102 Va. 260 | Va. | 1904
delivered the opinion of the court.
William A. Castleman qualified on January 23, 1854, in the County Conrt of Clarke county, as executor of the will of Jacob Isler, deceased, giving bond for fifty thousand dollars, with six sureties, including Treadwell Smith. In 1873 Champ Shepherd and others, legatees and devisees, or otherwise interested, under the will of Jacob Isler, filed their bill in the County Court of Clarke county against Castleman, executor of Jacob Isler, such of his sureties on his execntorial bond as were then living, the personal representatives of such as were dead, in-
In 1878 Annie M. Smith, one of the devisees of Treadwell Smith, deceased, filed her bill in the cause, out of which this appeal arises, asking, among other things, that the debts of Treadwell- Smith be ascertained; that they be held a charge under his will on his lands in the hands of each devisee, according to such devisee’s interest therein—these devisees having, in 1874, made partition of the lands among themselves, and each
By a decree entered October 30, 1875, in this cause (Annie M. Smith v. Treadwell Smith’s Exor., &c.,), reciting that there had been no convention of the creditors of Treadwell Smith, deceased, and no settlement, except ex parte, of the accounts of his executors; the cause was again referred to a commissioner to state and report: (1) The accounts of Treadwell Smith’s executors ; (2) An account of the debts against his estate remaining unpaid, to whom due, &c., and the priority of any liens on the estate; and (3) What real estate, of which Treadwell Smith, died seised, is subject to the payment of his debts, and, if the land of which he died seised had been partitioned among his devisees, how much of the unpaid debts was chargeable to each share.
Desponding to this decree, Commissioner Kownslar filed his report on May 22, 1897, setting forth that one of the executors of Treadwell Smith had informed him that the executors had received no funds since their previous settlement, and reporting certain debts outstanding against Treadwell Smith’s estate, including the debt asserted by A. Moore, Jr., sub. trustee, stating that this debt, as reported, was in any event due from Smith’s estate, but as he was a co-surety, in ease the amount due by any one or more of the other sureties was not paid, the liability of Smith’s estate would be increased, as it was ultimately liable for
Tbe opinion in that case, with reference to tbe motion to dismiss tbe appeal, because tbe amount decreed against each of the distributees was less than $500.00, disposes of tbe question as follows: “As to tbe point raised, it is sufficient to say, though there is not a decree against tbe administrator in form, yet in substance it is as much a decree against tbe decedent’s estate, and for tbe full amount of $768.67, then due on his bond, as if tbe decree bad been for that sum in solido, tbe apportionment being specified in the decree for mere convenience.” See also Ryan’s Admr. v. McLeod, 32 Gratt. 367, where tbe opinion by Staples, J., says that, “'upon a principle universally conceded and repeatedly acted upon by this court, lands of all tbe devisees should bear their ratable proportion of tbe debts in tbe first instance, instead of decreeing against one, and turning him around upon the others for contribution.”
It is clear from these authorities that it is well settled that where there are no assets in tbe bands of tbe personal representatives of tbe debtor, out of which a debt asserted against a decedent’s estate may be satisfied, as is tbe case at bar, it is proper to decree against each of tbe distributees or devisees for bis proportion of tbe debt, which is substantially a decree against the decedent’s estate, and tbe debt in tbe aggregate exceeding tbe
Appellants’ 1st, 2nd and 9th assignments of error raise the question, whether or not their pleas of payment, laches, and the statute of limitations, filed before Commissioner Kownslar and overruled by the court below, should have been sustained.
As to the plea of payment, the only evidence in support of it is the deposition of E. E. Smith, one of the executors of Tread-well Smith, and he does not pretend that the debt has been paid, or state any circumstances from which the presumption of payment could be drawn. When asked if he had in his possession receipts for all money paid out by him as one of Tread-well Smith’s executors, and, if not, what became of them, his answer was: “I don’t know of any receipts that I have. I lost some of my papers, and may have lost some receipts among them.” And upon cross-examination he was asked if he had ever made a settlement of his accounts as executor of Treadwell Smith, to which he replied: “I put all my accounts in the hands of Captain Nelson for settlement, and suppose it was done.” This settlement by Captain Nelson, commissioner of accounts for Clarke county, appears in the record, and shows that no credit was given on account of any payment to appellee, or on his claim. There appears-in the record a list of the debts and the order of their priority, to be paid out of the funds to which appellee was making claim, and because it further appears that he has paid one or more of the debts out of their order of priority, it is contended that all other debts having priority over those paid by appellee must be presumed to have been paid.
In answer to this contention, it is sufficient to say that if appellee has misapplied the funds that may have come to his hands, it is a matter between him and those whose funds have been so misapplied, and does not concern appellants, or affect their liability for the debt in question.
As has been observed, the will of Treadwell Smith charged his real estate with the payment of his debts, and this charge constitutes an equitable lien on the lands now in the possession of appellants, his devisees, to which lien there is no statutory bar, unless the debt is barred as against the estate of Treadwell Smith. It is true that the liability of Treadwell Smith for the debt here in question originated as far back as 1854, when he became one of the sureties of Oastleman, as executor of Jacob Isler, but as there appears no order by a court having jurisdiction of the accounts of the executor, acting upon a settlement of his accounts and directing a delivery of the estate to the distributees of Jacob Isler, deceased (sec. 2921 of the Code), no cause of action against Treadwell Smith’s estate, or his devisees, arose until the decree of November 27, 1874, in Champ Shepherd, &c., v. Jacob Isler's Exor., &c., supra, whereby it was ascertained that Oastleman, as executor, was largely indebted to his testator’s estate, and a liability fixed upon the sureties on his official bond, including Treadwell Smith, for the debt now asserted by appellee. This decree was conclusive of the question, whether or not the debt was barred by the statute as against Treadwell Smith’s estate, and determined that it was not.
In Craufurd’s Admr. v. Smith, &c., supra, it was held that the suit, if not when brought a creditor’s suit, became such by the entry of the decree therein of February 6, 1883, supra, and
Of the remaining assignments of error, a number of them relate to the action of the Circuit Court in recommitting the report of Commissioner Kownslar for further proof of appellee’s claim, but, beside the fact that appellants excepted to the reports of the commissioner, demanding further proof of the claim, they were in no way prejudiced by the cautious action of the court in allowing the fullest opportunity for proof in support of and against the claim.
Appellants further contend that the Circuit Court erred in considering the decree of November, 1874, in Champ Shepherd and others v. Castleman, Exor., &c., supra, as evidence against them; but, as has been observed, under the will of Treadwell Smith the lands in the possession of his devisees stand charged with the payment of his debts, which constitutes an equitable lien on the lands to which there is no statutory bar, the debt not being barred as against the estate of the testator, and the suit in which the decree was entered being for a settlement of the accounts of Gastleman, as executor of Jacob Isler, in which it was proper to decree against him, in favor of those entitled to his estate, and the claim asserted by appellee being founded upon a decree therein in favor of G. H. Isler, one of the distributees of Jacob Isler, under whom appellee claims, so long as
The remaining assignment of error requiring consideration is on the ground that appellee has failed to show that all parties interested under the deed of trust from G. H. Isler to E. E. Byrd, trustee, were before the court when he was substituted in the place of Byrd, as trustee. As has been pointed out, the substitution of appellee, as trustee, in the place of Byrd was in the suit of Champ Shepherd and others v. Jacob Isler's Exor. and others, supra to which Treadwell Smith’s executors were parties, and the decree is to be given full force and effect, it not having been reversed. It cannot be attacked bv the appellants collaterally. Franklin’s Admr. v. Depriest, supra.
Upon the whole case, we are of opinion that the decree appealed from must be affirmed.
Affirmed.