Fugate v. Moore

• Decision Date: 30 September 1890
• Citation: 11 S.E. 1063,86 Va. 1045
• Court: Virginia Supreme Court
• Parties: Fugate . v. Moore et al.

11 S.E. 1063

86 Va. 1045

Fugate .

v.Moore et al.

Supreme Court of Appeals of Virginia.

September term, 1890.

Foreign Executors—Jurisdiction—Assets.

The courts of Virginia have no jurisdiction to entertain a suit against a foreign executor who has not qualified here, for the distribution of assets collected in the foreign state, and not brought into this state.

Duncan & Sewell, for appellant.

Mr. Pridemore, for appellees.

Lewis, P. This was a suit in the circuit court of Lee county to recover a legacy under the will of M. B. Overton, deceased. The appellant here, the executor of the will, was defendant below. The testator at his death, in 1880, was domiciled in Tennessee, and there the will was proved, and the executor qualified. No administration upon the estate has ever been granted in Virginia. The legacy sued for is claimed under the second clause of the will, which is as follows: " (2) I give and bequeath to Martha J. Combs, daughter of Virginia A. Combs, deceased, five hundred dollars out of the G. B. Short debt, when collected and put at interest, including the amount due her in my hands from the estate of Virginia A. Combs, deceased; and, if the above Martha J. Combs should die leaving no heirs of her body, the said amount to be divided equally between my heirs." The bill alleges that the complainant, Moore, after the testator's death, intermarried with the said Martha, since deceased, and had issue by her, who survived her about three months, leaving the complainant its sole distributee; that both the complainant and the defendant reside in Lee county, in this state; that the Short debt " was coming" in that county; that the same has been "collected by the said executor;" and that the money remains undisbursed in his hands. The ob ject of the bill, therefore, as averred, is "to enforce said trust, and to compel the defendant to pay said legacy." There was a demurrer to the bill, on the ground— First, of want of jurisdiction, inasmuch as the bill shows on its face that the defendant has never been appointed or qualified as the personal representative of the testator in this state, but in Tennessee only, where the testator was domiciled; and secondly, because the complainant, not being the personal representative either of his deceased wife or of their deceased infant child, has no right to sue. The defendant also answered the bill, denying, among other things, that the Short debt was payable in this state, and averring that Short, the debtor, resided in Hancock county, in Tennessee, and that the debt has there been collected. Afterwards an amended bill was filed, in which it was charged that the Short debt was secured by a lien on certain real estate in Tennessee, which had been sold to enforce the lien; that at the sale the defendant purchased the land for a sum sufficient to pay the debt, and now owes the purchase-money. To this the defendant answered that he had not bought the land for himself, individually, but for the estate, and that he owed nothing on account thereof. He admitted, however, that the debt had been collected. He also demurred to the amended hill. Afterwards Reese D. Flanary, administrator of the deceased wife, and also of her deceased child, was by consent made a party plaintiff to the suit; and, when the cause came on to be heard, a decree was entered directing the legacy to be paid to him, which is the decree appealed from.

It does not appear from the record what disposition was made of the demurrers to the original and amended bills; but, as the decree adjudicates the principles of the cause, we must assume that they were overruled. Matthews v. Jenkins, 80 Va. 463.

A number of questions were discussed in the argument at the bar, of which one of the principal was whether the legacy is a vested or contingent one; but, in the view we take of the case, it will not be necessary to pass upon that question. We think the objection to the jurisdiction must be sustained, and therefore that the case must go off on that ground.

It is an established general...