Marshall v. Sovran Bank, N.A.

This case is before the Court upon the Demurrers filed by the defendants to Count II. Having considered the oral argument presented on June 21, 1991, and the papers in the file, I sustain the Demurrers without prejudice to the plaintiffs to file a separate action if they be so advised.

Count I properly presents a case for decision under Va. Code § 64.1-88 (1987 Repl. Vol.) to impeach a will. Count II seeks the imposition of a constructive trust on property of the decedent. An action under Va. Code Section 64.1-88 tries a single issue, the validity of the will. As the Court stated in Potts v. Flippen, 171 Va. 52, 197 S.E. 422 (1938): "for more than one hundred years, it has been settled law in this State that when a bill is filed under provisions of [predecessor to Section 64.1-88], the jurisdiction of the court is limited to try the single issue, devisavit vel non, and when that issue has been duly determined, the jurisdiction of the court in such suit is ended." 171 Va. at 59. No case is cited or found that alters this principle, and there is no compelling reason not to follow it in this case.

On this ground, the Demurrers are sustained. Plaintiffs are free to file a separate action, if they be so advised, *241and the defendants may raise any defense they may have in that action.