Ex&ks v. Staples

• Citation: 85 Va. 76,7 S.E. 199
• Court: Supreme Court of Virginia
• Decision Date: 26 July 1888
• Parties: Staples' Ex'ks v. Staples.

7 S.E. 199

(85 Va. 76)

Staples' Ex'ks

v.Staples.

Supreme Court of Appeals of Virginia.

July 26, 1888.

1. Executors and Administrators—Judgment against—Rights op Heirs.

Code Va. 1887, § 2668, providing that a judgment or decree against a personal representative shall be prima facie evidence against the heir or devisee of the decedent, applies only to judgments or decrees rendered since February 19, 1884, the date of the passage of the act.

2. Same—Petition to Enforce Judgment—Answer.as Petition for Rehearing.

The answers of executors to a petition asserting a claim against decedent's estate., consisting of a judgment confirmed by an interlocutory decree, though interposed more than four years after the confirmation of the judgment, are properly treated as a petition for rehearing, no statutory bar existing to a petition for a rehearing of an interlocutory decree.

3. Same—Judgment Confessed for Improper Demand.

An order drawn by a creditor of decedent's estate, for a sum less than the amount of his claim, was paid by the executor, with a memorandum to the effect that, if the order was improperly paid, the same should be allowed as a credit on a bond held by the creditor against the estate. Judgment was afterwards confessed for the amount of the order by the executor, with the understanding that all errors should be corrected in the account upon which it was based. Later the receipt for the full amount of the debt was found, showing payment long before the date of the judgment. Held, that the estate was entitled to credit for the amount of the order embraced in the judgment.

4. Same—Allowance of Demands—Acceptance of Order of Legatee.

An order drawn upon the executor of an estate by a legatee, when not a valid charge against the estate, does not become such by its acceptance by the executor; he having no authority to bind the estate by executing any evidence of indebtedness.

5. Same—Payment of Demands—Recovery.

Money received and paid over by the administrator of an estate, as agent of the creditor, is not recoverable back from the creditor to whom it is paid in satisfaction of a valid claim against the decedent's estate, and this is true though the money was paid over by the administrator in his official capacity, and there were preferred debts of the estate remaining unpaid.

6. Same—Allowance by Executor of Compound Interest.

A note, executed by an executor for the amount of the principal and accrued interest of a debt due by the estate, was allowed to run two years, when the interest then due was added to the amount of the note, and the whole embraced in a judgment, which was confessed by the executor. Held that, the executor having no authority by virtue of his office to bind the estate to the payment of compound interest, the estate should be charged only with the principal sum originally due, with simple interest at the legal rate.

7. Same—Creditors' Bill—Decree against Executor Personally.

In a creditors' suit to enforce claims against decedent's estate, where an accepted order by an executor is rejected as a valid claim against the estate, the creditor is not entitled to a decree against the executor personally. 3. Attorney and Client—Collections—Negligence.

An attorney is not chargeable with the face value of small claims, recoverable by warrant, due an estate, which were placed in his hands as attorney for collectionby the executor, upon failure of the evidence to show that any of the debtors were solvent, or that the attorney was negligent in the discharge of his duty, or that the estate has been in any way injured by his conduct of the business.

Appeal from circuit court, Patrick county.

E. C. Burks and /. A. Walker, for appellants. P. Bouldin, Jr., for appellee.

Lewis, P. This was a creditor's suit, in the circuit court of Patrick county, to settle the estate of Abram Staples, deceased, brought in 1870 by Isaac Martin, a creditor of the estate. The decedent died in 1856, leaving a will whereby he appointed Samuel G. Staples and "Waller R. Staples his executors. Samuel G. was the acting executor. In the progress of the cause, to-wit, on the 1st day of November, 1878, John Staples filed a petition asserting a claim against the estate, which consisted of a judgment rendered by confession, in the county court of Patrick county, against Samuel G. Staples, as executor, on the 30th of December, 1868, for $1,534.08 and costs. The judgment was for the amount of an account presented by John Staples against the executor, and which consisted of five items, as follows:

(1) To amt. of Adams' fi. fa. vs. Staples' Ex'rs, --$ 19 88

Interest on do. from 23d July, '60, till 29th December,

1886,...... 10 03

(2) To amt. Clark Penn's order on estate,--100 00

Int. from 19th June, 1858, till 29th December, 1868, 63 00

(3) Amt. H. G. Kellogg's accepted order on ex'rs,-100 00

Int. from October 5, 1868. till 29th December, 1868,-1 35

(4) Amt. paid A. Staples in his life-time by A. Staples, ad'mr

of Thos. McCabe,333 66

Int. from 28th February, 1853, till 29th December, 1868, 300 29

(5) Amt. due-bill on ex'rs,-.... 513 50

Int. from 3d January, 1866, till 29th December, 1868, 92 37

Total,..... $1,534 08

It appears that in August, 1872, a decree was entered directing Commissioner Clark to take an account of the debts of the estate; and that in his report, subsequently made to the court, the commissioner reported the judgment above mentioned as a subsisting debt against the estate. To this report there were no exceptions, and the same was confirmed by a decree entered on the 19th of March, 1874. The executors, in their answers to the petition filed by John Staples, denied the validity of the claim asserted in the petition, and averred that the judgment in question had been confessed by the acting executor with the distinct understanding that all errors and mistakes in the account upon which it was based should be corrected, all proper abatements made, and set-offs allowed, precisely as if no judgment had been obtained. And this averment is not denied by the appellee, John Staples, or, at all events, he did not rely upon the judgment as an estoppel in the court below. Nor is the judgment even prima facie evidence against the heirs and devisees of the testator, who, together with the executors, were defendants in the circuit court. Brewis v. Lawson, 76 Va. 36. The recent statute, approved February 19, 1884, making a judgment or decree against the personal representative prima facie evidence against the heir or devisee of the decedent, applies only to judgments or decrees rendered since the passage of the act. Code 1887, § 2668. The record shows, moreover, that, in order to induce the executor to confess the judgment, the appellee expressly agreed in writing to allow the executors credit for the Clark Penn order and the McCabe matter, which constitute the second and fourth items in the account, if it should afterwards turn out that they were improperly settled with him by the executors.

The answers of the executors were properly treated as a petition to rehearthe interlocutory decree of the 19th of March, 1874, confirming Commissioner Clark's report, and the case, therefore, comes up on its merits; for the objection, founded upon the delay of the executors to interpose any defense to the judgment, is not well taken. Until the petition of the appellee was filed, in November, 1878, more than four years after the date of the decree of confirmation, he was not an actual party to the suit asserting his judgment; and, as was said by the court in Kendrick v. Whitney, 28 Grat, 646, there is no statutory bar "to a petition for a rehearing of an interlocutory decree, and hence whether a rehearing shall be granted depends upon the sound discretion of the court, upon all the circumstances of the case.

As to the first item in the account upon which the judgment was confessed there is no dispute. It is a valid charge against the estate, and was properly allowed as such. The commissioner to whom the cause was referred, after the appellee's petition was filed, reported the second item in the account, that is, the Clark Penn order, as a charge against Samuel G Staples individually. But, upon exceptions to the report, the circuit court decreed it to be a valid charge against the estate. We are of opinion that it is a charge against neither. The facts are these: On the 18th of June, 1858, Samuel G. Staples gave to the appellee a paper writing as follows: "Memo.-John Staples, some time since, handed me an order from Clark Penn, drawn on me as one of the executors of A. Staples, deceased, for $100, which I did not pay, not having funds in my hands, and which order I have lost or mislaid." At the date of this writing Abram Staples' estate was indebted to Clark Penn in a sum exceeding $100; and it appears from the record that afterwards, to-wit, on the 17th of September, 1859, Samuel G. Staples, as executor, paid the debt in full to Penn's executor, taking a receipt therefor, and retaining nothing in his hands with which to settle the above-mentioned order. On the 29th of December, 1868, when a settlement was made between the appellee and Samuel G. Staples, executor, the former produced the order as a credit to which he was entitled against the estate. The executor at first refused to allow it, giving as his reason that his papers had been scattered by federal troops during the late war, and many of them lost, and that he was of the impression the Penn debt had been fully paid. Thereupon the appellee assured him that, if he would allow the order, he would correct the error, if the order was not properly chargeable; and he made upon the memorandum above mentioned the following indorsement in writing: "If Samuel G. Staples has improperly settled the above claim with me, I will allow the same as a credit on a bond which I hold against the executor of A.. Staples, deed." This was the day before the judgment in question was confessed. Afterwards the receipt...