
    Wytheville.
    Perdue’s Adm’r v. Dillon.
    June 30th, 1892.
    Personal Representatives—Deed of gift.—Where intestate, in her lifetime, by deed of gift, disposed of her entire personal property, so that there was nothing to go, or that did go, at her death, into the hands of her administrator—
    Held :
    A bill against him for an accounting should have been dismissed.
    Appeal from decree of circuit court of Franklin county, rendered October 28th, 1890, in the chancery cause wherein Robert M. Dillon and Alexander Dillon were complainants, and Mark Perdue, administrator of Raney Ross, deceased, George W. English, and Raney J., his wife, were defendants. The decree being adverse to the estate of Mark Perdue, who died pending the suit, his administrator, George E. Dennis, appealed. Opinion states the case.
    
      E. C. Burks, for the appellant.
    
      P. H. Dillard, for the appellees.
   Lacy, J.,

delivered the opinion of the court.

The bill was filed by the appellees against the appellant to have a settlement of the transactions of Mark Perdue, as personal representative of Raney Ross, deceased, and for a settlement of the estate of the said Raney Ross, deceased, and to have distribution of the said estate of the said Raney Ross, deceased.' And they exhibited with the bill a deed made by the said Nancy Eoss in 1863, four years before her death, by which the grantor gave and granted all of her money, after all of her just debts and expenses were paid, and all the money due her on bonds and notes, after the collection of the same, one half to Catherine Perdue, the wife of the said Mark Perdue, out of which she, Catherine Perdue, was to pay the expenses of the grantor during the residue of the life of the grantor, and, after her death, (that is, the death of Catherine Perdue,) such amounts to go to the children of the said Catherine, P. and Whittle Perdue (which children last named are not made parties by the bill); and after the expenses of the grantor had been paid, then the remaining one-half was given and granted to Jane, Samuel H., Eolent, and Alexander Dillon ; which said deed of gift, as the deed styles itself, was not to be in force and virtue until the said Mark Perdue should be sufficiently paid and satisfied for his trouble in collecting her bonds and notes. And that Catherine Perdue should pay out the share of Alexander Dillon to him as necessity compels him to have it, and, at the death of Alexander Dillon, Catherine Perdue was to have the balance.

The said Nancy Eoss lived four years after this transfer by deed of gift of her entire personal estate, and died, and Mark Perdue qualified on her estate as administrator, and gave bond as such, in the penalty of $1,600, on the 2d day of December, 1867. This suit was brought on the 24th day of September, 1884. Mark Pei’due was living when the suit was brought, but was ninety-six years old, very decrepit, and soon died. The answer was filed by his administrator, denying that any considerable amount of money went into the hands of his intestate, and admitted that there had been no appraisement of the estate of Nancy Eoss, because there was nothing to-appraise, and admitted that there were some bonds, two in number, one of the sum of $448, and the other for the sum of $400, which were insolvent, and could not be collected. Under the stay law a judgment was recovered for $48 June 1, 1868, one half of which was paid to the Dillons, as their receipts show, which are filed with the answer. And the answer also exhibited, in support of its allegation of insolvency of the bonds in question, an agreement signed by Alexander Dillon, George W. English, who had married Jane Dillon, and Polent Dillon, dated March -12, 1876, as follows: “ Whereas Mark Perdue, of Eranldin county, is administrator of Nancy Poss, who deceased this life some time back, leaving some estate to be divided between Catherine Perdue, the wife of Mark Perdue; Alexander Dillon, Polent Dillon, and Jane English, the wife of George English, all of said ■county, and we, the said parties, agree that Mar’k Perdue may make bargains with said debtors, and take such sums as he may see cause to take for said debts, and receive for the same ; and we, the undersigned, agree to stand to all contracts that said Perdue may make.”

It is proved by the deposition of one witness that Mark Per-due, in the lifetime of Nancy Poss, offered to lend him $1,000, which he declined to borrow. This was in 1859 or 1860, but this witness did not know whether the bonds referred to above, and dated in the year 1860, and are payable to Nancy Poss, were the bonds assigned to-her May 20,1860. And the witness says that he heard Mark Perdue say that he kept Nancy Poss’ papers tied in a blue string. Another witness says that Mark Perdue told him that he lent out $1,500 of'Nancy Poss’ to James Leftwieh, Thomas P. Peynolds, and Moses O. Greer, and that they took the bankrupt laws on him. Another witness says that old man Asa Dillon asked Mark Perdue for money for Bob Dillon or George English, he could not be certain which, and Mark Perdue said he would pay them $75, but they would not take that. Mark said that he had loaned the money out and had been bankrupted on it, and he did not think he ought to have it all to pay. Another witness says that, either before the war or since the war, he had this money; he says he thinks about $1,200 or $1,500—somewhere along there. Another witness, who could not remember when it was, says he heard Mark talking about $40 he had given each of his two boys, who had wanted it, and his wife said it was Nancy Boss’ money, and he assented. Another witness said he claimed to have about $1,700. By others it is proved that the obligors in the above-mentioned bonds were insolvent at the time of the'death of Nancy Boss, in December, 1867. It is stated by some of the witnesses that Mark Perdue’s children had said that they had gotten their share of Nancy Boss’ money, but this is contradicted by them. And another witness says Nancy Boss was a very wealthy woman. Another one says that he heard that Nancy Boss had a stocking full of silver and gold. Nancy Boss was a professional midwife. It is proved that the plaintiffs were poor and in needy circumstances, and some of them old men, one seventy-five and another ninety years old, and that Mark Perdue, during the period between the making of this deed and his death, from 1863 to 1884, was in good circumstances, and always paid his debts.

It was referred to a commissioner for examination and report, and he reported a debt due to the Dillons of $1,700, with $1,734 of interest, aggregating $3,434. The circuit-court divided this in half, and decreed that to the Dillons, and the defendant applied for and obtained an appeal to this court.

The first defense set up here is that Nancy Boss gave away in legal form, by a valid deed, her entire personalty before her death, and that there was nothing which could go into the hands of her administrator, as she had no personal estate. The second is that if the court shall not be of opinion that this was the effect of the deed, and that Mark Perdue, as administrator, took anything, notwithstanding the deed, then that the parties interested, to the extent of one half of the estate, the Perdues, are not made parties, and that it was error to order a sale of the lands of the heirs of Mark Perdue in a suit to which they were not parties, and had never been served with process. And again, that under the laches and long neglect of their alleged rights, until Mark Perdue was ninety-six years old, and dying, and until all the evidence which could be adduced was conjectural, and based on the uncertain recollections of loose statements, after the lapse of many years, when any action which the court may take will necessarily be conjectural only, (Turner's Adm'r v. Dillard's Ex'or, 82 Va. 536,) and if the evidence be true, worthy, and sufficient to evoke judicial action, then that it is proved by the testimony that the bonds of the said Nancy Poss, which constituted the substance of her deed, were insolvent at the time of her death, and admitted to be so by the parties in interest, in writing, who authorized the administrator to accept anything he could get on them, which the evidence shows was nothing.

These defenses appear to be all good defenses, but the first stated is conclusive of the case. The said Nancy Poss having, by valid deed, stripped herself of her entire personalty, and given it by deed of gift to others, there was nothing to pass to her personal representative at the time of her death, and the bill of the plaintiffs should be dismissed. The decree complained-of and appealed from here must for these reasons be reversed and annulled, and such decree will be rendered here as the said circuit court ought to have rendered.

Decree reversed.  