1. Testator by his will gives land and stock to his son H. By the 3d clause of his will he gives to his five daughters, by name, the balance of his land, his daugh- ter M to account to the rest of his daugh- ters in the sum of $3,500, and his daugh- ter L $5,200, these being the amounts paid for homes for them. By the 4th clause he gives to his son H and his five daughters the balance of his personal property, to be equally divided among them--HELD:
1. The advancements to M and L are only to be brought into the division of the real estate.
Lewis v. Henry's ex'ors & als., 192 2. The personal estate embraced in the 4th clause is to be equally divided among the son and the five daughters. Idem, 192
1. J has held possession of a piece of ground in a city for forty years, which, in all that time, has been within his en- closure, claimed by him and cultivated as his property. His said possession is ad- verse to T and those under whom he claims, claiming the land, and the statute of limitations is a bar to any claim which T might otherwise have to the land; and the title of J thereto, even if it may not have been originally good, has thus ma- tured and become perfect by adverse pos- session, and by lapse of time, and the operation of the statute of limitations. Thomas v. Jones,
1. As to inheritance of real estate in Virginia, see Inheritance, No. 1, and Hauensteins v. Lynham, escheator, 62
2. The penalty of the appeal bond should be sufficient to indemnify and save harmless the surety in the injunction bond. Idem, 184
3. An appeal from a decision of the board of supervisors of a county, reject- ing a claim arising under an order of a county court, made in 1862, is properly taken to the county court of the county. Dinwiddie County v. Stuart, Buchanan & Co.,
4. A decree which overrules certain exceptions to a commissioner's report, and confirms the report as to the ques- tions involved in these exceptions, is a decree settling the principles of the cause as to these questions, from which the party excepting may appeal, although the report is recommitted to the commissioner as to other matters involved in other ex- ceptions.
Garrett's adm'x v. Bradford, 609 5. Where a warrant is brought before a justice upon a claim exceeding twenty dollars, and upon the application of the defendant before trial, it is removed to the county court, an appeal lies to the
circuit court, from the judgment of the county court in the case.
Carter's adm'r v. Kelly, judge, 787 6. Pending a suit by judgment creditors against the debtor and others, to set aside a deed of trust, or subject the surplus to payment of their debts, the debtor is de- clared a bankrupt on his own petition; and in the suit he claims his exemption and homestead out of the surplus of the purchase money of the land, after satisfy- ing the debt secured by the deed. The court below dismisses his application, and makes a decree distributing the fund. The bankrupt has such an interest in the case as entitles him to appeal.
Barger v. Buckland & als.,
1. A commissioner in settling the ac- count of W, committee of C, a lunatic, makes two statements, the only difference being in a single item of $1,000, which is inserted in one statement and omitted in the other, and he refers the question as to this item to the court. The court adopts the statement giving the commit- tee the credit. On appeal, held an excep- tion to the report was not necessary, and the appellate court may correct the de-
Cole's committee v. Cole's adm'r, 365 2. Accounts settled by W in 1859 and 1863, speak of him as trustee of C; but in the account by the commissioner he is treated as committee of C. There being no exception to the report for bringing into the latter account the charges in the first two, W's administrator cannot object to the report on that ground in the appel- late court, he not having excepted in the circuit court. Idem, 365
3. Where in a suit in equity, the rights of the parties involves the decision of questions which were not put in issue by the pleadings, or so vague and uncertainly as not to inform the opposite party of what were the issues between them, so as to prepare his case in a way to secure a full investigation by the court, and a de- cision according to the very right of the case, and which would do justice to all concerned, the appellate court will re- verse the decree of the court below, and send the cause back, with leave to the parties to amend their pleadings.
Nash v. Nash & als.,
4. In an action of unlawful detainer
the defendant appears; but, though the case is continued for years, he does not file any plea. The cause is proceeded in precisely as if there was a plea filed-the jury are sworn to try the issue joined, and the defendant makes full defence. There having been a verdict and judgment in favor of the plaintiff, the defendant can- not set up the want of the plea and issue thereon in the appellate court.
Bartley v. McKinney,
750 5. There having been oral evidence expressly proving that the land in contro- versy is part of the land devised to the plaintiff by her husband, and the jury hav- ing so found, though there may be docu- mentary evidence tending to show it was not embraced in the tract of the husband; yet the bill of exceptions of the defendant to the refusal of the court to grant a new trial, containing the evidence and not the facts proved, the court certifying its in- ability to certify the facts because of con- flict of evidence-the appellate court can- not reverse the judgment, but must take it to be correct. Idem, 750
6. The general course of the examina- tion of witnesses is, and must of necessity be, left to the discretion of the trying judge, and the exercise of that discretion will never be interfered with by an ap- pellate court unless it plainly appears that some injustice has been done.
Scott and Boyd v. Shelor,
2. R, by a verbal contract, sells a house and lot to M, who pays all the purchase money and is put in possession. R has no interest in the property which may be subjected by attachment against him, as an absent debtor, to the payment of his debt. Hicks v. Riddick & als., 418
3. After the purchase money had been paid and M put into possession, R sent M a deed executed by himself for the property; but M, insisting that R's wife should join in the deed, returned it to R; and it was not again delivered. If the deed might be considered as accepted by M, that would not render the property liable to the attachment. Idem, 418
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