Where a bill was filed in the Circuit Court of the United States
for the County of Alexandria by a legatee against the executor and
residuary devisee, praying for the sale of the real estate in order
to pay legacies, the personal estate being exhausted, it was not
necessary to make a special devisee of land in Virginia, who
resided in Virginia, a party defendant.
The orphans' court had power to allow a commission to the
executor for paying over a specific legacy and a right to extend
this commission to ten percent
Under the laws of Virginia, the executor had a right to refrain
from pleading the statute of limitations when sued, and to pay a
judgment thus obtained against him. The judgment, at all events,
must stand good until reversed.
Where the executor paid legacies to persons who had occupied
property which, it was alleged, belonged to the deceased, and the
occupiers claimed to hold it in consequence of an uninterrupted
possession of twenty years, the justice of their claim could not be
tried in a collateral manner by objecting to this item of the
executor's account on the ground that he should have set up the
claim for rent in setoff to the legacy.
This was a bill filed in the circuit court by Ellen Smith, then
Ellen Mandeville, one of the legatees of Joseph Mandeville,
deceased, whose will was before this Court for construction at
January term, 1844. The case is reported in
43 U. S. 2 How.
560. It will be seen by reference to that case that John West
became a party to the proceedings upon the ground of being the
residuary legatee, and, as the Court then held, residuary devisee
also.
Ellen Mandeville, who intermarried with Joseph Smith pending the
suit, was a legatee under that will for $3,000. One of the clauses
of the will was this:
"If my personal property should not cover the entire amount of
legacies I have or may give, my executors will dispose of so much
of my real estate as will fully pay them."
Mandeville, the testator, died in July, 1837.
In May, 1839, Ellen Mandeville filed her bill in the circuit
court (to which suit her husband, Smith, afterwards became a
party), charging the making and publication of the will, the
bequest to herself and others of certain legacies, which in default
of personal assets were chargeable upon the real estate, the death
of the testator, and the deficiency of personal assets,
Page 49 U. S. 403
and praying a sale of lands for the satisfaction of her legacy.
To this bill all the other pecuniary legatees, the residuary
devisee, West, and the executor of Mandeville were made
defendants.
It is not necessary to trace the progress of the suit through
its successive stages. It was at last referred to a master in
chancery, who reported sundry matters of account, to some of which
exceptions were taken by the defendant, West. The court, however,
overruled these exceptions and proceeded to decree a sale of so
much of the real estate as might be necessary to pay the legacies.
From this decree West appealed, and the case now came before this
Court upon the exceptions to the master's report. Only four of
these exceptions were insisted on in the argument,
viz.,
the second, third, seventh, and eighth.
They were as follows. The first exception is inserted for the
purpose of explaining the second.
"1. For that said commissioner has improperly allowed William C.
Gardner, deceased, a credit in his account as executor of Joseph
Mandeville, deceased, the sum of eight hundred and forty-two
dollars and ninety cents, as having been paid to Sarah A. Hill 'a
specific legacy of slaves, furniture &c., as appraised,' which
said property was properly subject, at the time of its delivery to
the said legatee, Sarah A. Hill to the payment of the debt of
Joseph Mandeville, deceased."
"2. For that the said commissioner has improperly allowed the
said William C. Gardner, deceased, as a credit in his said
executorial account on the estate of Joseph Mandeville, deceased,
the sum of eighty-four dollars and twenty-nine cents as a
commission on the said $842.90, mentioned in the first foregoing
exception, which said sum was not so due to said Gardner."
"3. For that the said commissioner has improperly allowed the
said Gardner, as a credit in his said executorial account, the sum
of three hundred and sixteen dollars and thirty-seven cents and a
further credit in said account of nine hundred and twenty dollars
and twenty-six cents (920.26) as having been paid by said Gardner
on account of a judgment in favor of Samuel Bartle against said
Gardner, as executor of Joseph Mandeville, deceased, the items or
most of them forming the account of said Bartle against said
Mandeville's estate, on which said judgment is predicated, being
unsustained by legal proof, and barred by the statute of
limitations."
"7. For that the said commissioner has improperly reported the
sum of fifteen hundred dollars, with the several sums of two
hundred and twenty-five dollars and four hundred and fifty dollars
interest thereon, after allowing a credit of one hundred
Page 49 U. S. 404
and fifty dollars, as a legacy due to Mary Mandeville, under the
will of Joseph Mandeville, deceased; the said legacy being subject
to a further credit of two hundred and twenty-five dollars, for the
use and occupation of a portion of the real estate of Joseph
Mandeville deceased."
"8. For that the said commissioner has improperly reported the
sum of fifteen hundred dollars, with seven hundred and thirty-five
dollars, the interest due thereon, as a legacy to Julia Mandeville,
under the will of Joseph Mandeville, deceased, when the same should
have been credited with the sum of two hundred and twenty-five
dollars for the use and occupation of a portion of the real estate
of Joseph Mandeville, deceased. "
Page 49 U. S. 409
MR. JUSTICE WOODBURY delivered the opinion of the Court.
The original proceeding in this case was a bill in chancery
instituted in September, 1839, in the Circuit Court for the
District of Columbia, sitting for the County of Alexandria. The
object was to recover a legacy of $3,000, bequeathed by Joseph
Mandeville, in 1837, to Ellen Mandeville, now the wife of
Smith.
William C. Gardner, the executor, took upon himself the
execution of the will, and was made one of the original defendants,
with West and several other legatees. West, being residuary
legatee, took a leading part in conducting the defense in the
circuit court and made the appeal to this Court. Various answers
were put in by the respective respondents, several depositions
filed, and some documentary evidence. From these it appears that
proceedings had for some time been instituted in the Orphans' Court
for the County of Alexandria for the purpose of settling the estate
of Joseph Mandeville. Most of the debts had been adjusted and some
of the legacies, and the personal estate being exhausted,
permission had been asked to sell and apply a part of the real
estate situated in said County of Alexandria to pay the
residue.
To this application as well as to some of the previous
proceedings
Page 49 U. S. 410
and decrees in the orphans' court sundry objections had been
interposed. But the exceptions made by West to the last report of
the commissioner in the circuit court in May, 1846, disclose all
the matter finally relied on in opposition in that court by the
respondent. Those exceptions having been there overruled, this
appeal was taken.
Before going into the consideration of those exceptions in
detail, and the correctness of the decision which was pronounced
upon them, it may be well to dispose of a preliminary question
raised here, that James Mandeville of Virginia, a legatee of 10,000
acres of land there situated, ought to be made a party defendant,
with those already before the court.
We feel obliged to overrule this objection.
It is not clear that it could be made here after an appeal,
though if proper, the case might perhaps be sent back and an
amendment made there -- as new parties can be admitted there as
late as the final hearing. Mitford, Pl., 144, 145;
Owing's
Case, 1 Bland Ch. 292;
Clark v. Long, 4 Rand.
451.
At the same time it is true as to exceptions to a master's
report that none can generally be made in the appellate court which
were not taken below.
Brockett v.
Same, 3 How. 691. The objection here, however, must
in any view be overruled because the Orphans' as well as the
Circuit Court for the County of Alexandria proceeded, and ought to
have proceeded, against parties and property situated within their
limits, and not against either situated like James Mandeville and
his land in Virginia, and without their jurisdiction.
Hallett
v. Hallett, 2 Paige 15;
Townsend v. Auger, 3 Conn.
354. Though he held his land under the same will, yet it is
admitted that he and his land were both in another state. Another
excuse for not joining him is that property enough existed within
the County of Alexandria to discharge the claims of the original
plaintiffs, without a resort to James Mandeville or the land
devised to him.
Russell v. Clarke's
Executors, 7 Cranch 72.
Especially must West and all the property devised to him be
first made liable, as he is only a residuary legatee, or, in other
words, is entitled only to what is left after all others are
satisfied. And finally it was not necessary to make James
Mandeville a party to this bill when neither he nor his land could
be affected by a decree made against other persons and other lands,
and in a case instituted in another jurisdiction and in which no
service had been made on him.
West v. Randall, 2 Mason
181;
Joy v. Wirtz, 1 Wash.C.C. 517;
Elmendorf
v. Taylor, 10 Wheat. 152;
Wheelan v.
Wheelan, 3 Cow. 538.
Page 49 U. S. 411
To proceed next to the consideration of the exceptions made
below, it is to be remembered that the first one was waived at the
hearing, and need not therefore be repeated. The second exception
is that the executor, Gardner, was improperly allowed a commission
of $84.29 on a specific legacy of slaves, furniture &c., made
and paid to Sarah A. Hill.
This commission was at the rate of ten percent, and though that
rate seems high, yet if the orphans' court had authority to make
any allowance in such a case, its decision within its authority and
jurisdiction must be considered binding.
26 U. S. 1 Pet.
566;
Thomas v. Fred. City School, 9 Gill & J. 115.
On general principles it would seem just and proper for all such
courts to make some compensation to executors for such services as
paying over legacies, no less than for paying debts. In the case of
specific legacies, the trouble and risk are as great, if not
greater, than in moneyed legacies, and it would be difficult to
find elementary principles to justify commissions in one case and
withhold them in the other.
If this point is to be governed by these principles, as it must
be, provided the laws of Virginia at that time controlled the
matter in the County of Alexandria, then the exception must fail
under those principles, and under a practice, well settled there,
authorizing in such cases a
quantum meruit. Under that, as
much as ten percent on moneys received and paid out has in several
instances been sanctioned.
McCall v. Peachy, 3 Munf. 301;
and
Hutchinson v. Kellam, id. 202.
But if it is to be governed by the laws of Maryland, as is
contended by the plaintiffs, a like result will follow by means of
express statutory provisions and decisions in that state.
They contend this because in February, 1801, Congress
established in Washington and Alexandria Counties an orphans' court
for each county, and provided that they
"shall have all the powers, perform all the duties, and receive
the like fees, as are exercised, performed, and received by the
register of wills and judges of the orphans' court within the State
of Maryland,"
&c. 2 Stat. 107, § 12;
Yeaton
v. Lynn, 5 Pet. 230.
It is argued, that this provision extended to the power and duty
of the orphans' court in Virginia to allow commissions as large as
here, and for specific as well as moneyed legacies, and not to the
mere organic structure and jurisdiction of the orphans' court,
leaving all else in Alexandria County to be governed by the laws of
Virginia, and in Washington County by the laws of Maryland.
If this view be correct, which is supposed to be the one
Page 49 U. S. 412
usually acted on in this district, it was provided in Maryland
by statute in 1798, ch. 101, that a commission may be allowed "not
under five percent, nor exceeding ten percent on the amount of the
inventory."
Nichols v.
Hodges, 1 Pet. 565; 5 Gill & J. 64.
The third exception is that a judgment was allowed by the
executor to be recovered by one Bartle against the estate of the
deceased Mandeville, which "was unsustained by legal proof, and
barred by the statute of limitations."
But this judgment was recovered after due notice and hearing. No
fraud or collusion is set up or proved between the parties to it
for the purpose of charging the estate. And the chief if not only
exception to its fairness or validity is that Gardner, the
executor, did not plead the statute of limitations to a part of the
claim on account when he might have done it under the apparent time
when the cause of action accrued on that item. But in Virginia, and
especially if the court, by not striking out the item, sanction a
waiver of the statute, as is inferred to have been done here, the
executor seems fully justified in not pleading it. 2 Lomax on Exec.
419;
Bishop v. Harrison, 2 Leigh 532; 1 Robinson's Pr.
112; 1 Rev.Stat. 492. So in England, formerly, the executor was
held excused in his discretion from interposing as a defense the
statute of limitations.
Norton v. Frecker, 1 Atk. 526. But
in a recent case, doubt is cast over this in England in 9 Dowl.
& Ry. 43.
The Virginia law, however, must control here, and conduces to
justice when the court or the executor is satisfied no payment has
been made or that there had been a re-promise by the deceased.
Holladay's Ex'rs v. Littlepage, 2 Munf. 316; 4 Hen. &
M. 266.
At all events, on elementary principles, the judgment thus
obtained must stand as binding till duly reversed, and be till then
for most purposes presumed correct.
Voorhees
v. Bank of United States, 10 Pet. 449,
35 U. S. 472;
43 U. S. 2 How.
319;
Lupton v.
Janney, 13 Pet. 381.
Under the sixth and seventh exceptions, the respondent insists
that Mary and Julia Mandeville, legatees of the deceased, ought to
have been charged rent for a piece of land which they occupied, and
that the amount thereof ought to have been deducted from these
legacies.
It is true that this land once belonged to the deceased, but
Mary and Julia insist that they have been in the exclusive
occupation of it for more than twenty years. They had always since
their entry claimed it as their own, and this land was not
Page 49 U. S. 413
by name devised by the deceased to anyone as if still his
property. The legatees insisted that at first, being relations of
J. Mandeville, and the premises contiguous to their house, they
were given to them for a garden, and that their possession had ever
since been adverse to all the world. Nor was there any contract
shown to pay rent by them to him, nor any proof that rent had ever
been demanded by him while living. Without, then, settling here the
disputed title to this property, it is sufficient to say that under
these peculiar circumstances, such a use and occupation of these
premises would not warrant the recovery of rent from them in an
action of assumpsit at law. 1 Chit.Pl. 107;
Birch v.
Wright, 1 T.R. 387;
Smith v. Stewart, 6 Johns. 46.
Such an action must rest on a contract express or implied.
Lloyd v.
Hough, 1 How. 159, and cases there cited. And if no
implied promise could be raised to recover rent, when the
occupation is adverse, and no express one is pretended to exist,
the executor could not legally set off this claim against their
legacies.
The rights to the land or to any rent thereon must be settled by
a direct action at law, and not in this collateral manner, and if
the legatees do not succeed there, they can be made to pay in
trespass for mesne profits what they are not liable for as rent
ex contractu when holding adversely.
A concluding objection to the proceedings below, subsequent to
overruling the written exceptions to the report, is that the court
proceeded to a final decree whilst the claims of two of the
creditors and two of the legatees were held under
consideration.
But either those claims is independent and not necessary to be
decided before a final decision on the rest -- or they are so
connected that a decision on them was proper at the same time, and
then this appeal itself would be premature and would have to be
dismissed.
45 U. S. 4 How.
524;
Perkins v.
Fourniquet, 6 How. 206. This, it is understood, is
not moved nor desired by either party.
Such independent claims, however, may properly be suspended
under the circumstances existing here, according to
Royal's
Administrators v. Johnson, 1 Rand. 421.
The judgment below must therefore be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Alexandria and was argued
by counsel. On consideration whereof it is
Page 49 U. S. 414
now here ordered, adjudged, and decreed by this Court that the
decree of the said circuit court in this cause be and the same is
hereby affirmed with costs.
