
    Atwell’s Administrators v. Milton.
    October, 1809.
    i. Administration Accounts — Admissibility as Evidence. — An administration account settled before commissioners appointed by the Court in which the executor or administrator qualified, and certified "to have been returned to Court, and being examined, to have been allowed, and ordered to be recorded,’’is admissible on the plea of fully administered. as prima facie evidence of the several items therein, without producing also copies of the inventory and appraisement of the testator's or intestate's estate. But the adverse party may surcharge and falsify such account, if he can.
    2. Joint Bonds — Death of One Obligor — Survivor.—In an action against the representatives of a person deceased, on a joint covenant entered into before the act “concerning partitions and joint rights and obligations,” (1 Rev. Code, 81,) if It appear from the declaration that one of the joint cov-enantors survived, it is a radical defect, and not cured by .verdict.
    This was an appeal from a judgment of the District Court of HayMatket, reversing a judgment of the County Court of Prince William.
    Milton brought an action of covenant against the administrators of Thomas At-well, stating, in substance, that a certain Johnson Smith, and the said Thomas At-well, by their certain writing obligatory seated with their seals, and dated the first day of August, 1783, in consideration of 851. sold apd delivered to the plaintiff a certain negro boy; and for themselves, their executors, &c. thereby covenanted with the plaintiff to indemnify him, &c. from all claims whatever for said negro: and then avers that the boy was afterwards recovered of him in an action of detinue; by means whereof *an action accrued to the plaintiff to demand of the said Johnson Smith and Thomas Atwell in his life-time, damages, &c. “ by means whereof, and by force of the act of Assembly in that case made and provided, this action accrued to the plaintiff, after the death of the said Thomas, to demand and have of the defendants, his damages, &c. and .assigns for breach that neither Johnson Smith and Thomas Atwell, in the life-time of said Thomas, and the said Smith since the death of the said Thomas,” although often required, have performed their said covenants, but have altogether broken the same, &c.
    The defendants pleaded, 1st. Covenants performed; 2dly. That their testator', and themselves, since his death, were always ready to defend the claims of the plaintiff according to the covenant; 3dly, and 4thly. Two other immaterial pleas; and, 5thly. Fully administered. To all which pleas the plaintiff replied generally.
    On the trial of the cause, the defendants offered in evidence, to support the issue of fully administered, an account of their administration as settled by commissioners appointed by the Court of Prince William County, which was certified “to have been returned to the Court, and being examined, to have been allowed, and ordered to be recorded;” which was the only evidence exhibited by them. Whereupon the counsel for the plaintiff prayed the opinion of the Court, whether the said account was legal evidence of a full administration, and sufficient to support the said issue, without further proof. The County Court gave it as their opinion, that the said order of Court and account were evidence fit to be sent to the Jury', no proof of mal-administration having been offered. To which opinion the plaintiff excepted. There was a verdict and judgment for the defendants in the County Court; which was afterwards reversed in the District Court; that Court being of opinion that the account, settled by commissioners, ought not to go in evidence without copies of the inventory and ap-praisement of the intestate’s estate. The administrators brought the cause before this Court.
    *Botts, for the appellants,
    made several points; but those on which he most relied, and on which the cause turned, were, 1. That the appellee, by his own shewing in the declaration, that Johnson survived the intestate of the appellants, had exhibited a survivorship of all the covenants upon him, (Johnson,) thereby discharging the estate of Atwell from further liability.
    2. That the opinion of the County Court, in deciding that the account of administration was admissible evidence, as it was offered, was clearly correct, and agreeable to the universal understanding of the country. Such account is not only prima facie evidence, but is the best evidence the nature of the case will admit of, without burthening the estate and exhausting the assets in establishing items hy distant witnesses, where assets in fact remain; and where they do not, by compelling executors and administrators to throw away their own estate to prove that they had not defrauded others.
    
      
      Settlement of Executor's Accounts — Weight as Evidence. — In Leavell v. Smith, 99 Va. 377, 38 S. E. Rep. 202. it is said, in the case of Anderson v. Pox, 2 Hen. & Munf. 245, decided in 1808, there was a aucere as to the weight to be given to such settlements. Judge ■Tucker, in maintaining that they were to be taken asprima facie correct, said: “To call iu question a practice sanctioned by the supreme court of the country for perhaps a century, and never, that I know of, drawn in question before the present occasion, is what I cannot presume to do. It ought, therefore, I conceive, to be taken as prima facie evidence of the several charges and credits therein contained.” The next year, in the case of Atwell v. Milton, 4 Men. & JR. 253, the court unanimously adopted the view of Judge Tucker in the previous case, and it has been consistently followed by subsequent decisions of this court, hoth before and since the enactment referred to, to the present time. Wall v. Gressom, 4 Munf. 110; Wyllie v. Venable, 4 Munf. 369; Wimbish v. Rawlins, 76 Va. 48; Robinett v. Robinett, 92 Va. 124, 22 S. E. Rep. 856.
      The principal case is also cited in foot-note to Anderson v. Pox, 2 Hen. & M. 245; Corbin v. Mills, 19 Gratt. 438. See monographic note on “Executors and Administrators” appended to Rosser v. De-priest, 5 Gratt. 6.
    
    
      
       Joint Bond — Death of One Obligor — Survivor.—The principal case is cited in. foot-note to Elliott v. Dyell,
      3 Call 268; foot-note to Richardson v. Johnston. 2 Call 527; foot-note to Leftwich v. Berkeley, 1 Hen. & M. 61; foot-note to Mlnge v. Field, 2 Wash. 136; foot-note to Crawford v. Daigh, 2 Va. Cas. 521; Somerville v. Grim, 17 W. Va. 808; Reynolds v. Hurst, 18 W. Va. 654.
      See monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   JUDGE TUCKER,

after stating the case, proceeded: In the case of Carr’s Executors v. Anderson, the paper offered in evidence as an inventory and appraisement of Barbara Carr’s estate, did not appear to have been signed by the executor, nor submitted to the Court and ordered to be recorded. It was therefore the unanimous opinion of this Court, that it was not proper to be admitted as evidence. In the case of Anderson and Starke v. Eox and others, I was of opinion that an executor’s account appearing to have been submitted to, and settled by commissioners appointed by the Court in which the will was proved, ought to be taken as prima facie evidence of the several charges and credits therein contained; but that any person interested therein might be at liberty to surcharge and falsify the same, if capable of producing satisfactory evidence to that purpose. For the reasons which then occurred to me in support of that opinion, I beg leave to refer to the book, and to the authorities there cited, viz. 2 Ves. 566, Pitt v. Cholmondely, and 2 Bro. Ch. Ca. 62, Brownel v. Brownel. I will beg leave to add a further reason in support of that ^opinion. By our law both executors and administrators are bound in an obligation to make a true and perfect inventory of their testator’s or intestate’s estates, and to exhibit the same, when required, to the Court; and to administer the same according to law; and make a just and true account of their actings and doings therein, &c. The executor may certainly, without being required, exhibit his accounts to the Court for settlement, because, being bound by obligation in a heavy penalty, to do so when required, he ought to be permitted to do so without being required. The Court are to proceed to have the accounts duly examined and settled. To this end the inventory and appraisement (where the latter is required) must be considered as preliminary requisites and necessary vouchers. And when the Court has referred them to commissioners to examine, state, and settle, who report (as in the present case) that thej' have examined the account and vouchers to them submitted and closed the account, which is afterwards certified to have been examined and allowed by the Court and ordered to be recorded; can there be a doubt that a copy of the account so exhibited, examined, allowed, and admitted to record by the proper tribunal, would prima facie be so far conclusive evidence, in favour of the executor, in an action brought upon his official bond, as to shift the burden of proof, as to any thing which might surcharge or falsify such account, from the executor to the plaintiff, according to the authorities last referred to? I conceive not, and therefore think the judgment of the County Court correct, and that of the District Court erroneous.

There are two other grounds on which I think this judgment erroneous. First, this was a joint covenant entered into before the act concerning joint rights and obligations, and it appears by the declaration that Johnson Smith, one of the covenantors, survived Atwell, against whose administrators the suit was brought, which brings the case within that of Lyell v. Elliot, and of Johnson v. Richardson, and Harrison v. Field, But even if Atwell had been alive, and the suit brought against him alone, instead of his *'administrators, the obligation being joint, and Johnson Smith appearing to be still alive, the omitting to sue him, as well as the other, would have been error, according to the decision of this Court in Eeftwich v. Berkeley, and several other cases decided on the same grounds. I therefore think that the judgment of the District Court should be reversed, and that of the County Court affirmed.

JUDGE ROANE.

As the declaration in this case is radically defective in not setting1 out a sufficient cause of action, I should be for sustaining the judgment for the appellants, even if the County Court had erred in giving the instruction to the Jury, which is excepted to. The declaration is radically defective in this, that being upon a joint covenant, it ought to have stated the survivorship of the appellants’ intestate: but, on the contrary, it rather states, or admits, the survivorship of Smith, the other covenantor; and, if so, the action was for ever gone against the representatives of Atwell.

With respect to the instruction given to the Jury, the settlement before the commissioners of Prince William Court, was prima facie evidence of a full administration. Before those commissioners the inventory was produced by the appellants. This is not expressly stated in the account rendered; but, being the natural course of business, it will be intended: it is therefore unnecessary for an executor, after the inventory has been exhibited before the commissioners, to produce it again on the trial. On the other hand, the inventory and appraisement may be given in evidence against an executor, or by him where no settlement has been made before commissioners, or, in his discretion, even where such settlement has been made, but the executor objects to be bound by the appraised value of the estate. In the present case, however, it would have been an act of supererogation in the executor to have done it, as the estate was found indebted to him; and I am of opinion, on both grounds, that the judgment of the District "'Court should be reversed, and that of the County Court affirmed.

JUDGE FLEMING.

Two questions seem to be presented in this case; 1st. Whether an action of covenant could lie against the administrators of Atwell, during the life of Smith, the other joint covenantor? and, 2dly. Whether the account of the administration of Thomas Atwell’s estate, made before commissioners under an order of Prince William Court, and there examined, allowed, and admitted to record, was not proper evidence on the issue of plene ad-ministravit?

With respect to the first point, it seems to me very doubtful whether the action could be maintained; and I am inclined to think that it could not; but, as the other point seems clearly in favour of the appellants, I have not given it a mature consideration.

As to the other point, the administration account, duly examined and admitted to record, is, prima facie, good evidence; and the reason given by the District Court, why it ought not to have been admitted, is the want of copies of the inventory and ap-praisement of the estate of the intestate to support it. The inventories and appraise-ments are, by law, required to be made and returned to Court, there to remain for the inspection of creditors, and others, who may be affected by, or interested in, them; but it is not customary, nor is it necessary, that they should be exhibited with the accounts returned to Court and admitted to-record, when they.are offered in evidence, which ought to be conclusive, unless there be some errors or error pointed out by the adverse party, and particularly excepted to; And, that not having been done in the case before us, where a large balance appears in favour of the administrators, the account was properly admitted to go as evidence to. the Jury on the issue of plene adminis-tra vit ; and I, therefore, concur in the opinion, that the judgment of the District Court be reversed, and that of the County Court affirmed. 
      
       2 Hen. & Munf. 361.
     
      
       Ibid. 245.
     
      
       MS. Rep.
     
      
       2 Call. 527.
     
      
       2 Wash. 136.
     
      
       1 Hen. & Munf. 61.
     