Harper v. Whitehead

33 Ga. 138 | Ga. | 1862

By the Court. —

Lyon, J., delivering the opinion.

The motion to dismiss the bill was properly overruled :

1. Trustees of the married daughters of testatrix could not have been made parties complainants, because no such persons were in existence, nor was it necessary that there should be such persons at that time. The main objects of the bill were to compel an execution of the will, or rather an administration of the estate of testatrix under the will, to take the direction of the Court in respect to a compromise that had been proposed and agreed to by complainants for the security and protection of all the parties, and then to have a distribution of the balance of the estate among the legatees according to the provisions of the will; until this point was reached there was no necessity for trustees, then it would be, so that they might receive and hold, according to the will, the shares of the single, as well as married daughters, and to this the Court would unquestionably look at the proper time.

2. Nor was it necessary that the married daughters of testatrix should have been parties complainants by prochein ami. In equity a. feme covert being entitled to property separate and distinct from her husband, may sue in her own name, and in that case a person, or prochein ami, is required to be joined with her, only that he may be' responsible for the costs of the proceedings in case it should appear that the suit is improperly instituted or conducted. Dan. Ch. Pr., 86. In this case there is no pretence that the joining of a prochein ami is necessary for that purpose or any other. Indeed, the defendants were amply protected as to costs, etc.

3. That the bill is filed by the femes covert in their own names, as complainants, is sufficient evidence that they assented to its being filed.

4. We do not think that the husbands of the married ladies, complainants, need to have been parties defendants. No decree was asked against them, and all their interest was with that qf their wives, and hence they were properly made parties complainants.

5. The affidavit, attached to the bill for the purpose of obtaining from the Chancellor the writ of injunction, that “ the facts set forth in the bill, as far as they relate to his act and deed, are true, and so far as they relate to the act and deed of others, he believes them to be true,” was sufficient for the purposes for which it was made.

6. The sixth ground of the motion to dismiss the bill, that it “ seeks to enforce the performance of a contract,made by parties having no right to bind the estate of Mrs. Harper, the testatrix,” is not well taken. It is true that the parties complainants who had agreed to the compromise or settlement of the claims of the plaintiffs in executions against the property of testatrix by the payment of $6,000 00 out the trust estate, had no right to bind this estate at law, nor do they so claim, but they present the facts to the Court, and assert that an execution of this agreement will be beneficial to that estate in which they are so directly and immediately interested, and ask the Court to decree its performance as a just and equitable arrangement, and for this purpose we think the bill was well brought.

7. That the answer denies the equity of the bill is no ground for dismissing the bill itself.

8. The insolvency of the executor, James Harper, is the least of the equities of the bill, and that a remedy exists at law for the protection of the complainants in that respect, is no reason for dismissing a bill that otherwise contains sufficient equities to give the Court jurisdiction independently of that ground.

The ¡ninth ground of the motion is sufficiently noticed in the reply to the first, and we cannot agree with counsel as to-the tenth, because we think the bill does show that the complainants are the legatees under the will of the testatrix.

Let the judgment be affirmed.

Mr. Justice Jenkins did not preside in this case.