Rushin v. Young ( 1859 )

By the Court.

Benning J.

delivering the opinion.

Was the Court below right in sustaining the demurrer to the bill ?

The demurrer was filed by Young and Felton, the executors of Shadrick R. Felton, deceased.

The complainants are legatees under the will of John Rushin, deceased, and they sue for their legacies given in that will. That will appointed Shad. R. Felton, Jno. C. Rodgers and Wm. Rushin, its executors. Rodgers is now dead; Wm. Rushin is a citizen of Alabama; Felton is dead too Felton was the principal executor, and into his hands, went the whole, or almost the whole of the testator, Jno. Rushin’s estate. Jno. Rushin left no debts. Consequently, we may assume, that the legacies to the complainants, have completely vested in them.

The question, then, is, are Shad. R. Felton’s executors accountable for these legacies directly to the legatees, or only t some person representing John Rushin’s estate, as his executor, or as his administrator de bonis non ? And, for ought that we can see, they may be required to account directly to those legatees. A payment to the legatees will be a protection to them, against any suit for the same legacies, brought by any representative, of John R. Rushin’s estate; because all the use such a representative could have for the legacies^ if recovered by him, would be to apply them to debts, or, to turn them over to the legatees, their owners. But there would be no debts, and the legacies would already have been turned over to their owners, by the executors. Such representative, therefore, would not be allowed to call the executors to account for the legacies. So far then, as the executors themselves, are concerned, there seems to be no reason, why they should not be required to account directly to the legatees.

So far as the legatees are concerned — it is greatly to their interest, that the executors should be required so to account. Even if there were an accessible representative of John Rushin’s estate, to make these executors pay the legacies over to him, that he might pay them over to the legatees, would be a round-about way of accomplishing the object— a way involving, double the time, double the labor, double the cost, and double the risk, of the direct way. But there is no accessible representative of that estate. Wm. Rushin, one of the three executors, resides in Alabama; Shad. R. Felton and Jno. C. Rodgers, the other two, are both dead. And it may, indeed be a question, how an accessible representative is to be obtained in such case.

Moreover, where there are two parties who are liable to a debt or duty the one immediately, and the other mediately— and the former resides out of the jurisdiction, the latter may be sued in the first instance, in equity. The non-residence of the former, constitutes a special equity to authorize such a O u ' * suit against the latter.

Upon the whole, we think, that there was equity!] irfc*- * bill, as against the executors of Shad. R. Felton; ¿l> quently, that the Court below erred in sustaining the demurrer.

Judgment reversed.