Smith v. Blackwell
| Decision Date | 16 January 1879 |
| Citation | 72 Va. 291 |
| Court | Virginia Supreme Court |
| Parties | SMITH & als. v. BLACKWELL & als. |
Absent, Moncure, P.[a1]
1. B is the guardian of J, and upon J's coming of age B has a settlement with J of his account as guardian, and being found indebted on the account in the sum of $3,000, he executes to J his four bonds, each for $750, payable in one, two, three and four years, with interest. B pays the interest during his life, and a part of the principal, and was up to the war able to pay the whole--HELD: The giving and taking these bonds was not a novation of the debt, but the debt due from B to J continued to be a fiduciary debt, and entitled to rank as such in the administration of B's estate.
2. In a suit for the administration of B's estate the commissioner classifies the debt of J among the general creditors of B, and there is a decree confirming the report and distributing a fund in court pro rata among these creditors. There were several other decrees for accounts of further debts of B, and still a fund in court to be distributed, when J made himself a defendant in the suit and filed his petition insisting that his was a fiduciary debt--HELD: The decree confirming the report was an interlocutory decree, and J was not concluded from setting up his claim as a fiduciary creditor of B.
This was a suit in equity in the circuit court of Fauquier county brought in March, 1867, by Moore C. Blackwell against the administrator, widow and heirs of his father, James Blackwell, deceased, for a sale of the real estate of said James Blackwell for the payment of his debts, the bill alleging that the personal estate was not sufficient to pay them.
The bill was taken for confessed as to all the defendants, and on the 8th of April, 1867, a decree was made directing Joseph II. Blackwell, the administrator, to render an account of his administration before one of the commissioners of the court and the commissioner was further directed to report to the court the character, situation and value, annual and fee simple, of the real estate of which the said James Blackwell died seized and possessed; the nature, amount and priorities of the liens, if any, upon said real estate; and also to ascertain and report the amount, priorities and dignity of the debts and liabilities of the said James Blackwell deceased, and for that purpose that he convene the creditors by publication, & c.
On the 3d of August, 1867, Commissioner Pugh returned his report from which it appeared that on October 24, 1866, the administrator was indebted to the estate $540.46; the fee simple value of the land was estimated at $44,041.39, and its annual value at $1,600; and it did not appear there were any liens upon it.
The commissioner also reported a statement of debts, which he divided into classes. The first class contained but one fiduciary debt, and that due as committee of a lunatic amounting to $2,871.45 as of the 1st of September, 1867. All other debts, except voluntary obligations, were included in the second class, and they were forty-six in number, and amounted, as of the same date, to $48,415.90. Of these there was a debt due to James D. Blackwell, due by four bonds of $750 each, dated the 19th of March, 1849, and payable in one, two, three and four years, with interest from date; and on these there was due on the 19th of March, 1867, $3,071.67, and interest on $2,520.20 from that date, $68.04, making due the 1st of September $3,139.61.
On the 16th of September, 1867, the cause came on to be heard upon the papers formerly read and the report of Commissioner Pugh, to which there was no exception, when the court recommitted the report and directed the commissioner to take a further account of debts, and appointed commissioners to sell the real estate at private sale upon terms stated in the decree.
In September, 1868, Commissioner Pugh returned his report of additional debts amounting to $6,271.75. And the cause coming on to be heard on the 11th of January, 1869, on that report of Commissioner Pugh, and also on the report of sales of land by the commissioners, these reports were confirmed, except the two sales to William H. Gaines. And James Keith was appointed a commissioner to collect the purchase money of the land. And it being suggested that there were still outstanding debts not reported on, Commissioner Pugh was directed to enquire and report any further debts that might be proved before him.
There was still another report of debts by Commissioner Pugh, and also of a distribution of the fund in the hands of Commissioner Keith; and on the 20th of September, 1870, there was a decree directing a commissioner of the court to consolidate the reports of Commissioner Pugh theretofore returned, and classify the creditors of James Blackwell, deceased, according to their priorities, crediting all amounts paid to the creditors aforesaid, and to distribute the sum of $10,007.84 then in the hands of Commissioner Keith; and to report forthwith.
On the 30th of September, 1870, Commissioner Shepherd returned his report, in which he consolidated the previous reports, and distributed the fund in hand. The whole amount of debts with interest up to the 1st of October, 1870, was $70,984.25. In this report James D. Blackwell is placed among the general creditors, and his share of the fund to be distributed is stated at $518.82. And on the 1st of October, 1870, the cause came on to be heard, when the court, not deciding any other matter involved in the cause, decreed that Commissioner Keith should distribute the said fund in his hands among the creditors of James Blackwell according to the distribution thereof made by Commissioner Shepherd. And R. Taylor Scott was appointed a special commissioner to collect the unpaid purchase money.
In September, 1873, James D. Blackwell filed his petition in the cause, alleging that James Blackwell was his guardian during his minority; and that immediately upon the petitioner's coming of age he had a settlement with the said Blackwell, guardian as aforesaid, who executed to the petitioner his four notes for the amount then found due to him. He states the amount due him as reported by Commissioner Pugh on September 1st, 1867, viz: $3,139.61, which he insists was erroneously reported as not being a fiduciary debt. And he asks that there may be an enquiry before a commissioner as to the true character of the debt due to him. A decree was accordingly made referring the matter to a commissioner for enquiry and report.
On the 1st of December, 1873, the commissioner returned his report, in which he stated that on the 2d of December, 1831, James Blackwell qualified as the guardian of James D. Blackwell, then a minor. In March, 1849, James D. Blackwell came of age, when his guardian, James Blackwell, had a settlement with him, and upon that settlement brought himself indebted to his said ward in the sum of $3,000. He gave his individual bonds, four in number, for said amount, each for $750, and dated the 10th of March, 1849, and payable in one, two, three and four years. Thus the matter has stood from that day to the date of the report, the said James Blackwell having paid not only the interest due upon said bonds, but a part of the principal. These four bonds, together with a statement of said debt claimed by said James D. Blackwell, were filed before Commissioner Pugh, and he reported said debt in favor of said James D. in his report of the 3d of August, 1867, as a debt due by said James Blackwell as a bond debt, payable pro rata with the other claims of the same character against said estate; and this report of Commissioner Pugh was confirmed by decree of the court entered on the 11th of January, 1869, in this cause. These are the facts of the case, and the commissioner leaves it for the court to say whether the said James D. Blackwell's claim is or is not a fiduciary debt.
The bonds referred to by the commissioner were returned with his report, and they are all in the following form:
One year after date I bind myself, my heirs, executors and administrators to pay to James D. Blackwell, his heirs or assigns seven hundred and fifty dollars, value received, to bear interest from date.
As witness my hand and seal this nineteenth of March, eighteen hundred and forty-nine.
JAMES BLACKWELL [Seal].
James D. Blackwell was examined as a witness in his own behalf though he was objected to as incompetent. He proved that the bonds were given by his guardian upon a settlement made with him the day after he came of age, and the guardian not being able to pay in cash what was due him, gave him the said bonds. James Blackwell had during his lifetime made to him the payments stated in Commissioner Pugh's report. He made no objection to this mode of settlement at the time or subsequently. He regarded it as safest in his hands, as he was a man of reputed wealth, and witness was in no immediate want...
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