Turner's Administrator v. Citizens Bank of Norfolk

Whittle, J., (after making the foregoing statement of the case) delivered the opinion of the court. D. C. Barraud, Jr., died in the year 1908, leaving “lawful issue” surviving him; whereupon the personal representatives of William H. Turner, Sr., filed another bill in the Circuit Court of the city of Norfolk to recover the money deposited in the Citizens Bank under the decree in the case of Barraud v. Marshall (which we shall hereafter designate as the “court fund”), as an asset belonging to the estate of his testator. All parties in interest were convened in that suit, and the children of D. C. Barraud, Jr., having disclaimed and renounced all interest in the court fund, the circuit court, upon the pleadings and an agreed statement of facts, passed the decree under review, denying the prayer of the bill; and, after [189] deducting certain costs, attorneys fees and taxes, awarded the court fund to the parties in possession of the “Barron’s” farm (at the time of the death of the life tenant, D. C. Barraud, Jr.), as alienees of devisees of William H. Turner, Sr., deceased, in proportion to their respective holdings. By the terms of the certificate, the court fund was deposited to the credit of the suit of Barraud v. Marshall, for the benefit of such persons as might be entitled to the same under the will of the testator, D. C. Barraud, Sr., and the children (the “lawful issue”) of I). C. Barraud, Jr., having survived their father, became entitled to the fund, provided they should elect to receive it. On the death of D. C. Barraud, Jr., either one of the two courses was open to the children: They could have elected to receive the court fund, which would have been an acceptance of the benefit of the void decree in the original suit, under which their remainder interest was sold, and estopped them from asserting any claim to the land; or they could have declined to accept the court fund, and have elected to take the land in specie. The effect of the former course would have inured to the benefit of the appellees, and confirmed their title to the land; the effect of the latter was to oust the appellees of their title to the land, and as the learned circuit court held, entitled them to be subrogated to the rights of the children to the court fund. The concrete question, therefore, for our determination is, whether the devisee of William H. Turner, Sr. (or rather their alienees), who have been disappointed of what they would otherwise have been entitled to retain (the land devised) by the election of the Barraud children to take land instead of the court fund (the purchase price of the land), are entitled in equity to resort to the court fund to make good the benefits intended to be bestowed upon them by the testator’s will. The general doctrine of subrogation and the ldndred prin [190] ciples of substitution, compensation and election, have repeatedly received consideration at the hands of this court, and in no jurisdiction has that doctrine been more liberally applied to meet the exigencies of particular cases than in this State. In a note to Dering v. Earl of Winchelsea, 1 L. C. in Eq., Pt. 1, 140, it was said, that in Powell v. White, 11 Leigh 309, “the Virginia practice was vindicated against the authority of Lord Eldon, with distinguished and convincing ability.” In Enders v. Brune, 4 Rand. 438, Judge Carr observes: “But the doctrine of substitution is governed by principles wholly different. It has nothing of form, nothing of technicality, about it; and he who in administering'it would ‘stick in the letter,’ forgets the end of its creation, and perverts the spirit which gave it birth. It is the creature of equity, and reed essential justice is its object.” In American Bonding Co. v. National Mechanics Bank of Baltimore, 99 Am. St. Rep. 466, Judge Freeman in note, p. 478, says: “Legal subrogation is Hot founded upon contract or privity or strict suretyship. It is born of equity, and results from the natural justice of placing the burden where it ought to rest. It does not flow from ■ any fixed rule of law, but rather from principles of justice, equity, and benevolence. It is a purely equitable result, depending like other equitable doctrines upon the facts and circumstances of each particular case to call it forth. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by him who in good conscience ought to pay it.” It is a very ancient maxim of the law, that “He who bears the burden ought also to derive the benefit.” Broom’s Max-712. In Sheldon on Subrogation (2nd ed.), the learned author at section 35, says: “The purchaser from a devisee whose purchase-money has been applied in payment of debts of the testator will be subrogated to the rights of the creditors whose demands he has thus satisfied.” Gibson v. McCormick, 10 Gill [191] & J. (Md.) 65. See also Judge Freeman’s note to American Bonding Co. v. Nat'l, &c., Bank, supra, at page 529; Sheldon on Subrogation, sec. 36-a; Pease v. Eagan, 131 N. Y. 262, 30 N. E. 102. At section 218, Mr. Sheldon says: “Beneficiaries under a will who have, by the election of another legatee, been disappointed of what they would otherwise have received, will be allowed compensation for their loss out of what the latter would by a different election have taken under the will.” Citing Pickersgill v. Rodger, 5 Ch. Div. 163; Wilkinson v. Dent, L. R. 6 Ch., 339, 341; Reeve v. Reeve, 1 Vern. 219; Welby v. Welby, 2 Ves. & B. 187, 190; Bor v. Bor, 3 Bro. P. C. 167; Dean v. Hart, 62 Ala. 308; Key v. Griffin, 1 Rich. Eq. (S. C.), 67; Timberlake v. Parish, 5 Dana (Ky.), 345. The reason of the rule is stated in Bor v. Bor, supra, as follows: “Where a testator, making provision for the different branches of his family, gives a fee-simple estate to one, and a settled estate to another, imagining that he had power so to do, a tacit condition is implied to be annexed to the devise of the fee-simple estate, that the devisee thereof shall permit the settled estate to go according to the will; and if in that respect he should disappoint the will, what is devised to him shall go to the person so disappointed. It being presumed that if the testator had known his defect of power to devise the settled estate, he would out of the estate in his power have provided for that branch of his family who was not entitled to the settled estate, and have declared that no person should enjoy a legacy or devise who controverted his power as to any benefit given to another.” See also-Sheldon on Subrogation, sec. 219., It must be remembered that the present case is supplemental merely to the original suit of Barraud v. Marshall, and that the court possesses the same power of direction and disposition with respect to the court fund that could be exercised in the original case if the same were still pending. It will be [192] also noted that there is no suggestion, either in the pleadings or agreed statement of facts, of the intervention of any equity or the existence of any circumstance which should intercept the enforcement of the meritorious demand of the appellees to the court fund. They have confessedly been deprived of property which produced this identical court fund, by the election of parties whose right to have appropriated it in exoneration of that property cannot be questioned; and impotent, indeed, would be the processes of a court of equity, if it could devise no remedy for applying the “court fund” in reimbursement of the loss to which the appellees, without fault on their part, have thus been subjected. Says Pomeroy, in his work on Equity Jurisprudence (2nd ed.), section 109: “Equitable remedies . . . are distinguished by their flexibility, their -unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.” With all the parties and the subject matter before it, and with the ultimate destination of the fund, as it seems to us, plainly in sight, there could be no justification for a court of equity to relinquish its administration of the court fund in favor of a personal representative, on the theory that it is an asset of the estate, to the administration of which he is exclusively entitled. This view of the case renders the consideration of the remaining assignment, with respect to the payment of costs, attorneys’ fees and taxes, unnecessary. For these reasons, the decree of the circuit court must be affirmed. Affirmed.