Young v. Bowen
Young v. Bowen
Opinion of the Court
delivered the opinion of the court.
This is a suit by the widow and distributees of J. F. Chesser to surcharge and falsify the ex parte accounts of P. C. Young as administrator of the estate of the said J. F. Chesser. The cause was referred to a master to take evidence and restate the accounts, by a decree rendered in June, 1911, but the master did not make his report till September, 1917. To this report there were sixteen ex
The master charged the administrator with the price of a saw, $125.00, and interest thereon, $126.25. It satisfactorily appears that this saw went with the sawmill as a part thereof, and the estate got the benefit of it in the price paid for the sawmill. While there is some slight evidence tending to show that the saw did not go with the mill, the great weight of the evidence is to the contrary, and there is no evidence that the administrator derived any benefit therefrom.
The administrator is also charged by the master with $82.75 principal and $30.82 interest on the same, for excess payment to Elizabeth Chesser. The evidence to sustain this charge is the testimony of Elizabeth Chesser, is very brief, and is as follows:
“Q. 9. You speak of P. C. Young, administrator, having collected $82 and some cents, amount overpaid by him. You and P. C. Young, J. D- Carter and Reese Bowen, guardian,*404 went over the account of P. C. Young, administrator, with a view to making a settlement, and did not P. C. Young, Reese Bowen, guardian, come to Gate City and get the commissioner of accounts to make the settlement, and then reported to you that the amount overpaid was $82.75?
“A. Yes, sir. That is what they reported.
“Q. 10. Do you remember whether Reese Bowen, guardian, was present when you refunded to P. C. Young the amount you speak of?
“A. P. C. Young owed me some; he retained the $82.75 out of the amount he owed me. Reese Bowen was present when the settlement, was made.”
Assignments of error 12, 13 and 14 are as follows:
“12th. The court erred in giving judgment against your petitioners, W. P. Peterson and I. P. Robinett, they only being co-sureties on the bond of P. C. Young along with Elizabeth Chesser, one of the plaintiffs in the case. Under the pleadings in the case and the proof it was error to give judgment against your two petitioners.”
“13th. Your petitioners, I. P. Robinett and W. P. Peterson allege and represent that there is error against them, even if there is no other error in the case, in rendering judgment against them in favor of Reese Bowen, guardian, and not also including Elizabeth Chesser along with them in said judgment. Elizabeth Chesser was co-surety with*406 your petitioners, she was liable jointly with them on the bond, and it is certainly error to give judgment against two of the sureties on the bond and not include all three when they are all before the court.”
“14th. The court erred in rendering judgment against your petitioners, I. P. Robinett and W. P. Peterson, in favor of Elizabeth Chesser for the full amount found due her. If Elizabeth Chesser is due the amount found by the commissioner to be due to her, your petitioners, as co-sureties with her, would only be liable to Elizabeth Chesser for two-thirds of the amount due her. Here we have a judgment against two co-sureties in favor of the third co-surety for the full amount of the debt found to be due the co-surety by the principal in the case.”
In reply, counsel for the appellee say:
“We admit that the lower court erred in the particulars stated in these assignments of error by appellants. But we assume that this honorable court will, in this respect, modify the decree of the lower court and in- all other respects affirm the same.”
The decree of the circuit court will be reversed, and the cause remanded with direction to make the inquiries hereinbefore mentioned, and to settle the rights of the parties in accordance with the views hereinbefore expressed.
Reversed.
Reference
- Full Case Name
- Young, Administrator, and Others v. Bowen, Guardian, and Others
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- 1. Appeal and Error—Report of Master—Weight of Report.—In an action to surcharge and falsify the accounts of an administrator, where the evidence was taken by a master, and as to many of the items was conflicting, and the master’s findings were sustained by the trial court, such findings, as a rule, will not be disturbed by the appellate court. But where the findings of the master appear to be plainly wrong, this rule, of course, has no application. 2. Accounts and Accounting—Presumption in Favor of Settlement by Commissioner of Accounts—Burden of Proof in Proceeding to Surcharge and Falsify.—The ex parte settlements of the commissioner of accounts are presumed to be correct until surcharged and falsified (Code 1919, see. 5429), and not only the duty of specifying errors, but also the onus probandi, devolves on the party complaining. 3. Executors and Administrators—Representative Exceeding Authority—Rent Received from Unauthorized Improvements. An administrator, without authority, used the funds of the estate to erect a storehouse on the land of the decedent, which was subsequently destroyed by fire. But before the storehouse was burned the beneficiaries of the estate collected the rents therefrom. Held: That the administrator was properly charged with the principal and interest on the fund diverted to the erection of the storehouse from the date of the diversion, but should be credited by the amount of the rents collected by the beneficiaries. 4. Executors and Administrators— Stircharging and Falsifying Accounts—Item Improperly Charged Against the Administrator.—Where in a proceeding to surcharge and falsify the accounts of an administrator, the master failed to credit the administrator with an item with which he had been improperly charged in his ex parte settlement, and this mistake was called to the attention of the court by the administrator’s answer, which he prayed to be read as a cross-bill, and which was not answered by the complainants in the original bill, the cause should be referred back to the master to correct the mistake. 5. Suretyship—When Surety Entitled to Judgment Against Co-sureties.—A surety is not entitled to a judgment against his cosurety until he has paid more than his part of the debt of the principal. 6. Suretyship—When Surety Entitled to Judgment Against Co-sureties—Amount of Decree by Appellate Court.—In a suit to surcharge and falsify the accounts of an administrator, the widow of decedent was a party complainant and was also one of the sureties on the administrator’s bond. While the widow might be entitled, under these circumstances, to a decree against the administrator, she was not entitled to a decree against her cosureties, as her cosureties might have to pay the full amount of the decrees in favor of the other heirs and distributees. In such case where the decree was in favor of the widow against her cosureties, the Supreme Court of Appeals could not correct the decree, as the record did not show what each child was entitled to, and it was necessary to restate the account of the aministrator.