104 Va. 587 | Va. | 1905
delivered the opinion of the court.
In 1890, Rudolph Turk died testate, appointing W. A. find R. S, Turk his executors. By his will, he directed that all his just debts and funeral expenses be paid as soon after his death as practicable, and, after making two .specific bequests, and directing how the residue of his estate was to be divided among his two sons then living and the widow and daughter of a deceased son, empowered his said executors to sell all of his
In September, 1891, W. A. Turk and R. S. Turk, in their own right and as executors, as aforesaid, instituted this suit of “Turk’s Ex’ors v. Turk’s Creditors," the scope and object of which was to convene all the creditors, known and unknown, of the said testator and to settle and distribute his estate under the direction of the court.
At the time of Rudolph Turk’s death the appellee, Mary E. Ritchie, nee Shifflett, a daughter of Q-ivens Shifflett, now also deceased, held a bond dated November 20, I860-, for the penal sum of $5,183.60, conditioned for the payment to David Eultz, her trustee, one day after the death-of said Givens Shifflett, the sum of $2,591.80, in which Givens Shifflett was principal and the said Rudolph Turk and one D. Bashaw were sureties, which bond was secured by a deed of trust executed by Givens Shifflett to David Eultz, trustee, on a certain parcel of land owned by Shifflett, situated in Augusta county. Givens Shifflett died on January 14, 1894, whereby the said bond became due and payable on the following day, January 15,1894; and in May, 1894, Mary E. Ritchie filed her hill in equity in the Circuit Court of Augusta county, in which her husband united for conformity, under the short style of Ritchie and wife v. Shifflett’s Admr, et als, to enforce payment of said bond, and to that end to have the deed of trust securing the same enforced. The parties made defendant to this bill were the administrator, widow and heirs at law of Givens Shifflett, deceased, R. S. Turk and W. A. Turk, the executors of Rudolph Turk, deceased, D'arwin Bashaw, and the executor of David Fultz, deceased, who was trustee for Mary E. Ritchie, and as such held the naked legal title to the land conveyed in the deed of trust.
That cause was referred to a master commissioner, who filed his report, to which there was no exception, showing that Givens
Dfiring all this time the suit of "Turk’s Ex’ors v. Turk’s Creditors,” was pending and undetermined, in which there had been several decrees of reference to a master commissioner to ascertain and report the debts outstanding against the estate of
On November 24, 1899, a decree was entered bringing the cause on for hearing on said petition and directing Commissioner Nelson, to whom the cause then stood referred, to report on the matters set up in said petition in addition to the matters called for in the previous decree, and in response to that decree Commissioner Nelson filed his report December 15, 1900.
Flora this report it appeared, inter alia, that R. S. and W. A. Turk (who had procured their bonds to the estate for $11,074.64 to be cancelled), were inbedted to the estate in their executorial capacity in the sum'of $1,142.30, as of December 13, 1900; that the distribution account, as stated by Commissioner Wad-dell, should be reduced to meet additional indebtedness; and that there were outstanding against the estate debtá due to P. D. Byerley, Mary E. Ritchie and Jas. O. Hobbs, stating the amount of each; the debt reported as due to Mary E. Ritchie being subject to credit for such amount as might be realized from D: Bashaw’s real estate. By an addendum to this report, filed November 12, 1902, Mary E. Ritchie’s debt is restated, allowing credit for the sums realized on the debt from Bashaw’s estate, and ascertaining the balance of the debt to be paid from the estate of Turk.
Upon the hearing of the cause on said report and the exceptions of Turk’s executors thereto, the court by its decree of June 26, 1903, overruled the exceptions, confirmed the report and adjudged that the estate of Rudolph Turk was indebted to P. D. Byerley in the sum of $196.54, with interest on $144.52, part thereof, from December 15, 1900; to Mary E. Ritchie in the sum of $2,302.22, with interest on $2,279.34, part thereof, from the 1st day of November, 1902; and to J. O. Hobbs in the sum of $182.40, with interest on $100.00, part thereof, from the 13th day of December, 1900; that said debts consti
From this decree R. S. Turk, in bis own right and as surviving executor of R. Turk, deceased, and administrator of W. A. Turk, deceased, obtained an appeal to this court.
No grounds for reversing tbe decree with reference to tbe debt of P. Di Eyerley, contracted by tbe executors of Rudolph Turk, deceased, in preserving tbe property of tbe estate, is assigned' in tbe petition for this appeal nor pointed out in tbe argument here, and therefore we are not called upon to consider tbe decree in that aspect.
With reference to tbe debt decreed to J. 0. Hobbs, we deem it only necessary to say, that until tbe report of Commissioner Nelson, filed December 15, 1900, reporting inter alia tbe debt due to Iiobbs, tbe decrees of reference theretofore entered directing inquiry and report of tbe debts outstanding against Rudolph Turk’s estate were never fully executed, and the data arrived at whereby an accurate account could be made for tbe final distribution of tbe assets of tbe estate; therefore it was until then entirely proper for Commissioner Nelson to report any outstanding valid debt against tbe estate, and for the court to decree its payment.
The .attack upon so 'much of tbe decree appealed from as settled tbe right of appellee, Mary E. Ritchie, to recover of Turk’s estate the balance due her on tbe Shifflett bond, is made substantially upon three grounds: (1) That tbe decree of May 16, 1895, in Turk’s Executors v. Turk’s Creditors, was a final decree, and a creditor of tbe estate was thereby precluded from coming into tbe cause and asserting a demand against tbe estate;
■ ■ There 'is not, as we view - it, an element of finality in the decree of May 16, 1895. The report of the master acted on in •the decree did’ not purport to be a final finding as to the debts outstanding against Turk’s estate, but only a partial statement of the accounts and matters necessary to a winding up of the estate. Nor does the decree confirm the report except as to certain spécifíc findings, and recommits the cause to the master 'to táke a further account of the transactions of the executors, and,"“if possible to make an accurate distribution between the ’residuary legatees,” thus leaving the assets of the estate still under the control of the court, liable for the payment of any Valid debts against the estate which might be reported under the 'unexecuted decrees of reference made in the cause, and which were not fully executed, as we have remarked, until the report of Commissioner Nelson filed December 15, 1900.
The contention of the learned counsel for appellant touching the validity of the decree in favor of appellee and against the executors of Turk, entered in the suit of Ritchie and wife v. Shifflett, &c., and asserted in this cause, is, not that the court entering the decree did not have jurisdiction of the subject ■matter of the litigation in that cause and of the parties interested therein, but that the court transcended its jurisdiction in decreeing, upon the pleadings, in favor of appellee against the executors of Turk for the balance ascertained to be due her on the Shifflett- bond. In other words,, that the bill filed by appellee in that cause contained no intimation of the assertion of any claim against Turk’s estate, and therefore the court was without jurisdiction to enter the decree in question.
The bill, upon which the decree was made, fully sets forth
Plainly the bill charged a liability upon the sureties of Givens Shifflett, as Avell as npon his estate, which the plaintiff Avould have enforced if the estate of the principal and the land specifically bound for the debt proved insufficient, Avhereby the sureties or their personal representatives Avere put on notice of, the liability asserted against them. Therefore, the granting of the decree over against the executors of Turk for the balance ascertained to be duo to appellee on the claim asserted, after exhausting the estate of the principal debtor, Avas not inconsistent with either the case made in the bill or the prayer for special relief, and Avas entirely proper under the prayer for general relief. 1 Bar. Chy. Prac. (2nd Ed.), 281-2; Walters v.
In Beverly y. Rhodes, supra, the bill was filed against the personal representatives of the principal and sureties in tho bond sued on, and merely set out the execution of the bond, its assignment to the plaintiff, the qualification of the personal representatives of the deceased obligors; that they left estates, real and personal, out of which the plaintiff’s debt should have been paid, and tho personal representatives of the deceased obli-gors were made parties defendant, the special prayer of tho bill being that the payment of the debt demanded be enforced, and to this end that all proper accounts might be taken, and concluded with the usual prayer for general relief. Upon a final hearing of the cause the decree was against the defendants for the amount of the debt, to be paid de bonis iestaloris, and against Jas. B. Beverly, personally, who was the executor of William Beverly, one of the deceased sureties who had left ample estate to pay his debt, and whose estate had been fully administered in another suit to which the plaintiff in Beverly v. Rhodes, was not a party. From this decree Jas. B. Beverly appealed, and insisted that the Circuit Court erred in not dismissing the bill on demurrer, because the plaintiff had an adequate remedy at law and no pretext for coming into a court of equity; and further that the plaintiff’s action ivas nothing but an ordinary action upon a plain bond, and her bill nothing but a declaration, wherefore, even if the court was of opinion that it had jurisdiction of the case made, it ought to have submitted the questions of payment, laches, etc., to a jury. But this court held otherwise, and affirmed the decree of the Circuit Court, upon the principle applied in the .authorities just cited, and which are in
The decree asserted by appellee in this cause, being a valid decree, settled all questions as to the validity of the debt claimed by her, and that the debt was not barred by the statute of limitations when the decree was made. Brewis v. Lawson, 76 Va. 36, and authorities cited; Smith v. Moore, 102 Va. 260, 46 S. E. 326. In fact it is not contended that the debt was barred when the decree in question was entered, but that as appellee did not assert her right to recover of the estate of Turk on the bond of Givens Shifflett until July 15, 1899, five years and six months after January 15, 1894, when her cause of action thereon accrued, her demand is barred by the statute (sec. 2920 of the Code of 1887), which is as follows:
“Limitations of personal actions generally. — Every action to recover money which is founded upon an award, or on any contract, other than a judgment or recognizance, shall be brought within the following number of years after the right to bring the same shall have accrued . . . ; provided, that the right of action against the estate of any person hereafter dying, on any such award or contract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the qualification of his personal representative, or if the right of action shall not have accrued at the time of the decedent’s death, it shall not continue longer than five years after the same shall have .accrued.”
The decree for this liability on Turk’s estate, rendered on the 10th day of December, 1895, is asserted in this cause on the 15th day of July, 1899, three years and a half afterwards, while the cause was not only still pending and undetermined
It will be observed that appellee is not asserting in this cause a demand on the original cause of action — the Shifflett bond which became payable January 15, 1894 — but the decree of December 10, 1895, into which the right of action on the original demand was merged, and, as we have said, that decree is conclusive of the question whether or not the debt was barred by the statute as against Turk’s estate; therefore, the plea of the.statute, interposed by Turk’s executors, was rightly overruled.
There is no ground whatever for complaint on the part of Turk’s executors, or residuary legatees, that appellee first prosecuted her suit of Ritchie and wife v. Shifflett, &c., the result of which was to exhaust the assets of Shifflett estate, to secure a large contribution from the estate of Bashaw, the other surety of Shifflett, and thereby to reduce the liability of Turk’s estate for appellee’s demand to the minimum; wherefore appellant’s defense of laches is wholly unavailing.
In the able arguments of counsel, other questions were raised and elaborately discussed, but in the view taken by the court of the case it becomes unnecessary to consider them.
The decree of the Circuit Court is affirmed.
Affirmed.