Trevelyan's Adm'r v. Lofft

• Decision Date: 14 April 1887
• Citation: 1 S.E. 901,83 Va. 141
• Parties: Trevelyan's Adm'r v. Lofft and others.
• Court: Virginia Supreme Court

1 S.E. 901

(83 Va. 141)

Trevelyan's Adm'r

v.Lofft and others.

Supreme Court of Appeals of Virginia.

April 14, 1887

1. Executors and Administrators— Accounting—Settlement—Entry of Judgment on.

Suit having been brought against an administrator to obtain a settlement of his accounts, he appeared before the commissioner for the purpose of making the settlement, when the distributees demanded that he should settle his accounts, as agent also, in which capacity he had acted for the intestate before her death. This he refused to do, and, without making a settlement as either administrator or agent, he went off to England, where he was taken ill and was unable to return for 18 months. In the mean time the case was proceeded with, and both of his accounts made up, he being represented by counsel. Objection was made to entering final judgment against him, and a continuance was asked, because by his illness and absence he had been prevented from attending in person and submitting his evidence. Held, that the continuance was properly denied, because (1) the demand of the distributees that he should settle as agent as well as administrator was reasonable, and in accordance with the practice in Virginia, especially as the balance due as administrator could not have been accurately ascertained without first settling the accounts as agent; (2) his personal attendance was not necessary to a fair settlement, as all of his books and papers were accessible to his counsel; and (3) his act in leaving the state was voluntary.

2. Same—Forfeiture of Commissions—Discretion of Court.

Where a statute provides that a personal representative, who fails to lay before the proper commissioner a statement of his receipts for any year for six months after its expiration shall forfeit his compensation, but the court may nevertheless, in its discretion allow to him compensation, such discretion is not arbitrary, but must be reasonably exercised upon the circumstances of the case, and is subject to review upon appeal. It is incumbent upon a delinquent fiduciary, who asks the court to exercise its discretion in his favor, to give a reasonable excuse for his delay; otherwise compensation ought not to be allowed him.

8. Same—Reasonable Excuse fob Delay.

It appeared from the evidence that appellant was appointed administrator on September 24, 1879, but had made no settlement of his accounts, or statement of receipts, until March 4, 1881, when he appeared before the commissioner, in obedience to a decree, to settle, but then refused to settle because the distributees demanded that he should settle as agent also, and two months afterwards left the state, and went to England, where he was taken sick, and remained for two years. Held, that these circumstances do not constitute a reasonable excuse for the delay in making a settlement, and appellant is not entitled to commissions.

4. Same—Sale of Assets.

It is the duty of a personal representative, under ordinary circumstances, not to sell, but to collect, the debts due the estate. When a sale, however, is made by the executor, in the exercise of his best judgment, when the interest of the estate required it, and in good faith, the sale should be approved.

5. Same—Sale of Raileoad Bonds—Liability fob.

In this case the estate was indebted, and the administrator, in order to raise funds to pay off the debt, sold certain bonds of a railroad...