Fultz v. Brightwell

Lewis, P., delivered the opinion of the court. Whether the deposit of Confederate currency with the general receiver of the circuit court of Augusta, made by the appellant, Pultz, under the decree of June 10, 1863, discharged him from liability as the administrator-of Ptolemy Brightwell, deceased, is the main question for determination on this appeal. The court below held that it did not, and, we think, correctly. That decree was entered without any notice whatever to the parties interested in the fund in question; it was entered in a suit to which the administrator was not a party, and the sole object of which was a sale of the house and lot in the town of Staunton, with a view to the distribution of the proceeds among the widow and heirs of the appellant’s intestate. The suit was begun in 1859, and from the commencement to the close of the late war, the parties in interest were all, with one exception, outside of the Confederate lines, and residents of the state of Missouri. The fund for which the administrator was liable had been almost wholly collected by him before the war, in gold or its equivalent; and if, by reason of the pendency of suits against the estate and certain of the distributees, or from any other [749] cause, it could not be distributed, it was his plain duty to have safely invested it, to be forthcoming when distribution could be made, or, by appi’opriate proceedings, to have applied to a court of chancery for its aid and direction in the management of the trust. This he did not do; it does not appear that he invested the fund, or that it, at any time or anywhere, was deposited in his name as administrator. Under these circumstances, therefore, it was not competent for the circuit court, by its decree, even if so intended, to authorize the administrator to relieve himself of liability by a deposit of a depreciated and depreciating currency. These principles, founded upon obvious reasons of natural justice, are well established by repeated decisions of this court, and need no elaboration in the present case. In Crickard’s executor v. Crickard’s legatees, 25 Gratt. 410, an executor was held liable, in whose hands there was a fund, at the beginning of the war, which he could not then distribute, because the parties entitled were not competent to receive it, and which, by an order of the circuit court of Augusta, in June, 1863, in a suit, previously brought to settle the estate, he invested in Confederate bonds. He averred that he had invested the fund according to his best judgment, but that after the war began, the investments became, beyond his control, converted into Confederate money, and that afterwards, under the order of the circuit court, he invested the fund in Confederate bonds. And he insisted that by that order he was relieved of liability. But this court held otherwise. It said: “The executor does not inform the court * * * * in what manner he invested the funds in his hands, which he declares in his answer £ were invested by him, according to his best judgment and discretion, in the management of his trust;’ nor does he offer any explanation of how £ these investments become, beyond his control, converted into Confederate money.’ One of two things is certainly true, and in either event the executor is equally responsible. He either retained the money in his own hands, paying interest [750] to the parties entitled, and regarding it as an investment in his hands for them, or he loaned it out upon securities of some sort. If he retained it, he became the debtor of the legatees; and having received gold, cannot discharge his debt in a depreciated currency. If he loaned it out, he had no right to receive it in Confederate currency, depreciated in June, 1863, to one-tenth of its face value. And if he changed the investment he had made, and suffered safe and solvent securities to become £ converted into Confederate money,’ he committed a devastavit, for which the law will hold him responsible. This has been expressly decided by this court, not only in the case of Campbell’s executors v. Campbell’s executor, 22 Gratt. 649, * * * * but in a number of cases where appeals have been refused, where the record and petition presented this precise question.” We have thus quoted at length from the opinion in that case, because what is there said applies with peculiar force to the present case. It would be strange indeed, and contrary to the plainest principles of justice, if a debtor, and especially a fiduciary, having in his hands a fund collected in good money, could by an order of court, obtained without notice to the parties interested in the fund, relieve himself of liability by a payment in a currency not a legal tender for debts, and greatly depreciated. That such orders and payments thereunder are utterly invalid for such purpose has often been decided by this court. Thus in the case of Beery v. Irick, 22 Gratt. 614, it was held that an order of the circuit court was void, which was obtained without notice, in 1862; authorizing a purchaser of land, which had been sold in 1857 under a former decree in the cause, to pay to the general receiver of the court the balance of purchase money due by him, to be invested in state bonds, and that the payment in Confederate currency under the order did not discharge the purchaser. See also Myers v. Nelson, 26 Gratt. 729; Purdie and wife v. Jones, 32 Gratt. 827. But the appellant insists that the decree of the 10th June, 1863, cannot be assailed in a collateral or independent suit, and [751] that the demurrer to the hill ought to have been sustained. It is a sufficient reply to this objection to say, that if the decree is construed as appellant insists it should be construed, viz: as authorizing a deposit in Confederate currency, then, entered as it was without notice to the appellees, in a suit to which the administrator was not a party, and in which a settlement of his accounts and indebtedness was not asked for nor involved, it was a void decree, and may be so treated in any proceeding, collateral or otherwise. The case does not come within the act of the legislature of March 5, 1863 ; (Campbell’s executors v. Campbell’s executor, 22 Gratt. 684 ; Kirby v. Goodykoontz, 26 Id. 302; 4 Minor’s Institutes, 1241;) and if by the deposit under that decree the liability of the administrator was discharged, it is difficult to see why any other debtor of the appellees might not, with the same propriety, have obtained a like decree in the same suit, and discharged his liability by a deposit of Confederate currency. But the bill which was filed in 1873, was treated throughout in the court below as ancillary to the original and depending suit of Brightwell, &c., v. Brightwell's heirs, and as a petition for the rehearing and review of the decrees complained of in that suit. This it was competent for the court to do, and the decree of June 10th, 1863, being an interlocutory decree, it was properly reheard and set aside. In Kendrick et al. v. Whitney et als., 28 Gratt. 651, it was said that cases may be found in which the court has reheard a cause at the distance of eighteen years from the time the decree complained of was pronounced. In another case the court refused to discharge an order for a rehearing, though at a distance of twenty-five years. Whether a rehearing shall be granted is said always to depend upon the sound discretion of the court upon all the circumstances of the case. Adams’ Eq., margin, page 379; Land v. Wickham, 1 Page, 256. The appellant’s exceptions to the master’s report were properly overruled. It is insisted that interest on the fund during [752] the period of the war should have been abated, and that the administrator should have been credited with the face, and not the scaled value merely of the Confederate currency disbursed by him in the payment of debts. As matter of fact, the war interest was abated, except as to the resident distributee, and as the whole fund which went into his hands was collected in good money, with the exception of a few small sums, of the aggregate scaled value of about forty dollars, he was properly held accountable accordingly. The last error assigned is that the court erred in not requiring the plaintiffs’ counsel to answer the interrogatories propounded by the appellant before the master. hTo exception to the report on that ground was taken, nor does it appear that the matter was in any way brought to the attention of the court. And it is now too late to raise the objection here. That this is a case of hardship upon the appellant there can he no doubt, hut we have carefully considered it, and are satisfied that the decree of the circuit court is right, and must he affirmed. Lacy, J., dissented. Degree affirmed.