131 Va. 401 | Va. | 1921
delivered the opinion of the court.
This is a suit by the widow and distributees of J. F. Chesser to surcharge and falsify the ex parte accounts of P. C. Young as administrator of the estate of the said J. F. Chesser. The cause was referred to a master to take evidence and restate the accounts, by a decree rendered in June, 1911, but the master did not make his report till September, 1917. To this report there were sixteen ex
The master charged the administrator with the price of a saw, $125.00, and interest thereon, $126.25. It satisfactorily appears that this saw went with the sawmill as a part thereof, and the estate got the benefit of it in the price paid for the sawmill. While there is some slight evidence tending to show that the saw did not go with the mill, the great weight of the evidence is to the contrary, and there is no evidence that the administrator derived any benefit therefrom.
The administrator is also charged by the master with $82.75 principal and $30.82 interest on the same, for excess payment to Elizabeth Chesser. The evidence to sustain this charge is the testimony of Elizabeth Chesser, is very brief, and is as follows:
“Q. 9. You speak of P. C. Young, administrator, having collected $82 and some cents, amount overpaid by him. You and P. C. Young, J. D- Carter and Reese Bowen, guardian,*404 went over the account of P. C. Young, administrator, with a view to making a settlement, and did not P. C. Young, Reese Bowen, guardian, come to Gate City and get the commissioner of accounts to make the settlement, and then reported to you that the amount overpaid was $82.75?
“A. Yes, sir. That is what they reported.
“Q. 10. Do you remember whether Reese Bowen, guardian, was present when you refunded to P. C. Young the amount you speak of?
“A. P. C. Young owed me some; he retained the $82.75 out of the amount he owed me. Reese Bowen was present when the settlement, was made.”
Assignments of error 12, 13 and 14 are as follows:
“12th. The court erred in giving judgment against your petitioners, W. P. Peterson and I. P. Robinett, they only being co-sureties on the bond of P. C. Young along with Elizabeth Chesser, one of the plaintiffs in the case. Under the pleadings in the case and the proof it was error to give judgment against your two petitioners.”
“13th. Your petitioners, I. P. Robinett and W. P. Peterson allege and represent that there is error against them, even if there is no other error in the case, in rendering judgment against them in favor of Reese Bowen, guardian, and not also including Elizabeth Chesser along with them in said judgment. Elizabeth Chesser was co-surety with*406 your petitioners, she was liable jointly with them on the bond, and it is certainly error to give judgment against two of the sureties on the bond and not include all three when they are all before the court.”
“14th. The court erred in rendering judgment against your petitioners, I. P. Robinett and W. P. Peterson, in favor of Elizabeth Chesser for the full amount found due her. If Elizabeth Chesser is due the amount found by the commissioner to be due to her, your petitioners, as co-sureties with her, would only be liable to Elizabeth Chesser for two-thirds of the amount due her. Here we have a judgment against two co-sureties in favor of the third co-surety for the full amount of the debt found to be due the co-surety by the principal in the case.”
In reply, counsel for the appellee say:
“We admit that the lower court erred in the particulars stated in these assignments of error by appellants. But we assume that this honorable court will, in this respect, modify the decree of the lower court and in- all other respects affirm the same.”
The decree of the circuit court will be reversed, and the cause remanded with direction to make the inquiries hereinbefore mentioned, and to settle the rights of the parties in accordance with the views hereinbefore expressed.
Reversed.