Veach v. Rice

• Decision Date: 13 May 1889
• Citation: 9 S.Ct. 730,33 L.Ed. 163,131 U.S. 293
• Parties: VEACH et al. v. RICE et al
• Court: U.S. Supreme Court

131 U.S. 293

9 S.Ct. 730

33 L.Ed. 163

VEACH et al. v. RICE et al.

May 13, 1889.

James L. Rice and his wife, Ada S. Rice, citizens of the state of Tennessee, filed their bill of complaint, July 12, 1881, in the circuit court of the United States for the Northern district of Georgia, against Frank P. Gray and his wife, Cora M., and also against said Gray, as administrator of the estate of Lewis Tumlin, deceased, and also as guardian of the said Cora M., Napoleon B. Tumlin, George H. Tumlin, Lula T. Lyon, John S. Leake, John W. Gray, William T. Wofford, A. P. Wofford, Edwin M. Price, John G. B. Erwin, Henry C. Erwin, Jame M. Veach, Robert L. Rogers, W. I. Benham, John J. Howard, A. W. Mitchell, Mary L. Spencer, Francis M. Ford, Noah King, Thomas W. Leake, Henry C. Ramsauer, administrator, and others, all citizens of the state of Georgia, alleging that on the 2d day of June, 1875, one Lewis Tumlin, of the county of Bartow, Ga., died intestate, leaving as his heirs at law his wife, Mary L. Tumlin, now Mary L. Spencer; his sons, Napoleon B. Tumlin and George H. Tumlin; his daughters, the said Ada S. Rice, formerly Ada S. Tumlin, Lula T. Lyon, formerly Lula T. Tumlin, Cora M. Gray, formerly Cora M. Tumlin; and one Lewis T. Erwin, the son of a deceased daughter, who has sold and conveyed his interest in said estate to John S. Leake,—each of whom upon his death was entitled to one-seventh part of his estate, his wife having elected to take a child's part in lieu of dower; that the estate was of the aggregate value of about $300,000; that Frank P. Gray and Napoleon B. Tumlin obtained temporary letters of administration on said estate on the 11th day of June, 1875, giving bond in the sum of $200,000, with Abda Johnson, William

T. Wofford, John W. Gray, James M. Veach, and Edwin M. Price as sureties; that on the 2d day of August, 1875, said Frank P. Gray and one John A. Erwin obtained permanent letters of administration on said estate, and gave bond as such in the sum of $600,000, with Abda Johnson, William T. Wofford, John W. Gray, James M. Veach, Edwin M. Price, Noah King, A. C. Trimble, Joel H. Dyer, William W. Rich, James C. Wofford, Nelson Gilreath, J. J. Howard, Robert L. Regers, William I. Benham, John S. Leake, A. W. Mitchell, J. G. B. Erwin, Henry C. Erwin, and Lewis R. Ramsauer, intestate of Henry C. Ramsauer, and one Thomas Stakley and one Thomas Tumlin, as sureties; that John A. Erwin had since that time removed from the state of Georgia to the state of Tennessee, and the said Thomas Tumlin had removed to Alabama; that Stakley had died intestate, and no letters of administration had been granted on his estate until within less than 12 months before the filing of this bill; that said Abda Johnson died July 10, 1881, and his estate is now unrepresented and for these reasons said Erwin, Tumlin, Stakley, and Johnson are not made parties; that said Lewis R. Ramsauer died intestate, and Henry C. Ramsauer has qualified as his administrator, and as such is made a party, and 'that the joint administration of said Frank P. Gray and John A. Erwin continued from the 2d day of August, 1875, until the 2d day of May, 1876, when the said John A. Erwin resigned, and his resignation was accepted by the court of ordinary of the county of Bartow.' Complainants are informed and believe that Erwin resigned to avoid 'the consequences of said Gray's waste and mismanagement,' and thereupon 'said Gray became sole administrator, against the consent and at the protest of all the heirs except Cora M. Gray and Mary L. Spencer, and gave bond as sole administrator in the sum of $140,000, with the said Abda Johnson, William T. Wofford, Edwin M. Price, Noah King, William W. Rich, John W. Gray, Nelson Gilreath, James C. Wofford, John S. Leake, and Thomas W. Leake, as sureties;' that on the 18th day of October, 1877, said William T. Wofford, James C. Wofford, and William W. Rich applied to be relieved from their suretyship on the bond aforesaid on account of their want of confidence in the said Gray, and were so relieved, and said Gray gave a new bond as such administrator for the same sum, 'with the said Abda Johnson, Nelson Gilreath, Noah King, John S. Leake, Thomas W. Leake,

Thomas Tumlin, John W. Gray, Absalom P. Wofford, and Francis M. Ford as sureties;' 'that on the 6th day of May, 1878, said Noah King applied to be relieved on his bond last aforesaid, and was so relieved, and the said Frank P. Gray gave another bond as administrator in the sum of $140,000, with the said Abda Johnson, Nelson Gilreath, John W. Gray, Absalom P. Wofford, John S. Leake, Thomas W. Leake, and Francis M. Ford, as sureties;' and 'that since that time said Gray has continued to act as adi nistrator under the bond last aforesaid, and is still in possession of the effects of said estate not heretofore disposed of.'

Complainants show that Lewis Tumlin had made some advancements to some of his children, and on the 2d day of October, 1875, a distribution of property in kind was made, each of the heirs receiving $24,000, including the advancements; that since that time there has been no distribution, but some amounts have been received by some of the heirs; that Tumlin's estate was abundantly solvent, and his liabilities should have been long since discharged, and the estate wound up, and the balance distributed, 'which said Gray undertook and promised to do by his several bonds aforesaid,' but he has not done it, and has refused to account or to pay over to complainants their distributive share; that Gray has been guilty of negligence, waste, and fraud, which complainants proceed to charge in detail; and that said Lula T. Lyon heretofore filed her bill against said Gray as administrator, in the superior court of Bartow county, Ga., seeking an account of her distributive share in said estate, and praying for an injunction to restrain said Gray from selling the real estate of said Tumlin, which he was, on or about the 1st day of January last, seeking to do, which injunction 'had been granted by the judge of said court, and had duly issued.' After charging further acts of fraud and waste, the bill proceeds: 'Complainants are unable to state in many instances the date at which the waste of said estate was committed by said Gray, but they are informed and believe that most of it occurred after the resignation of said Erwin, and after his present bond was given, to-wit, the one bearing date the 6th of May, 1878;' that Gray is insol-

vent; that A. P. Wofford, John W Gray, and Nelson Gilreath are insolvent; that Abda Johnson left considerable property, but his affairs are embarrassed; that John S. and Thomas W Leake and Francis M. Ford are not worth exceeding $20,300; that large sums are due Tumlin's estate, which also owns several thousand dollars' worth of real estate; that many suits are pending in favor of the estate for the recovery of money and property, and also many suits against the estate, all of which should have been tried and disposed of long since; that the estate is solvent, and Gray has ample means in his hands to pay off any recovery against it, but Gray has purposely delayed bringing the suits to trial in order to postpone the final settlement of the estate; that Gray has for several years been absent from Georgia, much of his time in Mississippi, and has declared his purpose to remove to that state; that on the 18th day of June, 1881, he filed in the office of the ordinary of said county his resignation as administrator; that the heirs will be forced to suggest some other person as his successor, and whoever may be appointed the decision may be appealed from, and pending that, 'a temporary administrator with limited powers would be the only representative of said estate;' and 'that unless they can have the immediate aid of a court of equity by such suitable injunction and restraining order, and the early appointment of a receiver, the interests of said estate will suffer great and immediate loss, and complainants and the other heirs at law of Lewis Tumlin will be injured beyond remedy.' They pray for answer, but not upon oath, and for an injunction and an account, 'and that complainants may have a decree for their distributive share in said estate against the said Frank P. Gray and his sureties on his administration bonds aforesaid, and that the respective liabilities of said several securities may be ascertained and fixed by said decree,' and for general relief.

Copies of the various bonds were filed as exhibits with the bill, and also a copy of Gray's petition to resign as administrator, with citation to the heirs of Tumlin to appear before the ordinary on the first Monday in July, 1881, to show cause why the resignation should not be allowed, and James C. Wof-

ford appointed administrator in Gray's stead, with return of service on several of the heirs and on Wofford. September 5, 1881, defendants Napoleon B. Tumlin, George H. Tumlin, Mary L. Spencer, and Lula T. Lyon filed their answer, admitting the allegations of complainants' bill, and saying that they have a common interest with complainants in Tumlin's estate, and join in the charges and allegations of the bill against their co-defendants, and unite in the prayers in said bill contained, and pray an account and for a decree against Gray and his securities. October 3, 1881, Gray and 'his securities' answered, denying waste or maladministration by Gray; and on the same day 'the securities upon the alleged administration bond of John A. Erwin and Frank P. Gray' answered, denying any maladministration by Erwin and Gray, or either of them, during the period of their joint administration, and setting up Erwin's discharge, the giving of a new bond by Gray, and the settlement and accounting by Erwin. A demurrer for want of jurisdiction was also filed, and, having been argued, the circuit judge delivered an opinion assigning grounds for retaining the cause, the demurrer was overruled, a...