Poff v. Poff

Sims, J., after making the foregoing statement, delivered the following opinion of the court: The questions presented for our decision by the assignments of error will be disposed of in their order as stated below. 1. Should the appeal in the first above entitled case be dismissed on the ground that no appeal bond was given as the statute requires? The answer to this question depends upon whether the statute on the subject requires an appeal bond to be given in such a case. The precise question seems to be a novel — 72 — one; but the statutory history of the subject and the principles involved make it very plain to us that no appeal bond is required by the statute to be given in such a case, and, hence, that the question under consideration must be answered in the negative. [1, 2] The well settled distinction with respect to abatement, between the effect of the death of parties to a suit . or action where the death occurs before, as compared with where the death occurs after an appeal is allowed or writ of error is awarded by the appellate court, must be borne in mind. Where such death occurs before the appeal is . allowed or the writ of error is awarded, as the case may be, the suit or action abates as to the deceased party. If. an appeal or writ of error is sought in behalf of the estate of such deceased party, the application must be made by petition of his representative. Booth v. Dotson, 93 Va. 233, 25 S. E. 113. But where an appeal is allowed or writ of error awarded before such death, the case is from that moment a case pending in the appellate court, and under the statute (Code 1887 and Pollard’s Code 1904, section 3307; Code 1919, section 6167) — and the same was very nearly true at common law — there is no abatement in the appellate court because of the death. Reid v. Strider, 7 Gratt. (48 Va.) 76, 54 Am. Dec. 120; Booth v. Dotson, supra (93 Va. 233, 25 S. E. 113); Cumming v. Cumming, 127 Va. 16, 102 S. E. 572. The statute just cited effected no other change in the procedure than that it expressly leaves it to the discretion of the appellate court, where the death is made known to such court and suggested on its record, to proceed with the case and enter judgment or decree as if such death had not occurred; whereas, prior to the statute, a practice had grown up, as stated in the opinion of the court delivered by Judge Baldwin in Reid v. Strider, just cited, “probably borrowed in substance from the English House of Lords, in equity, requiring, in case of death of either — 73 — party” (if made known to the appellate court and suggested on its record as aforesaid), “a revival of the appeal or writ of error by consent or by scire facias.” But it was held, indeed, in the case just cited, in substance, that the appellate court in truth had, before the statute, practically the same discretion and power in the premises as is expressly conferred by this statute; and the precise effect of the statute seems to. have been merely to prevent the practice mentioned from crystalizing into an inflexible rule of procedure. Such is the effect of the statute last cited, and it has no further bearing upon the question we have under consideration. The death of one of the appellants, J. C. Poff, which occurred after the appeal in question was allowed, had no effect whatever upon the pendency of the suit in this court, and the appeal cannot be dismissed unless the statute of limitations on the subject of appeal bonds is applicable to the cause before us. [3] The last mentioned statute is in two sections (Code 1919, sections 6351 and 6355). The latter section of the statute, in effect, provides that, where an appeal bond is required by section 6351 to be given, the appeal shall be dismissed whenever it appears that the appeal bond has not been executed within the statutory period. Such period, if any appeal bond is required therein, expired in the case before us on September 25, 1919. The former section of the statute, in effect, provides that where an appeal is “proper to protect the estate of a decedent,” no appeal bond is required. Now it cannot be doubted that upon and after the death of J. C-. Poff, after the appeals aforesaid were allowed, the appeal in the first above entitled case became and still remains an appeal proper to protect such decedent’s estate. But it is argued that it was not such an appeal at the time it was applied for or allowed, and that the statute of limitations on the subject of appeal bonds speaks as of the time — 74 — the appeal is applied for and is allowed, with respect to the cases in which an appeal bond is required; and that only as to those cases in which an appeal is taken by a personal representative to protect the estate of his decedent does the statute provide that no appeal bond is required. It is also urged that the statute having begun to run, no subsequent happening, such as the death of any of the parties, will suspend its operation. Now the statute does not by its terms say that the person taking the appeal is at all material, but only, in substance, that where the appeal itself is proper to protect the estate of a decedent no appeal bond is required. And after an appeal has been takén by a party himself, in due time so far as the appeal is concerned, as in the case in question before us, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case certainly falls within the reason of. the provision of the statute which exempts cases involving the estates of decedents from the need of the giving of an appeal bond. Any other construction would be extremely technical, and would deny the remedial effect of the statute, to which the estate of such a deceased party seems plainly entitled. when we consider the object aforesaid of the provision making said exemption, as such object is stated in the statute itself. As to the view urged in- argument, that the statute of limitations on the subject of appeal bonds speaks as of the time of the application for and the allowance of the appeal, this can find support only in the theory that there is some inseparable connection between the application for or the allowance of the appeal, and the giving of the appeal bond. This view may seem to receive some color from the consider — 75 — ation that the requirements that the appeal must be applied for within the statutory period of one year, and that the appeal bond (in the cases where such bond is required) must be given within the same period, are found in- the same statute: The history of the statute, however, discloses that the provisions on these two subjects are as much separate and independent of each other as if found in widely different statutes. Prior to the Code of 1849, there was no statute of limitations fixing any definite period within which appeal bonds must be given. The statute of limitations fixing a definite period within which appeals and writs of error must have been applied for was then in existence, practically in the same form as it exists at the present time, except that the statutory period was then different. The statute prior to the Code of 1849 also provided for appeal bonds to be given; but there was no provision therein, as there is now, for the dismissal of the appeal if the appeal bond was not given as required. In that state of the law, it was held that where the appeal was once allowed within the statutory period, the appeal remained pending although no appeal bond was given as required by the statute, and the appeal could not be dismissed by the appellate court merely for lack of such appeal bond. Williamson v. Gayle, 4 Gratt. (45 Va.) 180. Then came the énactment in the Code of 1849 (section 17, p. 686), of our present statute aforesaid (Code, 1919, section 6355), except that the statutory period thereunder was different, providing that “The appeal * * * shall be dismissed whenever it appears that” (the statutory period) “has elapsed * * *. before such bond is given as is required to be given before an appeal * * * takes effect.” We are, therefore, of opinion that upon a motion to dismiss an appeal the statute last mentioned speaks as of the portion of the time which may remain.of the statutory period aforesaid within which the appeal bond must be — 76 — given in all cases where such bond is required, and it speaks last on this subject on the last day of such period. Hence, the question arising on such motion which is involved in the case -before us is this: Is it a case in which an appeal bond is required to be given, viewing the case as it existed on such last day, to-wit, on September 25, 1919? And, since on and as of such last day the pending appeal under consideration was one proper to protect the estate of a decedent, we are'of opinion that no appeal bond was'required. It is immaterial whether when an appeal is allowed the ‘decedent had died and' his personal representative is then a party to the cause, or whether the death occurs afterwards and the personal representative is not a party to the cause. After the'appeal has been once properly allowed, it is the appeal itself with which the statute deals, and with the need of its continued pendency in order to protect the estate of the decedent, and not with the question of whether the decedént or his personal representative is a party before the appellate court. To sustain the view urged upon us for appellees that the statute in its-requirement of appeal bonds has in view the parties to the cause as of the time that the appeal is applied for and is’ allowed, and that the statute of limitations oh the subject is then set in motion, and that it thereafter, like other statutes of limitations, runs over all supervening disabilities, the case of Pace v. Ficklin, 76 Va. 292, is cited and relied on. There are expressions in the opinion of the court in that case which may seem to support the views contended for. It is said in that opinion, delivered by Judge Staples, that “The statute” (in its exemption dispensing with the requirement of appeal bonds when the appeal is proper to protect the estate of a decedent), “only applies to those cases where the estate of a dead man is injuriously affected by a decree, and the appeal is taken by the personal representative to protect his estate.” But in that case the — 77 — question in issue on the subject was whether the appeal was taken to protect the estate of the decedent which was there alleged as needing the protection of the appeal, or was taken to protect and did in fact protect only the estate of another party, a bankrupt, not a decedent. The latter was held to be the situation. Moreover, in that case the decedent in question died before the appeal was applied for, and hence any appeal to protect his estate would have had to have been applied for by his personal representative. Hence, while it is true that any utterance of the learned judge who delivered the opinion just mentioned, although it may be but obiter dicta, carries with it great weight, we are satisfied from the nature of the case in which the language quoted was used that the reference therein to the person by whom the appeal is to be taken was not intended to be exclusive in its application, but adverted to cases in which the personal representative was the proper party to take the appeal, and that the object of the appeal was the leading thought in mind. Certainly the decision on the point rests upon the single consideration of what was the object of the appeal. What is said in the case last cited, on the subject of the running of the statute of limitations over all disabilities when it once commences to run, has reference to a different subject altogether from that which we have under-consideration, and is not in point. The reference is to that aspect of the case in which it was granted that an appeal bond is required where the appeal is necessary to protect the estate of a bankrupt, who is not dead, so that the statuté of limitations in question began to run, and the question was whether the running of the statute was suspended between the death of one assignee in bankruptcy and the qualification of his successor. In the case before us, as it is not one in which an appeal bond is required, the statute of limitations on the subject never began to run. — 78 — ■ We are of opinion, therefore, that the appeal in the first above entitled case should not be dismissed. The appeal in'the.second above entitled case must be dismissed, but without prejudice to the rights of the appellants involved therein, which are inseparably involved in the appeal in the first above entitled case, and will be determined by the decision we shall make in such case touching the same. [4] 2. Was the.gift, under the will of J. W. Poff, deceased, to his four younger sons, of the farm in the will mentioned, a gift by way of ¿dvancement, so that, under the statute in such case made and provided, it must be brought into hotchpot with the whole estate of the decedent as a condition entitling such sons to participate in the partition or distribution of the estate of which the decedent died intestate? We are óf opinion that this question must be answered in the affirmative. The statute in question has not been changed since the cause of action in the case before us arose, and was then, as it is now, in the form in which it appears in the Code of 1919, section 5278, as follows: “Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime,- or under his will, any estate, real or personal, by way of advancement, and he, or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper proportion of the estate, real and personal.” (Italics supplied.) What is a gift “by way of advancement” is defined in the opinion of this court handed down at the present term by — 79 — Judge Prentis in the case of Payne v. Payne, ante p. 33, 104 S. E. 712, and what is there said need not be here repeated. [5] The doctrine of advancements is applicable only to the division of the portion of the donor’s estate of which he dies intestate. As to such estate it is well settled that, in the absence of statute prescribing in what manner the intention on the subject shall be expressed, such for example as exists in Illinois (see Elliott v. Western Coal Co., 243 Ill. 614, 90 N. E. 1104, 134 Am. St. Rep. 398, 17 Ann. Cas. 884), where the gift is substantial in amount and is of the character of the gift in question in the case before us, the law attaches the presumption to every gift of an ancestor to a descendant that it is a gift by way of advancement. 1 R. C. L. section 21, p. 668; Graves’ Notes on ‘Real Prop., section 167; McDearman v. Hodnett, 83 Va. 281, 2 S. E. 643; 2 Minor’s Inst. (3d ed.), pp. 514 et seq. This presumption is one of law and is based upon the supposed intention or desire of the ancestor that any inequalities in the division of his whole estate among his heirs at law and distributees, according to the statute of descents and distributions, occasioned by gifts made “by way of advancement,” shall be corrected as far as practicable in the subsequent division of that portion of the donor’s estate of which he dies intestate. For, as laid down by the authorities, there inheres in the nature of every gift from an ancestor that it may be a loan, by which a debt is incurred; or it may be a gift by way of advancement; or it may be a pure gift, invdlvinjg neither obligation of payment, nor necessity of bringing it into hotchpot as the condition of sharing in the post mortem division of the ancestor’s estate. And, as it is said, “As between a loan, a gift and an advancement, the presumption is in favor of an advancement, because of its tendency towards that equality of distribution * * * which is presumed to have been intended.” 1 R. C. L., sec — 80 — tion 2, p. 665; Graves’ Notes on Real Prop., note to section 167, p. 197. [6, 7] This presumption, it is true, may be rebutted by affirmative proof that the gift was not intended to be a gift “by way of advancement.” 1 R. C. L., section 17, p. 665, and the other authorities above cited. But we find no such proof in the case before us. The only evidence which is relied on by the appellants to furnish such proof is the declaration of the testator in the fifth clause of the will aforesaid, which is as follows: “I have other property that I do not attempt to dispose of in this will concerning the farm. I may some time in the future make a will as to the residue of my estate, or I may dispose of it in my lifetime, or I may die intestate as to said residue.” The most that can be said of this declaration is that it is silent on the subject of whether he intended the gift of the farm to be a gift “by way of advancement.” It certainly does not furnish any affirmative proof that the gift was not intended to be such a gift. In such state of the proof, the presumption aforesaid attaches to the gift. The case of Biedler v. Biedler, 87 Va. 300, 12 S. E. 753, is relied on by appellants, but in that case the will not only made the specific devise constituting the gift in question, but added the provision that the- remainder of the estate was to go “as the law decrees,” manifestly referring'to the direction of the statute of descents and distribution. The testator in that case thus expressed affirmatively the intention that the gift was not intended “by way of advancement,” for in such case the remainder of the estate could not have been divided in accordance with the statute just mentioned. We are therefore of opinion that the decree under review was correct in its holding on this subject. — 81 — We come now to the sole remaining question for our decision, and that is this: [8] 3. Was the parol gift, made by J. W. Poff in his lifetime to his two married daughters, Mrs. Nolley and Mrs. Pritchett, of the $4,000 debt of the four younger sons to the donor, a valid gift? We are of opinion that this question must be answered in the negative. The payment of the money in question by J. W. Poff for the younger sons unquestionably created the relationship of creditor and debtor between them. The presumption of gift to the younger sons, which might have arisen from the bare fact of the payment, is rebutted by the express evidence in the case that J. W. Poff told such sons that they owed him the amount of the money so paid, and that they admitted the existence of such obligation. The transaction was not a deposit of money, or other thing, by J. W. Poff into the hands of such sons in trust for the daughters, where the act of the donor in making the deposit accompanied the creation of a trust, so that there was a complete assignment or transfer of the subject of the gift in trust, as was true in the case of Russell’s Ex’rs v. Passmore, 127 Va. 475, 103 S. E. 652. In such a case as that just cited, the act of making the deposit into the hands, not of a mere agent of the donor, but of a trustee who accepts the trust, is equivalent to the act of a donor in delivering the possession of tangible personal property, which is indispensable to the validity of a gift thereof causa mortis, and also of a gift thereof inter vivos, except that in the case of the latter character of gift of personal chattels, the acquiescence of a donor in a previously acquired possession of the donee has been held to be sufficient evidence from which to imply delivery of the possession. Shankle v. Spahr, 121 Va. 598, at pp. 607-8, 93 S. E. 605; Wood v. Treadway, 111 Va. 526, 69 S. E. 445, and authorities there cited; Rus — 82 — sell’s Ex’rs v. Passmore, supra. Besides the last mentioned exception to the rule that some act of the donor making, or held to be equivalent to the making of the transfer of the possession of the subject of the gift from himself to the donee, or to some one in trust for the latter, is essential to the execution, and, hence, to the validity of a gift inter vivos, as well as causa mortis, there is one other exception, and only one, namely, in the case of a gift by way of a declaration of trust. In such case, “the donor does not part with the possession of the Subject of the gift, but retaining it, declares that he holds it in trust for the donee.” See Gifts of Personalty, by Prof. Graves, 1 Va. Law Reg., at p: 878. But the gift to the daughters in the case before us comes within none of the exceptions above mentioned, and is plainly an attempted equitable assignment of a chose in action, i. e., of the debt due the donor by the younger sons. [9, 10] The doctrine of equitable assignments as applied to the gift of a chose in action has been long well settled.' Although it is an equitable gift, it must be executed in order to be valid. “The delivery of some instrument, by using which the chose is to be reduced into possession, as a bond or a receipt or the like,” is absolutely essential to the validity of the gift. Miller v. Jeffress, 4 Gratt. (45 Va.) 472; Gifts of Personalty, by Prof. Graves, supra (1 Va. Law Reg. 877-8). The delivery of such instrument need not be actual. It may be symbolical. But one or the other is essential to the validity of a gift of a chose in action. Where a previously existing debt is sought to be given of which there is no documentary evidence — as where there is but an implied promise of the debtor to pay the creditor, as is true of the case before us — “there is nothing of which even a symbolical delivery can be made, and therefore there can be no valid, binding and executed gift.” Ross v. Milne, 12 Leigh (39 Va.) at p. 222, 37 Am. Dec. 646. — 83 — [11] It may seem that since gifts by way of a declaration of trust are upheld as executed gifts, which is in direct violation of the rule aforesaid as to the necessity of delivery of possession of the subject of the gift, actual or symbolical, that the rule should be relaxed in the cases of attempted gifts of choses in action which are not eifectual because of a lack of symbolic delivery; and that, since in such case the donor occupies the position of continued owner of the chose in action, he should, in equity, be held to have, by the declaration of gift, made a gift by way of a declaration of a trust; but the authorities are to the contrary. As said by Prof. Graves in his article on Gifts of Personalty, supra (1 Va. Law Reg. at pp. 879-880) : “* * * it sometimes happens that a donor, with a gift intent, neither declares himself trustee nor makes an eifectual equitable assignment, though his purpose is evidently to assign, and not to create a trust. The question then arises, can the defective assignment be treated as tantamount to a declaration of trust, and the gift sustained on that theory? Some of the earliest English cases are in favor of this view, but they are now discredited, and the doctrine is that an abortive assignment will not (contrary to the intent of the donor) be converted into an implied declaration of trust, in order to save the gift from failure. It is said by Jessell, M. R., in Richards v. Dolbridge, L. R. 18 Eq. 11: ‘However anxious the court may be to carry out a man’s intention (i. e., to make a gift), it is not at liberty to construe words otherwise than according to their proper meaning.’ And in Moore v. Moore, L. R. 18 Eq. 474, it is said by Hall, V. C.: T do think it very important to keep a clear and definite distinction between cases of imperfect gift and cases of declaration of trust; and that we should not extend, beyond what the authorities have already established, declarations of trust so as to supplement and supply what, according to decisions of the highest authority, would otherwise be imperfect gifts.’ In other — 84 — words, a donor is legally put to his election whether he will assign or declare a trust; and if he elects the former, as is shown by his attempted assignment, the gift must stand or fall as the donor designed to make it; and if ineffectual as an assignment, it can derive no assistance from the doctrine of declarations of trust. Otherwise, it has been said, ‘there would never be a case where an expression of a present gift would not amount to a declaration of trust, which would be carrying the doctrine too far.’ Per Jessell, M. R., 18 Eq. Cas. 15.” [12] Therefore, while we have every disposition to uphold the attempted- gift to the daughters, in question in the case before us, as a valid gift, we cannot do so without relaxing the rules aforesaid on the subject which have been long settled, and this, we feel, should not be done. The rules may appear to be technical, and they undoubtedly work grave hardships in some cases; but, as to gifts inter vivos, they are based upon the very same foundation as is the rule that no mere executory promise is enforceable, unless it is supported by a valuable consideration, a locus pemtentiae being, in the wisdom of the common law, left attached to every matter of mere voluntary intention, until the intention is executed by an unequivocal act; they have been the subject of consideration and approval of many eminent judges and authorities; and contrary rules might result in a yet greater miscarriage of justice. At any rate, the courts are powerless to change rules so long and so firmly established. We conclude, therefore, that there is no error in the holding of the decree under review on the question last disposed of, and it will be affirmed. Affirmed.