7 Ga. 549 | Ga. | 1849
By the Court. —
delivering the opinion.
Chivers A. Nelms, of Taliaferro County, departed this life, testate, in 1837, leaving Swepson Jeffries his executor, who qualified, and died shortly thereafter. Joel E. Mercer, in January, 1838, was appointed administrator, de bonis non cum testamento annexo, upon the estate of Nelms, and executed the usual bond for the faithful performance of his duty, with William Peak and others as his securities. In May, 1841, upon the complaint of Peak to the Court of Ordinary, Peak was discharged, and Mercer gave a new bond — several others joining him. After this, in
Peak demurred to the bill, and insisted that the securities could not be sued, in connexion with the principal, in a Court of Equity, nor in any other Court, until a breach of the bond was first established, by a judgment of some Court of competent jurisdiction, fixing the amount of the defalcation by Mercer. The demurrer was sustained, upon the authority of an intimation hy this Court, in Ray and others vs. The Justices of the Inferior Court of Macon County, 6 Ga. Reps. 303.
The question then recurs, and, as we conceive, wholly untrammeled by any previous adjudication made by this Court, under what circumstances a suit in Equity may be brought against the securities of an executor, administrator or guardian, without any previous judgment or decree against their principal?
By the Act of 1820, (Prince, 445,) it is evident that a bill would lie against the' securities in the first instance, ¡provided the principal resided without the State; and it is conceded in the argument, and supported by authority, that where the trustee dies insolvent and without any. personal representative, a Court of Equity, without any previous suit having been brought against the principal, to convict him of a devastavit, would convene the securities and malte them directly liable for any misapplication or waste of the assets which shall be established in the progress of the suit. Carroll vs. Connet, 2 J. J. Marsh. Rep. 198. And the reason for allowing such a proceeding, where the principal dies insolvent, or is absent, is, that not to afford relief in such cases, would be to have a right without a remedy. We conclude then, that the remedy in Equity results from the necessity of the case, and is commensurate with the exigencies of the case, whenever this jurisdiction is applied to for relief.
But it is argued that, as against the securities, there can be no right, any where, until a devastavit be first established against the principal; but we apprehend, that in the eye of the law, the obligation of the security, as well as the rights of the heir or legatee, date from the breach of the bond; and that so soon as the waste
Ought, then, the demurrer to the bill to have been sustained 1 It admits that Mercer, the administrator, had received and wasted, or appropriated to his own use, a large amount of assets belonging to the estate of Nelms; that the complainant is unable to establish the amount of said defalcation, or the time when it took place — whether during the liability of Peak or subsequent to his discharge — without the discovery which it seeks ; and that Mercer has turned over to some one or more of the second set of securities, property and effects belonging to the estate, of the nature and value of which the complainant is ignorant, and that Mercer is wholly insolvent.
We are of the opinion, that a Court of Law, under the actual circumstances of this case, although it might have, possibly, general jurisdiction over the several branches of it, into which it would be ramified, could not afford a full, adequate and perfect remedy to the party.
But we pass by these considerations, and would prefer to put this opinion entirely upon the ground of there being two sets of securities; and I would remark, that this proceeding would seem to be required for the sake of the securities themselves. The principal has no interest in fixing correctly the time when the devastavit was committed. He would most likely be governed by prejudice or mere caprice in this matter. Usually he would, in all probability, side against the first securities, as the necessity of giving a new bond is superinduced by their complaint. The real controversy, therefore, is not between the heir, legatee or creditor, and the principal, but between the different sets of securities. When their liability, then, is about to he fixed, presumptively if you please, it is reasonable that they should be heard; and in order to this, they must be made parties. Indeed, upon the simplest elementary principles, every person at all interested in the event of the suit, or necessary to the relief sought, should be made a party, in order to enable the Court to settle the rights of all, and to make a complete and definitive decree. 2 Paige, 278. 9 Cowen, 320. 3 Johns. Cas. 318. 1 Johns. Ch. R. 349. 2 Bibb, 184. 2 A. K. Marsh. 501. Ib. 260. Penn. Rep. 299. Mitf. by Jeremy, 144. Barton, 31.
But Mr. Peak, and all others like situated, might say, as he does now, through his counsel, “We have not asked this protection — we are competent to take care of ourselves.” Our next position is, that the interest of the complainant makes it proper, if not imperative, on Courts of Equity to furnish this remedy.
Suppose the administrator, de bonis non, had filed his bill against the principal alone, as' it is insisted he should have done, relying upon the discovery which he obtains, to establish both the amoimt of the devastavit and the time when it was-committed, and it is located by the decree during the liability of the first securities. A suit is then brought upon the bond to charge them with the recovery. Not having had their day in Court before, they come in, and prove conclusively that the defalcation did not occur until after their discharge. Of course they are acquitted, and the complainant is remediless; for by the terms of the decree, the second
Indeed, if this proceeding, bringing all the parties before the Court, and ascertaining and fixing, not grima facie only, but 'permanently, the liability of the several sets of securities, cannot be supported, I should consider the rights of those interested in an estate greatly jeopardized, if not entirely destroyed; and this practice will not prejudice the securities. The decree can and should be so moulded, as to afford to them the exact measure and mode of redress and protection guaranteed by the Act of 1820. The securities being in Court, will of course be bound by the decree ; but still the devastavit must not only be made out against the principal, but the form of the finding, and of the execution issuing thereon, may be so shaped as to operate, first, against the assets of the estate, if to be found, and .if none, then against the individual property of the principal, and only against the securities eventually.
What greater indemnity could securities ask % Nota hair of their head can be hurt, until all redress against the principal is unavailable. They are entitled, I repeat, to nothing more nor beyond this, -under the Act of 1820. Does not such a course, then, commend itself in every view of it, shielding the rights and interests of all parties, and saving a multiplicity of actions, an object never to be disregarded by Courts. And, it occurs to this Court, that in the absence of any precedent, this is just one of those cases where all have such an interest in the common subject matter of litigation, as makes it necessary and proper to convene them all together, to attend to investigations in which • they are all so materially interested.
I do hot deny but that it is competent and desirable for the Legislature to authorize all this to be done at Law. Until such relief is granted, however, we should hesitate long before we could obtain our consent to dismiss a bill, founded upon the facts which this embodies.
And we are glad to find that this is no new or untried way; it is an old and beaten track.
And again, (Id.) says the same writer, in a suit which was brought in Equity by a legatee, and administrator, de bonis non, of the deceased, against the representatives of the securities of a deceased executor, charging mal-administration of the executor, in his time, and seeking an account and relief, the Court was clearly of opinion that where an executor died, without any personal representative, the Court of Equity might, at the suit of a legatee, and without any previous suit having been brought against the executor, to convict him of a devastavit, convene the securities of the executor, or their representatives, and the persons interested in any estate which the executor may have left, and make the securities liable for any misapplication or wasting of the assets, which should be established in the progress of such suit.
Moore et al. vs. Walker’s Heirs, (1 A. k. Marsh. R. 488,) was a bill filed by the heirs of Walker against his executor and his surety, for the recovery of that portion of the estate of their ancestor, to which, under his will, they were entitled. It was objected to the jurisdiction of the Court, that the remedy should have been sought by action at Law. To this the Court of Appeals answered: “ The doctrine contended for cannot bo permitted to prevail; for whatever may be the correct doctrine in a proceeding at Law, by the creditors of the testator, the Chancellor, when applied to for tbe purpose of distribution, as he will not do things by halves, but delights in preventing multiplicity of suits, and possesses the power of adapting his decrees to the substantial justice of the case, should, as he will, regardless of the failure in not having previously brought another suit against the executor, hear, and finally determine, the liability of the security, as well as that of the principal in the bond.”
Taliaferro’s Ex’rs et al. vs. Thornton and Wife, (6 Call, 21,) was a bill precisely similar to this, except that it was filed by a legatee instead of the administrator de bonis non. Some of the defendants there, as here, demurred to tbe bill, alleging that the
In Hutchcrafts vs. Stuart’s Heirs, (1 Monroe’s R. 207,) the same objection was made and overruled by the Court. They say: “Equity has always entertained jurisdiction in such cases, and will compel the trustee to account for the estate in his hands. If that sum is secured by bond and security, we have no doubt but that the jurisdiction, as to the principal, will draw alter it the security ; it is more beneficial to the surety that it should do so. He then has the opportunity of seeing that the account is correctly settled. If he is no party to the suit in Chancery, and can only be sued at Law, after the account is settled, one of two inconveniences must follow : either he must, when sued at Law, be bound by the decree to which he was not a party, and when the account might be settled erroneously; or, not having been a party, he would not be bound at all, and could unravel the accounts in the action at Law, when brought, and compel the plaintiff to re-travel over the whole settlement. It is better, therefore, that he should he made a party at once, when he can see to his interest; and when the Chancellor thus has the possession of the matter, to avoid circuity of action or multiplicity of suits, he will decree the amount to be paid at once.”
Chancellor Walworth, in Chiddeback vs. Kent, (5 Paige, 92,) says that it is impossible to add to the force of this reasoning by Judge Mills; that the prosecution of a suit against the principal alone, in the first instance, who has squandered the estate and become insolvent, would be worse than useless, as it respected the sureties, and would subject them to the expense of double litigation ; that it would, at the same time, be a violation of the settled principles of Chancery, viz: that a needless multiplication of suits is neither to he encouraged or allowed; that if, upon the hearing of the cause, it should be found that the principal had faithfully discharged the trust committed to him, according to the condition of the bond, the bill would be dismissed, as to all the defendants, with costs. If, on the other hand, there had been a breach of trust, the Court could make the appropriate decree for the payment, by the guardian, of what may be found due, with a
I ask, how much is the argument strengthened, when there are two sets of securities, with conflicting liabilities 1
Our conclusion, therefore, from the entire case is, that the demurrer should not have been sustained; tliat it was not necessary, by previous proceedings instituted against Mercer, to establish that the assets had been wasted; but that under the facts of this case, it was most convenient and proper to convene all at once into a Court of Equity, where all necessary accounts can be taken, and diverse and conflicting interests adjusted; and all persons liable to pay, brought before the Court and charged at once, so as to avoid perplexity, circuity and loss. And that the securities may sustain no detriment from this course, the decree can be specially framed, so as to operate against the principal in the first instance. On the contrary, we believe that it will prove beneficial to the securities, as it gives them early notice of the demand, and thus enables them to take prompt and efficient measures for their own safety. For these reasons, we think that the objection to the jurisdiction should not have been allowed.
The decree, consequently, of the Circuit Court is reversed, and the proceedings remanded.