Edmunds' Adm'r v. Scott

• Decision Date: 20 March 1884
• Citation: 78 Va. 720
• Parties: EDMUNDS' ADM'R v. SCOTT AND ALS. ELCAN'S ADM'R v. WATKINS AND ALS.
• Court: Virginia Supreme Court

78 Va. 720

EDMUNDS' ADM'R v. SCOTT AND ALS.

ELCAN'S ADM'R v. WATKINS AND ALS.

Supreme Court of Appeals of Virginia.

March 20, 1884

Two appeals heard and submitted together; first, from decree of circuit court of Charlotte county rendered March 30th, 1881 in the chancery causes of Scott and als. v. Watkins and als and of Elcan's Adm'r, & c. v. Watkins and als which were consolidated; and second, from decree of said circuit court rendered September 22d, 1881, in said causes.

Opinion states the facts.

O G. Kean, J. R. Watkins, J. A. Jones, Wood Bouldin, Jr., for the appellants.

W. W. Henry, for the appellees.

OPINION

FAUNTLEROY, J.

The following state of facts appears from the records of these causes: Thomas E. Watkins, of the county of Charlotte, died in November, 1861, leaving his will, which was duly probated at the December term of the county court, 1861, of the said county, and at the same term of the said court, Joel Watkins, his brother, and Joel W. Marshall, his nephew, qualified as executors of his said will, giving their bond in the penalty of $100,000, with James P. Marshall, John F. Edmunds, and John P. Marshall as sureties. The estate of the testator, which came to the hands of the said executors, consisted of fifty-six slaves and other personalty, aggregating a value of $76,789.24. In addition, the testator left a tract of land, containing 1,723 acres, in the county of Charlotte, and a lot in Farmville, Virginia, of the aggregate value of $25,899.

By his will the testator directed, first, that all his just debts be promptly paid; secondly, he gave to his brother, Joel Watkins, (one of the executors) the whole of his landed property in Charlotte county, thirty-two slaves, and all debts which he, Joel Watkins, might be owing to the testator at his death; third, he gave seventeen slaves to James P. Marshall; fourth, he gave his sister, Mrs. Ann E. Read, $7,000 in money, his lot in Farmville, and six slaves, placing the said property in the hands of Joel W. Marshall (the other executor) as a trustee; fifth, he gave to his niece, Betty, wife of John P. Marshall, a negro man. He then gave his nieces, Nannie and Ellen Morton, and to his nephew, H. M. Harris, $1,000 each, and directed that after the above legacies were paid the bonds and debts due him should be equally divided between the said Joel Watkins and James P. Marshall. The residue of his estate, including the crops, stock of all kinds, furniture, & c., he gave to his said brother, Joel Watkins.

The testator owed very little as principal debtor; but he died largely bound as security. The executors paid nearly all the testator's own debts within the first two years of their administration; but they left unpaid all the debts for which he was bound as surety, which amounted, on September 1st, 1871, when an account of them was reported, to $17,846.19. At the death of the testator, in 1861, they amounted to only about $11,000. The executors, with a knowledge of these debts, but believing that the principals were solvent, and that their testator's estate would never be called on to pay any part of them, proceeded to pay and deliver the special legacies at once. Within their first year they collected $12,390.42, and paid the legacies to the Mortons and Harris, amounting to $3,000, and the legacy to Mrs. Read of $7,000, and, after paying some debts and charges of administration, had left in their hands $1,223.52-- these two alone aggregating $11,223.52, a sum sufficient to have paid off the entire liabilities of their testator's estate. In addition to these, Joel Watkins took possession of, as his own, the residuary legacy left him, amounting to $7,994.25; and, within the next year, he received in cash, on his special legacy, $5,939.44. Then he received, in money and his bond, $9,468.76; and the executors turned over to James P. Marshall his own bond to the testator, as a part of his legacy, amounting to $6,952.79.

No refunding bonds were taken by the executors from these legatees.

Soon after the war a large number of claims were put in suit, and judgments obtained upon debts for which the testator was surety; and, in 1869, this suit of Scott and others v. Watkins' Executors, & c., was brought to enforce the collection of the said debts out of the estate of the testator, Thomas E. Watkins. In his answer to the bill, Joel Watkins says: " Your respondent and his co-executor went on to distribute the estate of their testator, as directed by his will, never supposing that any difficulty could arise from their so doing; the slaves bequeathed were delivered; many of the debts were collected in Confederate money, then the only currency in circulation, and paid out to the parties entitled. Your respondent then received the residuum given him; disposed of it as his own, and of all the estate and property given him by his brother; has nothing now left but the land lying in this county on which he resided at the time of his death."

In 1870, a bill was filed in the same court, by A. E. Elcan's administrator, a judgment creditor of the said Joel Watkins, to subject his real estate to the payment of the judgment against him. The two suits were consolidated and heard together. By a commissioner's report, the liens on the real estate of Joel Watkins were ascertained to be, as of September 1st, 1871, $30,585.65; and these embraced most of the debts established against the estate of his testator, Thos. E. Watkins, deceased.

In these suits large sales have been made of the real estate in the possession of Joel Watkins, and the proceeds applied, till, in 1881, the unsold real estate of Joel Watkins, including that derived from his brother, Thomas E. Watkins, his testator, was 1,027 acres, assessed at $7,162.00, and no one had been found who was willing to buy it at that price.

At that time the debts against the estate of Thomas E. Watkins, deceased, amounted to $23,325.22, as ascertained by a master commissioner's report. Joel Watkins was then dead, and his entire estate, in the hands of his administrator, was assessed at a valuation of $803.16, other than the land derived from his brother, and this subject to liens other than those for which Thomas E. Watkins was bound, so that only a small part of these assets could be relied on to relieve the estate of Thomas E. Watkins.

In this condition of affairs the creditors of Thomas E. Watkins claimed that the executors had committed a devastavit, and were liable, with their sureties for the amount of their debts. Joel W. Marshall, the co-executor, had died, a discharged bankrupt. Of the sureties, James P. Marshall had become insolvent, and had conveyed his entire estate to secure other debts, which had exhausted his assets. John P. Marshall had died insolvent, leaving an estate of less than three thousand dollars to pay an indebtedness, other than his liability as surety for the executors of Thos. E. Watkins, of $30,000. John F. Edmunds, the other surety, had died in 1863, leaving an estate then valued at $122,417.97. He left a will, which was duly probated, by which, after giving some small legacies, he directs his whole estate, real and personal, to be sold, and gives one-half of the proceeds to his widow, and the other half to certain relations named; but desired his estate to be kept together till his debts were paid, and afterwards till the death of his widow, if she desired it. His widow qualified as executrix of his will without security. Soon after her qualification she divided the personal estate of her testator as directed by the will, but without regard to his liability as surety on the bond of Joel Watkins and Joel W. Marshall, executors of Thomas E. Watkins, deceased. The said widow died in 1872 or '73, leaving a will by which she disposed of her estate. After her death the estate of John F. Edmunds, deceased, was committed to the sheriff of Charlotte county, Richard J. Gaulding, the appellant; but no personal property came to his hands, and the land, which had never been sold, was divided among the devisees under the wills aforesaid of John F. Edmunds and Susan W. Edmunds, his widow. Upon an amended bill filed in 1880, in the case of Scott, & c. v. Watkins, & c., all persons who had received portions under the said wills, together with the personal representatives of the...