Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-04-01
OUR SUPREME COURT.
omx,oxs HANDED DOWN rEsTER-
DAY IN FIVE CASES.
THE EELIY-SWEENEY JUDGMENT.
Inv and Equity Court Sustained y"
Confirming the Sale of property
Levied Oman Interesting """-
chester Decision.

Court yesterday, tWO dio "a SPNN''' 49,
interest. one having been taken up from
the Law and Equity Court Of this city,
and the other from the Hastings Court
OF Manchester. IL is a rather unusual CO.
Incidence that in all FIVE cases the de-
cisions Of the lower courts are affirmed.
Following are brief digests Of the opinions
handed down:
Hughes. Sheriff. VS.. John NJ. Kelly
Affirmed. Opinion by Keith, i.
John Kelly took execution on "A Judg'
inent against James Sweeney, which was
levied on certain property, the Sheriff
taking an indemnifydng bond with NJ.
Kelly as surety thereon. The Sheriff
then sold. and an action of debt was
brought on this bond in the name OF
the Sheriff for benefit Of c. A. Sweeney
wife of the judgment debtor, who claim
ed the property as her own.
There was a plea OF nil debet, and issue
joined thereon.
Held: Nil dcbet is the proper plea, and
the general issue, In debt on simple con-
tract. II was bad on demurrer In this
case, but no demurrer was entered. and
verdict and judgment having been enter
ed, the defect is cured.
>. Where plaintiff In debt on bond re-
plies TO a plea Of nil debet. instead of
demurring, he Will be put upon proof OF
every allegation in his declaration and
defendant may avail himself of any
ground of defence which. in general. may
b. taken advantage OF under that plea.
Ency. ri. and Prac.. Vol Ill, y. 66l;
Gargan VS.. School District, 4 Col, So;
Garland VS.. Davis. 4 Howard, at page 1i6;
Barton's Law Prac ---. Under this
plea where the plea is proper, fraud
may be proved. and while not correct
plea TO an action on a sealed instrument
yet II issue be Joined on it, the plaintiff
is put upon proof of his every material
aveTment.
The position of the defendants would
seem 10 be tenabe had plaintiff so pre-
sented her case as TO require a decision
upon the point; but this court has again
and again declined 10 consider objections
presented i'm bills Of exceptions. such as
the one in this record. This court would
have 10 read testimony covering many
pages of the record, ascertain TO what
the objections were intended to apply,
and then determine whether the objec-
lions were well taken. This Is lot the
duty of the Court. Where judgment upon
the admissibHity of testimony is asked.
the proper practice has been repeatedly
declared. n. & w. Il. r. CO. vs.. spatt,
81 Va. "a: same vs.. Ampey, 80,
Va, los; same vs.. Carter. q. S. l.. r., S23.
g. The agreement between counsel
that one exception might be made at
the closing Of the testimony by the
plaintiff TO the admissiblity Of all inn
proper Illegal, or irrelevant testimony"
whom properly construed. does not under
take 10 alter the practice which this court
has declared 10 be proper. and If IT had
disclosed such a purpose IL would be
disregarded The rule was adopted after
mature elaboration. is necessary TO the
proper discharge of the duties of the
court. and cannot be abrogated by any
stipulation OF counsel.
CThe rest of the opinion is merely a dis
cussion OF the instructions to the jury,
with the ruling of the Court upon each)
EXERCISE OF A POWER
Wake and Wife VS. Moore and Ais
Affirmed. Opinion by RELY, j.
b. owning Jointly and equally with A,
he land in controversy, conveyed his
moiety. together with certain personally
10 A, upon trust to hold same for the
sole and exclusive use and benefit of
Virginia Is wife of grantoD and her
children, with power 10 A when requested
by said Virginia, in writing. deeming it
for the benefit of said Virginia and her
children TO sell all or any part thereof
and reinvest proceeds I'm other property
selected by her or deemed by him more
profitable to her and her children, re-
tsrving to said Virginia the right to
hfspo@e of all said property by will.
Held: 1. The words, "for the sole and
separate use of herself and children"
and similar words. merely indicate the
motive FOR the gift TO the mother, and
rested no interest In the children. She
took an exclusive estate in fee in the
land, and she and her husband having
duly conveyed the same. compliments
nave no interest in it, and no right to
maintain this suit.
Wallace and Wife VS.. Dold's Exc'rs,
Leigh 27s; Stinson Exc'r VS.. Day &c,
Rob. 435; Penn, &c, VS.. Whitehead, &c,
Il Graft. J0S; Nye VS.. Lavitt, 80 Va. 40
and many other Virginia cases Here
he case is stronger I'm favor of an abso-
iute estate in the personal property and
IN equitable estate In fee in the wife than
n any OF the cases cited above The
exercise of the power of sale vested i'm
the trustee was not only restricted TO
request by the wife. but the power was
reserved to her to dispose Of all the pro-
oerty by willard that even to
stranger. TO the exclusion of her children.
This power was wholly inconsistent with
The idea that it was intended that the
children should take an estate under the
deed; grantor would not have given the
children a Joint estate with their mother
and then have conferred on her the flu
lille power TO give IL away TO others.
. The execution OF the deed by her
VAS substantial compliance with the pro-
vision Of the trust, making a request
from her in writing a prerequisite to sale
by the trustee q Perry on Trusts, See
81; Montifiore VS.. Brown, z II. l.. Cas-, 2il;
Walter VS.. Palmer, 80 Cal. 1860, and the
necessary inference from his conveyance
Of the land is that he deemed 1t for
the benefit of the beneiiciaries. So the
provisions of the trust were in this re-
spect complied with.
3. The deed made no reference TO the
power of sale conferred on Virginia II
and a, and does not purport to have been |
made by him as trustee; the execution |
)f a power Is a matter OF intention, but |
Il is not necessary that the intention be !
expressed in the conveyance or other !
IF the donee of the power |
Intends TO execute. and the mode be, in |
other respects, unexceptionable. that in |
Lention. however manifested. whether di- |
rectly or indirectly. positively or by lust |
Implication. Will make the execution valid |
and operative. Ii is sufficient that the |
intention 10 execute appear by words, |
acts. or deeds, demonstrating IT, Bloege |
VS.. Miles. ! Story 4l6; Funk VS.. Eggles- |
ton, ~ III. 5l5.
T. Where a person, who has q power of |
disposition over property. and also owns |
an interest In IL. executes an instrument |
disposing OF II without expressly referring |
to the power the instrument will be |
deemed as intended as disposition of |
his interest and not as an exercise of the |
power II the transfer OF his interest will \
satisfy the terms of the Instrument: but |
II he has no interest, or though he have |
an interest. II the instrument convey a /
larger Interest than he owns then n ,,.ni |