87 Va. 451 | Va. | 1891
.delivered the opinion of the court.
' It appears from the record of the proceedings in the said suit, Ahat on February 12th, 1880, Joseph A. Parker was, by
1881. Feb. 12—Commissions at 5 per cent, on
$10,000—U. S. registered bond,
1882. Feb. 28—Commissions at 10 per cent, on
$2,099.96—rents,
1883. Feb. 1—Commissions at 10 per cent, on
$1,888.09—rents,
1884. Feb. 1—Commissions at 10 per cent, on
$2,036.93—rents,
1885. March 1—Commissions at 10 per cent, on
$1,959.50—rents,
500 00 209 96 188 80 203 69
195 95
$1,496—rents,
1887. March 1—Commissions at 10 per cent, on
$1,801—rents,
1888. March 1—Commissions at 10 per cent, on
$1,858.10—rents,
1885. March 1—Item of account credited to com- , mittee,
3,207 81
149 60
185 81
180 10
The complainant, Eliza Gregory, having died, the suit was revived in the name of the executor of her will, P. M. Whitehurst, the appellant; and by agreement of counsel, waiving report and all exceptions, the foregoing particulars embraced in the charges of the bill of complaint were submitted to the court for adjudication and decree; which said decree was finally entered on September 9th, 1889; and from this decree this appeal has been allowed.
The first assignment of error, is the giving of said Joseph A. Parker, committee, commissions at five per centum on the $10,000 United States registered bond—the item of $500, when it is contended, his commissions, in this particular, should have been confined to five per cent, upon the collections of interest upon the said bond. We are of opinion that this assignment of error is well taken. The said United States registered bond was not due and payable, nor was it collectable of the Government. It was not perishable; and neither debts nor other necessities of Mrs. Gregory’s large estate in the hands of her committee, required the sale or conversion of the said bond into money; and, in fact, there was no change in the security or investment whatever. The custody of the bond was attended with no risk or trouble, and in case of destruction, being a registered bond in her name, it could have been reissued, at cost of her estate, and there were safe depositories in Norfolk and Portsmouth, accustomed to store valuables, in which the bond could be (and doubtless was) stored at the
The committee stood in the relation to Mrs. Gregory which a guardian holds to his wards, and it is clearly settled that commissions are not to be allowed to the guardian upon the value of property belonging to the ward, and finally turned over to him in kind, unless where it was perishable, or otherwise be such property as the guardian might properly sell, or bonds which he might rightfully have collected, but did not; and, with the ward’s consent, paid over to him in kind as so much money. And if the guardian appear to have converted the property of the ward into money, with a view to commissions, where there is no sufficient reason therefor, commissions will be denied to him. Bank of Va. v. Craig, 6 Leigh, 437; Farneyhough v. Dickinson, 2 Rob., 582; Claycomb v. Claycomb, 10 Gratt.; 1 Minor’s Institutes, 502; 460, 2nd edition. A personal representative is clothed with power, and it is his duty, to convert the personal assets of an estate, including choses in action, into ready money, to pay funeral expenses, debts, &c. (Code 1887, secs. 2651, 2652); yet in the absence of debt due by Mr. Gregory, and of any necessities of her condition, requiring sale, and the bond being not due, uncollectable, and a safe, desirable, and permanent investment, there was no power vested in the committee, nor was there any duty imposed upon him by law, to sell or convert it—as he did not, in very fact, do. It was error to allow the committee the item of §500 upon the value of the U. S. registered bond for $10,000, over and above and additional to his commissions upon the annual interest received by him upon the said investment.
The second assignment of error is that the said Joseph A. Parker, committee, was allowed ten per centum commissions on the aforesaid items of rents received by him, aggregating the sum of §1,313.94, when five per centum upon said receipts, or §656.97 would have been reasonable and sufficient, and should have been the compensation allowed.
The whole matter of these items challenged and surcharged
The third assignment of error is the permitting the said Joseph A. Parker, committee, to have credit for $3,207.81, as of date March 1, 1885, on account of the failure of the banking house of Bain & Brother, in Portsmouth, Virginia, and thereby subjecting the estate of Eliza Gregory to the loss by such failure. At the time of the appointment of the said com mittee and of his taking possession of the estate of Eliza Gregory, the sum of $4,790.23 was on deposit to her credit in the Bank of Portsmouth, Virginia, where he allowed it to remain, on interest at six per cent., until he was notified by the said bank that they would not continue to hold the said deposit at six per cent, interest after August 1,1880; he called upon the cashier of the said Bank of Portsmouth and requested him to continue to allow six per cent, interest on this deposit, as he was chargeable by law with interest at that rate; the cashier agreed to do so, as it was a fiduciary account; but in July, 1881, he received another notice from the said bank, notifying him that only five per cent, interest would be allowed thereafter. He then saw the firm of Bain & Brother» who agreed to receive the deposit and pay six per cent, interest thereon; and thereupon the said deposit of $4,790.23 was transferred, by check dated August the 29th, 1881, to Bain & Brother, where it remained until their failure.
He made the deposit in his own name, but he had no other account in the said bank in his own name, and the members of the said banking firm and the clerks knew that it was a
We do not think this case comes within the rule of Pidgeon v. Williams’ Adm’r, 21 Gratt., 255, and Vaiden v. Stubblefield’s Ex'or, 21 Gratt., 254. The fund was kept separate, and was never checked upon except to pay expenses of the trust and by the order of the court. The committee appears to have acted in perfect good faith and with reasonable prudence. Mr. Minor, in his Institutes (4th Vol., 1243), states the law of this case: If the fiduciary deposit the money in his own name in a bank in which he has no funds of his own, he is answerable only for due diligence in the selection of the depository, and due vigilance in respect to such depository’s continued solvency. See also Parsley’s Adm’r v. Martin, 77 Va. (2 Hansbrough), 376; Cooper v. Cooper’s Ex’or, 77 Va. (2 Hansbrough), 198.
The committee, Parker, acted in good faith in the transfer and investment of this trust fund, and with the prudence and discretion which he exercised in his own affairs; and, in so doing, he complied with all the requirements of the law, and we therefore think that he is justly and legally entitled to the item of $3,207.81, as of March 1, 1885, which was credited and allowed to him by the court below, whose decree, under review, is in this particular affirmed; but for the errors aforesaid the decree complained of is reversed and annulled, and
Lacy, J., dissented.
Decree reversed.