Miller's Adm'r v. Cook's Adm'rs

Richardson, J., delivered the opinion of the court : The contest here is as to the real or supposed conflict between the decree of 1874, as affirmed by this court in 1879, and the subsequent decree of December, 1880. The record in both cases is before us, and together must he looked to for a projmr determination of this case. It will be seen, therefore, that this case must turn mainly, if not exclusively, upon the question, “Is the said decree of 1880, in conflict with said former decree of 1874, as affirmed by this court by its decree aforesaid, pronounced in 1879?” Or, in other words, “Was said last named decree a final decree and as such affirmed by this court so as to preclude the appellees as to the matters decreed in their favor by said decree of 1880, from which this appeal is taken ?” The suit of Lingle and others v. Cook’s adm’rs, &c., and others, was brought in 1866, by certain of the legatees and devisees of said Cook, against his administrators and others, for the purpose of having a settlement of the administration account of his estate, and a distribution of same among them. In the succeed — 812 — ing year, 1867, a suit in the name of Eddins and others v. Cook’s adm’rs and others, was brought in the same court, by certain of said devisees and legatees against the said administrators and others, for the same purpose. The two suits were consolidated on the 28th day of October, 1869; subsequently various proceedings were had, which need not be here referred to, both in court and before the commissioners to whom, from time to time, the case was referred for settlement of the administration accounts.' After repeated references for settlement, finally, in 1873, Commissioner Newman made a report to court of the accounts as stated and settled by him; and upon exceptions to this report several questions arose, all of which, so far as definitely determined, are stated in separate distinct paragraphs or clauses in said decree, numbered from one to seven, inclusive, and are: First. Who, and to what extent, among the several administrators and their respective sureties were chargeable with the assets of the testator’s estate. Second. That as to the liability, sought to be charged upon the defendant, Robert S. Harnsberger, as purchaser of certain bonds from the estate, referred to in the cause, the said Harnsberger was not liable to account for same, his purchase having been in good faith, for valuable consideration, without any notice of any intended devastavit on the part of the administrators, if any was intended. Third. Affirming the report of said commissioner, refusing to allow commissions to the administrators because they had failed to settle their accounts as required by law. Fourth. Allowing, as reported by the commissioner, credit to the administrators for certain investments in Confederate bonds. • Fifth. Allowing the claim of W. C. Kiblinger and others, special legatees under the will of the testator, their claim of $1,082.76, with interest from the 1st of April, 1873, as prayed for in their petition filed in said cause. Sixth. Holding that inasmuch as it was conceded that George — 813 — W. Miller, with Hiram A. Kite and others as his sureties, was indebted by bond to the testator, in the sum of $2,000, with interest from the 2d day of January, ISSY, and judgment having been recovered on said debt against Hiram A. Kite and Joseph H. Kite and Henry Miller, surviving obligors of themselves, and G. W. Miller and Joseph H. Conrad, deceased, all of whom were sureties, except said George W. Miller, and said judgment being in the control of the general receiver of the court, subject to certain specified credits, and the said George W. Miller being one of the legatees,“his legacy should be applied to the payment of his said indebtedness, and his sureties in such obligation to that extent relieved as judgment debtors to said estate, and that said Hiram A. Kite have refunded to him so much of the money paid by him on said judgment, as he might be entitled to upon a proper adjustment of said judgment with respect to said legacy. Seventh. That the amounts going to the administrators, Robert .B. Cook and Joseph H. Conrad, in right of his wife, as legatees of said testator, being in their hands as administrators, as well as the amount going to George W. Miller, should not be included in the amount thereinafter decreed to be paid to the general receiver. These seven distinct clauses constitute, in the language of the decreé itself, the principles thus far upon which the court below was proceeding, seem to comprehend a definite settlement of the questions therein considered. But said decree does not stop here; on the contrary, in the succeeding eighth clause thereof, the decree proceeds: “That it being suggested that there is some uncertainty as to whether all of the legatees or their representatives have been ascertained with entire accuracy, and there being no question that upon the principles of this decree, there is due to the legatees of John Cook, deceased, the aggregate sum of $44,520.14, according to the statement marked (R. H. T.) made by the court, and ordered to be made a part of the record, and which is based upon Master Commissioner Newman’s statement Ho. 3, showing the amount paid to the distributees, and — 814 — the amount yet due from the administrators, which statement the court doth approve, and also to avoid the vexation of numerous executions against the defendants, which would result from decrees in favor of the legatees severally, it is proper that the amount ascertained to be due from the administrators of John Cook, deceased, and their sureties, shall be paid to the general receiver of this court, to be hereafter disbursed under orders and decrees of the court in this cause; it is therefore, and in pursuance of the principles hereinbefore settled, adjudged, ordered and decreed as follows,” &c. And then the court went on in corresponding decretal clauses to adjudge, order and decree according to the principles laid down in said eight clauses; and in the decretal clause corresponding to said eighth clause, uses this very significant language: “ That this cause stand referred to the Mas,ter Commissioner, A. M. Newman, with instructions to take, state and settle a further distribution account, and a further account of the fund to the credit of this cause, and that he make report to the court at its next term, &c.” Such was the decree of the court below, and as such was affirmed by this court upon appeal, in said case of Lingle & als. v. Cook’s adm’r & als., 32 Gratt. 262. It is contended by counsel for the appellant that this decree of the court below, pronounced on the 3d day of October, 18T4, was a final decree, not resisted, but acquiesced in by the appellees, who were parties to that suit, and that they must, however great the hardships to them, stand precluded thereby and denied the benefits secured to them by the subsequent decree in their favor, and from which this appeal has been taken. This contention finds complete refutation in the very language of the decree relied on as final. It does not even give costs. Its language, so far from importing finalty and leaving nothing to he settléd, in the broadest and most unmistakable terms, sends the cause back to the commissioner, with instructions to take, state and settle a further distribution account, and a further account of the fund to the credit of this cause, &c. And in the — 815 — preceding eighth clause, so much, relied on by counsel for the appellant to establish the -finality of that decree, the court below says: “It is proper that these amounts ascertained to be due from the administrators of John Cook, deceased, and their sureties, shall be paid to the general receiver of this court, to be hereafter disbursed under orders and decrees of the court in this cause,”—evidently meaning orders and decrees thereafter to be made, and recognizing in unmistakable terms, as disclosed by the record, that neither in that nor any previous decree, had any distribution been made, as between the legatees. It can make no difference that the appellees did not except to the preceding report, which treated some of them as paid off dollar for dollar, in Confederate treasury notes, and others as having their shares absorbed by compulsory proceedings had under the Confederate act of sequestration; because that report of the commissioner was never confirmed—certainly never as to the questions involved here, the matter of the proper distribution of the testator’s estate, between the legatees, according to said testator’s will. Whether excepted to or not, that report, in the particular under consideration, was, until confirmed, under the control and power of the court, and in the legitimate exercise of that power, the court rejected, ex mero motu, at least that feature of the settlement, which appeared unconscionable, and directed a further account. There can he no question of either the right or propriety of the course taken. The fundamental error which lies at the root of the appellants case is, in assuming, without warrant, and in the face of the plain terms of the decree, that it is a final decree, and the appellees are concluded thereby, when those terms indelibly stamp it as an interlocutory and not a final decree. Hence, from his standpoint, the counsel for the appellants lays down the proposition, which no one will deny, that the effect of the appeal from said decree of October 3d, 1814, was to bring up the whole proceedings in the cause prior to the appeal, and that the affirmance of said decree by this court is final and cannot in any way — 816 — be disturbed by this or any other court; and in support of this proposition, which generally no one can deny, refers to 2 Rob. Pr., old edi., 488, where it is said: “Upon appeals from interlocutory decrees, so much of the cause is before the appellate court as the court below has acted upon, and no more ”; and attempts to fortify the position by reference to Madden v. Madden’s Ex’ors, 2 Leigh, 377, and numerous other authorities which need not be named, as the rule laid down and enforced by them is unquestioned touching the effect of a decree final in the sense of settling the principles involved, but wholly inapplicable fo a case like this, where the decree was too plainly interlocutory to admit of any, éven plausible, pretext for holding otherwise, and was not intended to settle the principles in respect to which the subsequent modification was made. It will be observed that this contention ignores, practically, the very language of the decree which illustrates the fact that it was not, and could not have been intended to be a final decree, disposing of the cause; but on the contrary expressly retained for future investigation and decree, the very subject of controversy here now. And ignores the fact that the statement of the proposition is its own refutation, inasmuch as the eighth clause of said decree, so much relied on to establish its finality, looks to decrees thereafter to be rendered as important to the final disposition of the cause; and the fact that it is declared in the very last sentence of the opinion of this court, affirming said decree, that there is no error therein. It is strangely paradoxical to say that said decree of 1874, is final, when an important provision therein—the very one relied on for its finality—directs the performance of most important duties as essential to these future decrees, and at the same time rely upon the affirmance by this court, as fixing its finality, when it is perfectly obvious that the decree of affirmance, taken as a whole, as looked to by the counsel for the appellant, embraces and affirms that feature of said decree directing the further account, as well as other features thereof. It is useless to pursue this subject further than to add that, “ where the further action of — 817 — the court in the cause is necessary to give completely the relief contemplated by the court, the decree upon which the question arises is to be regarded not as final but interlocutory.” Cook’s adm’r v. Gilpin, 1 Rob. 20, and numerous other decisions of this court, including the recent case of Smith v. Blackwell, 31 Gratt. 291, which abundantly sustains the view that the decree of October 3d, 1814, was not final, but interlocutory. In passing, it must be admitted that the language in said eighth clause in reference to statement “R. H. T.” made by the court, and ordered to be made a part of the record, “and which is based upon Master Commissioner Newman’s statement No. 3, showing the amount paid to the distributees ” and the amount yet due from the administrators, “which statement the court doth approve,” is, in view of the marked character, &c., general scope and purpose of this decree, in other respects, to say the least, unintelligible; but this so far from fixing the decree as final, should have the opposite effect. Nothing further seems to have been done in the court below, until after the decree of affirmance here, when the commissioner returned his report under said decree of 1814, charging Confederate treasury notes paid to certain legatees dollar for dollar, and others who happened to be beyond the Federal lines, with their shares as paid by the administrators to the sequestrator, under compulsion; the details of which need not be here set forth. It is sufficient to say, that report was excepted to, the exceptions sustained, and the report recommitted with special instructions for alternate statements; in obedience to which instructions the account was restated and reported; and the circuit court of Rockingham adopted and confirmed the commissioner’s statement No. 3, which charged the legatees inside the Confederate lines with the scaled value of the Confederate treasury notes when paid to them, and the foreign legatees in the same way with the amount sequestered in their names; and in that way admitted both classes to share equally with others, and thus effectuating the testator’s intention; and the said — 818 — circuit court on the first day of December, 1880, decreed accordingly, from which decree this appeal was taken. The fact has already been adverted to, that in the report of the commissioner made prior to the decree of October 3, 1874, the shares of the foreign legatees were treated as having been paid to the Confederate States sequestrator, and that certain other of the legatees were charged with the Confederate treasury notes paid them, at their nominal value. It is true that the court below in rendering the decree of October 3, 1874, allowed the administrators credit for the amounts (nominally) thus paid by him; and however averse this court might be now to go even to the extent it did go in affirming, to that extent, the court below, yet it is plain for many reasons that the credit thus allowed the administrators, under the peculiar circumstances, rests on other and much weightier considerations than the act of spoliation sought to be visited upon these foreign legatees, could stand upon. Newton v. Bushong, 22 Gratt. 629. The administrators making payments as it were at the point of the bayonet, could well be heard to excuse themselves for acts which would have amounted to a devastavit, but for 'the compulsion under which they acted. But on the other hand it would be harsh and manifestly unjust to deduce therefrom the right to exclude these foreign legatees from a just participation in the estate so far as not wasted; and equally unjust to the legatees who received Confederate States treasury notes to charge them with the nominal value in full, and thus practically exclude them from participation in the bounty intended for them as well as the others. However, the law as laid down by the supreme court of the United States, in the case of Williams v. George Bruffey’s adm’r, 6 Otto, 176, holds that the sequestration laws of the Confederate States were null and void, and did not forfeit money due to citizens of the United States residing outside of the Confederate States. What we have said does not conflict necessarily with anything settled by the former decree of this court affirming the said decree of October 3, 1874. Nothing of — 819 — the kind is intended, nor is it necessary for the ruling now made. As to the point made by counsel for the appellant, that the right asserted by the appellees in the court below could only have been brought forward by petition or bill of review, it is only necessary to say that the decree of October 8, 1874, being merely interlocutory and the court retaining the cause, and directing important inquiries essential to a final decree disposing of the whole cause, it was competent for the appellees to raise the questions as they did, by exceptions to the commissioner’s report at any time before final decree. Steptoe’s ex’or v. Steptoe and others, 1 Mun. 339 ; Mackey, ex’or of Fuqua v. Bell, &c., 2 Mun. 523 ; Smith v. Blackwell, 31 Gratt. 291. In every view the decree appealed from is right and the same must stand affirmed with costs to the appellees, which is ordered to be certified to the said circuit court of Eockingham county. Decree aeeirmed.