention has been
called, am of opinion that a receiver
should be appointed.
have been unable 70 find any Vir
ginia case deciding the precise question
OF whether, until the donation Is needed
10 satisfy creditors, the dOnee is entitled
to enjoy the possession of the property
which il the subject of the gift, and
whether il j. subject to the ordinary
course Of administration.
On this subject the case Of Kitchener
q Dale 20 Penn State, X. p. SO, seems
10 be more directly in polut than any
other have seen and think correctly
states the law In that case il is said ;
~ gifi is an executed contract Il may
be defeated by conditions subsequent,
but il must vest presently, or II is moth
ing. for a mere promise to give cannot be
enforced either in law or in equity. When
a chaitel has been given c0gsl moft,s,
possession delivered and death has per
formed the condition subsequent on
which il depended, no title whatever in
that chattel descends 10 the executor or
administrator. and he has no right 10 the
possession OF il for the purposes OF ad-
minisiration II the title of the donor
be so eiiectually Invested by gift causd
n.orfss that he cannot effect ii BY his
subsequent WILL a. was held in Nicho-
las % Adams "a Wharf. 20, then he
yond controversy his personal repre-
sentative can take no interest in il.
The donee. il is true, must account for
the value OF the chattel il creditors APP
pear and there be not estate enough be-
side 20 satisfy them, for in no manner
whatever can man living or dying
give away his estate in fraud OF Credi-
Tors The law eompels him 10 be just
before il permits him 10 be generous.
But until the onation il needed TO satisfy
creditors the dOnee is ent'tled 10 en-
10Y il. aud il is not subject to the ordi-
nary course of administration Roper
on Legacies, 2. 3; Tate Is. Helbert, ,
Yes. Jr., p. l20; Walter vs.. Hodge, 2
Swan, 9s"
lufeienlially the same doctrine may be
deduced from the case Of Yancey Is.
Field. :. l.. Reporter. March IL, 1889, p.
.2i. ;. G. in Virginn Lalo journal, Feb
ruarv. 1892. p l5S. when carefully con-
sidered Judge Lewis. speaking OF the
criterion OF what constitutes a cOnstruc-
tive delivery, SAYS tina, the donor parts
with all control and power OF exercising
dominion. while the donee obtains the
exclusive power Of taking physical pos
session and custody OF the article, 80 that
it is in fact placed under his sole domin-
ion" citing 3 Pom Eq., section llI9. So
that as between the administrator and
the donee. the right of the latter 10 the
exclusive physical possession and Gus
tody OF the property, and the fact that
the law places il under the sole domin-
ion of the donee, would seem TO exclude
an administration by personal repre-
sentative.
,u,iefore think il 10 Dc my duty TO