Va. Sur. Co. Inc v. Hilton

• Decision Date: 11 October 1943
• Citation: Va. Sur. Co. Inc v. Hilton, 27 S.E.2d 62, 181 Va. 952 (1943)
• Parties: VIRGINIA SURETY CO., Inc. v. HILTON.
• Court: Virginia Supreme Court

27 S.E.2d 62

181 Va. 952

VIRGINIA SURETY CO., Inc.

v.HILTON.

Supreme Court of Appeals of Virginia.

Oct. 11, 1943.

Appeal from Circuit Court, Dickenson County; Alfred A. Skeen, Judge.

Suit by L. N. Hilton against B. H. Amburgey, as administrator of the estate of J. H. Amburgey, deceased, for the sale of real estate of the deceased, wherein the plaintiff filed a supplemental bill asking for judgment against the Virginia Surety Company, Inc., surety on the administrator's bond, for the amount which plaintiff claimed had been wasted by the administrator. From a decree for plaintiff, the surety appeals.

Reversed and final decree rendered for surety.

Before CAMPBELL, C. J., and HUD-GINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Willis & Willis, of Roanoke, and R. E. Williams, of Grundy, for appellant.

S. H. & George C. Sutherland, of Clintwood, for appellee.

GREGORY, Justice.

J. H. Amburgey died intestate in June, 1936, leaving surviving him his widow and five children, of whom three were minors. His son, B. H. Amburgey, qualified as administrator of the estate and gave bond for $3,000 with the Virginia Surety Company, Inc., as surety.

The estate consisted of a stock of merchandise which was appraised at $1,389; cash in bank, certain fixtures and other small items, all of which were appraised at the aggregate value of $2,458.50. There were several parcels of real estate.

The merchandise was sold by the administrator to his uncle for $1,389, the full appraised value. The sale was made on credit and the purchase price was to be paid at the rate of $50 per month. Monthly notes for $50 were made by the purchaser, payable to the administrator. They were endorsed by the grandfather and grandmother of the administrator who were solvent at that time.

The administrator filed his annual report on June 19, 1937, and his account as admin-istrator was settled by the commissioner of accounts. Also, there were three other settlements in this cause made before him as a commissioner of the court, to which we will later refer.

There was an indebtedness due by the estate to L. N. Hilton for $1,750 which was evidenced by a series of notes made by J. H. Amburgey during his lifetime. They were payable at the rate of $50 per month, ten of which were paid, leaving twenty-five unpaid, aggregating $1,250 exclusive of interest.

It was apparent that the personal property would be insufficient to pay the obligations of the estate, and, therefore, L. N. Hilton instituted a suit to sell the real estate of the deceased. This was done and the net amount of $335.10 realized from the sale was applied as a credit on the indebtedness due Hilton. The suit was for the sole purpose of selling the real estate of the deceased and to pay his debts.

Later, the cause was referred to a commissioner of the court who restated the account. The account disclosed that the assets in the administrator's hands were still insufficient to discharge the liabilities.

In January, 1942, Hilton filed a supplemental bill in the cause, alleging that the administrator had been guilty of a breach of trust, and had squandered the assets of the estate, and asking for a judgment against the surety for the amount which he claimed had been wasted by the administrator. The cause was again referred to a commissioner in chancery, who made a report upon which the final decree in this cause was entered.

The decree appealed from, in accordance with the report, awarded the complainant $1,579.23 with interest, and the Clinchfield Lumber & Supply Company $100.47 and $8.25 costs with interest. Liability for these respective amounts was fixed against the administrator and his surety, the Virginia Surety Company.

At the bar of this court when this cause was presented and submitted, counsel for the appellant, Virginia Surety Company, stated that he desired this cause to be decided upon the merits rather than upon the pleadings and certain procedural questions to which he had directed certain assignments of error. One or more of those questions are of serious import and might have warranted a reversal of the decree. The fact that we ignore them here is not to be taken as our approval of the rulings of the court which were questioned by the assignments of error. The fact that they have been expressly waived by counsel, alone, renders it unnecessary to discuss or decide the issues raised by them.

The challenged decree of December 7, 1942, holds that the estate was solvent; that the administrator had in hand more than enough assets to pay all debts in full but that he had squandered the assets. A money decree against the administrator and his surety, Virginia Surety Company, in favor of creditors is awarded, including interest and attorney's fee, which, together with the amounts paid to various creditors, is in excess of the value of the entire assets of the estate. Under Code, section 5389 (Michie), the administrator cannot be charged beyond the assets of the estate, and interest ceases where the estate is insolvent. Metompkin Bank, etc, Co. v. Bronson, 172 Va. 494, 2 S.E.2d 323.

The administrator has not appealed from the decree. The Virginia Surety Company alone has appealed.

It is apparent from the record before us that the decree is not supported by the evidence. There is no evidence in the record from which it may be concluded that the...