Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-04-16

luE klCHMONU
the house and lot proportioned to her con-
tribution. This alleged agreement was
not reduced TO writing. and after the
death OF Henderson Walker. In 1893, ap-
pcllee brought this suit 10 settle the es.
tate OF Henderson Walker. deceased. anu
TO enforce the payment of her cOntribu-
tion toward building the house as de-
mand against the estate. The. commits
sioner 10 whom the case was referred Tor
report OF debts. ascertaincd that ap-
pellee was entitled TO 500 and interest
on that account. and that the claim was
not barred by the statute of limitations.
because Henderson walker had promised
to give appellee the house and lot at his
death and that. therefore, no right Of
action accrued TO appellee until the death
and failure OF Henderson Walker TO ful-
m that promise. An exception TO this
finding was overruled and the report con-
frmed.
OPINION OF THE COURT.
The Court Of Appeals holds that the
relation Of the appellee TO the estate OF
Henderson Walker was that OF general
creditor with n claim for money loaned
or expended by him. resting upon YER
bal contract made in 1883 and the statu-
tory period having elapsed since the rient
Of action accrued without SUIT nelng
brought 10 enforce payment the claim Is
clearly barred and therefore, the lower
court erred I'm overrulng the plea OF the
statute of limitation filed by the appel
lants The opinion goes on TO state that
the commissioner in the case referred 10
no such agreement. and that the only evl-
dence relative to the alleged agreement
was a statement i'm the deposition OF the
contractor who built The house. VINO said
he understood from Walker that az ms
death Mrs Tyler was TO be the sole
owner This was completely negauNed
by the pleadipgs In the case. says Judge
Harrison and he continues:
.e..a.t t..ss n
bar. that a right Of action did not accrue
TO appellee until the death of Walker be-
cause she was laboring under mistake
as TO her relations to the property. or be-
cause there was a failure of consideration
be sustained No contract Is shown 10
have existed between the parties that
appellee had bought an interest in the
property. on the contrary the record
clearly shows that appellee expended her
money i'm aiding Walker 10 build house
ON his lot without taking any evidence
thereof. and with some vague ldea that
she was TO have an interest in the pro-
perty. and she must suffer
the consequences
The decree of the lower court is re-
versed and the cause remanded for FUR
Their proceedings in accordance with the
views expressed i'm this opinion.
Interesting and Important VIII Case
one Of the most important cases de-
cided by the Supreme Court for many
years is that Of FifieldN and others VS..
van W ECk lNttulOf anu blHfiHs rum
the Court of Law and Chancery Of Nor
folk. by which the provisions Of the VIII
Of the late Mrs. Lenore NJ. Van Wyck
were construed.
Mrs. Van Wvck was New York lady,
who resided at the time Of her death, IN
December. 1890. in the city of Norfolk.
She left a very large estate. consisting
chiefly Of property i'm New York and Nor
folk Bv the provisions Of her will. after
making a number of specific requests,
she left the residuum OF her estate
amounting to between 10000 and N95OV0,
to trustees for the benefit OF the New
Jerusalem Church (Swedenborgianl, 10 be
used as they might deem best. The Will
directed the real estate TO be sold, ana
provided that If any of the legatees UNI
der the viii contested any OF its pro
visions they should forfeit their requests.
Mr. w. w. Old. a prominent lawyer OF
Norfolk. was appointed executor, ana
to construe the will, and 10 direct his
administration of the estate TO which all
of the legatees were made parties ...,,-
An Illinois corporation. styled me
General Convention of the New Jerusalem
in the United States Of America" came
i'm by petition. and was made a party TO
the suit, and claimed the resduafy be
quest as the intended legatee. The Court
of Law and Chancery sustained the
claim and ordered the fund 10 be PAID
over to the trustees. ThereupOn several
of the heirs-at-law of Mrs. Van WICK,
who were themselves legatees under the
that the rcsiduary clause OF the VIII was
void because of the uncertain character
of the trust. and because II was contrary
to the Weli-established policy of Virginia
in regard to churches and church pro-
perty. An appeal was allowed by Judge
Keith. president of the Supreme Court,
and at its January term the case came
ON for hearing. IL was deliberately ar
eued. orally and in briefs, by Staples ~
Munford and by Judge l.. l.. Lewis for
appellants and by Tunstall Il Thorn. of
the Norfolk Bar for the church trustees.
THE LOWER COURT REVERSED.
The court. Judge Buchanan delivering
the opinion. held the residuary bequest
for the benefit Of the New Jerusalem
Church (Swedenborgian as they Uhe
trustees) shall deem best" 10 be void, and
accordingly reversed the decree OF the
lower court. Trustees are named, said
Judge Buchanan. but the benehciaries
are uncertain. Is the trust for the benefit
of all the members Of that church where
sOeVer they may be- in this and i'm other
countries. or is it limited 10 those in the
United States. or TO such as live In this
State. where the testatrix had her domi-
Gle. or 10 those in the State of New York.
where the trustees reside? The purposes
of the trust are wholly indefinite. and
the discretion vested in the trustees I'M
limited. except that the fund must be
used for the benefit Of the New Jerusalem
Church. IL is difficult TO see how a court
of equity could enforce such a trust, or
control the discretion Of the trustees. II
is doubtful whether so vague a trust
could be administered under the statute
of 49, Elizabeth
corporation. il was said that the evidence
did not show that the testatrX intended
to make the corporation her residuary
legatee or that she ever knew OF ITS
The court further said that the ques-
ton as TO the correctness of the doc
trine of the case Of Gallego vs.. Attorney
/ s..l. Il 10 "A
cases of that class, was not necessarily
involved either in the Churchman case
$50 Va or i'm the Guthrie case (s5 Val
and therefore. that what was said in the
opinions i'm the last two cases was merely
obiter and not binding upon the court
1--WE are unwilling" said Judge Buchan'
an Ito hold that this long line of de-
cisions. running back over many years
has been overturned by mere Obiter dicta
I'm the Churchman and Guthrie cases
II was also held that the appellants
were not estopDed from prosecuting an
/ appeal because Of the acceptance by them
respectively. Of their legacies and that
the conversion of the real estate into
money. according TO the direction Of the
will must be deemed q conversion i0i
the purposes Of the VIII only. and con-
sequently that as those purposes. so far
! as the residuary bequest was concerned
must fail. the appellants and other heirs
| at-law were to that extent entitled to the
| proceeds Of the real estate.
Another point decided is that the con-
! dition i'm the will that any legatee who
! should dispute the will or any part
thereof. should forfeit his or her legacy
was merely in terrorem and void This
was decided on the ground that as the
will directed the real estate to be con
/ verted into money the case must be
viewed as a bequest of personally. and
there was no gift over on breach Of the
condition. And after referring 10 Maddox
| VS. Maddox IL Graft SOi. and TO Phillips
| VS. FERGUSON. s. Va. 500. it was said
| IT must. therefore be regarded as set
/ lied i'm This state that such conditions