Brown v. Rice's Adm'r

• Decision Date: 14 September 1882
• Citation: 76 Va. 629
• Parties: BROWN v. RICE'S ADM'R.
• Court: Virginia Supreme Court

76 Va. 629

BROWN v. RICE'S ADM'R.

Supreme Court of Appeals of Virginia.

September 14, 1882

Error to judgment of circuit court of Rockingham county, rendered 15th March, 1879, in action of debt wherein William R Warren, administrator of Milly Rice, deceased, was plaintiff and Mary B. Brown was defendant.

A. W & J. G. Brown, on 16th February, 1854, made a note for $3,392.66, and on 16th February, 1857, made another note for $391.39, both payable on demand to Milly Rice. Payments were made on these notes. J. G. Brown died in 1857, leaving his widow, Mary Brown, his sole legatee, devisee and executrix. A. W. Brown died in 1861 intestate, and his son B. S. Brown and his widow Mary B?? Brown qualified as his personal representatives. In 1868 B. S. Brown died, leaving his mother, Mary B. Brown, surviving administratrix. On 24th February, 1869, when the largest of said notes was clearly barred by the statute of limitations, William R. Warren agent of Milly Rice, sent a message to Mary B. Brown that said notes were in his hands for settlement; that Milly Rice designed giving one-half of the amount thereof to her daughter, Mary Brown, widow and executrix of J. G. Brown, as part of her legacy, if she, Mary B. Brown, as administratrix of A. W. Brown, would execute new bonds to Milly Rice for the other half of the said notes; and that by her doing so, he as agent for Milly Rice, would release A. W. Brown's estate from all further liability for one-half of the notes. Mary B. Brown and her legal adviser believed that said notes were valid, subsisting debts, for which A. W. Brown's estate was then bound; and he advised her to accept the proposition. On 24th February, 1869, she executed, as administratrix of her intestate, to Milly Rice a bond for $1,900, with interest from 1st July, 1869, payable at one day after date, and another for $491.55 payable 1st July, 1869.

Later, suit was brought on these bonds by Warren, administrator of Milly Rice, deceased, against Mary B. Brown; defendant tendered two special pleas, which were substantially to the effect that plaintiff's intestate, Milly Rice, had in her lifetime fraudulently procured from her, as administratrix of A. W. Brown, deceased, the said bonds, in consideration of one-half of two notes not under seal, which had been executed to Milly Rice by A. W. & J. G. Brown, by falsely and fraudulently representing to her, the defendant, that the said notes were still unpaid, valid, and in full force in law against the estate of A. W. & J. G. Brown; when, in truth, both notes were barred by the statute of limitations; and that this fact was well known to Milly Rice, but was fraudulently concealed from the defendant.

Both of these pleas were rejected by the court below, and judgment rendered for the amount of the bonds. On writ of error the judgment was reversed, and the cause remanded with directions that the pleas be received, and the plaintiff required to take issue thereon. See Brown v. Rice's Adm'r, 26 Gratt. 473.

At the second trial in June, 1877, on the issues made by said special pleas, there was a verdict for the plaintiff for $195.69, with interest from 1st July, 1869, till paid, part of the debt in the declaration demanded. This verdict the circuit court, on motion of the plaintiff, set aside, and granted a new trial. To the decision of the court granting the new trial, defendant excepted and filed her bill of exceptions, which is given in full for the better understanding of the points decided in this cause:

BILL OF EXCEPTIONS.

Be it remembered, that upon the trial of this cause, the plaintiff, to sustain the said action on his part, read in evidence the writing obligatory in his declaration mentioned, and then and there rested his case; and thereupon the defendant, to maintain the issue on her part, read the two notes of A. W. & J. G. Brown to Milly Rice, produced in court by the plaintiff upon a subpœ na duces tecum --to-wit: one for $3,392.66, dated February 16, 1854, and payable on demand, in words and figures following:

$3,392.66. On demand we promise to pay to Milly Rice, or order, thirty-three hundred and ninety-two dollars and 66 cents, for value received.

Witness our hand, this 16th day of February, 1854.

A. W. & J. G. BROWN.

Endorsements--1855, February 16, by interest paid one year, $203.56. Credit by interest paid for one year, $203.56, February 16, 1856. Credit by interest for one year, February 16, 1857, $203.56. Credit by interest for one year, February 16, 1858, $203.56. February 16, 1859, credit by interest paid for one year, $203.56. February 16, 1860, credit by interest paid you one year, $203.56. February 16, 1861, credit by interest paid for one year, $203.56. By one-half the interest due December 16, 1863, $293.33 from B. S. Brown, administrator of A. W. Brown. Credit by cash paid B. S. Brown, administrator of A. W. Brown, deceased, $70, September 15, 1865. Mrs. Mary B. Brown has executed her note for one-half of principal and interest of within note to July 1, 1869, which releases the estate of A. W. Brown from all liability in this bond.

W. R. WARREN,

Agent for Milly Rice.

The other for $391.39, dated February 16, 1857, and payable on demand, in the words and figures following:

$391.39. On demand we promise to pay to Milly Rice, or order, three hundred and ninety-one dollars and thirty-nine cents, for value received.

Witness our signatures, this 16th day of February, 1857.

A. W. & J. G. BROWN.

Endorsements--February 16th, 1858, credit by interest paid for one year, $23.48. February 16, 1859, credit by interest paid one year to date, $23.48. February 16, 1860, credit by interest paid one year, $23.48. February 16, 1861, credit by interest paid one year, $23.48. By $33.26 paid by B. S. Brown, administrator of A. W. Brown, one-half the amount of interest due December 16, 1863. Credit by this amount paid by Mary B. and B. S. Brown, administrator of A. W. Brown, deceased, $54.29, November 24, 1866.

Mrs. Mary B. Brown, administratrix of A. W. Brown, has executed her note for the one-half of the within note and interest to July 1, 1868, and this releases the estate of A. W. Brown from all liability on this bond.

W. R. WARREN,

Agent for Milly Rice.

Together with the endorsements thereon in the words and figures following, to-wit: (see endorsements above)--then the calculation of the amount of said two notes made by William McK. Wartmann in the words and figures following:

Statement of calculation dividing bonds executed by A. W. Brown & J. G. Brown to Milly Rice, February 16, 1854, and February 16, 1857:

Bond executed February 16, 1854, all interest paid jointly to February 16, 1861, $ 3,392 66

Bond executed Februrry 16, 1857, all interest paid jointly to February 16, 1861, 391 39

Amount of both bonds, February 16, 1861, 3,784 05

Amount due from J. G Brown's estate, one-half, 1,892 02 1/2

Amount due from A. W. Brown's estate, one-half, 1,892 02

Interest paid on A. W. Brown's one-half by B. S. Brown, administrator, as per endorsement on bonds to December 16, 1863, $326 59

Interest from December 16, 1863, to January 24, 1869, 579 58

$2,471 60

Deduct--

Credit September 15, 1865, as endorsed, $70 00

November 24, 1866, 54 29

____________________ 124 92

Amount due on A. W. Brown's one-half, January 24, 1869, $2,347 31

The credit of $326.59, December 16, 1863, overpays the interest due at that time, $4.95, which A. W. Brown's estate must have credit for.

WM. MCK. WARTMANN.

January 22, 1869.

Then the receipt of William R. Warren, agent of said Milly Rice, dated February 24, 1869, in the words and figures following:

Received, February 24, 1869, of Mary B. Brown, surviving administratrix of the estate of A. W. Brown, deceased, her notes of hand as the surviving representative of said estate, one note for $1,900, dated February 24, 1869, and payable one day after date, and one other note for $491.55, dated February 24, 1869, and payable on or before the 1st day of February, 1869; said last mentioned being for interest due at that date on the half of the two bonds executed by A. W. & J. G. Brown to Milly Rice--said notes being the one-half of two several notes, principal and interest, to February 24, 1869; which notes were executed by A. W. & J. G. Brown to Milly Rice, and it is hereby expressly declared and understood that in consideration of the two foregoing notes of $1,900 and $491.55, the estate of A. W. Brown, deceased, is fully released from all further reponsibility to said Milly Rice on account of the joint notes before mentioned, executed by said A. W. & . J. G. Brown.

Given under my hand.

WM. R. WARREN,

Agent for Milly Rice.

Endorsement--Milly Rice's receipt releasing A. W. Brown's estate of one-half of a joint note drawn by the firm of A. W. & J. G. Brown in favor of the said Milly Rice. Then the execution in favor of Mary B. Brown, administratrix of A. W. Brown against the goods and chattels of J. G. Brown, deceased, in the hands of Mary Brown, his executrix, dated 2d April, 1875, for $5,387.83, with interest, & c., and the returns thereon, in the words and figures following:

The Commonwealth of Virginia--

To the Sheriff of Rockingham county--Greeting:

We command you that of the goods and chattels of J. G. Brown deceased, in the hands of Mary Brown, his executrix, late in your bailiwick, you cause to be made the sum of $5,387.83, with interest on $3,165.54, part thereof, to be computed after the rate of six per centum per annum, from the 10th day of September, 1875, till payment, which Mary B. Brown, administratrix of A. W. Brown, deceased, late in our circuit court of...