4 Munf. 289 | Va. | 1814
pronounced the court’s opinion as follows :
John Sfiotiswood, son and heir of Major-General Alexander Sfiottswood, deceased, made and published his last will and testament, containing, inter alia, certain devises and legacies in favour of his sons Alexander, John and Robert, and constituted Bernard Moore and others, his executors. Of the persons thus named, Moore only qualified. He also became the guardian of the two sons Alexander and John ; and having, as the bill alleges, greatly misapplied and wasted the assets in his character of executor, and greatly vio* lated his duty as guardian, he died, without having rendered any account as guardian or executor, insolvent, and without any pevsonal representative: — whereupon, this suit was brought, in the late High Court of Chapcery, by the late Alexander Sfiottswood, eldest son and heir at law of the said John Sfiottswood, deceased, and also as administrator de bonis non of his grandfather Major-General Alexander Sfiottswood, deceased, and as administrator de bonis non of his father John Sfiottswood, deceased, and by the said John Sfiottswood, son of John Sfiottswood, deceased, against the representatives of the securities of the said Bernard Moore, as guardian and executor as aforesaid, and against one of the sons of the said Moore, and the representative of another son, who was his oldest son and heir at law, seeking a discovery of assets, calling for a settlement of the accounts of Moore in both characters, and praying to subject the defendants to the payment of whatever should appear to be due, according to the respective claims of the complainants as legatees, administrators de bonis non, and as wards, and in such proportions from the defendants as to the court should seem proper. To this bi}l the defendants, demurred, assigning, as.
The case will be examined, first, in relation to the securities of Moore on his bond as executor. The argument mainly relied on by the counsel for the appellees, in support of the decree, is understood by the court to be essentially • this ; that, by the death of Moore, under the circumstances of this case, before a devastavit had been' actually fixed on him by a verdict, although a devaitavit might in fact have . been committed, the securities were discharged at law; and that' being securities, they could not be farther charged in equity than at law. To ascertain the extent and duration of the obligations and liabilities of securities for executors, it will be necessary to advert to the act of assembly requiring such securities, and prescribing the form and effect of their bonds: and it is readily admitted that these obligations and liabilities, whatever they may be, grow out of, and defend upon, the bonds so executed by them, and not upon any preexisting equitable or moral consideration whatever. The rights and interests of creditors and legatees were the objects which the legislature had in view. The confidence reposed in executors by their testators did not afford a sufficient guard. ' That confidence was often abused by executors, whose own estates were’ not always found sufficient to indemnify creditors arid legatees for the loss which they thereby sustained. As a farther indemnity against any misapplication or waste of the assets, executors are not permitted to qualify until they give bond for the faithful discharge. bf the duties of their office.
Every principle of construction applied to that act forbids such a conclusion. It is very different from the case of a joint obligation ; — for there, both parties enter into the contract, with the full knowledge of the legal principle that, by the death of one obligor, the whole obligation devolves on the survivor or survivors. But, in this case, the legislature intended to provide a perfect and permanent safeguard and indemnity for the rights of the creditors and le
But it is objected by the counsel for the appellees that several adjudicated cases
It was said by the counsel for the appellees, that the decision in Braxton vs. Winslow, was always considered as having' established the law, that, under the circumstances of that case, the creditor had forever lost his debt; and that, had the court not so considered, they would have intimated an opinion that relief might have been obtained in equity. The answer to this is, that the Special Court was sitting as a court of law, deciding a legal question, on the case, as then presented, and had nothing to do with what a court of equity might do, in a case rendered different in its circumstances by the forms peculiar to such a court. It is worthy of remark, however, that in less than three years after that decision, (in October, 1793,) Chancellor Wythe, who formed one of the Special Court in Braxton vs. Winslow, overruled the demurrers in the very case now before the court ; thereby deciding that the court of equity, in the case of a legatee, could give relief, even against securities, under the circumstances alleged to exist; and, as far as relates to the devastavit, there is no difference between creditors and legatees. As he, afterwards, in March term, 1806, sustained the demurrers, the fact of his having at first overruled them is mentioned with no other view than to repel the presumption which is said to arise from the silence of the court in Braxton vs. Winslow; for it is probable that Mr. Wythe remembered the grounds, and the extent of the decision in that case, as well in 1793, as he did in 1806,
The claim of the complainant, Alexander Sflottswood, as administrator de bonis non, is considered as standing on the same ground as that of a legatee. It necessarily involves a discovery of assets and settlement of accounts, good grounds for equitable interference; and, when the court is once in possession of the case, it may go on and determine the disputes between the parties.
The court also considers the case of Taliaferro vs. Thornton and wife, as conclusive authority to shew that a court of equity may give relief against the sureties on the guardiau’s bond. A bill in equity will unquestionably lie against the guardian himself, notwithstanding he has executed a bond on which he might also be sued at law. And if, in the case of an executor’s bond, (as is proved by Taliaferro vs. Thornton and wife,) the securities, whose responsibility cannot be brought to bear upon them until the inability of the princi
As to the propriety of joining the two setts of securities, the court is equally clear. For, wherever there is a doubt as to who is to pay, justice to all concerned requires, that the persons as to whom the doubt exists should be made parties.
On these grounds, (without deciding any other point, made in the argument, but not necessarily growing out of the pleadings,) the court is unanimously of opinion that the demurrers were improperly sustained. The decree appealed from is therefore reversed, the demurrers overruled, and the cause remanded to the Court of Chancery for the Richmond District, to be farther proceeded in.
Vir. Laws, ed. bf 1769, p 162,3.
Braxton v. Winslw Gordon’s administrator v. Frederick Justices, 1 Munf. p. 1; Catllet and others v. Carter's executors 2 Munf.p. 24.