67 W. Va. 373 | W. Va. | 1910
S. Lewis Price and others filed their bill in the circuit court of Greenbrier county, against Thomas K. Laing, administrator with the will annexed of the estate of James Laing, deceased, to recover a minimum royalty or rental accruing to them under a lease of coal lands, made to the said James Laing in his life time and dated Jan. 10, 1906. The amounts claimed are $750.00, with interest from Jan. 1, 1908, $1,000.00, with interest from • April 1, 1908, and $1,000.00 with interest from July 1, 1908. Liability to rentals to accrue in the future
It is earnestly insisted, upon the authority of Poling v. Huffman, 39 W. Va. 320, and Hale v. White, 47 W. Va. 700, that the failure of 'an administrator to file an inventory, render an account of sales or make the settlements required by law, or any other omission of duty on his pait, gives a creditor a right to sue him in equity, on the theory of a trust, disregarded or abused, for satisfaction of his debt out of the personal estate. The first of said cases was brought by a creditor, within six months from the date of the appointment of the administrator, and the question for actual decision was, whether the right of the administrator, given by statute, to institute a suit to subject the real estate of his decedent to the payment of his debts, in.the event of a deficiency of personal estate to pay them, is exclusive during that period of six months. In discussing that question, Judge DeNT undertook to 'state briefly the ancient remedies of a creditor of a decedent’s estate. In this connection, he said such a creditor might maintain a separate bill in chancery to compel payment of his individual debt out of the funds in the hands of the personal representative; a bill on behalf of himself and other creditors to ascertain and distribute both the real and personal estate; or a bill of discovery against the personal or real representatives of the estate, to discover the assets liable to the payment of his debts. For the first proposition, he cited no Virginia or West Virginia authority. For the last one, he cited Virginia decisions. None of this was matter of actual decision, except the second proposition above stated. That is settled doctrine, for which no authority need be cited. The real estate can be proceeded against only in equity. In Hale v. White, the effort was to charge the administrator by a bill in equity in respect to personal property only. There, Judge DeNT had occasion to review and accurately define what he meant
It is suggested in the opinion in that case, that failure to return an inventory may confer such jurisdiction on the ground of discovery, but this is necessarily an obiter dictum, as such failure of duty was not disclosed by the bill. To lack of necessity for decision of such a question, we may attribute the indefiniteness of the terms in which the suggestion is couched. It is not tested by, nor analyzed in the light of, the rules, applicable to bills for discovery and relief, and there is added the signfieant qualification, “and the creditor is thus prevented from knowing the true condition of the estate.” Taken all together, we think the opinion, as well as the syllabus, declares the bill must make out a case for discovery as ground for relief, or set up some other equity. Lack of an inventory does not necessarily deprive the creditor of information, enabling him to determine whether there are sufficient assets in the hands of the personal representative to satisfy his debt. He may know all about the condition of the estate, notwithstanding such omission of duty, or enough to make certain his ability to obtain satisfaction of his debt by pursuit of the legal remedies, and that is all the interest he has in the estate. Such knowledge suffices his purposes and demands fully. The exact condition of the estate is a matter of no importance to him, if he has sufficient knowledge to enable him to collect his debt, that being the full extent of his interest in the estate. Moreover, if it were, he may be abundantly able to prove the exact condition of the estate by competent witnesses, other than the defendant. A bill for discovery and relief must show indispensability of the information sought from the defendant and inability to obtain it otherwise than by discovery. Prewett v. Bank, 66 W. Va. 184 (66 S. E. 231); Dudley v. Niswander & Co., 65 W. Va. 461; Thompson v. Whittaker Iron Works, 41 W. Va. 574.
Perceiving no error in the decree appealed from, we affirm it.
Affirmed.