Rexroad v. McQuain et al

• Decision Date: 19 April 1884
• Citation: 24 W.Va. 32
• Parties: Rexroad v. McQuain et al
• Court: West Virginia Supreme Court

24 W.Va. 32

Rexroad

v.McQuain et al

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1883

Decided April 19, 1884.

1. It is a cardinal rule in equity that all persons materially interested either legally or beneficially in the subject-matter of the suit, must be made parties to the suit. (p. 35.)

2. In a suit in equity brought by one legatee against the administrator of the testator to have his legacy paid, when the fund out of which it is to be paid is not definitely ascertained, all the legatees haying an interest in such fund must be made parties to such suit. (p. 35.)

The opinion of the Court contains a statement of the facts of the case.

George A. Blakemorc for appellant.

W. H. H. Flick for appellee.

Snyder, Judge:

Suit in equity brought August, 1871, by Solomon Rexroad against George McQuain in the circuit court of Pendleton county to recover the proceeds of certain personal property. The plaintiff avers in his bill that his father, Jacob Rexroad, died testate in 1861, possesed of considerable personal property; that by his will he bequeathed to him, the plaintiff, all his live stock, his household and kitchen furniture, farming implements, mill irons and two slaves; that the estate with the will annexed was committed to the defendant for administration, on October 3, 1861, by an order of the county court of said county then acting under the seceded State government of Virginia, at Richmond, the defendant being the sheriff of said county under said seceded government; that as such administrator the defendant took possession of said estate, had the property appraised and sold, but has never made any settlement of his transactions as such administrator or accounted to the plaintiff for any part of said property or its proceeds. He prays that the defendant may be required to settle his transactions upon said estate so far as they affect the property bequeathed to the plaintiff before a commissioner and that he may recover any balance due him and have general relief.

Johnson Siteswason his own petition subsequently made a party defendant to the cause and filed his answer, in which he states that in 1867, he was sheriff of Pendleton county, and that by an order of the county court the estate with the will annexed of said Jacob Rexroad, deceased, was committed to him as such sheriff for administration, but no estate has ever come into his hands and he has done nothing; as such administrator.

In April, 1872, the defendant, McQuain, filed his answer in which he admits the material allegations of the hill, but. denies that the plaintiff is, under the will of his father, entitled to all the personal property of the testator or the proceeds. He says said property was sold to pay the debts of the estate and denies that the plaintiff is entitled to recover anything from him on account of said property.

The cause was referred to a commissioner to settle the respective administration accounts of the defendants McQuain and Sites upon said estate. After several recommittals, the commissioner filed his final report, dated August 9, 1877, in which he finds a balance of three hundred and eighty-eight dollars and fifty-eight cents due from defendant McQain, to the plaintiff on account of the proceeds of the property bequeathed to the plaintiff and seventy-two dollars due from said defendant on account of the other property which came to his hands.

McQuain excepted to this report, but in the viewT this Court takes of the case it is unnecessary to state his exceptions.

The court, on April 28, 1880, after deducting the interest for1 the period of the war from the amount found by the commissioner in favor of the plaintiff against McQuain, overruled the exceptions, confirmed the report, except as to said interest, and gave a decree for three hundred ind fiftyone dollars and twenty-two cents with interest a I costs in favor of the plaintiff against the defendant McQuain, but made no order whatever in reference to the seventy-two dollars mentioned in the commissioner's report. From this decree McQuain appealed.

It appears from the will of the testator, exhibited in this cause, that he had live children all of whom are devisees or legatees by the will. The testator disposes of all his lands and the greater part of his personal property specifically, but a part of his personal property and the debts due him, if any, he makes no specific disposition of and this part of his estate would necessarily pass in equal portions to all of his children subject to the payment of his debts. All the said children were, therefore, necessary parties to this suit. It is true that the testator declares in his will that all his heirs shall pay an equal part of his just debts, but this does not release the administrator Of the estate from liability to the creditors to the extent that assets came into his hands. The creditors have a right to look to the administrator notwithstanding the charge to which the testator has subjected the property willed to his children.

The evidence shows that the testator was considerably indebted at the time of his death and nothing appears to show that this indebtedness had been discharged. From the great length of time that has elapsed, it...