Watson's Adm'r v. Pack's Adm'r , 3 W. Va. 154 ( 1869 )

Maxwell, J.

James K,. Kent, of Virginia, and James T. Watson, of the State of New York, were, prior to the year 1844, the owners of a tract of about 80,000 acres of land, situated in the counties of G-iles and Mercer. The said Watson having departed this life intestate James Watson "Williams was appointed by a New York court administrator upon his estate.

On the 15th day of February, 1844, an act was passed by the general assembly of Virginia authorizing the said Kent, with the said Williams as the administrator of the estate of the said Watson, to file a bill in the circuit superior court of law and chancery of Mercer county, against the heirs at law of the said Watson and other proper persons, for the purpose of having a commissioner appointed to collect the proceeds of certain sales of the said lands made by Johnson, the agent of the said Kent and Watson, in the life time of Watson, and also to convey the lands to the purchasers thereof, ou their payment of the purchase money..

The act also authorized the appointment of a commissioner to sell the residue of the said lands if the court thought proper.

The said Kent and Williams filed their bill in conformity to the said act, and the court, on the 30th day of April, 1844, appointed Samuel Pack a commissioner for the purpose of collecting the debts named in the act, and for the purpose of making the titles to the purchases. The said Pack executed his bond to the said Kent and Williams in the penalty of 5,000 dollars, conditioned for the faithful discharge of his duties as such commissioner, with Peuben F. Watts, John McClaugherty and William G. Caperton his sureties therein.

The court afterwards, by another order made in the said cause, on the 3rd day of October, 1844, directed the said Pack to sell and convey the remainder of the said tract of land, whereupon he executed another bond to the said Kent and Williams in the penalty of 2,000 dollars, conditioned for the faithful discharge of the duties imposed by the last named order.

Afterwards, in the year 1849, the said Kent and Williams filed another bill in the same court, reciting in substance the foregoing statement, and charging that the said Pack departed this life in the month of July, 1848, intestate, and that James M. Byrnside was duly appointed and qualified as his administrator, and charging further that the said Pack had- in his life time collected a considerable amount of money, both from sales made before he became commissioner and from sales made by himself as commissioner. The bill makes the administrator of Pack and sureties in the two bonds or their representatives and the heirs at law of the said Watson parties defendant, and prays that an account may be directed to ascertain and settle the account of moneys received and disbursed by said Pack as commissioner, and to report any balance or balances which may be due from him as such commissioner, discriminating between such collections as were made upon the sales made by Johnson and collections on sales made by himself.

■ When the cause came on to be heard the court dismissed the bill, and from the order dismissing the bill the case comes here by appeal.

■ The appellees claim that the bill was properly dismissed because Williams was never qualified in the State of Virginia as the administrator of the estate of Watson, without which he could not sue in the courts of the State. The act of February 15th, 1844, before referred to, specially enables Williams, as the administrator of Watson, to file his bill jointly with Kent for the purposes recited in the act. They filed their bill for the purposes specified in the act, and Pack was appointed a commissioner under the' authority of the act, but before he had executed the duties of such commissioner he departed this life. And for the purpose of settling the accounts and closing the business of said commissioner the new bill was filed, and though not within the letter of the act it seems to me it is within the spirit of it, and that the suit may be maintained in the name of Williams without his qualification as administrator in Virginia. There is another ground on which, it seems to me, the right of Williams to bring the suit is clear, and that is the bonds are both made payable to him and Kent. He would be a necessary party either as a complainant or defendant. The appellees might justify the decree dismissing the bill on the ground that the heirs of Watson, although parties to tbe bill, are not served with process nor in any other manner brought before the court. The heirs of Watson are necessary parties to the suit and no final decree could, be entered until they are brought before the court. The cause ought to have been remanded to rules for the purpose of executing process by order of publication or otherwise against the heirs of Watson. According to the special act Williams, as the administrator of the estate of Watson, would only be entitled to receive Watson’s interest in the sales made in his life time, and the heirs of Watson his interest in the sales made after his death. It seems to me the decree dismissing the bill will have to be reversed, with costs to the appellants, and the cause remanded to the circuit court of Mercer county, with directions to be remanded to rules there to be matured against the heirs of Watson.

The other judges concurred.

Decree reversed.