Robertson v. Wright

1. Administration Accounts — Settlement of — Heirs Not Parties — Effect.*—An administration account settled in a cause in which the heirs are not parties, is not prima facie evidence as against the heirs. 2. Account Stated — What Necessary. — The mere rendering of an account by one party to another, is not sufficient to make it an account stated. For tliat purpose there must either lie an actual statement or adjustment of the account liy the parties by going' over the items together and striking the balance; or an admission by one party of the correctness of the balance struck by the other, or some other evidence to show that the party who is sought to be charged has, by his language or conduct, admitted the correctness of the account. 3. Account Rendered — Correctness of — Presumption.— If an account has been rendered by one party to another, the court cannot presume, in the absence of all evidence on the subject, that the party who received it has acknowledged its receipt and the correctness of the account.

Mary Brown brought a suit in equity against Maurice H. Garland, administrator of Archibald Robertson deceased (he being the only defendant), to recover a debt due her from said Robertson as executor of William Brown deceased. Under an order in that cause said Garland settled^ before a commissioner an account of his transactions as administrator of Robertson, which was reported to the court and confirmed by its decree at April term, 1839. One of the items in the account thus settled and confirmed was a credit in the words and figures following: *“1835. November 17, By S. & M. H. Garland, balance due from them, $1,058.90” The said S. & M. H. Garland were attorneys at law in Lynchburg, the members of the firm being Samuel Garland and Maurice H. Garland. In September, 1839, Wright and others filed a creditor’s bill on behalf of themselves and all other creditors of said Archibald Robertson deceased, against M. R. Garland, administrator of said Robertson, and the widow and heirs of said Robertson, praying an account and a marshaling of the real and personal estate. M. H. Garland was ordered to settle an account of his administration ; but before the account was settled he died; and in 1841 the suit was revived against Samuel Garland, administrator de bonis non of Archibald Robertson deceased, and executor of Maurice H. Garland deceased. In 1842 the cause came on to be heard in the Circuit superior court of Amherst county, along with the case of Brown v. Robertson’s administrator, which had been likewise revived against Samuel Garland, administrator de bonis non of Robertson, and an order was made directing said Garland to settle an account of M. E. Garland’s administration of‘Robertson’s estate to the time of his death, which took place in 1840, and also an account of his own administration of the same estate. Commissioner Brown, in stating the account of M. H. Garland’s administration under this order, adopted the account settled in Brown v. Robertson’s administrator, as above mentioned, as far as it went. The widow and heirs of Robertson, who appear not to have been represented before the commissioner, filed exceptions to this report, and particularly in reference to the credit of $1,058.90, adopted from the account settled and confirmed in Brown *v. Robertson’s administrator, and to various items in the account of S. Sc M. H. Garland with Archibald Robertson, out of which the said balance of $1,058.90 arose. This report was re-committed by consent of parties, without any decision upon the exceptions. In the course of the proceeding's, Samuel Garland insisted by his exceptions and by his answer, that the account settled and confirmed in Brown v. Robertson’s administrator was conclusive upon the parties in that cause and their privies; that all the creditors of Robertson were such privies; and also that as no specific errors were alleged in the bill, the said account could not be disturbed. Commissioner Brown, in his second report, held these positions of Samuel Garland to be untenable, and proceeded to investigate the account between S. & M. H. Garland and Robertson ; Samuel Garland expressing his willingness to correct any errors that might appear in said account. The commissioner reported numerous errors in said account, some being erroneous charges and others being omissions of credits and short credits. This report was also re-committed without a decision upon the exceptions, and the case was referred to Commissioner Tinsley, with instructions to report upon the exceptions and the case generally. Commissioner Tinsley made a report in 1849, in which he treated the account in Brown v. Robertson’s administrator as entitled to the weight of a settled account; that is to say, as prima facie correct, but liable to be impeached by evidence. And he held that this principle applied to the account of S. & M. H. Garland and Archibald Robertson, out of which the balance of $1,058.90 arose. He sustained some of the objections to that account, as to which he thought the evidence sufficient to impeach it, and overruled others as to which he thought the evidence insufficient for that purpose. Among the subjects of ^exception in the account between S. & M. H. Garland and Robertson, were two charges of $117.95 and $950, the former for the amount of John Major’s execution against Robert Tinsley, the latter for cash lent. As to the former the question was whether the Garlands had author-itjr to charge Robertson with the amount of Tinsley’s debt to Major; and as to the latter the question was whether the loan had been repaid. The commissioner was of opinion that the former item could not have been allowed without further proof, if it had been objected to in Brown v. Robertson’s administrator. As to the latter, he seems to have thought the case doubtful upon the evidence. But he allowed both items, upon the ground that they had been allowed in the account settled in Brown v. Robertson’s administrator. These were the only items in the account between S. & M. H. Garland and Robertson which were the subject of controversy in this court. Samuel Garland excepted to this report as far as it varied the account in Brown v. Robertson’s administrator, except where said account might be found erroneous on its face, there being no allegations of surcharge or falsification. He further objected to any change in the account between S. & M. H. Garland and Robertson, upon the further ground that said account had been rendered to said Robertson several years before his death, and had been held by him until his death without objection. It appeared from the evidence that Samuel Garland addressed a letter to Archibald Robertson, without date, covering a copy of the account between S. & M. H. Garland and said Robertson from February, 1827, to April 1, 1831, which showed a balance due to Robertson on that day of $2,014.07. The charges in this account consisted of lawyers’ fees, costs and other expenses, payments to Robertson, and payments of debts of Robertson, *and the credits of moneys' collected for Robertson. There was a further account between S. & M. H. Garland and Robertson, after April, 1831, extending down to the death of the latter in June, 1835, which showed, besides fees and expenses, charges for large sums paid upon debts of Robertson. After April 1, 1831, there were charges for sums lent to Robertson, but no charges for sums paid to him. From these and other facts in the cause, it seemed that the funds of Robertson in the hands of S. & M. H. Garland were left in their hands by him to be applied by them to the payment of his debts. The account rendered by S. & M. H. Garland was found among Robertson’s papers after his death. It did not appear when it was rendered, but this court treated it as having been rendered in 1831. There were also found among Robertson’s papers memoranda made by him of various objections to the said account, and among the items objected to were those of $117.95 and $950, above mentioned. It did not appear whether Robertson did or did not communicate to S. & M. H. Garland any objection to said account, or whether he did or did not have’any communication with them, or either of them, on the subject of the Said account, or of the money due upon it, after it was rendered. There was a total absence of evidence on these points. Robertson resided in Amherst county, a short distance from Lynchburg. The widow and heirs of Robertson excepted to the report of Commissioner Tins-ley, upon the ground, among others which need not be stated, that the said ' sums of $117.95 and $950 had been charged to Robertson. The Circuit court overruled these exceptions, and the widow and heirs appealed. The case was argued in this court, in print, by Mosby, for the appellants, and by Garland and Slaughter, for *the appellees; and orally by Jones, for the appellants, and by Garland and Tucker, for the appellees. It was contended by the counsel for the appellees, that the account rendered by S. & M. H. Garland to Robertson ought to be treated as an account stated, and, therefore, prima facie correct: for which they cited Willis v. Jernegan, 2 Atk. R. 252; Langdon v. Roane’s adm’r, 6 Alab. R. 518; Murray v. Toland, 3 John. Ch. R. 569; Chappede-laine v. Dechenaux, 4 Cranch R. 306; Townes v. Birchett, 12 Leigh 173. On this point the counsel for the appellants contended, that except between merchants dealing with each other as such, the rendition of an account and its retention without objection, did not give it the effect of an account stated; for which they cited the opinion of Allen, J., in Townes v. Birchett, 12 Leigh 173, 199, 200, and the case cited there. They said that this doctrine was not inconsistent with the decision of the court in that case, because the majority of the court treated the parties as merchants, and also relied upon other circumstances besides the retention of the account without objection to'show that it had been approved. They also cited the remarks of Moncure, J., in Tazewell’s adm’r v. Whittle’s adm’r, 13 Gratt. 349. The counsel for the appellees contended that the account settled in Brown v. Robertson’s administrator having been settled under the authority of a court of chancery and approved and confirmed by it, was entitled at least to the same prima facie presumption in favor of its correctness as an account settled ex parte before commissioners of the court of probate; as to which it is well settled in Virginia and elsewhere, that such a presumption exists. They referred especially to Newton v. Poole, 12 Leigh 112, to show the grounds of that presumption. counsel for the appellants replied that the effect given to ex parte settlements was founded more on long usage than" upon principle (Anderson v. Pox, 2 Hen. & Mun. 245), and that besides in such a case any party interested may intervene and controvert the settlement either before the commissioners or before the court; whereas nobody but the parties had a right to interfere, in the settlement before the commissioner in Brown v. Robertson’s administrator, or to except to the account when reported. The counsel for the appellees further contended that, the correctness of the said account could not be inquired into in this case, because no specific errors were alleged in the pleadings. The counsel for the appellants upon this point cited Shugart’s adm’r v. Thompson’s adm’r, 10 Leigh 434. This point was not noticed by this court, probably because it held that the account was not to be regarded as either a settled account or a stated account.