Rawlings' Ex'r v. Rawlings

• Citation: 75 Va. 76
• Parties: RAWLINGS' EX'OR v. RAWLINGS AND ALS.
• Decision Date: 09 December 1880
• Court: Supreme Court of Virginia

75 Va. 76

RAWLINGS' EX'OR v. RAWLINGS AND ALS.

Supreme Court of Appeals of Virginia.

December 9, 1880

Absent, Moncure, P.

1. In a suit for the administration of an estate, a decree which settles the principles of the case and distributes the whole property to the parties entitled, and directs the payment of the costs, leaving nothing to be done in the cause, is a final decree, though it may possibly become necessary to resort to measures to enforce it.

2. On a bill to review a decree on the ground of error in law, the errors must be such as appear on the face of the decrees orders and proceedings in the cause, arising on facts either admitted by the pleadings or stated as facts in the decrees. But if the errors be errors of judgment in the determination of facts, such errors can be corrected only by appeal.

3. In this case, held the decree was a final decree, and that the errors sought to be corrected were not errors of law apparent in the decree, but errors, if errors, of judgment on the determination of facts on which the decrees complained of are based.

4. If the decree in this case was interlocutory, and the bill treated as a petition for rehearing, after the long acquiescence by the parties in the decrees settling the questions in the cause, and all the circumstances of the case, the rehearing should not be granted.

William Rawlings, of the county of Loudoun, died in 1859, leaving a widow, but no children. He left a large estate, principally in debts due to him. These amounted to about $83,000. By his will he gave to his widow certain real estate for her life and two slaves, and $20,000 in bonds absolutely; and after some legacies, he directed the residue of his estate to be divided into eight equal parts, one of which he gave to each of his brothers and sisters, or their descendants, if they died before him. In December, 1859, F. M. Young qualified as executor of his will, and in January, 1861, settled an account of his administration, when it appeared that he had collected of the assets nearly $40,000, and had paid out in debts and legacies nearly $30,000, leaving a balance in his hands of $9,068.63, as of the 13th of December, 1860.

The widow of Wm. Rawlings was adjudged to be a lunatic in 1860 and her committee, Andrew Robey, filed his bill, in which he averred that the said widow had renounced the provision made for her by the will, and claimed that she was entitled to one-half of her husband's personal estate, and her dower in one-third of the real estate. To this bill Young answered averring that when Mrs. Rawlings was of sound mind she, with full knowledge of her rights, and under the advice of a friend whom she consulted, had accepted the provision made for her in the will, and he had delivered to her the slaves and bonds bequeathed to her.

The war having suspended proceedings in the courts in Loudoun, this cause lingered on the docket until 1865, when it was dismissed by the plaintiff.

In 1866 Young, the executor of Rawlings, filed his bill in the circuit court of Loudoun, in which he set out what he had done in the administration of the estate of his testator, and said that the suit of Robey had forbade him to distribute all the assets in his hands; that he had made some payments to some of the residuary legatees; but that some of them were in the western country, so that he could not pay them during the war, and he had therefore invested a large part of the assets in his hands in Confederate bonds in his name as executor which investment had been approved by Judge Thompson; and he asked that he might administer the estate under the direction of the court. He made all the residuary legatees parties defendants to the bill. Three of these legatees answered the bill, and objected to his being allowed a credit for his investments in Confederate bonds.

There was a decree for an account of the executor's transactions; and the commissioner made a report, in which he allowed the executor credit for the amount of the assets invested in Confederate bonds, and also a sum of $1,633 standing to his credit as executor in the bank at the end of the war. To this report J. W. Batson, one of the residuary legatees, filed five exceptions. The first of these exceptions was to the uniting in one account the legatee account with the executorial account. The second, third, and fourth was to the allowance to the executor credits for moneys he had invested in Confederate bonds, and for the amount to his credit in bank.

The cause came on to be heard on the 30th day of January, 1868, when the court sustained the first exception; and as to the second, third and fourth exceptions, " the court having maturely considered the matters embraced therein, and being of opinion that the executor, F. M. Young, has acted in good faith, and for what he deemed the best interest of the estate, and that the investments made by him were in strict conformity with the then laws of the de facto government of Virginia, and that no liability rests upon him, therefore doth overrule the said second, third and fourth exceptions, and direct that credit be given to him in his executorial account for the amounts embraced in said exceptions." And not passing on the fifth exception, the commissioner was directed to reform his account according to the decree.

The commissioner corrected his report as directed by the decree of January 30th; and the cause coming on to be heard on the 1st of May, 1868, there being no exception to the report, it was confirmed; and the executor was directed to settle further from time to time his accounts before a commissioner of the court in the cause, and collect and distribute the funds in his hands, or to come to them after paying costs of administration, to the parties entitled under the will of the testator.

There were several settlements of the accounts of the executor, showing payments of expenses of administration, and to the different residuary legatees, to none of which was there any exceptions; and in October, 1873, the court decreed that the commissioner do ascertain and report the uncollected assets of the estate, classifying the same as good, doubtful and bad, the amount collected and on hand, the amount paid to the several legatees, and the amount still due them of the assets undistributed, with a view to a final settlement of the estate.

In October, 1874, the commisioner returned his report. He stated the whole amount of the estate to be distributed among the residuary legatees at $32,306. Of the uncollected assets of the estate in bonds, & c., there were: good, $19,020.23; doubtful, $1,003.47; bad, $3,037.56. He then stated an account with each of the legatees showing how much the executor had paid each of them, and distributing to each one the amount of good uncollected bonds necessary to make up his share of the estate. And it appeared that he had overpaid two of them. And the report states that this statement includes the whole of the estate except the doubtful and bad debts, none of which does he think will ever be available; and if any should be, it may be required to make good some portions allowed, that contingencies arise which may be necessary to amend.

There was no exception to this report; and the cause coming on to be heard on the 27th of January, 1875, the same was confirmed, and Young, as executor of William Rawlings, was ordered to pay out of the money and bonds in his hands according to said report, that is to say, to William H. Rawlings in cash $171.82, in bonds $608.75. And the decree was in the same form as to each of the other legatees. And the said F. M. Young was directed, in case he can realize anything from the doubtful and bad debts, to dispose of the same as suggested by the commissioner, or to divide the same ratably among the parties entitled; and he was directed, out of the funds retained for the purpose, to pay attorneys' fee and costs of suit.

In June, 1876, J. Wesley Rawlings, in his own right and as executor of John D. Rawlings, deceased, and the descendants or representatives of two others of the residuary legatees of William Rawlings, who had been parties in the suit of Rawlings' executor, filed their bill in their own behalf and in behalf of such other of the legatees of William Rawlings, deceased, as chose to unite with them, against F. M. Young, as executor of William Rawlings, deceased, and his sureties, and the other residuary legatees, in which, after setting out the will of William Rawlings and the qualification of Young, they refer to the case of Young v. Rawlings and als., and state that he retained in his hands the $9,068.63, and collected debts due to the estate, and invested the money in Confederate bonds, and that he had in bank at the end of the war $1,053. That in the progress of the cause his account was settled, and by a decree entered at the April term, 1868, he was allowed credit in said settlement for the amount of these investments in Confederate bonds and the Confederate currency held by him at the end of the war; and on what purports to be a final settlement confirmed by the court at the January term, 1878, there is found in the hands of the executor for distribution the sum of $32,306.09 in money, $19,020.23 in good bonds uncollected, and $4,041.03 in bad and unsettled debts. It is proper to add, the bill says, that most of this $32,306.09, denominated money, consists of advancements made by the executor to the legatees, with interest thereon to the final settlement, October 20th, 1874.

They allege that there are gross errors in the settlements made in said suit, and in the decrees confirming them. And they proceed to set them out. The first is in allowing the executor credit for the amount of his collections in Confederate money and...