Murphy's adm'r v. Carter

Citations

• 23 Va. 477

Syllabus

<p>Testator dies in 1836. By Ms will lie gives certain specific and general legacies, and then directs that certain land, and his personal property shall he sold, which with debts due shall be a fund for the payment of his debts. An administrator c. t. a. qualifies and executes a bond with sureties, the condition of which only binds them for the faithful administration of the personal estate, and that he shall “ deliver all the legacies contained and specified in said will.” He sells the land, and out of the general fund pays debts ; but upon a settlement of his accounts is largely in arrear: Held :</p> <p>1. The sureties are not liable for the due administration of the land.</p> <p>2. Though the condition of the bond does not use the word “pay” but only “deliver,” yet this last word will cover the general as well as the specific legacies.</p> <p>3. The land and personal property and debts being made one common fund by the testator, it was not mal-administration by the administrator to use the proceeds of the land in the payment of debts.</p> <p>4. The real and personal fund should be applied in payment of debts pro rata according to their respective values.</p> <p>5. To ascertain the amount with which each fund is to be charged, accounts are to be stated : 1st: Of the combined fund derived from the sale of the real estate and from personalty : 2d: The total amount of legal disbursements made out of both funds : 3d : What amount of the combined fund was derived from real estate and what amount from personal estate. 4th : Then' to ascertain by the rule of proportion, what part of the disbursements have been made out of the land fund; and by the same ratio, what proportion of the balance due from the administrator is chargeable to the land fund, and what proportion is to be charged to the personal fund.</p> <p>6. A husband, whose wife is entitled to a distributive share of a deceased legatee of the testator, is not a competent witness to prove that certain debts, paid