48 Va. 36 | Va. | 1850
Henry Fairfax, of Prince William county, made his will, by which, after giving small legacies to several of his children, he gave the residue of his estate to his wife for her life, and at her death, to his son John Walter and his daughter Martha Lindsay, for their lives, with remainder to their children, and cross remainders over. Among the legacies given, was one to his daughter Sarah Ann, the wife of Dr. James Hunter, of Fairfax county, of 300 dollarsper annum, for her own private *37 use during her life, and a negro girl, Mary; and after her death, the negro girl with her increase, was to go to Mrs. Hunter's children, if she had any, and if she died without children, to the children of the testator's daughter Elizabeth.
The last clause of his will was as follows:
"I hereby nominate and appoint my wife Elizabeth and my son John Walter executrix and executor; John to qualify at the age of twenty-one years. And I appoint Benjamin Johnson my trustee; and in case of the death of the said Benjamin Johnson, I appoint John P. Philips of Fauquier county, in his place, trustee of this my last will and testament. And I hereby desire that as I have implicit confidence in them, and in their prudence, and in my trustee's honesty, and the estate owing nothing more than there is ample provision made by me to pay off, and for all legacies that I have given, by interest on stocks that will be coming in every year, to pay them off, that no security shall be required from them; but if my said wife shall marry again, then I direct that she shall give sufficient security for the true performance of the trusts appertaining thereto according."
This will bears date the 21st of September 1840; and there was added to it the following codicil:
"I further appoint Dr. James Hunter, of Fairfax county, executor to the within will, with my wife and son John." This codicil bears date the 22d of September 1846.
This paper was offered for probat in the County court of Prince William, in November 1847; and there being no subscribing witnesses thereto, it was admitted to probat upon proof that it was wholly in the handwriting of the testator.
At the June term 1848, of the County court of Prince William, James Hunter, one of the executors named in the codicil of the will, moved the Court to *38 permit him to qualify as executor of the said will without giving security. This motion was opposed by John W. Fairfax, by his guardian ad litem, and by Martha L. Fairfax, and Benjamin Johnson the trustee; and the Court being of opinion that the said James Hunter ought not to be permitted to qualify as executor as aforesaid without giving bond and security conditioned as the law directs, overruled and rejected the motion, and refused to permit him to qualify unless he would give bond with sufficient security according to law. And from this opinion and judgment of the Court, Hunter took an appeal to the Circuit court of Prince William.
The case came on to be heard in the Circuit court of Prince William in October 1848, when in addition to the transcript of the record of the cause from the County court, the appellant Hunter introduced several witnesses, by whom the following facts were proved, viz: The testator's estate was estimated at one hundred and seventy-five or two hundred thousand dollars, of which the personal estate amounted to 120,000 dollars; and he owed few or no debts. His wife had been suffering from an attack of paralysis for three or four years before his death, and died about a month after he did, between fifty and sixty years of age. The testator's son John was, at the death of his father, a minor, but would attain twenty-one years of age in June 1849. Dr. Hunter married the testator's daughter, Sarah Ann, in 1838. When the will was written in September 1840, he and the testator were not on friendly terms, and they did not visit. Afterwards, on the illness of John Walter Fairfax, Dr. Hunter was sent for, and attended him; and subsequently, attended the daughter Martha and Mrs. Fairfax. John, after his recovery, studied medicine with Hunter, and lived in his family. Dr. Hunter was represented by the witnesses, as highly respectable, and much esteemed in the county of Fairfax, where he *39 resided; and prudent in the management of his affairs. His circumstances were limited; his property being estimated at between five and seven thousand dollars; but he was entirely unembarrassed in his circumstances. The witnesses expressed the opinion, that he would not be able to give the security necessary to be given by an executor of the testator.
The Circuit court held, that by the true construction of the will and codicil of the testator, taken in connexion with the facts proved by the witnesses, the testator intended that the appellant, Hunter, should act as his executor in like manner, and on like terms as his wife and son, who were appointed executor and executrix, and were to qualify as such without giving security. The judgment of the County court was, therefore, reversed and annulled with costs; and the cause was remanded to said Court with instructions to permit Hunter to qualify as executor upon his executing his bond without sureties, in such sum as should be fixed by the Court, with the usual condition. From this judgment, John W. Fairfax applied for, and obtained an appeal to this Court. By the 30th section of the act establishing the Circuit Superior courts of law and chancery, it is declared that appeals to the said Courts shall be demandable as of right from sentences or orders of the County courts, in controversies concerning the probat of wills and letters of administration. And by the second section of the act, entitled "An act to amend the act, entitled `an act reducing into one the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and administrators,'" Supp. Rev. Code, p. 216, it is declared that when any testator or testatrix shall leave visible estate more than sufficient to pay all his or her debts, and by will shall direct that his or her executors shall not be obliged to give security, in that case no security shall be required, unless the Court shall see cause, from their own knowledge or the suggestions of creditors or legatees, to suspect the executors of fraud. The controversy in this case is one concerning "letters of administration;" and the terms in which the right of appeal from the orders or sentences of the County courts in such controversies is given, are general. No exception is made of the case *50 wherein the controversy turns on the question, whether an executor shall be permitted to qualify without giving security; and it would seem, therefore, incumbent on those who deny the right of appeal in such case, to shew, either that the law, as to such case, is repealed by some other, or that the question involved in the controversy is of such a nature as to preclude the possibility of its being properly re-examined by the Superior court. There is no suggestion that the law in relation to the right of appeal has been expressly repealed in the particular above mentioned, by any other statute; but it is urged by the counsel of the appellant in argument here, that the County court may have acted on its own knowledge or the suggestions of creditors; that such grounds of decision are from their very nature incapable of a review by the Superior court; and that the Superior court was bound to presume, in the absence of record evidence to the contrary, if so to presume was necessary in order to sustain the sentence of the County court, that the said last mentioned Court did act, either on its own knowledge or the suggestion of creditors.
This Court is, however, of opinion, that, even supposing the decision of a County court in such case, based on its own knowledge or the suggestions of creditors, were incapable of review by the Superior court, in order to deprive said Court of a right to re-examine the question involved in the controversy, it must appear from the record that the County court did proceed on such grounds. The party complaining of a sentence of the County court from which the law has given an appeal, demandable as of right, is not bound to shew to the Superior court that such sentence was erroneous, in order to entitle him to a review of it by the latter. It is enough for him to shew that he is interested in and a party to the controversy, and that he has complied with the condition of the statute providing *51 for a faithful prosecution of his appeal. He cannot be deprived of the right to have his case reheard by the Superior court, by the suggestion that the sentence or order of which he complains may have been based on grounds which, if they had been made to appear on the record, it would be seen did not admit of re-examination.
The Court is, however, further of opinion, that there is nothing in such grounds of decision rendering them incapable of review by the Superior court, when properly brought before it; that the Circuit court properly took cognizance of the appeal in this case, and was bound, upon a full view of all the questions of law and of fact bearing on it, to decide whether the executor should be permitted to qualify without giving security.
It is manifest from the record of the proceedings of the Circuit court, that the whole controversy in that Court turned simply on the question, whether the testator had by his will directed that his executor, the appellee Hunter, should not be required to give security. A question has been raised, whether the parol testimony offered on the trial of the case in the Superior Court was properly admitted. This Court does not deem it at all necessary to enquire under what circumstances and to what extent such evidence may be resorted to for the purpose of explaining the intentions of a testator; inasmuch as, whether the will and codicil be consulted alone, or read in connexion with the other evidence offered, the meaning and purpose of the testator in this case are equally manifest. The Court is of opinion that the testator did not intend that the appellee should be permitted to qualify without giving security; and therefore that the Circuit court erred in reversing the sentence of the County court refusing to permit him to qualify, except on the condition of giving bond and security. The Court is therefore of *52 opinion to reverse the sentence of the Circuit court with costs, and to affirm that of the County court.
BROOKE and BALDWIN, JS., said they thought the whole merits of the case were before the Circuit court denovo, and that the judgment of that Court was right.
