Beckwith v. Avery's

Citations

• 31 Va. 533

Syllabus

<p>In a suit by A’s administrator with the will annexed, brought in 1849, he is authorized to pay to M and 27, legatees, for life, money in his hands upon their giving security for its return at their death; and this is done. M dies, and by another decree, made in 1853, the money paid her is collected and paid to 27 upon her husband, B, and herself giving like bond; and this is done. In June, 1S74, upon a suggestion that the sureties in the bonds given by 27 and by B and 27 are insolvent, a rule is made upon them to show cause why they shouid not be required to give a new bond with undoubted security for the return of the money on the death of 27. B appeared and filed his answer on oath to the rule, insisting that there was no evidence in the record that the sureties were insolvent; but upon the affidavit of T and the statement of A’s administrator the court, on the same day, on the motion of parties claiming to be entitled in remainder, made an order that unless B and 27 executed a bond in the penalty of $10,000, with condition to pay the sum of $4,216.22, that being the sum in their hands, on the death of 27, A’s administrator should proceed to collect the money, &c.—Held :</p> <p>1. The amount of the penalty of the bond required is excessive ; one-half of it, or at most $6,000, was sufficient.</p> <p>2. B and wife having had no opportunity to except to the affidavit and statement, they may object to them as evidence in the appellate court.</p> <p>3. The object of the suit by A’s administrator having been accomplished so far as he was concerned, and the parties entitled in remainder not having been parties in that suit, after the long lapse of time since anything had been done in the case, it was improper to proceed by a rule upon B and 27; but the remainderman should file a supplemental bill in the cause.</p>