Gilmer's Adm'r v. Baker's Adm'r

Snyder, Judge: Before considering the merits it may be more convenient to notice a prelimary question presented by the record. The deposition of Andrew Hunter was taken and excepted to in these causes. Henry Berry and this witness had been joint commissioners, and at the time the deposition was taken Berry was dead and his administratrix is a party to this suit. The ground of the exception is that the testimony relates to transactions between Berry and the witness in regard to a joint liability from which it tends to exonerate the witness and is, therefore, incompetent. This would be true if the witness, Hunter, was a party to the causes. But if he was not a party, then, neither by the common law nor by our statute would his testimony be incompetent. The common law rule is, that a witness is competent, if the proceedings in the cause cannot be used as evidence for him, although he may be interested in the question in issue and entertain wishes on the subject, and even have occasion to contest the same question in his own case in a future suit—Baring v. — 84 — Reeder, 1 H. & M. 154, 165; Black v. Campbell, 6 W. Va. 51, 64. And, as I understand it, this rule has not been affected by our statute in suits against the representatives of deceased parties—Code, ch. 130, sec. 23. The change made by the statute was intended to remove the common law disability of witnesses on account of interest in the result of the suit except in certain cases, among which is the competency of a party to testify on his own behalf against the representatives of a deceased person in relation transactions had personally with such deceased person. In regard to these exceptions the statute did not chauge the common law rule either by enlarging or restricting it. The object of the statute was to remove and not create disabilities. Anderson v. Snyder, 21 W. Va. 632. Hunter was never a party to any of these casues. He and Berry were appointed special commissioners in the cause of Washington County Bank v. Engle’s Administrator et al., but as such commissioner he was simply the agent of the court and no decree could have been made against him unless he had been first charged with some default and a rule or other process served on him to answer such charge. Grinnan v. Long, 22 W. Va. 693. It is a general rule that no action can be properly taken by the court upon any matter not in issue or which is not in the ordinary proceedings of the cause even as against the formal parties without a rule or notice to answer, and much less can it be done against a,special commissioner who is not such party. Alderson v. Gwinn, 3 W. Va. 229. A purchaser at a judicial sale is a quasi party from the time of his purchase. Kable v. Mitchell, 9 W. Va. 492. But no decree can be rendered against such purchaser until a rule or some other porocess has been taken against him. Clarkson v. Read, 15 Gratt. 288; Glenn v. Blackford, 23 W. Va. 182. The witness, Hunter, then, not being a formal party and no rule or other process having been taken against him, no decree could be entered in these causes that would bind him, nor could the record be used as evidence for him in any future suit against Ifim, and he was, therefore, a competent witness to testify as to the matters referred to in the exception to his deposition. Hpon the merits the material question is, whether the — 85 — estate of William Short, the surety of Henry Berry as administrator de bonis non with the will annexed of John Baker, deceased, is liable for tho’fund which went into the hands of Berry as the proceeds of land sold by Hunter and Berry as special commissioners? The origin and history of this fund. sufficiently appear in the statement preceding this opinion. It -was loaned out by said commissioners under the order of the court and thus continued in their hands as such commissioners and under the control of the- court, at least, until February 20, 1845, when the judge of the court, by the consent of the parties, entered a decree in vacation, ordering said commissioners to pay over said fund to Henry Berry, administrator de bonis non with the will annexed of John Baker, deceased. Prior to the date of this order, said commissioners had separated the fund, Hunter taking charge of one portion, about one half, and Berry of the other portion, On November 6, 1846, nearly two years after this decree had been entered, Johns Hopkins, surviving partner of Hopkins & Bros., filed his bill of review to have the same reversed and set aside, but no restraining order was then made or thereafter until October 19, 1848, when said Hopkins filed his original bill and obtained from the court an injunction restraining the commissioners from paying over said fund to Berry, administrator, &c., as ordered by said decree of Febuary 20, 1845. The said bill of review having been previously dismissed the court in November, 1849, dissolved this injunction and dismissed the bill. From this decree the plaintiff, Hopkins, appealed and that cause continued in the appellate court until March 4, 1856, when a decision was rendered by the special court of appeals reversing said decree of November 1849, and ordering the injunction to be reinstated with a specified modification—2 Pat. & H. 110. It is conceded that the portion of said fund which was received by Hunter as special commissioner, never passed into the hands of Berry as administrator of Baker. That portion has been accounted for by Hunter and it is not now in controversy. The important enquiry here ¿s, in what capacity, whether as special commissioner or as administrator ofBaker, did -Berry hold the portion of the fund received by him, on October 19, 1848, the time said order of injunction was made? — 86 — The proof, shows, (see statement of Commissioner Cooke, hereinbefore given,) that Berry had received the whole of his portion of the fund prior to the decree of February 20, 1845, except eight hundred and twenty-five dollars, which he received in July, 1845. It therefore distinctly appears that he had all of it in his hands long before the" date of the injunction. The statment of the commissioner just referred to, also shows, that prior to the date of the order of February 20, 1845, Berry had loaned to, and taken the notes of, one of the distributees of Baker for a part of the fund and that between that date and the date of the injunction he had paid over to, and taken receipts from, another distributee for a large portion of said fund; thus by taking notes for the money loaned before, and receipts for that paid after the order of February 20, 1845, Berry indicated most distinctly and unequivocally that he held the fund prior to that date as special commissioner and subsequently as administrator of Baker. If this convincing evidence, that Berry had complied with the order of February 20, 1845, by holding and treating the fund thereafter as held by him in his capacity of administrator of Baker, could require confirmation, such confirmation appears strongly in other parts of the record. Hunter states in his deposition that from frequent conversations had by him with Berry after the order of 1845, and before the injunction was granted, he regarded that fund in Berry’s hands as administrator of Baker. Also, Beu’y, in his answer to Hopkins’s bill, which is sworn to by him, says: “He claims to hold said fund as such against the plaintiff.” The context plainly shows that the words “ as such,” refer to him as such administrator of Baker. But it is insisted by counsel for the appellees'that this sworn statement of Berry is simply an admission by hiixr of a past transaction and is, therefore, not admissible as evidence against his surety. 1 Gr. Ev. sec. 187. If this statement or admission had been made after Berry had ceased to be administrator of Baker, and out of the course ot his official duty, it would not he admissible against his surety. But such was uot the fact. It was made while he was administrator and in the discharge of an official act as such administrator. It is made in an answer filed by him in defence ot the fund and in the per87 formalice of an act by? liim as administrator. It is a part of the res gesta in connection with the very transaction now in question and was made hy him in his official capacity, while in the actual discharge of his duties as administrator. It is, therefore, clearly admissible not only against him but against his sureties as such administration 1 Gr. Ev. secs. 174, 178, 179, 180; Cavendish v. Fleming, 3 Munf 198; Swope v. Chambers, 2 Gratt. 320, 324; Cox v. Thomas, 9 Id. 323; Snowball v. Goodricke, 4 B. & Ad. 541. Hunter further states in his deposition that soon after the decree of February 20, 1845, or the decree of June 1, 1848, but he thinks the former, the counsel for Baker’s distributees demanded of him the payment of that portion of the fund in his hands as special commissioner, in compliance with said decree of February 20, 1845, and that he declined to pay it over until he could consult with Hopkins, his client, hut stated distinctly at the time that the claim of Hopkins only extended to the half of the fund in his hands, and that Hopkins made no claim to the part in Berry’s hands, and in these facts Berry fully concurred with him. He says he is positive this conversation occurred long before the injunction was granted, and he has no hesitation in stating from other conversations had with Berry-, that it was the understanding between them from the date of the decree of February 20, 1845, that Hopkins set up no claim to that portion of the fund in Berry?’s hands. It is insisted, however, that this deposition is in conflict with the facts in the injunction bill of Hopkins, which was prepared and sworn to by the witness, Hunter. Is such the fact? This hill simply states that there is a large fund in the hands of Berry and Hunter as special commissioners, which “ is applicable to and was specially set apart for the payment of said bonds,” referring to the bonds constituting that part of the fund claimed by Hopkins,_ and prays “that the proceeds of said bonds as now in the hands of the court constituting the fund aforesajd may be paid over to” the plaintiff and said commissioners restrained from paying it over as directed hy said decree of February 20, 1845. This bill, it seems to me, instead of contradicting the deposition strongly affirms it. If that portion of the fund — 88 — received by Berry as commissioner had passed into his hands as administrator of Baker long before the injunction was filed, as stated in the deposition, then the only fund which could have been in the hands of the commisioner when the injunction was applied for, was that in the hands of Hunter and which, as the bill and deposition both state, had been “specially set apart for the payment” of the Hopkins claim. It does not detract from this view that the bill avers that the fund was held by both commissioners. The court could not regard the private arrangement of the commissioners by which a part of the fund was taken charge of by one and the residue by the other. The portion held by either was constructively and legally in the hands, of both and it was therefore not only proper but essential that the bill should aver that it was held by them jointly, notwithstanding the fact that it was in the actual-possession of Hunter alone. Upon these facts and for these reasons it seems to me plain, that from and after the date of said decree of February 20, 1845, Berry did in fact hold and treat the fund in his hands as administrator de bonis non with the will annexed of John Baker. This much is, I think, conclusively established; and it necessarily follows as a corollary that this fund thus in Berry’s hands was never controlled or affected by the Hopkins injunction, provided the fund was legally and rightfully taken charge of by Berry as such administrator. The injunction did not propose to embrace any fund except that in the hands of Berry and Hunter as special commissioners; and if this fund was in the hands of Berry not as commissioner but as administrator, of course it was not embraced or affected by the injunction. It is claimed, however, by the counsel for the appellees that this fund was not rightfully and legally in the hands of Berry as such administrator. In support of this position it is contended that the said decree of February 20, 1845, which .directed the commissioners to pay over the fund to Berry as administrator, was an absolute nullity and without any legal sanction or effect, because it was entered in vacation, and also because it was set aside and swept away by the decree of the court of appeals in the case of Hopkins v. Baker’s Adm’r, 2 Pat. & H. 110. — 89 — In my view of the question, it is not important whether the “ consent of the parties,” stated in this decree, was intended to be confined simply to the entering of it by the judge in vacation or extended to the matters decided by it. The context strongly indicates that the latter was its effect. But assuming that the consent of the parties was merely that it might be entered in vacation instead of in term, what was its effect, if any, on the matter now in question? As such it would certainly be held erroneous and perhaps void as an adjucation of adverse rights or claims. Monroe v. Bartlett, 6 W. Va. 441; Johnson v. Young, 11 Id. 678; Rollins v. Fisher, 17 Id. 578. But so much of it as constituted simply an order or direction, ex parte in its character, or such as a judge might properly enter in vacation, would not in my opinion,, be regarded as a nullity. The statute of Virginia authorized any circuit judge, in vacation, to direct any proper account to be taken in a cause in any court of his circuit—Code Va. ch. 175 § 6. The order entered in this cause directing the commissioners to pay over the fund to Baker’s administrator was administrative and ex parte in its nature. If the direction was proper it was the duty of the court to make it and it cannot be material when the parties consented, that it made was by the judge in vacation. The court of appeals of Virginia has never declared such a decree void but merely erroneous. Tyson v. Glaize, 28 Gratt. 799. And it is elementary law that an erroneous decree so long as it remains unreversed is as obligatory and effective as any other decree. Franklin v. Depriest, 13 Gratt. 257. If said decree was a nullity, it was a very useless and perfunctory act to apply for and prosecute the injunction against it. It was certainly not so regarded by the special court of appeals; for that court said in its opinion that, “if it had been appealed from by Hopkins Brothers it might have been affirmed.” 2 Pat. & H. 121. In the mandate of that court, after reversing the decree of November, 1849, (the only one appealed from,) and remanding the cause to the circuit court with directions to have the bill of Hopkins amended by having the proper parties made to it, the order proceeds: “And when the cause shall be properly matured for hearing, to decide the cause according — 90 — to the rights of the parties, without regard to any decision heretofore made in this or any suit referred to in the bill, answer or proceedings in this cause, which has been made, or lias been alleged to have been made, as bearing upon the questions that may arise on the hearing of this cause.” 2 Pat. & H. 123. The counsel for appellees argues that by this direction, the said decree of February 20, 1845, was entirely 5abrogated and effectually swept away. In view of what the court had just said in its opinion and the qualification made by the words, “bearing upon the. questions that may arise on the hearing of this cause,” it does not seem to me that such could have been intended to be the effect of that part of the mandate. The only parties before the court on that appeal were Hopkins and Baker’s administrator. Ho appeal was taken from the decree of February 20, 1845, and the suit in which it was pronounced was only collaterally in that court. In the light of-these facts, I think it would be unjust to the intelligence of that court to assume that it intended to abrogate and annul said decree of February 20, 1845, a thing which it bad neither the legal right nor the jurisdiction to do. "What it did, and intended to do, is apparent. It directed the injunction as modified to be reinstated and ordered the circuit court to dispose of the fund operated upon by the injunction according to the rights of the parties, without regard to said decree of February 20, 1845, against which the injunction had been awarded, or the decree of November, 1849, dismissing the bill of Hopkins. This is plainly all the court had jurisdiction to do on that appeal and it. is all that a fair and reasonable construction of its mandate imports. And, as we have seen, the portion of the fund received by Berry, having passed into his hands as administrator before the injunction was granted and was consequently not embraced by it, the mandate of the appellate court did not and could not affect it. It is further contended that, if it be true, as we have held it is, that Berry did in fact, so far as it was in his power to do so, pass his portion of the fund to his account as administrator of Baker, still he and his sureties as such administrator cannot be made liable for it; because, as it is insisted, said fund had been converted and administered by Tapscott, — 91 — the -executor of Baker, and had ceased to be assets of Baker’s estate before Berry qualified as administrator of Baker. It is undoubtedly true that an administrator de bonis non has the right only to administer the assets of the decedent not administered by the former administrator and that he is not entitled to administer assets converted by his predecessor—Wernick v. McMurdo, 5 Rand. 51; Estill & Eakle v. McClintic, 11 W. Va. 399; Potts v. Smith, 24 Am. Dec. 359. While this rule is strictly observed by the common-law courts, it is subject to certain modifications and exceptions in courts of equity. The latter courts look to the real transaction and regard the equitable rights and duties of the parties. But it is unnecessary in this case to enter upon a discussion of these equitable principles. The right and duty of the administrator de bonis non to administer the fund now in question was determined by the appellate court on the appeal of Hopkins. The court in its mandate directed a part of this fund to be paid over to said administrator to be administered by him—2 Pat. & H. 123. If it was legal for said administrator to receive and administer a part of this fund, as that court held it was, it surely could not be unlawful for him to administer the residue. But the General Assembly of Virginia on April 6, 1839, before Berry qualified as administrator cfe bonis non of Baker, passed an act which is conclusive on this question. This act provides that it shall be lawful for the administrator of an administrator or executor to pay over and transfer to the administrator de bonis non of the first decendent “all the assets and un administered estate, including bonds taken for the sales thereof, which may be in the possession of said executor or administrator at the time of his removal or death, and all the assets, bonds and estate thus paid over and transferred, shall be assets in the hands of the administrator de bonis non, subject to debts, legacies and distribution in all respects as before said removal or death”—Acts 1839, ch. 70 p. 44. Whatever may have been the law before this act was passed, it cannot be doubted that after its passage this fund, when it came to the hands of Berry as administrator de bonis non 'of Baker, was assets in his hands and as such he and his sureties were — 92 — accountable for it—Burnley v. Duke, 2 Rob. 102; Tyler v. Nelson, 14 Gratt. 214. If it had been shown that this fund had been disposed of by Berry while in his hands as commissioner and he had become insolvent before the decree of February 20, 1845, ordering him to pay it over to himself as administrator, his sureties could not be made responsible for it. A fiduciary cannot transfer his mere indebtedness in one capacity to himself in another capacity so as to exonorate his sureties in the one and throw the burden upon his sureties in the other. To make the transfer valid it must consist of something more than a naked liability; it must be substantial assets if made by an insolvent fiduciary—Smith v. Gregory, 26 Gratt. 248; Phillipo v. Munnings, 14 Eng. Ch. R. 309, 315. But if the fund was in the hands of Berry at the time said order was made or if it came to his hands thereafter and before the injunction was granted, or if he was then solvent and able to pay it over, all that was necessary, in any of these events, to fix his liability as administrator, was for him to make his election to hold it as administrator, and manifest it by some act, declaration or admission—Swope v. Chambers, 2 Gratt. 319; Morrow v. Peyton, 8 Leigh 54; Piper’s Estate, 15 Pa. St. 533; Gottsberger v. Taylor, 19 N. Y. 150. That Berry did manifest his election to hold the fund as administrator has already been shown; and there is nota particle of evidence even tending to prove that he had disposed of it before he was ordered to receive it as administrator or that he was then insolvent. It is true the amended bill avers that his estate was insolvent when .lie died in 1869, twenty-four years after. But this certainly does not prove he was insolvent in 1845. It appears, on the contrary, that a part of the fund was received by him in July, 1845, shortly after the order was made and that in April, 1848, he paid over a large part of it to one of the distributees. I am, therefore, of opinion, for the reasons stated, that Berry in his capacity of administrator de bonis non of Baker and Ms sureties as such are properly chargeable with said fund, unless they have by some act or otherwise been discharged from liability for it. The next enquiry is, what effect has the decree of April — 93 — 28, 1870, hereinbefore given in fall, on the said liability of Berry and his sureties? This decree confirms the report of commissioner Cooke of March 22, 1870, to which there was no exception. The report stated an account between the estate of John Baker and Henry as special commissioner and included therein the fund now in question. It also stated accounts between said estate and Berry as the administrator thereof and between Berry . and the distributees of said estate. If this fund was embraced in said decree and the liability of Berry as special commissioner therefor and the rights of the parties thereto, determined and fixed by it, then such determination would conclude this controversy. There having been no exception to said report and no error appearing upon its face which might not be affected by extrinsic evidence, it could not, after confirmation, be reviewed by this Court, whether it is treated as a final or simply an interlocutory decree—McCarty v. Chelfant, 14 W. Va. 531; Ward v. Ward, 21 Id. 262; Cole v. Cole, 28 Gratt. 365. But, if on the other hand, the fund in question and the liability of Berry therefor and the rights of the parties thereto, were not embraced in and determined by said decree, then it is equally conclusive that this controversy was not settled by it. An inspection of said decree will show that while it specifically disposes of all the other accounts and matters contained in the report, it makes no order or direction in reference to the account reported between the estate of Baker and Berry as special commissioner. It makes no mention of any liability against Berry as special commissioner or of the fund reported in his hands as such, but expressly recommits the cause to Commissioner Cooke, “to ascertain and report if there are any further or other liabilities of said Henry Berry, as administrator aforesaid, for which the estate of ¥m. Short, as his security is responsible.” Unless this fund was in contemplation when that order of reference was made there could -have been no ground or reasonable cause for making it. No other liability had theretofore appeared and none ever made its appearance thereafter. There was nothing else in the record even to suggest, much less to justify, an order of reference. We cannot presume that the — 94 — court did what it had no authority to do, yet we would be compelled to do so, unless we hold that some further liability on Berry as administrator had been suggested or brought to its attention and as none then appeared, or has been since discovered, other than the fund then appearing against him as special commissioner, we must conclude that the “ further or other liabilities,” which had been suggested to the court included, if it was not confined, to this fund. I do not, therefore, think that said decree of April 28, 1870, was conclusive, either of the liability of Berry for, or the rights of the distributees of Baker to, said fund. The said decree had no affect upon said fund; the whole question in reference to it was left open by it for the future consideration of the court upon the return of the report of Commissioner. Cooke therein directed. This conclusion virtually disposes of all the exceptions of the appellees to the subsequent reports of Commissioners Cooke and Moore, in which they respectively report that Berry is chargeable with said fund as administrator of John Baker, except the one which relates to the bar of the statute of limitations. It is insisted that all the reports made in these causes prior to the two above mentioned, uniformly treated said fund as being in the hands of Berry as special commissioner. In reply it may be stated, that none of those reports were confirmed by the court in regard to said fund; and, consequently, said report can have no effect or value except as judicial opinions of the commissioners who made them, and by these opinions we are not bound. In regard to the defence of the statute of limitations and the lapse of time, it is sufficient to state, that the fund belonging to the estate of William Short, the surety of Berry as administrator, which is sought to bo subjected to the plaintiff’s demand in this cause, is a personal fund and Short’s administrator has at all times, during the progress of this suit, from 1853 to the present, been a party. There is nothing in the record to show that Short ever had any real estate, much less that the fund now in the hands of Billmyer is the proceeds of the sale of his real estate. It does appear that it is a part of the proceeds of the real estate of Vincent M. Butler, the administrator of. Short, but it does not appear — 95 — what the character of the assets of Short was which produced the liability against Butler as his administrator. In the absence of any proof on the subject we must presume that it was a personal fund as it went into the hands of Short’s administrator. - In this view it was entirely unnecessary to have made the heirs of Short parties to the amended hill in this cause. I am, therefore, of opinion that all the exceptions of Short’s and Berry’s administrators to the aforesaid reports of Commissioners Cooke and Moore be overruled and that said reports should he confirmed. It necessarily follows from the conclusions thus arrived at, that the final decree of the circuit court of Berkeley county, pronounced in this cause, and the several causes heard with it, on December 16, 1880, must he reversed with costs to the appellants against the estates of Henry Berry, deceased, and his sureties as administrator of John Baker, deceased, and the appeal from the aforesaid decree of April 28, 1870, must be dismissed as having been improvidently awarded. And this cause is remanded to the said circuit court for further proceedings according to the principles announced in this opinion. BeveRsed. Remanded.