The times. [volume] (Richmond, Va.) 1890-1903, 1897-04-21
Several Opinions HANDED Down After
Which the Term Ends.
DIGgSTS OF IMPORTANT DECISIONS.
In the Case Of Rossnbaum vs.. Seldom from
the Circuit Court. the Opinion OF the
Lower Courts sustsined-Csse OF
Epesvs. williams ministrator.

Alarmed. Opinion by Judge Riley.
In 1879 appellants brought suit against
the administrator Of the late guardian
Of Epes and his suretics for settlement OF
guardians account An account was or
Gered and several settlements were re-
ported. with various alternate statements
exceptions, etc. In 49, both sides be-
Ing ready for argument the eminent
counsel for compliments. appellants mere
advised compromise which was ten
dered In writing by compiainanis ana ac-
copied A decree WAS entered APPROX
ing and raufying the compromise ana
the case stricken from the docket
a further compromise was made in 1913
with certain sureties on The guardian
bond. by which all obstacles were re-
moved Co the subsection of tne sutIni".
entire estate 10 the payment or complain
ants claims.
In ISIS. eleven years after the com
promise. compiainants Instituted TINS
suit TO set aside and annui the COM
promise and decree and 10 reopen ana
resette the account OF the guardian, al
leging no fraud or deceit but reserVlng
the rlght 10 do so IL the facts developed
in the suit should justify TO- of which re-
served right they never awaited them
selves.
The gravamen was that the compromise
was unequal and unjust 10 them, and was
entered into both by them and the admin
istrator OF the guardian in ignorance Of
all the facts OF the case. ana OF the ex-
tent and real liability Of the guardian.
The evidence wholly fails 10 show that
the compromise was induced by fraud
or Misrepresentation or concealment on
the part OF the administrator or his sure
ties. or was entered into under a mis-
take by the parties as 10 any material
matter. Its object and intent was 10
satisfy and forever settle the entire liza
bllity Of tho guardian and his sureties TO
the cOmplaiuants. and 10 was SO under
stood by all the parties. And the evil
dence tends strongly 10 prove. IL it does
not c0nclusively show. that tho particu-
lsr debts charged 10 have been unknown
az the time Of the compromise and not
embraced in IL. were duly accounted for
10 them. so far as the guardian was liza
ble except the Bland debt which would
have been collected long ago by the orr
ginal counsel for the compliments but
Tor their action.
The guardian was qdead: the great part
OF the court records I'D been destroyed
including guardians settled ex parte ac-
counts such records as were not de-
stroyed were in great confusion; the ad-
ministratOr gave counsel every facility
and free access 10 the bOks and papers
OF the guardian. and all Information pos
sessed by him.
Held. a compromise o. an uncertain
liability. entered into under such circum-
stances and under the deliberate advice
OF counsel Of long experience and OF the
highest reputation and integrity that has
been FULLY executed and acQuicscod IN for
eleven years. should not Doe set aside. exc
ccpt upon the clcarest proof Of fraud,
misrepresentation. conccalment. or mu-
tual mistake.
FINAL DECREE - NUNCUPATIVE
WILL.
Sims SIS. Sims. Affirmed Opinion by
Judge Rely.
A decree which disposes OF the whole
subject gives am the relief contemplated,
and leaves nothing 90 Doe done 10y the
court. IS a final decree. a decree which
leaves anything 90 he done by the Court
in the course IS interlOcutory. as between
the parties remaining i'm the court
Cookies Admir-. vs.. Gilpln. ] Rab.. 90
Ryans Admir- VS.. Mcleod. &c. 80 Graft.
S51. Rawlings EXcr VS. Rawling &c. -
Va. 15 Wright, &c. VS. Strother Is Va,
s51
A bin was filed by the executor for the
construction OF the viii and directions
as 90 administration OF the estate. pray
ing for am account Of outstanding debts
"a settlement of eXecutorial accounts, and
distribution Of the estate among the par
ties entitled. Decree FOR an account Of
the transactions OF the executor and of
the debts OF the estate Such an order
s. Of the very essence Of an interlocutory
decree. Icmpieman Us. Steptoo. 1 Mum,
$685. Barker vs.. Jenkins 81 Va, so,
Welsh VS. So!enbergcr 50 Va, a.
Icstlt0r gives Oue-third OF his estate,
after provision Tor his widow. 10 his ne
pncw. vs.. b. S. ITO be disposed of by
him AS private trust, about which
shall give him specific verbal instruc-
lions. having full confidence in his hon
esty 90 carry ont my Ia structions.
but f my afflicted son. j. Il. ;
should die before my death this
bequest shall be revoked from and
after the death OF my said son. and the
legacy thus cOndu0ndAy 0equcathed
TO Doe equally divided between my son,
W H. s.. and his daughter
Held The bill on its face shows plata
y that tho bequest 10 W. J.. 5. was
R.ft to him upon trust. lie was not 70
take any beneficial interest in H. nor
be permitted 10 enjoy H. IL discloses
verbal directions for administration OF
the trust 90 which the Will is silent. and,
81 given by the testator. constitute no
NHNN 'A At4t MAiAH amy WIZ .+NN '-~'"
pofated in the VIII. and evidence is not
admissible % show what they We're.
Heidentelmcr So. Brauman. 81 Texas.
l,i. same case. q Amer St. r. 2s, !
Redneld on Wills. fs0-5JS.
Except iu the case OF a soldier in act
uel service. or "a mariner al sea, no VIII
is valid under our statute unless IN
writing &c. Code. section 25li. and any
part OF the will. They were not incor-
the absence Of fraud. Sprinkle &c. vs..
H4yWorth &c. o. Graft, 5g-. An eNcep-
lion Is enforced In equity where dcvisee
has procured an absolute devise TO HIM
SELF by promising the testatOr that ne
would hold it for the benefit Of another,
after refusal 10 perform his promise.
and claiming 10 hold in his own rignt
and benefit upon the ground OF the
trust resulting from the confidence re-
posed IN him by the testator. ana be-
cause otherwise the deyisee would pro-
NJ by his own fraud and SO convert tho
statute OF Wills into "a law Tor the con-
summation Of fraud instead Of rs pre-
vontion. Pom. Eq. Jur secs. $50 $40. 1854.
Sprinkle &c. ". Hayworth, supra; Nc
C0rm!ck IS. Grogan. 4 Eng and Irish APP
peals, So Towles NJ Burton. - Amer.
Decis 900. H0ge VS.. Hoge 70 "a. g.
Where a trust isl disclosed by a
will. II the beneficiary can not be dis
covered from the VIII itsclr the trustee
holds for the benefit OF the heirs or dcs-
tributes. Heidenheimer vs. Brauman.
supra: ONne vs. Wells. 100 Mass ~:
Levin on Trusts &c. NJ p Is.
IN the case az bar while the verbal 0l-
rections are not I'm writing and parai
evidence 81 inadmissible 20 prove them