11 Gratt. 724 | Va. | 1854
delivered the opinion of the court.
The questions which arise in this case are: First.
Proceeding to consider the other questions in the order above stated, let us enquire :
First. Whether a court of chancery has jurisdiction of the case?
Formerly, in England, suits for legacies were generally brought in the ecclesiastical courts. But they are now rarely brought in those courts, on account of their not possessing adequate jurisdiction to afford complete relief in most cases. 2 Rojier on Legacies 1792. From the time of Lord Chancellor Nottingham, if not from an earlier period, courts of equity have exercised concurrent jurisdiction of such suits with the ecclesiastical courts. They now exercise jurisdiction, in many cases in exclusion of those courts:
An executor may certainly agree to dispense with a refunding bond, and to pay or deliver the legacy to the legatee, or hold it for his benefit; and in the latter case, the legacy -would in effect be paid or delivered to the legatee: the executor holding the subject as his agent, and the possession of the agent being that of the principal. In- such a case the remedy of the principal against his agent would probably be at law, and not in equity. But to create such a case the evidence of intention to waive the right to require a refunding bond should be very clear. An executor may be willing to assent to a legacy, and even to hold
Applying these principles to this case, it is unnecessary to enquire whether the executor Nelson ever assented to the legacy of the slaves in controversy; as there can be no doubt that he never parted with the possession of them as executor, nor waived his right to require a refunding bond. Upon this ground, therefore, I am of opinion that a court of chancery has jurisdiction of the case. Whether it has jurisdiction upon any of the other grounds relied on in the bill, is a question which need not be considered.
Secondly. Did the said slaves belong to the estate of Jesse Cornwell, instead of to Constance Cornwell, at the time of her death?
The appellant contends that she sold Juba, who belonged to the estate of her husband Jesse Cornwell, and bought Prudence or Prucy with the proceeds; intending to substitute the latter in place of the former: and that whether she so intended or not, the legatees in remainder of Jesse Cornwell had a right to claim Prudence and her issue as having been acquired by means of a trust fund to which they were entitled: or at all events, that these slaves were liable for the debt due by the testatrix for the proceeds of the sale of Juba.
If the case be considered without reference to the record of the suit before mentioned, and the deposi
In regard to the additional evidence afforded by the record and depositions in the suit aforesaid : I think it is at least questionable whether the appellee ought not to have been a party to that suit; and not having been so, whether the record and proceedings therein are admissible evidence against him. I also incline to think that even if the record be admissible, the depositions copied therein are not properly a part thereof. They all appear to have been taken by the commissioner and returned with his report which was recommitted; and before another report was made, there was an order of reference in the suit, an award, and
It is contended, however, that if she was entitled' to the slaves they were at least liable for the proceeds of the sale of Juba, as a debt due by her at the time of her death. If any such debt ever existed, it has, I think, been fully satisfied. Though entitled to a life estate in all the property of her husband, and though she survived him twenty years, she appears long before her death to have made large advances of slaves and other property to most of her children. As early as 1810, fifteen years before her death, she had made advances to one of them, Lydia Hoff, in full of her interest in the estate. She was one of the four distributees of her deceased son Gustavos, who, besides his own share of the estate, claimed to have purchased the share of his sister Haney Brockley ; on account of which two shares, nothing had been advanced. She left some other estate, besides the slaves in controversy and her interest as distributee aforesaid, which came to the hands of her executor Helson, and on account of which a balance of two hundred and thirty-eight dollars and seventy-three cents was found to be due by him on the settlement of his administration in 1836. The legatees in remainder have received the benefit of that balance, and of her interest as distributee of her deceased son; which, saying nothing of the
Thirdly. Is the claim of the appellee concluded by the- award of 1829, and the award, decree and other proceedings in the suit aforesaid ?
I do not understand it to be now contended that the award of 1829 is conclusive; or that it can have any effect upon the case. Neither-the appellee, nor Nelson the administrator of Jesse and executor of Constance Cornwell, was a party to the submission. The award was void, even for matter appearing upon its face; was not acted upon or executed by any of the parties; was expressly repudiated by some of them; and was claimed to be enforced by none of them, except Kitty Cornwell, who attempted to set it up in her suit brought in 1835. It may therefore be dismissed from further consideration.
Then, as to the effect of the award, decree and other proceedings in the suit aforesaid: In the argument of this case, the question was raised and discussed, Whether the slaves in controversy were disposed of, or intended to be disposed of by that award and decree ? The counsel for the appellant maintained the affirmative, and the counsel for the appellee the negative, of this question. The award itself has been lost; and the decree is merely for certain sums of money in pursuance of the award. The contents of the award can only be conjectured, or inferred from the pleadings and proofs in the suit. The slaves are not expressly named in the bill; the main object of which was to recover the slaves Betsy and her children claimed to have been advanced to the complain
The lowest estimate which was put upon the value of these slaves -in 1838, when the commissioner’s report was made, was one thousand seven hundred and twenty dollars. They seem to have increased rapidly in value after that time until 1850, when they were valued at about five thousand dollars. What was their value in 1843 when the award was made, or in 1844, when the decree was made, does not appear, though it probably much exceeded the value in 1838. Setting down the value only at one thousand seven hundred and twenty dollars, and deducting from it six hundred dollars, which is the highest estimate made of the expense of keeping the slaves over and above their hires while they were in the hands of Nelson prior to 1S38, a balance would remain of one thousand one hundred dollars, which is the lowest sum with
This evidence of the contents of the last award is altogether too vague to conclude and defeat the claim of the appellee; and I think the Circuit court was right in the opinion that “ the slaves were left unaffected ¿and undisturbed by the said decree, in the hands of Thomas Nelson the executor, who held the same until his death.”
I also think the Circuit court was right in the opinion that, even if the award and decree were as contended for by the appellant, “ they were produced as the consequence of an improvident submission to arbitration of the interests which the said Nelson was holding as executor of Constance Cornwell
It is stated in the petition for the appeal, that this case is believed to be the first instance in which an executor, acting bona fide, has been held responsible for an award under a submission made by him. And it was argued by the counsel for the appellant, that so unreasonable a doctrine ought not to be sustained.
It would be difficult to maintain that the executor acted bona fide in this case in making the submission, if the award was in pursuance thereof, and the effect of it would be to conclude the claim of the appellee to the slaves, and invest the executor individually with the absolute ownership thereof. The circumstances under which the submission was made have been already sufficiently stated.
But is it true that an executor or administrator will be responsible for a devastavit in no case in which he acts bona fide in making the submission ? In a case decided in 15 Elizabeth, and reported in 3 Leonard 53, it was held that an executor may as ■ such submit to arbitration. But if the arbitrators do not award as
The reason assigned for the doctrine in the case in Leonard, was that the submission was the executor’s own act. While he has the power to submit, as a
The result of its application to this case is that the appellee is entitled to recover the slaves in controversy, notwithstanding the award, if he has shown that he would have been so entitled if no such award had been made; and that he has so shown, I think sufficiently appears from what has already been said. The award and decree thereon may, therefore, be put out of the case, and the only remaining question is :
Fourthly. Whether the claim of the appellee is con-' eluded by the act of limitations ; or by acquiesence or laches on his part.
The claim is certainly not barred by the act of limitations. The executor never held the slaves adversely to the appellee, at least before the decree of 1844, and this suit was brought in 1847. Nor is it concluded by acquiesence or laches on his part. He left the state in 1828, two years before he arrived at age, and was not heard of for many years thereafter. It does not ap
I think there is no error in the decree, and that it ought to be affirmed.
Daniel, J. dissented on the last ground stated in the opinion of the court. He thought the appellee was barred by his laches.
Decree affirmed.