Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-03-22
THOMAS'S PROPERTY.
A RECEIVER TO BE APPoIETED 10 TAKE
CHARGE OF 1T.
Decision to that Effect Rendered by Judge
Fitzhugh Of the Chancsry
Court Yesterday.

county, died early in February worth about
S2s4,O0 mostly in bonds, notes, and money.
lie left no will, and had never been married.
Cousins are nearest OF kin, but Bette Thomls
Lewis, a natural daughter and a mulatto.
claims all the personal property by gilt, al
legged to have been made by Thomas on bis
death-bed, aud as measure OF CONVEYANCE
II Is represented that he delivered to ber bis
handbook and the keys 20 his iron safe and
TO his safety-boX Ia the Planters National
Bank here.
The first legal step taken was the appoint
ment by the Henrico CouEty Court OF curs-
tors. To these Bette Lewis delivered her
KEYS, upon express notice and condition
that she was the owner OF the property ana
waived no rights. Some weeks later, upon
motion Of the cousins. the ueurleo Court
appointed an administrator. AS soon rs the
claim1nt found this out she, by counsel. no.
titled the curators not TO surrender the pro-
perfv which notice the curators respected,
and she went TO Judge Fitzhugh, OF tue
Chancery Court Of this city, aud asked him
to appoint receiver for The property. This
Judge Fiizhugh refused 10 do. Claimants
counsel then asked for a rehearing, which
was granted, Several new papers were filed
IN the case, additional counsel We're em-
ployed, and the argument lasted for days and
days.
The Opinion.
Yesterday Judge Fitzhugh delivered bis
opinion, saying:
When this motion was originally made
the appointment Of receiver was refused
on the ground that by law the property
which is the subject OF giit morris cauS0
is liable for the debts oi the donor on the
occurrence OF deficiency Of assets neces'a-
~ TO pay his debts after HI. death, and
10 that extent constituted a set-on TO The de-
cedeut's estate which might lawfully and
righliully 90 into the hsDds OF bis personal
representative 10 be by him administered.
| Aud especially so in this case when The cura.
| tors we're in possession OF the property and
the estate by law deyoyed on the admins
traitor when he was duly appointed and
qualified. The reasons FOR tbls conclusion
| are set forth in a written opinion which was
announced from the bench.
REARGUMENT.
This was promptly followed by an applica'
ton by the plaintiffs counsel for reargu-
meut. The application was readily granted,
because the questions involved were 10 me
| at leasD novel and difficult, and because
was informed that the exigeucies OF the
estate required promp, action ny ihe
| Court. and in consequence / had been con-
strained TO act somewhat hurriedly in de-
| Gliding the question.
! CHANGES N THE CAUSE,
In the interval between the time when the
application for 4 reargument was granted
| and the day that the reargument was COM
menced some changes in the cause had been
! made by the filing OF petition by the cura-
tors and the answers OF Lewis and wife and
Page, administrator, to it, and by the ding
| OF additional aiidaYits, so that the present
is I'm the nature Of n new mOtiou IN some
what filtered case rather than strictly re-
argument OF the case as 1t stood when the
opinion OF the Court was announced.
The able and exhaustive arguments OF
| counsel have taken a wide range. But |
shall connne myself strictly 10 the single
question OF the appointment OF receiver.
| tniak the case il not sufficiently developed
at present for the Court to indicate any opln-
ion on the merits.
TIE ONLY QUESTION.
And looking to the issues made by the
! headings as they now stand, aud finding
that the title to the property in question Is
Disputed, the only question which, it seems
to me, | ought now TO decide is whether
pending litigation concerning the title to the
| property in controversy the Court can law
fully and with safety T. the donee OF the
gilt, il she shall succeed in maintaining It's
validity, place the property which IL the sub
iect OF the gift in the hands Of the admins
traitor to be administered by him.
RECEIVER.
Jfth,t pronerty cln be lawfully and safely
placed in the hands OF the administrator
without prejudice to the rights and remedies
OF the donee Of the gift then there is no ne
cessty for a receiver.
ON the other hand, II her rights or renle-
| dies be prendiced Dy doing so, then II Is the
dntv Of the Court to appoint receiver.
Alter a careful consideration OF the argu-
| ments OF counsel and OF the authorities to
which my attention has been called | am Of
opinion thata receiver should be appointed.
VIRGINIA CASES.
have been unable to ind any virginia
| ease deciding the precise question OF whether
| until the donation Is needed 10 satisfy credl-
tors. the donee is entitled to enjoy the pos
session OF the property which IS the subject
OF the gift, and whether 1t IL subject TO the
ordinary course OF administration.
lnCHRNER vs. DALE.
On fhis subject the ease OF Mlchener us.
Dale. % Penn. state Rep. 80, seems to be
more directly IN point than any other | have
seen, and think correctly states the law.
In that case it Is said "a gift Is an exc
| cuted contract. II may be defeated by con-
dittons subsequent, but it must vest present.
ly. or II il nothing, for a mere promise to
give cannot be enforced either In law or IN
Copity. When a chaitcl has been given c0uSd
moytis. possession delivered, and death has
perlormed the condition subsequent on
which It depended, no title Whatever ia that
chattel descends 10 the executor or admins
traitor, and he has no right TO the possession
OF It for the purpose OF administration.
THE DONATION.
II the title OF the donor be so efectually
diyested by gift caHSQ m0rtIS that he can
not effect II by his subsequent will, as was
held in Nicholas vs.. Adams, Wharf, %.
then beyond controversy his peraOnal
representaiiye can take no interest in IL.
The donee, il Is true, must account for
the value OF the chaitel, IL creditors ap.
near, and there be not estate enough be-
side to satisfy them, for in no manner
whatever can man living or dying
Give away his estate in frsud OF creditors.
The law compels him TO be iust before 1t per-
mits him to be generous. But until the do
ration is needed 20 satisfy creditors the do
nee is entitled to enjoy 1t, and it is not sub
iect to the ordinary course Of admlnstra-
ton. Roper on Legacies, p. 3; Tate ys.
Helberf, Yes. Jr., p. 10; Water vs..
Hodge, swan, 95."
YANCEY AGAINST FIELD.
Inferentially the same doctrine NAV be de-
duced from the case Of Ysncey ys. Field, ;.
F., Reporter, March II, 1889, page 72l, ;. G..
in Virgins Law Journal, February, 1889.
page 1853, when carefully considered. Judge
Lewis. speaking OF the criterion OF what
constitutes constructive delivery, says
that the donor parts with all con-
troll aud power OF exercising domin-
ion, while the dOnee obtains the ex-
elusive power OF taking physical posses
sion and custody Of the article, 50 that
ii is In fact placed under his sole DOMINION
citing Pom. Eq., section 1li9. SO that. as
between the administrator and the donee,
the right OF the latter 10 the exclusive physI-
cal possession and custody OF the property.
and the fact that the law places II under the
sole dominion OF the donee, would seem TO
exclude an administration by personal re-
preventative.
therefore think it 10 be my duty to ap'
| ,nfnt roaafVor