Garland's Adm'r v. Garland's Adm'r

• Decision Date: 01 December 1887
• Citation: 4 S.E. 334,84 Va. 181
• Parties: Garland's Adm'r v. Garland's Adm'r et al.
• Court: Virginia Supreme Court

4 S.E. 334

84 Va. 181

Garland's Adm'r

v.Garland's Adm'r et al.

Supreme Court of Appeals of Virginia.

December 1, 1887.

ExECUTOEg and Administrators^l-dgment against—Foreign Administrator.

A decree against the domiciliary executor of a decedent may be enforced against an administrator d. b. n. of the same decedent in any jurisdiction.

Appeal from circuit court of city of Lynchburg.

This was a bill in equity brought by John F. Slaughter, administrator of Samuel Garland, Sr., deceased, against Charles Y. Morris, administrator d. b. n. of B. Garland, deceased, and Mary Garland, his surety, to charge the said Charles Y. Morris, administrator, with a decree rendered against the domiciliary executor in Mississippi of B. Garland, deceased. The bill was dismissed on demurrer, and the plaintiff appealed.

Jubal A. Early, J. A. Jones, Kirk patrick & Blackford, and E. C. Burks, for appellant. E. 8. Brown and IV. J. Robertson, for appellees.

Fauntleeoy, J. This is an appeal from a final decree pronounced by the circuit court of Lynchburg on the fifth day of December, 1881, in a suit in chancery pending therein in which John P. Slaughter, administrator de bonis non with the will annexed of Samuel Garland, Sr., deceased, is complainant, and Charles Y. Morris, administrator with the will annexed of Burr Garland, deceased, and Mary Garland, his surety, are defendants. It appears from the record that Samuel Garland, Sr., who was a citizen of Virginia and resident of Lynchburg, died there in 1861, seized and possessed of a large estate, real and personal, in Virginia, and also of a large estate, real and personal, in the state of Mississippi; the latter consisting of two large plantations, called "Barrens" and "Tudor Hall, " respectively, in Hinds county, Mississippi, and a third large plantation in Coahoma county, Mississippi, and of slaves, farm stock and implements, provisions, furniture, and provender on the said three plantations, needful for and used in their cultivation. The said Samuel Garland, Sr., left a will disposing of all of his estate in Mississippi as well as in Virginia, and in express terms declaring that he did not intend to die intestate as to any part of his estate. He named and appointed in his will Charles R. Slaughter and Samuel Garland, Jr., both citizens of Virginia, to be executors of his will, and by whom he manifestly intended that his whole estate in both states should be administered. His will was duly proved and admitted to probate in the hustings court of the city of Lynchburg, in December, 1861. and the two executors named therein, successively, qualified in Virginia as such, and both of them died on or before September, 1862; whereupon the appellant, John F. Slaughter, a citizen of Virginia, qualified in Virginia as administrator de bonis non c. t. a. of the said Samuel Garland, Sr., deceased, in October, 1862, and he is now and has been since December, 1862, the sole personal reprsentative of Samuel Garland, Sr., in Virginia. Neither of the said executors so named, nor said John F. Slaughter, ever qualified in Mississippi as personal representative of said testator; owing, probably, to the condition of war in which the country then was. On the sixth of November, 1862, Burr Garland, a brother of the said testator, and a citizen of Mississippi, and resident of Hinds county of that state, had admitted to probate in the probate court of Hinds county, Mississippi, an authenticated copy of the said will of the said Samuel Garland, Sr., deceased, and then and there was by the said Hinds county court appointed and qualified as administrator c. t. a. of said Samuel Garland, Sr., and he took possession of the entire estate, real and personal, in Mississippi. He continued as such administrator until December, 1869, when he died in Lynchburg, being on a visit to Virginia. During the period of his said administration, he made two or more partial settlements ex parte of his accounts as administrator; and by the last of which, made but a short time before his death, he was indebted to the estate of the testator, Samuel Garland, Sr., in the sum of $6,545, as of December 9, 1868. The said Burr Garland left a will, in which he named William H. Garland, a citizen and resident of Mississippi, as his executor. This will was duly admitted to probate in the probate court of Hinds county, Mississippi, in January, 1870, and the said William H. Garland then and there qualified as executor thereof. The ninth clause of the will of Samuel Garland, Sr., deceased, is as follows: "My favorite brother, B. Garland, raised by me, and long a resident of Mississippi, is, and has for a long time past been, embarrassed in debt by losses by trade in 1837, and liability as surety for others. It might be unsafe to devise property to him absolutely. I therefore set apart in trust, in the hands of my executors, for the benefit of my said brother, either of my said plantations", in Hinds county, called Barrens' or ' Tudor Hall, ' whichever he may choose, and forty slaves in families, say about twenty-five hands, balance head of families, children, and house servants, to be selected by him, with provender, house and kitchen furniture, plantation tools, etc., oxen, hogs, etc., to make a complete estate. The profits of the estate are set apart for his (B. Garland's) use, under his superintendence; but neither the estate nor the profits shall be bound for his past debts or liabilities, other than decent and comfortable support. At his death, all the property in this clause is to pass to Charles Y. Morris, in trust to the separate use of his wife, Paulina B. Morris, and her children."

The statute law of Mississippi peremptorily required the said William II. Garland, the executor of Burr Garland, deceased, to make prompt and final settlement of the accounts of his said testator, as administrator c. t. a. of Samuel Garland, Sr., deceased, as aforesaid, and, in obedience to this requirement, the said William II. Garland, executor of the will of Burr Garland, deceased, proceeded to make his final settlement of his testator's said administration accounts with the estate of Samuel Garland, Sr., deceased. To this end, and to give this settlement a finality and judicial authority, which it could not have if made ex parte only, he invoked the aid of the proper court of equity, and filed his petition in 1872 as executor of Burr Garland, deceased, in the chancery court of the Second district of Hinds county, Mississippi, (which had succeeded to the jurisdiction of the probate court,) praying that court to make final settlement of the accounts of his testator, Burr Garland, as administrator c. t. a. of Samuel Garland, Sr., deceased; filing, as a part of his petition, a copy of said Samuel Garland's will, and giving the names and address of all parties interested in said settlement, and under said will, praying that they be made parties to the proceeding, and among these parties were the appellees Charles Y. Morris, trustee of his wife and children, said Paulina B. Morris, and said Mary Garland. Publication was ordered and duly made against each of said parties; and, in addition, the clerk of the said court mailed to each of them a certified copy of the said order and publication, and, among others, to the said Morris, trustee, and Paulina B. Morris, and Mary Garland, and there is no denial that the same were received by them, nor any intimation that they were not received. This proceeding by the said executor of Burr Garland, deceased, progressed in the said court from 1872 until twenty-sixth February, 1874. No one appeared in person or by counsel, except the executor of Burr Garland, and the appellant, John F. Slaughter, in his own right, and as administrator d. b. n. c. t. a. of Samuel Garland, Sr., deceased. Burr Garland's executor presented his statement of accounts. There were exceptions, which were fully argued, and considered by the court, and some sustained, and some overruled. There...