Currence v. Daniels

5 W. Va. 418 | W. Va. | 1872

Moore, J.

It is .true, a legatee is compellable to sue the personal representative of the testator for satisfaction of his legacy; and in such suit he cannot, ordinarily, make a debtor to the estate a party, because there is no privity between the legatee and debtor. But there may be special cases where the debtor may be made a party. Story’s Eq. Plead., §§ 262, -514. The amended bill in this case alleges that the testator in his lifetime “ advanced to Madison Daniels, one of his sons, the sum of one thousand dollars, which said sum was separate and independent of the share which the said Daniels was to receive as one of the heirs of the said testator and “ that there was an agreement between the said testator and the said Madison, that the said Madison should pay to such person or persons as the said testator should, by will or otherwise, direct, the said sum of one thousand dollarsand that the testator, by the eighth clause of his will, “ devised and bequeathed ” to the plaintiffs the said sum of one thousand dollars, &c. If the allegations be true, it seems to me they indicate not only collateral circumstances sufficient but also such a special case as to justify the making of Madison Daniels a party, because holding in his own hands the special funds specifically bequeathed to the plaintiffs, he would under those circumstances be a trustee holding the legacy for the use and benefit of the plaintiffs. For that reason, and to prevent the multiplicity of suits, I think the court did right in overruling the demurrer.

But the allegations of the bill are not sustained. The said eighth clause of the will is a positive declaration from the testator of a gift of personalty made in his lifetime to the said Madison, without limitation or condition, and the land is conveyed by deed in fee ; no limitation, no condition, no encumbrance whatever appears in the deed. The property had gone absolutely from the testator, it was an executed gift in his lifetime, and he could not dispose of it by his will, because it was no longer his property but Madison’s. The proof does not sustain the allegation as to the agreement. It seems to me the decree is erroneous, and should be reversed, and the bills dismissed with costs.

The other judges concurred.

.Decree reversed.