Saunders v. Griggs' Adm'r

• Decision Date: 11 March 1886
• Citation: 81 Va. 506
• Parties: SAUNDERS v. GRIGGS' ADM'R AND ALS.
• Court: Virginia Supreme Court

81 Va. 506

SAUNDERS v. GRIGGS' ADM'R AND ALS.

Supreme Court of Appeals of Virginia.

March 11, 1886

Appeal from decree of corporation court of Danville, rendered June 6th, 1882, in the chancery cause of Greenberry T. Griggs administrator of Jeremiah Griggs, deceased, and administrator de bonis non with the will annexed of George Hairston, senior, deceased, for the benefit of himself as such administrator, of P. Henry, George W. Napier, Thomas J Penn, John Staples, and of John H. Davis and E. J. Pannill committee of George H. Calloway, a lunatic, creditors of the said George Hairston, complainants, against Fleming Saunders and nineteen others, defendants.

The facts of the case are as follows:

In 1863, George Hairston, senior, of Henry county, died, leaving a will which was duly admitted to probate, and Jeremiah Griggs qualified as administrator with the will annexed. By his will the testator bequeathed considerable real and personal property, and, amongst other things, $1,000 of Virginia State stock to each of seventeen grandchildren. In June, 1866, the administrator delivered to each grandchild the legacy aforesaid, taking from them, respectively refunding bonds with approved security. In 1874, one George W. Napier, a creditor of the estate, instituted in the circuit court of said county, a creditors' suit for the benefit of all the creditors, which suit is still pending. In that suit an account was ordered and taken of the assets and of the debts of the estate, which account was reported, and was, by said circuit court, confirmed at its May term, 1877.

The testator was liable as the surety of the committee of George H. Calloway, a lunatic, for some $16,900. Nothwithstanding this creditors' suit, then pending, on the 27th of March, 1880, Greenberry T. Griggs, administrator of said Jeremiah Griggs, then deceased, who had been administrator c. t. a. of said testator, as such administrator, filed his bill in said circuit court, at the relation and for the benefit of P. Henry, George W. Napier, Thomas J. Penn and others, creditors of the testator, against Fleming Saunders, the appellant here, and John S. Draper, and Susan J., his wife, and the other legatees of the testator, alleging the death of the testator, his will and its probate, the administratorship of the said Jeremiah Griggs, the indebtedness of the testator's estate to said Jeremiah, as such administrator, for the costs and charges of the administration, and to the other relators in certain specified sums, amounting in the aggregate to $20,805.56, principal, besides interest and costs, including, however, the said debt as security to said lunatic's estate, as having been ascertained by decrees of the said circuit court in the said creditors' suit, and of the chancery court of the city of Richmond, in a suit to which the said legatees were parties; the legacies to the said grandchildren, and the payment of the same, and the taking of said refunding bonds. The bill also charged that after the execution of said refunding bonds, the said debts had appeared and been established against the estate, and that all, or nearly all, of the property embraced in the will, except the said specific bequests, had been applied in the due course of administration, and that the residue of unadministered assets, together with the amounts realized by the legatees out of the said specific legacies of stocks, was wholly insufficient to pay the said debts; that the conditions of the said bonds had been broken; that since the execution of the bonds John S. Draper, C. H. Ingles and W. D. Bungle had intermarried with three of the female legatees. And the bill prayed that the defendants answer on oath, and say particularly, what amount had been realized upon said legacies; that proper accounts be taken, and that the defendants be required to pay to the complainant for the use of said relators, the market value of the said legacies, or such proportions thereof as might be necessary to discharge the said debts.

At the May rules, 1880, the said cause was set for hearing as to all the defendants except Henry Saunders, the appellant here, and five others, as to whom it was continued, those six not having been served with process. At May term, 1880, Draper and others, as to whom the cause had been set for hearing, filed their demurrer to the bill, assigning that the complainant's remedy was plain and adequate at law by action on the refunding bonds. These defendants also filed their joint answer, averring that the testator's estate was sufficient to satisfy all lawful demands against it, without recourse upon said legacies, and referred to the records of said creditor's suit of Napier v. Hairston's Adm'r, & c., then pending in the said circuit court, and denied the alleged breach of the condition of said refunding bonds, and denied also the liability of said Draper, Ingles, and Bungle on the said bonds on account of the supposed liability thereon of their respective wives. But, at the same term, the said circuit court overruled their said demurrer, and ordered an account to be taken by Commissioner Bryant of the indebtedness and of the assets of the estate, of the specific legacies, and the amount realized therefrom, of the solvency of the obligors in the said bonds, of the liabilities of the several defendants arising from the execution of said bonds, or from intermarrying with the said female obligors for the indebtedness of the estate, & c. On the 8th of October, 1880, Commissioner Bryant returned his report, showing the indebtedness of the estate to be $21,694.79, as of January 1, 1880. It showed no other assets than the specific legacies, which nominally amounted to $26,000, but the actual value of which aggregated only $8,353, and that all the obligors were solvent except seven.

Fleming Saunders, the appellent here, was served with process January 3, 1881, and the cause was set for hearing as to him and the other defendants, who, like him, had not been previously served with process at March rules, 1881. On the 3d of May, 1881, the cause was heard on the papers formerly read, the bill taken for confessed as to the said Fleming Saunders, and the said remaining five defendants, the report of Commissioner Bryant, and the depositions and exhibits returned therewith, and the said report, without exceptions thereto, was confirmed, and a decree was then entered that Fleming Saunders pay to the complainant $766, with interest from June 18, 1866, and that J. S. Draper, and Susan J., his wife, and C. H. Ingles, and Bettie M., his wife, each pay to the complainant the sum of $766, with interest as aforesaid, and so as to the obligors in each of said bonds, except such of them as had pleaded their several discharges in bankruptcy. On the 21st day of May, 1881, a vacation order was entered, at the instance of Fleming Saunders and others, suspending the decree of May 3, 1881, to allow time for a petition for appeal. And after due notice said Fleming Saunders, on the 6th of June, 1882, moved the court, under section 5, chapter 177, Code of 1873, to reverse the said decree of May 3, 1881, for certain errors specified in the notice. But the court, being of opinion that there was no error in the decree, overruled the motion and dismissed the notice. From the decree last mentioned said Saunders obtained from one of the judges of this court an appeal and supersedeas.

Samuel W. Williams, for the appellant.

Whittle & Anderson and Green & Miller, for the appellees.

OPINION

RICHARDSON, J., after stating the case, delivered the opinion of the court.

As has been stated, this case is here on appeal from the decree of the court below overruling the appellant's motion to reverse the decree of May 3d, 1881, by which Commissioner Bryant's report was confirmed and the appellant and others required to pay to the complainant below, the appellee here, the several sums for which, according to that report he and his co-defendants were liable on the refunding bonds executed by them on the receipt of their specific legacies. Such motion, in the court which rendered the decree complained of, and its overruling by said court, were essential in order to enable this court to allow an appeal, because the decree was rendered upon the complainant's bill taken for confessed. Code 1873, chapter 177, sections five and six. By the fifth section the court which gives such decree may, upon motion, reverse it " for any error for which an appellate court might reverse it." It is true this section requires that every motion under this chapter shall be after reasonable notice to the opposite party. But nowhere in that chapter is it required that the notice shall specify the errors on the face of the record, & c., for which the reversal is asked. Under Code 1873, chapter 178, section eight, a petition for an appeal, & c., must assign errors. Yet it is the well known practice for appellate courts not to confine themselves to the errors specified in the petition, but to reverse the decree complained of for any substantial error disclosed by the record, whether mentioned in the petition or not. It is then difficult to perceive how this court, in the case of Gunn v. Turner's Administrator, 21 Gratt. 382, could have arrived at the conclusion counsel for the appellee contends it came to in that case; that though said chapter 177 does not require the notice of the motion to reverse a decree under sections five and six to assign the errors, yet the court will not notice any error, however substantial it...