Heirs v. Kent

• Citation: 5 W.Va. 96
• Court: West Virginia Supreme Court
• Decision Date: 31 January 1872
• Parties: David Surber's Heirs v. Kent, Paine & Co. et al.

5 W.Va. 96

David Surber's Heirs

v.Kent, Paine & Co. et al.

Supreme Court of Appeals of West Virginia.

January Term, 1872.

The payment of the debts of bis decedent, which were created before the war, by an administrator, out of his own funds collected from debts due him prior to the war, in Greenbrier county, in the years 1862 and 1863, at the instance and request of the widow and heirs, and with a view to save the real estate from being sold during the war (the personally being exhausted), in Confederate treasury notes, is a valid payment or advancement, for which the administrate is entitled to be reimbursed out of the real estate descended.

This was a suit in equity in the circuit court of Greenbrier county, brought to August rules, 1866. The object of the bill was to collect a debt due the plaintiffs, Kent, Paine & Co., from the estate of David Surber. William White was administrator of Surber, deceased, and it appeared from the master's report that he had, in the years 1862 and 1863, at the instance of pressing creditors, and the widow and heirs, advanced largely of his own means to the payment of the indebtedness of the estate. Such payments had been made in Confederate treasury notes, and were the proceeds of debts clue White before the war, and collected in such treasury notes.

Surber's widow and heirs were parties defendant with the administrator. A decree was rendered at the September term, 1868, in favor of the plaintiffs, for their debt, and also decreeing that White, administrator, be reimbursed for sundry amounts advanced by him, including the sums advanced in the years 1862 and 1863, in Confederate treasury notes. The decree further provided for the sale of the real estate descended from Surber, to satisfy the debts due.

The heirs of Surber appealed from this decision.

Price & Sperry for appellants. Dennis & Snyder for appellees.

The only error assigned and complained of by the appellants is, that the court improperly allowed the administrator the nominal value of the Confederate money advanced by him in the payment of the debts of the estate. And they state, as a principle of law, to sustain this assignment of error, that "a personal representative of an estate cannot buy up the debts of the estate at a discount and charge the estate with the full value of the same."

As an abstract proposition, we are not prepared to say that the appellants have stated the law correctly. It is admitted that a personal representative cannot use the assets of the estate and buy up the debts at a discount and charge the estate with their face value. But the law is not so clear where an administrator, after having fully administered and faithfully applied all the assets to the payment of the debts, that he may not, with his own funds, buy up debts of the estate and hold them against the estate for their full value without regard to what he may pay for them.

But, in the case at bar, it is unnecessary for us to maintain this distinction. In defending the conduct of the appellee, White, we may concede the law to be as comprehensive as stated by the appellants.

Before proceeding further, however, we deem it proper to examine the case as presented by the record, and ascertain, precisely, the matters in controversy. The court will observe that this is an appeal by defendants against a co-defendant;, that the appellants have never answered the bill; that there are no pleadings which put any matters in issue between the appellants and appellee; that none of the vouchers or evidences of debt paid off by the administrator, appear in the record; that there is no proof of the kind of money advanceel by the administrator to pay off the debts, except his own admission, and he says to obtain the Confederate money thus advanced, he converted par funds of his own, and paid dollar for dollar without any gain to himself; that there is neither allegation nor proof to show the character of the currency designated as Confederate money nothing to show that it was not legal and of par value; that the deposition of M. L. Spotts, Nickell and others, referred to in record, page 32, taken in behalf of the administrator to prove that he had converted 13 his own par funds to discharge the debts of the estate, have been omitted from the record; and that there is no denial anywhere of the facts stated by the appellee, White.

The legal conclusions which follow from these premises are, that the appellants, if they ever had any ground to object to the proceedings in this cause, have waived it, because a defendant, who has not answered, cannot be heard in an appellate court upon any matter which might have been adjudicated in the court below, but was not, for the want of an answer to put it in issue; and a fortiori, the appellants cannot here adjudicate, without answer or cross-bill, matters between themselves and their co-defendant. If they desired to exclude the advancements made by the administrator, upon any ground, they should have put the matter in issue in the pleadings. The fact that the appellants have omitted from the record and failed to except the vouchers paid off and filed in the court below by the administrator, is an admission that they were valid and proper charges upon the estate. And the absence of any attempt to controvert the fact that the administrator, to obtain the money to pay off the debts of the estate, converted par funds of his own and paid dollar for dollar without any gain to himself, admits the truth of the fact thus stated, and for the same reason they omitted the depositions of Nickeil and others taken in support of the administrator's testimony on this point. Negatively, thus the case presents itself.

Affirmatively, it appears that in January, 1862, when the appellee, White, took charge of this estate, a great civil war was waging between the loyal and seceding States, the latter known as the Confederate States; that the county of Greenbrier was under the control, and within the military lines of the said Confederate States; that the parties to, and the subject matters of this suit, were in said county; that the only currency in circulation in said county, from 1861 to 1865, wai Confederate money; that this currency was " impressed upon the country by irresistible force;" that the administrator conducted his administration in the manner which not only he, but the widow and heirs, thought was best for the interest of the estate, and that he acted under the circumstances in good faith and with that care and diligence thai a judicious man would have exercised in the conduct of his own affairs.

And, in October, 1866, long after the estate had been fully administered, the present appellants, with a full knowledge of all the facts, stated in writing that they had urged and requested the administrator to make the very advancements of which they now complain. Have they, then, any equity in their pretensions in this suit?

In their exceptions, the appellants style the appellee "an interloper, with no legal rights." Exactly what is intended by this language, we are unable to deduce from any facts in the record. It seems, however, to be an assumption that White was not a legal administrator.

But there is nothing in the pleadings or the proof, to impeach the validity of his qualification. The bill states that he was the administrator, and the bill is confessed by the appellants. Should the court, however, be of opinion that his qualification was invalid, that he should be treated as an executor de son tort, still this fact can avail the appellants nothing, for he took charge of the estate with their full, knowledge, consent and approbation not only this, but he managed the estate as requested by them, and after he had fully administered, they ratified his course. "A settlement made by the county court with a de facto guardian, and not complained of in the bill, will be presumed and taken to be fair by the chancellor," Crook vs. Turpin, 1 B. Monroe, 186, and when the guardian has been guilty of no fraud, the chancellor will treat him as an ordinary trustee and legal guardian, so far as his liability, for whom he acted, is concerned Id 185.

It is claimed by the appellants, that the administrator paid off various large debts of the estate, in the " worthless and illegal currency of the Confederate States," and that it was error to credit him for the same. It is admitted that the debts, thus paid off by the administrator, were valid debts, against the estate, the larger portion of them being secured by trust deeds upon the realty, and the administrator was bound as security for their payment. At the time these debts were paid, the exclusive currency in that section of the country was Confederate money. This currency had a fixed and ascertained value in the community; it was received at its par value in all the ordinary transactions of business; with it any commodity could be purchased at a fair price, and no one hesitated to receive it at par in the payment of debts contracted upon a specie basis. No law of the federal government, and no statute of this State, ever made it a penal offense to receive or pass this currency, or avoided contracts based upon it, or prohibited its circulation. The supreme court of the United States, and, it is believed, the supreme court of every State which has had the question under review, with, perhaps, the single exception of Louisiana, in some manner, at this time, fully recognize the validity of contracts based upon this currency. In the case of Thorington vs. Smith, the supreme court says:" While the war lasted, however, they (Confederate notes) had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force. It seems to follow as a necessary consequence from actual supremacy of the insurgent government, as a belligerent, within the...