Leavell v. Grasty
Leavell v. Grasty
Opinion of the Court
delivered the opinion of the court.
This is an appeal by the guardian ad litem of the infant children of Lucy B. Leavell (who was the daughter of W. H. Browning, deceased) from a decree of the Circuit Court of Culpeper county, appointing a special commissioner to borrow $5,000 for five years (interest payable semi-annually) to be secured by a deed of trust on the
The debt of Mrs. Grasty constitutes a charge both on the life estate of Mrs. Leavell and the estate in remainder of her infant children, and should, therefore, be borne proportionately by both. Yet in the circumstances detailed the result of the proposed arrangement would enure to the benefit of the life tenant (especially if the interest were not paid) at the expense of the remaindermen. The debt must ultimately be paid out of the estate, and it is to the interest of the infants that such payment shall be made as soon as practicable, in order that the life estate may bear its due proportion of the common burden.
In the absence of some provision in the will on the subject, we know of no authority, either in executors or the court, to borrow money on the faith of a decedent’s estate to pay debts.
This case is wholly different from that of Shirley v. Kirby, 110 Va. 455, 66 S. E. 40, 135 Am. St. Rep. 949, and that line of authorities relied on to affirm the decree. In that case the powers exercised by the trustee were in pursuance of an express trust created by the will; and, as the evidence plainly showed, were essential to preserve the mansion house from total ruin.
Reversed.
Reference
- Full Case Name
- Leavell & Others v. Grasty & Others
- Status
- Published
- Syllabus
- 1. Executors and Administrators — Power to Borrow Money — Pledging Estate. — In the absence of any provision in the will on the subject, neither the executors of a will, nor the court, have any authority to borrow money on the faith of a decedent’s estate to pay his debts. If a debt is a charge upon both a life estate and the remainder in land, it should be borne proportionately by both.