47 W. Va. 700 | W. Va. | 1900
In the chancery cause of Mary D. Hale against James A. White, etc., from the circuit court of Mercer County, the following statement is adopted from plaintiff’s brief: “On the 5th day of May, 1880, Margaret J. Hale, the ancestor of the plaintiff, leased certain mineral properties owned by her in the county of Franklin, state of Virginia, to one Robert F. Mason, for certain annual rents or royalties, and which lease was to run for the period of twenty-five years, and to expire in the year 1905. This lease and the rents thereunder, subsequently, by the death of Margaret J. Hale and a partition of the said real estate of said Margaret, became the property of the plaintiff and her sister, Jane S. Hale. Afterwards, and pending a suit between the said Hales and said Mason for the recovery of the rents due upon or under the said lease, to wit, on the 12th day of July, 1888, a contract was entered into between the said Hales, Mason, and the defendant, M. M. Rogers, whereby said suit was settled and compromised, and said leases assigned by said Mason to said Rogers; the latter assuming the payment of said rents upon or under said lease, and covenanting that the said lease upon the said land so leased should yield to the said plaintiff and her sister, Jane S. Hale, one hundred and fifty dollars each year thereof from the 6th day of September, 1887, whether the mines on said lands were worked or not, etc., which said contract was reduced to writing, duly signed, and acknowledged. Contemporaneously with this contract the said Rogers, with J. H. Bramwell, executed to the said plaintiff and her sister, Jane S. Hale, a bond for two thousand dollars, with interest, for the payment of said rents. After the execution of this contract, to wit, on the 4th day of October, 1888, the said Jane S. Hale intermarried with defendant, Carter
Six grounds of error are assigned by appellants, to wit:: “(1) The court erred in overruling the demurrer of petitioners to plaintiffs’ bill. (2) The court erred in assuming jurisdiction of the case, and the bill should have been dismissed for want Of jurisdiction. (3) The court erred in decreeing in favor of the plaintiff for any part of the amount claimed to be due on account of the interest of Jane S. Berkley (formerly Hale). (4) The court erred in not dismissing this cause upon tne hearing because there was-no evidence that the leases under which the bond sued on in this case was given were still in existence and unexpired. (5) The court erred in refusing to permit the Consolidated Mining Company, a corporation, to become a
The first question for consideration is the demurrer to-the bill. The will of J. H. Bramwell, deceased, is filed as an exhibit, from which it appears that his estate is very large, and all of which is charged with the payment of his. debts. There appear to be no debts against the same but the plaintiff’s so there can be no possible question as to-the sufficiency of the assets. The bill alleges that plaintiff does not know the amount or character of the assets, or what disposition the executors have made of them, and therefore she prays a discovery. There is no allegation that they have not returned the inventory and made the annual settlements required by law, or that they were in any manner concealing the assets or disposing of them illegally, or that they had refused to pay any just claim against the estate, so that the prayer for discovery and account must be treated as merely colorable. So the inquiry is narrowed down to the question whether a creditor of a. deceased person had the right, in the first instance, to institute a chancery suit on a claim, admitted or disputed, against the personal representative, full-handed with assets, without regard to the conduct of such personal representative in the administration of such assets. In other words, has a creditor the right to disregard an adequate remedy at law, and sue on a mere legal demand, in a court of equity? The present remedies of the creditor of a deceased person are as follows: (1) An action at law against the personal representative. Section 19, chapter 85, Code. (2). A'separate bill in chancery to compel payment of his individual debt out of the funds in the hands of the personal representative, and discover the funds or estate liable to the payment thereof. Story, Eq. Pl. §§ 99-102; 2 Tuck. Bl. Comm. 425; White v. Bannister's Ex'rs, 1 Wash. (Va.) 168; Duval's Ex'r v. Trent's Devisees, 6 Mumf. 29; Clarke v. Webb, 2 Hen. & M. 8. (3) A bill in.
Reversed.