Catron v. Bostic

• Decision Date: 19 September 1918
• Citation: 96 S.E. 845
• Parties: CATRON. v. BOSTIC et al. HORTON . v. SAME.
• Court: Virginia Supreme Court

96 S.E. 845

CATRON.

v.BOSTIC et al.

HORTON .

v.SAME.

Supreme Court of Appeals of Virginia.

Sept. 19, 1918.

Sims, J., dissenting.

Appeal from Circuit Court, Wise County.

Suit by D. H. Bostic against Nelson P. Horton, J. H. Catron, and others. From the decree rendered, J. H. Catron and Nelson P. Horton separately appeal. Reversed.

Irvine & Stuart, of Big Stone Gap, and Morison, Morison & Robertson, of Bristol, for appellants.

Bullitt & Chalkley and W. S. Mathews, all of Big Stone Gap, for appellees.

BURKS, J. These are separate appeals from the same decree of the circuit court of Wise county, in a suit in chancery instituted by D. H. Bostic against Nelson P. Horton and others.

In March, 1914, W. H. Horton died intestate, leaving surviving him his widow, S. A. Horton, and several brothers and sisters as his only heirs at law. Shortly thereafter D. H. Bostic qualified as his administrator. At the time of his death, Horton owned some real estate, but practically no personal estate, and was considerably indebted. The whole personal estate charged to the administrator consisted of "books in possession of administrator per appraisement $25.00." His debts reported in this cause amounted to $5,079.96. During his lifetime he and his wife were partners in a mercantile business under the style of S. A. Horton & Co. At the time of his death, the partnership owed debts amounting to about $3,700, and owned assets amounting to about $1,750. In June, 1914, D. H. Bostic, who held a claim against W. H. Horton amounting to $26 and a claim against the firm of S. A. Horton & Co. amounting to $16.80, filed the bill in the cause which led to the decree from which these appeals were taken.

The bill in this case is so inartificially drawn, and is such a departure from well-recognized forms of procedure, that we have had great difficulty in determining its exact nature. Is it (1) a bill filed by the complainant as administrator of W. H. Horton, or (2) a bill filed by a creditor of a decedent's estate, suing on his own behalf only, or (3) a general creditors' bill? The distinction between the last two mentioned is immaterial, as an account of debts was ordered and taken in the case, and it became a creditor's bill upon the entry of the order, and the complainant then lost his dominion over the suit, even if it was his individual suit before that time. Piedmont, etc., Life Ins. Co. v. Maury, 75 Va. 508.

Some of the statements of the bill indicate that the complainant thought he was suing as administrator of W. H. Horton; for example, in the prayer, for relief is the prayer that "your orator's accounts as administrator of the said W. H. Horton, deceased, " may be taken, stated, and settled before a commissioner of the court, and yet "your orator" is D. H. Bostic, and neither as complainant nor defendant is he made a party as administrator of W. H. Horton. In speaking of certain partnership assets of the firm of S. A. Horton & Co., the bill charges that many of the "accounts are practically worthless and it wil be impossible for your orator to collect (italics supplied) more than 10 or 15 per cent. of them." Other allegations of the bill are to the same effect, and apparently the case proceeded in the trial court on this theory. The bill charged that the personal estate was insufficient to pay the decedent's debts, and, after setting out the real estate of which intestate died seised and possessed, prayed for a sale thereof or so much thereof as might be necessary to pay the debts. Not only so, but "he asks that he be allowed to make either private or public sale of the same as in his judgment is most advantageous to the estate of dis decedent, and will best conserve the interests of his widow, the said S. A. Horton, and his creditors." (Italics supplied.) No such bill could be maintained by the administrator of W. H. Horton. The administrator has nothing to do with the land, except to collect the rents accrued during the lifetime of the decedent, and he has no capacity to bring a suit to sell it. His concern is solely with the personal estate which it is his duty to administer. If that is not sufficient to pay the debts of the intestate, it is no concern of his administrator. The creditors have their remedy against the heirs to subject the real estate which is made assets for the payment of their debts by section 2065 of the Code, but the administrator has no such right. The real assets are not subject to be administered at the suit of the administrator of an intestate, in the absence of a statute conferring such right. In this state, the right to subject the real assets is expressly given to the creditor. It is not extended to the administrator of the intestate. Code, § 2668. Hence the bill cannot be maintained by the administrator. Brewis v. Lawson, 76 Va. 41; Litterall v. Jackson, 80 Va. 604; Peirce v. Jackson, 85 Va. 227, 235, 7 S. E. 189. Furthermore, if the bill be regarded as a bill by the administrator of W. H. Horton, it is without equity to support it, and whenever it is brought to the attention of a court of equity, or it discovers that a bill does not state a case proper for relief in equity, it will dismiss it, though no objection was taken to the jurisdiction by the defendant in his pleadings. The want of equity is the want of jurisdiction in such case, and though the defendant took no notice of the defect but defended on the merits, and the case was heard and decided on the merits, this court will reverse and dismiss where there is such lack of jurisdiction. Morgan v. Carson, 7 Leigh (34 Va.) 238; Hudson v. Kline, 9 Grat. 379, 386. There are other objections to the bill, treated as a bill by the administrator; but we have stated sufficient.

If the bill be regarded as a bill filed by Bostic, in his individual capacity and as a creditor of W. H. Horton, it is also subject to serious objection. If a bill be filed by a general creditor of a decedent for the purpose of subjecting his real as well as his personal estate, not only are the heirs necessary parties defendants, but the personal representative also. Johnston v. Pearson, 121 Va. —, 93 S. E. 640. In the case at bar, the complainant was the personal representative of W. H. Horton; but he is notbrought before the court in that capacity. The widow of Horton was entitled to dower in his real estate, and she and W. H. Horton constituted the firm of S. A. Horton & Co., whose assets were sought to be subjected in the suit. She was therefore a necessary party as such surviving partner, and also in her individual capacity, as the bill asked for a sale of the land of which she was to be endowed. The decree complained of states that:

"S. A. Horton is a proper party to this suit; she is a party thereto and has been duly served with process."

There is every presumption that this statement of the decree is correct, but we have been unable to verify it from the record before us. The complainant attempted to make all creditors of W. H. Horton and of the firm of S. A. Horton & Co. parties defendant, but several of them were not served with process. This was immaterial, as such creditors were not necessary parties. The children of M. D. Horton, who was a brother of W. H. Horton, were entitled to a share in the latter's estate. Their names were given at or near the commencement of the bill, and they are asked to be made defendants in the prayer, and that a guardian ad litem be appointed for them in the following language:

"* * * And the following children of M. D. Horton, all of whom are infants under the age of twenty-one years, and for whom a guardian and litem is prayed to be appointed."

But no names are given, no process was served on them, no guardian ad litem appointed, and no answer filed by or for them. This was manifest error, and their interests are unaffected by any proceedings in the cause. Turner v. Barraud, 102 Va. 324, 46 S. E. 318. The bill nowhere directly alleges that W. H. Horton, or any one else, is indebted to the complainant, or that he is seeking to enforce a liability of any kind against any one; but on examination we find in the lists of creditors filed and also enumerated in the bill that the complainant, or some one of the same name, holds a claim against the estate of W. H. Horton amounting to $26, and a claim against S. A. Horton & Co. amounting to $16.80. There is nothing in the bill, or in the evidence, save this identity of names, to show that the complainant in his individual capacity has or is asserting any demand against the estate of W. H. Horton or the firm of S. A. Horton & Co.; nor is there any prayer in the bill that these or any other debts be paid out of any particular assets, or that they be paid at all, unless the prayer for general relief be sufficient for that purpose.

There was no appearance for any of the defendants, except Nelson Horton, who demurred to the bill, and also answered denying many of its material allegations. The demurrer was in writing, but did not state the grounds thereof. Appellees insist that it is of no value because the grounds were not stated. In this they are in error. Grounds of demurrer need not be stated unless required by some "party thereto" or by the court. In this case they were not called for. Code, § 3271.

Notwithstanding these defects, the trial court proceeded with the case without any objection on the part of any one, except the demurrer aforesaid. The case was referred to a master to take, state, and settle the accounts of D. H. Bostic as the administrator of W. H. Horton, deceased, to ascertain and report the debts against the estate of the said W. H. Horton and S. A. Horton & Co., to ascertain and report what real estate W. H. Horton died possessed of, and where located, what real estate is owned by S. A. Horton & Co. liable to the debts of said S. A. Horton & Co., and any other matter deemed pertinent by the master, or required by any of the parties. While the case was pending before the master, there...