78 Va. 24 | Va. | 1883
delivered the opinion of the court.
The question in this case is as to the liability of the •sureties of Wellington Goddin, executor of Henry W. Sharpe, deceased.
The testator departed this life in the year 1856, leaving a will, which was duly admitted to probate on the 12th day of August, 1856, by which Wellington Goddin was appointed •executor, and as such qualified on the 14th day of August, 1856, and entered into bond in the penalty of $20,000, with J. L. Apperson, L. B. Price and Jesse F. Keesee as his sure
The controversy in this case arises out of the seventh clause of the testator’s will, by which he gave “ to Martha Eockwood, wife of James Eockwood, and daughter of Thomas Bridgewater, deceased, $2,000, to her and her heirs forever.” Martha Eockwood died prior to the time at which said testator departed this life, leaving surviving her six children, to-wit: John Thomas, Ann Eliza, Martha Jane, Lucy Hubbard, Charles Custis and Sarah Margaret, to whom said bequest passed at the death of said testator, under and by virtue of'§ 13, ch. 118, Code of 1873.
In the year 1858 John Thomas Eockwood, one of the children of said Martha Eockwood, brought a suit in equity in the circuit court of the city of Eichmond against said Wellington Goddin, executor of said Sharpe, James Eockwood, his father, and his said brothers and sisters, of whom he alleged in his bill that Lucy H., Sarah Margaret and Charles Custis, were then infants, and the other two adults.
In his bill the said John Thomas Eockwood alleges that he is informed by the said executor “ that the estate of his testator is fully able to satisfy and pay all the legacies under the said will, and that he was only prevented from paying same promptly by reason of the question which had arisen as to whom he should pay the bequest to said Martha Eockwood.” The said executor answered said bill, and admitted said allegation of sufficiency of assets for the purpose, and willingness to pay the said legacy when it should be known to whom it was rightfully going; and the said circuit court, by a decree entered in said cause, on the 15th day of December, 1858, declared that the six children aforesaid of Martha Eockwood were entitled to the said legacy of $2,000, and decreed that the said Goddin, executor as aforesaid, should, out of the estate of the said testator,
At the time of the rendition of this decree, it appears that the appellees, who were infants, were not represented by any guardian,, and hence as to the shares of these infants no decree directing payment was made, there being no authorized hand to receive payment; but the cause was retained for such future action as might be necessary. And it appears that the cause remained on the docket until 1867, when it was stricken therefrom, with leave to any person interested to reinstate the same for good cause shown. It was so reinstated after the bringing of this suit, and ordered to be heard together therewith. This suit was brought and prosecuted as supplementary to the previous pending suit of John Thomas Rockwood v. said Goddin, executor, &c., and als., and was so treated in its decree by the court below.
By the third clause of his will the testator, Henry W. Sharpe, manumitted his slaves (naming them) and their increase. By the fourth clause thereof he bequeathed to Laura Ann, one of said manumitted slaves, $10,000. By the thirteenth and last clause said testator named Wellington Goddin as his executor, who, at his death, was to be succeeded by Augustus Bodeker, named as such successor; and in the same clause said testator expresses the desire that on the qualification of said Goddin as executor, or of the said Bodeker after him, security be required only for the protection of the legacy to said Laura Ann, and that the bond be in the penalty of $20,000.
The entire estate of said testator passed into the hands of Wellington Goddin, executor as aforesaid, in good money, long prior to the war. In fact, the bulk of it was received by him, in gold or its equivalent, prior to the year 1859; very little after that year, as appears from the Settled ac
The executor, Goddin, kept the money thus received by him, in gold or its equivalent, before the war, or so much of it as he had not paid out to other legatees, until July the 10th, 1863. He then made an ex parte application in vacation, to the judge of the circuit court of the city of Eichmond, for leave to invest the sum of $12,000, that being about the amount o£ the balance in good money in his hands; and said court, by an order made on the same day, accordingly granted him leave to invest the said sum in Confederate bonds, which he did.
Subsequently, upon the application by the appellees to said executor for payment of the amounts due them, and refusal by said executor to pay the same, they, on the 30th day of December, 1878, instituted this suit against said executor and his sureties, to recover their shares respectively of said $2,000 bequeathed to said Martha Eockwood.
The cause came on to hearing in the chancery court of the city of Eichmond, on the 28th day of October, 1880, when a decree was rendered in favor of the complainants, the appellees here, against said executor and his sureties, for their respective shares of said legacy, and from that decree this appeal was allowed.
The several assignments of error will now be noticed in their order.
I. It is contended that the true period of limitation, so far as the sureties of the executor are concerned, is five years—not ten. A mere reference to the 9th section of chapter 146 of our Code would seem to be all-sufficient to overturn this position. This section of our statute has
It is insisted, however, by counsel for the appellants, that Leake v. Leake does not correctly propound the law on this subject; and that it is opposed to the decision of the supreme court of the United States, in Lupton v. Janney, 13 Pet. 381. This is an unfounded assumption. There is nothing in the latter case in conflict with the former; though the plain inference is, from certain remarks of Staples, J., in delivering the opinion in the first named case,, that he thought there was a conflict. Lupton v. Janney was a case in which the widow and devisee of the testator, David Lupton, filed a bill, the object of which was to open accounts in a general way, rendered by the executor ex parte, and allowed in the orphans’ court of Alexandria, in October, 1816, in April, 1818, and in January, 1821; and the prayer of the bill was in effect to open the accounts, with, general liberty to surcharge and falsify. The bill did not charge that the executor had been guilty of any fraud; nor was any reason given, nor facts stated, to excuse the long delay and laches in bringing the suit. The answer denied all equity, and insisted upon the correctness of the accounts as settled, and contained a full explanation in
The cases rest upon wholly different grounds, and are governed by entirely different principles. It is true that in both, settled accounts were relied on, but under strikingly different circumstances. In Leake’s Ex’or v. Leake, as in the case now under consideration, this same executor, Wellington Goddin, relied upon the statutory bar to prevent the opening of his ex parte settlements, in which he was credited with a large sum invested in Confederate States bonds, when the money was received by him as executor before the war in gold or its equivalent. In Lupton v. Janney there was no question even remotely akin to such unauthorized investment; on the contrary, the case, as expressly declared, went off, in effect, upon the ground of lapse of time, or staleness of demand, independent of any question of statutory bar. Further on in his opinion, Judge Story, it is true, in speaking of such settled accounts, says: “ And the onus probandi is upon those who seek to impeach them. If they seek to impeach them, it should be by a suit brought recenti facto, within a reasonable time; and at farthest, within the period prescribed by the statute of limitations for actions at law upon matters of account; or else to assign some ground of exception or disability within the analogy of the statute to justify or excuse the delay.
II. The second assignment of error is that the executor was protected by the order of the circuit court of the city of Richmond, made on the 10th day of July, 1863, authorizing him to invest the fund in Confederate bonds, and that therefore the court below ought to have discharged him from liability. This’ position, too, is wholly untenable, as is settled by this court in the very similar case of Crickard v. Crickard, 25 Gratt. 410.
III. It is contended for the appellants that under the peculiar provisions of the testator’s will, the securities in the executorial bond are not liable to the appellees.
It is true the testator in his will expressed the desire
IV. It is insisted that an account should have been ordered before a decree was rendered against the executor and his sureties. This position cannot be sustained in the peculiar circumstances of this case. It clearly appears that the executor was not only properly chargeable with, but admitted assets more than sufficient to pay all the legatees, including the claims of the appellees. In such cases no account is necessary. This is well settled. McRae’s Ex’ors v. Brooks, 6 Munf. 157, and numerous cases which need not be cited. It would have been error to decree in the absence of either an account or an admission showing assets sufficient to satisfy the decree. Wills’ Adm’r v. Dunn’s Adm’r, 5 Gratt. 384; 2 Lomax Ex. 769. But in this case we have the admission of assets. Besides, the decree of the court below is founded on the accounts of the executor as settled by himself, surcharged and falsified in respect to the investment in Confederate bonds, with which the executor had been improperly credited, and this shows a fund fully sufficient in the hands of the executor, and dispenses with any necessity for an account.
V. It is contended that the other legatees should have been made parties. This is not the case. Of all the legatees, the appellees alone remain unpaid. One entitled to a legacy of an amount certain, may maintain a suit there
VI. It is contended that interest should not have been allowed on the legacies, the legatees being without a guardian in Virginia to receive it, and the executor making.no interest; and that interest should have been disallowed, during the war—the executor being in Virginia and the legatees in Missouri.
The executor took the assets into hand, held and used them, and we must presume that he made the interest; and it was his duty to have applied to the court and have the fund invested in some safe interest bearing security; if he had done so, he would have avoided all liability and the legatees would have received the interest; and he having elected, instead, to keep the money and use it, until it suited his purposes to invest, nominally, the same amount of comparatively worthless Confederate treasury notes in Confederate bonds, and in that way discharge with a trifle his just liability to his testator’s estate, must now be required to pay what he received and used, with interest.
In Templeman v. Fauntleroy, 3 Rand. 434, Judge Carr, speaking for the whole court, says: “ I think the safe and sound doctrine is, that if the party, though restrained from paying, holds and uses the money (and we must presume he uses, if he continues to hold it), he ought to pay interest, because the owner of the. debt has a right to the interest; because money is worth its interest; and if the holder does not think so, he has always the privilege of
Upon the whole case, we are of opinion that there is no error in the decree of the court below, anÜ the same must .be affirmed,'with costs to the appellees, which is ordered to be certified to the chancery court of the city of Richmond.
Lacy, J., dissented in part.
Degree apeirmed.