39 N.C. 175 | N.C. | 1845
The bill is filed for the purpose of obtaining from the Court directions to the plaintiff, how to distribute property in his hands, which he holds as representing Alexander Moore, deceased. Alexander Moore, by his will, gave to his wife, Elizabeth Moore, considerable property, both real and personal, during her life, and, at her death, to be disposed of as she might think proper, among her children. Elizabeth Moore, by her will, gave a certain portion of the property, so devised to her, to the children of her deceased son, James Moore, naming them. The plaintiff is the administrator with the will annexed of Alexander Moore, and he may be the executor of Elizabeth Moore, though it is not stated in the bill nor is her will exhibited. The bill then states, that, after selling a large portion of the personal property, preparatory to dividing it among those who were entitled, he was "by some of the legatees ordered to pay over none of the legacies or bequests, etc."; "that some of the negroes are claimed by Margaret Moore, relict and widow of James Moore, deceased, who is the guardian of the children of A. Moore, deceased. The other children claim that the negroes shall be sold and divided among the other children of Alexander Moore"; "that James Moore and William Moore, sons of A. Moore, died after the making of the will and before the testator. William left five children; and (176) John Moore died many years before, leaving" — with a space, to insert, as we presume, the names of his children, but setting out none. The bill then proceeds: "Robinson Moore is still living, Alexander is still living, John Rhinehardt married Ann, Michael married Polly, since dead; William Scott married Rosanna, both dead; they left issue William Scott, who died without issue; Alexander Rankin married Elizabeth, still living" — not stating the period when any of the foregoing died. The bill then prays, that "the proper parties may be made defendants, and if there are others than those set forth, they may be made parties, etc." — "that the clerk may be ordered to issue his State's writ of subpoena to the proper defendants, etc." Answers were filed by several persons, and replication taken, and the cause set for hearing. We much regret it is not in our power to grant to the plaintiff the relief he seeks. The bill, no doubt from haste, is so inartificially drawn, that we can not give him the instructions required. It is a general rule in equity, that all *136 the persons, however numerous they may be, who are interested in the subject of a suit, must be made parties, either plaintiffs or defendants, if known; and like a declaration at common law, the circumstances constituting the case must be set forth in the bill at large. Mr. Cooper, in his Equity Pleading, page 9, states, that the second part of the bill sets forth the names of the parties. In order to obtain the answer upon oath, the bill must pray, that the writ of subpoena issue to the defendant; and, although persons may be named in the bill, none are parties to it, against whom process is not prayed. Coop. Eq. Plead., 16; 1 P. Wil., 593; 2 Dick., 707. A defendant (177) is as necessary to the just and proper construction of a bill in equity as a plaintiff. In the case we are now considering, there is no defendant whatever — process is prayed against no one. The prayer is, "that the clerk be ordered to issue subpoenas to the proper defendants, etc." But who are they? No name or names are given. How is he to find them out? Is it to be left to his discretion to say, who ought to be made defendants? This, in fact, is what the plaintiff does ask. It is not, as before remarked, sufficient that the names of individuals are contained in the bill. Process is not asked against them, nor against any one in particular. There is, then, no partydefendant to the bill. But the bill is liable to other objections, equally fatal. It is, among other things, stated, that John Moore died before the testator, leaving children, and a blank is left in the bill, after the word "leaving," apparently for inserting the names of his children, and perhaps of his representatives, if he had any. It is not stated whether there is a representative or not. The bill does not state who are the children of Alexander Moore. The names of certain persons are mentioned, but whether they are such children, we are left to conjecture. Some of those, so mentioned, are said to be dead, but when they died we are not informed. It would be impossible for the Court, upon this executor's bill, to know to whom to decree the money.
The Court has gone very far, in sustaining bills defectively drawn — but we think this so essentially wanting in one of the points, necessary to the institution of a suit in any court, that we can not sustain it.
PER CURIAM. BILL DISMISSED.
Cited: Potter v. Everett,
