Bruce v. Bickerton

JOHNSON, President, announced the opinion of the Court: Should the exceptions to the answer of Isabella Bickerton, executrix, have been sustained, and the said answer rejected ? It has been settled by this Court, that the object of exceptions to an answer is, to direct the attention of the Court to the points excepted to, and to take its opinion thereon, before further proceedings are had, to the end that if the answer is insufficient, a better answer may be compelled, or if scandalous or impertinent, that such matter may be expunged. Exceptions for insufficiency of an answer according to the general rules of equity practice can only be sustained, when some material allegation, charge or interrogatory in the bill is not fully answered. Exceptions founded on verbal criticisms, slight defects or the omission of immaterial matter will be disallowed and treated as vexatious. Richardson v. Donahoo, 16 W. Va. 685. The first, second and third exceptions to the answer might have been overruled, because if she, as averred in her answer, was not a party to the suit of Robert Moore & Bro. v. Thomas Oman’s executor et al., she might not be bound by the decree therein, and her right to show, that she was not such party, ought not to be denied upon mere exceptions to her answer. The seventh exception is, that so much of the answer as sets .up the bar of five years to the right of the plaintiff to surcharge and falsify the accounts of Isabella Bickerton, executrix, is no defence to the claim of the plaintiff. It is true, [357] thatl^there is no statutory bar to surcharging and falsifying the accounts of a fiduciary. Burwell v. Anderson, 3 Leigh 338; Code of 1868, chap. 87 sec. 22. The fifth and sixth exceptions are to so much of the answer as sets up the solvency of the estate of Britt and Limerick, two of the joint obligors on the executorial bond of Grey. These exceptions were improperly sustained. The bill alleged the insolvency of the estates of Britt and Limerick; the answer not only denies these allegations, but attempts to show what estate they had at the time the answer was tendered; and therefore the answer was improperly rejected. The eighth exception is to the prayer of the answer, that the cause might be referred to a commissioner to ascertain and report what estate said Britt and Limerick had, that said estate might be required to contribute to the payment of plaintiff's claim. There is certainly nothing impertinent in this prayer, and if upon the filing of the answer the court might not deem it proper to refer the cause to a commissioner for the purpose prayed, it might upon further depositions being taken properly so .refer it. The fourth exception to the answer is, that so much thereof as sets up an agreement of respondent with the executor, Alexander Bickerton, and the heirs at law of said Robert Bick-erton is immaterial, insufficient and no answer to the complainant’s claim for relief. That portion of the answer referred to is as follows: “ That the real estate said to have been sold for $3,000.00 was appraised at the sum of $2,000.00, and it was understood between .this defendant and the heirs at law of Robert Bickerton, that the difference between $3,000.00, the amount the property sold for, and $2,000.00, the appraised value, would not exceed this defendant’s dower-interest therein, the commission which she was entitled to as executrix on receipts and disbursements, and the sum of $61.90 due her upon said final settlement; that this defendant was in her thirty-eighth year at the time of her husband’s death, and no dower-interest has ever been set aside, decreed .to her, or paid to her out of said estate of her said husband, Robert Bicker-ton, deceased, except the amicable adjustment in' relation thereto last above mentioned.” I interpret this portion of the answer to substantially aver, that the executrix, who is the [358] widow of her testator, has never bad dower assigned her in her. husband’s estate; that the land, which was sold, and in the conveyance of which she individually relinquished her dower, electing to take her dower-interest in the proceeds of said sale, brought at the sale, her dower-interest included, the sum of $3,000.00; but that by an arrangement with the heirs she only charged herself with $'2,000.00. The $1,000.00 under said arrangement she took for her dower-interest and commission for distributing the estate. Of course she had no right of herself to fix what she was entitled to for her dower-interest; but if she did join in theconveyanceincluding her dower-interest, she was clearly entitled to dower in the purchase-money; and it no where appears in the record, that she has been assigned her dower; and if her answer, as we have interpreted it, is true, she was entitled to have her dower assigned to her, and for that purpose she ought to have been made a defendant to the suit as such widow. The answer being sworn to, and nothing appearing in the record showing, that it is not probably true, the court ought to have permitted her answer as executrix to have been filed, arid directed her as widow to be made a defendant to the suit, and ought to have enquired into the fact, whether she was entitled to dower in the proceeds of the sale of the land, and if so, to have assigned it to her out of such proceeds. While we hold that it was error in the court to reject the answer of Isabella Bickerton, executrix, &c., yet if the rejection of the answer was not to her prejudice, it would not be an error, of which she could complain, and in this case we do not decide, under what circumstances the rejection of an answer, that ought to have been permitted to be filed, would not be prejudicial to the party tendering it; yet, as we have seen, it was to the prejudice of the defendant,Isabella Bick-erton, to reject her answer, the court should have permitted the defendant to file it. It is insisted, that the personal representatives of the co-sureties of Itobert Bickerton in the executorial bond of Thomas Grey should have been made defendants to the bill. In Montague’s ex’r v. Turpin’s adm’r et at., 8 Gratt. 453 it was held, that where two of three obligors in a bond are dead, insolvent, and there is no personal representative of [359] either of them, the obligee coming ídío a court of equity to enforce payment of the debt against the personal representatives of the other obligor is not bound to have personal representatives of the deceased insolvent obligors appointed and make them parties. And this specially where the defendant has not by his answer, or in any other mode of pleading, objected to the failure to make them parties. And so, I think, if they were insolvent, and their insolvency was alleged in the bill as a reason for not making their personal representatives parties, it is not necessary to make them parties. But in that case the plaintiff takes the risk of their insolvency being denied in the answer; and when so denied, unless the allegation of insolvency is proved, no decree can be rendered, unless their personal representatives are before the court. In a suit in equity for contribution it is generally necessary to have the personal representatives of every deceaséd solvent co-surety of the plaintiff before the court, and to settle the estates of such deceased co-sureties, if need be ; or if such deceased parties had no personal estate but owned real estate, it would in such a suit be necessary to have the heirs of such deceased sureties before the court, to the end that the whole matter might be settled in. one suit, and proper contribution be made by each party or estate, real, or personal, liable to contribution, unless the party claiming contribution, who is entitled thereto, elect to take a decree against the defendant sued in full discharge of his liability the least amount which he would be entitled to recover against him, if all the sureties were solvent. It is insisted, that the said Thomas Grey should have been made a defendant. The bill alleges, that he is entirely insolvent, and the answer tendered does not deny it. I cannot therefore see the necessity of making him a party to the suit. It is also insisted, that the heirs of Robert Bickerton ought to have been made parties. There was no necessity for making them parties. The bill alleges, that the land was sold and converted into personalty under the provisions of the will which is uneontroverted. The course of descent was clearly broken by1 the will.. It seems to me from the record before the court, as appears in the allegations of the bill, that there ought not to have [360] been any decree against William Wilson for any sum, as by the proceedings had under chapter 87 of the Code be seems to have been released from all liability by the giving of the new bond. Section 11 of that chapter declares, that “ every bond executed with sureties under either of the two preceding sections shall, without any express provisions to that effect, relate back to the time of the qualification of the fiduciary, and bind the obligors therein for the faithful discharge of the duties of his office or trust from that time as effectually, as if it had been then executed; and the sureties in the former bond and their representatives shall upon the execution of such new bond be forthwith discharged, except as to any matter for which a suit may be then depending upon the former bond against any such sureties or their representatives, in which case such suit may be prosecuted to judgment or decree; but as to every such matter the new bond shall, without any express provision therein to that effect, bind the obligors therein to indemnify the sureties in the former bond against all loss or damage in consequence of executing the former bond.” The said eleventh section is substantially the same as the statute, when the first bond was executed. Code of 1860, chap. 39, § 12. This suit was instituted long after the last bond was executed; and of course the surety in the former bond does not come within the exception in said section 11. Upon the record, as it now appears to us, it would seem, that the said William Wilson, surety in the first bond, is not responsible for the plaintiff’s claim, but that question is not now determined. For the foregoing reasons the decree rendered in this cause on the 20th day of May, 1878, must be reversed, and the appellees John Bruce and Thomas Ratcliff must pay to the appellants the costs of this appeal; and this cause is remanded to the Municipal Court of Wheeling for further proceedings therein to be had. Judges Haymond and GreeN Concurred. Decree Reversed. Cause Remanded.