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Virginia Bar Exam, June 1963,Day 2

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Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Virginia Bar Exam Archive Virginia Bar Exam, June 1963,Day 2 Follow this and additional works at: Part of the Legal Education Commons Recommended Citation Virginia Bar Exam, June 1963,Day 2 (1963). Virginia Bar Exam Archive. Paper This Bar Exam is brought to you for free and open access by Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Virginia Bar Exam Archive by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact VIRGINIA BOARD OF BAR EXAMINERS Ri ci:unond, Virginia June 24-25, 1963 SECTION THREE QUESTIONS 1. James Roland fiied suit in 1959 against his wife, the Circuit Court of Henry County, Virginia, seeking a vorce on the grounds of cruelty and desertion. The wife in her 'swer denied the allegations of the bill-~nd filed a cross bill lleging deser_tion by James and prayingf()~ separate-inaintenance. decree entered June 18, 1959, James r prayer for divorce was. nied_ and separate maintenance was awarded.eva_ {~; Jame~.. ~hereafter.ft Henry County and became domicil.fill in Stokes. COuntY:T:North _ rolina~- where, after being so domiciled the required~ period of. fime, he commenced a new suit for divorce. He proceedec:l by order o-f publication against Eva who did not appear or answer the. bill. Upon evidence of adultery occurring subsequent t(),tf1.~: Vir,g.-1:~~a~;. _.- adjudication of 1959, James was awarded a divoi- ce from Eva::-.;~~\Upon t-earning of the divorce in North Carolina, Eva instituteg a'new , suit in the Circuit Court of Henry county, alleged. thf,(oregoing facts, and prayed that a decree be ent~red to James. affirming her,:~m.arr_iage James demurred to the bill on the following grounds: -_-,s ; f~~ -l9 ~ --;;;Y;fa._;_-... (1) The Circuit Court of 'Henry County was with c;tit-~;:{;t Jurisdiction to affirm a marriage; and ~.r '- (2) The North Carolina decree was entitled to full faith and credit and as such binding upon the Circuit Court of Henry County. ~ How should the court rule on each ground?- 2. Flora Durr, in anticipation of divorce proceedings ~gainst her husband Will, in 1956 entered into a settlement agreement with him. The agreement provided for the payment of ~400 per month alimony to Flora beginning October 1, In the u uent divorce proceedings the court approved the contract and cree he monthly payment of $400 alimony to Flora until such as she remarried. Payments were regularly made until Will's ath in May of.1963, when such payments were stopped. Flora now asks you whether the estate of Will Durr may compelled to continue paying alimony as directed by the Court 1 s ree until her remarriage. What ought you to advise her? /\..1) Martin Manufactur+ng Co., an Illinois corporation in the manufacture of cosmetics, contracted with John Erdman to sell him its products. As a condition precedent to any extension of credit, Erdman was requir~d by Martin Manufacturing co. to secure a guaranty of future indebtedness from one substantial citizen. Erdman approached his neighbor, Wilkes, a successful.but illiterate businessman, to obtain his execution of the guaranty. Erdman falsely t_qld Wilkes that the paper tendered him was simply a statement approving Erdman 1 s character. Wilkes thereupon signed the paper which was in fact a non-negotiable guaranty promising nconditionally to pay each item of indebtedness of Erdman to Martin nufacturin~o. as it became due. Martin Manufacturing Co. :. ecei ved the guaranty agreement in due course,.; and pr_oceed to,. xtend credit to Erdman. Subsequently, Erdman became insolvent,.. and indebted to Martin Manufacturing Co. for $750 Martin Manufacturing Co. brought an action in the against Wilkes for the $ In defense of the action, Wilkes did not ques debt, but sought to avoid the obligation by pleading part of Erdman. Was this a good defense? 4. Wholesaler's Incorporated recovered a judgment against Easy Credit. A writ of fieri facias was issued thereon and placed in the hands of the Sheriff for levy, the writ being returnable on June 14, Before the return date the Sheriff made a levy on all personal property in Easy Credit's Office. Easy Credit before the levy, but after the writ had been placed in the.hands of the Sheriff, and sold to Joe Hock for $500 an antique, clock kept in the office. At the time of the sale, Hock knew..,nothing of the judgment of Wholesaler's Incorporated or of the writ of fieri facias. On June 12, 1963, the Sheriff levied on the clock in possession of Hock. May the Sheriff now sell the clock free of the claim of 5. The City of Norfolk.enacted an ordinance requiring ts residents to secure a permit to drive a motor vehicle in the 1ty and authorizing and directing the City's Chief of Police to evoke the driving permit of any driver who, in his opinion, ecomes unfit to drive an automobile on the streets of the City. ny person whose permit was so revoked was given the right to apply o the Corporation Court of the City for its reinstatement. Holt, a resident of Norfolk, secured the proper permit but was involved in several accidents, and also was convicted of speeding on one occasion. The Chief of Police, upon learning these facts, notified Holt that his City permit would be revoked. - 3 - Holt instituted a suit, seeking to enjoin the Chief of police from revoking the permit. the bill alleged that the ordinance was void and that Holt would suffer irreparable damage 1r his permit was revoked. A demurrer was filed on the grounds: (a) That Holt had an adequate remedy at law; and (b) That the court had no jurisdiction to enjoin the enforcement of the ordinance. --- How should the court rule on each ground of the demurrer? ~,' 6-. -Adam Brown, a resident of Roanoke, had his la\'vyer draft a will which he took home to consider. Several days later, he decided to execute the typed paper and pursuant to that determination he signed it. He then took the document to the local bank, called in his friend, James Carson, and the Cashier of the bank and said to them: This is my will which I have signed and I want both of you to witness it, but neither of you must read any of it~}! ~ ; Accordingly, they then signed the paper as witnesses, all three, being present when this was done, and Brown delivered it to the cashier for safekeeping. After Brown's death, the paper was offered for probate. It contained no attestation clause. The will nominated Carson as Executor. Brown's heirs at law opposed the probate of the will ori following grounds: (1) The will was not signed by Brown in the presence of witnesses. (2) The witnesses had not read the will. (3) The named Executor was incompetent as a witness. (4) The will contained no attestation clause. Which, if any, of these grounds for denying probate are 7. John Smith, using his own typewriter, wrote the document: I, John Smith, do hereby make and publish this, my last will and testament. I give all of my property to my brother, George; I regret that I can leave nothing to my only child Henry. Given under _my hand this 13th day of' January, Subscribed by the Testator and by us in his presence and in the presence of each other on the above-mentioned date. - 4 - This was fallowed by the personal signatures: William :Orown, Fr ank Green. 11 John John Smith died, leaving his adult son Henry from whom he estranged. The son consults you as to his rights, if any, to father's estate. How ought you to advise him? 8. Byron Evans wrote a valid will in 1955 which conthe following provision:.... I give and bequeath my ten.... Broadway Bank to my Trustee for the.1: en~fi.t of my. W!f'e Emma, for her life. At her death, I give and/bequeath.five shares of said stock to my friend Scrooge, and the remainder to my Children. II.. \.: ;.... ' :, ;,.,; :.; ;,. .', ::. ~ ::;.-, «,:~-;, ' (;;: ': i:~~:/'.f {?: :, ~,::::.' _,,,, '----':~''-,:::~'-,,; ~:;~ -'.~;~: c :-- ' ;, ;_ ~~:(.; -0_ 0,~}~~-,f~_;!}, ~,, ; ;_~~:;;,-o - At the time Evans wrote his will h~};posses'sed onfy''10 shares of common stock in the Broadway Bank. However} in~:':l96! the Broadway Bank merged with the Farmers Bank of Timbervill_e ~;~ The;:; ~ bank resulting from the merged banks was thereafter. knowri as the~.~ -.. Timberville Bank. That :Banlc delivered to each former stockholder of the Broadway Bank 2 shares of stock in the Timberville. Bank for each 1 share of stock of the Broadway Bank. At his death in. 1962, Byron Evans was the owner of 20 shares of stock in the Timberville Bank. (1) Upon Byron Evans' death what interest in this stock, did the Trust for Emma receive? (2) Upon Emma's death what interest in the Timberville stock, if any, did Scrooge receive? 9. Clark and Edwards formed a partnership to conduct a specialty business. The articles of partnership provided that 'lark would contribute $30,000 as capital to finance the business nd that Edwards, because of past experience, would contribute his kill and labor and manage the business. The articles were silent s to division of profits, return of capital and payment of laries. The articles of partnership were complied with and the nture was highly successful, but, unfortunately, Clark died durg its third year of operation. Edwards, without Clark's owledge, had paid himself from the firm assets $250 a month until lark's death and after the death of Clark he operated the business or several months and then sold the business as a going concern. f'ter paying all claims of third parties, the partnership had 50,000 left. The following questions have arisen: Z. c, (a) As Clark devoted but little time to the operation of business, was Edwards entitled to receive $250 a month as ensation for his services rendered prior to Clark's death? - {b) How should the $50,000 be divided between Clark's tate and Edwards? How should these questions be answered? 10. Shortly before his death in 1943, John Ames conyed Blackacre in Hanover County to Robert Thomas as Trustee for s adult children, Charles and Betty Ames, who lived in another rt of the State. The deed creating the trust was duly recorded the Clerk's O~fice of the Circuit Court of Hanover County and, ong its other provisions, it directed Thomas to manage the farm d pay the income therefrom to Charles and Betty during their ves. The de.e_d contained no provision authorizing a sale. of the rm. The farm was generally spoken of in the community as The omas Place. 11 William White, a newcomer in the area, bought part f this farm from Robert Thomas by a deed dated January 2, 1946, urporting to convey the land from Robert Thomas and Mary, his wife.'' White did not have the title examined and thought that 1'homas owned the land in his own right. In the Spring of 1963, Charles and Betty Ames vl~ited Blackacre and learned for the first time of the sale. They now consult you as to their right to recover the land conveyeq to White. Upon investigation, you find that in 1946 White promptly recorded his deed, entered at once into possession of the land and has lived on it ever since claiming it as his own. How ought you to advise Charles and Betty? * * * * * * * * *., SECOND DAY VIRGINIA BOARD OF BAR EXAMINERS Richmond, Virgiuia June 24-25, 1963 SECTION FOUR QUESTIONS 1. Hager was employed by Merchant as a clerk in his store. One day, Merchant, as he was leaving town, handed Hager $200 in cash, telling him to deposit it in the Bank to Merchant's credit as he~ad done on other occasions. Hager forgot to make the deposit and that night, having lost the money in a poker game, left for parts unknown. :i~..,,.~ A Of what offense, if any, is Hager guilty? ~~ 2. While Jones was busily watching a street performance, Sly slipped up behind him and took from his pocket $15 in money which he put in his own pocket. Sly then turned and started to leave and watchful called out, Catch that thief; he has just robbed this gentleman. Upon hearing this, Jones turned around and saw Sly backing away. Jones started toward him, saying, You've robbed me; I'll get my money back , and Sly presented a pistol at Jones, saying, If you come another step toward me, I'll kill you. Jones stopped and Sly, still covering Jones with the pistol, got into his wife's waiting automobile and fled. Of what offenses, if any, is Sly guilty in Virginia? k ~M ~ J.,t,.;,,..., c:c/~-cf' M4l ~~~ ~'~ f \/ 3. Reeves, a resident of Bangor, Maine, was appointed to the office of notary public by the Governor of that State, and he appeared before the Secretary of the State for the purpose of receiving his commission. Assume that a statute of Maine provides as follows: A notary public being required to administer oaths, no person shall be issued a commission as a notary public of this State until he shall have first declared his belief in the existence of God. 11 Reeves refused to declare his belief in the existence of God, as a result of which the Secretary declined to issue his commission. Reeves instituted a mandamus proceeding in the proper court, seeking to compel the Secretary to issue him the commission, contending~that the statute was unconstitutional as a violation of the First and Fourteenth Amendments to the Constitution of the United States. The Secretary urged that the statute was not Unconstitutional as to Reeves, because he was not compelled to hold the office of notary public. How should the court rule? The Constitution of State X required that every adult citizen be permitted to vote, subject to his qualifications vote being first determined. Boob, an illiterate beachcomber, was domiciled in State but had never been registered to vote therein. His interest in government having been awakened, Boob requested the voting registrar of his home county to register him so that he could vote the forthcoming election. The registrar read to him a portion the Constitution of State X, as follows: - Every person presenting himself for registration shall, unless incapable solely because of physical impairment, be able to read and write any section of the Constitution of this State in the English language. It shall be the duty of _each county registrar to administer the provisions of this section. Boob was unable to read or write any parts of the constitution, so that the registrar refused to register him. Boob instituted the proper proceeding in a court of State X, seeking to have the above requirement declared unconstitutional as a denial of the rights guaranteed him under the Federal Constitution. How should the court rule? ij:t\v 5. Susie Q. owns 10 shares of the common stock of Products Corp., a Virginia corporation having 987 shares of common stock issued and outstanding. The stock has a par value of $100, and Susie Q. purchased her shares in 1957, for $53 per share. As a stockholder of Cotton Products Corp., Susie received a timely notice that on June 20, 1963, a special meeting of stockholders of the corpora ti on would be held, that the purpose of the meeting was to consider a plan of merger of the corporation with Silk Goods, Inc., and that the plan had been approved by the Board of Directors of both corporations. Susie believed that the proposed merger offered very little hope of financial success, but she was reluctant to miss her appointment at the beauty parlor; so, she did not attend the stockholders meeting. The plan of merger was duly approved by the stockholders on June 20, to be effective August 1, On June 21, Susie consults you and tells you that she regrets not having attended the meeting, as she is now even more convinced that the merger is unwise. She tells you further that she wants to dispose of her stock and that other stock of the corporation was sold over-the-counter on June 19, for $86 per share. She asks you what obligation, if any, Cotton Products Corp. has to Purchase her 10 shares. What should you advise her? Excelsior Corp., a Virginia corporation, manufactures toys in its plant at Richmond. Its corporate charter provides for a maximum of 2,000 shares of common stool::. The stock currently book value of $10 per share. At the present time 1,000 shares are issued, 900 of which are owned by fifteen people, three of whom comprise its Board of Directors. The corporation holds in its treasury the other 100 shares of its issued. stock. One of the directors, Parks; an industrial engineer, ovms 200 shares of the stock, and for the yearo 1961 and 1962, he was employed by the corporation for an agreed salary, but the corporation had been unable to pay it. Parks has now resigned from his employment, and the Directors are considering hiring Thomas to replace him. Parks consults you and tells you that a majority of the Directors are further consldering (1) issuing to Parks the 100 treasury shares and an additional 500 shares of unissued stock as compensation for his services in 1961 and 1962, (2) issuing to Thomas 30 shares in consideration of his sale to the corporation of a machine he purchased in 1960 for $50, and (3) now issuing to Thomas another 200 shares for his anticipated services to the corporation for the months of July through December, Parks asks your advice as to the Board of Directors authority to perform each of these proposals. How should you advise him? 7. Moss purchased and paid the premium for an automobile liability insurance policy from Insurance Company. One of the provisions of the policy was as follows: The Insured shall cooperate with the company and, upon the company 1 s 1 equest, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. While driving his automobile, Moss collided with an automobile owned and operated by Prim. Prim instituted an action against Moss for damages, alleging that Moss had negligently caused him injuries. Insurance Company defended the action under a reservation of its rights. The trial resulted in a verdict and Judgment for Prim in the amount of $1,000. When Insurance Company failed to pay the judgment to Prim, and after execution against Moss was returned no effects , Prim instituted an action against Insurance Company, alleging that he was entitled to recover his Judgment against Moss by virtue of Moss' liability policy. At the trial of this action, Insurance Company's adjusters testified that they had first learned of the accident from Prim two days after it occurred, that Prim had supplied the names of all witnesses, that Moss declined to come to the Company's office to advise it how the accident occurred, and that it was not until the morning of the trial of Prim v. Moss that Moss gave the Company his version of how the accident occurred. At the conclusion of all the evidence Insurance Company, - 4 - over the objection of Prim, requested the court to instruct the jury as follows: If you believe from a preponderance of the evidence that Moss failed to cooperate with Insurance Company, even though you may also believe from the evidence that such failure to coope.ra te did not prejudice the company, then your verdict should be for Insurance Company. 11 Should the court so instruct the jury? 8. In 1962, Boswell, Sr., made a loan to his son, Boswell, Jr.,-in the amount of $10,000, with which.funds Boswell, Jr., purchased a farm. Boswell, Jr., executed his negotiable promissory note in that amount dated February l, 1962, payable to the order of Boswell, Sr., on February l, This note was secured by a deed of trust on the farm, which deed of trust was duly recorded in the proper clerk's office. Early in 1963, Boswell, sr., advised his son that it was unlikely that he, Boswell, Sr., would live long enough to receive payment of the note, and that he had decided to make provision for canceling it. Without telling his son what procedure he intended to follow and without surrendering the
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