Reid v. Stuart's Ex'or

Green, Judge, announced the opinion of the Court: The first question presented by this record is, whether the circuit court erred in its order of November 6, 1879, directing this cause to be revived in the name of the administrator and heirs of Wm. B. Reid. The occasion of filing — 389 — the original bill by ¥m. B. Reid and Ms wife against tbe executors of Elizabeth Stuart was, that Elizabeth Stuart and ¥m. B. Reid on Oct. 7, 1858, had executed to the administrator of Charles MeClung their bond for two hundred and eighty-tliree dollars and nineteen cents payable in twelve months for purchases of personal property bought at the sale made by the administrator of Chaiies MeClung of personal property, of which he was the owner’at his death. These purchases the executors of Elizabeth Stuart claimed were made by ¥m. B. Reid for himself, and that his mother-in-law, Mrs. Elizabeth Stuart, was simply his security in this bond. ¥m. B. Reid on the contrary claimed, that he made these purchases for Mrs. Elizabeth Stuart and simply as her agent, and that she was the principal in this bond, and he vras simply her security. The difficulty no doubt arose out of the fact, that Mrs. Elizabeth Stuart was then living with her son-in-law, ¥m. B. Reid, and he claimed, that he was acting as her general agent; while her executors claimed, that she had distributed her property both real and personal among her children ; and that ¥m. B. Reid in making these purchases at the sale of the property of Charles MeClung was buying the same for himself and not for his mother-in-law, who then had no sort of use for property of this description. This was the dispute between the parties, out of which this suit arose. The administrators of Charles MeClung having in 1863 sued ¥m.' B. Reid on this bond, he brought this suit against the-executors of Elizabeth Stuart for a settlement of their accounts as such executors, and complaining specially of the refusal of the executors of Elizabeth Stuart to pay this bond and of their permitting him, a mere security to be harassed by this suit on this bond, while the executors of Elizabeth Stuart had ample funds in their hands to pay this debt. The bill specially prayed, “that the executors be ordered to pay off said debt of two hundred and eighty-three dollars and nineteen cents. ” The executors of Elizabeth Stuart promptly answered this bill, and in their answer alleged, that this debt to the estate of Charles MeClung was not contracted by their testatrix, Elizabeth Stuart, but by the plaintiff, ¥m. B. Reid, for purchases for himself at the sale of the personal — 390 — estate of Charles McClung;. and that he .improperly endeavored by-signing his name to the bond under the name of Elizabeth Stuart to give to it the appearance of his being a surety in the bond, when it was understood, that he was principal in "itj’anct the seal which was left above-tlie name of Mrs. Elizabeth Stuart'was the one opposite to which he ought to have signed his name instead of attaching a new seal and signing his name below liors, leaving no n,ame opposite.the first seal. The respondents also allege, that of their own personal knowledge Mrs. Elizabeth Stuart was but security in this 'bond, she having so stated in her. lifetime to one of the executors;’ ' Ón September 1, 1865, the cause was by a decree of the court referred to a commissioner to settle the executorial accounts of the executoTs of Elizabeth Stuart. The war then “pending, little or nothing was. done under this order;, and the wife Of "Win. B. Reid dying, on his motion it was ordered, that the cause be revived in his name as administrator of his wife and. prosecuted by him as plaintiff in his own right and as administrator of liis wife, and., not noticing the former order Of’reference the cause was again referred to the same 'commissioner to settle the executorial, accounts of the executors of Elizabeth Stuart and also to report all debts due from herj which remained unpaid. Thus in effect requiring an investigation by the commissioner, as to whether this debt due to McClung’s estate was a debt of Elizabeth Stuart or of Wm. B. Reid. Tliis order was made on January 11, 1877, but long'before it was made, on September 19, 1871, one o.f the executors of Elizabeth Stuart had paid this.debt; and ’before.the commissioners.he sought in settling, the accounts Between them and "Win. B. Reid to have- it charged to said 'Reid; 'and depositions were taken on.the question, whether ■'this''McClung. debt was a debt of ¥m. B. Reid, on .which Mrs. .Elizabeth ' Stuart was surety, .or the reverse. The weiglit',of the testimony, even if we exclude the depositions, which were taken without notice, was, that this was a debt of ÍÍVm.'E. Reid, and if those depositions, which were taken without notice, were read this conclusion -would be much strengthened. . It is unnecessary to determine definitely whether 'these latter depositions should be considered. The — 391 — conimissioner did not under this order of reference finish his investigation or report to the. court; and it was not improbable, that he con tinned the .cause regularly before him from day to day or from'time to time, as'was regular and proper; and if so, these later- depositions woúld be properly taken without any'special notice, especially as it appears, that-"Win. B. Reid at,the time was informed,,-that-they were'being . taken and said, he did not .-want to be present, as he reli'ed on the .statute .of limitations to protect- him against this ■ McOlung debt,- which the executors had paid more .than five .years before. ; . . ' > . ¡ ' ... In this stage of the case Wm.-B. Reid died and:his administrator and heirs declined to have the cause revived-in their name as plaintiffs; and thereupon the defendants, the "executors of Elizabeth Stuart, filed'a petition ásking-, that the court .would order the revival of the cause in. the names- of these representatives of- the' deceased .'plaintiff, and ■ that 'the cause .might be proceeded in to .a-final decree; -This petition'was demurred to, but the demurrer was overruled* and the court ordered, .that- the cause, be revived in the name of the administrator and heirs of-Wm, ,B. Reid and proceeded in to á final hearing, and recommitted the cause to a commissioner- to take and report the accounts formerly ordered. ; ■■ " Before, the passage of any statute law when a sole'plaintiif died intestate his.representative, his administrator or heirs, as the case might, be;or bofh.if each were interested,had aright by- a bill of revivor to revive a cause .in equity and proceed in if ,to a final decree. But.in .such a. case this right- of revival, if phe cause of action itself survived, was in the case put-absolute, and the parties filing the-bill had-only-to prove that-they were the representatives ,of the deceased, .if -this -were denied, and th,o-cause was as .a matter, of course revived. -Both-in England and in the various.States of .this Union itwas-there-fore wisely considered by the Legislatures, that im such a-case it was entirely-.unnecessary to require the representatives Of the deceased plaintiff to file a-fofmallhill of revivor, and that a simple motion with pr without notice'or a shire'-facias to revive the cause was all that, was uecessary -to effect all the objects of a-formal hill-of-revivor..- In. such case under; the .statute law. of Virginia in. existence''prior to -1819 on the — 392 — decease of the plaintiff Ms representative might revive a chancery cause by scire facias without filing a formal bill of revivor; and this statute has been ever since continued as law both in Virginia and in this State. See Vaughn et ux. v. Wilson’s Ex’or, 4 H. & M. 480; 1 R. C. of Va. of 1819 p. 497 § 38; Code of Va. 1873 ch. 167 § 4; Code of W. Va. ch. 127 § 4. And in ease of the plaintiff’s death it was provided by act of Virginia passed March 7, 1826, see Sup. of Rev. Code p. 130 and 178, that in a suit in equity, if the plaintiff died, the cause might, unless cause be shown to the contrary, be revived in the name of his administrator or heir, &c., on motion without any notice; and this has continued the statute law both of Virginia and West Virginia. Code of Va. 1873 ch. 167 § 4; Code of W. Va. ch. 127 § 4. While under these statutes a hill of revivor has long been disused in Virginia and in West Virginia and indeed in England and in the various States of this Union, yet there is nothing in our statute-law, which prevents it from being used, if the parties * entitled to revive a chancery cause where the plaintiff dies choose to resort to their bill of revivor. As a general rule the plaintiff in a chancery suit can abandon his cause at his pleasure, and if having this right he dies, his representative, either heir or administrator, to whom his interest survives, may revive the suit if he pleases, but of course in such a case he alone can revive it either by' the bill of revivor or in the statutory mode. But when the defendants have acquired such an interest in the cause that the plaintiff would not be allowed to dismiss the cause at his pleasure, or where there has been such an order of reference in the cause as that, if a balance should be found in favor of the defendant, he would be entitled to a decree against the plaintiff, and in that stage of the cause the plaintiff dies, the defendant would have a right to revive by bill of revivor or by statutory modes. See Benson v. Wolverton, 16 N. J. Eq. 110; Keen v. LaFarge, 1 Bosw. 672 and 16 How. Pr. 377; Banta v. Marcellus, 2 Barb. 373; see also McDaniel v. Baskervill, 13 Gratt. 233. The courts of Virginia and of this State have always shown the greatest liberality in construing any paper filed by the plaintiff as a bill or petition, whenever it sets forth — 393 — facts which, show a proper ground for relief, in entire disregard of the name by which the pleader has styled the paper. Thus in Laidley v. Merrifield, 7 Leigh 346. The hill was styled a hill of review and was in that form, yet it was held to he a supplemental bill in the nature of a bill of review and petition for rehearing, as this was the proper form of proceedings on the facts stated in this so-called hill of review. The court in such a case regards the substance and not the form and will treat it as a hill or petition, as the nature of the case may require, as showing the extreme liberality of our courts as to pleadings in equity so far as mere forms are concerned. See Kyle v. Kyle, 1 Gratt. 526. The circuit court therefore did not err in regarding the petition filed by the executors of Elizabeth Stuart on November 6, 1879, as a bill of revivor, if they had at that time a right to file such bill and require the revival of the cause. And it seems to me that there can be no question but that they had a right to have this cause revived. As far back as September 1,1863, there had been a reference of this cause to settle the executorial accounts of the defendants, and the female plaintiff having died the male plaintiff had 'caused the suit, as he had a right to do, to be revived in his name as her administrator, and the court directed it to proceed in the name of the male plaintiff' in his own right and as administrator of his wife, and at the plaintiff’s instance had again ordered a settlement of the executorial accounts of the defendants and also an ascertainment of the debts of the estate as well as the sums due to the executors of Elizabeth Stuart. This account had been proceeded with, and a number of depositions had been taken sufficient to show, that a considerable balance was due from the plaintiff ¥m. B. Reid to the executors of Elizabeth Stuart, the defendants, because of their having paid some six years before, but since the institution of this suit, the debt due McClung’s estate on this bond signed by both the plaintiff, ¥m. B. Reid, and the defendant’s testator, Elizabeth Stuart. This, in his original bill the plaintiff expressly claimed, was the debt of Elizabeth Stuart, and asked the court to order her executors to pay it. They in their answer denied, that it wras her debt, and insisted — 394 — it was the debt of "Wm. B. Reid. Of course it was proper and necessary in this cause for the court to determine, who was the principal in this McClung debt; and if it turned out, as it did, that it was the debt of the plaintiff, "Wm. B. Reid, as principal, and it that was paid by the executors of Elizabeth Stuart, who was only his surety, the court would have rendered a decree against Wm. B. Reid, the plaintiff, in favor of the defendants for any balance, which might be due from Reid after deducting what was due him on the settlement of the executorial account proper. To have refused to do so and to have compelled another suit to be brought against Reid to enforce the payment by him of the amount, that the executors of Elizabeth Stuart had paid for him, would have been in violation of the principle of a court of equity, that when a matter has been necessarily and fully enquired into by the court and by it determined, it will do full justice between the parties by the rendition of a proper decree in the cause and not turn either party over to another and unnecessary suit to enforce his ascertained rights. And if while the court was, as required by the pleadings in the original cause, through its commissioner, investigating the question, who was the principal in this McClung debt, Wm. B. Reid the plaintiff died, his representatives would clearly have had a right to revive the cause in his name, and the defendants also would have had a right to revive the cause and insist upon its proceeding in the name of Wm. B. Reid’s administrator and heirs, for under these circumstances a reference having been ordered involving the question necessarily, who was the principal in the McClung debt, and much evidence having been taken before the commissioner on this question, Wm. B. Reid would have had no right to dismiss the cause, thus perhaps escaping a decree against Mm; and if he had no right to dismiss the suit, while he lived, the defendants would, as we have seen, have a right to revive it after his death and insist that it should be further prosecuted in the name of his administrator and heirs, as they- were • both responsible on the facts stated in the petition for the revival for any balance which might be found due from Wm. B. Reid. And this the court permitted them to do, treating, as it properly did, this petition as a bill of revivor. — 395 — It remains to determine, whether the court erred in the .decree of June 17, 1880. We have seen that the commissioner in his report did not err in treating the Mc-Clung debt as a debt dnc from William 33. Reid as principal and in regarding Elizabeth Stuart, as only the surety in this debt. And we have seen, that when it was paid by one of the executors of Elizabeth Stuart, it was properly chargeable in this cause to William B. Reid and after liis death to his representatives, but the commissioner however erred in supposing that this claim against Wm. B. Reid or his representatives was barred by the statute of limitations, for if it was properly, as we have seen, audited in this cause, it could not be barred, as the demand not only did not ax-ise more than five years before this suit was- brought, but really did not arise for years afterwards nor indeed for years after a reférence to settle accounts had been made to a commissioner, from which time the defendants must be regarded as seeking to settle this dispute by this suit. The court however in its decree of June 17,1880, while it adopted the views of the commissioner, so far as he held this McClung debt to be due from Wm. B. Reid as principal, and that having been paid by one of the executors of Elizabeth Stuart, William B. Reid or his representatives became responsible therefor, yet it did not adopt this commissioner’s view, that this claim was barred by the statute of limitations, but properly held that it wTas to bo accounted for in this cause by the representatives of Wm. B Reid. It thereby properly in effect departed from the views set forth by the counsel of Wm. B. Reid’s administrator and heir in his exceptions when he says, “ the debt of five hundred and eighteen dollars and ninety-seven cents claimed to have been paid by the executors to Charles McClung’s administrator September 19, 1871, has no connection with this suit and has been improperly reported by the commissioner,” and from all that follows this sentence in said exceptions in. the same paragraph. What is said about the “ scoop net” in the next paragraph in these exceptions is now without application, as the court properly in its decree of June 17,1880, disregarded what was contained in this “ scoop net.” We will now consider, whether the court in this decree — 396 — of January 17, 1880, properly disposed of the several matters contained in the first lour exceptions to said report of the commissioners. The first of these exceptions was, that “ vouchers 5 and 8 in the executorial account are notes given by John Stuart after the death of the testatrix. The charges made on these vouchers are therefore improperly' credited to the executors.” This exception is based on an error as to the facts proven in the case. The dates of these notes are respectively June 9, 1859, and June 29, 1859; and Mrs. Elizabeth Stuart did not die till July, 1859. These notes on their face show, that they were given for debts of Mrs. Elizabeth Stuart contracted shortly before her death, and when paid by her executor they were properly credited to him. The court in its said decree in effect overruled this first exception and did not err in so doing. The second exception is: “If Mrs. Stuart had divided her property and delivered it to her children in 1856, as the defendants prove was the case, voucher 10 should be paid by the children and not by her estate; therefore this item of two hundred and seventy-two dollars and twelve cents has been improperly credited to the executors.” Much the largest part of this item as shown by voucher 10 was land-tax against Mrs. Elizabeth Stuart paid by one of her executors, John Stuart, after her death. These lands remained in the name of Mrs. Elizabeth Stuart during her life and were taxed to her and were disposed of by her will made January, 1858, and codicil made in 1859 shortly before her death. The division then of her property among her children in 1856 was not a complete or perfect gift of these lands, and she was properly chargeable with the taxes on them, and the executor properly credited with it as a payment of a debt of hers. And the same, so far as the evidence shows, may be said of the tax on negroes and the other taxes included in voucher 10. The court in effect by its decree of June 17, 1880, overruled this second exception, and in so doing did not err. The third exception is, that “vouchers Eos. 19 and 22 are not proved to be debts of tb e testatrix. The executors who have improperly paid these debts, are not competent witnesses to prove them against the estate of ¥m. B. Reid, deceased. The — 397 — debt shown by voucher 64 is improperly allowed for the same reason.” These vouchers on their face do not show whose debts were reterred to in them. They were paid as debts of the testatrix by the executors, as appears by the vouchers, and the burden was on the plaintiff to show, that they were not debts of the testatrix. He failed entirely to do so, and therefore it was not necessary for the executors to prove they wore debts of the testatrix; but they were proper witnesses to prove that they were debts of the testatrix, though by so doing the estate of ¥m. B. Reid might be injuriously affected. The court in effect by its decree overruled this third exception, so far as it referred to the debts named in vouchers 19 and 22 and in so doing did not err. So far as this exception refers to the debt shown by voucher No. 64, the court in effect sustained by its decree this exception, and the defendants do not complain of this action of the court, and it should therefore be approved. The fourth exception is that “ the debts represented by vouchers 49, 50, 51 and 58 are debts of John Stuart. They are certainly not claims against the estate of the testatrix, as they show on their face, that they relate to transactions with John and the other heirs of the estate.” William R. Stuart proves that these various receipts, though on their face they show they were for money paid on land purchased by Jolin Stuart of Alexander McClung, yet in fact this land was bought of Alexander McClung by John Stuart simply as the agent of his mother Elizabeth Stuart, and the deed for the land was made to her or to her heirs after her death, so that this purchase-money due on this land was in point of fact a debt of Elizabeth Stuart and was properly paid by her executors. The court in its decree of June 17, 1880, in effect overruled this fourth exception and in so doing did not err. There are no other errors, or supposed errors in this decree of June 17, 1880, which have been pointed out by counsel, or' which I have been enabled to find. The entire decree is, so far as I can see, in accord with the principles I have stated in this opinion, and it must be affirmed as well as the order of November 6, 1879; and the appellees — 398 — must recover of the appellants their costs in this Court expended and thirty dollars damages; and this cause must be recommitted to the circuit court of Greenbier county to be there proceeded with according to the principles laid down in this opinion and further according to the principles governing courts of equity. . Judges JohNSON and Haymond CoNcurred. Decree Aeeirmed. Cause Demanded.