76 Va. 48 | Va. | 1881
delivered the opinion of the court.
Edmund Townes died in January, 1861. By his will, after making an inconsiderable legacy to his son, William H. Townes, he gives and bequeaths to his other six children (naming them) the balance of his estate, both real and personal—his wife, if she should survive him, taking what the law allows her. His will then proceeds: “I desire that all my just debts may be paid as soon as it may be convenient. The land I own in Mecklenburg county, Va. (which is described), I wish sold, and all property upon it, except the negroes, upon such terms as my executors may deem most advisable.” He appoints Edward A. Rawlins and his son Joseph Townes his executors. He owned the half of a tract of land in North Carolina, on which he resided, and his wife owned the other half. He recommends
Edward A. Rawlins qualified in Mecklenburg county, Virginia, as his executor, in June, 1861, when the will was probated, and undertook the execution of the will in Virginia. About the same time Joseph Townes qualified as executor in Granville county, North Carolina, where the testator resided and had a large estate.- It does not appear that Rawlins had anything to do with the management of "the estate in North Carolina, or Joseph Townes with that in Virginia.
On the 24th of December, 1861, the executor (Rawlins) caused an inventory and appraisement to be made of the estate of his testator, real and personal, in Mecklenburg county, Virginia, which was returned to the county court of said county and recorded. The appraisers are characterized by the commissioner as wealthy and intelligent gentlemen of the neighborhood. The land was valued at $10,000, the negroes at $7,950, and the whole property, real and personal, at $21,410.15. From which deduct the land and negroes, and it leaves $3,460.15 as the value of all other property.
The land and personal property directed by the will to be sold was sold in November, 1862. The land sold for $12,000—one-third cash, and the balance in two equal annual payments. He collected the cash payment and one of the deferred payments in Confederate money, which he applied in payment of debts and expenses of administration as far as it was needed for that purpose, and the balance he distributed amongst the legatees. He settled his accounts regularly before a commissioner, which were returned to court, and no exceptions being made to them,
This suit was brought by Wimbish and wife, the appellants, the wife being a. daughter and legatee of the said Edmund Townes, deceased, after the death of E. A. Eawlins, the executor, in January, 1875, against George P. Tarry, executor of E. A. Eawlins, deceased, to surcharge and falsify said settlements, and for the distribution of so much of the estate as they alleged was in the hands of Eawlins at his death.
The same plaintiffs also filed their bill in chancery against the said Tarry, executor of Eawlins, who was guardian of the female plaintiff, to rescind a settlement which had been made by the said guardian with his said ward, after she had attained full age, and to cancel and annul a bond which she had executed to him pursuant to said settlement, and to recover what might be due the said female plaintiff upon a proper settlement of the guardianship accounts.
Accounts were ordered and taken in both cases, and the causes coming on in vacation, by a consent order entered of record together on the 1st day of April, 1878, on the papers formerly read, on the report of Commissioner W. T. Atkins, filed 14th of November, 1876, and exceptions thereto by complainants, the court was of opinion that there was no error in the said report of Commissioner Atkins, overruled all the exceptions thereto, and confirmed the same.
In July following the plaintiffs filed a petition to rehear said vacation decree confirming Commissioner Atkins’ report, and to reopen the case. And on the 6th day of July, 1878, the court entered a final decree refusing to rehear the causes, and to review its vacation decree aforesaid, and made distribution of the fund in the hands of the executor amongst the legatees of Edmund Townes, and decreed against the appellants in favor of E. A. Eawlins, deceased,
The settlements assailed by the plaintiffs’ bills are made the basis of the accounts taken by the special commissioner as aforesaid, and the court below was of the opinion that the plaintiffs had wholly failed to successfully surcharge and falsify the same.
Those settlements were properly taken to be prima facie correct, and the onus was on the plaintiffs to repel that presumption, by showing that they were not correct. It was not sufficient to allege surcharges and falsifications, but it was necessary to prove their allegations.
' We deem it unnecessary in this opinion to review the exceptions in detail taken to those settlements, or to the reports of the special commissioner, or the proofs or reasons urged either pro or con. We deem it only necessary to say that we think it appears from the record that the executor acted in good faith in all his transactions, and with a view to the advantage of the estate; that he managed the estate as well, in all probability, as it could have been done under the circumstances, and that the plaintiffs have failed to show the errors, either of surcharge or falsification, which they allege in their bills, or assigned or suggested before the commissioner on taking the account, and that if it now appeared that anything which the executor did, or omitted to do, had not resulted as well for the estate
But really it does not appear that the estate would have been benefited if he had conducted its management differently. The will directed that sale should be made of the land in Mecklenburg county, Virginia, and of all the property on it, except the negroes. This seems to have been the provision for the payment of the testator’s debts, which he had expressed the wish in the sentence next preceding should be paid as soon as they could conveniently be paid—giving the executors a wide discretion. And this is the only property which he directs to be sold, except his land in North Carolina, and that is not to be sold until after his wife’s death, and then not for paying debts, but for division amongst his six younger children. It seems that he had a large estate in North Carolina, where he lived and died, and it is remarkable that he gave no direction for the sale -of any part of it, whilst he directs the whole of his property in Virginia, real and personal, to be sold, and that immediately following the clause which directs his debts to be paid; and it is the only provision of the will for raising a fund out of which his debts could be paid, which was very considerable; and as we have seen that he gave his-executors a wide discretion as to the time when they should pay his debts—as soon as they could conveniently; and the sale being authorized and ordered manifestly for the purpose, at least in part, of enabling them to pay his
The land, as we have seen, was valued in December, 1861, at $10,000 and sold at the sale for $12,000, one third in cash and the residue in one and two years. The personal property was appraised at $3,460 and sold for $9,029 at the sale in November, 1862, on six months’ credit. The cash and first deferred payments for the land were received in Confederate money. For the last payment the executor obtained a judgment since the war, and the purchaser having gone into bankruptcy, the legatees obtained a
We think there is no ground for the appellant’s assumption and insistence that the executor should be credited by only the scaled value of the Confederate money of the estate, which he used greatly to the advantage of the estate in paying its debts and the expenses of administration at its face value.
The appellants object to the collection by the executor Rawlins of the Snead debt of $1,385 in 1863, and charge that it was a devastavit. No exception was taken to this item in the ex parte account settled by the commissioner and returned to court and confirmed, either in the plaintiff’s bill or before the special commissioner who stated and reported the account in this suit, and is made for the first time in this court. If the objection had been made in the court below, the defendant might have taken testimony to show that it was a Confederate debt, or if an ante-bellum debt, that it was insecure, and that the debtor was in fail
.There are a number of other exceptions to the commissioner’s report, and assignments of error, which the court has carefully considered; and without remarking on them severally, it is of opinion that they are not sustained, and that there is no error in the decree of the circuit court for which it should be reversed, and the same is affirmed.
Decree affirmed.