Andrews v. Avory

• Decision Date: 16 February 1858
• Citation: 55 Va. 229
• Court: Virginia Supreme Court
• Parties: ANDREWS v. AVORY & als.

55 Va. 229

ANDREWS v. AVORY & als.

Supreme Court of Appeals of Virginia.

February 16, 1858

1. Administration granted where the deceased lived and died out of the state, and left no estate within it, is not void.

2. An administrator appointed in Virginia, whose intestate lived and died in North Carolina, and left no estate in Virginia goes to North Carolina, and without qualifying there, takes possession of the assets, and brings them to Virginia. His sureties in Virginia are liable for his faithful administration of these assets.

3. The intestate owing few debts, and the administrator having paid them, without selling the slaves, a suit is brought in the County court in the name of some of the next of kin against G, the administrator, not as such, but as one of the next of kin, and two others, infants, stating that the debts are paid, and that from the number of the slaves and of the next of kin, the slaves cannot be divided, and asking that they may be sold. The defendants answer, admitting the facts, and G is appointed a commissioner to sell the slaves, and divide the proceeds among the next of kin. He does sell at public auction, but he does not distribute the proceeds. His sureties are not responsible for the proceeds of the sale of the slaves; he having sold them as commissioner of the court and not as administrator.

This was a suit instituted in the Circuit court of Mecklenburg in April 1847 by Rebecca Avory, the mother, and others, the brothers and sisters of William T. Avory deceased, against George W. Avory as administrator of William T. Avory, and in his own right, and Henry M. Spencer and Robert Andrews, his sureties in his official bond, for an account of George W Avory's administration, and for payment of what might be found due to the plaintiffs.

William T. Avory died in the county of Granville, North Carolina, in the early part of the year 1840, intestate and unmarried. He appears to have moved to that county from the county of Mecklenburg, in the state of Virginia, about a year before his death, and all his next of kin (except perhaps one) lived in Mecklenburg: and in March 1840, George W. Avory qualified as his administrator in the County court of Mecklenburg, and executed a bond in the penalty of four thousand dollars, with Spencer and Andrews as his sureties.

At the death of William T. Avory, his whole property, so far as this record shows, was in the county of Granville, North Carolina and consisted of two slaves, some personal property, and debts. The personal property was sold by George W. Avory in Granville county, and the proceeds and debts collected amounted to four hundred and fifty-five dollars and thirty-six cents of principal, after paying the debts due from the estate, which were few in number and small in amount. There was one debt alleged to be due to the intestate, but the only proof of its existence was by one of the distributees, who was excepted to as an incompetent witness.

At the May term 1840 of the County court of Mecklenburg, the same persons who were plaintiffs in the above mentioned suit, were plaintiffs in a friendly bill and answer, in which they state that William T. Avory had died leaving two slaves, and other personal property. That George W. Avory qualified as his administrator, and had paid all the debts and liabilities thereof, which was effected without the sale of his slaves. That the plaintiffs and George W. Avory and an infant brother and sister were the next of kin and entitled to the estate that from the number of distributees and number of slaves, it was impossible to divide the latter, and they therefore pray for a sale, and a division of the proceeds. George W. Avory and the two infant children were made parties defendants.

There was an answer by George W. Avory and the infant children, by said Avory as their guardian ad litem, specially assigned them by the court, in which they admit the statements of the bill, and are willing that the court shall decree according to its prayer.

The cause was heard at the same term, when the court made a decree, by which George W. Avory was appointed a commissioner, and was directed to sell the slaves to the highest bidder, upon a credit of twelve months, collect the money when due, and after defraying the expenses attending the same, divide the balance into seven equal parts, and pay one to each of the distributees; and make report to the court in order to a final decree.

No other proceeding in court seems to have been taken until May 1847, when there is an entry that, on the petition of Rebecca Avory, and three others, the plaintiffs in the suit, the plaintiff is required to amend his bill and make them party defendants; and the order of May 1840 was set aside, and the cause sent to the rules for further proceedings.

It was at the rules in May 1847 that the bill in the present case was filed. This bill, after stating the death of William T. Avory and the qualification of George W. Avory as his administrator, charged that William T. Avory was not at all indebted at the time of his death, yet the administrator had sold the whole estate, and had appropriated the proceeds to his own use. And it was charged that the slaves were sold by him under some pretended order obtained by him from the County court of Mecklenburg under some false pretext, without the knowledge or consent of the complainants; which order was afterwards set aside by the said court.

George W. Avory was proceeded against as an absent defendant; and it appears that he was insolvent. Spencer and Andrews answered the bill. They say that previous to the qualification of George W. Avory as administrator of William T. Avory, he had sold the perishable part of the estate of his intestate in North Carolina. They state the proceedings in the suit in the County court, the decree for the sale of the slaves, a copy of the record of which case they file as an exhibit; and insist that George W. Avory sold the slaves as commissioner of the court, in Clarkesville, with the knowledge of all the distributees, and in the presence of a part or all of the plaintiffs, one of whom purchased one of the slaves, gave his bond for the purchase money, and paid it to George W. Avory. And that the plaintiffs never made any objection to the proceeding until George W. Avory had become insolvent and had absconded.

The account was referred to a commissioner, who made a report charging the administrator with the personal property sold and debts collected in North Carolina, also with the price of the two slaves, and with the amount of a debt which one of the distributees who was examined as a witness, stated that he owed to the intestate and paid to the administrator.

The sureties excepted to the first charge, on the ground that these were North Carolina assets sold there, and that William T. Avory having died in North Carolina, and having no property in this state, the qualification as administrator here was void. To the second, on the same ground, and also on the ground that the slaves were not sold by George W. Avory as administrator, but as commissioner. And to the third charge, on the ground that the witness was a distributee, and therefore incompetent from interest to prove the charge: And although he had released his interest since his testimony was taken, that did not remove the objection to the evidence.

The evidence showed, that the personal property except the slaves was sold in North Carolina; and it did not appear whether or not there had been administration in that state on the estate of William T. Avory. The slaves were brought from North Carolina after the decree was made for their sale, and were sold at public auction in the town of Clarkesville in Mecklenburg county, and one of them was purchased by one of the distributees. It did not appear whether or not any other of the distributees were present.

The cause came on to be heard on the 15th day of September 1854, when the court held that George W. Avory was chargeable as administrator for the proceeds of the sale of the slaves; but that he was not chargeable with the debt testified to by one of the distributees; and therefore overruling the exceptions to the first and second charges, and sustaining the exception to the third charge; the court made a decree for the amount thus ascertained to be due from the administrator against George W. Avory, and his sureties in favor of the several distributees. From this decree Andrews, one of the sureties, applied to this court for an appeal, which was allowed.

Thomas Howard and Grattan, for the appellant, insisted:

1. That the sureties were not liable for North Carolina assets. That the question was not whether a foreign administrator could be sued here, about which there was a diversity of opinion; Story's Conf. Laws, § 513; Vaughan v Northup, 15 Peters' R. 1; Tunstall v. Pollard's adm'r, 11 Leigh 1; Powell v. Stratton, 11 Gratt. 792; but whether the surety of an administrator was liable for assets received abroad, when that administrator was not the original but an ancillary administrator. They referred to 1 Rob. Pr. 160, § 4, 5; Id. 165, § 12, 13; Story's Conf. Laws, § 515, 515 a; 1 Rob. Pr. 162, § 7, 164, § 10; Story's Conf. Laws, § 514, 514 a 514 b; Doolittle v. Lewis, 7 Jno. Ch. R. 45; Vaughan v. Northup, 15 Peters' R. 1; Fletcher's adm'r v. Sanders, 7 Dana's R. 345; Governor v. Williams, 3 Ired. R. 152; 1 Rob. Pr. 163, § 7; 1 Rev. Code 382, § 29, 386, § 24; 1 Rob. Pr. 170, 173, § 3, 175-76, § 2; Aspden v. Nixon, 4 Howard U. S. R. 467; McBride v. Choate, 2 Ired. Ch. R. 610; Wms. Ex'ors 136; United States v. Giles, 9 Cranch 212; Miller v. Stuart, 9 Wheat. 680; Mothland v. Wiseland, 3 Penn. R. 185; Fay v. Haven, 3 Metc. R. 109; Brodie v. Bickley, 2 Rawle's R. 436; ...