59 Miss. 619 | Miss. | 1882
delivered the opinion of the court.
N. R. C. Watson exhibited the bill in this cause, in the Chancery Court of Lincoln County against the heirs and distributees of John Watson, and against the heirs and distributees of one Nathaniel Watson, and against Mrs. Eliza Dakin, in which he states that he is the administrator of the estate of John Watson, appointed to that office by the said Chancery Court of Lincoln County. That John Watson in his lifetime was the guardian of his brother, Nathaniel Watson, who was a lunatic, and that since the death of John Watson, he as administrator had filed in the Chancery Court of Jefferson County (where the guardianship of said lunatic had been awarded to his intestate) the final account of John Watson as such guardian, and that on such final accounting he as such administrator was found indebted to the heirs of Nathaniel Watson (who had also died) in the sum of six hundred and seventy-five dollars, and a decree was rendered in favor of the said
The defendants named in the bill were cited to appear, and some of the distributees of Nathaniel Watson demurred to the bill, assigning as causes of demurrer: First, that the money was not paid or offered to be paid into court; second, that the bill showed that the debt claimed by Mrs. Dakin was not identical with the debt claimed by the other defendants ; third, that the bill showed that the complainant was interested in the fund in litigation, first as administrator of his father, second as one of the heirs of his father, and third as one of the heirs and distributees of the estate of Nathaniel Watson; fourth, because no affidavit was filed with the bill that there was not collusion between the complainant and some of the defendants. The demurrers were overruled by the court, and thereupon the defendants answered.
Mrs. Dakin claimed the whole fund under the agreements made by the complainant at the times of his purchases to pay them to her. The heirs and distributees of Nathaniel Watson asserted that the whole transactions were fraudulent and color-able, and intended by John Watson only for the purpose of preventing his estate from being made liable to the estate of Nathaniel Watson. Much testimony was taken, and on final hearing the Chancellor directed the complainant to pay over to Mrs. Dakin the sum of five hundred dollars with interest
A careful examination of the evidence has satisfied us that the Chancellor’s decision was right on the facts, and w.e would affirm his decree, but for the error committed in overruling the demurrers interposed by the distributees of Nathaniel Watson. We are reluctant to disturb a decree in which substantial justice has been done, but the demurrers are so clearly good that we cannot avoid giving to them their proper effect, which results in a dismissal of the bill.
The first ground of demurrer assigned is not well taken. It was within the power of the court to decline to permit the complainant to proceed in the cause until the fund had been paid into court, and this ought to have been done, but the fact that the money was not paid or offered to be paid is not ground of demurrer. Meux v. Bell, 6 Sim. 175; 2 Dan. Ch. Prae. 1564.
The second ground of demurrer was itself fatal to the bill as a bill of interpleader, or as a bill in the nature of a bill of inter-pleader, for the heirs of Nathaniel Watson do not, so far as the bill.shows, claim any right at all to the debt due by the complainant; what they claim is a debt due by the estate of John Watson. It is true that they assert an intention to contend that the complainant himself is as administrator entitled to the debt due by him as an individual, and that his failure to account therefor will be a devastavit for which he and his sureties will be responsible to the creditors of the estate, but this is totally different from the assertion of a claim to the debt itself, and it
The third ground of demurrer was well taken. Asa pure bill for an interpleader the bill was not maintainable, because the complainant shows an interest in the debt, if it is due to himself as administrator, both as administrator and as one of the distributees of his father’s and uncle’s estates.
It is however said by counsel for the complainant, that the bill is good as a bill in the nature of a bill of interpleader, and for this he cites 2 Story Eq. Jur. § 824. It is there said, that “ although a bill of interpleader, strictly so called, lies only where the party applying claims no interest in the subject-matter ; yet there are many eases where a bill, in the nature .of a bill of interpleader, will lie by a party in interest, to ascertain and establish his own rights, where there are other conflicting rights between third persons.” But in none of the cases cited does it appear that the party applying claimed right or interest in the fund, which he proposed to pay into court. In Mohawk & Hudson Railroad Co. v. Clute, 4 Paige, 384, the company had been taxed in two towns on the same capital stock which was taxable in one only, and a bill in the nature of a bill of interpleader was sustained to settle the question as to which town was authorized to levy the tax. Thomson v. Ebbets, Hopkins, 272, was a case of simple interpleader, and was sustained as such. Bedell v. Hoffman, 2 Paige, 199, was a case in which the complainant was entitled to redeem mortgaged property, and it was doubtful to whom the money was due, and it was held that a bill in the nature of a bill of interpleader could be filed. The cases of Mitchell v. Hayne, 2 Sim. & Stu. 63, and Meux v. Bell, 6 Sim. 175, are not at all applicable to the matter of the text they are cited to sustain.
The complainant’s bill, as a bill of interpleader, was demurrable, because not accompanied by an affidavit that there was no collusion between him and the parties defendant. . 2 Dan. Ch. Prac. 1562.
It is said, however, that the bill ought to be maintained as a bill filed by the administrator to have the directions of the Chancery Court as to the execution of the trust of Ins office. The'answer to this position is, that the bill is not filed by the complainant as administrator, for instructions touching the performance of his duty as such, but is exhibited by the person who chances to be administrator for relief as debtor.
The rule is, that if one has a claim which before becoming trustee he might have propounded against the trust estate, he shall not lose all remedy because of his appointment as trustee, and under such circumstances he may file a bill against the cestuis que trust, to enforce his demand. Davis v. Bowmar, 55 Miss. 671. But in this case the complainant, before his appointment as administrator, had no right to file a bill of inter-pleader, and such right does not arise, because of his appointment.'
Decree reversed, demurrer sustained and bill dismissed.