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the county of Fauquier during their joint lives, and Alpheus had performed these conditions, the result would be the same, without regard to the question whether the conditions separately or jointly amounted to valuable consideration.
If, in additon to the conditions to be performed by the obligee there was the further condition that the obligation should be discharged by the payment of a certain amount, the rights of the obligee, upon his performance of the condifions imposed upon him, would only be varied, so as to enable him to claim, instead of the full amount of the bond, that amount only by which it was provided that the bond might be discharged. That amount need not be stated in express words; it would be sufficient that it was so expressed as to be capable of being ascertained.
I consider it the true construction and legal intendment of the condition to be performed by John Strother in discharge tif the bond, that the obligation was to be discharged by the payment, at the death of the obligor in the manner provided, of so much as would be equal to the value of one-half of the estate, which he had the right to dispose of by will. And thus the obligee would only be entitled to that amount, which could be readily determined by simple caleulation, when the value of the estate was ascertained.
In an action of debt on this bond, the judgment would be for the ten thousand dollars, to be discharged by the payment of this amount, which had been ascertained.
It might be necessary to go into a court of equity to obtain a discovery of the estate, and to have the administration account settled so as to ascertain the amount of the estate. If so, the court would, as auxiliary to that jurisdiction, proceed to administer full relief, according to the legal rights of the parties.
In this case, the appellees did not seek the aid of a court of equity as plaintiffs. They were brought into court by the personal representative of John Strother. He acted prudently and rightly in so doing. Why should the parties now be required to go into a court of law to establish their legal rights, when the whole subject matter is within the jurisdiction of the court of equity—and to which resort would be finally necessary to enforce these rights.
It is only in the court of equity that the administration account could be settled, and the real assets subjected to the payment of debts. And its jurisdiction is the usual and far more convenient one for ascertaining the amount and value of the estate, and the allotment of the widow's dower. It would be contrary to all settled rules and the uniform practice of the court were it to fail, having all the parties before it, and full jurisdiction over the subject matter, to proceed to adjust the rights of all the parties, whether they be legal or equitable.
The objection to the court of equity proceeding in this case to administer full relief, is based upon the idea, that equity will not interfere in favor of a volunteer. But as was said by Vice-Chancellor Wigram, in Fletcher v. Fletcher, 4 Hare 74 (36 Eng. Ch. Rep.), "That proposition, though true in many cases, has been too largely stated. A court of equity, for example, will not, in favor of a volunteer, enforce the performance of a contract in specie. That it will, however, sometimes act in favor of a volunteer, is proved by the common case of a volunteer on a bond, who may prove his bond against the assets;'' exactly what is desired in this case. Again on page 76, "The rule against volunteers cannot, I conceive, in a case like that before me, be stated higher than this—that a court of equity will not, in favor of a volunteer, give to a deed any effect beyond what the law will give to it. Hut if the author of the deed has subjected himself to a liahility at law, and the legal liability comes regularly to be enforced in equity, as in the cases before referred to, the observation that the claimant is a volunteer is of no value in favor of those who represent the author of the deed."
The case of Fletcher v. Fletcher was this: Ellis Fletcher by a voluntary deed covenanted with trustees that in case John and Jacob, his two natural sons, or either of them should survive him, his executors and administrators should within twelve months after his death pay to the trustees «(i0,O(M) upon trust for such of them (John and Jacob) as should attain twenty-one, and be living at the time of his death. And if neither of them having survived him should attain the age of twenty-one, then upon trust for him, his executors, &c. By his will, dated some years after the deed, he bequeathed all his property upon trust for the benefit of his wife, his two natural sons, and three legitimate children. John died an infant. Jacob became of age in 1862. The trustees named in the deed declined to take any steps to enforce it, either at law or in equity, or to permit their names to be used, except under decree of the court, and being indemnified, and declined the trust. The executor admitted assets. Upon a bill filed by Jacob, it was held, that although the deed was voluntary, it was perfect. That the covenantor was liable at law, and the court was not called upon to do any act to protect it. And no reason being given for trying the case at law, it was retained in the court of equity, and a decree was i-ntered for the amount.
This case goes further than is necessary to support the full jurisdiction of the court of equity in the case before us.
I think, then, that even admitting this bond to be without valuable consideration, and merely voluntary, the case coming before the court in its ordinary jurisdiction ex debitojuntiti&, and not appealing to its discretionary powers, it should be retained, and full relief administered according to the legal rights of the parties.
The circuit court, by its decree, appointed commissioners to lay off the moiety of the land of which John Strother died seized for the children of Alpheus, without any regard to the dower rights of John Strotber'e widow.
This was error, even if it were a case of specific execution. For by the very terms of the condition, Alpheus could, in no event, claim more than one-half of what John Strother could dispose of by his will. He could not interfere with the widow's dower. She held by title paramount. And it is only in what remains, after satisfying her rights, that those representing Alpheus have any interest.
-John Strother, in his will, refers to debts he had paid, and might have to pay as surety for Alpheus. And there is evidence in the record of suc h payments. These debts due by Alpheus would constitute a part of the testator's estate, and would go to swell the amount, to the one-half of which those representing Alpheus would be entitled. But the amount of those debts should be charged against that share as being advances already made by the testator on account, as should also any other sums paid to or for Alpheus, which may be proved to have been intended as advances on account of the obligation.
I think, therefore, that the decree should be reversed, and the cause remanded for further proceedings.
Wingfield, P., and Mclaughlin, J., concurred.
(Supreme Court of Appeals of Virginia, March, 1880.)
Reinstatement of Causes—Remanding to Rules—Case at Bar.
At the May term, 1874, plaintiff had leave to amend his declaration, and the cause was remanded to rules for that purpose. No declaration was filed at June rules, when it should have been, and no rule then given to declare. Indeed, there seems to have been no rule book kept by the clerk. The amended declaration was handed to the deputy clerk at the September rules, 1874. No rules were taken on it, but the cause was put on the office judgment docket at the October term, 1874, when, on the motion of the defendant, the court dismissed the case, because the amended declaration had not been filed within three months from the time the leave was given, and, at a subsequent day of the term, refused to reinstate the case on the docket, and to remand it to rules for regular proceedings: held:
1. This was error. The court should have reinstated the cause, and have remanded it to rules, to be regularly matured there for the docket.
2. Even where a suit is properly dismissed by the clerk at the rules, there is no inhibition, by the statute on the court— which has control of the proceedings in the office during the preceding vacation—from reinstating it, and, for good cause shewn, it is its duty to reinstate a cause properly dismissed by the clerk at the rules.
This was an action of debt brought by Robert Alvis, assignee of Virginia Cunningham, against Philip T. Johnson,