#### Shearman Adm’r v. Christian and Others.

December, 1888,

Richmond.

Administrators* — Decree as to Credits to Be Allowed— Construction — Retainer†—Case at Bar. — On appeal by an administrator from a decree in favour of a creditor of decedent, this court declared, “that in the accounts of the administration of the appellant, a credit ought to have been allowed him for the proper debts of his testator paid by him, so as not to subject him to a devastavit, and that so much of the decree as denied him those credits was erroneous;” therefore it reversed the decree, pro tanto. Of the debts of the testator which had been paid by the administrator, a large portion were simple contracts. Held, the claim of the appellee creditor of decedent was, by the decree aforesaid of this court, determined to be a debt by simple contract only; and therefore, as against such creditor, the administrator has a right to retain the amount of Ms own simple contract demand against the testator.

Same — Ex Parte Settlement:‡: — Effect.—The settlement of an administration account under an ex parte order of the court which granted administration, is prima facie evidence in favour of the administrator against creditors of decedent.

This is the sequel of the case between the same parties, which was before this court in November 1827 ; reported 6 Rand. 49.

The controversy arose on a bill exhibited in the superi our court of chancery holden at Fredericksburg-, by Christian and others, claiming as heirs and distributees *of John Fleet deceased, against Martin Shearman in his lifetime, to set aside, as fraudulently procured, a» deed executed by Fleet in his lifetime, conveying almost his whole estate to Martin Shearman, and a will of Fleet devising and bequeathing to the same Martin Shearman his whole estate, of which will (as it appeared in the progress of the cause, though it was not stated in the pleadings) the said Shearman had qualified as executor. Martin Shear-man died pending the proceedings ; and they were revived against F. G-. Shearman, administrator with the will annexed, and also a devisee and legatee of Martin Shearman, and Filis and Tapscott the other devisees and legatees. The deed and will of Fleet being found and declared to be fraudulent, the proper accounts were ordered; and among others, the account of F. G. Shear-man’s administration of Martin Shearman’s estate; and upon that account being reported, the question arose, whether the debt due from Martin Shearman for the profits of Fleet’s personal estate and the principal thereof used by him, which he had claimed and enjoyed under the deed and will that had been set aside as fraudulent, was to be considered as a debt due from Martin Shear-man in his character of executor of Fleet, and therefore of superior dignity to any proper debt of Martin Shearman, so as to exclude all credits claimed by F. G. Shear-man, his administrator, for debts of Martin *204paid by him, and to make the administrator ■chargeable with a devastavit to that extent ? The chancellor held the affirmative, and made his decree against the administrator for the devastavit, accordingly. The decree was rendered in favour of Thomas Armstrong administrator of Fleet, who had qualified as such after the will of Fleet was set aside, and had been made a party defendant •to the suit by a supplemental bill. And from that decree the first appeal was taken.

■ This court declared, “ that in the accounts of the administration of the appellant ” (E. G. Shearman) “ of *the estate of his testator Martin Shearman, a credit ■ought to have been allowed him for the proper debts of his testator paid by him, so as not to subject him to a devastavit; and that so much of that decree as denied him those credits was erroneous therefore, the court reversed the decree pro tanto, with costs, affirmed the residue thereof, and remanded the cause to the court of chancery to be proceeded in according to the principles declared by this court, “ either o.n the special report of the commissioner of the administration of the appellant, or on such further report as should be deemed necessary to a final decree.”

When the case got back to the court of chancery, the accounts were recommitted, to be reformed according to the decree of' this .court; and upon the new report of this commissioner, two questions arose.

1. The new report allowed E. G. Shearman the administrator a credit for the sum of 1457 dollars 20 cents, which he claimed as due to him on simple contract from his testator Martin Shearman, and which he-insisted he had a right to retain as against the plaintiffs. In the “special statement of the appellant’s administration ” referred to in the decree of this court, this sum was also credited to him .as so much which he had a right to retain ; and in relation thereto, the said special statement contained the following remarks of the commissioner: “ The sum of 1457 dollars 20 cents is admitted in this account, which was excluded from the report” (meaning the report on which the decree reversed by this court was founded) “ because of inferiour dignity to the plaintiffs’ claim, and because 1000 dollars of that sum is for one third of the,schooner Lancaster, one half of which is entered in the inventory and appraisement signed by the defendant E. G. Shearman, and in the account of sales, as of the estate of Martin Shearman. The defendant Shear-man requires that it be specially stated, that one third of this schooner was conveyed by *him to Martin Shearman, (and he exhibited a deed to that effect) ; .that it was so conveyed, that he might take the oath required of him as surveyor of the port of Tappahannock, viz. ‘ that he did not own a vessel or part of a vessel,’ &c.; that the said Martin was to have paid him, and did so, by his wilt; but that the property devised will be covered by his debts ; and that unless this item is allowed him, as it increases the inventory and appraisement, it will be a double loss.” In the progress of the cause after the same was remanded to the court of chancery, there were filed as exhibits, a copy of the enrolment of the schooner Lancaster, and a copy of a deed made by E. G. Shearman to Martin Shear-man, purporting to convey an interest in the said schooner; both of which copies were certified by the collector of the port of Tappahannock. The enrolment was dated the 30th of November 1810, and set forth, that E. G. Shearman had made oath that himself and .Martin Shearman were “sole owners of the ship or vessel called the Lancaster of Fredericksburg.” By the deed, E- G. Shearman bargained and sold to Martin Shearman, for the expressed consideration of one dollar, “one half of the goods schooner called the Lancaster of Frederickburg.” This deed was dated the 28th of June 1811. There was also filed as an exhibit, an account of E. G. Shearman as administrator of Martin Shear-man, settled by commissioners appointed for the purpose by an order of Lancaster county court made the 19th of November 1818, which was returned to and recorded in that court on the 15th of February 1819. In this account, among the debts of the year 1815, there was one in the following terms : “ To cash paid E. G. Shearman’s account, $1457.20.” The commissioner charged with reforming the administration account taken in the cause according to the decree of the court of appeals, having applied to the chancellor for instructions as to the effect of the account settled *under the order of Lancaster county court, the chancellor directed that it should be taken as prima facie evidence; “no part of the pleadings on the part of the plaintiffs having called for an account.” The depositions of two witnesses examined on behalf of the plaintiffs (with a view, as it seemed, to shew that E. G. Shearman never had any interest in the schooner Lancaster) were also filed in the cause; but they proved nothing more than that- the deponents had always understood the schooner to be entirely the property of Martin Shearman ; one of the deponents adding, that Martin himself had told, him she was his property.

By the reformed report it appeared, that the plaintiffs objected before the commissioner to the charge of 1000 dollars (part of the 1457 dollars 20 cents) for one third of the schooner Lancaster, on three several grounds ; first, thatE. G. Shearman’s assignment to Martin Shearman' was merely colourable, to enable himself to take the oath of surveyor ; secondly, that if the assignment was bona fide, it was paid for by the devise and profits of the real estate of Martin Shear-man ; thirdly, that at all events the claim was but a simple contract debt, and the defendant had no right to retain. But after the report was returned, the plaintiffs filed but one exception thereto ; which was in the following words : “ The plaintiffs and the defendant Armstrong except to the allowance of the account due to E- G. Shearman (as appears by the report) of 1457 dollars 20 cents, because it is a debt of inferiour dignity to theirs, and the decree of the court of appeals does not direct that it shall be allowed, but by strong implication forbids it. ”

*2052. The administrator claimed credits likewise for sundry small sums disbursed by him, chiefly for expenses in this suit. These credits were allowed in the “ special statement ” referred to in the decree of this court; but they were disallowed in the report on which the chancellor’s *decree, reversed as aforesaid, was founded; and they were now again rejected by the commissioner in stating the reformed account. When that account was returned, the administrator excepted thereto, for the disallowance of the said credits ; and also because the commission allowed him was inadequate,— because sundry articles of personal property bequeathed by Martin Shearman’s will were charged to the administrator at the appraised value, instead of the price at which they were actually sold, — and because interest was charged to the administrator upon the hires of slaves kept by him.

The commissioner assigned, at considerable length, his reasons for rejecting the claims which formed the subject of the defendant Shearman’s exceptions; but as those exceptions were disposed of by the chancellor on a different ground, and the court of appeals declined entering into any detailed consideration of this part of the case, it is deemed unnecessary to set forth the evidence relating to these claims, or the reasons which influenced the commissioner to disallow them.

The cause came on to be heard in May 1829, upon the reformed report, and the exceptions thereto ; when the court of chancery, “ being of opinion that it would be inconsistent with the decree of the court of appeals to sustain the exceptions taken by the defendant,” overruled the same, and “ for a like reason ” sustained the exception taken by the plaintiffs and the defendant Armstrong administrator of Fleet, “ the effect whereof is to increase the balance reported to be due by the defendant Shearman, by the addition of the sum of 1457 dollars 20 cents.” The court accordingly decreed that the defendant E. G. Shearman pay to the defendant Armstrong administrator of Fleet, to be disposed of by him as such administrator, the whole balance so increased, amounting to 4656 dollars 14 cents, with interest &c. and to the plaintiffs their costs of suit.

*From this decree, Shearman again appealed to this court.

Eeigh, for appellant.

Johnson, Stanard and Patton, for appellees.

*

 Administrators. — See monographic *note*on Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

†

Same — Retainer.—See monograpMc *note*on “Debts of Decedents” appended to Shores v. Wares, 1 Rob. 1.

‡

Same — Ex Parte Settlement — Effect.—See *foot-note*to Corbin v. Mills, 19 Gratt. 438; monograpMc *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6 ; monographic *note*on “Commissioners in Chancery” appended to Whitehead v. Whitehead. 23 Gratt. 376.

TUCKER, P.,

delivered the opinion of the court. We are of opinion that the question as to the dignity of the debt due from Martin Shearman’s estate to Fleet’s representatives was directly before this court upon the former appeal, and was directly decided. This is obvious from the opinions of the judges, to which we may refer as a guide in the interpretation of the decree. But it is, moreover, the direct result of the decree itself, since that allows a credit to E. G. Shearman against the demand of the plaintiffs, of all proper debts of the testator paid by him. These words refer, it is true, to debts already paid; since, after suit even by a simple contract creditor, no voluntary payment to any other in the same decree is good. But of the debts already paid, a large portion were simple contracts, and were, by this decree, made good payments against the claim of Fleet’s representatives. That claim must then have been held, and must now be held, to be a simple contract debt as between these contesting parties. If so, E. G. Shearman the administrator has a right to retain his simple contract demand against it, even though he should not be considered to have paid it already, by demanding and receiving credit for it before the commissioners of the county court.

The only question, then, is as to the justice of his claim of 1457 dollars 20 cents, or rather of a part of it to the amount of 1000 dollars. We think the claim ought tobe sustained. It was allowed by the commissioners of the county court, and the account settled by them is prima facie evidence of the justice of the demand ; *that is, the demand must be allowed unless it be disproved. On looking into the record, we find nothing to disprove it. There is indeed some difficulty raised, from E. G. Shearman’s assertion of his having sold qne third instead of one half of the schooner, and from Martin Shearman, as it is said, being credited in the inventory with only one half of the schooner, instead of the whole. As to the first, it is obviously a mistake of E. G. Shear-man or the commissioner, since the deed referred to shews that he did convey one half, and not one third only. And as to the second ; we do not learn what became of the schooner, and if Martin Shearman had parted with one half of his interest, and claimed but one half at his death, this difficulty would cease. But be this as it may, the appellees have never called in question these matters. In the last report, the commissioner, pursuing the directions of chancellor Green, allowed the account on the evidence of the settlement before the commissioners of the county court. The appellees did not except on the ground that E. G. Shearman had no interest in the vessel, or that 1000 dollars was too high a value for it. They objected before the commissioner, 1. that the assignment was colourable ; 2. that the interest was paid for in the devise; 3. that their demand was of superiour dignity. And this last was the only exception filed to the report. They waived all questions as to E. G. Shearman’s interest, or the value of it. They cannot now-call it in question. Had they done so before, every thing might have been explained, or perhaps every thing was explained, or admitted, because at that time the nature of the transaction was understood between the parties. There is indeed every reason to believe that E. G. Shearman had an interest in the vessel. What motive could there be for his false swearing that he had so in 1810, in order to the enrolment; or for making a deed to Martin Shearman for one half in 1811, to enable himself *to take the office of surveyor ? Why did he not, on the last occasion, make oath that he had no interest, instead of making a deed for that which he had not ? No *206reason can be imagined. We must then take it that he had an interest; and the value of that interest was allowed 20 years ago by the commissioners of the county court, who probably best knew it. The plaintiffs’ exception should, therefore, have been overruled.

With respect to the defendant Shearman’s exceptions, we do not distinctly see that the commissioner erred in rejecting the items, and we are therefore of opinion that the exceptions were properly overruled.

Decree of chancery court reversed with costs, and decree entered, reducing the amount decreed against the appellant, by the sum of 1457 dollars 20 cents.