Campbell's Ex'rs v. Campbell's Ex'r
| Decision Date | 25 September 1872 |
| Citation | 63 Va. 649 |
| Parties | J. B. CAMPBELL'S ex'ors v. A. C. CAMPBELL'S ex'or. |
| Court | Virginia Supreme Court |
1. The decree of the Court of Appeals upon a question decided by the court below, is final and irreversible: and upon a second appeal in the cause, the question decided upon the first appeal cannot be reversed.
2. In such a case the conclusiveness of the decree of the Court of Appeals is the same, whether the first appeal was from a final or interlocutory decree of the court below. All the decrees of the appellate court are in their nature final except possibly where that court disposes only of a part of the case at one term, and reserves it for further and final action at another.
3. When the Court of Appeals makes a decree and sends the cause back for further proceedings, there cannot be a bill of review to correct the decree of the Court of Appeals for errors apparent on the face of the record. But there may be such a bill to correct the decree on the ground of after-discovered evidence.
4. But to sustain a bill of review in such a case, the greatest caution should be observed; and the new matters to be sufficient ground for the reversal of the decree, ought to be very material, and newly discovered, and unknown to the party seeking relief at the time the decree was rendered, and such as could not have been discovered by the use of reasonable diligence.
5. Just before the death of C he assigns all his bonds and notes to his brother B for himself and his brothers. The wife of B survives him only two months. In a suit by her executors against the executors and legatees of C for a settlement of the executorial accounts, the validity of the assignment by C of his bonds and notes, as against his wife, is in question and the Court of Appeals decides it is invalid, and sends the cause back for an account, with authority to the plaintiffs to propound to the defendants such interrogatories as may be pertinent and material to take the account according to the principles of the decree. The plaintiffs enquire what notes and bonds were assigned, and their amount, and when and how they had been distributed among the parties, which had and which had not, been collected, and the present condition of them. The defendants have no right to avail themselves of these questions for the purpose of making such answer as might tend to show the validity of such assignment; and then rely on these answers as ground for reversing the decree of the Court of Appeals. Such answers are impertinent and immaterial, and not according to the principles of the decree; and afford no ground for reversing it.
6. To authorize the order of a judge in vacation for the investment of Confederate money by a fiduciary, under the act of March 5, 1863, Sess. Acts 1862-'63, ch. 46, p. 81, three things are necessary: 1st. The money must be in the hands of the fiduciary; 2d. It must have been received in the due exercise of his trust; 3d. For some cause he must be unable to pay it over to the parties entitled. If they do not all exist, the order of the judge is null, and the fiduciary is responsible for the money.
7. When Confederate money is received by an executor for a good -war debt, that he may invest it under the order of a judge he has not received it in the due exercises of his trust and, therefore, it is not protected by such order.
8. Until the decree of the Court of Appeals, deciding that the assignment of the bonds and notes was invalid, they could not be considered as assets in the hands of the executors of C and if within twelve months after that decree they laid before the commissioner directed in the suit to settle the account, a statement of the receipts, they should be allowed their commissions upon that fund.
In October 1852, James B. Campbell, late of the county of Highland, departed this life, leaving a widow, Alcinda C. Campbell, who survived him only about two months, and leaving no issue. His seven brothers were his only heirs at law and next of kin. He owned a large estate, consisting mainly of notes and bonds, amounting at least to fifty thousand dollars. He made a will a few weeks before his death, to wit: on the 2d of October 1852, and during the last illness both of himself and his wife; his sickness being pneumonia, and hers consumption. He appointed two of his brothers, to wit: Thomas Campbell and Benjamin B. Campbell, his executors. About the same time that he made his will he made an assignment of his notes and bonds in these words:
His avowed object in making this assignment was to give his notes and bonds to his brothers, and thus to prevent his wife from having any distributive interest in the said notes and bonds in the event of her surviving him. She did survive him about two months, and on the 8th of November 1852 she duly renounced the provisions made for by her husband's will, and on the 30th of December 1852 she made a will, appointing her brother, Samuel Lightner, and her brother-in-law, J. W. Hedges, her executors. The wills, both of her husband and herself, were duly proved and recorded, and the executors appointed by them respectively duly qualified as such. Thomas Campbell, claiming the notes and bonds as assignee thereof for the use of himself and brothers, received possession of them shortly before or after the testator's death, and not long thereafter divided them among himself and his brothers. In May 1854, the said Lightner and Hedges, executors of the said Alcinda C. Campbell, filed their bill in the Circuit court of Highland county, against the said Thomas Campbell and Benjamin B. Campbell in their own right and as executors of said James B. Campbell, and John, Samuel C., Wm. M., A. Hanson, and Edgar Campbell, the brothers of the said Thomas and Benjamin B. Campbell; also Mary Catharine Campbell and Alice P. Lightner, legatees under the will of said James B. Campbell; the object of which bill was to compel the executors of said James B. Campbell to render before a commissioner of the court a just, true and full account of all the personal estate which came or ought to have come to their hands as executors; especially the bonds, notes, accounts and money which were in possession of said James B. Campbell up to within a few days of his death; also a true account of the interest of said James B. in the various mercantile firms in which he was interested. And to compel the other defendants to show what distribution of said estate has been made to each of them, and especially what bonds, notes, money, accounts or other thing they have received since the death of said James B., which at the time constituted part of his property or estate; and to obtain a full and fair distribution of said estate to the plaintiffs as executors of said Alcinda C. Campbell, and her distributive interest in the estate of her said husband, and for general relief. The plaintiffs, among other things, charged in the said bill, that the executors of said James B. Campbell, in violation of the rights of the plaintiffs, and upon the most fraudulent and groundless pretenses, had gone on, long before the expiration of a year from the date of their qualification as executors, to make distribution of all the bonds, notes, accounts and money belonging to the estate of said James B. Campbell, equally among themselves, the executors and their brothers.
In October 1854, Thomas and Benjamin B. Campbell severally filed their answers, both in their own right and as executors of James B. Campbell, and the said Thomas professing also to answer as assignee of said James B. and trustee for himself and brothers. They both claimed that the said James B during his last illness, assigned all his notes and bonds to said Thomas for the use of himself and his brothers, and that thereby the said James B. fully and completely divested himself, in his lifetime, of the said notes and bonds, which therefore constituted no part of his estate at his death; and they set out in their several answers the details in regard to the alleged assignment. The said Thomas also said in his answer, among other things, that the said Benjamin B., at the request and in the presence of said James B., delivered the said notes and bonds to respondent, the said James B., remarking at the same time, " take them; I have given them to you." The assignment was also handed to respondent by said Benjamin B. " The notes and bonds were held, ever after, under said assignment, until divided in accordance with the direction of said James B. among his brothers, without possession ever having been surrendered by respondent, or any claim to or demand of them by said James B. in his lifetime." The said Benjamin B. also said in his answer, among other things, that said James B., during his last illness, addressed respondent, as near as he can recollect, in the following words: " You had better help me to make a will; you will lose nothing by it." After some time had intervened, and when said James B. and respondent were alone in the room, he, of his own accord, commenced giving directions how he wished to dispose of his property. He said he wished to assign his notes and bonds to his brother Thomas, and in accordance to his directions respondent drew an assignment in the following words: " I assign all my notes and bonds to Thomas Campbell, this 1st day of October 1852." This was signed by said James B., and at his request witnessed by respondent; and by the direction of said James B. was retained by respondent to be handed to said Thomas with the notes and bonds. Said James B. assigned as a reason for thus disposing of his notes and bonds that if...
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Allen v. Commonwealth
...is more liberal than that disclosed by the cases in the United States courts relied upon by plaintiff in error. In Campbell's Ex'rs v. Campbell's Ex'rs, 63 Va. 649, this court held that all decrees of the Court of Appeals are in their nature final, except possibly where that court disposes ......