McCormick's Ex'ors v. Wright's Ex'ors

Citations

• 79 Va. 524
• 1884 Va. LEXIS 108

Syllabus

<p>1. Personal Representatives—Devastavit.—Where executor as surety for testator pays debts out of his own funds, he is entitled only to his ratable share of the assets to repay his advances; and by crediting himself with the full amount of those debts, he commits an error to the prejudice of the other creditors having unpaid debts of equal dignity.</p> <p>2. Idem—Ex Parte Settlements—Impeachment.—Where from face of settlement, it appears that executor has paid in full some debts and left unpaid, in part or wholly, other debts of equal dignity, such settlement stands impeached per se.</p> <p>3. Idem—Statute of Limitations.—As to fiduciaries themselves, there is no limitation except what results from staleness of demand or presumption of payment. Otherwise as to their sureties, Code 1873, ch. 146, § 9.</p> <p>4. Appellate Court—First Appeal—Second Appeal.—It is a settled rule that decrees of the court of appeals on questions decided by the court below, are conclusive, and on second appeal those questions cannot be again raised. N. Y. F. Ins. Co. v. Clemmitt, 77 Va. 366.</p> <p>5. Co-Executors—Liability—Rule.—General rule as to joint executors, is that each is liable as principal for his own acts, and as surety for the acts of his companion. Morrow v. Peyton, 8 Leigh, 54. But where one assents to misapplication of assets by the other, or knowing his intent to misapply, he fails to interfere, and loss occurs, which by reasonable diligence he might have prevented, he thereby renders himself liable as principal for such default. Caskie v. Harrison, 76 Va. 85.</p> <p>6. Ex Parte Settlements—Stated Accounts.—The first have no analogy to the latter. The efficacy of the former, as evidence, rests upon long established usage and the supposed integrity of the tribunal appointed by law for the adjustment of such matters; whereas a stated account is founded upon a supposed adjustment between the parties themselves. Leake v. Leake, 75 Va. 792.</p> <p>7. Fiduciaries—Sureties—Statu