1852. January Term. Charles V. an intention to restrict the claim as against the appointees of the wife. The expressions refer not to persons against whom he would not claim, but to the subject as to which in that contingency he released all Charles. claim; and to shew more clearly that such was the intent of the agreement, it is furthermore recited that the property was not to be under his control, or in any manner or at any time subject to his debts, not restricting the time to the continuance of the coverture. Having thus by contract intercepted the marital rights of the husband either to enjoy during coverture or to take by survivorship, and this intention appearing on the face of the deed, it was only necessary that the declarations of trust should provide for the control and authority of the wife during the coverture. And the property, if not disposed of, passed to her personal representative for the benefit of her next of kin, as if no marriage had ever taken place, and she had died sole and intestate. The right of the husband to administer depending on the question whether in virtue of the marital right he is entitled to the property, and as by the agreement recited in the deed of settlement he relinquished and renounced such right, his motion to administer was properly overruled, and the administration granted to the appellee, one of the distributees of the deceased. The order should be affirmed. 1852. January Term. Richmond. CRALLE &als. v. MEEM & als. (Absent Cabell, P. and Daniel, J.*) March 4th. 1. D being the endorser of C on several notes discounted at bank, and it being expected that he will endorse other notes for C, the latter executes a bond binding his heirs to D, with a condition that he will, when required by the bank or D, pay off all such notes, and thus indemnify and save D harmless. C dies whilst D is his endorser on several notes, which, by an arrangement with the bank, D takes up by the discount of his own note; and subsequently the administrator of C pays up the whole amount of the notes, principal and interest, out of the personal estate. HELD: That this bond was a valid security to D, binding the heirs of C; and that the notes, to the extent of the penalty, having been paid out of the personal assets, the simple contract creditors of C are entitled to have the assets marshalled, and to be substituted, to the extent of the penalty of the bond, to the rights of D upon the real estate in the hands of the heirs of C. 2. Upon a bill by simple contract creditors to marshal assets, it is competent for the court, in its discretion, to decree a sale of the real estate in the hands of the heirs, some of whom are infants, for the payment of the debts: But it is premature to decree a sale before adjudicating the claims of the creditors, and so ascertaining the amount of indebtedness chargeable upon the lands of the decedent. 3. Though such a decree for a sale of land has been prematurely made, yet if the sale is made and confirmed, the court will not set the sale aside on the petition of the purchasers, if upon the hearing it appears that the sale is beneficial to the infants. 4. The application of the purchasers, in such a case, to have the sale set aside, should be by petition in the cause. And if they proceed by bill to enjoin the collection of the pur * Judge Daniel had been counsel in the cause in the Circuit court. chase money, and have the sale set aside, the bill should 5. The court having made the decree for a sale of the real estate. This was a suit in the Circuit court of Lynchburg, by John G. Meem and others, simple contract creditors of John J. Cabell deceased, against his administrator and heirs, to marshal the assets, and have payment of their debts out of the real estate of the deceased. The bills, after setting out the debts of the plaintiffs, and the qualification of Thomas R. Friend as the administrator of John J. Cabell, stated that he had disposed of all the personal estate, and had exhausted it in payment of debts, many of which bound the heirs of his intestate; and that he had rendered no account of his transactions. That among the claims which should be regarded as binding the real estate, and which had been discharged by the administrator out of the personal assets, were sundry negotiable notes, made by John J. Cabell in his life time, and endorsed by Henry Davis. That to secure himself from loss Davis had taken from Cabell a bond binding his heirs in the penalty of 10,000 dollars, with condition to pay off and discharge these notes, when required by Davis or by the bank at which they were made payable, so as to save harmless and indemnify Davis from loss or damage on his endorsements. That after the death of Cabell these notes were protested for non-payment, and subsequently discharged by the administrator out of the personal assets, to an amount exceeding the penalty of the bond. The prayer of the bills is for a settlement of the accounts of the administrator, and that the assets may be marshalled, so as to subject the real estate descended to VOL. VIII.-32 1852. January Term. Cralle & als. V. Meem & als. the heirs to the payment of the outstanding simple contract debts; and for general relief. The administrator, widow and heirs answered the bill, and called for proof of the complainants' debts. They admitted that John J. Cabell was largely indebted at the Bank of Virginia and the Farmers Bank at Lynchburg, by notes endorsed by Henry Davis, and that Davis held the bond referred to in the bill; but they denied that the condition of that bond had been broken; the notes on which Davis was endorser having been paid by the administrator, so that Davis had sustained no loss or damage by his endorsements. They admitted that Cabell died seised of a large real estate, which was then held by his widow and heirs; and they asked that if it should be held that it was liable for the payment of the debts of the complainants, the defendants might be allowed to select such parts of the estate as they may desire to be disposed of, so that the satisfaction of the plaintiffs may be attended with as little injury to them as practicable. In October 1837 a commissioner was directed to settle the accounts of the administrator, designating the grade and dignity of debts paid by him; and also to state an account of the real estate of which John J. Cabell died seised, the annual value thereof, and in whose possession it was at the time of the decree; and also an account of the debts due to the respective plaintiffs. The report of the commissioner was made, and was recommitted for the purpose of correcting some errors in the calculation of interest on the complainants' debts, and was again returned to the June term 1839. At this term of the court Richard K. Cralle, who had married one of the daughters of John J. Cabell, then deceased, leaving children, the widow of John J. Cabell, and S. W. Ward, a daughter, the two first in their own right and as guardians of some of the infant heirs, filed a petition in the cause, in which, after referring to the debts of the complainants, they say they have no reason to doubt that their debts are really due; and that they at all times anticipated that a resort to John J. Cabell's real estate, for their payment, would become necessary, and they had therefore in their answers prayed that when a decree should be made, subjecting the real estate, they might be permitted to designate the portion thereof to be so subjected, and the manner and mode of doing it. They stated that a division of the real estate (except a tract of land in Bedford owned jointly by Cabell and Leftwich) had been made among the heirs at law and widow, under an order of the Hustings court of Lynchburg, but had not been confirmed, owing to the pendency of this suit; but that since the division the several heirs had held and enjoyed their respective portions thereof. That there was a tract of land lying on the Kanawha river, containing one thousand acres, which was divided into equal portions of two hundred and fifty acres to each one of the heirs of John J. Cabell, each part being regarded as of equal value. That this land, though deemed very valuable, was not productive in rents or profits to the heirs, and could be sold without affecting the division of the balance of the estate among them. That the other property divided yielded a large rent, which they were compelled to apply to purposes of present support. That the debts to be paid were of such magnitude that if the court should sequester these rents and annual profits for the payment of the debts, that the petitioners would be wholly deprived of their resources for living for an indefinite period, and thereby be subjected to serious inconvenience. They pray that the court will decree a sale of the Kanawha land, upon such a credit as will ensure the greatest possible price, and that the proceeds may be applied to the payment of the debts of the complain 1852. January Term. Cralle & als. V. Meem & als. |