#### *Nelson’s Ex’or v. Page & als.

October Term, 1850,

Richmond.

(Absent Cabell* P., and Bbookio, J.)

i. Executors and Administrators—Suit by Residuary Legatees—Parties.†—In a suit by residuary legatees against the executor, for a distribution of the estate, the specific legatees should be parties, unless it satisfactorily appears that their legacies have been satisfied.

a. Same—Liability‡—Case at Bar.—Under the circumstances, the executor held not to be responsible for a debt due to the estate, and lost by the insolvency of the debtor, occurring after the testator's death.

*683. Same—Overpayment to Legatees—Commissions.— Partial payments mail e by an executor to legatees, from time to time, on account, though upon a settlement. of accounts thereafter, it appears that such payments exceed the amount to which some of the legatees were entitled, does not constitute such settlement of the executor’s accounts as to take the demand for commissions out of the operation of the statute.

Charles C. Page, of the county of King William, died in 1822, leaving a widow and four children. By his will, after providing for Mrs. Page, and giving small legacies to his two youngest sons, he gave to his son Robert Carter Page 3000 dollars, and to his grand daughter, Sally Page Welford, a slave by name and 1000 dollars, if she should live to be married or come to the age of twenty-one years; and the residue of his estate he gave to his four children. Thomas C. Nelson, one of the executors appointed by the will, qualified as such, and proceeded to administer the estate until 1828, when he was removed. He did not settle his accounts whilst he acted as executor, but seems to have made a settlement of them before the commissioners of the Court of probat in 1837.

*In 1838 Robert Carter Page, in his own right and as administrator of John Camm Pollard, who married a daughter of Charles C. Page, and the other residuary legatees of Charles C. Page, filed their bill in the Circuit court of King William against Thomas C. Nelson the executor, for an account of his administration; and on tne death of Nelson, the suit was revived against his executor. The bill was afterwards amended, and Mrs. Page, then Mrs. Atkinson, was made a party. The accounts were referred to a commissioner, who made his report, in which no notice was taken of the special legacies to Robert Carter Page and Sally Page Welford and the two younger sons, but the whole personal estate, after payment of debts, was divided amongst the widow and the four children. The only questions of contest in the Circuit court were the executor’s right to commissions; and his liability for the balance of a debt due from Benjamin Dabney to Charles C. Page in his lifetime, and a large portion of which was lost by the insolvency of Dabney’s estate.

On the first question it was insisted by the plaintiff, that the executor had forfeited his commissions by his failure to settle his accounts. On the other hand, the executor relied on the fact established by the report of the commissioner, that he was largely in advance to the widow and Robert Carter Page and Pollard, by payments made to the during his administration of the estate; and that as to the other two plaintiffs, the amounts found to be due to them were very small; and therefore, though he had not settled his accounts before the Court of probat, he had in fact settled with the parties.

Upon the other question it was charged in the bill, that the debt of Dabney had been lost by the negligence of the executor, and that he, sensible of his neglect, had repeatedly admitted his liability for it. The executor, in his answer, denied that he was liable for *the debt, or that he had ever admitted his liability. The facts appear to be, that in the year 1817, Charles C. Page sold to Benjamin Dabney a tract of land in the county of King William, called Toler’s, for 5266 dollars, one third of which was paid in cash, and the balance was to be paid on the 1st of January 1819 and 1820. Page seems to have taken no security or even bonds or notes, from Dabney, for these deferred payments, until April 1820, when they were secured by a deed of trust on the land. Neither principal or interest was paid by Dabney during the life of Page. In 1824, a payment of 210 dollars 64 cents was made by Dabney to Nelson; and in 1825, there was another payment of 150 dollars. In 1824, Nelson procured from Dabney another deed of trust to secure this debt, upon seven slaves. In 1826, Dabney died, having continued to be in goon credit up to time of his death. In 1827, the slaves were sold for 1371 dollars 80 cents; and in 1828, the land was sold for 490 dollars 74 cents: thus leaving unpaid on the 31st of December 1828, of this debt, the sum of 3278 dollars 66 cents.'

Mrs. Atkinson released to her children her interest in this debt, and was examined asa witness; though she was objected to as incompetent by the executor. She stated that she had frequently conversed with the executor about the collection of this debt from Dabney, and that he had admitted his negligence, and that he had thereby made the debt his own. She said, too, that the circumstances of Dabney grew worse between the death of Charles C. Page and his own death. Another witness also stated that he had heard the executor say in 1824, when the deed of trust was taken on the slaves, that he had indulged Mr. Dabney so long in relation to that debt, that Mr. Page’s estate should not suffer, and that he would take the responsibility on himself. Other witnesses who lived near to Dabney, and were well acquainted with him, say that his property was not diminished *after the death of Page; that his personal estate amounted, at that time, to about four or five thousand dollars ; that he owned a tract of six hundred and twenty-five acres of land beside Toler’s; and that this land had been divided after his death among his widow and children, and was still in their possession. That he was considered solvent up to the period of his death, and they should have considered the debt safe.

The cause came on to be finally heard in May 1843, when the Court below held, thát the executor was responsible for the loss of the debt due from Dabney; and that he was not entitled to commissions; and there being no exceptions to the commissioner’s report, in which alternate statements were made, the Court adopting the statement disallowing commissions, made a decree in *69favour of the executor against Mrs. Atkinson, and. the plaintiffs Robert Carter Page and John Camm Pollard’s estate, for the sums which the executor had overpaid them, and in favour of the two other children for the sums found due to them by the report of the commissioner. Prom this decree, Nelson’s executor applied to this Court for an appeal, which was allowed.

Griswold and Lyons, for the appellant, objected,

1st. That the legatee, Sally P. Welford, was not a party. That this being a bill by the residuary legatees, they were only entitled to the residue after the payment of the specific legacies; and it was necessary they should be before the Court, in order that they might be paid, or that the executor might be protected by the decree. And this objection they insisted, might be made in this Court, though not made in the Court below. Richardson v. Hunt, 2 Munf. 148; Sheppard v. Starke, 3 Id. 29: Bland v. Wyatt, 1 Hen. & Munf. 543; Clarke v. Long, 4 Rand. 451.

*2d. That there was error in decreeing in favour of the residuary legatees until the special pecuniary legacies were paid. And that it did not appear by the report, that either the legacy to Robert Carter Page or to Sally P. Welford had been satisfied.

3d. That there were errors in calculations, &c., appearing on the face of the report, and which therefore might be objected to and corrected here, though no exception had been taken to the report in the Court below on that account; and they proceeded to point them out.

4th. That the statute forfeiting an executor’s commissions for his failure to settle his accounts every tw;o years before the Court of probat, did not apply to this case, because the executor had in fact settled with the parties entitled to the estate, and was largely in advance to the widow and to Robert Carter Page and Pollard’s estate.

5th. That the executor was not liable under the circumstances of this case, for the debt due from Dabney to the estate. That the bill charged and the answer denied that the executor admitted his negligence and liability for this debt, and it was therefore necessary to be proved by two witnesses. That Mrs. Atkinson was not a competent witness, because although she might release her interest in the debt, she was still liable to the executor for the amount he had overpaid her, and that amount must necessarily be affected by the liability of the executor for this debt. That without her testimony, there was but one witness to the fact of his admissions. That even if the admission was proved, it did not render him liable; and that the facts of the case did not constitute a iiabilty for the debt on the part of the executor. And on this point, they referred to Churchill v. •Lady Hobson, 1 P. Wms. 141; Toller’s Executors 427-8, citing Brown v. Litton; 2 Ponb. Equ. 178, g 4, to 186, § 6; M’Call v. Peachy, 3 *Munf. 288; Moseley v. Ward, 11 Ves. R. 581; Kee’s ex’or v. Kee’s creditors, 3 Gratt. 116; Cavendish v. Pleming, 3 Munf. 198; Tibbs v. Carpenter, 1 Madd. 298; 2 Lomax Ex’ ors 290 to 293.

Joynes and R. T. Daniel, for the appellees, insisted,

1st. That in a bill by residuary legatees against the executor a specific legatee is not a necessary, or even a proper party, and that therefore it was not necessary that Sally P. Welford should have been brought before the Court. Story’s Equ. PI. $ 149, *l*89, in note, § 230.

2d. That in the whole proceedings below, no suggestion had been made by the executor, that the specific legacies were unpaid. That the whole estate remaining in the executor’s hands had been distributed among the residuary legatees by the report in this case, and in the account settled by the executor in the Court of prohat, without the slightest intimation that the specific legacies remained unpaid. That the legacy to Sally P. Welford was contingent, and it did not appear that the contingency had occurred; and that Robert Carter Page was a party in the cause, and the executor had taken a decree against him to which he certainly was not entitled if his legacy was unpaid. That it therefore did not lie in the mouth of the executor to insist that the legacy was still due.

3d. That if there were errors of calculation, &c., appearing *on*the face of the report, against the executor, there were much greater errors in his favour; and they proceeded to point them out.

4th. That the executor was not entitled to commissions. Wood v. Garnett, 5 Leigh 271; Turner v. Turner, 1 Gratt. 12.

5th. That the executor was liable for the loss of Dabney’s debt. That Mrs. Atkinson was a competent witness, the question not being one in which the estate *of Charles C. Page was interested; and the testimony relating to facts occurring after the termination of the coverture. Robin v. King, 2 Leigh 140; 1 Green-leaf’s Evi. *§*337-8. Nor was she interested to swell the amount of the estate in order to prevent a decree against her, as the executor was not entitled to such a decree although he may have overpaid her. Davis v. Newman, 2 Rob. R. 664. That the proofs made out a case against the executor of such negligence as subjected him for not collecting the debt. 3 Paige’s R. 182; Shult» v. Pulver, 11 Wend. R. 361; Powell v. Evans, 5 Ves. R. 839.

*

Judge Cabell sat during the arguments of all th e causes heard at this term, but lie was not present at the decision of this or any of the following cases, owing to severe indisposition.

†

Executors and Administrators—Chancery Practice-Legatees—Parties.—Where there are assets sufficient to pay all, one entitled to her legacy to an amount certain, may maintain a suit for such legacy, without making the other legatees parties; but it is otherwise, in case of residuary legatees, unless it appears that all prior legatees have been satisfied. Sharpe v. Rockwood, 78 Va. 34, citing 1 Barton's Ch. Pr. (2d Ed.) 154; *Nelson v. Page,*7 *fíratt. M0.*

‡

Same—Liability.—Upon the question of the liability of a personal representative for the collection of assets of his decedent’s estate, see the principal case cited in *foot-note*to Tanner v. Bennett, 33 Gratl. 251; Snrber v. Kent, 5 W. Va. 104; Anderson v. Piercy, 20 W. Va. 328: Hurst v. Morgan, 31 W. Va. 532, 8 S. E, Rep. 291. See also, McCall v. Peachy, 3 Munf. 288; Davis y. Newman, 2 Rob. 664; Shriver v. Garrison, 30 W. Va. 456, 4 S. E. Rep. 660 ; monographic *note*on “Executors and Administrators.”

ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that partial payments made by the executor to legatees from time to time on account, though upon a settlement and adjustment of accounts thereafter, it should appear that such advances may exceed the amount to which some of the legatees were entitled, does not constitute such an actual settlement of the *70executor’s account, as to take the demand ■for commissions out of the operation of the statute. The Court is therefore of opinion, ■that there is no error in so much of said ■decree as disallowed the claim for commissions.

But the Court is of opinion, that there is error in so much of said decree as charges the executor with the debt due from Benjamin Dabney deceased, to the testator of the appellant, for the purchase of the farm called Toler’s. The testator, in his lifetime, had rested upon the security of the deed of trust on the land; the executor had acquired additional security on slaves, and it does not satisfactorily appear that by any degree of diligence, he could have more to secure the payment of the whole debt. The loss would seem to have been incurred from the extraordinary depreciation in the value of the property covered by the ' deed of trust, *rather than from any culpable neglect on the part of the executor.

And as to other errors alleged in argument by the counsel of the appellant to be apparent on the face of the account, ’ which, if they exist, it is contended by the counsel of the appellees, are more than counter balanced by other errors apparent on the face of the account to their prejudice, this Court deems it unnecessary to express any opinion. *A*s the case must go back to a commissioner, such errors of calculation or of improper credits, of charges of interest, or any other errors alleged to exist on the face of the account, can be considered and corrected, and the conclusions of the commissioner brought to the notice of the Court by specific exceptions directed to the particular matters objected to. And in respect to the specific legacies bequeathed, it will be competent for' the executor upon such recommitment to shew, if he can, that he is entitled to any additional credits for payments on account thereof. And an enquiry should be directed to ascertain, if said legacies are still unpaid, whether in the condition of the estate, distribution should be decreed among the residuary legatees, of the funds in the hands of the executor, or the same should be retained for the payment of specific legatees; and for this purpose, the appellees should be required to make the legatee, Sally P. Welford, a party, unless it should appear she died unmarried before attaining the age of 21 years. .

The Court, therefore, without pronouncing any opinion upon the errors alleged on both sides to be apparent on the face of the account, but leaving them to be corrected, if they exist, upon a restatement of the account, is of opinion, that the decree is erroneous in charging the executor with the debt due from B. Dabney deceased, as aforesaid.

Reversed, with costs to the appellant, and remanded, with leave to make the legatee, S. P. Welford, or her representafives, *a-party or parties if necessary, and with instructions to recommit the account to a commissioner, to restate the same; in which the executor is not to be charged with the uncollected balance of said Dabney’s debt; and to correct any other errors if discovered, apparent on the face of the account; for the proper enquiries in regard to the specific legacies; and for further proceedings in order to a final decree.