Farrow v. Barker

42 Ky. 217 | Ky. Ct. App. | 1842

íudge Ewing

delivered the opinion-of the Court.

The proof that Edmund B. Barker, one of the sureties of the administrator, had stated, in substance, that he had purchased land in Missouri and intended to go there in the fall to live, and persuaded an acquaintance to go with him and settle in his neighborhood, proved by one witness and corroborated by another, connected with the fact, that he did go away in the fall, and was absent at . , . . . . . ... the time this suit was instituted against him as a non-resident, and did not return till the following month, was sufficient to justify the suit against him as a non-resident, and to sustain the attachment awarded: and the more especially as it does not appear that he has since taken -up his residence in Kentucky. But the debt should be first •made out of the principal, if it can be, rather than out of the surety.

We have no doubt that a Chancellor who delights to do .final, full, -and complete justice at once, may bring the administrator and his sureties, as well as the heirs and all other necessary parties before him, and may determine whether a devastavit has been committed, and render a decree 'to meet that state of case, and afford full redress, without leaving the complainant to prosecute another suit to attain it.

And if a devastavit be found as the means of affording "full redress, in any and every contingency, a decree should, in the general, be rendered, to be levied, first of the assets in the hands of the administrator, -if any, if none, then to be levied of his own estate, 'if any, if none, then to be levied of the estate of his sureties, if any, if 1 , , , | . , , , , none, then to be levied of the estate which descended to the heirs. And in this case, as a devastavit has been clearly shown, such-a decree should have .been rendered, but for the attachment of the debt due Edmund B. Barker, one of the sureties of the administrator, in the hands of Martin & Cole, which if the complainant cannot reach, he may not be able to make his debt out of the administrator, his sureties, or the heirs, by any of the forms which the execution may be made to assume. But as the administrator and the estate in his hands, if any, should be first made liable, a decree should be rendered for the debt, with direction that an execution be first issued against the administrator, to be levied of the estate in his hands, if any, if none, to be levied of his own estate, and the cause should be suspended and the attachment retained until a return shall be made, showing that the debt and costs cannot be made out of the administrator, and then if it shall not be made, a decree should be rendered against Martin & Cole for the amount, and a credit for the same allowed them, on the debt owing by them to Edmund B. Barker, the surety.

Payne fy Waller for plaintiff: Hord for defendants.

Decree reversed and cause remanded, that further proceedings may be had as indicated in this opinion.