Hill's Adm'r v. Hill, 79 Va. 592

Hill's Adm'r v. Hill

79 Va. 592 | Va. | 1884

Hinton, J.,

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Culpeper county, dismissing the bill of the appellant for multifariousness. This bill, which was filed by the plaintiff, Henry Hill, administrator of Henry Hill, deceased, on behalf of him*595self and others, heirs and legatees of Thomas Hill, deceased, recited that a large amount of property, real and personal, was left by Thomas Hill, deceased, by will to his children; that one of the devisees, Edward 13. Hill, qualified as his executor, and had settled no account since 1860, at which time he was largely indebted to the estate; that the devisees, living in different parts of the Union, had executed to the said E. B. Hill a power of attorney to sell and convey the several properties to which they were entitled, and to pay over the proceeds thereof to them according to their several and respective interests. It alleged that the said Hill, amongst other misappropriations of the trust funds, had conveyed a portion of the trust property to one Adonijah Shipe, to pay a debt which the broken firm of Hill, Burdett & Co., of which he was a member, owed to Shipe, Cloud & Co., and that the said Shipe had knowledge of and participated in the fraud. It prays that the deed to Shipe may be set aside; that Hill may be restrained from acting further under the power of attorney; that all proper accounts may be taken, among them an account of the transactions of Thomas Hill’s executor.

Upon the case thus made, we are of opinion that the demurrer, which was filed by the executor alone, should have been overruled. Ho doubt a bill will usually be held to be multifarious, because it contains different causes of suit against the same person, when the different grounds of suit are wholly distinct and independent of each- other, and each ground is sufficient as stated to sustain a bill. Story’s Eq. Plead. 271 C. But notwithstanding this is usually true, we cannot fail to recognize that “the cases,” on the subject of what constitutes multifariousness, “are,” as was said by Lord Cottenham, in Campbell v. Mackey, 1 Mylne & Craig, 603, “ extremely various, and the court in deciding them seems to have considered what was convenient in the particular circumstances, rather than to have attempted to lay down any absolute rule.” To the same effect are the observations of Staples, J., in Segar v. Parish, 20 Gratt. 679. ft would seem, therefore, that where the matters in controversy *596are not absolutely independent of each other, although distinct, and it will be more convenient to litigate and dispose of them in one suit, the objection on the ground of multifarious ness should not prevail. Nulton v. Isaacs, 30 Gratt. 738; Almond v. Wilson, 75 Va. 613; Kyne v. Moore, 1 Sim. & Stu. 61; Story’s Eq. Plead., §§ 534, 535, 536.

In the case in hand, the plaintiff was interested, through his father and mother, in the real and personal estate of Thomas Hill, deceased, which had gone into the control of Edward JB. Hill, in one or the other of his capacities. In order to ascertain the rights of the plaintiff in this estate, it was necessary that the accounts of Edward B. Hill, touching all of this property, should be settled; that the advancements made by Thomas Hill in his lifetime, and the payments by the executor, since the death of his testator, should be shown; and in order to ascertain the full amount of that estate, that the property, which was supposed to have been fraudulently conveyed away, should be brought back into the estate. Under these circumstances, as it does not appear that the executor and trustee could possibly have been prejudiced by such a course, it seems to us that the court ought not to have sustained-the demurrer. The decree of -the circuit court will be reversed, the demurrer to the bill overruled, and the cause remanded, with liberty to the defendants to ¡answer or plead to the bill, if so advised, and for further proceedings in order to final decree.

Decree reversed.