#### Wall’s Executors v. Gressom’s Distributees.

Friday, Dec. 17th, 1813.

i. Equitable Relief — Judgment on Administration Bond —No Defence at Law.* — In a suit upon an administration bond for the benefit of distributees, (two of whom were the administrators) judgment was rendered against the executors of the security only, for the amount of the inventory. On a bill in equity to injoin this judgment; it appearing by an ex parte settlement in a County Court, that a considerable part of the estate had been bona fide disbursed by that administrator; and partly, to some of the distributees; relief was given, though no defence had been made at law.

John Preston, one of the executors of Adam Wall, filed his bill in the Superior Court of Chancery for the Staunton District, against the appellees, stating that Wall was security for the administration of Catharine Gressom, .and James Elliott, on the estate of Robert Gressom ; that, in November 1797, Elliott produced to Montgomery County Court his accounts, as administrator, which were examined and approved, leaving him a creditor of the estate the sum of 321. 17s. 9>ád. after which, he never intermeddled with the administration, but the same was conducted altogether by the said Catharine Gressom ; that the distributees of the said Robert Gressom had obtained a judgment against Wall’s executors, upon the administration bond, for 1411. 17s. *3}íá.*(being the whole amount of the inventory of the estate) without allowing any discount for the administration account of Elliott: that the complainant intended to defend the suit at law; but was prevented by mistaking the time of trial: the bill therefore prayed an injunction, and for general relief.

Copies of James Elliott’s administration account, of the *bond given by Catharine Gressom and James Elliott with Adam Wall, their security, conditioned for their due administration of the goods, &c. of Robert Gressom, deceased, and of the record of the judgment thereupon, were exhibited with the bill. From the first of these exhibits, it appeared that Christian Price and Francis Gressom, two of the distributees, had each received of James Elliott, 111. Is. 6d. for their respective shares of the estate. The suit at law was brought in the names of the justices of Montgomery, “for the benefit of Robert Gressom’s distributees,” without saying who those distributees were ; but it appeared, from the answer and depositions in the suit in equity, that Catharine Gressom and James Elliott were themselves distributees. The Capias was against Catharine Gressom, James Elliott, John Preston, James Sallust and John Wall, executors of Adam Wall, deceased. By endorsement of counsel, it was directed “not to be executed on C. Gressom.” , It was returned, “executed on John Preston and James Sallust.” No steps appear to have been taken against James Elliott. A verdict was found on a writ of enquiry, and judgment entered *51against Wall’s executors, without any defence.

The answer denied that Wall was security for Catharine Gressom; insisting that he was security for Elliott only ; which allegation was evidently incorrect. It contended that the recovery at law was altogether for the default of Elliott ; accusing him of wasting the estate, and of fraudulent conduct, of which the jury were the proper judges ; and protesting against the doctrine that the ex parte settlement of his account should be conclusive in his favour. The respondent Catharine stated that “not *more than*about 301. worth of property came into her hands ; and that she paid upwards of 701. on behalf of the estate,” as would appear by an account exhibited, with vouchers.

■ On a hearing of the cause in March 1807, Chancellor Brown was of opinion, “that the errors in the proceedings at law had been waived, and were not now available in his court, both parties having submitted to its jurisdiction by an '^exhibition of their accounts as parts of their case; that the settlement made by Elliott, with commissioners appointed by the County Court of Montgomery, appeared not to have been considered conclusive by the jury who tried the cause at law, and was not so considered by the Chancellor. He therefore appointed commissioners to settle the accounts of the administration of the estate of Robert Gressom, deceased, with the administrators, James Elliott and Catharine Gressom, (keeping the accounts of each as separate as possible,) and report their settlement so made, in order to a final decree.”

At July Term 1809, “on motion of the defendants by their attorney, and for reasons appearing to the court, it was ordered that, unless the plaintiffs, on or before the tenth day of the term next after they shall have been served with a copy of this order, shew cause to the contrary, the order of reference, entered in this cause on the 26th day of March 1807, shall be set aside.”

In November 1810, the commissioners reported, “that they had met, at the request of Mrs. Gressom, to carry the order into effect, and examined a great number of receipts produced by her, some of which appeared to be in discharge of debts due by the deceased, some for supplies of different kinds furnished, and labour done, for the use of the family, from the year 1795 until 1808 ; others not mentioning for what purpose they were given ; and a number of tickets for officers’ fees ; that, not knowing to what extent they could rightfully proceed, under the order of court, in making the settlement required ; and the said Elliott, or any person for him, having failed to appear before them with his accounts ; they had declined making the attempt until instructed in what manner the same was to be done, what species of credits were to be allowed, and whether proof of each of them was to be required.”

On the 2d of April 1811, the cause came on again to be heard; whereupon the Chancellor was of opinion, “that the equity in the plaintiff’s bill, having been denied by the answers, was not sufficiently supported by testimony; and the *plaintiffs having indirectly admitted a sufficiency of assets(1) to satisfy the judgment at law, the errors in which they had released; and having failed to take and exhibit the account directed to be taken for their benefit, or shew cause to the contrary ; it was ordered and decreed that the injunction be dissolved, and the bill dismissed.”

To this decree an appeal was granted, and supersedeas awarded by a judge of this court.

The cause was submitted by Call for the appellant; no counsel appearing for the appellees.

*

Equitable Relief — Judgments.—See monographic *note*on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425; monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

Fiduciaries — Ex Parte Settlement — Prima Facie Correct — Bill to Surcharge. — The principle is well settled thatthe ex parte settlement of afiduciary accountis only prima facie correct, and parties interested may file a bill to surcharge and falsify the account so settled. Leach v. Buckner, 19 W. Va. 45, citing the principal case ; Anderson v. Fox, 2 H. & M. 261: Newton v. Poole, 12 Leigh 112; Peale v. Hickle, 9 Gratt. 437; Corbin v. Mills, 19 Gratt. 438; Shugart v. Thompson, 10 Leigh 434; McGuire v. Wright, 18 W. Va. 507. To the point that the ex parte settlements of an executor are prima facie correct, the principal case is cited with approval in Leavell v. Smith, 99 Va. 378, 38 S. E. Rep. 202.

See further, *foot-note*to Corbin v. Mills, 19 Gratt. 438; monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

(1)

 Note. The Chancellor’s meaning *appears to*be, that the plaintiffs had indirectly admitted that they had assets of the estate of Adam Wall, their intestate, sufficient to satisfy the judgment against them; nothing to the contrary being alledged in the bill. — Note in Original Edition.

Eriday, December 17th, 1813, the following was delivered by JUDGE ROANE as the opinion of the court.

“The court is not satisfied that the negligence or inattention of the appellant, in relation to the suit at law, is a sufficient ground on which he could be let into a court of equity: — yet the judgment rendered in that case having been wholly without defence on the part of the appellant, or the administrators ; and the damages found not being vindictive, but graduated by the magnitude and value of the estate undertaken to be administered; and it now appearing to the court, by the settlement of James Elliott’s accounts with Montgomery Court, which, though not conclusive, is prima facie evidence of the facts and disbursements therein contained, that a considerable part of that estate was bona fide disbursed by that administrator, by which (if ultimately supported) the amount of the estate, and the correlative amount of damages enuring to the distributees would be proportionably diminished; and it moreover appearing, from that account, that the portions of one or more of the distributees of Robert Gressom had been paid them by the said James Elliott, by which, without the interference of a court of equity, they would receive the said sums twice; — and this case also presenting the spectacle of two administrators *in the character of distributees recovering damages from their own security for their own default as administrators ; — under all the circumstances of the case, the court is of opinion that it presents a fit subject for the interposition of a court of equity, by which the damages recovered will be reduced or graduated, and the sum recovered be apportioned among the appellees, according to their respective rights and the principles of equity and justice.

“On this ground, the court is of opinion, that the chancellor was correct in decreeing an account between the parties ; and that he erred in dispensing afterwards with that account, and dismissing the appellant’s bill. The decree is therefore reversed with costs, and the cause remanded for the purpose of having such account taken, and a decree rendered among the parties pursuant to the principles of this decree ; — in taking which account, if the settlement by James Elliott with Montgomery Court be not surcharged or falsified, either in the whole, or in part, it is to be taken as correct, and be admitted to bind the present parties.”