Shorter v. Hargroves , 11 Ga. 658 ( 1852 )

By the Court.

Warner, J.

delivering the opinion.

The complainants in this bill, are the heirs at law and legal distributees of the late Eli S. Shorter, deceased, who seek a decree for that portion of the estate of the decedent, which wrent into the hands of James H. Shorter, one of the administrators thereof; alleging fraud, mismanagement and waste, on the part of such administrator, who is now dead, and George Hargroves, who is his administrator, is made a party defendant.

Sophia H. Shorter, who is one of the distributees of said estate, and James H. Shorter, were the administrators on the estate of Eli S. Shorter, deceased. It is alleged in the bill, that James H. Shorter had the sole, exclusive, and entire control of the administration of said estate, to the exclusion of the said Sophia H. who did nothing more than qualify, as such legal representative.

[1.] The first ground of demurrer which we shall consider, is that which alleges the want of proper parties.

The defendant insisted in the Court below, and contends ■ here, that Sophia H. Shorter, who was one of the administrators of Eli S. Shorter, deceased, is a necessary party to this suit.

This bill only seeks a decree for so much of the estate of Eli S. Shorter, as went into the hands of James H. Shorter, as his administrator, which has been administered, improperly managed, and wasted by him. The bill does not seek to charge Mrs. Shorter, the other surviving trustee, with anything; but on the contrary, expressly charges, that James H. Shorter had the sole, exclusive, and entire control of the administration of said estate. A devastavit, by one of two administrators, will not charge his companion, unless he has intentionally, or otherwise, contributed to it. (Williams’ Exrs. 1118.) The rule, as applicable to the case made by this bill, is stated by Mr. Justice Story, in his Commentary on Equity Pleading. “If the bill is so framed, as only to seek an account of so much of the trust fund, as has come to the hands of a particular trustee, he alone is a necessary party, at least, unless the bill should charge a breach of trust in all the trustees.” Story’s Eq. Pl. 191, §214.

[2.] Inasmuch as this bill charges James H. Shorter, the administrator, with fraud, maladministration, and waste of the assets which came into his hands, the decree would have been rendered against him, if in life, de bonis propriis, as was ruled by this Court, in Saunders vs. Smith, administrator, (3 Kelly, 121.) The Court below errred, in our judgment, in deciding that Sophia H. Shorter, administratrix of Eli S.’ Shorter, deceased, was a necessary party to this bill.

[3.] The next objection taken in the demurrer is, that Virginia Shorter, one of the complainants, is an infant, who sues by her guardian, H. S. Smith, when she should have sued by her next friend. In view of the Act of 1820, which was passed for the protection of the estates of orphans, regulating the appointment of guardians, and requiring them to give bond and security, we are of opinion, that an infant who has a guardian appointed and qualified, according to the provisions of that Act, may maintain a suit in Equity in this Sate, by such guardian.

[4.] The defendant, by his demurrer, also insists, that the complainants are not the proper parties to call for an account of the administration of the estate of Eli S. Shorter by James H. Shorter, his administrator, inasmuch, as James H. Shorter died chargeable to the estate which he represented, and therefore, the-surviving administratrix is the proper person to have an account; or according to the provisions of the Act of 1845, an administrator de bonis non, on the estate of Eli S. Shorter, would be the proper party to institute the suit. By the Act of 1845, it is declared, that “ whenever any executor or administrator, may have been heretofore, or may be hereafter removed, or depart this life, chargeable to the estate which he or she represented, it shall be the duty of such removed executor or administrator,, to account fully with the administrator de bonis non, who may be appointed to finish the administration of such estate.” Cobb's New Dig. 335. Sophia H. Shorter is not the administrator debonis non of Eli S. Shorter, deceased, nor could she, as the survivor, call the legal representative of her deceased co-administrator, to an account for his devastavit of the assets, which he had administered in his lifetime. By the Act of 1836, it is made lawful for any one distributee, or person interested in any estate, to institute his or her bill in Equity, to compel an account or distribution of an estate, without making the other distributees or parties in interest, complainants. (Prince, 475.) If it is lawful for one distributee to sue for his or her distributive share of an estate, it would seem to follow as a legitimate consequence, that; more than one might sue therefor. It does not appear on the face of this record, that there has ever been any administrator de bonis non appointed on the estate of Eli S. Shorter, deceased; but concede there had been, and that he would have been entitled to have called the legal representative of James H. Shorter to' an account for the estate of Eli S. Shorter, in his hands, according to the provisions of the Act of 1845, would that circumstance necessarily defeat the right of the distributees, who are now-suing, to call for an account under the provisions of the Act of 1836? Because the administrator de bonis non may, under the Act of 1845, call the representative of the deceased administrator to account, does it necessarily follow that the legal distributees of the estate may not ? We are not yet prepared so to hold, especially on the state of facts disclosed by the record in this case.

[5.] The complainants, by their bill seek to surcharge and falsify the accounts rendered by James H. Shorter, as administrator^ to the Court of Ordinary. To that portion of the bill the defendant demurs, because the allegations made therein are not sufficiently definite and distinct for that purpose. When a complainant undertakes to surcharge and falsify a stated account, the burden of proof is upon him. (1 Story’s Eq. §525.) Consequently, the allegations in his bill should be sufficient to admit the evidence. Taking the allegations in the bill to be true, in relation to the various items in the administrator’s account, which the complainants seek, to impeach and set aside, are the same sufficient in law for that p uipose?

In regard to voucher number 7, contained in the returns of James H. Shorter, to the Court of Ordinary, which appears in the record to be as follows : “ Cash paid Eli S. Shorter’s subscription to open street by H. S. Smith, $500 00the allegation in the bill is, “ that the said James H.- Shorter misapplied the funds and effects of said estate, in this, that he paid, as shewn by voucher No- 7, in the.return for the year 1837, five hundred •dollars, when there, was no debt due from, said estate, and mo legal ■evidence of the same furnished by said James H.” Now if the administrator paid out $500 00, when there was no debt due, for which the same was paid, and no legal evidence of the same furnished by him, then the credit for that amount ought not to be- allowed ; and the. Jury on the trial of the cause, will be authorized.so to find,.if the complainant shall then prove.the allegation»» by, satisfactory evidence. The existence ox.non-existence of the debt in question, against the estate of Eli S. Shorter, is ara issuable fact. The allegations in regard to some of the items, are somewhat vague and uncertain ; bat on demurrer, we are unwilling to say that a prima facie case is not made out against them, taking what the complainants allege to be true; they will, however, be restricted to their allegations on the trial, in the introduction of their evidence.

[6.] There is another reason why we should be very reluctant to sustain this demurrer. Fraud is directly charged by the complainants, in regard to the settlement of this estate, by the administrator. In Vernon vs. Vawdry, (2 Alkyn's Rep. 119,) it was held, that if there are. only mistakes and ©missions, im a stated account, the party shall be allowed no more than t©> surcharge and falsify; but if it is apparent to the Court, that there has been fraud and imposition, the decree must be, that the whole shall be opened, notwithstanding it was a stated account of twenty-three years standing, and the party charged with the fraud, was dead. In Farnham vs. Brooks, (9 Pickering's Rep. 212,) the Court held, that where a bill in Equity to open an account settled, was filed, if it appeared from the- facts alleged and proved, that there-was fraud, actual or constructive, in the settlement, the plaintiff will be entitled to relief, notwithstanding the bill contains no direct averment of fraud. Let the.judgment of the Court below, sustaining the demurrer to the complainant’s bill be reversed, on all the grounds taken therein.