Frowner v. Johnson , 20 Ala. 477 ( 1852 )

GOLDTH WAITE, J.'

-This was a bill filed by the defendants in error against the plaintiffs, to set aside the will of Samuel Acre, and for distribution of the estate, as in case of intestacy.

In the progress of the case, an issue of devisavit rel non was aivarded and tried in the law- court, which resulted in a verdict against the will, which being certified to the Chancery Court, a decree was there rendered setting aside the will. After this, and before an account of the assets of the estate was taken, Margaret Johnson, one of the complainants and a dis-tributee of said estate, died, and thereupon a scire facias was issued to the children and heirs of said Margaret, to make them co-complainants, and to revive in their names. The suit was so revived, nothing being shown on the record why the personal representative of said Margaret was not made a party, complainant as well as the children, the will of the said Acre embracing personal as well as real estate. Upon the final decree, the children of Margaret Johnson were decreed the distributive share, which would otherwise have been decreed to said Margaret. No objection was made in the court below for the want of proper parties. The general assignment, that there is error in the decree of distribution, brings, as we think, properly before this court for revision, not only the errors which enter into it, resulting from the adoption of erroneous principles of law or equity in arriving at the result, but also whether the sums so distributed are decreed to the proper persons; if, in other words, there is not an interest outstanding in a stranger to these proceedings, which may afterwards be asserted against the plaintiffs in error, and require all the proceedings in this case to be overhauled. The rule is, that when there is a party having an interest in the subject matter of the litigation, whose interest cannot be concluded by the decree, and who may afterwards proceed for the recovery of his interest, as though no decree had been rendered, then the Court of Chancery, as it cannot act definitely on the rights of the parties, and might do injustice to others by a decree grounded upon a partial view only of the real merits, will not proceed until such absent party is brought before it. Such person is an indispensable party, and the objection that he was not brought before the court can be taken for the first time in the Appellate Court. Gould v. Hayes et al., 19 Ala. Rep., and cases there cited. In the case of Hall’s Distributees v. Andrews, 17 Ala. Rep. 40, which involved the precise question we are now considering, this court uses the following language: “ The object of all litigation is to settle, finally and conclusively, the rights of the parties in respect to the subject matter in controversy. This cannot be done, unless the parties legally entitled are before the court as parties to the proceeding. It is clear, that if an administrator should hereafter be appointed upon the estate of any of the deceased distributees, this decree of distribution would not be binding on him, and he could call the administrator to an account for the distributive share of bis intestate, and this decree would form no bar to his demand.” The case last cited, it is true, was on error from the Orphans’ Court; but the reasons of the decision are applicable in their full force to chancery practice. We do not say that there may not be cases, where it is allowable for the distributee of a deceased distributee to take without the intervention of an administrator, but those cases are properly regarded as exceptions to the general rule, and to sustain them it is necessary to show affirmatively that an administration would have been a useless ceremony. 16 Ala. Rep. 494. We are not advised that there are no debts existing against the estate of Margaret Johnson; neither does the record inform, us that there is not an administrator, and the whole property here decreed to the children of Margaret Johnson may be needed to pay her debts. If her distributees wished to avoid the expense of an administration, it was incumbent upon them to show there was no necessity for it; and this not being done, such representative becomes prima facie an indispensable party, and the decree which vests the distributive share of Mrs. Johnson in her children, and furnishes the representatives of Acre no estoppel against a subsequent suit of the personal representative of Margaret Johnson, was clearly erroneous. Our decision upon this point renders it unnecessary to consider the other questions raised upon the record.

The proceedings had in the court below must be reversed back to the point where the error commenced, which is the issue of the sci. fa. to revive in the name of the children of Margaret Johnson; that her administrator may be made a party complainant, and the suit revived in his name as her personal representative. In all other particulars up to that point it is affirmed.

We do not think this a proper case for full costs to the plaintiff in error. The objection on which we have reversed could have been remedied had it been made in the court below, and for that reason let each party pay half the costs of this court.