45 Ky. 570 | Ky. Ct. App. | 1846
delivered the opinion, of the Court.
If the jurisdiction of the Chancellor in this case rested solely upon our statutes authorizing attachments in chancery, against the effects of non-resident debtors, we should even then be of opinion according to the case of Hefferman vs Forward, &c., decided at the present term, that as Monroe the primary debtor of Peterson, has been dead for many years, insolvent and without administration, his heirs may in equity, and fjor the purpose of effecting the remedy, be regarded as his- representatives, qualified to contest any' demand set up against him, and through whom .his personal estate, existing in the-form of choses in-action, maybe rendered subject to- bis- debts* The other alternatives are that the creditor shall involve himself in the difficulties and burthens of the admininistration, or that because- there is no administrator, he must lose his debts. The want of an administrator may be an insuperable obstacle to the legal remedy. But thq Chancellor having before him the-subject to be disposed
Poignard having under his agency for Monroe, become possessed of all of his estate, and having converted it, he may so far as the assets of the firm come to his hands, •be considered in equity as the trustee, not only of Monroe, but of Monroe & Peterson,'and afterwards of Peter?.
We are not sure but that Poignard might, in regard to some of the transactions presented in the record, be treated even at law as executor de son lort of Monroe. But waiving this view, which at any'rate might not cover the whole case, it would seem that having had as trustee the possession at Monroe’s death of his entire estate, either in its original or converted form, he dees in fact represent the whole, and might for want of a lawful administrator, be made liable in equity to any creditor, who bringing before the Courtall persons actually interested in the estate, should satisfactorily establish his demand against it.
But without pursuing these views further, we are satisfied, that an administrator of Monroe was not so essential a party to the present suit, as to authoiize its dismission even without prejudice, for want of such party, when it appeared that after the lapse of several years from his death no administration had been granted, and there was no probability that it ever would be applied for. The heirs of Monroe being presumably also his distributees, were necessary parties under all the views which have been taken, and the omission of any of them from the suit, would have been a defect which if not repaired, might have, authorized a dismissal without prejudice. But according to (he allegations made in the pleadings, the suit appears to have been perfect in this respect. The ex parte affidavit of Poignard filed at the last stage of the cause, intimating a belief or information that certain persons not made parties were heirs, and that others who were made parties had died, leaving heirs who had not been made parties, should if-noticed at all, have been the ground of a rule to make parties, and not of a dismissal for want of them. And if the Chancellor conceived that this was a case in which it was necessary to bring before the Court other creditors of Monroe, or Monroe & Peterson, besides those already in the cause, this opinion should also have been intimated and carried out by rule, before a dismissal of the bill should have been resorted to. The case had been strenuously litigated between the prin
The decree dismissing the bill without prejudice is, therefore, erroneous. And as the Chancellor has not acted upon the master’s report, and it would bean inconvenient practice, and one not entirely consistent with the duties of this Court, as a revising tribunal, to take up the numerous exceptions to this complicated report, before they had been acted upon by the Court of original jurisdiction, the cause is remanded with directions fhat it stand before the Chancellor upon the exceptions to the masters report, subject however, to such proceedings in-relation to the preparation of the case in respect of parties, as may be accordant with the rules of chancery practice, and consistent with this opinion.'
Decree reversed and cause remanded for new proceedings consistent with this opinion.