White v. Kennedy's Adm'r.

• Decision Date: 15 December 1883
• Citation: 23 W.Va. 221
• Parties: White, Adm'k, v. Kennedy's Adm'r.
• Court: West Virginia Supreme Court

23 W.Va. 221

White, Adm'k,

v.Kennedy's Adm'r.

Supreme Court of Appeals of West Virginia.

Submitted June 28, 1883

Decided December 15, 1883.

1. In a creditor's bill against the administrator and heirs of a dece-

dent to enforce the collection of a debt, secured to the plaintiff by the joint and several obligation of the decedent, and another obligor, such obligor is a necessary party to such bill, although he may be a non-resident, (p. 227.)

2. In such a case, such non-resident obligor, has the right to appear,

and make defence to such bill; and the administrator and heirs of such decedent have the right to require: him to be made a party to the suit, so that in case he should appear his liability for such debt may be ascertained and determined, as between him and such decedent, (p. 227.)

3. If such a bill be brought against the administrator of such decedent, and other defendants, not designated therein as his heirs, or as his creditors, praying for a settlement of the administration accounts of such administrator, and for a sale of the lands of such decedent for the payment of debts, and such other defendants are treated by the court and decreed against as such heirs; if one of them appears and answers such bill, and makes defence thereto, and the court improperly decrees said lands to be sold for the payment of said debts, he may appeal from such decree, although he was not designated in said bill as an heir of such decedent, and if such decree be erroneous, as to him, it will be reversed as to all such other defendants. v'p. 228.

Woods, Judge, furnishes the following statement of the case:

Nathan S. White, as the administrator of Leonard Saddler, deceased, claiming that the estate of Andrew Kennedy, deceased, was indebted to his intestate in the sum of one thousand and fifty-two dollars and eighty-five cents, which became payable on the 17th day of December, 1850, filed his bill in the circuit court of Jefferson county, in the words and figures following:

"Nathan S. White, administrator of Leonard Saddler, files this his bill of complaint against Anthony Kennedy, administrator d. b. n. of Andrew Kennedy, Andrew E. Kennedy, John W. Kennedy, Mary E. Cooke, E. P. Kennedy, S. D. Kennedy and Mary S., his wife, Jno. Sol den and Sarah D., his wife, Lizzie G. Selden, A. K. Selden, W. C. Selden, and said Anthony Kennedy, as executor of M. A. P. Kennedy.

"The complainant respectfully represents that one Andrew Kennedy, now deceased, did, on the 17th day of December, 1849, execute his writing obligatory, together with Philip P. Dandridge, jointly and severally, to the complainant's intestate, the said Leonard Saddler, deceased, by which writing obligatory the said Andrew Kennedy, deceased, and Philip P. Dandridge bound themselves jointly and severally, and their respective heirs, to pay to the said Leonard Saddler, deceased, the sum of one thousand and fifty-two dollars and eightyfive cents twelve months after the date of said writing obligatory. And your complainant avers that the said Andrew Kennedy departed this life on the day of, 18, without ever having paid said bond, or any part thereof, the said bond never yet having been paid in whole or in part by the said Andrew Kennedy, deceased, or by the said Philip P. Dandridge, or by any one for either of them. And your complainant avers that the said Andrew S. Kennedy departed this life intestate, owning and possessing two large tracts of land in Jefferson county known, respectively, as 'Cassilis'

and'The Cave, 'the first named containing acres and the

second acres. The said Philip P. Dandridge is a nonresident of this State, "residing at present in the town of Winchester, county of Frederick and State of Virginia.

"The complainant therefore prays that such accounts may be taken as may be necessary, and should there be no sufficient personalty, that the said two tracts of land, or so much of both or either as may be necessary, may be subjected to sale for the payment of said writing obligatory, with interest thereon at six per cent, from the 28th day of March, 1859, until paid, and to this end the complainant prays that the defendants named as such in the caption of this bill may be made such by proper process and required to answer, and that all such other and further relief may be granted as may be equitable."

On the 22d April, 1878, the cause was heard upon the bill taken for confessed against all the defendants., and referred to a commissioner, to take proof as to the debt in the bill named, and to settle the administration account of Anthony Kennedy, administrator de bonis non of Andrew Kennedy, deceased, as far as may be necessary to determine whether there are any personal assets applicable to the payment of this debt, and to ascertain what real estate was owned by said Andrew Kennedy, deceased, liable; to pay the said debt; the value of said realty and the annual rental value thereof, and reserved to the said administrator de bonis non ot Andrew7 Kennedy the right to thereafter answer the plaintiff's bill. Said commissioner returned his report, showing that there was due to the plaintiff's intestate on the debt on the bill named the sum of two thousand two hundred and eighty-five dollars and three cents, including unpaid interest thereon up to the 1st October, 1878; that there were no assets in the hands of said administrator de bonis non applicable to said debt, and that said Andrew Kennedy died seized of a farm in said county called "Cassilis," containing two hundred and forty-five acres, supposed to be worth twenty thousand dollars, whereof the average annual rental value was seven hundred and sixteen dollars and sixty-six cents. Before or at the time the court again heard the cause (for the transcript of the record does not furnish the date thereof), the said defendant, Andrew E. Kennedy, filed an answer to said bill, to which no replication was ever filed, and although, like the plaintiff's bill, it was exceedingly informal, the said answer, which was in the decree called the "statement" of said Andrew E. Kennedy, alleged the discovery of personal assets belonging to the estate of his intestate, which had come into his possession since the filing of said commissioner's report, and which he produced to the said court, apparently more than enough to satisfy the plaintiff's demand, which he insisted ought to be collected and applied to the satisfaction thereof, before any further proceedings should be had in said cause. The said personal assets referred to in the answer of A. E. Kennedy, produced in court and delivered to the said administrator debonis non of Andrew Kennedy, deceased, consisted of one tenth interest in the property of the Shannondale Springs Com-j pany, two certificates of ten shares each, and a transfer of fifteen shares of the Kanawha Coal Company, and a bond on one John...