#### *Burnley’s Administrator v. Duke and Others. †

March, 1822.

Letters of Administration — Revocation!‡—Appointment of Foreign Administrator. — Where a testator leaves two wills, one in Virginia, and the other in England, the English will being the last in date; and his executor takes out letters of administration on the posterior will, in England; this does not ipso facto repeal letters of administration which have been granted in Virginia, on the first will; but the English executor must first qualify by giving bond and security as the law directs.

Same — Granting—Authority for. — Quaere whether the recording in Virginia, of the exemplification of a will and the probat thereof, in the prerogative court of the Archbishop of Canterbury, without further proof, would authorise the granting of letters testamentary in Virginia?

Executorship — Renunciation.§ — What acts will amount to a virtual renunciation of an executor-ship.

Case Affirmed. — The principle of Granberry v. Granberry, (1 Washington,) affirmed.

This suit was originally brought in the high court of chancery, and afterwards transferred to the Fredericksburg district, upon the division of the court.

John Burnley, who had been a resident of Virginia, afterwards moved to Great Britain, 'and died at sea on his return to Virginia. He left two wills, one dated in 1771, and the other in 1778. The last will was proved in the prerogative court of the Archbishop of Canterbury, and HardinBurnley qualified as executor, in England. This will was admitted to record in the year 1785, in the county court of Hanover, upon the production of a transcript of the will with the probat thereof, duly certified according to the laws of Great Britain. Before this, however, a will of John Burnley, dated in 1771, had been recorded in Hanover county in 1779, and administration granted in 1782, to Zachariah Burnley, who took upon himself the administration of- the estate of John Burnley, in. Virginia.

By the will of 1778 (and indeed by both wills) the testator directed his executors to put 6001. Virginia currency to interest, and the interest arising to be annually *paid to his sister Elizabeth Duke, and after her decease, the principal to be equally divided between the said Elizabeth’s then surviving children. This suit was brought by Elizabeth Duke and her children, to recover of Zachariah Burnley, the amount of their legacies. They alledge in their bill, that Z. Burnley has got the whole estate of John Burnley in Virginia, into his possession, and that it amounts to much more than enough to satisfy all specific legacies, after paying debts; that he has wasted the estate without putting out 6001. to interest according to the directions of the will, and has not only refused to pay the said interest for many years, but has also refused to place the principal in such a situation, as would secure the payment of it to the children of Elizabeth Duke, at a future day: that the complainants, seeing the danger of -their legacy being lost, agreed *among**49themselves to make partition of it as soon as it could be got, without waiting the death of the said Elizabeth, who is willing to renounce all claim to the annual interest in future, and to receive from her children a compensation, in lieu thereof; of all which they have long ago informed Z. Burnley: they, therefore, pray that he may be compelled to pay to the complainants the legacy with all the interest thereon which may be due, and that he may be required to render an account of his administration.

Z. Burnley says in his answer, that he has paid some of the instalments of interest, and believes that in 1789, he acknowledged by letter, that three years interest were due to E. Duke; but since the date of this letter, sundry evidences of debts due from his testator have come to his knowledge, which have made it doubtful whether there will be sufficient assets to pay debts; that this doubt has produced a suspension in the payment of the interest upon the legacy; that the agreement mentioned in the. bill, between the complainants, is not binding on him, as he is no party to it; and submits it to the court, whether the complainants, by their agreement, have a right to take *the principal legacy out of his hands, in the lifetime of E. Duke; and he expresses his willingness to account.

By an amended bill, the complainants alledge, as new matter: 1st. That Z. Burnley sold a tract of land, part of the estate of John Burnley, deceased, at private sale, to Hardin Burnley, who relinquished his bargain, and then it was sold to B. Temple for 2,0001.; which, they alledge, was much less than could have been got for it at public auction. They, therefore, pray that the said Z. Burnley may be compelled to account for the value of the said land at such price as it would have sold for at public auction. [N. B. The deed to Temple is executed by Z. Burnley and Hardin Burnley; the latter of whom signs it, not in the character of executor, but as heir to John Burnley deceased.] 2. That the said Hardin Burnley, (the English executor) had possessed himself of all the estate of J. Burnley in England, and of several bonds, judgments, and other evidences of debts due to the said J. Burnley, in this country, and that he ought not to have received any part of the assets in this country, until he had settled the account of his executorship in England; so as to shew the amount of assets in his hands which might have been applied to the discharge of his claims against the said estate. They state, that the estate of the said J. Burnley in England was fully sufficient to satisfy any demand which the said Hardin Burnley might have against the said J. Burnley: that a certain Edmund Littlepage, of this state, has effects in his hands belonging to the said Hardin Burnley, fully sufficient to satisfy the legacies, bequeathed by the will of the said John Burnley. They therefore make Hardin Burnley and Edmund Littlepage, parties to this suit; and pray, that the former may render an account of his executorship in England, and the latter may disclose what effects he may have of the said Hardin Burnley im his hands, &c. ^

Hardin Burnley being a non-resident,, an order of publication was made against him.

*Z. Burnley answers, that it is-true that he sold the King-William. lands as stated in the amended bill, but verily believes that they were sold for their full value in ready money; that he is ignorant of the state of J. Burnley’s affairs in England, but is rather inclined to believe that he was rather a debtor than a creditor in that country; that conceiving that Hardin Burnley acted under an authority superior to his own, he permitted the said Hardin to receive the price of the land from the said Temple, &c.

Z. Burnley afterwards died, and the suit was revived against Alexander Shepherd, his administrator de bonis non.

Upon reference of the accounts to a commissioner, he reported a balance due from the estate of Z. Burnley, greatly exceeding the amount of legacies due to the complainants, under the will of J. Burnley, deceased.

The commissioner also reported a considerable balance against Alexander Shepherd, as administrator de bonis non of Z. Burnley, deceased.

Exceptions were filed to these reports by the defendant Shepherd, some of which were sanctioned by the court of chancery and others rejected; whereupon the accounts were again referred, and the commissioner again reported a balance against the defendant, sufficient to satisfy the claims of the complainants.

To this new statement, the defendant Shepherd again filed. exceptions; and the court of chancery, upon a hearing, decreed that Alexander Shepherd, administrator &c. do pay to the plaintiffs Elizabeth Duke, Burnley Duke, William Smith and Ann his wife, Reuben Smith and Elizabeth his wife, Richard Keeling Tyler and Mary his wife, and Patsey Duke, four hundred and eighty-three pounds, four shillings, with interest at the rate of five per cent, per annum, on four hundred and fourteen pounds, five shillings and eleven pence, part thereof, from the 31st day of December, 1817, until payment; to the plaintiffs *Keziah Redd,* Cleviers Duke, James Duke and Amy Pettus, the sum of five hundred and sixty-nine pounds, eight shillings and one penny, with the like interest on four hundred and eighty-eight pounds, eleven shillings, part thereof, from the 31st day of December, 1817, until pajrment; and to the plaintiffs James R. Pannel and others, five hundred and sixty-one pounds, four shillings and seven pence, with like interest on four hundred and eighty-one pounds, sixteen shillings and eight pence, from the 31st day of December, 1817, until payment; which payments, are to be made to the said parties respectively, upon their respectively entering into bond with good security to *50the defendant Shepherd, in the penalty of double the sum respectively decreed to them, with condition to refund in due and rateable proportions to the said defendant for the payment of any debts which may hereafter appear to be due from the said John Burnley deceased, and the costs of recovering the same; and that the said defendant Shepherd, pay to the plaintiffs the costs by them expended, &c.

From this decree, the defendant, Alexander Shepherd, appealed to this court.

Stanard, for the appellant.

Hay and Call, for the appellees.

†

Eor sequel of principal case, see Burnley v. Duke, 2 Rob. 102; Morris v. Duke, 2 Pat. *&*H. 462.

‡

Letters of Administration — Revocation.—See mono-graphic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

§

Executorship — Renqnciation—How Made. — Arenunciation of an executorship may be effectually made by declarations *in*pais, or may be presumed from circumstances. Thornton v. Winston, 4 Leigh 157, citing principal case. To the same effect, the principal case is cited in Thompsons v. Meek, 7 Leigh 432. See further, on this subject, *foot-note*to Geddy v. Butler, 3 Munf. 345.

The principal case is also cited in Handly v. Snodgrass, 9 Leigh 490; Anderson v. Piercy, 20 W. Va. 324.

*

A11 the persons whose names follow, were made parties by consent. They claim by clauses in the will, similar to the bequest to Elizabeth Duke ancl her children. — Note in Original Edition,

JUDGE BROOKE,

March 30th. delivered the opinion of the court:**

The court, not deciding whether the recording in the court of Hanover county of the exemplification of the will of John Burnley of 1778, and the pro bat thereof by Hardin Burnley in the prerogative court of the Archbishop **of Canterbury, without further proof, would have authorised the granting of letters testamentary, to Hardin Burnley, is of opinion that it did not repeal the letters of administration granted to Zach. Burnley upon the previous will of John Burnley of 1771; and that Zach.. Burnley was not authorised thereby to _ transfer the assets of John Burnley in his hands, to Hardin Burnley; he having failed to qualify by giving bond and security as the law directs; and that the said Z. Burnley was chargeable with all the assets of John Burnley which came to his hands, _ or might have come to his hands, by using due diligence; the more especially, _ as in this case Hardin Burnley, by omitting^ to qualify as aforesaid, and also by uniting in the deed for the land directed to be sold by both wills, with Z. Burnley the administrator upon the first will, as heir •at law to the testator, and not as surviving executor, virtually renounced that character, and was only entitled as creditor and legatee to receive any portion of the estate of John Burnley; and the court is further of opinion, that applying these principles to the accounts and reports in the record, without deciding on the exceptions of the parties thereto, it does not appear that the estate of Z. Burnley 'in the hands of the appellant has been charged to a greater amount that was proper; and although the court does not approve of the mode of settling the account of the appellant, being of opinion that the principle laid down in the case of Granberry v. Granberry,(a) is applicable to it, yet the appellant, in the opinion of the court, has no just ground to complain of it, inasmuch as he is credited with 120k with interest to the amount of 211. _12s. without producing any vouchers; which is more than equivalent to any error against him. The decree is therefore affirmed.

**

Judge Roane was absent from indisposition.

(a)

 1 Washington, 246.