#### *Handly v. Snodgrass and Others.

July, 1838,

Lewisburg.

Executors* — Suit to Surcharge and Falsify Accounts— What Delay Insufficient for Refusing Relief. — The delay of legatees for eight years to institute a suit to surcharge and falsify the settled accounts of an executor, is not sufficient ground for refusing relief, especially as one of the complainants was a female and under age jvhen the settlement was in progress, though probably of full age when it was returned to the court of probate and recorded.

Same* — When Interest on Funds in Executor’s Hand» Applied to Disbursements.† — The principle established in Garren &c. v. Carr &c., 3 Leigh *407,*applied where the will directed the estate to be put out at interest. The executor not having chosen to do so, he is to be considered as a borrower, and annually charged with interest; and such interest, and not the principal’, is to be applied to the disbursements.

Decrees‡ — Interest on Interest — Case at Bar. — Although a decree gives interest on a sum which, according to the mode of stating the account, is itself interest, yet if it be manifest that a settlement upon proper principles would have made the balance larger, and that such balance would have been principal, the decree will not be reversed at the instance of the debtor.

Legacies — Decree In Favour of Legatees Jointly — Right of Executor to Reversal. — where the decree for a sum due by an executor to legatees is in favour of all the legatees jointly for the whole sum, instead of being in favour of each legatee severally for his proper part, the error is not one by which the executor is aggrieved, and he has no right to have the decree reversed therefor.

Executor’s Account* — Proper Mode of Stating. — The proper mode of stating an executor’s account after a reasonable time has been allowed for payment of debts, laid down in the opinion of the-court delivered by the president.

Decree for Legacy — Failure to Require Refunding Bond —Effect.§—The former decisions, that a decree in favour of a légatee against an executor, which omitted 'to require a refunding, bond, would be considered érroneous, ahd forsuch error would be reversed with costs, reviewed by the court, and a different'rule now established.

Same — Same—Appellate Practice.ǁ — Where itis apparent that such omission was not intentional, but resulted entirely from inadvertence, an appellate court, if the decree be right in other respects, will affirm it so far as it has gone, with costs to the appellee as the party substantially prevailing, and will then proceed to make such' further decree' in relation to a refunding bond, as' the' court below ought to have made.

Robert Snodgrass made his will on the 3d of September 1806, whereby he desired all his just debts to *be paid by his executors, for which purpose he subjected his estate in the first instance. Then he disposed of the residue as follows :

“ I desire and do hereby authorize my executors to rent out my real estate and hire out my negroes, except the old woman Magg, who I wish to be hired by my executors, and in case she should be rendered incapable of work, as, much of the money arising from her hire to be applied to her support'; and all the. rest of my personal estate, and the money (as much as is necessary) arising from said rent, hire and sale, to be applied to the maintenance and schooling of my children, and the balance, if any, to be put out to interest. I also desire, when my youngest child comes of age, that my land be sold in the way my executors think most to the interest of my children. I also will that -as my children come of age or marry, that they receive an equal share of my personal estate; and as the education and maintenance'of my youngest children will be more than the older ones, my will further is, that my executors pay, out of the rent of my land, such expenses as the guardian shall think necessary for that purpose. 1 also will, that the balance of the rent of the land, if any, and the money arising from the sale of said land, be equally divided be*175tween my sons Tilghman and William Adams, and my daughters Sabra, Elizabeth, Jenny and Miranda, when my youngest child comes of age. And I do request my friend and neighbour Edward Mitchell to take the guardianship of all my above named children, and to put out my said children to such places as he thinks best, and to superintend the education of my said children, and bind out my sons to trades when they come to proper age for that purpose. And I do hereby appoint my brother Joseph Snodgrass and Tilghman West executors of this my last will and testament. ’ ’

At November term 1806 of Botetourt county court, the will was proved and admitted to the record, and Joseph *Snodgrass qualified as executor. At the same time an order was made appointing appraisers of the personal estate; under which an appraisement was made in the same month. It amounted to 4101 dollars 31 cents.

Joseph Snodgrass, the executor, died in the summer or fall of 1809, having made a will, which was duly recorded, whereby he appointed Alexander Handly and John Walker his executors. Handly alone qualified ; and thenceforth he acted as the executor of Robert Snodgrass.

Under an order of the court of probate, made at October term 1809, the accounts of Joseph Snodgrass as executor of Robert were stated by commissioners appointed for the purpose; and according to this settlement, which was returned to court and ordered to be recorded at August term 1810, there was a balance due from the executor on the 25th of November 1809, of 3066 dollars 78 cents.

Under an order made at February term 1823, a commissioner in chancery reported, that after giving notice to the parties, he had examined the accounts, and found the balance due from Joseph Snodgrass as executor, on the same 25th of November 1809, to be 2775 dollars 97 cents. He also took an account of Handly’s transactions as executor of Robert Snodgrass, shewing how much he had received and paid, to November 1822, without making any annual rests. Handly having rendered an account of interest received by him for money loaned out, the commissioner debited him with the amount so received, but made no charge against him of interest upon the yearly balances.

The same commissioner made another settlement, under an order made at February term 1826, in which he charged Handly with farther sums received by him, gave him credit for farther payments and for commissions upon his receipts, ascertained the balance due from him, and stated the portions to which the different *legatees were entitled of the balance thus ascertained. This settlement was returned and ordered to be recorded at November term 1826.

In 1834, a bill was filed in the circuit court of Botetourt by Tilghman Snodgrass, William A. Snodgrass and Miranda Snodgrass, to surcharge and falsify the accounts settled in 1823 and 1826. It stated, that Sabra and Elizabeth, two of the daughters mentioned in the will of Robert Snodgrass, had died intestate and without issue, and that Jenny, another daughter, by her will gave the whole of her interest in the estate to the complainant Miranda for life, remainder to Robert S., Henry W. and William N. Snodgrass, infant children of Tilghman Snodgrass. The bill, besides detailing objections to numerous items in the accounts, particularly insisted that the executor ought to be charged with interest on the balances in his hands, annually, and that his disbursements ought to be defrayed out of the interest on the balances. It alleged that there were no demands against the estate, to prevent him from putting out those balances at interest; that loans were in fact made by him, and that borrowers were required to pay usurious interest. Handly and the infant children of .Tilghman Snodgrass were made defendants.

Handly, by his answer, strongly objected to the settlements of 1823 and 1826 being disturbed after such a lapse of time, and relied upon the circumstance that the last settlement was made on the motion of the guardian of the complainant Miranda, and at the instance of the other plaintiffs in this suit. He stated, that when that settlement was returned to court and ordered to be recorded, all the complainants were upwards of twenty-one years of age, and some of them, as he believes, near thirty years old. And he charged that all of them were personally present, and that they were satisfied with and acquiesced in the settlement. They received from him the amounts coming to each according *to the settlement, and executed to him refunding bonds. The infant defendants answered by a guardian ad litem.

An order was made by the circuit court, directing Handly to settle his accounts before a commissioner of the court. Under this order, the commissioner stated an account, making annual rests on the 25th of November in each year. He charged the executor with the sums annually received by him for rents and hires, and gave him credit each year for commissions and disbursements, which were thus paid out of the receipts in that year. By stating the account in this way, and putting the disbursements against the principal, it appeared that on the 25th of November 1827, the day to which the settlement extended, the whole principal was exhausted ; but there was a balance of interest due the estate, amounting to 1733 dollars 42 cents.

Both parties excepted to the commissioner’s report, and the circuit court overruled the exceptions of both. Whereupon the court,— being of opinion that, under the circumstances of the case, the transactions should be considered as having closed on the 25th of November 1827, at which time the executor should have paid over to those entitled the amount in his hands ; that the parties, from that period, stood towards each other in the relation of debtor and creditor, and the amount in the executor’s hands should be considered as principal, upon which he should pay interest, — adjudged, ordered and decreed that the defendant Handly pay to the plaintiffs the said sum of 1733 dollars 42 cents, *176with interest from the said 25th of November 1827, and their costs of suit.

From this decree an appeal was allowed, on a petition of Handly, repeating the ground taken in his answer as to the effect of the former settlements, and assigning the following additional errors:

*1. That the circuit court had, by its decree, given interest upon the sum of 1733 dollars 42 cents from the 25th of November 1827 until paid, whereas the re-' port of the commissioner shewed this balance to be composed entirely of interest, and the allowance of interest upon it was giving to the plaintiffs compound interest.

2. That the court had given a joint decree in favour of the plaintiffs, instead of ascertaining and determining how much the plaintiff Miranda was entitled to receive in her own absolute right, and how much she was to hold and enjoy during her life.

3. That the plaintiffs were not required to give refunding bonds.

Brockenbrough and Edward Johnson for the appellant.

J. F. Anderson and F. T. Anderson for the appellees.

*

Executors. — On all matters pertaining to executors, see monographic *note*on “Executors .and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

†

Executorial Accounts — Settlement—Payments to Be Applied to Discharge of Principal. — In Anderson v. Piercy, 20 W. Va. 326, it is said: “In executorial accounts both here and in Virginia the payments are applied to the discharge of principal and not of interest, so long as any principal is due; and the interest is brought into the account only at the close of the transaction. See Granberry v. Granberry, 1 Wash. *246;*Sheppard v. Starke, 3 Munf. 29; Burwell v. Anderson, 3 Leigh 362. While this is the general rule for settling an executor’s account, it is not an invariable one; but there is in this case- no necessity to point out the exceptions to it, as they are inapplicable to the case under consideration. These rules for the settlement of an executorial account are continued, till there has been a reasonable time allowed for the payment of the debts of the estate, when the executorial account proper should be closed, and the balance then due from the executor should be charged against him as a borrower; and until the distribution of the estate from that time the account between him and the residuary legatees should be adjusted as an account between debtor and creditor. See *Handley*v. *Snodgrass,*9 *Leigh,*430; Garrett v. Carr, 3 Leigh 416.”

‡

Decrees. — See monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

§

 Refunding Bonds. — See monographic *note*on “Statutory Bonds" appended to Goolsby v. Strother, 21 Gratt. 107.

ǁ

 Appellate Practice — Costs.—In- Marks v. Hill, 15 Gratt. *400, 422,*a decree was reversed with costs to the appellees. The court, citing the principal case, Blessing v. Beatty, 1 Rob. 287; Williamson v. Howard, 2 Rob. 39, and Boyce v. Smith, 9 Gratt. 704, as justifying it in decreeing'the costs of the appeal to the appellees, said;- “In all of these cases (cases above cited) the appellant succeeded in obtaining the correcting of errors, which if allowed to stand, mighthave operated to their prejudice; yet, in each case, the costs of the appeal were given to the appellee. In some instances, the decree of the circuit court was affirmed without prejudice; in others the decree was amended, and as amended, affirmed; and in others, the decree was reversed with costs to the appellees.” See principal case also cited in Drake v. Lyons, 9 Gratt. 57.

Por further authority in point, see monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

TUCKER, P.

The 1st point relied upon by the appellant in this case is, that the appellees having unreasonably delayed for eight years to institute this suit to surcharge and falsify the account of 1826, their bill should have been dismissed without farther enquiry. I cannot think so. One of the complainants was a female and under age when that account was in progress, though probably of full age when the report was returned and confirmed; and though the other complainants were of full age, the gross errors in the account of 1826 must satisfy every mind, that an equally gross ignorance alone could have prevented their taking measures for its correction. Moreover, the statute of 1826 having now established a limitation of ten years for suits of this description, we cannot, in a case like this, however inclined to frown upon stale demands, reject a party whose suit has been commenced within that period. Now here, the foundation of this suit being to surcharge and falsify the account of 1826, the limitation must be taken from that date; or at most from *1825, the maturity of the youngest child, before whose attainment of full age no account could be demanded according to the provisions of the will. I do not think, therefore, that this objection is valid.

2. As to the charge of interest upon interest from 1827. If this charge were wrong, still it is obvious that had the account been properly settled, the balance against the executor would exceed the sum now reported to be due. Carter’s ex’ors v. Cutting and wife, 5 Munf. 238 ; Burnley’s adm’or v. Duke &c., 1 Rand, 108. For by the will the estate was directed to be.put out at interest, and according to the decision in Garrett &c. v. Carr &c. if the executor did not choose to do so, he is to be considered as a borrower, and should be annually charged with interest, and the interest and not the principal should be applied to the disbursements. A settlement upon this principle, even without holding him to strict account for his large profits made by usury, would have made the balance much larger; and moreover, that balance would have been principal, as the interest and not the principal would have been absorbed by the disbursements. Moreover, the transactions of the estate were closed in 1827, at latest. They should have been considered as closed soon after the testator’s death. According to the case of Garrett &c. v. Carr *&c.*the balance should have been struck after a reasonable time allowed for payment of the debts. The balance should have been charged against him as a borrower; and from that time until the distribution, the account should have been adjusted as an account between ordinary debtor and creditor. When the time of distribution arrived, the amount appearing due should have been apportioned at once among the distributees, and the portion of each carried to the separate account of each individually. It would then of course have been due, and being, as to them, a principal sum due, it would carry interest. The result is precisely the *same as the case now stands; and there is no error in this regard.

3. The next point I shall consider is the objection to the joint character of the decree. This is' doubtless irregular, but it is no concern of the appellant; since the complainants having made themselves his joint creditors by taking a joint decree, he can safely pay to all or any, and the receipt of any one will be good against all. He can then suffer no injury ; and if so, he was entitled to no appeal, since the statute gives the appeal only to those who are aggrieved by the decree. And such has always been the course of this court. The plaintiff in error must shew an error to his prejudice, or he will not be entitled to a reversal.

4. The remaining error assigned is the omission to require a refunding bond. I am free to confess, that in many former decisions of this court, this omission has been considered as a substantive error, for which decrees have been reversed with costs. The hardship of this case, however, with the conviction of the utter uselessness of such a bond, where thirty years have elapsed from the testator’s death, and where his debts seem not to have amounted to 100 dollars at his decease, had pressed upon my mind the consideration of the propriety of conforming our practice in relation to this matter, to the recent decisions of the court in analogous cases, rather than to the former adjudications. It seems to me, that it is an abuse of justice to reverse the decree of an inferior court, not for an error in the actual judgment of the court, but for a mere omission or oversight, which in many cases the losing party stands by and witnesses without objection, that it may be used to his advantage in a superior tribunal. It is obvious that the failure in those cases to require bond is always an oversight. It is never intentional. If a court were to, refuse to require it, there would be good ground of complaint. But where it is but an omission, and where all *the principles and details of a decree are in favour *177of the appellee, ought the court nevertheless to reverse the decree ? or ought it not rather to affirm it, taking care to correct it in the matter in which it is defective ? In favour of the latter course of proceeding, there are numerous precedents of the affirmance of decrees in which there were important omission or defects to the prejudice of the appellant, where it was apparent that they resulted not from the judgment of the court, but from inadvertence. Of some of these cases I will take notice. In some, there was a reversal with costs to the appellee; in others, there was an affirmance, with a correction of the error merely.

Of the first description is the case of Vail v. Nelson, 4 Rand. 478. That was an injunction by a vendee against his vendor, on the ground that a title could not be had. The injunction was dissolved, and a conveyance ordered. The vendee appealed. This court was of opinion that the order was defective, in not annexing it as a condition of the dissolution, that the conveyance should be made. Yet it gave the appellee his costs, though it might seem that the appellant had good cause of appeal. The same principle was followed in Cunningham v. Patterson, 3 Rand. 66, where the court erred in not con-venting the-necessary parties. In that case, judge Cabell, delivering the opinion of the court, makes this very appropriate remark : “Had the appellant, at the hearing of the cause, brought to the view of the inferior court the defects in the bill and in the order of publication, they would doubtless have been there amended or supplied. Not having done so, he shall not lie by and take advantage of them in the appellate court, to throw on the opposite party the costs of an appeal which the law never intended to allow for the correction of such defects.” These are wise and just sentiments; and from the influence of them, courts have sometimes said that the counsel shall not be permitted *to raise in the appellate court, for the first time, a point which, if made in the court below, might have been obviated. 18 Johns. Rep. 559. We follow this principle frequently, in rejecting objections to accounts where there has been no exception, and in other cases. Brockenbrough &al. v. Blythe’s ex’ors & al., 3 Leigh 619. And though it is not followed in all cases, yet I am of opinion that in cases of this description the principle is peculiarly appropriate.

I proceed to notice some cases, where, for errors against the appellant, the court has not reversed the decree, but has simply corrected the error. Such are the cases where the appellant’s bill has been dismissed absolutely, when it should have been dismissed without prejudice. In these cases, although the appellant is aggrieved by a decree concluding his rights forever, yet the error is merely corrected, and the decree affirmed. Of this we have many examples. Jones v. Pilcher’s devisees, 6 Munf. 425 ; Stott &c. v. Baskerville &c., Id. 20; Rootes v. Holliday &c., Id. 251; Ellis v. Baird, Id. 456. So too in Rankin v. Bradford & al., 1 Leigh 163, 172, on an appeal by the purchaser of a trust subject, he was held liable. The court of chancery, however, directed an account of profits of a part of the slaves he had purchased and afterwards sold, with a view to charge him with those profits, instead of interest, for which alone he was liable. Here was an error by which he would have been aggrieved. Yet the decree was affirmed with costs to the appellee, and corrected instead of being reversed. So in Lewis &c. v. Billips &c., 1 Leigh 366, though a decree was rendered against the holders of the legal title for a, conveyance, without taking an account of the expenses of procuring it, and making the payment of them a condition precedent to the conveyance, yet there was no reversal, but an affirmance with costs, and the decree corrected.

*Such, in my opinion, should be the course in this case. This court is not bound to follow a practice which is found pregnant with mischief. The practice of the courts should not, indeed, be lightly changed; hut it is not like the rules of property, which can only be changed by legislative power.

Upon the whole, I am of opinion to affirm the decree with costs ; correcting the error, as was done in Heffner v. Miller & others, 2 Munf. 43.

The other judges concurred. Decree affirmed with costs, and omission to require a refunding bond corrected.