Opinion
01-16-1812
Shobe's Executors v. Carr and Wife. [*]
Williams, for the appellants. Munford, for the appellees.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Argued November 15, 1811
The appellees, Conrad Carr, and Magdaline, his wife, in February, 1794, filed their bill in Chancery, in the County Court of Hardy, against Rudolph Shobe and Leonard Shobe, executors, and the said Rudolph and Leonard Shobe, devisees of Martin Shobe deceased, stating that the said decedent, after having made and duly published his last will and testament, died, some time in the year 1792, leaving four sons and one daughter, to wit, Martin Shobe, Rudolph Shobe, Leonard Shobe, Jacob Shobe, and Magdaline, the wife of the complainant, Conrad Carr; that the testator, among other things, devised as follows; " I give and bequeath the one third of all my estate to my beloved wife Elizabeth, during her life, and at her decease, to be equally divided among my children; and as to my lands, I give and bequeath to my son, Rudolph Shobe, the place whereon he now lives; I also give and bequeath to my son, Leonard Shobe, all the rest of the land I own; (except a tract lying on Cheat River, which I give and bequeath to my son, Jacob Shobe; the above-mentioned lands to be rated at sixteen hundred pounds: the possessors of said land, after a division being made, shall be allowed four years to pay off the other legatees, paying a fourth part each year, till all is paid; and my moveable estate I devise to be added to the price of the lands, and each of my children to receive an equal share of the whole:" by which devises the complainants, Carr and wife, became entitled to one fifth of the aforesaid value of the said land, as also the one fifth of the said moveable estate, to be paid by the defendants, respectively, as devisees and executors: but Martin Shobe, junr., one of the devisees, (though mentioned in the bill,) was not made a defendant.
§ Note. Probably, this is a mistake in both bill and answer. See the subsequent statement of the answer. --Note in Original Edition.
The bill further stated, that some years ago, the complainant, Conrad, being about to move to Kentucky, the testator promised him that, if he would not move to Kentucky, with his daughter, he would give him the lease-hold land which he (the said testator) leased of Lord Fairfax, and, accordingly, put the complainant in possession of the same, and delivered him the lease, which he thought was a sufficient transfer of the same: that, since the death of the said testator, Leonard Shobe, one of the defendants, had, by some means, got possession of the said lease, and claimed the said lease-hold land by virtue of the will. The complainants therefore prayed a decree, to compel the said Leonard to deliver up the said lease to them, with a proper assignment; and for general relief.
The defendants, Rudolph and Leonard Shobe, filed their answer, admitting the will, the death of the testator in 1792, and the number and names of his children; but stating that Jacob Shobe died in the year 1791, shortly after his father; (omitting, however, to mention whether he left any children.) They denied any knowledge of the promise, alleged in the bill, with respect to the leasehold land; averring that they did not believe that any such was ever made; or that the complainant ever had any such intention of going to the Western Country; as they never heard of it, although they lived in his immediate neighbourhood. Leonard Shobe insisted, that Carr delivered the lease to him, after the death of the testator, without mentioning any claim whatever to the same; that, about a month thereafter, he, the said Leonard, sent to the said Carr, (for the purpose of paying him the money due him under the will,) upwards of one hundred pounds, which he refused to receive.
To this answer the complainants replied generally; and several depositions were taken, proving parol declarations, at sundry times, by the testator, that he had given to Carr the lease-hold land, on which he lived, in consideration of his having married his daughter; and to prevent his moving away; and one of the witnesses said, he declared he had given it to him " for ever." It was also proved by a witness, that the defendant, Leonard Shobe, said, that he had promised the complainant to make him such a title to the said land as he had himself; and that he had heard his father say, that he had given the same land to the complainant. Another witness stated a conversation with the complainant, in which he gave an account of his right to the said land, corresponding, in substance, with the foregoing depositions, but expressing his fears that he should lose the land, " because he had not a scrape of a pen to show for it." It was also in evidence, that the complainant delivered the lease to Leonard Shobe, not because he did not conceive himself justly entitled to the land, but because he thought his title bad in law, without a deed. A tender was also proved, of eighty pounds, by the defendant, Leonard Shobe, to the complainant, which he refused to receive. The County Court decreed, " that the defendants pay unto the complainants the sum of eighty pounds, (being that proportional part of the product of the estate of Martin Shobe, deceased, that, under the will of the said Martin, the said complainants were entitled to, at the time of the exhibition of the bill,) without costs; and that so much of the said bill as prays for a delivery of the lease, and for a deed of assignment thereof, be dismissed."
From that decree, the complainants appealed to the Superior Court of Chancery for the Staunton District.
The Chancellor, (Brown,) without affirming or reversing the decree, in the first place, appointed commissioners to inquire, and report, " what other lands, and of what estate, was the appellee, Leonard Shobe, entitled to, by the devise to him; and of what value were such lands; what was the value of the lands devised to Rudolph and Jacob Shobe; what children had the testator living at the time of making his will, and death; what permanent improvements (if any) did the appellant, Carr, make on the lands in controversy, during the testator's life; and what was the amount of his personal estate?"
The commissioners reported that Leonard Shobe was in possession of land, (including five acres, of which Carr forcibly held possession,) to the value (at the death of the testator) of 9511. 15s.; that Conrad Carr continued in possession of lands amounting to 2401.; the permanent improvements thereon being valued at 601.; which improvements were made by him, with the assistance of Leonard Shobe, and the testator's family; that since the death of the testator, Carr had removed a grist-mill from the premises to an adjoining survey; that a tract of land, belonging to the testator, in Harrison County, was worth 1001.; that they valued the tract in Rudolph Shobe's possession at 5001., of which he, the said Rudolph, had paid 401.; that the tract devised to Jacob Shobe, (said to lie on Cheat River,) was an entry for which no title had ever been obtained; and that the whole personal estate of the testator, after discharging his debts, amounted to 4221. 10s. 9d., to one third of which his widow was entitled. They stated, moreover, that the widow was still living; that Jacob Shobe died some time in January, 1794; that the complainant was his administrator, and retained his personal estate, unsettled.
The Chancellor, at July Term, 1806, pronounced his opinion, " that the appellants, (Carr and wife,) are entitled to the original lease, under the agreement with the testator, Martin Shobe, and to a release from the appellee, Leonard Shobe of his rights to the lease-hold estate, mentioned in the proceedings, on their paying unto the appellees, all taxes and quit rents which they, or any of them, have paid, in respect of said lease-hold lands, since the testator's death; and also paying to such of the appellees, as may have paid the same, all such costs and charges of suit, or such proportion thereof, as the appellants are, in justice, bound to refund, for defending the said lease-hold estate against the Greens and others. [*] And that the appellants are now entitled, under the will of said Martin Shobe, to one fifth of two thirds of the real and personal estate of the testator; and, at the death of the widow, to one fifth of her one third of said estate real and personal; (she not having renounced the will, so as to give her an absolute right to one third of the personal estate; ) that the appellants are, moreover, entitled to an interest, to be computed after the rate of five per centum per annum, on the money, from the time the several payments ought to have been made, according to the direction contained in the said will; except as to the 801. which they might have received, but refused so to do; (on that sum no interest is to be allowed, after the time it was tendered; ) that, to ascertain, as well the amount of the value of the said real and personal estate as the amount of the taxes and quit rents paid, by the appellees, in respect of the said lease-hold lands, since the testator, Martin Shobe's death, and the amount of costs and charges paid by the appellees for defending the said lease-hold lands against the Greens and others, and whether any of the estate hath been recovered by any claimant, or otherwise lost or abandoned since the death of the said testator, and also what payments have been made by the appellees to the appellants, on account of their legacy, commissioners ought to be appointed to examine and state an account of the several matters and things above mentioned; but, in taking such estimate, and stating such account, the value fixed on the land by the testator is not to be altered; and if any part of the same has been lost, not its real value, but its comparative value, with the testator's other lands, is to be ascertained, to show in what proportion each legatee is bound to contribute, under the direction of the will of the testator, Martin. The Chancellor was moreover of opinion, that the appellants were entitled to their costs, expended in prosecuting their suit in the said County Court; and that the decree is erroneous, in not having given the said costs; and also in not deciding the other matters in controversy agreeably to the principles and opinions above expressed." He therefore reversed the decree, with costs, and remanded the cause for further proceeding; whereupon the defendants appealed to this Court.
Williams, for the appellants. Be the fact as it may, in relation to the gift of the lease-hold land, the appellees cannot claim, both against, and under the will; and therefore, if they claim the legacy left to the female appellee, they cannot recover that land; but must take their fifth part of the value of the lands as fixed by the testator, and one fifth part of the personal estate, subject to the rights of his widow. It may be said, that it does not appear, explicitly, from the will, that the land in question was in contemplation of the testator: but the bill admits it was devised by the will; for it admits that Leonard Shobe is entitled to this land under the devise, by praying that he may be decreed to make the conveyance. Again; the commissioners make the value of all the lands in the possession of the testator's children, (including the tract held by Carr,) to be about 17911. 15s.; which is not widely different from the sum of 1,6001. estimated by the testator himself as their value.
Thelluson v. Woodford, 13 Vesey, jun. 210.
2. The proof is not sufficient to entitle the appellees to the land. None of the witnesses were present at conversations between Carr and the testator; for all of them testify, only, as to what they said when apart from each other. It does not appear that Carr, in the lifetime of the testator, ever claimed a title. If there was a gift, it may have been for the term of the testator's life only.
Munford, for the appellees. There is no clashing between Carr's claim, and the dispositions made by the will; for it does not appear from the will that the testator intended to devise the lease-hold land at all. The difference between the estimates by the commissioners, and by the testator, of the value of all the lands collectively, (say 1911. 15s.) is sufficiently near to the 2401., which they suppose to be the value of that tract, to authorize a conclusion that it may not have been comprehended in his estimate. Besides, in the opinion of a witness, the value of the lease-hold land was far inferior to 2401.
2. The proof of the contract is certainly strong enough to give the complainant an equitable title to the land. The consideration for the testator's making the gift, was sufficient; viz. the preventing his son-in-law from removing, with his daughter, to Kentucky, by which he would have lost the comforts of her society in his old age. In Rowton v. Rowton, the majority of the Court was against establishing the title of Joseph Rowton, jun. to the land; because the evidence was contradictory, and the agreement between him and his father was not sufficiently proved: but it was agreed by all the judges, that if the agreement had been fully proved, it would have been supported, as founded on adequate consideration; and its being parol only, would not have overthrown it. It is admitted on all hands that Carr was put in possession of the land; and that the lease was delivered to him. He says, it was delivered as the evidence of the title. This is denied on the other side. But if the lease was not given to him by Martin Shobe, for the reason assigned in the bill, what other reason can be assigned? If there was any other, the defendants ought to prove it.
1 H. and M. 91.
The incorrectness of Carr's opinion, at first, that the delivery of the lease was sufficient to give him a title, or his subsequent fears that he should lose the land for want of a deed, can neither of them affect his equitable right, or vary the facts upon which it is founded. The depositions prove repeated declarations by Martin Shobe, that he had given him the land, without expressing any limitation as to time; and one of the witnesses says, " for ever." This testimony, coupled with the other circumstances, particularly, with his having made permanent improvements to the value of 601., (with the assistance, too, of one of the defendants, and the testator's family,) is conclusive to establish his title, in equity, to a conveyance of such title as Martin Shobe had by virtue of the lease.
See Judge Carrington's observations, in Rowton v. Rowton, 1 H. and M. 108.
Williams, in reply. The testator's intention was, evidently, to make an equal division among his children. No reason can be assigned for his giving his daughter the leasehold land, and, moreover, an equal share of the rest of the estate. The circumstance, that Carr was in possession, has no weight; for Leonard Shobe and the other sons were also in possession of the lands given them by the will. The witness who mentions the word " forever," must have been mistaken; because the testator himself had not a fee-simple.
Judge Roane pronounced the following opinion of the Court, consisting of Judges Roane, Brooke, and Cabell.
OPINION
Roane Judges
[*]For monographic note on Tender, see end of case..
[*]Note. The report of the Commissioners stated that Leonard Shobe had paid the manor rent and taxes, as well as costs of suits brought by the Woods and Greens, to recover the lands now in possession of the legatees; which suits were not finally decided. --Note in Original Edition.