Lincoln's adm'rs v. Stern & wife

Citations

• 23 Va. 816

Syllabus

<p>Bill by S and J his wife against W and A administrators with the will annexed of L, stating L was guardian of J, and asking for account of L’s guardianship. VV in his answer, says he acted as guardian of J, and settled his account as such in 1860, and paid over the balance found due to S. Asks, if L is to be held to have been guardian, he may have the benefit of that settlement. There is no record evidence of L’s qualification as guardian of J, and he never acted as such. He died in 1863. Comm’r’s report shows the money certainly received, paid by W to S ; but there were '-two claims due to J, which W says-were not collected by L, and there was a third claim upon the' estate of M, who died in July 1863. These three claims amounted to $976.60. There was no proof of the condition of the. two first debtors at any time, and whilst the comm’r reports the claims and their amount, he does not report L as liable for them. The court decrees that S and wife do recover of the adm’rs of S viz : W and A, the sum of $976.60 as of the date of April 1st 1868, with interest on the principal; and that they pay the plaintiffs costs. -Held :</p> <p>1. The court erred in treating L as guardian of J, without-proof of Jhis legal appointment and due qualification as-such.</p> <p>2. In holding the estate of L responsible for said outstanding csaims .reported to be due J, under the circumstances of this case, without first having directed an enquiry into the present and past condition thereof; whether the same were collected or collectable by said L; and if they or any of them have been lost, whether the loss has occurred through the default or neglect of L.</p> <p>3. The decree is a personal decree against W and A the administrators of L; and it was error to enter a personal decree against them without having first ordered an account of their testator’s estate.</p>