96 Va. 451 | Va. | 1898
delivered the opinion of the court.
This suit was brought by the appellant against Charles H. Yohe, administrator of the estate of Charles F. Beaty, deceased, with the will annexed, and Henry H. Downing, alleged to be a debtor of that estate.
The complainant in her bill charges that she is the widow and sole legatee and devisee of Charles F. Beaty, who died on December 9, 1891; that Charles H. Yohe qualified as administrator with the will annexed, .and gave bond as such in the •penalty of $10,000, with Lewis C. Barley as his surety; that the testator, at the time of his death, resided in Warren county, where his property interests were situated; that Yohe, who was a resident of Alexandria and then barely twenty-one years of age, was for some purpose brought from that city to the county of Warren to qualify as administrator; that Barley, who was also a citizen of Alexandria, and had been prior thereto a ward of Downing’s, became his surety; she alleges further that she was informed and so charges that, at the time of Beaty’s death, Downing had a contract or policy of insurance on his life, but for what consideration or what insurable interest Downing had in his life she had never been informed or advised ; that it seems strange that no report had ever been made of that insurance when collected by Downing, considering the relationship of the parties as before mentioned; that Yohe as
Downing demurred to the bill, and both he, and Yohe, administrator, answered it. Upon a hearing the court dismissed the bill, and from that decree this appeal was taken.
It is well settled that a legatee or creditor of a decedent’s estate cannot maintain a suit against the personal representative of the decedent and another who is a debtor to the estate, except under special circumstances. What constitute such special circumstances as will justify such a joinder have never been limited by any precise and rigid rule. Hagan v. Walker, 16 How. 29, 34.
The circumstances usually relied on, and which have been held sufficient to authorize such joinder, are the insolvency of the personal representative; collusion between him and the debtor; the fact that the debtor was a partner of the decedent; or a trustee holding property for, or an agent of, the decedent. Mitford & T. Pl. & Pr., p. 251; Story’s Eq. Pl & Pr., see. 514; Long v. Majestre, 1 Johns Chy. 305; Hagan v. Walker, supra. See Wilson’s Admr. v. Wilson, 93 Va. 546, as to such joinder.
The bill does not charge any of those things, nor does it charge such other special circumstances as would take the case out of the general rule. There is no allegation in the bill that the administrator knew that Downing had the insurance policy, or that the complainant had ever mentioned it to him, or asked him to ascertain under what circumstances Downing held it, or that, having knowledge of it, he refused to enquire into the- matter, or to sue to recover it or such part of it as his testator’s estate might be entitled to, even if such allegations would have been sufficient. The statements of the bill, if true, and upon demurrer they must be taken as true so far as they are well pleaded, show that the administrator was grossly negligent in the performance of his duties, and were sufficient
The bill not showing such special circumstances as would take the case out of the general rule, the demurrer was properly sustained, and the bill dismissed as to Downing.
Upon the bill and the answer of the administrator, the court ought, and doubtless would have ordered an account of the administrator’s actings and doings, but for the fact, as recited in the decree appealed from, that the complainant had brought a suit against the administrator for the purpose of settling his accounts in the same court, and to the same rules as this suit was brought. There was no necessity or propriety in allowing this suit to be prosecuted for .that purpose, when there was another suit pending for the same object, and in which all the relief could be had that could be obtained in this suit. The bill in this case was therefore properly dismissed, but the decree dismissing it ought to have shown clearly that it was done without prejudice to the right of the complainant to have the administrator charged with any sum which it was his duty to collect, but which he had failed to collect, from Downing, on account of the policy of insurance held by him.
This court will so amend the decree appealed from, and, as amended, affirm it.
Amended and Affirmed.