Maria Wilson Page, Relict and Administratrix of Mann Page, Deceased Mann Alexander Page and Jane Maria Page, Infant Children of the Said Mann Page, By the Said Maria Wilson Page, Their Mother and Next Friend, Complainants v. John Lloyd, Executor of Osgood Hanbury, Who Was Surviving Partner of Capel and Osgood Hanbury, Robert Patton, Administrator With the Will Annexed of Mann Page, Deceased John Page, Lewis Burwell, Administrator of Robert Page and John Minor, Defendants

• Decision Date: 01 January 1831
• Citation: 8 L.Ed. 14,5 Pet. 304,30 U.S. 304,8 L.Ed. 134
• Parties: MARIA WILSON PAGE, RELICT AND ADMINISTRATRIX OF MANN PAGE, DECEASED, MANN ALEXANDER PAGE AND JANE MARIA PAGE, INFANT CHILDREN OF THE SAID MANN PAGE, BY THE SAID MARIA WILSON PAGE, THEIR MOTHER AND NEXT FRIEND, COMPLAINANTS, v. JOHN LLOYD, EXECUTOR OF OSGOOD HANBURY, WHO WAS SURVIVING PARTNER OF CAPEL AND OSGOOD HANBURY, ROBERT PATTON, ADMINISTRATOR WITH THE WILL ANNEXED OF MANN PAGE, DECEASED, JOHN T. PAGE, LEWIS BURWELL, ADMINISTRATOR OF ROBERT C. PAGE AND JOHN MINOR, DEFENDANTS
• Court: U.S. Supreme Court

30 U.S. 304

5 Pet. 304

8 L.Ed. 134

8 L.Ed. 14

MARIA WILSON PAGE, RELICT AND ADMINISTRATRIX OF MANN

PAGE, DECEASED, MANN ALEXANDER PAGE AND JANE MARIA

PAGE, INFANT CHILDREN OF THE SAID MANN PAGE, BY THE

SAID MARIA WILSON PAGE, THEIR MOTHER AND NEXT

FRIEND, COMPLAINANTS,

v. JOHN LLOYD, EXECUTOR OF OSGOOD HANBURY, WHO WAS

SURVIVING PARTNER OF CAPEL AND OSGOOD HANBURY, ROBERT

PATTON, ADMINISTRATOR WITH THE WILL ANNEXED OF MANN

PAGE, DECEASED, JOHN T. PAGE, LEWIS BURWELL,

ADMINISTRATOR OF ROBERT C. PAGE AND JOHN MINOR,

DEFENDANTS.

January Term, 1831

THIS case came before the circuit court from the eastern district of Virginia, upon certain questions certified from that court, upon which the judges of the circuit court were divided: which, with the facts, are fully stated in the opinion of the court.

The case was argued by Mr Key and Mr Wirt, for the complainants: Mr Patton read a written argument prepared by Mr Johnston.

Mr Justice M'LEAN delivered the opinion of the Court.

This cause is certified from the eastern district of the circuit court in Virginia, the judges of that court being divided in opinion.

The legal question arose out of the following facts, which are substantially stated by the defendant's counsel. Mann Page the second, having made his will, died in 1803, leaving a large estate, real and personal, the whole being charged with the payment of his debts.

The words in the will are, 'I do hereby subject all my estate, both real and personal, to the payment of my debts, and full power is given to my executors to sell and convey all or any part thereof, which in their discretion they shall deem it most expedient to dispose of for that purpose.'

To his wife he gave a life estate in a part of his farm called Mansfield; and the residue of it he bequeathed, in fee simple, to his two sons Robert and Mann.

He devised three several parcels of real estate, and, with the exception of his plate, all his personal property, to his executors, to be 'by them applied, in the first place, to the payment of his debts, and the balance, if any, to be divided among his three sons.' His daughters were provided for in the will, and the support and education of his children were charged upon his whole estate.

The testator, at his death, owed to Robert Patton three thousand five hundred and fifty-seven pounds twelve shillings and nine pence, which debt was secured by a deed of trust, on the Mansfield estate, dated the 12th of July 1799, bearing interest from the date. He also owed other debts to a large amount, which bound his real estate.

As the executors appointed by the will refused to act, Patton took out letters of administration, with the will annexed in October 1803, and gave sureties for the performance of his duties.

In 1804 he made sales of the personal property on a credit of twelve months; with the exception of certain sums which were required to be paid down. The devisees of the real estate took possession of it. That part which was devised to the executors seems not to have been in a condition to be sold.

Up to the year 1810, the administrator received, at different times, various sums of money from the personal assets, and made disbursements in payment of debts and expenses, for the support and education of the family, and in advance to legatees.

During this period he kept his administration account in a book provided for that purpose, in which his receipts and disbursements were entered; but the debt due to him, from the estate, or the interest on it, was not brought into the account.

In 1810 he furnished to his counsel the items of his account, and requested him to put it into proper form, and to introduce the deed of trust, 'as he might think proper.'

A statement of the account was made, under the direction of the counsel, in which the first item of the debit was the principal and interest of the above debt. This account balanced annually makes the administrator creditor, at the end of 1803, the sum of five thousand seven hundred and forty-six pounds twelve shillings and seven pence; at the close of 1810, of the sum of two thousand nine hundred and eighty-nine pounds twelve shillings and eleven pence; and the lowest annual balance exhibited in his favour was, at the end of 1807, two thousand and ninety-six pounds and six pence half-penny. In the account he did not credit the estate with the amount of sales, but with the amount of collections only.

Creditors Lloyd, &c. who had liens on the real estate, brought suits against the administrator and devisees; a sale of the Mansfield estate was ordered, and a receiver appointed.

In this state of things, in June 1810, the plaintiffs, who are the administratrix, widow and children of Mann Page, the devisor, called Mann Page the second, brought this suit against Robert Patton, administrator, and other representatives of Mann Page the second, to have a settlement of the administration account, and a distribution of the surplus. In their bill they allege that the administrator had received the personal assets of the testator, and mixed them with his own: and among other things complain of his attempting to pay himself the annual interest upon his debt, after omitting it in the account which he had kept of the administration.

The administrator answered in March 1811, exhibiting with his answer the account made out under the direction of his counsel, and which included the deed of trust.

He admits that he sold 'the personal property, and proceeded to pay the debts due from the estate, which he may not have paid, according to their dignity; as he was advised the whole real estate, which was more than sufficient to pay the debts, was chargeable with them.'

On the 7th June 1811, in the case of Lloyd, &c. vs. Patton et al. there was a consent decree, directing 'the commissioner of sales, out of the first instalment, which would fall due on the 1st of August, to pay costs and charges, and distribute the balance among Robert Patton and others, in the order of priority of their liens; limiting the payment to Patton, whose balance is unsettled, to any sum that the commissioner and William C. Williams might agree on; and taking from him a receipt, submitting himself to any order the court may in future make, for refunding any part of the same.' In the same cause, on the 1st June 1812, the former receiver being dead, the court made an order appointing Patton the receiver of the court, to collect the money remaining unpaid arising from the sale of the estate, called Mansfield, directing the purchasers to pay to him the purchase money as it fell due, and directing him to apply the money so received, in the payment of his testator's debts, according to their dignity.

Afterwards, in the same year, Patton made a report to the court showing that of the second instalment of the purchase money, he had received several sums, amounting together to sixteen thousand nine hundred and fifty dollars and eighty cents. That prior to his appointment as receiver, he had received from the former receiver, the sum of two thousand three hundred and thirty-three dollars and thirty-three cents, on account of the balance reported due to him, on his accounts as administrator; and 'which balance arose principally from a deed of trust given to him by Mann Page in his life time, on his Mansfield estate, to secure a debt then due, and which left a balance due the administrator of _____ dollars, which he retained out of the moneys received by him as above stated.' He also stated, that there were several debts due from the sales of the personal estate, which were in a train of collection.' There having been reports made of the administration accounts, exceptions were taken; the first and fifteenth of which it may be proper to notice.

In the first is stated the ground, on which the plaintiffs insist that the principal and interest of the debt secured by the deed of trust ought not to be introduced into the account, as was done by Patton, under direction of his counsel in 1810, but ought to be excluded from the account, because it had been excluded in the administration account kept by Patton in his book.

The fifteenth contains an objection to the manner in which interest is charged, and alleges in support of that objection, that the administrator received and mixed the money of the estate with his own. The account, with the exceptions, was recommitted in June 1813, and commissioner Nicholson made a report in the year 1815, crediting the interest on the debt due by the deed of trust, reporting the principal still due, and Patton indebted as administrator three hundred and seventy-five pounds thirteen shillings and three pence.

In November 1815, an order was made for directing payments by the receiver, and further accounts. A report was made in pursuance of this order, stating Patton to be creditor as administrator to the amount of fifty-seven pounds twelve shillings and five pence.

In 1820 another order was made in both causes, directing a further payment by the receiver, and further accounts to be taken.

Commissioner Barton, in September 1825, made a report in obedience to this order, in which he states that the defendant Patton contends that he has now the right to debit his testator's estate, in the account of his administration, with the amount of his deed of trust on the Mansfield property.

The plaintiffs object to this charge, and insist, that 'although the right to charge the personal assets with this debt once existed, it has been forfeited; not only from the neglect to exercise it, but by his election to charge it on the funds derived from the sale of the identical property, upon which there was a lien to secure it.'- The commissioner, not undertaking to decice the question thus raised, presented two statements to the court.

In the first he placed the principal of the deed of trust, together with the interest from December 1814, to the credit of the receiver. In the...