58 W. Va. 600 | W. Va. | 1906
David Crawford died, many years ago, in the county •of Prince George, Md., unmarried and without lawful issue, and it was supposed at the time, intestate. After his death, his personal estate was distributed among his nearest of kin, one of whom was William F. Turner, a resident of Jefferson ■county, in this State. Before the administration of Crawford’s estate had been completed, Turner died, and the remainder of his distributive share was paid to his administrator.- Some years after the death of Crawford, and after the distribution of his estate, his will, bearing date October '25, 1859, was discovered, and probated in the Orphan’s Court of Prince George County, Md., on the 16th of August, 1861. Authenticated copies of the will were recorded in the county of Clarke, Virginia, on the 12th day of December, 1881, and in Jefferson county, this State, on the 20th of October, 1886, on which last named date J. Garland Hurst, sheriff of Jefferson county, qualified as administrator, with the will annexed, of David Crawford, deceased.
- Turner was not one of the beneficiaries under the will of Crawford, and in October, 1886, the administrator of Crawford filed a bill in equity in the circuit court of Jefferson county against the administrator and heirs of Turner, and others, to recover the value of certain slaves and moneys, which he, Turner, in his life time, and his administrator after his death, had received- from Crawford’s estate, under the supposition that he was one of Crawford’s dis-tributees.
There are man3r reasons assigned why the decree of the circuit court should be reversed, but it will only be necessary to review the action of the court in overruling the demurrer to the bill. The bill charges that Turner died intestate, and that his heirs at law are two daughters, Ellen Bierne, wife of John S. Saunders, and Sydney Turner, wife of Daniel
■ This bill not being maintainable to subject the land of the heirs in Jefferson county, for the reasons given, then can it be maintained as a bill of a creditor against the administrator of the estate of Turner? This must be answered in the negative, upon the authority of Hale v. White, et al., 47 W. Va. 700: “A general creditor of a deceased person cannot sustain a bill in equity on a. purely legal demand, unless he shows that he has exhausted his legal remedy, or that such remedy, for some good cause, would be inadequate or unavailing.” Not only is this so, but the bill makes no charge against the administrator, and only asks, in the prayer, for a settlement of his administration accounts. It is not claimed that the administrator has any funds in his hands, whatever, out of which the plaintiff’s debt could be paid, nor is the bill filed under section J, chapter 86, Code, where it is provided that if the personal estate is insufficient for the payment of the debts of the decedent, that a creditor may institute and prosecute a suit on behalf of himself and the other creditors. The bill is not filed on behalf of the plaintiff and the other creditors; it does not charge that the personal estate is insufficient to pay the debts; in short, it says nothing in reference thereto, whether there is, or is not, such estate, and it does not seek to sell real estate of which Turner died seized. But, as has been noted, the bill does aver that real estate descended from Turner to his heirs, but it does not seek to charge and sell this land so descended, but the prayer is to sell the land of the heirs of Ellen Bierne Saunders. In Hale v. White, supra, the remedies of the' creditor of the deceased person
It suffices to say that the plaintiff’s bill does not come within either of the above classifications. The circuit court erred in overruling the demurrer. We therefore reverse the decrees complained of, and remand the cause, with leave to the plaintiff to amend his bill, if he so desires.
Reversed.