Gibboney's Ex'x v. Kent

• Citation: 82 Va. 383,4 S.E. 610
• Parties: Gibboney's Ex'x v. Kent and als
• Decision Date: 16 September 1886
• Court: Supreme Court of Virginia

4 S.E. 610

82 Va. 383

Gibboney's Ex'x v. Kent and als

Supreme Court of Virginia

September 16, 1886

Decrees reversed.

SYLLABUS

Argued at Wytheville. Decided at Staunton.

Appeal from decrees of circuit court of Montgomery county pronounced December 5, 1878, December 5, 1882, and May 19, 1883, respectively, in the cause of Jacob Kent's heirs and distributees, complainants, against Elizabeth G. Gibboney, executrix of Robert Gibboney, executor of said Jacob Kent, and others, defendants. The decrees were unfavorable to the executrix, and she obtained an appeal and supersedeas.

Opinion states the case.

J. W. Caldwell, for the appellant.

W. R. Staples, T. E. Sullivan, and George G. Junkin, for the appellees.

OPINION

Fauntleroy, J.

The record discloses the following case: In the year 1858, Jacob Kent, of the county of Montgomery, in Virginia, died seized of a large landed estate, and possessed of large personal property, and left no will. On the 8th of June, 1858, at the request of the children of the said Jacob Kent, who were entitled as heirs and distributees of his estate, Robert Gibboney qualified as administrator of the estate of the said intestate.

The personal assets which came into his hands amounted to $ 57,500, inclusive of slaves of the appraised value of $ 33,500. The indebtedness of the estate amounted to about $ 43,500. A public sale of most, if not all, of the said slaves was necessary; but, as some of the said children were extremely adverse to a public sale of the slaves, to avert it, and, at the same time, to indemnify the administrator in the premises, it was, by common agreement, arranged between them and the administrator that each of them might take such of said slaves as he or she might select, at their appraised value; said administrator to account for them at the same value, and to sell the residue at private, instead of at public sale; and at the same time that he should be empowered, in writing, as agent of the said children and heirs of Jacob Kent, deceased, to sell all the real estate of which said Jacob Kent had died seized, either at public or private sale, on such terms as he might think best. Written papers to such effect were duly executed, and appear in the record.

Accordingly, the said Gibboney, in the due exercise of his said powers, as administrator and as agent, disposed of all the property composing the estate, mainly to and among the said children, and the residue to strangers; and out of the proceeds he paid all charges and debts, and then to the several children and heirs he paid their respective shares of the surplus; and of his said transactions he returned to the county court of Montgomery county aforesaid, four several statements or accounts, which were confirmed by the said court and ordered to be recorded.

These settlements were made before commissioners duly appointed by the county court of Montgomery, and they showed balances due to the administrator and agent, while they left in the hands of the said Gibboney, as administrator, only a very few small claims due the estate, of a slow and doubtful character and trifling face value; and as agent for the sale of the lands, only the uncollected purchase money of one of the parcels of the said lands, and these small and doubtful claims, and purchase-money bonds for this parcel of land were put into the hands of one of the distributees, who resided in the immediate neighborhood of the debtors, and said settlements were considered to be in full of said Gibboney's trust and responsibility in the premises. The said distributees were all of age at the commencement of these transactions, and all of them but one resided in Montgomery county; and, in August, 1862, in anticipation of these said settlements, they all united in deeds to the several purchasers of the said lands, reserving liens for the unpaid purchase money. Copies of these deeds are found in the record.

In April, 1867, Robert Gibboney died, testate, and the appellant, Elizabeth G. Gibboney, qualified as executrix of his will.

In April, 1878, fifteen years after the aforesaid settlements of the administrator with the heirs and distributees, duly recorded and supposed to be final -- eighteen years after the first of them had been confirmed by the county court and ordered to be recorded, in their immediate neighborhood -- and eleven years after Robert Gibboney's death, and when his estate had been in main distributed and mostly consumed, the bill in this suit was filed, in which it is sought to have all the aforesaid settlements of the administrator, Robert Gibboney, with the heirs and distributees of Jacob Kent, ignored, and an account de novo of all his said transactions; and failing in that, to have the said settlements surcharged and falsified in a long list of particulars.

At the May term, 1878, of the circuit court of Montgomery county the appellant, Elizabeth G. Gibboney, executrix of the will of Robert Gibboney, deceased,...