Sillings v. Bumgardner

• Decision Date: 27 August 1852
• Citation: 50 Va. 273
• Court: Virginia Supreme Court
• Parties: SILLINGS & als. v. BUMGARDNER, guardian.

50 Va. 273

SILLINGS & als. v. BUMGARDNER, guardian.

Supreme Court of Appeals of Virginia.

August 27, 1852

(Absent Lee, J.)

1. A guardian is not authorized to file a bill in his own name to obtain possession of his ward's estate, but must file it in the name of the ward by his next friend.

2. In general one distributee cannot maintain a suit to recover his distributable share of the estate without making the other distributees parties.

3. A husband of one distributee who was also one of the personal representatives, and guardian of the other distributee, files a bill in his own name as guardian of the infant distributee against the other personal representative and the sureties charging that the personal representative was indebted to the estate and insolvent; and asking a decree against the sureties. There is a decree accordingly in the court below. Upon appeal the decree is reversed for want of proper parties; but the husband having an interest in right of his wife, the bill is not dismissed, but is sent back, that he may amend his bill and make proper parties.

In 1835 William A. Hanger died, leaving a widow Rebecca, and an infant son Robertson Hanger. At the May term of the County court of Augusta the widow, Rebecca Hanger, and Henry Imboden qualified as administratrix and administrator of William A Hanger, and executed a joint bond with John Sillings and two others as their sureties. In 1839 John Bumgardner married the widow Rebecca; and in the same year qualified as guardian of Robertson Hanger. In 1843 he instituted a suit in equity in the Circuit court of Augusta county, in which he, describing himself as guardian of Robertson Hanger, was the only plaintiff, and the administrator Imboden and the three sureties were the only defendants; and in his bill, after setting out the foregoing facts, stated that the administration accounts had been settled, in which there were considerable balances found against the said Rebecca and Imboden. That the widow had not been credited with her distributable share of the estate, and that Imboden was insolvent. And he asked a decree against the sureties for the amount found due from Imboden.

The sureties answered the bill; and several questions were made in the cause which were not decided by this court. The court below gave a decree in favor of the plaintiff against Imboden, and if the decree against him should prove unavailing, then over against the sureties. From this decree they applied to this court for an appeal, which was allowed.

G. N. Johnson, for the appellants.

Fultz, for the appellee.

OPINION

MONCURE, J.

Several very interesting questions were discussed in this case, which it will be unnecessary, if not improper, at this time to decide. Among other objections taken by the appellants' counsel to the decree of the Circuit court is that of want of proper parties; which we are of opinion is fatal. The suit was brought to recover of an administrator the distributable balance due by him. The only distributees were the widow and child of the decedent; and neither of them was a party. Both were necessary parties. In general one distributee cannot maintain a suit to recover his distributable share without making the other distributees parties. Story's Eq. Pl., § 89; Richardson's ex'or v. Hunt, 2 Munf. 148; Sheppard's ex'or v. Starke, 3 Id. 29. So that if this suit had been properly brought in the name of either of the distributees, it could not have been sustained without making the other a party. But it is properly brought in the name of neither; and a fortiori, it cannot be sustained. If the appellee intended to assert in the suit the claim of his wife as a distributee, he should have made her a coplaintiff with himself. If he intended to assert the claim of his ward as a distributee, the suit should have been in the name of the infant by his next friend, and not in the name...