55 W. Va. 160 | W. Va. | 1904
At the December Pules, 1900, Samuel B. Hanna and C. A. Lightner, as executors of Allen Galford, deceased, filed their bilL in the circuit court of Pocahontas County, against Nancy Galford, Hannah McLaughlin, Alice McClure, Caroline Tacy, Brown N. Galford, James II. Galford, Bertie L. Galford, Sarah A. Galford, Nancy J. McLouxPs administrator, Hriali Hevener, C. C. Burner. John Driscol, W. H. Collins, J. C. Arbogast, late sheriff of Pocahontas County, and as such, administrator of Samuel L. Gibson, J. C. Arbogast, and the West Virginia Spruce Lumber Company,
Plaintiffs then pray that their trust, as executors of Allen Galford, be executed under the direction of the court; that the validity or invalidity of the claim of Uriah Hevener, as one of the sureties of J. C. Arbogast, late sheriff of Pocahontas County, against their testator’s estate be fixed and determined; * * * that their accounts as executors be settled, and for general relief. N.'C. McNeil was by the court appointed guardian ad litem for the infant defendant, Bertie L. Galford, who by her said guardian ad litem, filed her answer to the bill. Defendants, Caroline Tacy and Alice McClure also filed their joint and several demurrer and answer to the bill, whereupon the cause was referred to a commissioner to ascertain and report,’among other things, an account showing all the valid and subsisting debts with their amounts and priorities thereto against the estate of Allen Galford, deceased. Under this order of reference, the commissioner did not report the said claim of Uriah Hevener as a liability against the estate of said Galford, deceased, but referred the same with .certain observations thereon to the court. Afterwards, defendant, Uriah Hevener filed his answer to the bill; but did not demur thereto, in which answer he gives a his
It appears from the report of the commissioner that said Uriah Hevener was indebted to the estate of Allen Galford on the first day of March, 1898, in the sum of $1,782.95, being the amount due on the bond of Hevener to Galford for $1,500.00, bearing date October 16, 1894-, upon which certain credits are endorsed.
On the 21st day of June, 1902, the cause was heard upon the bill and, exhibits; the said several answers, and demurrers, which demurrers were then by the court overruled and disallowed * and, it then appearing to the court, that Uriah Hevener was indebted to the estate of Allen Galford, on the bond mentioned in the commissioner’s report in the sum of $1,718.40, as of that date, said Hevener having made certain payments thereon, after the report of the commissioner and before the then hearing thereon; and, the court being of opinion that Uriah Hevener was entitled to recover from the estate of Allen Gal-ford, contribution for one-half of the sum of $2,869.37, paid by said Hevener on the said judgment against Arbogast, Hevener and others, and also one-half of $165.00 which said Hevener had paid on another judgment against said Arbogast and sureties, the court then ascertained and fixed the sum of $1,772.24 as the amount then due from said estate to Hevener. And proceeding to adjust all the matters in difference between said Hevener and the estate of Allen Galford, the court found the sum of $53.80 in favor of Hevener against the executors of Galford, and thereupon entered a decree against them in favor of Hevener accordingly. From this decree, said Bertie L. Galford by N. C. McNeil, her guardian ad litem, and Sarah A. Galford, appeal, and, among other assignments of error, say that the circuit court erred in overruling their said demurrers to plaintiffs’ bill.
If the decree be erroneous and allowed to stand, it will deprive the estate of $1,772.24, in which said Bertie L. Galford is directly interested. That she is interested, and prejudiced by the decree, .if erroneous, is plainly apparent. Should the court have sustained her demurrer to the bill? The answer to this query depends upon the sufficiency of the allegations of the bill to bring the cause within some recognized equity principle, which confers jurisdiction upon the courts. In 1 Story’s Eq. Jur. s: 544, it is said: “The application for aid and relief in the administration of estates is sometimes made by the executor or administrator himself, when he finds the affairs of his testator or intestate so much involved that he cannot safely administer the estate except under the direction of a court of equity. In such a case it is competent for him to institute a suit against the creditors generally, for the purpose of having all their claims adjusted, and a final decree settling the order and payment of the assets These are sometimes called Bills of Conformity (probably because the executor or administrator in such case undertakes to conform to the decree, or the creditors are compelled by ihe decree to conform thereto); and'they are not encouraged, because they have a tendancy to take away the preference which one creditor may gain over another by his legal diligence. Besides it has been said that those bills may be made use of by executors and administrators to keep creditors out of their money longer1 than they otherwise would be. However correct these reasons may bo for a refusal 'to interfere in ordinary cases involving no difficult)', they are- not 'sufficient to show that the court ought not to interfere in behalf of an executor or administrator under special circumstances where injustice to himself or injury to the estate may otherwise arise.” Plain
Plaintiffs pray that the validity or invalidity of the claim of Hevener be fixed and determined by the court. It will be proper for the court to adjudicate that'matter, when Hevener sees fit to bring it into court in some appropriate proceeding. Plaintiffs further allege, by way of excuse for the institution of their suit, that the legatees, under the will of Alffin Galford, are' clamoring for their legacies, and are threatening plaintiffs with suits for the same, and at the same time, said legatees contend that the estate of their testator is not liable for any part of said judgment; and plaintiffs also, say that they are advised, and therefore charge, that the estate of Allen Galford is not liable for any part of said judgment, because said debt and every part thereof was and is barred by the statute of limitations. This allegation is wholly insufficient to sustain the bill. If the executors had really desired to pay the legacies to the legatees, they could have taken proper and sufficient refunding bonds for their indemnity. Moreover, there is no apparent reason why the executors could not have maintained an action at law against Hevener, for the recovery of the amount due from him on his said $1,500.00 bond given to Allen Galford. There is not shown any such complication of accounts between Hevener and the
Plaintiffs state as a further reason for their suit that they are in cloubt as to their duty as executors of Allen G-alford in the premises., and are unwilling to further -execute their trust without the aid and support of a court of equity to direct and ratify their proceedings. They do not ask for a construction of the will or of any of the provisions thereof. Neither do they pray the authority of the court for the investment or disposition of any funds belonging to the infant defendant arising from the estate, under the will. The suit was not necessary for the settlement of the executorial accounts of the plaintiffs. Such settlement could have been made by a commissioner of accounts.
There are no facts averred from which it can be determined that the executors found the affairs of their testator so much involved that they could not safely administer the estate, except under the direction of a court of equity; and no special circumstances are' shown why injustice to themselves, or injury to the estate, would be suffered unless the interference and aid of the court should be allowed in their behalf. In no view, nor for any purpose stated therein, can the bill be sustained. It was therefore error to overrule appellants’.demurrer thereto.
For the reasons stated, the decree of the circuit court complained of, is reversed and held for naught; appellants’ demurrer to the bill sustained; and said bill dismissed, for want of equity jurisdiction.
Reversed.