Hill's Adm'r v. Hill

• Citation: 79 Va. 592
• Court: Supreme Court of Virginia
• Decision Date: 28 November 1884
• Parties: HILL'S ADM'R v. HILL & ALS.

79 Va. 592

HILL'S ADM'R v. HILL & ALS.

Supreme Court of Appeals of Virginia.

November 28, 1884

Appeal from decree of circuit court of Culpeper county entered 8th June, 1881, in the chancery cause of Henry Hill, as administrator of Henry Hill, deceased, and in his own right against Edward B. Hill and wife in their own right, and said Edward B. Hill, as executor of Thomas Hill, deceased, and as trustee of the complainant, Henry Hill, and others.

Thomas Hill, grandfather of the complainant, and father of the defendant, E. B. Hill, died testate, in 1857, leaving his large real and personal estate to be equally divided between his children, John W., Edward B., Frances E., Ambrose Powell and Lucy R. Hill, after the payment of a specific legacy of $1,000, to his granddaughter, Sarah M. Simms. His son, Edward B. Hill, qualified as his executor. He settled his executorial accounts in 1860, showing a large balance in his hands due the estate. He made no settlement afterwards.

By power of attorney, dated 26th November, 1857, he was authorized by the other legatees to sell and convey the real estate, and to pay over the proceeds to those thereto entitled. He, it is charged, sold two farms and a number of lots before the war, part of the proceeds whereof were divided out. He also, as executor, collected a large amount of personal assets, for which he is much in arrear. And it is also charged that, by deed dated June 25th, 1875, under said power of attorney, he sold and conveyed to Adonijah Shipe, of the firm of Shipe, Cloud & Co., parts of the testator's real estate, wherein said devisees were interested, in consideration of a debt due said firm from the insolvent firm of Hill, Burdett & Co., whereof said E. B Hill was a member. The legatee, Frances E. Hill, married Henry Hill, and both died after 1857, leaving two children one of whom, Henry, qualified as his father's administrator, and is the complainant in this suit, which was instituted April 4th, 1881. The bill makes Edward B. Hill, Adonijah Shipe, and his firm, and all persons interested in the estate of Thomas Hill, deceased, parties, and asks for settlement of the accounts of Edward B. Hill, as executor of Thomas Hill, deceased, and as trustee of his co-devisees as aforesaid, and for annulment of his conveyance to Shipe, and for an injunction to his further acting as such trustee, and for general relief. A demurrer was filed to the bill on the ground of multifariousness, and was sustained, and the bill was dismissed. From such decree Henry Hill, administrator, & c., obtained an appeal to this court.

John F. Rixey, W. W. Henry, for the appellants.

J. G. & W. W. Field, for the appellees.

The bill of the plaintiff is clearly multifarious. E. B. Hill is sued in his character of executor of Thomas Hill, deceased and also in his character as trustee under the deed from Henry Hill and others of the 26th November, 1857. The third paragraph of the bill charges a devastavit by the said Hill as executor as aforesaid, and the prayer of the bill is for the settlement of his executorial accounts. The fourth paragraph of the bill charges a breach of trust on the part of said Hill, under the deed of the 26th November, 1857, and a fraud committed by him and Adonijah Shipe, and the prayer of the bill is to set aside the deed of Hill, trustee, to said Shipe, and to restrain and enjoin the said Hill from exercising any further power under the said deed of trust.

Here there are two distinct grounds for equitable relief having no connection whatever with each other, and both entirely sufficient to sustain the equity jurisdiction. Not only are distinct matters having no connection with each other, sought to be litigated in the bill, but parties are made defendants who have no interest whatever in some of the matters litigated, so that on every ground the bill was multifarious.

The demurrer was properly sustained and the bill dismissed. See 1 vol. Barton's Ch'y Practice, pages 254-7; Dunn v. Dunn, 26 Gratt. 291; Huff v. Thrash, 75 Va. 546, and the authorities cited.

The plaintiff, having united in the bill distinct causes of action, and having united defendants not at all interested in each of the causes, had no right to elect at the hearing...