Opinion
02-06-1815
Wyllie and Wife v. Venable's Executor
Wickham for the appellants. No counsel for the appellee.
Argued February 1, 1815
This was a suit in the Superior Court of Chancery for the Richmond district, brought by Wyllie and wife against Nathaniel Venable, executor of Abraham Venable, of Buckingham county, deceased, and others, legatees of said decedent.
The object of the bill was to surcharge and falsify an account of the administration of the said executor, which had been examined by commissioners appointed by the District Court of Prince Edward, (in which the will was proved, and the executor qualified,) by them returned to that court as correctly stated, (shewing a balance due the executor of 59l. 17s. 5 1/2d.) and ordered to be recorded. Sundry objections to the account were made in the bill, and the plaintiffs prayed that it be re-examined before one of the commissioners of the Court of Chancery: but no evidence was exhibited to prove that any of those objections were well founded. The cause was set for hearing, by the plaintiff's direction, as to the defendant Nathaniel Venable, who, by his answer, had denied the charges against him. And new process was awarded against the other defendants, none of whom had answered.
Chancellor Taylor dismissed the bill, with costs. To this decree the plaintiffs offered a bill of review; insisting that their original bill ought to have been dismissed on a hearing, but they were of right entitled to an account, before a commissioner, of the executor's transactions. The chancellor thereupon pronounced the following opinion.
" The court being of opinion that, notwithstanding the general rule, that in a bill for an account against trustees of any description, where the trust is made to appear, a reference to a commissioner is a matter of course; yet, where there has been a settlement of the trust, although such settlement, as in the case sought to be reviewed, is only prima facie evidence thereof, it should not be referred to a commissioner upon a bill, such as in that case brought, to surcharge and falsify, without some proof to that effect; for this reason, the bill was dismissed; and, for the same reason, the present bill to review that decree of dismission is denied."
The plaintiffs appealed to this court.
Decree Affirmed.
Wickham for the appellants. It is matter of course to direct an account, wherever a trustee has received a subject. An ex parte settlement, before commissioners in the country, is no bar to a re-examination before a commissioner of the Court of Chancery. Such ex parte settlement is only prima facie evidence, and may be surcharged and falsified before that commissioner.
Anderson and Stark v. Fox and others, 1 H. and M. 259; Atwell's administrator v. Milton, 4 H. and M. 253.
2. The chancellor decreed prematurely; all the proper parties having not been brought before the court. This could not be considered an error of ours, for we made all the necessary parties.
Richardson's executors v. Hunt, 2 Munf. 148; Sheppard's executor v. Starke and wife, 3 Munf. 29.
No counsel for the appellee.
OPINION
Judge Brooke
The object of the bill in this case is to surcharge and falsify the account of an executor, settled by commissioners appointed by the court, before which the will had been proved. As that account was prima facie evidence of its correctness; as the answer disclosed nothing improper in it; and as the complainant exhibited no evidence whatever to that effect, but had the cause set down himself for hearing, which was heard on the merits; the court is of opinion that it was not incumbent on the chancellor to have referred the account; and that he acted very correctly in disallowing the bill of review.
The decree is therefore affirmed.