5 W. Va. 264 | W. Va. | 1872
This case, it appears, was heard on the bill,, answer and demurrer thereto, and exhibits. The demurrer was sustained and a decree rendered upon it, against the-appellant; from which decree he has appealed. It is evident that the object of the pleader, in attempting to raise an issue in this novel way, was, to deny the appellant’s right to-relief, on the premises, upon his own showing. But a demurrer to an answer is unknown in chancery practice, and must therefore- be regarded as surplusage; and the case is to be considered here, without regard to the demurrer, and as if it had been heard on the bill, answer without replication, and exhibits. And being so considered, the answer must be taken-
On his behalf it was ably maintained that, inasmuch as he acted in the utmost good faith in the premises and under the advice of counsel, he ought, under the extraordinary condition of the country, and the very peculiar circumstances which surrounded him at the time, to be exonerated in a court of conscience from liability.'
It certainly cannot be denied that courts of equity have always manifested much indulgence and liberality toward executors and other trustees, who have acted prudently and in good faith, in the management of the funds under their control; and many cases may be found wher'e relief has been granted against losses resulting from causes which could not be anticipated or foreseen or guarded against by ordinary foresight and diligence. But in the present case, I think the appellant, for two reasons, has failed, under the averments of his answer, to show himself entitled to the relief asked. The first is, because it is not explicitly averred in the answer (or does it otherwise appear) that he was compelled to receive the fund in controversy by the coercion of the debtor, to whom it had been previously loaned. And if not so coerced, this court has repeatedly held that a payment thus made is not a valid payment, and that the debtor might be compelled to pay the debt again, and there being no averment of the insolvency of the debtor, nor that the debt might not have been collected from him, by the use of proper diligence, notwithstanding such pretended payments, no ground for relief in this respect is shown. The second is, that the loan of the fund to the so-called Confederate Government, if conceded, as claimed, to have been made in good faith (if, in a legal sense, it could be so), was, per se, wholly illegal, and tending directly to aid the Confederate authorities in their effort to subvert the government of the United States. And the books furnish no instance, where a trustee or other fiduciary has been excused or exonerated from liability or loss resulting from their own acts, which were in themselves not only illegal, but in contravention of the public policy of the government.
The first is, that the decree should not have been against the appellant personally, but only de bonis testatoris. There can be nothing in this objection. No such question was raised in the court below. But it was admitted that the amount of the legacy remained in the hands of the executor after the payment of the debts against the estate; and he claimed relief against the payment of it only because of the loss of the funds, occasioned by the late rebellion.
The second objection is, that the debt and interest ivas aggregated and interest given from a certain day, when the legacy to the appellees was not' to be had until after the death of Mrs. William C. Bowyer. The bill alleges that said Bowyer died on the 2d of January, 1864. In the appellant’s answer to the bill, he says that he offered to pay over the legacy to the appellees, in Confederate money (which they refused to receive), soon after the death of said Bowyer; and that afterwards, under the advice of counsel, he invested the funds in Confederate bonds, by depositing the same with John Withrow, a depository of the Confederate government, and took his certificate of deposit therefor, which is filed as an exhibit of the answer. This certificate bears date on the 24th of March, 1864, and I think, therefore, we ought not to assume here that the circuit court erred in giving interest from the 2d of January previous.
The remaining objection is, that it was an error to decree against the appellant without requiring the appellees to execute to him a refunding bond before he should be compelled to pay over the money.
It appears that the appellant qualified as executor under the will óf Malinda A. Bowyer in 1854, and that his accounts were finally settled before a commissioner, in 1860, ten years before the commencement of this suit, and that the amount of this legacy and much more was then in his hands» and the amount of said legacy so remained; and there has been no suggestion of any debts existing against the estate of the teátator, nor want of assets to pay the legacy in contro
I can see no error in tbe decree complained of, and tbink it ought to be affirmed with costs and damages.
Decree affirmed.
