1 Shan. Cas. 178 | Tenn. | 1861
delivered tbe opinion of tbe court:
Tbe bill in tbis cause was dismissed upon demurrer. Tbe decree is supposed to be correct, by defendant’s counsel, on two grounds:
First, multifariousness. Jobn T. Wrigbt died intestate, October, 1857, and defendant, George D. Wrigbt, and one Mason, administered upon bis estate. He bad a pretty large estate, consisting of slaves and other personal prop
It is objected that the bill isi bad because it embraces the two- estates. So the chancellor thought. We think differently. This objection is not so much favored- now as ir was formerly in our practice. How can it be ascertained to what amount the complainants are entitled as the distributees of J ohn Wright, or what is the extent of his estate, without a settlement of the estate of John T. Wright? This last goes into and constitutes part of J ohn Wright’s estate. There is no complication or confusion produced by uniting the two. The defendant is liable for both. The case would seem to be embraced and allowed by sec. 4327 of the Code [Shannon’s Code, sec. 6137]: “The uniting in one bill of several matters of equity, distinct and unconnected, against one defendant, is not multifariousness.”
It is true that complainants are not distributees of John T. Wright, but only of John Wright. Yet the defendant is liable for both estates, and the amount to which complainants are entitled cannot be ascertained without an-account of both estates. It was necessary, therefore, to bring defendant, George D., before the court, both in his capacity of administrator of one estate and executor of the other. This would not be multifariousness, even without the aid of the Code.
Second. The bill was filed in seven months, after the qualification of the defendant as executor of John Wright. It is insisted that the executor has two years to settle up the estate, and cannot be sued by the distributees and legatees until after the expiration of that time. Code, secs. 2312, 2313, 2314 [Shannon’s Code, sees. 4048-4050]. We are
The same question came up on an exception as to the allowance of interest, and the executor was made liable before the expiration of two years. 7 Iredell Eq., 129.
There is no reason why the persons entitled to an estate should be delayed two years when it is known there are no debts. If this be doubtful, the court will see that no injury is done the executor by a premature decree against him, but will hold up the case or see that he is fully secured or indemnified.
• After two years, if. he fails to settle upon the notice prescribed in sec. 2297 [Shannon’s Code, sec. 4033], he is punishable for contempt in the county court, and by indictment in the circuit court. Sec. 2309 [Shannon’s Code, sec. 4045]. After this time; the Code, adopting the act of 1789 [Shannon’s Code; sec. 4047], compels him to pay over the surplus, and on failing to do. so, the legatees or distributees may sue under secs. 2312, 2313 [Shannon’s Code, secs. 4048, 4049]. But all this does not authorize him to refrain from settling and hold the estate for two years when there is no* necessity for it.
The persons entitled to the estate may proceed against him before the time, and compel him to settle and pay over, where they can show that there is no necessity for the delay,
The decree of the chancellor will be reversed and the cause remanded for answers and for such orders and decrees as may be necessary for the settlement of the two estates.