27 S.E. 427 | Va. | 1897
delivered the opinion of the court.
In the year 1875 the appellants, who were the complainants in the court below, brought suit against the administrator of
The court ordered the account to be taken and settled by one of its commissioners, who did so, and reported it to the court. Exceptions being filed to the report by both sides, it was recommitted. Several settlements of the account were made and reported to the. court from time to time during the two years the cause was pending, accompanied by various alternate statements presenting the diverse views of the parties with respect to the matters in controversy. At the April term, 1877, of the court both sides appear to have been ready for the argument of the questions at issue. During the term, and before the hearing of the cause, the several reports made of the settlement of the account of the guardian, with the exceptions thereto, were carefully examined and considered by the counsel of the complainants, and by their advice the complainants tendered in writing to the administrator of the guardian a compromise of the matters in litigation, which he accepted. The court entered a decree approving and ratifying the compromise, and decreeing in accordance therewith, and thereupon ordered the case to be stricken from the docket.
A further compromise was made on September 8, 1879, by the complainants with John E. Perkinson and the executor of E. W. Epes, deceased, the said Perkinson and Epes being sureties on the bond of the guardian, by which Perkinson and the estate of Epes were released from all liability on the bond of the guardian, and especially from all liability for the amount decreed against the administrator of the guardian at the April term, 1877, in pursuance of the terms of the compromise then made, and by which the complainants at the same time also removed all obstacles to the subjection of the entire estate of the guardian to the payment of their claims.
It would not be practicable within the limits of an opinion to review at length the evidence contained in the record. It must suffice to say that it wholly fails to show that the compromise was induced by fraud or any misrepresentation or concealment on the part of the administrator of the guardian or his sureties, or that it was entered into under a mistake by the parties of any material matter. Its object and intent was to satisfy and forever settle the entire liability of the guardian and his sureties to complainants, and it was so understood by all the parties. The evidence strongly tends to prove, if it does not conclusively show, that the particular debts alleged to belong to the wards, and charged to have been unknown to the parties at the time of the compromise, and therefore claimed not to have been embraced by it, were, so far as the guardian was liable for any of them, duly accounted for to them, with the exception of the Bland debt; and this debt, the evidence tends to prove, would have been long ago collected by the original counsel of the complainants but for their action.
The objection made to the reading of the deposition of Col.
The guardian was dead. The greater part of the record of the court in which he had qualified had been destroyed, including all the ex parte accounts settled by the guardian, and such of the records as had not been destroyed were in great confusion. The complainants, when they employed counsel to sue the estate of their guardian and his sureties, could give him but little, if any, information of the standing of the account of the guardian, and he could only obtain from the commissioner who had settled the ex parte accounts of the guardian the rough drafts of some of them, but, on applying to the administrator of the guardian for information, he was furnished with every facility, and given full and free access to the books and papers of the guardian. Nothing was withheld from him or the complainants. All the information possessed by the administrator in regard to the matters in controversy was cheerfully furnished to the complainants and their counsel, and all other sources of information were as open and accessible to them as to the administrator.
The compromise was not entered into until every effort had been made to ascertain the extent of the liability of the guardian to the complainants by settlements made by a commissioner of the court, and after the several reports of the account returned to the court by the commissioner, and the various alternate statements accompanying them, and presenting the matters in controversy from different standpoints, and the exceptions taken to the reports by both sides, had been carefully examined and considered
Upon a survey of the whole case as presented by the record, we are satisfied that the action of the circuit court in dismissing the bill of the complainants was plainly right. The decree appealed from must therefore be affirmed.