Wayland v. Crank's Ex'r

• Decision Date: 04 December 1884
• Citation: Wayland v. Crank's Ex'r, 79 Va. 602 (1884)
• Court: Virginia Supreme Court
• Parties: WAYLAND & WIFE v. CRANK'S EX'OR.

79 Va. 602

WAYLAND &WIFE v. CRANK'S EX'OR.

Supreme Court of Appeals of Virginia.

December 4, 1884

Appeal from decrees of circuit court of Albemarle county, pronounced in the years 1881, 1882 and 1883, in the cause of Crank's Executors against Crank's Heirs, & c.

R. G Crank died in 1881, leaving a will in which W. G. Farish was named as executor.The will gave executor privilege of taking testator's farm, " Home Place," at $15 per acre, and if he refused to do so, his brother, T. M. Farish was given same privilege; and in event of his refusal executor was required to sell it.Executor and brother both refused to take it, and it was sold at public auction and purchased by Frank P. Farish, another brother of executor, at $13.50 per acre.Purchaser was ready and willing to comply with terms of sale.Executor thereupon sent to each of the parties interested a copy of the letter set out in the opinion, offering to cancel the sale if any one of them objected to it, but expressing opinion that the land would bring less at second sale, and saying that his brother Frank would probably be willing to buy at second sale, and that if he could get the land for less would do so.Some of the parties objected to the sale, and the land was resold, and Frank again became purchaser, at $10.30 per acre.Between first and second sales executor filed his bill in circuit court, asking that the estate be administered under its direction.He set out first sale and its cancellation, and by an amended bill reported second sale to court for confirmation.Defendants, Twyman and wife, Michie and wife and Wayland and wife, answered the bill, charging a devastavit against executor in sale of " Home Place," objecting to confirmation of second sale, and seeking to hold him liable for difference between the two sales.Wayland and wife also sought to charge estate of testator, R. G. Crank, for his alleged devastavit as executor of George Crank, deceased, in selling the personal property of that estate in March, 1865, for Confederate currency.By decree of October 14, 1881, the court approved conduct of executor in reference to first sale, but refused to confirm second sale, and ordered a resale, and referred the cause to a commissioner to take certain accounts." " Home Place" was resold, and Frank P. Farish again became purchaser at $10.30 per acre, but transferred purchase to T. M. Farish, and the sale was so reported to the court and confirmed.T. M. Farish, before the purchase money had been paid, transferred the purchase to executor, Wm. G. Farish, as trustee for his wife, and this was reported to the court and approved, without exception, and a deed was directed to be made to the trustee when the purchase money should have been fully paid.A commissioner having reported against the claim of Wayland and wife, seeking to charge the estate for the devastavit of R. G. Crank as executor of W. G. Crank, the court, by decree of May 21, 1883, overruled their exceptions and confirmed the report.And from this decree the appellants appealed.All other facts appear in the opinion.

Samuel B. Woods, for the appellant.

Watson & Perkins, for the appellees.

OPINION

LEWIS P.

If, upon the principle recognized by this court in Mettert's Adm'r v. Hagan,18 Gratt. 231, and in Kendrick v. Whitney,28 Id. 646, and other cases, the answer of the defendants, Wayland and wife, the appellants here, is treated as a cross-bill, then the case, as made by the pleadings, presents certain demands by the appellants against R. G. Crank's executor, which are sought to be maintained on two grounds: 1.Upon the alleged devastavit of the executor in cancelling the sale made by him of the " Home Place," at the price of $13.50 per acre, to F. P. Farish, and his alleged consequent liability for the difference between the amount of that sale and the price subsequently obtained; and, 2, upon the alleged misconduct of R. G. Crank, as executor of George Crank, deceased, in making sale of the personal estate of his testator in March, 1865, for Confederate money.

In this view of the case, it is plain that the four decrees complained of, relating to the sale of the " Home Place," were interlocutory in their character, and that the decree of the 21st May, 1883, confirming Commissioner White's report, and rejecting the claim of the appellants, growing out of the sale of the personalty, was a final decree.For it was not until that decree was entered that the case was fully disposed of, so far as the appellants were concerned.Harvey & Wife v. Bronson,1 Leigh 108;Ryan's Adm'r v. McLeod and others,32 Gratt. 367;Rawling's Ex'or v. Rawlings and others,75 Va. 76;Norfolk Trust Co. v. Foster,78 Va. 413.The appeal was therefore taken in time, and the motion to dismiss must be denied.

Then as to the merits.The testator in his will valued the land at eighteen dollars per acre, which by a subsequent clause he changed to fifteen, and empowered the executor to sell it.Soon after the testator's death it was offered for sale at public auction, and knocked off to the highest bidder at the price of thirteen dollars and fifty cents per acre.In this state of things, the executor being in doubt as to the proper course to pursue, determined to inform the legatees, who were numerous, and many of whom resided in distant states, of the sale that had been made, and to request their views respecting it.He was himself a legatee under the will, and the purchaser was his brother.Accordingly, he addressed a letter to the parties, in which, after referring to the sale, he said: " As the price fixed by Colonel Crank in his will was $15, I was in hopes the land would go to that, and so was Frank.The latter was trying to make it bring that price in good faith; willing to buy it for less, if he could, but also entirely willing that some one else should have it at $15.In this effort the land was knocked down to him at $13.50.I honestly think this is as much as it will bring, still I am anxious to do all in my power to meet the wishes of those concerned, and, hence, I write this letter to you, and a similar one to all the other parties in interest.If you, or any one of the parties, object to the sale to Frank, please say so, and he is perfectly willing to give it up, and let the place be advertised and offered again.If, on the other hand, all of the parties are content to let the sale stand, Frank will at once comply with the terms.Should there be objection, and a resale in consequence, I am very much inclined to believe that the property will bring less.Frank may, and probably will, be willing to buy at the next sale, and if he is, and can get it for less than $13.50, he will of course do so.On the other hand, it may bring more, but I do not think Frank will go beyond his present bid.I do not consider myself in any way bound to write this to the parties and require their opinion, because I believe this sale is a good one, and know it was fairly made.Still, I do so in deference to them, and will thank you to respond at once.If I do not hear from you by the 5th day of May, I shall close the sale at the price of $13.50."

To this letter some of the parties--how many the record does not disclose-- replied, expressing emphatic dissatisfaction and positive objection to a sale at the price offered.None expressed approval, and accordingly the executor, with the assent of the purchaser, abandoned the sale.His action in this particular is assailed by the appellants as in bad faith, and as an unwarranted delegation to others of his duties as a fiduciary.But the charge is not sustained by the proofs in the record.In an honest effort, as he says, to sell the land for the highest price it...