CASES DECIDED IN THE Supreme Court of Appeals of Virginia. Burton v. Brown's Ex'ors & als.* March Term, 1872, Virginia. 1. Interlocutory Decree Acquiescence-Estoppel.-A party may be concluded by his acquiescence in a decree affecting his rights made in the progress of the cause, under which decree he takes a part of the fund affected by it, and makes no objection to it until after the final decree in the cause made twenty-two years after it. 2. Equitable Proceedings-Appeal-Penalty of Affirmation.t-An appeal by one party from a decree overruling some exceptions to a commissioner's report, and sustaining others, and recommitting the report, brings up the whole cause; and the decree of the court of Appeals affirming the decree of the court below, concludes all questions previously decided, whether in favor of the appellants or appellees. *Judge Bouldin did not take his seat on the bench until the 10th of April. See Brown v. Brown's Adm'r, 31 Gratt. 502, for the sequel of the principal case. +Equitable Proceedings-Appeal-Finality of Affirmation.-In Campbell's Ex'or v. Campbell's Ex'or. 22 Gratt. 672, it is said: "The decision of this court is not only final in regard to the decree appealed from, but also in regard to all the prior orders and decrees in the case between the appellants and appellees. An appeal from a decree brings up the whole proceedings in the case prior to the decree; and either party can have any error against him in those proceedings corrected without the necessity of a cross appeal in any case. If a party fail to complain of any such error and a decree be made upon the appeal, without correcting or noticing the error, such party will be concluded by the decree from appealing afterwards." Citing the principal case and Walker's Ex'or v. Page, 21 Gratt. 636. See also, Morriss v. Garland's Adm'r, 78 Va. 222; Effinger v. Kenney, 79 Va. 553; Henry v. Davis, 13 W. Va. 245; Mason v. Bridge Co., 20 W. Va. 226; Morgan v. Ohio River R. Co., 39 W. Va. 17, 19 S. E. Rep. 588; Barton's Ch. Pr. (2d Ed.) 1262; 4 Min. Inst. (3d Ed.) 1091. Same Same Same-Where Parties Stand on Distinct Rights.-In Simmons v. Lyles, 27 Gratt. 932, the court says: "In this latter decree Jamieson has no concern. He was no party to it, and he does not complain of it. The rule comes directly within the operation of the rule laid down by this court in Walker v. Page, 21 Gratt. 636, 652; in which it was held, that where the parties stand upon distinct and unconnected grounds: where their rights are sepa rate and not equally affected by the same decree: then the appeal of one will not bring up for adjudication the rights or claims of the other;" citing the principal case. In February 1843, Alexander S. Brown and Patrick W. Brown, as executors and devisees of James Brown, deceased, filed their bill in the Superior court of Chancery for the Richmond circuit, in which they say that James Brown died in March 1841, leaving a will, which they exhibit; that the burthen of executing this will will be great: and they proceed to state the grounds of the difficulty at great length. 2 It appears that, in April 1792, James Brown and *Robert Rives formed a mercantile partnership, and they carried on business under the name of Robert Rives & Co., not only in Richmond, but at a number of places in the country; they having, at some of their places in the country, if not all of them, a special partner. In 1794, they admitted into the concern, Robert Burton the elder, as an equal partner, and subsequently the name of the firm was changed to Brown, Rives & Co. This partnership continued until February 1806, when it was dissolved by the death of Robert Burton. After his death the surviving partners formed another partnership, under the name of Brown & Rives, and all the assets of Brown, Rives & Co. were taken possession of by the new firm, which was continued until 1812. Robert Burton left a will, which was admitted to probate, and James Brown qualified as his executor. He gave to his widow, Anna Pitfield, beside the three hundred pounds agreed to be settled on her by their marriage contract, one-fifth of his estate for her life, which, at her death, was to go to his sons by her. He gave to his two illegitimate daughters in England, onefifth, and the remainder of his estate he directed to be divided equally between his two sons, Robert Burton, Jr. and John Burton. James Brown married the widow in 1807; and there was a marriage contract by which her property was secured to her; but it was not recorded. After the dissolution of the partnership of Brown & Rives, Brown became greatly embarrassed by the failure of houses in England with which he was connected; and he and his late partner, Rives, disagreeing as to the settlement of the concerns of Brown, Rives & Co., and Brown & Rives, in 1818 Brown instituted two suits in equity against Rives, one in his own right and as executor of Robert Burton the elder, and the other in his own name, for a settlement of 3 the accounts of the respective partnerships. In these suits there were two reports by commissioners, the last by commissioner Robinson, who *reported a very large balance as due from Brown to Rives. To this report there were numerous exceptions; and the report had not been acted on by the court when this suit was brought. The bill sets out several deeds executed by Brown to secure debts. The first was executed in 1819, to secure a large debt to James Scott, executor of John Leslie, deceased; another to secure a debt to the bank of the U. S.; another to secure a debt to Bullock, which Bullock afterwards transferred to Mrs. Brown; and in October 1824, he conveyed the whole of his property in Virginia to secure the devisees and legatees of Robert Burton the elder, and indemnify his sureties in his official bond; and on the same day made another deed, conveying all his lands in Kentucky for the same object. Of the two sons of Robert Burton the elder, John was sent, when a youth, to Scotland, where he has ever since lived; Robert lived in Richmond until his death in 1837. He died unmarried, and left an olograph will, which was duly admitted to probate; and James E. Heath qualified as his executor. The material parts of his will are as follows: I do give and bequeath unto my dear mother, Anna Pitfield Brown, all and every species of property, both or personal, and moreover of every kind whatever, which may at the period of my natural death belong or accrue unto me, at any time after said natural death shall occur, provided she be in life and being, as long as she shall live, with power at her death, or before that period shall arrive, to dispose of the same by will or otherwise as to her may seem most proper. 2dly. That this bequest shall be distinctly understood to have been made for her individual benefit, with a firm belief that she will use it for the benefit of all the family, viz: my honoured step-father, James Brown, Sr., and my dear brothers, John, James, Thomas, George L. M., Patrick W. and Charles Brown, and my sister, Anna B. George, for her sole benefit, or that 4 of her children *after Mrs. George's death, in such manner and form as may not incommode my said dear mother during her life. James Brown died in 1841, never having settled his accounts as executor of Robert Burton the elder, or so far as appears, having kept on his own books any account of the kind. The bill makes the legatees of Robert Burton the elder, Heath, the executor of Robert Burton, Jr., and his legatees, Rives and Scott ex'or of Leslie and others defendants, states that there is a question upon the construction of the will of Robert Burton, Jr., between Mrs. Brown and John Burton, the latter insisting, that upon the death of Mrs. Brown, the whole estate will pass to him under the fourth clause of the will; asks that various questions stated may be decided, and that the accounts of James Brown as executor of Robert Burton the elder, may be settled; that all necessary accounts may be taken; that the estate of their testator may be lawfully applied to the payment of his debts, and for general relief. Mrs. Anna Pitfield Brown died in 1843; and left a will, made in the life time of her husband, and professedly in pursuance of the power vested in her by the will of Robert Burton, Jr., by which she gave the property *bequeathed to her by him to her children, including John Burton. And after her death the plaintiffs amended their bill, and made all the parties interested in her estate parties in the cause. 5 Rives and Scott answered at great length; but it is not necessary to refer to them further. John Burton also answered, and on the question arising on the will of his brother, Robert Burton, Jr., insisting that he was entitled to the whole of his brother's estate. On the 27th of June 1845, the court made a decree, directing a commissioner to take the accounts of James Brown, as executor of Robert Burton the elder, and of James E. Heath, as the executor of Robert Burton, Jr. And on the 8th of June 1846, commisHeath as ex'or of Robert Burton, Jr., showsioner Poiteaux reported the account of ing in his hands, ready for distribution on the 31st January 1846, the sum of $9,280.76. On the 20th of June 1846, a decree was James Brown in his life time and this suit, made by consent in the suits brought by and two others, by which Robert Rives was relieved from all liability to the representatives of either James Brown or Robert Burton the elder; and the two suits brought by James Brown were dismissed. And on the 20th of November 1846, commissioner Poi 3dly. I do hereby request my friends, Joseph Tate, at present mayor of this city, and James E. Heath, first auditor of Vir-teaux made his second report, to which there ginia, to act as trustees in this matter. 4thly. Six months after the natural decease of my said dear mother, I do will and desire my executors (hereinafter named) should transfer to my brother, John Burton, M. D., at present residing in Scotland, all and every thing, real and personal, or of whatever nature the property may be, that has been above conveyed in this writing testamentary, to him and his heirs for ever. Tate and Heath were appointed executors, of whom Heath alone qualified. were numerous exceptions by the plaintiffs and the defendant John Burton. On the 24th of November 1848, the cause came on to be heard, on only so much of it as involved the judicial construction of the will of Robert Burton, Jr., and the apportionment of his estate among those entitled to it under his will; when the court held that the testator, by his will, gave to his mother, Anna Pitfield Brown, a life estate in the whole of his property, with a power of appointment; and that this power had been duly executed by her will, made in the | Jones and Conway Robinson, for John Burlife time of her husband; and made a ton. decree distributing the fund in the hands of the *executor, Heath, among her legatees; and her son, John Burton, took his share under that decree. 6 Subsequently, commissioner Poiteaux's report was recommitted to commissioner Giles, who made two reports; by the last of which he fixed the amount due, on the 31st of December 1830, from James Brown to the estate of Robert Burton the elder, at $57,083.70 of principal, and $19,631.66 of interest; and of this there was due to John Burton, $18,414 of principal, and $20,664.90 of interest; and to Robert Burton, Jr., $17,775.51 of principal and $20,664.90 of interest; and the share of Robert Burton, Jr., as well as a sum reported to be due to Mrs. Anna Pitfield Brown, on account of her annuity of three hundred pounds, and the interest on one-fifth of the estate of Robert Burton the elder, left her by his will, which fell due after the death of James Brown, was apportioned among her legatees. Numerous exceptions were filed to this report by the plaintiff; and there were two exceptions filed by John Burton; but neither of them related to the apportionment of the estate of Robert Burton, Jr., among the legatees of Mrs. Brown. Whilst the cause was progressing in the Circuit court, two appeals were taken upon single questions decided after the decree of the 24th of November 1848, settling the construction of the will of Robert Burton, Jr., and distributing the fund in the hands of his executor. One of these appeals was by the plaintiffs, from a decree appointing a receiver of the rents of the real estate of James Brown deceased; and this decree was affirmed by this court. The other was by Scott, executor of Leslie, from a decree as to a sum of money which had been paid him; and this decree was reversed. And there was a third appeal by the executors and devisees and legatees of James Brown and Anna Pitfield Brown, deceased, taken from the decrees, rendered on the 29th of June 1850, and the 1st of March 1859, 7 based on the *first report of commissioner Giles, which distributed the interest of Robert Burton, Jr., among the legatees of Mrs. Brown; which decrees were affirmed by this court. The cause came on to be finally heard on the 13th of March 1869, when the court overruled all the exceptions to the commissioner's report, and made a decree in favor of John Burton and the legatees of Anna Pitfield Brown, based upon the last report. From this decree the plaintiffs applied for and obtained an appeal to this court. Subsequently, John Burton applied to a judge of this court for an appeal, which was allowed. In his petition he assigned four errors. These errors are set out in the opinion of the court. The case was argued by Marshall & Bouldin for the appellants in the first appeal, and by Andrew Johnston, J. Alfred V R, 22 Gratt-2 Moncure, P., delivered the opinion of the court, sustaining the decree of the court below overruling the exceptions, and decreeing upon the report. Upon the appeal by John Burton, the opinion proceeded as follows: 8 Having considered and disposed of all the questions directly arising on this appeal, we would now be prepared to say there is no error in the decree appealed from, and that it ought to be affirmed, but for the fact that there is another appeal in this case, which was heard at the same time with this appeal, and the decision of which may affect the decision of this appeal. We will, therefore, proceed now to consider that appeal. That appeal was taken by John Burton, to the decree of the 28th of March 1848, and also to the decree of the 13th of March 1869. The decree of the 28th of March 1848, was as to the construction of the will of Robert Burton, the younger, and as to the disposition of his estate to be made by his execuThe court was of opinion, that the true tor. intent and meaning of the testator, *apparent on the face of the will, was to devise to his mother, Anna Pitfield Brown, wife of James Brown, to her sole and separate use, all his estate, real and personal, with power at her death, or before that period should arrive, to dispose of the same, by will or otherwise, as to her might seem most proper; and was further of opinion, that the said Anna Pitfield Brown, by her will or appointment, duly made and published on the 31st day of March 1840, during the lifetime of her husband, duly exercised the power so vested in her; and the court accordingly decreed that James E. Heath, executor of said Robert Burton the younger, should sell certain stocks, &c., and regarding, &c., and after reserving, &c., should divide the whole fund in hand equally among the eight children of the said Anna P. Brown, (to whom she had appointed the estate claimed to have been devised to her by her said son Robert Burton), the eighth part or share of John Burton to be paid to himself or his counsel, without exacting a refunding bond, &c. There was accordingly a distribution made by the said executor in pursuance of the said decree, and the portion of John Burton was paid to his attorney, as appears by a report of Commissioner Poiteaux, returned and filed on the 30th of June 1848. In John Burton's petition for an appeal, four errors are assigned in the decrees appealed from. The first is, that "in respect of the transactions of James Brown, as executor of Robert Burton the elder, the Circuit court erred in not adjudging to be due from said Brown at least as much as is claimed by the first of the exceptions filed by John Burton on the 8th of March 1869." This assignment of error has already been disposed of. 17 The second is, that "the Circuit court should have held, under the will of Robert Burton the younger, that all his estate, 9 other than what was given for life to the mother of him and of your petitioner, was, after her decease, to pass to your petitioner in absolute property. It may be difficult, perhaps impossible now, to make, in any practical way, a correction of the error committed by the decree of the 28th of March 1848, as to the fund then in the hands of James E. Heath, in giving to your petitioner only one-eighth thereof. But your petitioner is advised that the commission of that error furnishes no sufficient reason for sanctioning the error committed by the decree of the 13th of March 1869, as to the large amount with which James Brown is chargeable in respect of estate bequeathed by Robert Burton the elder, to Robert Burton the younger. He is advised, that from the materials now in the record, there may be a statement showing the amount to which he is entitled, and upon such statement, a decree in his favor for said amount." ton the younger, to render before the said commissioner an account of his transactions as executor." And the decree was then rendered which has already been substantially set forth. The question appears to have been argued before the court with great ability by counsel on both sides; and at the time of pronouncing the decree an able opinion was delivered by the court, which is referred to in the decree, and made a part of the record. The question was certainly a very doubtful one, upon which counsel and judges might very well differ. Being a question of construction of a will, it depended, almost entirely, upon the terms of the will, and the circumstances which surrounded the testator at the time of its execution. It seems from the record, that John Burton acquiesced in the decree, took no exception to any proceeding had under it, or in conformity with it, made no application for a rehearing of the question, or for an appeal from the decree, from the date This is the main assignment of error on thereof, on the 28th of March 1848, until this appeal, and was the cause of it. The the petition for this appeal was prepared question involved is, as to the true and and presented to a judge of this court, on proper construction of the will of Robert or about the 10th of February 1870, a period Burton the younger, who died in 1837. This of nearly twenty-two years. Very soon question was very distinctly presented for after the said decree was rendered, James the decision of the court, in the original E. Heath, executor of Robert Burton bill filed in this case in February 1843; in 11 the younger, in pursuance *thereof, which it was stated, that "as a judicial made distribution of a fund in his construction of the said will, for guidance hands as such executor, among the eight and safety of your orators, is among the children of the said Anna P. Brown; payobjects of this bill, your orators will, for ing the eighth part or share of John Burthe convenience of the court, here copy it ton, amounting to $511.25, to his counsel, in extenso," &c.; and then the substantial as appears by a report of Commissioner parts of the will are set out, in hæc verba, Poiteaux, returned and filed in the case on in the bill. An official copy of the will was the 30th day of June 1848. In Commisalso filed as an exhibit with the bill. In sioner Giles' first general report, dated the answer of John Burton, filed on the 27th September 18th, 1855, he stated the accounts of June 1845, he distinctly concurred in made out by him, upon the assumption that presenting the same question for the deci- the estate of Robert Burton the younger was sion of the court, using in his answer this distributable according to the construction language: "This defendant concurs in de- put upon his will by the decree of the Cirsiring the court to declare the true construc- cuit court as aforesaid; and there was no tion of the will of Robert Burton the exception to his report on that ground. On younger; and he prays that the executorial the 1st of March, 1859, the cause came on accounts of the said Heath, on the estate of to be further heard on the papers formerly Robert Burton the younger, may be stated, read, and the said report of Commissioner settled and adjusted, and that a decree may Giles, and the exceptions thereto, &c., when be made for the distribution of the assets a decree was rendered disposing of some of in the hands of the said executor, ac- the exceptions, but as to the rest recommitcording to the several *rights of the ting the report to the commissioner, with parties entitled thereto." On the 28th instructions. As before stated, there was of March 1848, this question, thus distinctly an appeal from this decree, which was propounded to the court, both by the bill affirmed by the court of Appeals on the 30th and the answer of John Burton, was decided of April 1864. In Commissioner Giles' separately from all other questions in the next general report, dated August 22, 1868, cause; it being recited in the decree that made in pursuance of the said decree of the "this cause came on this day to be again 1st of March 1859, affirmed on the 30th of heard on such only of the papers and plead- April 1864, as aforesaid, he stated his acings formerly read as involve the judicial counts in the same way, in regard to the construction of the will of Robert Burton distribution of Robert Burton the younger's the younger, deceased, and the apportion- estate, in which they had been stated in ment of his estate among those entitled to his former report as aforesaid; and there it under said will, and also on the report was no exception to his latter, as there had made by Commissioner Poiteaux, dated the been none to his former, report on that 8th day of June 1846, under that part of the ground. On the contrary, in the special interlocutory decree entered herein on statements annexed to the special report the 27th of June 1845, which directed James made by the commissioner at the request of E. Heath, executor of the said Robert Bur-John Burton's counsel, dated September 10 |