97 Va. 11 | Va. | 1899
delivered the opinion of the court.
She further charges that Tohe, as administrator of Beatty, has made no effort to compel Barley to refund this $3,000, to the estate of Beatty; that he has done nothing in the way of a proper administration of the estate, having returned no inventory or appraisement of the estate, and that Barley and Yohe as admr. of Beatty’s estate, seemed to be in collusion and conspiracy so that there can be no collection of Barley’s indebtedness to the estate. It is then charged by complainant that such being the case, she is entitled to recover the $3,000, with interest, due from Bailey, and that as Yohe the administrator of Beatty has not collected it or attempted to do so, she has the right to resort to a court of equity to compel Barley to pay over to her, or into court for the benefit of her husband’s estate, this sum of $3,000, with interest, realized by him on the policy of insurance which he held on the life of Beatty as collateral security for the debt paid him, Barley, by complainant. She calls upon Barley for a discovery as to what insurance he had on the life of Charles H. Beatty; what company it was in; when taken out; for whose benefit; when and how much collected thereon; by whom the insurance was effected; what indebtedness existed between him, (Barley) and Charles H. Beatty, &c.
The prayer of the bill is that Barley be required to pay the amount realized by him on the insurance policy into court, subject to the order of the court, and for general relief.
On November 11, 1895, both Barley and Yohe as admr. of Beatty answered the bill. Barley in his answer admits, or re
The charge that he had twice ■ collected the same debt of $3,000 due him from Beatty’s estate is emphatically denied by respondent Barley, and, in this connection, he says that at the time the debt referred to was paid him by complainant, he fully and elaborately explained to her, in the presence of several gentlemen, that his father, William H. Barley, on the 23d of July, 1879, took out a policy of insurance on the life of her husband and his (William H. Barley’s) partner, Charles H. Beatty, in The Equitable Life Assurance Society of the TJ. S. for the sum of $3,000, payable to Anna Y. Barley, William H. Barley, Jr., and himself, or the survivors of them; that the first two having-died the insurance came wholly to respondent, and that after the death of Beatty in January, 1892, respondent collected it.
Begp'ondent further says that this was the only insurance he
Yohe, as administrator of Beatty, in his answer, also says that it was with the consent and at the request of complainant that he qualified as the administrator of her husband’s estate; that he was 26 years of age instead of barely 21, as alleged, and had had business experience, &c.
He' also denies and repels indignantly the charge of collusion
Hpon the filing of these answers at the Hovember term of the court, 1895, the cause was continued to the December term; then to the January term, and then to' the February term, 1896, when it was heard'on the bill and answers and the exhibits therewith, and the court dismissed the bill, with costs to respondents.
In August, 1896, the complainant filed her bill of review setting forth the allegations of her original bill, the statements and admissions in the answers thereto, and all the proceedings in the cause, and alleging that the decree dismissing her original bill “ is erroneous, and ought to be reviewed and reversed for many apparent errors and imperfections, inasmuch as it appears by answer of Louis O'. Barley that the alleged beneficiaries under the policy of insurance for $3,000 had not any interest in the life of the said Oharles H. Beatty when issued, or at any
In her original bill, the grounds upon which complainant sought the relief she asked were that Barley held two separate and distinct securities for one and the same debt, due him from the estate of complainant’s husband, Charles EL Beatty, deceased; one a deed of trust on Beatty’s real estate, and the other a policy of insurance on the life of Beatty, held by Barley as collateral security for the debt secured by the trust deed; that complainant had, out of her own money, paid Barley the debt thus secured, and Barley had also collected the amount of the insurance policy, $3,000, whereby he had been twice paid the same debt, and refused to refund to appellant, or to the estate of Beatty, the amount improperly received by him on the policy of insurance.
The original bill does not allege that Barley had no insurable interest in the life of Beatty. On the contrary, it sets out a state of facts upon which Bailey is shown to have had an insurable interest in the life of Beatty, and the allegation is made upon the facts stated, that he did have such interest because of the debt due him from Beatty.
The grounds upon which appellant seeks to recover of Barley the amount realized by him on the policy of insurance on the life of Beatty, set out in her bill of review are solely that the beneficiaries named in thé policy of insurance in question had not at the time the policy was issued, or.at any other time, an insurable interest in the life of Beatty.
On a bill to review a decree on the ground of error in law, the errors must be such as appear on the face of the decrees, orders, and proceedings in the cause, arising on the facts either admitted by the pleadings or stated as facts in the decrees. But if the error be error of judgment in the determination of facts, such error can be corrected only by appeal. Rawlings &c. v. Rawlings, 75 Va. 76; 1 Barton Chancery Pr., p. 332.
The complainant neither amended her bill nor offered any evidence in support of its allegation, although the cause was continued from the November term of the court, 1895, over two intervening terms to the February term, 1896. The decree then made upon the original bill, the answers and exhibits therewith, was clearly a proper decree, and had the court below decreed the relief sought by the bill of review, it would have been the adjudication of an entirely different case from that made in the original bill.
We are of opinion, however, that the decree dismissing the bill of review appealed from ought to have shown clearly that it was done without prejudice tO' the right of the complainant to have the administrator c. t. a. of her deceased husband, Charles H. Beatty, charged with any sum which it was his duty to collect, but which he failed to collect from Louis C. Barley, on account of the policy of insurance held by him on the life of Beatty.
This court will therefore so amend the decree appealed from, and, as amended, affirm it.
Amended and affirmed.