Opinion
08-26-1851
LUSTER v. MIDDLECOFF & als.
Lackland and Cooke, for the appellant, F. T. Anderson, for Dempsey, insisted, J. T. Anderson, argued the case for Middlecoff's legatees,
(Absent Cabell, P. and Moncure, J.[a1])
1. The official bond of an executor contains in the penal part the names of the executor and several sureties, and there is no blank for the name of another; but it is signed and sealed by all those whose names are in the penal part, and also by another person. HELD: It is the bond of the person who executed it, though his name is not in the penal part.
2. A legatee being dead, a decree for the distribution of the estate should be in favour of his personal representative, and not of his distributee.
This was a bill filed in the Circuit court of Botetourt county by the legatees of John Middlecoff against Jacob Carper, the executor, and John Luster, Absalom C. Dempsey, and others, as his sureties, for the purpose of obtaining a settlement of the executorial account and a distribution of the estate. They charged that the executor was hopelessly insolvent; and they filed as exhibits with their bill certified copies of their testator's will and the executorial bond. The bond reads, " Know all men by these presents, that we, Jacob Carper, Joseph K. Pitzer, John Luster and Matthew S. Robinson, are held and firmly bound," & c. This bond was executed by the parties before named, and also by Absalom C. Dempsey.
Dempsey appeared and demurred to the bill; and although no special cause of demurrer was stated, the attempt was to sustain it on the ground that Dempsey's name not having been inserted in the penal part of the bond or the condition it was not his bond. The Circuit court sustained the demurrer and dismissed the bill as to Dempsey.
The cause proceeded as to the other parties, and accounts were taken which shewed a considerable balance in the hands of the executor, which was apportioned among the legatees according to their interests; and there was a decree against the sureties in favour of the legatees for the sums ascertained to be due to them respectively. And thereupon Luster applied to this Court for an appeal.
There were other questions in the cause which it is unnecessary to state.
Lackland and Cooke, for the appellant, insisted, that the bond was the bond of Dempsey; and therefore that the demurrer was improperly sustained. They referred to Bac. Abr. title Obligation, letter C; 2 Lomax Dig. 113; Bartley v. Yates, 2 Hen. & Munf. 398; Beale v. Wilson, 4 Munf. 380; Crawford v. Jarrett, 2 Leigh 630; Holman v. Gilliam, 6 Rand. 39; Clark v. Blackstock, 3 Eng. C. L. R. 159; Bailey on Bills 44; 1 Story's Equ. Jur. § 155, 162, 166, 168; Fonb. Equ. Book 1, ch. 1, § 7; 1 Madd. Ch. 49, 50; Wiser v. Blackly, 1 John. Ch. R. 607.
F. T. Anderson, for Dempsey, insisted, there was no evidence that he intended to bind himself; and that the intention was necessary to bind him, and should appear on the face of the bond. Catlin v. Ware, 9 Mass. 218; 2 Lomax Dig. 206; Black. Com. Book 2, p. 298; 1 Tuck. Com. 234, 275; Bell v. Allen's adm'r, 3 Munf. 118. And he insisted that if Dempsey was not bound at law he was not bound in equity. King v. Baldwin, 2 John. Ch. R. 554; Buller, J. in Straton v. Rastall, 2 T. R. 367; People v. Spraker, 18 John. R. 390; Moses v. Liblingarth, 2 Rawle's R. 428; 2 Rob. Pr. 37; Commonwealth v. Jackson's ex'or, 1 Leigh 485; Graves v. McNeil, 1 Call 488; Ward v. Webber, 1 Wash. 279; People v. Jansen, 7 John. R. 331.
J. T. Anderson, argued the case for Middlecoff's legatees, but they were not particularly interested in this question.
OPINION
BALDWIN, J.
The Court is of opinion, that upon the face of the bill of the plaintiffs, and of the official bond of Jacob Carper, executor of John Middlecoff the elder, therewith exhibited, the defendant Dempsey must be regarded as one of the sureties in the said bond, he appearing to have executed the same, although his name is not therein mentioned as one of the obligors; and therefore that the Circuit court erred in sustaining the said Dempsey's demurrer and dismissing the bill as to him, instead of overruling said demurrer, and requiring him to answer the bill, which error is to the prejudice of the appellant and of the appellees Pitzer and Robinson. And the Court is further of opinion that there is no other error in the decree of the Circuit court, unless it be in decreeing in favour of the children and heirs of John Middlecoff the younger and the children and heirs of George Middlecoff, instead of their personal representatives; it being uncertain from the record whether the said John Middlecoff the younger and George Middlecoff, sons and legatees of the said John Middlecoff the elder, died before or after the death of their father; and unless it be in the omission of the decree to state that the recovery in favour of Thomas J. and Harriet Middlecoff, infant children and heirs of the said John Middlecoff the younger, is by their guardian and next friend: in regard to which alleged errors no action of this Court need be had, inasmuch as for the error above declared in sustaining the demurrer of said Dempsey, the decree must be reversed and the cause remanded to the Circuit court for further proceedings to be there had, and any such irregularities may be there corrected, after enquiry into the facts bearing thereupon. It is therefore adjudged, ordered and decreed, that so much of the said decree as sustains the demurrer of the said Dempsey and dismisses the bill of the plaintiffs as to him, be reversed and annulled, with costs to the appellant against the appellees who were plaintiffs, and said Dempsey. And it is further adjudged, ordered and decreed, that the said demurrer be overruled, and that the said Dempsey do answer the bill of the plaintiffs; and that the reports of the commissioner in regard to the matters of account be recommitted in order that the same may be reformed, in respect to any responsibility which may appear on the part of the said Dempsey or to any errors therein which may be shewn by him. And the cause is remanded to the Circuit court to be proceeded in as above indicated.
[a1] The cause had been argued before his appointment.