Cherry v. Belcher , 5 Stew. & P. 133 ( 1833 )

TAYLOR, J.

The bill, in this case, was filed to' recover the distributive share, to which the defendant in error is entitled, of the estate of the late James Bell, of which the plaintiffs in error are the administrators. A decree was rendered in the Circuit Court, in favor of the complainant, for two hundred and thirty-one dollars and seventy cents, with interest thereon, from the 16th April, 1825.

It is alleged, in the bill, that the decedant died unmarried, and without issue, leaving four sisters, of whom the wife of the complainant is one: that the defendants below, (the plaintiffs in error,) adminis-' tered on his estate, and on the sixteenth of April, 1825, made a final settlement of their administration with the judge of the County Court; upon which setj tlement it was found, by said judge, that the admin--istators were indebted to the estate, in the sum of nine hundred and twenty dollars and eighty-three cents — to the one-fourth of. which he is entitled, as his wife’s distributive share.

The answer alleges, that the settlement was not final, nor so intended to be; that the administration was not then closed : that the respondents are entitled to credits, which were not allowed in the settlement, by mistake, &c. That the administrators had paid to the wife of the complainant, one hundred and eighteen dollars, before she intermarried with the complainant. *

Several objections are taken to the proceedings of the Circuit Court. It is contended—

1st. That Chancery has no jurisdiction.

2dly. The complainant’s wife should have been joined with him, in suing.

3dly. The other distributees should have been parties.

4thly. The Court should have ordered an account, notwithstanding the settlement with the judge of the County Court, and admitted any credits to which the administrators were justly entitled.

5thly. The answer should have been taken as true, without proof, as the cause was finally heard, upon bill, answer, and exhibits.

The first objection, it is believed, can not be sustained. Whatever might be the effect of a distinct and final order of distribution, made by the County Court, awarding to each distributee the amount of his 'distributive part, a mere ascertainment of the sum remaining in the hands of the representatives, even if the settlement were certainly a final one, can not divest Chancery of its jurisdiction, when applied to by one of the distributees, to compel payment of the portion, to which he is entitled. And Chancery will the more clearly have jurisdiction, of the case, when the bill is filed, to compel the payment of the distributive share of a married woman, that her interest, if necessary, may be protected.

The second objection is certainly available. From the whole of the proceedings, it sufficiently appears, that the intermarriage of the complainant, with a sister of the decedant, took place after the decedant’s ■death. The interest which she had in his estate, thereby vested in her, and was not vested in the complainant, by the marriage. Were he to die, before receiving the share of his wife, it would survive to her, and his representatives would have no inter.est in it, whatever.

Nor does the circumstance, that the settlement with the County Court, was made after the marriage, have any effect in altering his rights : it bears no analogy to the case of a note given to the wife, after marriage, for a debt, due by account to her, before.

The wife should certainly have been joined in the suit.

It is not intended, to express the opinion, that if the marriage had taken place before the death of James Bell, the complainant could have sued alone : this point will be left, to be considered when the question arises.

On the third point, my own opinion is, that the other distributees should have been made parties— either complainants or defendants — that the whole business of the administration might have been set-tied in one suit, to prevent a multiplicity of suits ; but the majority of the Court is against me.

As to the fourth objection, it does not appear that it was intended, that the settlement should close the business of the administration: but, if it was, we do not think, when the complainant comes into the Court of Chancery, to ask a decree for his distributive share, that the defendants would be precluded, by that settlement, from showing either a mistake, or that they were compelled to make subsequent payments, of which they were ignorant, at the time of the settlement; or any other matter, which, in equity and good conscience, should be admitted as a defence.

Biit the settlement relied upon, in this case, seems to contemplate something further to be done. It does not purport to be final, but declares, that nine hundred and twenty-six dollars and eighty-three cents, were then in the hands of the administrators, subject to distribution. We, therefore, think, the administrators should be heard, in any defence, which they may have, going, in equity and good conscience, to reduce the amount stated against them: such as a mistake in the settlement, subsequent liabilities, payments to the complainant after, or to his wife, before their marriage, &c.

As the cause must be remanded, to give the complainant an opportunity to. amend, by making his wife a party; and the administrators, as well as the complainants, will then have an opportunity to sustain their several allegations, by proof — we deem it unnecessary to determine, whether the averments in the answers, should have been received as true, upon the final hearing under the circumstances, or not.

We are perfectly satisfied with the decisions heretofore made; by which it has been determined, that when a case is heard, upon bill, answer and exhibits, without proof, all the allegations of the answer, whether responsive or ’ not, are to be considered as true.

The decree must be reversed, and the cause remanded, that the complainant may have leave to amend his bill, so as to make his wife a party.