Rawlings' Ex'or v. Rawlings , 1880 Va. LEXIS 7 ( 1880 )

Burks, J.

My opinion is, that if the decree of January 27,1875, was final in its character, the decree rescinding it, which is the decree appealed from, is erroneous.

The cases which have come before this court involving the question whether certain decrees were final or interlocutory, are numerous. Many of them are cited and commented upon by Judge Staples in the opinion of the court delivered by him in the recent case of Ryan’s Adm’r v. McLeod and others, 32 Gratt. 367, to which I beg to refer. In Harvey and Wife v. Branson, 1 Leigh, 108, 118, Judge Carr remarked that “when a decree makes an end of a case, and decides the whole matter in contest, costs and all, leaving nothing for the court to do, it is certainly a final decree.” And in the same case (p. 124) Judge Green said, “ In my judgment, every decree which leaves nothing more to be done in the cause, no subject to be acted upon or disposed of, no question to be decided by the court, is in its nature final.” And in Cocke’s Adm’r v. Gilpin, 1 Rob. R. 20, 28 et seq., the question is very fully and ably discussed by Judge Baldwin, and the proper criterion by which the two kinds of decree may be distinguished is stated thus: “Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded not as final, but interlocutory. I say the further action of the court in the cause, to distinguish it from that action of the court which is common to both final and interlocutory decrees—to wit, those measures which are necessary for the execution of a decree that has been pronounced, and which are properly to be regarded as adopted, not in but beyond the cause, and as founded on the decree or mandate of the court, without respect to the relief to which the party was previously entitled upon the merits of his case.”

It is said by Judge Staples in Ryan’s Adm’r v. McLeod and others, supra, that the rule thus laid down by Judge Baldwin “ has been repeatedly recognized by this court, and is now the established doctrine.”

Applying this rule to the case in judgment, the inquiry will be whether the decree in question was final or not.

The appellant qualified as executor of William Rawlings in December, 1859. The estate consisted chiefly of choses in action of a large amount. Some of these the executor collected during the first year of his administration, and from his collections paid off all the debts of the testator .and some legacies, leaving a balance in his hands at the commencement of the war, as shown by the record, of about $9,000, which was to his credit as executor, in bank. During the war he made other collections, which he deposited in like manner, and from his deposits he made payments to ¡some of the legatees and other disbursements, and as executor invested the residue (except about $1,000, which perished with the bank as a result of the war) in bonds of the Confederate States. He made an ex parte settlement of his first year’s transactions as executor. The war prevented his making any other. Very soon after the war closed—to-wit, in 1866—he filed his bill against the residuary legatees of his testator, in which he set out very fully his administration of the estate so far as it had gone, giving an account of his investments in the Confederate bonds, and praying the court to “ direct the settlement of his executorial accounts and the further administration of the estate in his hands, and to decide and adjust all such questions as might arise in the cause,” and for general relief.

The defendants were served with process, and the bill being taken for confessed as to all of them except three, who appeared and filed answers, the court, on. the 25th of April, 1867, ordered a settlement of the executor’s accounts. The commissioner states the accounts, debiting the executor with all his collections at par and crediting him by his disbursements, by his investments in Confederate bonds, and the balance to his credit as executor in bank at the end of the war, showing a comparatively small balance in his hands. It does not appear by the record that any of the defendants made objection to the settlement and report of the commissioner except Batson, who filed several exceptions, three of them on the ground of the investments, the others on grounds which do not concern the inquiry I am pursuing, and therefore need not be further noticed. On the 30th of January, 1868, the cause was heard, and the court pronounced a decree by which, after declaring that the executor had acted in good faith and for what he deemed the best interests of the estate, and that the investments made by him were in strict conformity with the then laws of the defacto government of Virginia, and that no liability rested upon him, the three exceptions referred to were overruled, and a credit directed to be given him on his executorial accounts for the amounts embraced in said exceptions.

This- decree, although interlocutory, adjudicated the principles of the cause, and all subsequent orders and decrees down to the decree of January 27th, 1875, were intended to give effect to it, and to direct and supervise the further administration of the estate to its conclusion.

Accounts were ordered from time to time and reports made and confirmed without exceptions by any party. Indeed, the only exceptions ever taken in the cause were those overruled by the decree of January, 1868. Among the decrees was one entered in October, 1872, approving a commissioner’s report and directing the executor to distribute among the parties entitled the balance shown by the report to be in his hands, and in October, 1873, the commissioner was directed to ascertain and report the uncollected assets of the estate, classifying the same as good, doubtful and bad, the amount collected and on hand, the amount paid to the several legatees, and the amount still due them of the assets undistributed, “with a view,” as expressed in the order, “to a final settlement of the estate.”

The commissioner executed tills order and in October 1874, made his report, which is very elaborate, covering forty-two pages of the printed record. The accounts of the executor are stated, showing the balance of money in his hands, and the bonds are classified as ordered, and the money and the solvent bonds are divided out among the legatees, showing accurately and specifically the amount to which each legatee is entitled, and in concluding his report the commissioner says, “said distribution absorbs the ivhole of the estate except—

Doubtful debts, - $1,003 47

Bad debts, ----- 3,037 56

—none of which does your commissioner think will ever be available, and if any should be, it may be required to make good some portions that contingencies arise which may be necessary to amend.”

Upon this report without exceptions the decree of January 27th, 1875, was based. The report was confirmed, and the executor was ordered to pay out the money and bonds in his hands according to the report—to each legatee his share as ascertained by the report, and as to the doubtful and bad debts, he was directed to dispose of the same as suggested by the commissioner, or to divide the same ratably among the parties entitled, and he was further directed out of the funds, retained for the purpose, to pay attorney fees and the costs of the suit.

How, it seems to me, this decree is final in every essential particular. It is the “final settlement of the estate” which the court had in “ view ” in its order of October, 1873. The whole estate is disposed of—there is nothing left. The relief contemplated by the court is completely given. Ko question is left undecided. Ko further action of the court “ in the cause ” is necessary. If any further action of the court be necessary, it is not “ in, but beyond the cause ” for the execution of the decree pronounced; and measures necessary to execute a decree which gives completely the relief contemplated by the court, do not alter or affect such decree as to its character of finality. A decree is not less final in its nature because measures may be necessary to compel parties to obey it. See Harvey and Wife v. Branson, supra; Thorntons v. Fitzhugh, 4 Leigh, 209 ; Fleming and others v. Bolling and others, 8 Gratt. 292.

The inference which seems to have been drawn by Judge Tucker in Hill’s Ex’or v. Fox’s Adm’r, 10 Leigh, 587, 591, that the decree in that case was interlocutory because an attachment was necessary to enforce it, would appear not to be consistent with the “ established doctrine ” as laid down in Cocke’s Adm’r v. Gilpin, supra; and Judge Brooke, who sat in both cases, took occasion to say in the latter case, that he “ concurred, in the result of the opinion delivered by the president [in the former case], that the decree was interlocutory, but certainly not on the ground that it was to be enforced by attachment, as said by the president; because all decrees must be enforced by attachment when any party is in contempt of the court, and this necessity is most frequent in cases of final decrees.”

The decree in question being, in my opinion, final, it. could be reviewed in one of two ways only—either on bill of review by the court which pronounced the decree, or by this court on appeal. There was no appeal.

The bill filed in June, 1876, by the appellees, J. Wesley Bawlings and others, does not purport to be a bill of review in a strict sense,' but let it be considered and treated as such a bill. This is the most favorable view for the appellees. A bill of review, as we know, can only be brought upon two grounds—1. Error in law apparent on the decree. 2. The discovery of new matter.

The latter ground may be laid out of view, as there is no such pretension set up in this case. As to errors of law, they must be such as appear on the face of the decrees, orders, and proceedings in the cause—arising on facts either admitted by the pleadings or stated as facts in the decrees. Such errors of law may be corrected by bill of review, but if the errors complained of be errors of judgment in the determination of facts, such errors can be corrected only by appeal. Such I understand to be the distinction taken in the methods of correcting errors of law apparent and errors of' judgment. Story’s Eq. Plead. § 407.

In Dexter v. Arnold, 5 Mason’s R. 303, 311, Mr. Justice Story, speaking of bills of review, observes, “ that in regard to errors of law, apparent on the face of the decree, the established doctrine is, that you cannot look into the evidence in the case in order to show the decree to be erroneous in its statement of facts. That is the proper office of the court upon an appeal. But taking the facts to be, as they are stated to be on the face of the decree, you must show that the court has erred in point of law.” The same learned Judge laid down the doctrine in Whiting and others v. Bank of United States, 13 Peters’ R. 6, 14, thus: “that the bill of review must be founded on some error apparent upon the bill, answer and other pleadings and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree founded on the supposed mistake of the court in its own deductions from the evidence.”

In Webb v. Pell, 3 Paige’s R. 368, 371, Chancellor Walworth says, “ It is well settled, that a bill of review, for error' apparent upon the decree must be for error in point of law, arising out of the facts admitted by the pleadings, or recited in the decree itself. O’Brien v. Connor, 2 Ball. & Beatt. R. 146; Mellish v. Williams, 1Vern. Ch. R. 166. Anda bill of review cannot be sustained, on the ground that a fact is stated in the decree as proved, when in truth there was no proof to establish that fact. [Citing] Combes v. Proud, Freem. Ch. R. 102; Prax. Alm. Cur. Canc. 532, ch. 15; 4 Hayw. R. 38; Dougherty v. Morgan, 6 Monroe’s R. 153.”

On a bill of review, the proofs cannot be considered. If' the decree is contrary to these, remedy must be sought by appeal. Putnam v. Day, 22 Wall. U. S. R. 60, 65, 66. The ruling in the last-named case and also in Whiting and others v. Bank of United States, supra, is approved in Buffington v. Harvey, 95 U. S. (5 Otto), 99, where it is said, “the decision of the court upon the issues of fact, so far as they depend upon the proofs, are conclusive oil a bill of review.”

In Bartlett and Miller v. Fifield, 45 New Hamp. 81, it is said, “ that where a cause is heard upon bill, answer and proofs, a bill of review cannot be maintained upon the ground that the proofs fail to establish the facts upon which the decree is founded.” See also Barnum v. McDaniels, 6 Verm. R. 177; 2 Dan. Ch. Prac. 1576, and nnmerons cases cited in notes. And Judge Roane, in Barnett & Co. v. Smith & Co., 5 Call. 98, 102, after stating tRat in Combes v. Proud, 2 Freem. 182, it was Reid, on debate, tRat tRe cause of review must appear on tRe case, as stated in the deoree, and tRe fact be admitted as tRere stated; and tRat where there is a misjudgment in point of fact, or of testimony, the proper course would Rave been to Rave gotten the cause reheard before enrolment, and adds, “I do suppose, that this doctrine •equally withdraws from the effect of a bill of review for •apparent error, mistakes of judgment upon matters of fact in a master’s report (especially such as arise from conflicting evidence), although the report may be adopted in the decree itself.” In Mellish v. Williams, supra, demurrer was sustained to a bill of review, which assigned for error tlie subject matter of •exceptions to the master’s report, which Rad been overruled. See also what is said by Lord Eldon in Perry v. Phelips, 17 Ves. R. 173, 178.

According to the authorities which Rave been cited, and upon principles recognized as well settled, the bill of the appellees cannot be maintained as a bill of review. TRe errors it seeks to correct are not errors of law apparent in the decree, but errors of judgment in the determination of. facts on which the decrees complained of are based. TRe decree of January, 1868, adjudicated, among other things, the question of good faith, as matter of fact, on which the exoneration of the executor from liability for the investments mainly rested. Whether Re acted with good faith •and in such manner as entitles Rim to relief, depended on the circumstances to be gathered from the evidence. TRe commissioner’s report was founded on that evidence. He Rad before Rim the accounts of the executor with all Ris vouchers, showing the dates and amounts of Ris collections, the record of the Robey suit, the executor’s transactions •with the bank in Ris individual and fiduciary character, with his statements and explanations. We are not allowed to look into this evidence, on a bill of review, to determin e whether the deductions of fact were erroneous or not. That, as has been seen, would be the proper office of the court on an appeal. If there is no error in this decree which can be reached by bill of review, it is clear there is none in the subsequent decrees, including the decree of 1875, which was intended to carry out the principles settled by the decree of 1868 and were founded on reports confirmed without exceptions by any party.

If the view which has been taken of this case be correct, it results that the decree appealed from is erroneous and should be reversed, and the bill of the appellees be dismissed.

But if I am mistaken in my construction of the decree of January, 1875, and it be interlocutory in its character, and the bill filed by the appellees be treated, as in such a case it maybe, as a petition for rehearing (Ambrouse’s Heirs v. Keller, 22 Gratt. 769, 773; Kendrick and others v. Whitney and others, 28 Gratt. 646, 654; Summers v. Darne and others, 31 Gratt. 791, 808), still, as it seems to me, that decree and the preceding decrees should not be disturbed. The original suit was pending for eight years. All the parties in interest were before the court. As early as January, 1868—a little more than one year from the time the bill was filed—the court settled the principles of the cause and decided that the executor was not liable for the loss occasioned by the investments in Confederate bonds. There was then only one objecting party, and during the remaining seven years while this cause was pending, neither he nor any other party, so far as the record shows, objected to any thing that was done. The inference is strong that they acquiesced. They, from time to time, received money paid to them under decrees, and filed no exceptions to the various reports of the commissioner made under orders of the court. The scheme for dividing out the money in the hands of the executor and the uncollected assets, so as to close up the administration, was doubtless assented to by all; for, when it was reported, no one objected or excepted, and it was made the basis of the decree of January, 1875, of which I have spoken so often in this opinion. And soon after that decree was rendered no complaint, so far as appears, was-made until the lapse of a year and more, when a petition for rehearing was filed, followed in a short time by the bill under which the decree appealed from was pronounced. In the meantime, according to the answer of the executor to that bill,, he had proceeded as fast as circumstances would permit to execute the decree of January, 1875, and before the filing of the bill had settled all of the large amounts of cash reported in his hands except three sums, as to which he gives a reasonable explanation, and had turned over the bonds as required by the decree.

Under these circumstances, after such great delay and long acquiescence, it would seem to be neither reasonable nor equitable to open these decrees and proceedings, and that, too, on a petition for rehearing, which in all cases is addressed to the sound discretion of the court. If the whole matter is to be gone into again at this late day, from probable loss of evidence and other causes, great injustice-is apt to be done to the executor. He seems to have acted in good faith, and though, like others, he may have in his perplexity misjudged, I should be inclined to think, if the question were open here, that his investments in Confederate bonds under the circumstances ought to be sanctioned, or rather that he should not be held to account for the loss resulting therefrom. I do not know what necessity there may have been for his collections in Confederate currency during the war, but the pendency of the Eobey suit at the-commencement of the war was a sufficient reason for his not making distribution then. The bank was the safest. place for keeping tlie money of the estate, as long as it was prudent to keep it at'all. Tkere he deposited it to Ms ■credit as executor. He did not mingle it with Ms own funds, and it is not made to appear that he used any of it for Ms individual purposes. He commenced investing it in Confederate bonds when Confederate currency began to depreciate. With the lights then before Mm this seemed the best for the estate.

Upon the whole case, I am of opinion that the decree of the circuit court should be reversed and the bill of the appellees dismissed.

I am authorized by Judge Moncure, who presided when this case was argued, to say that he concurs in the foregoing opinion, which was read before all the judges in conference.