142 Va. 218 | Va. | 1925
delivered the opinion of the court.
In 1907, Eustace Jeffries filed a bill in the Circuit Court of Fauquier county against his nephew and attorney, James P. Jeffries, charging him with many acts and transactions by which it is alleged he had fraudulently possessed himself of practically the entire estate of the complainant. It is charged specifically that James P. Jeffries had fraudulently and without consideration conveyed to his wife, Mary H. Jeffries, all the property of the complainant so fraudulently acquired and that his wife had notice of the fraud affecting her title. The prayer of the bill is that the various fraudulent transactions alleged, including the deed to Mary H. Jeffries, his wife, may be set aside as clouds on the complainant’s title, that the title to the land be decreed to be vested in the complainant, and
Upon the death of John A. C. Keith, executor, George Lanham Fletcher was appointed administrator de bonis non of Eustace Jeffries, deceased, and on April 16, 1915, the cause was revived in the name of George Latham Fletcher, administrator, as sole plaintiff, and Nannie S. P. Jeffries, who had intermarried with Louis Antonsanti, and James P. Jeffries, Jr., who had then ■obtained his majority, were ordered to be proceeded against by scire facias to show cause why the case should not be proceeded with against them as parties ■defendant. The case was removed from the Circuit Court of Fauquier county to the Circuit Court of Prince William county.
On April 7, 1919, Nannie S. P. Antonsanti and James P. Jeffries, Jr., made their appearance in the case by ■counsel, and on May 5, 1919, George Latham Fletcher, administrator de bonis non, as sole plaintiff, filed an ■ amended bill against Mary H. Jeffries, widow and in her own right and as administratrix of James P. Jeffries, Sr., deceased, and James P. Jeffries, Jr., Nannie S. P: Antonsanti and Louis Antonsanti, her husband, as only ■defendants. This amended bill recites the fact that Fustace Jeffries departed this life leaving a last will and testament which was duly probated, and that John A. C. Keith qualified thereunder as executor, and subsequently dying,' the complainant was appointed administrator de bonis non. The complainant does not • exhibit the will as a part of the bill, or otherwise.
The amended bill also states that while the Supreme Court of Appeals (Jeffries v. Jeffries, Ex’r, 123 Va. 156, 96 S. E. 197) reversed the lower court because Nannie S. P. Antonsanti and James P. Jeffries, Jr., had not been properly impleaded so that a decree might be •entered passing upon the merits of the ease so far as their interests under said deed are concerned, it gave the complainant the right to elect either to so amend the original bill of complainant as to put in issue the rights of the said children under the said deed, or to ■disclaim any purpose to question their rights there
The bill in the instant case was filed as an original bill by E. Marshall Jeffries and his children, Susie Jeffries Swetnam, Elizabeth Jeffries Smith, Sallie M. Jeffries, Mary Jeffries Cauthorn, Janet Jeffries Reynolds and John L. Jeffries, against Nannie Jeffries Antonsanti, James P. Jeffries, Jr., in their own right •and as sole heirs at law of James P. Jeffries and Mamie H. Jeffries, deceased, James P. Jeffries, Jr., administrator of Mamie H. Jeffries, deceased, James P. Jeffries, Jr., administrator of James P. Jeffries, deceased, George Latham Fletcher, administrator of Eustace Jeffries, deceased, R. A. McIntyre, in his own right -and as commissioner, Helen S. Leache, Mrs. F. W. Kelly, Josephine Chapman and twenty other persons named as defendants in the bill, who hare purchased portions of the Rhode Island tract of land.
The bill restates the allegation of. fraud contained in the bill filed by Eustace Jeffries against James P. Jeffries and Mamie H. Jeffries, his wife, one of the objects of which was to set aside a deed from James P. Jeffries to Mamie H. Jeffries, conreying to her the Rhode Island farm, containing 660 acres, except 200 .acres thereof, which he conveyed to her for life with .remainder to their two infant children.
The bill further alleges that some time after the in•stitution of that suit Eustace Jeffries departed this life, .leaving his last will and testament which was duly admitted to probate, a certified copy of which is filed as part of the bill in the instant case, from which it appears that Eustace Jeffries devised and bequeathed all of his • estate, including any and all recoveries in said suit, ••except certain specified legacies, to Mrs. F. W. Kelly
The bill further alleges that after the death of James P. Jeffries, Mamie H. Jeffries, on August 23, 1910,. entered into a contract with the defendant, Helen S.. Leaehe, for the sale to her of the Rhode Island farm at the price of $40.00 per acre, and thereafter joined with1 her daughter, Nannie Jeffries Antonsanti as plaintiff in a bill in the Circuit Court of Fauquier county against the defendant, James P. Jeffries, Jr., and John A. C. Keith, executor of Eustace Jeffries, deceased, and' James P. Jeffries, Jr., an infant, alleging consent of J. A. C. Keith, executor of Eustace Jeffries, deceased,. to the sale of the Rhode Island farm upon the condition that the proceeds thereof would be held subject to final' decree in the cause of Eustace Jeffries v. James P. Jeffries, and praying for a eomfirmation of the sale of the Rhode Island farm to Helen S. Leaehe; that the same was confirmed, but that the executor of Eustace Jeff-ries, deceased, had no power to bind complainants in any way, and that complainants are not bound by the decree confirming the said sale. The last mentioned ' cause is styled Antonsanti v. Jeffries and was also removed from the Circuit Court of Fauquier county to • the Circuit Court of Prince William county.
Complainants further aver that Helen S. Leaehe did not by her deed acquire the title to a one-half undivided ' interest in the Rhode Island farm, the equitable title ■ thereto being then and now vested in the complainants.
Complainants further aver that by order of the court in Antonsanti v. Jeffries the proceeds of the sale-
Complainants also aver that the twenty defendants named in the bill, who purchased parts of the Rhode Island tract and received deeds therefor, as well as their vendor, Helen S. Leache, are pendente lite. purchasers and had notice of all the equities, rights and interests-of the complainants in the Rhode Island tract, and are bound thereby; that George Latham Fletcher, administrator, had no authority to release the claims and interests of James P. Jeffries, Jr., and Nannie Jeffries Antonsanti in and to that part of the Rhode Island farm which James P. Jeffries attempted to convey to-them by the deed to his wife, Mamie H. Jeffries, and his two children; that all proceedings and decrees in the cases of Eustace Jeffries v. James P. Jeffries, purporting to have been taken and entered by consent of Eustace Jeffries’ executor and administrator, were without jurisdiction and void as to your complainants;, that complainants were and are now necessary parties-to the said cause of Jeffries v. Jeffries, now Eustace Jeffries’ Administrator v. Jeffries, but the said administrator, plaintiff therein, has failed and refused to take the necessary proceedings to make them parties to said suit, and they have had no opportunity to be heard in the protection of their interests therein.
Complainants pray, among other things, that their original bill be treated as in the nature of a cross-bill in the suit of Eustace Jeffries’ Adm’r v. James P. Jeffries’ and Mamie H. Jeffries’ administrators and Nannie Jeffries Antonsanti and James P. Jeffries, Jr.; that this cause be heard with said last mentioned cause and the said cause of Antonsanti v. Jeffries; that the depositions and documentary evidence in Jeffries’ Adm’r v. Jeffries, taken and filed on behalf of the plaintiff, be read and.
The defendants filed their demurrers to the bill, which were sustained and the bill dismissed, and that action is assigned as error.
The will of Eustace Jeffries directs his executor to prosecute the suit which he instituted against James P. Jeffries, and empowers him to sell any real estate coming to the testator from that suit and to invest the proceeds arising from the recovery therein and pay the issues and profits derived therefrom to E. Marshall Jeffries and James P. Jeffries for their natural lives, and at the death of each the interest so invested to pass in fee to the heirs at law of such deceased parent, except two certain legacies mentioned in the will.
The ground of demurrer mainly relied on is that the
It is settled law that a legatee of a decedent’s estate cannot maintain a suit against the personal representative and another who is a debtor to the estate, except under special circumstances. But there is no fixed and rigid rule by which to determine what constitutes such special circumstances. Beatty v. Downing, 96 Va. 451, 454, 31 S. E. 612; Conrad v. Fuller, 98 Va. 16, 34 S. E. 893.
“The circumstances usually relied on and which have been held sufficient to authorize such joinder are the insolvency of the personal representative; collusion between him and the debtor; the fact that the debtor was a partner of the decedent, or a trustee holding property for, or an agent of, the decedent.” Beatty v. Downing, supra, and cases cited.
The circumstances relied on in the instant ease to take it out of the general rule are, that all the parties defendant are necessary parties in a suit for the settlement of. the accounts of the personal representative and a distribution of the decedent’s estate, and the administrator has declined to make the plaintiffs parties; that the administrator is threatening devastavit by failure to prosecute the suit, which was instituted in the year 1907; that he has attempted to commit a devastavit by consenting to the sale of the land to Helen S. Leache, as the will did not authorize a sale in that manner; that he is attempting a devastavit through the original suit by releasing a substantial part of the sub
Under the will the executor named is not only vested with the usual powers of a personal representative, but also with certain other powers in the nature of a trust, whereby he, acting as trustee, is authorized to invest the estate of the testator and pay the issues and profits ■derived therefrom to E. Marshall Jeffries and James P. Jeffries during their lives; and at their death pay the amount invested to their heirs at law, with certain exceptions.
The facts and circumstances alleged in the bill were sufficient to entitle the appellants to bring this •suit, especially as all the parties thereto were necessary parties for the settlement of the accounts of the administrator and distribution of the estate; and for the ■further reason that a cestui que trust, who alleges that the trust estate is not being properly protected, may .always file a bill against the trustee and other parties interested and have the trust administered under the supervision and direction of the court.
The decree sustaining the demurrers will be reversed and the cause remanded with instructions to the lower court to permit the complainants to file their bill and have it treated in the nature of a cross-bill in the chancery cause formerly styled Eustace Jeffries v. James P. Jeffries and Mamie H. Jeffries, his wife, now styled George Latham Fletcher, Administrator of Eustace Jeffries, deceased, v. James P. Jeffrie's, Adm’r, and others.
Reversed and remanded.