1 S.C. 91 | S.C. | 1869
The opinion of the Court was delivered by
This is a creditors’ bill against the executors • of a sole executrix upon specialty and simple contract debts of the first testator, alleging a devastavit by the executrix and insufficiency of assets of the first testator’s estate to pay his debts; also alleging assets of the first estate, as well as of the executrix’s estate, in the hands of the executors, defendants to the bill, and charging the executors of the executrix with waste of assets, insolvency, and an intent to leave the State. The bill further alleges, specially, the fraudulent conveyance, by the executrix, of a portion of the real estate of the testator to the appellant, a party defendant. It also alleges that the executrix, by her last will, assumed to bequeath to her children, parties defendant, part of the estate of her testator remaining as assets in her hands. The bill seeks; in behalf of the complainants and other creditors coming in, an account of the assets of the estates of the first testator and of the executrix, protection of the assets, by means of security on the part of the executors, or the appointment of a receiver, marshalling of assets, and payment of the debts of the first testator.
The appellant, Holmes, demurred to the bill on the grounds: First, That the bill is multifarious. Second, That the complainants have not recovered judgments on their demands at law; and, Third, That certain of the complainants have not sufficiently set forth a-title to put the defendants to their answer.
The Chancellor overruled the demurrer, and the defendant, Holmes, appealed therefrom, alleging the following grounds: First, Because the bill is multifarious. Second, Because complainants have npt pursued their remedies at law, and have not prosecuted their claims to judgment and execution.
The relief sought against the appellant is clearly within the scope of the general objects of the bill. The bill charges that he has fraudulently mixed himself up with the testator’s estate, so that a complete account cannot be taken without making him a
The second ground of appeal assumes the erroneous proposition that only a judgment creditor who has exhausted his remedies at law can seek the protection and application of assets in the hands of an executor, through the medium of a bill in Equity. — Eno vs. Colder, 14 Rich. Eq., 154). Inter vivos that rule is applicable, for the reason that the estate of the living debtor does not become assets for the payment of his debts until the exhaustion of the legal remedies is complete. The estate of a deceased debtor, or so much thereof as may be requisite for the payment of his debts, becomes assets from his decease. The primary mode of making them available is by an action at law, and recourse cannot be had to a creditors’ bill where there is an adequate legal remedy. — Eno vs. Calder, supra., Wattington vs. Hawley, 1 Eq. Rep., 167. But where there is a devastavit, or threatened waste and insolvency of the estate, and want of responsibility of the executors, as in the present case, unquestioned ground exists for the interference of equity.— Middleton vs. Dodswell, 13 Ves., 266; 1 Story’s Eq., Sections 533 and 543. The grounds of appeal are insufficient, and the appeal must be dismissed.
It is adjudged and decreed, that the appeal of the defendant, Holmes, be dismissed, and the decree of the Chancellor, overruling the demurrer to the bill of complaint, affirmed.
