Dearing v. Walter

• Decision Date: 10 June 1940
• Citation: 9 S.E.2d 336
• Court: Virginia Supreme Court
• Parties: DEARING et al. v. WALTER et al.

9 S.E.2d 336

DEARING et al.

v.WALTER et al.

Supreme Court of Appeals of Virginia.

June 10, 1940.

Appeal from Circuit Court, Rappahannock County; J. R. H. Alexander, Judge.

Suit by Frank Walter and others against Annie M. Dearing, individually and as executrix of the will of Joseph C. Walter, and others to have terms of deceased's will carried out under supervision of court. From adverse decrees, defendants appeal.

Affirmed in part, and reversed in part.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Weaver, Armstrong & Marshall, of Front Royal, and Burnett Miller, Sr., of Culpeper, for appellants.

R. A. McIntyre, of Warrenton, for appellees.

CAMPBELL, Chief Justice.

This is an appeal from sundry decrees pronounced by the Circuit Court of Rappahannock county in a chancery suit instituted by Frank Walter, Richard Walter and Blanche Johnson, appellees, against Annie M. Dearing, in her own right and as executrix of the will of Joseph C. Walter, J. A. Dearing, W. Grimsley Dearing and Margaret Walter, widow of Joseph C. Walter (deceased), appellants.

Joseph C. Walter departed this life testate on February 28, 1928. Annie M. Dearing was named as executrix and directed: (1) to erect a suitable tombstone to the memory of the testator; (2) to convert the real and personal property into cash and pay certain specified legacies; (3) to divide the residue equally between appellants and appellees. This division was based upon the contingency of the survival of the wife, who, in that event should take a dower right in the estate.

On May 19, 1930, appellees filed their bill of complaint, in which they alleged the above facts, and specifically charged that the estate was not being properly administered by the executrix, and prayed that the terms of the will be carried out under the supervision of the court.

On July 25, 1930, appellants filed their joint answer, denying that the estate was being improperly administered. Upon the filing of the replication to the answer, the court entered a decree referring the matter to a commissioner to ascertain and report, among other things, all debts against the estate of Joseph C. Walter, deceased, including a settlement of the accounts of the executrix. At the hearing before the commissioner, W. G. Dearing presented a claim against the estate, evidenced by a bond dated November 6, 1924, in the principal sum of $2,875. Sundry depositions were taken by the commissioner in favor of and against the validity of this bond. On March 23, 1934, the commissioner filed a report containing this language:

"W. G. Dearing exhibited to your Commissioner as an existing debt against the estate a bond for $2,875.00, in the handwriting of the said W. G. Dearing and apparently signed by the testator. Upon cross-examination the said Dearing made inconsistent statements as to what was the consideration for this bond and promised in his depositions to exhibit concrete proof in the form of a check he claimed to hand. This he has not done. Considering the failure of said Dearing to produce this check and the evidence of four witnesses who testified that shortly before his death the testator claimed that the said Dearing was indebted to him, your Commissioner is not satisfied that the said bond is valid and a legal claim against this estate, especially as said Dearing has since been before the Commissioner and had an opportunity to submit some corroborative proof. Your Commissioner finds further and so reports that until these matters are finally passed on by the court he cannot possibly with the data before him make further report upon this inquiry as to the matters contained in the decree of reference; and he prays that he may have the further directions of the Chancellor."

To this report exceptions were filed by W. G. Dearing, asserting the validity of the bond. Thereupon, on May 18, 1936, the court "being of the opinion from the said record and the evidence therein that this cause will be rendered doubtful by the conflicting evidence of Grimsley Dearing a creditor * * *" ex mero motu decreed an issue out of chancery to determine the validity of the bond. The issue directed by that decree was never tried, as is shown by a decree entered March 19, 1937. In this decree it is recited that due to the failure of W. G. Dearing to appear and offer proof in support of the validity of the bond, the decree directing an issue out of chancery is revoked and annulled. The decree further recites that "the said debt was without consideration and is not a valid and subsisting claim against said estate." The decree further provides: "And the Master Commissioner * * * shall disallow the claim of Grimsley Dearing for $2,875.00 filed as a claim against the estate of the deceased Joseph C. Walter * * *." Pursuant to the direction of the court, the commissioner, on the 12th day of November, 1938, filed his report disallowing the claim of W. G. Dearing for the sum of $2,875. Exceptions filed to this report were overruled by decree dated the 17th day of May, 1939, and on July 31, 1939, a final decree was entered, confirming the report of the commissioner filed on the 29th day of June, 1939.

The action of the court in refusing to allow the claim of W. G. Dearing against the estate of Joseph C. Walter is assigned as error.

We are met at the threshold of the case with the contention of appellees that the claim of W. G. Dearing was finally adjudicated by the decree entered March 19, 1937, and therefore, the appeal as to him was im-providently allowed.

The first question to be determined is whether the decree of March 19, 1937, adjudicating the claim of W. G. Dearing, is a final decree, for if it is, the appeal of W. G. Dearing comes too late. See section 6337 of the Code of Virginia. To enterupon a full discussion of the characteristics of a final decree as contradistinguished from an interlocutory decree would result in a fruitless effort to glean in a judicial field which has been swept clean by the decisions of this court.

In a note appended to section 6337 of the Code is to be found a complete list of the cases decided by this court dealing with every phase of the question. See, also, monographic note appended to Evans v. Spurgin, 11 Grat. 615, 52 Va. 615, Virginia Reports Annotated.

Since the decision of this court in Royall's Adm'rs v. Johnson, 1 Rand. 421, 22 Va. 421, the fixed doctrine has been that a decree may be final as to one party and not final as to another part...