Robinett v. Robinett's Heirs, 19 S.E. 845

Robinett v. Robinett's Heirs

19 S.E. 845 | Va. | 1894

Fauntleroy, J.,

delivered the opinion of tbe court.

The suit was to surcharge and falsify the ex parte settlements of the administrator, James Robinett, deceased, made in his lifetime, as administrator of lezrell Robinett, deceased, and to have a full and final settlement of the administration *835accounts of the said James Robinett, administrator, aforesaid, and that the said James Robinett shall be made to account for the personal estate and money belonging to and constituting the estate of the said Iezrell Robinett, deceased, which he took charge of and converted, and for which he has never accounted. At the November term, 1886, the court entered the following decree: “This cause came on this day to be heard upon the bill and exhibits; the answer of James F. Robinett, administrator of Iezrell Robinett, deceased ; replication to the answer ; depositions of witnesses ; motion of complainants for an account; resistance of said motion by defendant, James F. Robinett; and argument of counsel. Upon consideration whereof, it is the court’s opinion that the complainants are entitled to havé final settlement of the account of James Robinett, as administrator of Iezrell Robinett, deceased; and, to this end, it is ordered that C. P. Munsey, who is appointed a commissioner for the purpose, do settle and state the account of James Robinett, administrator of Iezrell Robinett, deceased. He will take as a basis of a settlement the ex parte settlement made by James Robinett before the commissioner of accounts, and modify the same so far, only, as the proof before him is sufficient to change said settlement as to the items of surcharge and falsifications set out in the bill, or as to other items that may be set out by statement in writing filed before him by the complainants or defendant, so as to give either party notice thereof, and the same sustained by evidence ; and this cause is continued.” The commissioner, in execution of this decree, after holding the account open for a long time, made his report, and returned it to court, with the evidence and vouchers upon which it was based, and with the exceptions thereto by complainants and defendant indorsed thereon. At the April term, 1891, the court entered a decree, appealed from, as follows : “This cause came on this 11th day of April, 1891 *836to be heard upon the papers formerly read therein, and the-bills and answers which were heretofore filed in the cause, the depositions of witnesses, and exceptions thereto, and upon the report of Commissioner C. P. Munsey, filed on the-26th day of March, 1890, and the depositions taken and vouchers returned therewith, and upon the exceptions indorsed upon said report by the complainants and defendant, and the specifications of surcharge and falsification, which said record and evidence is the same considered by the commissioner in filing his report, and was argued by counsel. Upon consideration whereof, it is adjudged, ordered, and decreed that all the exceptions be overruled, and that said report be confirmed. And it appearing to the court, in said report, that James Eobinett, deceased, as the administrator, was indebted to the estate of said Iezrell Eobinett, deceased, in the sum of $1,377.56, as of the 1st day of March, 1890, and also in the sum of $33.20, as of same day, it is accordingly adjudged, ordered, and decreed that the complainants recover of the defendant, James F. Eobinett, administrator of James Eobinett, deceased, the sum of $1,410.76., to be paid out of any assets in his hands,'^with interest thereon from the 1st day of March, 1890, till paid, and the costs of this suit. ’ ’

The petition assigns error as follows : “The court erred in not sustaining, and in overruling, the said exceptions to said report, and in rendering said decree against petitioner. The court should have sustained said exceptions, and should have rendered no decree against petitioner, but should have rendered a decree in petitioner’s favor, for the large sum shown by the settled accounts to be due to James Eobinett the pleadings in the cause clearly raising the question, and the record and proofs in the cause, when properly considered, clearly entitling the petitioner thereto.” This assignment of error is utterly vague and indefinite as to everything but the proposition-that the decree is wrong, and distasteful *837to the defendant. And the exceptions indorsed on the commissioner’s report by the appellant, the overruling of which by the court is assigned as error, are wholly vague and general ; no one of them pointing out or alleging any particular error or defects, or applying or referring to any one point or part of the report, or putting the finger of the exceptor upon any particular error, — being, in substance, the failure of the court to sustain the appellant’s exceptions, and to decree in favor of the said appellant. The said exceptions denounce the report as ‘ ‘not sustained by facts, law, or reason;” as “not made upon proper or legal principles;” as “wrong and contrary to law in every particular, and it is excepted to as a whole, and to every part of it. The testimony in the case fully sustains the ex parte settlement in every particular,” etc. These are the sweeping, general •exceptions indorsed upon the commissioner’s report, which he says he made up from the testimony, and the written and printed vouchers filed before him, and upon the pleadings, ‘ ‘after a careful examination of all the depositions, pleadings, ex parte settlements, and other papers in the case.” This report, upon a careful review.and consideration of the -evidence returned with it, the court confirmed, and made the basis of the decree complained of. It was said by Judge Burks in the case of Simmons v. Simmons’ Adm’r, 33 Gratt. 451, and quoted with approval by Lewis, J., in Robinson v. Allen, 85 Va. 721, 8 S. E. 835, and by Judge Lacy in Nickels v. Kane’s Adm’r, 82 Va. 309, that “exceptions toa commissioner’s report, being in the nature of special demurrers, must specify with reasonable certainty, where these •are necessary at all, the particular grounds of objection relied on or, as the phrase is, the exceptor must put Ms finger on the error, that the opposing party may see clearly what he has to meet, and the court what it has to decide. ’ ’ In Nickels v. Kane’s Adm’r, Judge Lacy refused to consider an exception to the commissioner’s statement because the exception *838was general, and did not point out any particular defect. See 13 Va. Law J. 151; Nickels v. Kane’s Adm’r, 82 Va. 309; McGarity v. Chipman, 82 Va. 784, 1 S. E. 109; McCormick’s Ex’rs v. Wright’s Ex’rs, 79 Va. 524; Leake’s Ex’r v. Leake, 75 Va. 792.

But, even if these exceptions, indorsed by the appellant on the commissioner’s report, could be considered as in legal form, and, instead of merely assailing the report as a whole, they could be construed to specify some particular error in the report, they are wholly unsupported by the evidence before the commissioner, and returned by him, with his report, to the court.

It is disclosed in the record that the appellees were infants of tender years when the transactions in controversy occurred, and the plea of laches cannot obtain in the case. Neither the death of parties, nor the loss of evidence, renders it difficult to do justice, and all the vouchers are preserved. Lamar’s Ex’r v. Hale, 79 Va. 147; Wilson v. Branch, 77 Va. 65. We find no error in the decree appealed from, and our judgment is that it is affirmed. Affirmed.