Daingerfield v. Smith

Citation1 S.E. 599,83 Va. 81
PartiesDaingerfield v. Smith and others.
Decision Date31 March 1887
CourtSupreme Court of Virginia
1. Executors and Administrators—Creditors' Bill—Sale—Account—Pri-

orities of Liens.

Where, in the case of a deficiency of personal assets, a creditor of the decedent tiles a bill for the purpose of subjecting land devised by him to the payment of his debt, it is error for the court to decree a sale for that purpose before ordering an account, and settling the priorities of the liens thereon, though the parties agree that a certain statement filed in the cause should be taken as a true exhibit of the indebtedness of the estate to the piaintiff.

2. Same—Decree to Rent—Insufficiency of Rents—Report to Court

Sale.

In a bill by a creditor against the devisees, or heirs at law of a decedent, the court should first make a decree for renting the land, and, if the rents should prove insufficient to satisfy the debts, a report should be made to the court for further proceedings to be had, before a decree can be made ordering a sale.

3. Same—Evidence—Judgment.

A judgment in a suit at law against the personal representative of a decedent cannot be used as evidence against the devisees or heirs at law, in a bill by the judgment creditor, to subject the land in their hands to the payment of the judgment.

4. Same—Consent Decree—Infants—Guardian ad Litem.

In a suit in equity by a creditor to subject the land of a decedent to the payment of a debt, the rights and interests of infant children are under the protection of the court, and, where a decree in the cause is entered by consent of the adult parties, and by the guardian ad litem of the infants, which is prejudicial to their rights, such consent decree is not binding on the infants.

5. Same—Action against1—Claim Originating Since Decedent's Death.

A creditor cannot maintain a suit to subject the assets of the estate of adecedent to the payment of a claim, originating since his death, by a suit against the personal representative of the estate as such.

0. Infancy—Estoppel—Judgment at Common Law—Suit in Equity to Enforce.

When a suit at common law is brought by a creditor upon an account against the personal representative of a decedent's estate, in which the heirs at law were not made parties, and therefore could not appeal from the judgment, held, in a suit in equity, to enforce the judgment against the lands of the decedent in the hands of the infant heirs, in which the record of the common-law suit was made a part of the plaintiff's bill, that they had the right to show the injustice of the account, and to demand strict proof of the same.

Appeal from circuit court, Essex county.

T. R. B. Wright, for appellant.

H. R. Pollard, for appellees.

Fauntleroy, J.. The petition of Eleanor N. Daingerfield and Louisa B. Daingerfield represents that they are aggrieved by two decrees of the circuit court of Essex county, both of them by a decree entered on the seventeenth day of September, 1881, in a suit in chancery depending in the said court, in which James W. Smith, administrator of W. L. Ellis, deceased, assignee of Burkett G. Reynolds, is plaintiff, and William J. Upsher, in his own right, and as administrator c. t. a. of William T. Upshir, deceased, H. W. Daingerfield in his own right and as committee of Louisa B. Upshir, L. B. Daingerfield, E. N. Daingerfield, and George W. Daingerfield, the three last mentioned infants under the age of 21 years, are defendants, and the said Louisa B. Daingerfield, by a decree entered on the nineteenth day of March, 1885, in the said court, dismissing her said bill of review to the said decree of seventeenth September, 1881.

The transcript of the record in the said suit discloses the following case:

Burkett G. Reynolds instituted, in the county court of Essex county, on the seventh of January, 1871, an action of trespass on the case in assumpsit against William J. Upsher, administrator with the will annexed of William T. Upsher, deceased, defendant, to recover $672.86 for services rendered as a physician, and medicines and attention furnished by plaintiff for defendant, at his request. The declaration, with bill of particulars, was filed February 6, 1871. At the March term, 1872, there having been no appearance for the defendant in person or by attorney, and no pleas put in, and no issues joined, the plaintiff being present and insisting upon the trial, the jury brought in a verdict for the plaintiff for $672.86, with interest on $575.50, part thereof, from January 1, 1865, and judgment was rendered according to verdict, and for costs, to be levied on the personal estate of the defendant's testator.

The bill of particulars filed with the declaration, the items beginning April 10, 1858, and ending October 15, 1865, shows that no credit was given except the item of cash $27, May 10, 1860, and this was the only item of credit or evidence of payment before the jury when it passed upon the account, and the judgment went by default. In August, 1877, William J. Upsher, administrator with the will annexed of William T. Upsher, deceased, obtained from the judge of the circuit court of Essex county to enjoin Burkett G. Beynolds, the plaintiff in the said judgment, and James W. Smith, the assignee of the said judgment, from enforcing the same. The bill charged thatthe said William T. Upsher died on the twenty-fifth of December, 1852, leaving a will, by which he devised and bequeathed the whole of his estate, except certain advancements charged in his will, to his widow, L. H. Upsher, for life, and at death to William J. Upsher, L. B. Upsher, George W. Upsher, and C. T. Upsher, who intermarried with H. W. Daingerfield, children of the testator; that on sixteenth May, 1853, William J. Upsher qualified as administrator with the will annexed, and, having settled all the debts, paid off the legacies, turned over the whole of the estate of the testator to the widow and tenant for life, and settled before the proper commissioner of the court his account of administration, which was approved and duly admitted to record, nineteenth February, 1855. The bill further charges that the said widow and tenant for life took all the property so turned over to her for life, the slaves, the personal property, and the farm, and held the same until her death, which occurred twenty-eighth November, 1862, whereupon he said property went into the hands of the children and remainder-men under the will; that the said William J. Upsher resided in Charles City county at the time of his qualification as administrator aforesaid, and, at the time of the death of the tenant for life, he was in the military service of the Confederacy; that after the war in the fall of 1865, the said William J. Upsher visited Essex county, and ascertained that all the debts and claims against his mother, the widow and tenant for life, Mrs. L. H. Upsher, and against G. W. Upsher, his brother who had died, had been settled, so far as could be ascertained, by H. W. Daingerfield, who had married C. T. Upsher, and who resided on the farm, who so informed him, and exhibited to him receipts, including receipts of Dr. B. G. Reynolds for medicines and medical services for the slaves held by the widow and tenant for life, and also account for articles furnished to the said Reynolds; that, although he had seen Dr. Burkett G. Reynolds on several occasions on his visits to Essex, the said Reynolds never mentioned or asserted any claim against William T. Upsher, or his estate, or against the estate of Mrs. L. H. Upsher, deceased, and that he was surprised to receive accounts against William T. Upsher, deceased, forwarded to him in Charles City county for medicines and medical services charged by Dr. Reynolds for years, commencing in 1858, (over five years after the death of William T. Upsher, the testator,) and ending in 1865, and that these accounts embraced the charges, and covered years identical with the charges and years, embraced in the account which he had rendered to Mrs. L. H. Upsher, the life-tenant, during her life, and for which he had received payment from H. W. Daingerfield, and executed his receipts, which are filed with the bill, to-wit: $100, July 15, 1864; $500, March 11, 1865; and in articles furnished from the estate to the amount of $101.87.

The bill charges that the said William J. Upsher, administrator c. t. a. aforesaid, was never served with the summons, or writ or otherprocess, in the said action of assumpsit by which the said judgment was obtained; that he left Virginia, and went south, and never heard of the suit or of the proceedings or judgment until his return to Virginia; that the Hon. B. B. Douglass was employed by H. W. Daingerfield at the first calling of the cause to defend the suit, and he is marked as counsel on the papers; that the cause was continued by consent; that at the May term, 1871, the said Reynolds had an agreement with H. W. Daingerfield that he (the said Reynolds) would instruct his counsel to dismiss the suit; that the said Daingerfield, relying on this promise, did not furnish the counsel for defense the evidences of payments and offsets which he held, and that neither Mr. Douglass, nor Mr. Daingerfield, made any appearance or defense by reason of the said promise; and that the said judgment was obtained at the March term, 1872, in the constrained absence of H. W. Daingerfield, by fraud, deceit, and surprise, under circumstances which precluded any defense at law; and that no defense was made from the bad faith and false assurances and representations of the plaintiff, the said Reynolds; that the said Reynolds, the plaintiff, was the only witness before the jury, and that he was incompetent to testify; that the items of credits, —$100 in 1864, and $500, March 11, 1865, — although entered in the accounts rendered and forwarded by Reynolds to William J. Upsher, and filed as exhibits with his bill for the first time, yet, in the bill of particulars filed by ...

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