#### *Thomas v. Dawson & Wife.

January Term, 1853,

Richmond.

J. Commissioner’s Report* — Recommitment—Case at Bar. — In a suit by distributees against an administrator the accounts baying been referred a report is returned before the defendant’s evidence is tiled. He excepts to the report, and files an affidavit showing a sufficient excuse for not sooner taking his evidence, and asks for a recommitment of the report. Under these circumstances, though the testimony may sustain the defendant as to the subject of controversy, it would not be proper to dismiss the bill: But the plaintiffs should haye an opportunity to disprove the testimony, and is also entitled to an account of administration. The report should be recommitted.

3. Appellate Practice — Presumption-Case at Bar.— Neither the bill nor the answer referring to the wife of the intestate, and there being no proof that she is alive, the appellate court will presnme she is dead, in a bill by the children of the intestate against the administrator.

Bernard Dawson and Elizabeth his wife filed their bill in the Circuit court of Prince William county against Wileman Thomas, administrator of John Lowe deceased, in which they stated that the plaintiff was the daughter of John Lowe; that Thomas had qualified as Lowe’s administrator, but had returned no inventory or account of sales. That he had received a large claim due said Lowe from the government of the United States for military services, amounting to between nine and ten hundred dollars. That he rendered no account and paid over nothing to the plaintiffs. And they prayed for a settlement of his administration account, and for general relief.

In May 1846 Thomas filed his answer. He states that John Lowe came from Maryland to Prince William in 1785, where he lived up to the time of his death, when he was upwards of four score years of age. That he was very old, very infirm, and very *poor, and had been fed and clothed and treated with kindness by the defendant. That, having served as a soldier in the war of the revolution, he was entitled to a pension; and proposed to the defendant to undertake the prosecution of his claim to it, proposing to give to him the arrears up to the time of its establishment as recompense for establishing the claim, and to reserve to himself as a support such pension as might accrue subsequently. That this proposition was accepted, and defendant expended much time, labor and expense in prosecuting the claim, and in the course of its prosecution employed two agents to whom he paid 150 dollars. That the arrears of the pension were 982 dollars, out of which he paid the said 150 dollars, and the residue he has retained to reimburse his large outlay of money in prosecuting the claim, and as a compensation for his various contributions to the relief of Lowe, and for his services. That the defendant’s intestate left very little property; that it was inadequate to discharge his funeral expenses and the debts due from him and paid by the defendant: It sold for 27 dollars and 42 cents. That defendant can neither admit nor deny that the plaintiff Elizabeth is the child and heir of John Lowe; he has heard she is not; or that the plaintiff Bernard is her husband. Of these facts defendant demands proof.

In October 1846 there was a decree for an account of Thomas’ administration on his intestate’s estate. In April 1847 the commissioner returned his report, in which he charged the administrator Thomas with the two sums of 27 dollars 42 cents and of 982 dollars, and credited him with the 150 *250■dollars which he alleged he had paid to the two agents employed by him, and with a commission of ten percent, on his receipts, showing a balance against him of 758 dollars 48 cents, with interest thereon from the 2d day of August 1844 until paid. *Thomas filed exceptions to this report, and at the same time fiied an affidavit that he had been unable to furnish proper proof in the cause, because of the distance at which his witness Thomas Hord resides, he being a resident of the state of Tennessee; that a correspondence took place between them; that Hord says he Jmd been confined to the house by the goi/.t, and promises as soon as his health will permit him he will give his deposition; that from his sickness his deposition did not arrive until the 24th of April 1847, seven days after the commissioner’s report was returned. He also states the cause of the delay in taking the deposition of John Sowden, arising out of the inability of the witness to attend. That he has made disbursements as administrator in payment of debts of his intestate which have not been credited in his account; and that he did not attend to prove them before the commissioner, because the amount could not be properly settled until the testimony of Hord and Sowden could be obtained. He therefore asks that the cause may be continued, and that the account may be recommitted.

On the 20th of May • 1847 the cause was heard, and the report was recommitted, with liberty to the parties to take further evidence. And the court being satisfied that on a final settlement of the account a large balance would remain for distribution after payment of debts, decreed that Thomas, adm’r of Howe, should pay to the plaintiffs 500 dollars, which, when paid, should be a credit in his account. Two days after this decree the court made a further order suspending it until a refunding bond With the usual condition should be given. From this decree Thomas applied to this court for an appeal, which was allowed.

G. N. Johnson, for the appellant.

Patton, for the appellees.

*

See monographic *note*oil “Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376.

*MONCURE, J.,

delivered the opinion of the court.

The court is of opinion that the Circuit court did not err in recommitting the commissioner’s report, with liberty to the parties to take further evidence, instead of dismissing the bill on the one hand, or confirming the report and decreeing accordingly on the other. Eirst, it would have been wrong to have dismissed the bill; because, even if it were conceded that the contract alleged in the answer was clearly proved, and there was no evidence to impeach its fairness, and that it Was a valid contract, the arrears of the pension, though the chief, were not the only subject in controversy; and, independently of that, the appellees were entitled to have a settlement of the appellant’s administration account. And as to that subject, they were entitled to have a further opportunity, if they deemed it material, to impeach the fairness of the alleged contract, by evidence to be exhibited before the commissioner or the court. The bill was filed in March 1845, and not being answered, the cause was set down for hearing in October 1845. In May 1845 the answer was filed, to which there was a general replication. In October 1846 the cause was heard, and a decree rendered for an account of the administration. The commissioner, after giving the usual notice to the parties, settled the account, and, on the 17th of April 1847, returned his report. The only evidence in behalf of the appellant consisted of the depositions of Hord and Sowden, which were taken and filed after the report was returned, and shortly before its recommitment. The most that he could claim under these circumstances was an order of recommitment; which, in fact, was all that he did claim. In his affidavit filed in court the day before the report was recommitted, after stating the grounds of his excuse for not having produced his vouchers and witnesses before the commissioner, or sooner taken his ^evidence in the cause, he asks only “that the cause may be continued and the account recommitted.” And each of the three exceptions taken by him to the report, points to its recommitment and not to the dismission of the bill as the appropriate and expected mode of relief against the errors complained of. To have dismissed the bill, therefore, would not only have been a surprise on the appellees, but would have given to the appellant a measure of relief which he neither expected nor had any right to expect. Secondly, it would have been wrong to have confirmed the report and rendered a decree thereon; for, though the appellant appears not to have used as much diligence in making his defence as he ought, still the reasons assigned in his affidavit for the recommitment of the report were sufficient for that purpose.

But the court is further of opinion that when the decree of recommitment was rendered it was premature to render a decree against the appellant in favor of the appellees for five hundred dollars or any other sum of money.

What has been said disposes of all the errors assigned by the appellant but the fourth, which is, that “the plaintiffs.furnished no proof that the wife of the intestate was dead.” It is not stated in the answer that she was alive, nor is she in any manner referred to therein; though proof is demanded of the allegations in the bill that Elizabeth Dawson was the only child and heir of the said intestate, and that Bernard Dawson was her husband; which allegations were afterwards accordingly proved. The appellant exhibited no evidence to prove that the wife of the intestate was alive, nor is there any such evidence in the record. The appellees’ witness Stonnell states that the intestate was a married man, but not that he was a married man at the time of his death; and the mar*251riage was obviously mentioned only in reference to the *issue of the marriage as to which the witness testified. In this state of the case the presumption was, that the wife of the intestate was not living at the time of his death.

Therefore, without expressing any opinion as to the proof, validity or effect of the contract aforesaid, or upon the question whether, according to the acts of congress in reference to pensions, the arrears of the said pension received by the appellant can be considered as part of the assets of his said intestate, or are liable to be applied to the payment of his debts, (no such question having been passed upon by the court below ,) so much of the decree of the 20th day of May 1847 as recommitted the commissioner’s report, with liberty to the parties to take further evidence, is affirmed, and the residue thereof and the decree of the 22d of May 1847 are reversed, with costs to the appellant; and the cause is remanded to the Circuit court for further proceedings to be had therein.

ALLEN, J., dissented. He thought the decree should be affirmed.

Decree reversed.