Atkinson v. McCormick

Citations

• 76 Va. 791
• 1882 Va. LEXIS 81

Syllabus

<p>1. Wills—Construction—Married women—Separate estates—Jus disponendi.—A devise in trust for the separate use of a married woman and her issue, with devise over upon her dying without issue, vests in her a trust estate in fee, defeasible upon her dying without issue. The words “her issue” are words of limitation. In the absence of expressed or clearly implied restrictions, she may charge it with debts.</p> <p>'2. Appeals.—If a bill be erroneously dismissed as insufficient in law, a . party aggrieved thereby, may, though a defendant in form, appeal from the decree of dismission.</p> <p>3, Idem.—A trustee in an assignment for the benefit of creditors, as the representative of the whole fund, may appeal if aggrieved thereby, though none of the debts secured separately amount to $500.</p> <p>4. Case at Bar.—A testator devises estate in trust for the separate use of his daughter, a married woman, and her issue, with a devise over in the event of her dying without issue, with no restrictions upon alienation. She unites with her husband in executing two bonds, which are assigned to A in trust to secure certain creditors of the obligees. Those creditors (none of whose claims separately amount to $500), bring their bill to subject her separate estate to the payment of the bonds, and make A as trustee, a party defendant. The bill is dismissed on demurrer, as insufficient in law.</p> <p>Held:</p> <p>1. She- has a trust estate in fee defeasible upon her dying without issue, and may charge it with the payment of debts ; and, having so charged it, the charge will be enforced in a court of equity.</p> <p>2. The creditor’s bill having been dismissed by the court below as being insufficient in law, A, the trustee, and representative of the entire trust fund, is aggrieved thereby, and has the right to appeal under Code, 1873, ch. 178, § 2.</p>