| W. Va. | Jan 15, 1869
The children and heirs of Jacob Snider (except Allan J. Snider and Elizabeth Taylor who are excluded) mentioned in his will, and also in the deed from him to the defendant William D. Snider are entitled to the residuum of the proceeds of the sale of the real estate so conveyed by the former to the latter, whether they take under the will or the deed. They were therefore directly interested in the subject matter of this suit and should have been made parties, to enable them to contest the right of the
It was plainly erroneous, therefore, to proceed to decree in the cause without bringing them before the court. 3 Mun., 29; 1 Ran., 73; 4 Ran., 451, and Story’s Equity Pleadings, pages 87, 88, sections 75, 76a and 76b. And it having been suggested in the answer of William D. Snider that George W. Fairfax was a judgment creditor of the testator Jacob Snider, having a lien on said real estate, I think he should have been made a party also.
The final decree, it seems to me, is in several material respects erroneous on its face. First, after reciting that there is due to the complainant Brown the sum of 136 dollars and 60 cents, and to the complainant Catherine Snider the sum of 409 dollars and 80 cents, being the residue of the legacy bequeathed to her by the will of Jacob Snider, including interest, and also to sundry creditors the aggregate sum of 445 dollars and 18 cents, as shown by the master’s report, making a total of 991 dollars and 58 cents, it is decreed that the complainants and creditors recover the sums respectively due to them without saying against whom the recovery is had, whether against the administrators or William D. Snider or against all of them jointly. This, it appears to me, was improper, as the decree especially in favor of the creditors (if they were entitled to any) could only be against the administrators to be levied de bonis testatoris. And, moreover, it is clear, that those of the creditors who had already recovered judgments against Jacob Snider in his life time, or against his administrator since his death were not entitled to any further recovery. But as, in fact, none of the creditors were parties to the suit, it was, I think, erroneous to render a decree in favor of any of them for their debts ag'fiinst the estate.
Again, the decree further provides that unless the sums so found due to the complainants and creditors, amounting together to the sum of 991 dollars and 58 cents, be paid within 30 days from the date of the decree that the said tract of land be sold; when it plainly appeared both from
The defendant William D. Snider claims in his answer that he had fully paid the purchase money to Jacob Snider in his life time, and files sundry bonds which he alleges were executed by him for the same and paid off and lifted. This needs explanation, these bonds do not correspond in date, the time of payment, nor the. terms of his contract as set out in the deed under which he claims the land, and no testimony was offered by him to prove the execution of the bonds or explain this striking discrepancy.
The decree must be reversed with costs to the appellant here and the cause remanded to the circuit court for further proceedings there to be had in accordance with the principles herein declared.
Decree reversed.