Anderson's Administrator v. Smith

Keith, P., delivered the opinion of the court. Cassie Lee Smith and Shelton A. Smith, her husband, Anne Scott Hunt and William Dabney Hunt, the last two infants under twenty-one years of age, by Shelton A. Smith, their next friend, filed their bill in the Corporation Court of the city of Lynchburg, from which it appears that Cornelia T. Holcombe, — 702 — a widow, died in November, 1890, leaving no descendants, having first made and published her last will and testament, dated the 13th of June, 1889. This will was not produced in court for probate, and on the 16th of February, 1891, John Q. Adams qualified as the administrator of Cornelia T. Holcombe. Complainants say that they are ignorant whether the will was not then proved, because its existence was unknown, or because it was not regarded as a sufficient will. Adams, the administrator, proceeded to administer the estate and rendered partial accounts of his administration. The bill then charges that one James H. Anderson, who is named as a legatee in the will, became aware of its existence, and that he was interested in its provisions; that he thereupon demanded of the administrator that the will should be put to record and his rights under it recognized. “But your complainants regret to say that the heirs of said Cornelia T. Holcombe and the said John Q. Adams, her administrator, for the purpose of preventing your complainants from obtaining their rights under the said will, continued the policy which had been inaugurated at the outset of the administration, and, in order that the said will might not be admitted to probate and the interests of your complainants thereunder be thus made public, an agreement was, on the 8th day of August, 1893, entered into between Henry C. Hunt, Ella T. Hunt, Mattie W. Hunt, the widow and sole devisee of John A. Hunt, who was then dead, and the said James H. Anderson, a copy of which agreement is herewith filed as a part of this bill, marked Exhibit No. 5, of which contract John Q. Adams, the administrator of Cornelia T. Holcombe, was advised, as appears by the fact that he was a witness to the signature of one of the parties thereto. Under this contract it was agreed that the Cement property, 51 acres from the North Cut property, and $750.00 in money, should be turned over to the said James H. Anderson, who was an entire stranger to the blood of the said Cornelia T. Holcombe, was not a creditor of her estate, and had no — 703 — interest whatsoever therein, except that derived under the said will, which was being thus suppressed. In other words, the interest in the property of the said Cornelia T. Holcombe, which by her will was devised to your complainants, was to be sacrificed by this secret agreement, and hush money was to be paid to the said Anderson, and the will under which your complainants held a large interest in the estate of the said Cornelia T. Holcombe was to be forever suppressed.” The contract here referred to is as follows: “This memorandum of agreement, made this 8th day of August, 1898, between Henry C. Hunt, Sallie Hunt, his wife, Ella T. Hunt and Mattie W. Hunt, widow of the late John A. Hunt, deceased, parties of the first part, and Jas. H. Anderson, party of the second part, witnesseth, that in consideration of the fact that the said party of the second part hereby relinquishes all claims against and all right, title and interest in and to the estate of the late Mrs. C. T. Holcombe, of Amherst county, Ya., the said parties of the first part do hereby agree to pay to said party of the second part, seven hundred and fifty dollars ($750) in cash, and convey to him in fee simple a certain farm, known as the Eureka Cement property, belonging to the estate of the said C. T. Holcombe, situated on Blue Bidge, in the county of Bedford, and containing 143 acres of land, more or less. Also 51 acres of land to be cut off east end of farm known as North Cut, in the county of Amherst.” Ella T. Hunt declined to execute the deeds for which this contract provided, and on the 12th of August, 1896, a suit was brought by James H. Anderson in the Corporation Court of the city of Lynchburg against the said Ella T. Hunt, to require her to specifically perform this agreement. It was during the progress of this suit that the existence of the will became known to the judge of the court, and, at his suggestion, it was proved and admitted to record in the County Court of Amherst county, after much controversy, and, no appeal having — 704 — been taken from the order of that court, the paper is established as the will of Cornelia T. Holcombe. The bill then goes on to show in much detail that the interest which complainants took under the will passed into the hands of John A. Hunt, H. C. Hunt, Ella T. Hunt and James H. Anderson. The bill contains many other matters which need not be specifically mentioned, except to refer to what is known as the Bell debt, which was a bond for $1,000, given by Mrs. Holcombe to secure the sum of $1,000 to William E. Bell, administrator de bonis non of George W. Bell, and as security for which she deposited certain notes as collateral, and also charged certain of her property in her will. The prayer of the bill is that all persons having adverse interests may be made parties; that it may be ascertained of what property, real and personal, Mrs. Holcombe died seised and possessed; in whose possession it now is, and under what title it is held; what debts are due her, and to what debts the property should have been applied, and how her estate should have been disposed of under the provisions of her will; that John Q. Adams, administrator, be required to settle his accounts, and that he and his sureties be required to pay to complainants whatever may he ascertained to be due them; and that the property and money of which the said C. T. Holcombe died seised and possessed, or to which she was entitled, may be decreed to complainants according to the bequests contained in her will. The administrator of James H. Anderson, and others of the defendants, filed their demurrers and answers, and the cause was referred to O. H. Sackett, an experienced and skillful commissioner, to state the necessary accounts. He, having examined witnesses and the documentary evidence offered by the parties, returned his report to the November term, 1901, and plaintiffs and defendants filed numerous exceptions thereto; and the Corporation Court was of opinion, as appears from its decree of April 18, 1902— — 705 — “That the contract between James H. Anderson and Henry C. Hunt and others, made the 8th day of August, 1893, and filed in the papers of this cause, marked ‘Exhibit X,’ was a fraud upon the rights of the plaintiffs under the will of C. T. Holcombe, deceased, and that all deeds and contracts and transactions by virtue or in furtherance of said contract are fraudulent and void so far as said deeds, contracts and transactions affect the rights of the plaintiffs under said will, except where the rights of innocent parties Avithout notice are invoDed. “That James H. Anderson, Henry C. Hunt, Mattie W. Hunt and Ella T. Hunt are in pari delicio, and the court doth refuse any relief to them among themselves, or their personal representatiAms, or any adjustment betAveen them touching their dealings with the estate of O. T. Holcombe, deceased, except in so far as such adjustment may be necessary to protect and relieve plaintiffs and innocent persons without notice of said fraudulent contract. “That the Horth Out property, in the county of Amherst, together with the proceeds of that part thereof Avhich AAras bought by Thomas Adams, Avhich sale was afteiuvards abandoned, passed under the will of 0. T. Holcombe, deceased, to William Dabney Hunt, and that he is entitled to take and hold the same under said AAÚ11 discharged of the debt charged thereon in favor of Mattie W. Hunt, it having been admitted in open court that the said debt has been paid.” The court declined to pass at that time upon so much of the contowersy as related to the claim of George W. Bell’s administrator, and referred the cause back to Commissioner Sackett for such amended and supplementary report as might be necessary to conform his former report to the principles decided in its decree. At a subsequent date the commissioner reported back to the court, and on Eebruary 9, 1903,” a decree was entered passing upon the exceptions filed by plaintiffs and defendants, and decreeing in favor of Bell’s administrator, so far as — 706 — that debt was secured by bonds deposited as collateral, and by the property upon which it was made a charge by Mrs. Holcombe, but held that with respect to any balance which might remain after appropriating whatever might be realized from those subjects the claim was barred by the statute of limitations. In this decree the court undertakes to carry into execution for the benefit of the plaintiffs in the bill the principles which it had decided in its decree of April 18, 1902. Erom this decree the administrator of James H. Anderson, Mary E. Roberts, and six others named as infants, applied for and obtained an appeal. The first and principal ground of error assigned is, that the court erred in holding that the contract between James H. Anderson and the heirs of O. T. Holcombe was fraudulent and void as to Anderson, and that 'he was a party to such fraud and in pari delicto with said heirs. The bill charges and the proof establishes that James H, Anderson, knowing that Mrs. Holcombe had left a will in which he was interested, entered into a contract with certain persons whose names are signed to it, by which this will was suppressed, and as the price of his co-operation the other parties to that contract agreed to pay him the sum of $750, and to convey to him in fee simple a tract of land known as the Eureka Oement property, belonging to the estate of O. T. Holcombe, and in addition thereto 51 acres of land to be cut off from the east end of the farm known' as Uorth Out. The object and effect of this arrangement, had it not been detected and thwarted, was to deprive the complainants in the bill of their interest under the will of Mrs. Holcombe. It is idle to argue that this is not a sufficient charge of fraudulent combination. It is established that there was a will, and that will and the exhibits signed by the parties and filed with the bill establish the case. In addition thereto the whole subject was inquired into before an experienced commissioner. He heard and considered the testimony. He examined the documentary evidence, and his conclusions have been ac — 707 — cepted by tbe judge of tbe Corporation Court. "Under these circumstances we do not think it necessary to enter into a prolonged discussion of the circumstances attending this transaction, which in our opinion fully warrant the conclusion reached by the commissioner and the court. This fraud thus established permeates and colors the entire case, and without going specifically into other errors assigned by the commissioner, we shall content ourselves with this statement—that there is nothing in the decrees to their prejudice. iSTor do we think the court erred in its decree with respect to the Bell debt. The property devised and the bond assigned for its security were all properly appropriated, and any balance which remained was barred by section 2920 of the Code. Appellees assign certain cross-errors— First. The failure of the court to require the parties involved in this effort to suppress the will of Mrs. Holcombe and deprive appellees of their estate, to account to them as guardian de facto during their minority, and as agent afterwards. Secondly. Appellees assign as cross- error “that the court undertook to segregate the sums for which the estates of H. C. Hunt and J. A. Hunt, Miss Ella T. Hunt and James H. Anderson are liable. The parties jointly participated in the acts from which all the troubles in this case arose, and there should therefore be a decree against them jointly for the sums due to the infant beneficiaries under Mrs. Holcombe’s will, with the right to said infants to collect such amount from either or all of them as they may be able.” We are of opinion that the first assignment of cross-error is well taken. “Whoever enters upon the estate of an infant,” says Chancellor Kent, in his Commentaries, side page 229, note B, “is considered, in equity, as entering in the character of guardian; and after the infant comes of age he may, by bill in chancery, recover the mesne profits.” — 708 — “If a man intrudes upon an infant, he shall receive the profits, but as guardian; and the infant shall have an account against him in chancery as guardian. And if a man, during a person’s infancy, receive the profits of an infant’s estate, and continues to do so for several years after the infant comes of age, before any entry is made -on him; yet he shall account for the profits throughout, and not during the infancy alone,” Eonblanque’s Eq., book 2, ch. 2, p. 235. These and other authorities were considered by this court in Martin’s Admr. v. Fielder and, Others, 82 Va. 455, 4 S. E. 602. * It was there held that an administrator purchasing the adult heirs’ shares of their ancestor’s land, and entering upon and receiving the rents and profits of the whole, will in equity be held accountable as guardian de facto of the infant heirs during their non-age, and as agent afterwards, for their share of the rents and profits. And this is but reasonable and just, for, as was well said by Judge Robertson in Evans v. Pearce, 15 Gratt. 513, 78 Am. Dec. 635, “One who makes himself guardian de facto is certainly not entitled to be treated with more favor than if he had been legally appointed.” The lower court in this case held, and we have approved its findings in that respect, that the contract between James H. Anderson, and Henry 0. Hunt and others, made on the 8th of August, 1893, and filed in the papers as “Exhibit X,” was a fraud upon the rights of the plaintiffs under the will of 0. T. Holcombe, deceased, and that all deeds, contracts and transactions by virtue or in furtherance of said contract, so far as said deeds, contracts and transaction affect the rights of plaintiffs under said will are null and void. That being so, whatever the appellees were entitled to recover from the parties to that transaction was due by them jointly and severally, and we think that the Corporation Court should have so decreed. There is a third assignment of error on behalf of ax>pellees— because the court did not give judgment in favor of the infant — 709 — beneficiaries for one-fonrtb of the value of the Main street property, and one-half of the value of the Church street property as of the date of Mrs. Holcombe’s death. We think there is no merit in this contention, and that the decree of the Corporation Court in these respects should be affirmed. Upon the whole case, we are of opinion that there is no error in the decrees, except with respect to the two assignments of error on behalf of the appellees, and the decrees of the Corporation Court must, therefore, in these respects be reversed and the cause remanded for further proceedings to be had in accordance with this opinion. Reversed.