Miller v. Miller's Ex'r.1

• Citation: 21 S.E. 471
• Parties: MILLER . v. MILLER'S EX'R.1
• Decision Date: 28 March 1895
• Court: Supreme Court of Virginia

21 S.E. 471

MILLER .

v.MILLER'S EX'R.¹

Supreme Court of Appeals of Virginia.

March 28, 1895.

Promise to Make Will—Evidence—Judicial Sale—Parties.

1. A court of equity will require the most convincing proof to sustain a claim that deceased agreed to make a will in favor of claimant, when he, in fact, did not do so.

2. In a suit to sell certain land, the beneficiary in a deed of trust upon the same, died after the appeal was perfected. The trustee in said deed was made a party, and all parties were before the court to enable it to distribute the proceeds of said sale except as above mentioned. Held, that the failure to make the executor of said beneficiary a party was not error.

Appeal from circuit court, Frederick county.

Proceeding by Maggie C. Miller, executrix, and Robert W. Miller, executor, of Thomas M. Miller, deceased, against Joseph A. Miller to enforce a land bond. Judgment for complainants, and defendant appeals. Affirmed.

Harrison & Byrd and Robt. M. Ward, for appellant.

Holmes Conrad, for appellees.

HARRISON, J. Dr. Thomas M. Miller died, leaving a last will and testament, dated October 10, 1878, by which he gave his wife, Maggie C. Miller, his personal estate absolutely, and his real estate for life, with remainder in the real estate, to be divided equally among his three brothers or their children, and appointed his brother, R. W. Miller, executor of said will. By a codicil dated April 14, 1879, he confirmed the will, and appointed his wife, Maggie C. Miller, as executrix. On the 3d day of February, 1890, this will was admitted to probate in the county court of Frederick county, and administration granted with the will annexed to Maggie C. Miller and Robert W. Miller, the executrix and executor named therein. Among other assets which came to the hands of these representatives was the following bond:

"$3,131.85. One day after—— I promise and bind myself to pay to Dudley L. Miller the sum of thirty-one hundred and thirty-one dollars and eighty-five cents, for value received. This is the balance due Dudley L. Miller on the farm purchased of him. This land bond is secured in the deed, and bears six per cent, per annum from date until paid. Witness my hand and seal this 2d day of November, 1880.

"[Signed] J. A. Miller. [Seal.]"

Indorsed as follows:

"I this day assign the within land bond to Thomas M. Miller for value received, Nov. 5th, 1880.

"[Signed] D. L. Miller."

Said bond has several other indorsements thereon, which acknowledge the payment of interest to April 1, 1884. This bond is secured by vendor's lien (reserved) in a deed from Dudley L. Miller, dated November 2, 1880, conveying to Joseph A. Miller a tract of land containing about 635 acres, lying in the county of Frederick, subject, however, to the lien of a certain trust deed upon the same tract, executed by the grantor, Dudley L. Miller, to William Byrd, trustee, dated October 15, 1878, to secure the payment of a bond of said Dudley L. Miller and Robert W. Miller, payable to Emily Funsten, for $4,424. This debt due to Emily Funsten was also assumed by Joseph A. Miller, the purchaser of said land, as part of the price to be paid therefor.

The personal representatives of Thomas M. Miller, deceased, filed their bill in the circuit court of Frederick county to enforce the payment of this land bond, charging that the principal, with a large amount of accrued interest, was long since due and unpaid. The complainants also set forth the prior deed of trust debt due to Emily Funsten, and pray that there may be an ascertainment of the liens, and a decree for the sale of the land to satisfy the same.

Joseph A. Miller, the owner of the land, Dudley M. Miller, the assignor of the bond to Thomas M. Miller, Emily Funsten, the beneficiary under the prior deed of trust, and William Byrd, the trustee in said deed of trust, are made parties defendant to this suit, answers under oath being waived.

To this bill Joseph A. Miller files his demurrer and answer, which answer is treated as a cross bill, in which he admits the general allegations of the bill to be true, but, as matter of defense and set-off against the bond sued on, respondent avers that in the lifetime of his father, Thomas C. Miller, respondent, and his three brothers, Robert W. Miller, Dudley L. Miller, and Thomas M. Miller, and his father, had an understanding in regard to the division of their father's estate, among themselves, by which it was agreed that $4,000 should be paid respondent Joseph A. Miller, which would be in full of his entire interest as heir in the estate of his father, and that $2,000 should be paid Thomas M. Miller, which would be in full of his entire interest as heir in the estate of his father; that Dudley L. Miller and Robert W. Miller were to pay these sums to Joseph and Thomas, respectively, when they would be entitled to the father's entire estate; that Dudley and Robert did pay respondent his $4,000, and executed their bonds to Thomas for his $2,-000, which bonds were not to be paid until their father died; that when the father died they did pay Thomas M. Miller the $2,000 due him. Respondent further avers that Thomas Mi Miller agreed that in consideration of this disposition of his father's estate he (Thomas) would leave a will, giving to his three brothers $6,000, which sum represented the entire amount he had received (including the $2,-000), by way of advancement or otherwise, as one of the heirs of his father. Respondent files with his answer and cross bill four exhibits, which he says relate to this alleged verbal understanding. Those exhibits are as follows:

Exhibit 1.

"Know all men by these presents that I, Thomas C. Miller, of this county of Frederick, state of Virginia, acknowledge, confess, and declare the sum of four thousand dollars ($4,000.00), paid by R. W. and D. L. Miller, my sons, to J. A. Miller, paid on the morn from the receipt given to him by said R. W. and D. L. Miller, is the full and equitable amount due him, with the several amounts paid or caused to be paid, theretofore is the full amount due him as an heir of my estate. And I further declare, in order to more fully protect my sons R. W. and D. L. Miller, that any will or declaration conflicting with this acknowledgment made by me hereafter to be null and void. In witness whereof to the within I set my hand and seal this 7th of Feb., 1878. Thomas C. Miller. [Seal.]"

Exhibit 2.

"Know all men by these presents, that I, Thomas C. Miller of the county of Frederick, state of Virginia, acknowledge, confess, and declare that the bond (held by my son Thos. M. Miller, payable at my death, of the sum of $2,000.00) two thousand dollars is the full amount due him as an heir of my estate, personal and real. And I further declare, in order to more fully protect my sons R. W. and D. L. Miller, that any will or declaration conflicting with this acknowledgment made by me hereafter is null and void. Feb. 9, IS79. Thomas C. Miller. [Seal.]"

Exhibit 3.

"Received of D. L. Miller one thousand dollars, the whole amount due me (from him) as heir of my father, T. C. Miller's estate (deceased), as per agreement dated Feb. 9th, 1879. Feb. 6th, 1889. Thomas M. Miller."

Exhibit 4.

"Received of R. W....