Brown v. Administratrix of Brown

2 Va. 151

• Court: Court of Appeals of Virginia
• Decided: October 15, 1795
• Status: Published

Opinion

The Court

delivered the following opinion and decree: viz. “ The Court is of opinion, that the exhibits stated in the record are not only corroborative of the entry made in Wentworth’s books by John Day, the clerk, or agent of Mary Wentworth the administratrix ; but are abundantly sufficient independent of that entry, to charge Thomas Brawn with the whole 386/. 10i. Id. The demand against Wentworth’s estate was ascertained by his administration account duly settled and recorded, so as not to admit of doubt or litigation s Thomas Brown the -same day, on which administration of that estate was obtained, is appointed guardian to Samuel Brawn’s children, with a view, it would seem, to the;.receiving of this money before that estate was divided. There appears to have been so little doubt of the personal estate (of which there is no account) being sufficient to pay this, and all other demands, that Brawn himself, who married a daughter of Wentworth, with the husbands of the others. Immediately commenced an amicable suit in Chancery, to have a division of the lands and slaves; an order for such division is accordingly made and carried into execution, comprehending seventeen slaves, which at their stated value, amounted to much more than this demand of Samuel Brown’s orphans, and were liable thereto, if the personal estate were not sufficient Hence it appears that this money either was received by Thomas Brown the guardian, or he was guilty of gross neglect of duty, either of which would be a proper ground for charging him therewith. That he did receive it, is highly presumable fr om the circumstances before stated, and from that of his having entered in his memorandum book, the receipt of so considerable a part as 155/. 9s. 6d. without having returned an account thereof to Court as his duty required, or even carrying it to account in his own books, either to the credit of a general account with Samuel Brown's estate, or to the credit of each individual child, although such accounts appear to be open on his books, and although it is stated that he had posted from the memorandum book all other entries made at the same time. That therefore his estate ought to be charged with the whole 386/. 10i. Id. as received in May 1768, accountable to each child for one-third thereof, with interest. But since the accounts of disbursements for their maintainance appear to be inadequate to that purpose, and probably defective, and the interest of the money a very mode,rate allowance, the Court is of opinion, that the interest with each child shall commence from the time when he or she attained the age of twenty one years, or married, till which period the interest shall be set against the maintainance, and all the accounts of his disbursements for the latter discarded, unless the plain-tilts can make it appear before the commissioner, that they derived part of their maintainance from some other source than from their said guardian, in which case the charge of interest is to be made against him, and he to be allowed his accounts for maintainance. The decree is reversed with costs, and the cause to be remanded to have the accounts reformed, and a final decree made according to the principles of this decree.”