Corbin v. Mills' Ex'rs

• Decision Date: 13 March 1869
• Citation: 60 Va. 438
• Court: Virginia Supreme Court
• Parties: CORBIN & als. v. MILLS' ex'ors & als. ROBINSON'S adm'r v. MILLS' ex'ors & als. LANCASTER & als. v. CORBIN & als.

60 Va. 438

CORBIN & als. v. MILLS' ex'ors & als.

ROBINSON'S adm'r v. MILLS' ex'ors & als.

LANCASTER & als. v. CORBIN & als.

Supreme Court of Appeals of Virginia.

March 13, 1869

1. The accounts of an executor which have been regularly settled in the mode prescribed by law, are to be taken as prima facie correct. They are liable to be impeached on specific grounds of surcharge and falsification to be alleged in the bill, but the court will not decree an account, upon a general allegation that the settled accounts are erroneous.

2. When an account has been ordered upon a proper bill, if an additional objection to the settled accounts is discovered in the progress of the cause, the plaintiff may raise the objection before the commissioner, with a proper specification in writing; and the defendant may meet the objection by an affidavit, which shall have the same weight as an answer would have had if the matter had been alleged in the bill.

3. Executors have regularly settled their accounts before a commissioner of the court of probate, and they have been approved and recorded. A devisee and legatee of their testator files a bill, and without specifying any errors in the settled accounts, calls upon them to render an account of all their actings and doings. The executors may object to any overhauling of their settled accounts, except so far as they may be open to objections apparent on their face.

4. To such a bill the executors answer, giving a full account of their administration; and there is a decree for an account. The allegations of their answer, though affirmative, must be taken as true, unless disproved, so far as they relate directly to the accounts which they are thus required to give.

5. If in such a case the plaintiff does not amend his bill, and specify errors in the accounts, allegations in the answer though not explanatory of the account, and therefore not perhaps within the scope of the discovery sought by the bill but having a relation to the subject matter of the account and important to a correct understanding of the motives of the executors and of the circumstances under which they acted, unless disproved, are to be taken as true.

6. Testator gives to his daughter for life $540 per annum, payable quarterly, being the interest on the purchase money ($9000) of the real estate on & c. sold by me to B. He gives two other sums to the daughter for life per annum, described as the interest on the purchase money of other parcels of land, sold to other parties, and $300 per annum -payable semi-annually, the interest on $5000 of State stock of Virginia. And at the death of his daughter he gives these several principal sums of money to the children of his daughter. And he receives payment of part of the purchase money specified, in his lifetime. The legacies both to the daughter and her children of the three first sums are demonstrative and not specific. The legacy of the stock and the interest upon it, is a general legacy of so much State stock and the interest upon it, as it is paid by the State.

7. To this bequest the testator adds: In case of the death of any child of my said daughter, born or to be born, unmarried under the age of twenty-one years and not leaving issue, the share of property coming to this child shall immediately vest in and belong to his or her surviving brothers and sisters and their lineal descendants: the descendants taking their deceased parent's share. A child of the daughter, over twenty-one years of age at the death of the testator, after his death marries and dies in the lifetime of her mother, not having had a child, and her husband surviving her. The legacy vested in the child at the death of the testator; and it did not divest upon her death without children, but her husband takes it as her administrator

Nicholas Mills, an old citizen of Richmond, departed this life on the 13th of September 1862, having made his will which bore date on the 17th of October 1861, and which was duly admitted to probate in the Hustings court of the city of Richmond on the 24th of September 1862; when his son, Charles S. Mills and Robert R. Howison, two of the executors named in the will, qualified as such: the third nominated executor, his grandson, Thomas V. Robinson, being then in the army, did not qualify until the 15th of December 1862. Mr. Mills left a large estate, and a number of children and grandchildren. The questions which were considered in these causes arise under the fourth, sixth, ninth and fourteenth clauses of the will, though the whole scheme of the will is necessary to be looked to, in order to judge correctly of the conduct of the acting executors.

The 4th clause of the will is as follows:

" 4. I give, devise and bequeath unto my executors, hereinafter named, in trust for the separate benefit of my daughter, Sarah Ann Robinson, and her children and grandchildren, born or to be born, subject to the purposes, limitations and conditions hereinafter declared, the sum of one thousand and eighty dollars per annum, payable semi-annually, being the interest on the purchase money of the real estate on Main street, Richmond, sold by me to Charles Y. Morris; also, the further sum of four hundred and fifty dollars per annum, payable quarterly, being the interest on the purchase money ($7,500) of the real estate on Main street, sold by me to Lewis Hyman; also, the further sum of five hundred and forty dollars per annum, payable quarterly, being the interest on the purchase money ($9,000) of the real estate fronting on Franklin street, sold by me to Thomas Bradford; also, the further sum of three hundred dollars per annum, payable semi-annually, being the interest on $5,000 of State stock of Virginia. These annual sums, to the extent necessary, are to be applied by my executors to the genteel support and comfort, in all respects, of my said daughter Sarah Ann Robinson and her family during her life, and the proper and suitable education of her children and grandchildren born, or that may be born; and if, after providing for these purposes, any surplus remains, I direct my executors to invest such surplus in some productive stock, or in a safe loan on good real or personal security, the dividends or interest to constitute a portion of the trust fund hereby provided for the benefit of my said daughter Sarah Ann Robinson and her family. At her death it is my will and desire, and I give and bequeath accordingly, that the principal (producing said interest), to wit: $18,000 from the property sold to Charles Y. Morris; $7,500 from the property sold to Lewis Hyman; $9,000 from the property sold to Thomas Bradford, and $5,000 in Virginia State stock, together with all the accumulations from the surplus aforesaid, that may be invested or may have arisen, be equally divided, share and share alike, between and among the children of my said daughter and their lineal descendants, the descendant or descendants of any deceased child taking such child's share; and in case of the death of any child of my said daughter (born, or to be born), unmarried under the age of twenty-one years, and not leaving issue, the share or shares of property and estate coming to such child under this clause of my will, shall immediately vest in, and belong to his or her surviving brothers and sisters and their lineal descendants, share and share alike, the descendants of any deceased child taking such child's share. But I hereby will and direct that all the property and estate herein given in trust for my daughter Sarah Ann Robinson and her issue, shall be held subject to indemnify my estate against any loss by reason of the covenant which I have entered into to Edmund Fontaine, in respect to the property on Sixth street, contained in the deed made by me as commissioner and trustee, dated the 1st of January 1853, and of record in the Hustings court, Richmond, in the event that said conveyance be not assented to and confirmed by such issue, when and as they become respectively competent to make such assent, and shall become entitled to, or be given, a share of the property hereby given in trust for the said Sarah A. Robinson and her issue."

The testator then gives Mrs. Robinson absolutely, as her separate property, some household furniture, and one thousand dollars, which he directs his executors to pay to her immediately on his decease, or as soon thereafter as possible.

By the 5th clause of his will, the testator gives to his executors certain slaves by name in trust for Mrs. Robinson and her children and grandchildren, as is provided in the fourth clause.

The sixth clause is as follows:

" 6. In the event of the marriage, or the attaining to the age of twenty-one years of any child of my said daughter Sarah Ann Robinson, it shall be the duty of the executors, if required so to do, in writing under the hand and seal of my said daughter, and attested by at least two credible witnesses, to make to, or for the benefit of, such child, such advancement from the estate given in trust for my daughter and her issue, as shall not exceed such child's portion of said trust fund, but such advancement may be as much less than such portion as my said daughter may direct. And in the writing thus executed by her, my said daughter may prescribe on what terms, trusts, conditions and limitations such advance shall be made; and it shall be settled accordingly under the superintendence of my executors."

By the ninth clause of his will, the testator gave to his executors in trust, for the four children by name of his daughter Mary C. Corbin, an estate in the county of Caroline, called the " Reed's plantation." The same to be for their equal benefit, with limitations over to the other children if one or more of them died unmarried, under...