Cresap v. Cresap

<p>1. Appeal — Limitation!—J uclgmeni.</p> <p>The date of a decree or judgment, as shown by the record, marks the poinL of time from which the statute of limitation governing an appeal from, or writ of error thereto, commences to run. (p. 584.)</p> <p>2. Widow — Executrix—Will.</p> <p>Where a widow is executrix of the will of her late husband, and claims certain real estate under the will as a devisee therein, and also claims it as her individual property upon a resulting trust, as against her husband’s estate, she may set up her individual claim to said property in a bill filed by her to construe the will, and settle the estate, (p. 588).</p> <p>3. Laches.</p> <p>Laches is inexcusable delay in asserting a right, and is an equitable defens'e, controlled by equitable considerations. To be a bar, the lapse of time must be so great, and the relation of the defendant to the right such that it would bo inequitable to permit the plaintiff to assert it, where he has had, for a considerable' period, knowledge of the existence, or might have acquainted himself with it, by the use of reasonable diligence, (p. 590).</p> <p>4. Syllabus Approved.</p> <p>Point 1 in Bierne v. Ray, 49 W. Va'. 129, and in Sayre v. Ilar-polcl, 33 W. Va. 553, approved and applied, (p. 590).</p> <p>5. Evidence — Error.</p> <p>Where exceptions to a part of an answer are sustained, and the defendant does not ask leave to amend his answer, it is not error to proceed to hear the case on the bill, and so much of the answer as is not expected to. (p. 595).</p> <p>6. Wipe’s Separate Estate.</p> <p>Where the husband buys land with the wife’s money, and with her assent, but without her knowledge or consent, takes the title to the property to himself, and such facts are established by clear and satisfactory proof; and the transaction is free from fraud against creditors, equity will treat the property as her separate estate, and establish a resulting trust in her favor, good both as against the husband and his creditors, (p. 596).</p>