Rice,v,hartman's Adm'r Et Al

• Decision Date: 05 January 1888
• Citation: 4 S.E. 621,84 Va. 251
• Court: Virginia Supreme Court
• Parties: Rice v Hartman's Adm'r et al

4 S.E. 621

84 Va. 251

RicevHartman's Adm'r et al

Supreme Court of Appeals of Virginia.

January 5, 1888.

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1. Wills—Contract for Provision—Action to Enforce.

A bill. in equity will lie against the representatives of a deceased for the purpose of ascertaining the amount to which the complainant is entitled from the estate by reason of a bargain with the deceased, whereby the latter agreed to provide for the former in his will.

2. Same—Contract for Provision—Construction of.

A contract by which a deceased promised to "assist" the complainant "now, " and, after the former's death, to leave the latter and his family a sufficient amount to justify them in returning from a distant state to live with him, is fulfilled by his supporting them for eight years, and leaving them at his death a small property, and evidence of these promises and facts is not sufficient to entitle complainant to a further recovery from the estate of the deceased.

Appeal from circuit court, Fauquier county.

Brooke & Scott, for appellant. William H. Payne, for appellee.

Lewis, J. This is an appeal from a decree of the circuit court of Fauquier county. The bill alleges that by a contract between the complainant and the intestate, Peter Hartman, the latter bound himself to make provision by his will for the complainant or his family, and that he died without doing so; by reason whereof, it is further alleged, the complainant is a creditor of the estate in a large sum, which he puts at $15,000. The administrator and the widow and heirs at law are made defendants to the bill, and its prayer is that the amount of the complainant's debt be ascertained by a reference to a master commissioner; that an account of the assets, real and personal, and of the debts of the estate, and their priorities, be taken; and for general relief. There was a demurrer to the bill, which the circuit court overruled; but the court, being of opinion that the evidence "failed to make out a case which justifiesthe interposition of a court of equity, " dismissed the bill, whereupon this appeal was taken.

1. The demurrer was rightly overruled. The acceptance by the complainant, the appellant here, of the offer contained in the letters of the intestate, which are set forth in the bill, constituted a contract, for the alleged violation of which the complainant was entitled to sue, and the bill is substantially a creditors' bill and unobjectionable on its face. In Duerson's Adm'r v. Alsop, 27 Grat. 229, the bill, which was filed to subject the real estate in the possession of the heirs of the deceased debtor to the payment of the plaintiff's debt, prayed that an account of the debts of the estate, and all other necessary accounts, be taken, but said nothing of other creditors; yet the objection to the jurisdiction of a court of equity in the case was overruled. Under the prayer of the bill, said the court: "A decree for a general account may be entered, all the creditors permitted to come in and prove their debts, and all the assets administered in the one suit. The bill is therefore substantially a creditors' bill, although it does not profess to be filed in behalf of all the creditors of the decedent. See, also. Swing''s Adm'r v. Furguson, 33 Grat. 548; Hum v. Keller, 79 Va. 415; Carter v. Hampton's Adm'r, 77 Va. 631, 1 Barb. Ch. Pr. 271 et seq. The bill in the present case was not filed for the specific performance of a contract, or to recover any specific property, but to recover such a sum as, it is alleged, the intestate ought, pursuant to his contract, to have devised or bequeathed the complainant; or, in other words, a sum sufficient for the comfortable maintenance of the complainant and his family. It was there-tore competent for the court either to have acted upon the case, so far as ascertaining whether anything was due the complainant was concerned, without the aid of a commissioner, or to have referred the matter to a commissioner for inquiry and report, or to have directed an issue as an incident of the suit, to be tried' by a jury at its own bar. Nagle v. Newton, 22 Grat. 814; Powell v. Manson, Id. 177; Fishurne v. Furguson, ante, 575. The case of Robertson v. Hogsheads, 3 Leigh, 667, is not in point. This is a creditors' bill; that was not, but was, in effect, a suit in equity to recover damages founded upon an alleged fraudulent misrepresentation in the sale of a tract of land. The cases are therefore clearly distinguishable. Schouler, Wilis, § 453; 1 Story, Eq. Jur. § 546 et seq.

2. The decree is also right upon the merits. It is impossible to read the record and come to any other conclusion than that, if the appellant had brought an action at law to recover damages for a breach of the contract m question, he would have been entitled, at most, to recover nominal damages only. The facts are these: In November, 1879, the intestate died at an advanced age, leaving a considerable estate, consisting chiefly of lands lying in Fauquier county. He left a widow, but no lineal heirs. His collateral heirs were numerous. The appellant married a niece of the intestate's wife, and for some time carried on the business of a saddler and harness-maker at the village of Paris, in the said county. In 1871, he removed to the state of Missouri. Up to that time he appears to have accumulated of this world's goods little or nothing. The following year, at the request of the intestate, he returned to Virginia, and took up his abode at the house of the intestate, in consideration of a written promise on the part of the latter to provide for him and his family. It does not appear that at the time of his leaving Missouri his prospects there, in a business or pecuniary point of view, were flattering, or even encouraging. Indeed, upon this point there is no evidence at all. The offer to him to return to Virginia was made a few months after his removal from the state, and appears to have been accepted without much hesitation, though very indefinite in its terms. He had a wife and a number of children; to one of whom, particularly, the intestate was much attached. The traveling expenses of the family to Virginia were borne by the intestate, and there is not a particle of evidence to show that the appellant has ever lost, or islikely to lose, a penny by his acceptance of the intestate's offer to take from his shoulders the burden of maintaining his family. Indeed, it would seem that the acceptance of the offer, apart from any expectation of a testamentary provision, was a most advantageous arrangement for the appellant. His family were comfortably maintained for nearly eight years, without any expenses whatever to him. This of itself amply justified him in returning to the state; at least, such is the fair inference from the record. And in addition to this he was given by the intestate a house and lot worth upwards of $500. He must have been both an indolent and improvident man, for although relieved of the burden of maintaining his family until the...