Beall's adm'r v. Taylor's adm'r heirs

2 Va. 532 | Va. | 1846

Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the judgment obtained in the State of Maryland, against the intestate of the appellees, not being a judgment of a Court of Record in this State, did not so merge the original specialty executed by the intestate as to prevent the appellant from proceeding upon said specialty against the representatives of the intestate in Virginia, in respect to real assets *n Virginia. The Court is further of opinion, that the administrator was properly made a defendant to kave an accoun£ 0f the assets; and where it is sought to charge the heirs upon the bond of their ancestor, the personal representative is a necessary party for their protection, and in order that the personal assets should be applied for their relief, as far as they may go towards the extinguishment of the debt. The Court is therefore of opinion, that there was error in the decree of the Circuit Superior Court in sustaining the demurrers to the bill; the said decree is therefore reversed with costs; and this Court proceeding to make such decree as the said Circuit Court ought to have made, it is adjudged, ordered and decreed that said demurrers be overruled; and the appellees ordered to answer; and this cause is remanded for further proceedings, to be had in pursuance of this decree.