Gifford v. Thorn

The Chancellor. This bill sets out a case on which it claims that J. R., deceased, who lived and died in this State, and who had in his hands the personal estate of Wm. Jauncey^ deceased, as the executor of his will, and who paid over to the administrator of Wm. Jauncey Thorn the said personal estate, including the share thereof which it is claimed belonged to Elizabeth Hait, became personally liable to the said Elizabeth Hait for her share of the said estate. The bill is filed against Mary Rutherfurd, the personal representative of J. R., deceased, as one of the defendants, and Herman Thorn the other defendant. Wm. Jauncey, deceased, by his will, after certain devises and bequests therein, gave and bequeathed all the rest and residue of his property, of every kind and description, to Wm. Jauncey Thorn, when he arrives at the age of 21 years, to him and his heirs forever. [95] Wm. Jauncey Thorn died^at the age of 19. The bill claims, that by his death before attaining 21, the said residuary devise and bequest to him lapsed, and that the said residue and remainder thereupon belonged to, and was distributable among the next of kin of the testator, Wm. Jauncey, deceased, of whom Elizabeth Hait was one. Herman Thorn is the father of the said Wm. J. Thorn. The bill states that the said Herman Thorn claims that the said residuary legacy to his said son Wm. J. Thorn was a vested legacy; and that he the said Herman Thorn, as his father, on the death of his said son, became by law entitled to receive the same. A subpoena was issued, directed to H. Thorn, and on its being returned “ not found,” the usual order for his appearance was made, and for the publication. The question whether this legacy was vested or whether it has •lapsed lies at the foundation of this suit. It is a question in which Herman Thorn is interested. If it was a vested legacy, the foundation of E. Hait’s claim is gone. It was proper, therefore, that Herman Thorn should be named as a defendant, and that a subpoena should issue to him; and if returned “ not found,” an order of publication made. He might desire to come in and put the defense in the suit on this ground ; and might be willing to rest it on this ground. It is not till after this question in the cause is resolved in favor of Elizabeth Hait, that there is •or will be any necessity of considering the questions raised by the bill in reference to the assignment and release from E. Hait to H. Thorn, and the action of J. R. thereon or in connection therewith. And if there was really no serious doubt that the legacy lapsed, but it was clear to H. Thorn that his only claim to E. Hait’s share would be through the assignment and release from her to him, yet, inasmuch as he procured the assignment and release, and is therefore interested in preventing its being declared fraudulent, and more particularly from his having given, as alleged by the bill, a bond and mortgage to J. R. to indemnify him for paying it over to his son’s administrator, from whom ho would be entitled to receive it, there was no impro priety in naming him as a defendant, and issuing a subpoena and [96] taking an order of publication as to him. He is certainly interested in this question as well as in the other; and he might desire, or be willing, to put the defense, if the other ground of’ defense should fail him, on the validity of the assignment and rlease. The order of publication, therefore, was properly made. The motion is to vacate it. If the permitting the order to stand, or if proceeding in the cause as it now stands, and without any action on the part of H. Thorn, would commit him to the jurisdiction of this court, so as to enable this court to make a decree against him personally, the motion might prevail. But,, if he is not subject to the jurisdiction of this court, and the subject matter which could be the foundation of any decree is not within the jurisdiction of this court, there is no propriety in vacating an order which was properly made. The issuing of a subpoena and taking an order for his appearance and publishing that order will not give this court jurisdiction, either over his person, or over the subject matter of the bill, if, from the nature of the case, the court has no jurisdiction over either. So far as relates to the obtaining a decree against him personally, ordering him to pay the money he has received, no such decree can be made unless the court acquire jurisdiction over his person; and this order would not give such jurisdiction., 'As to the other part of the case, which goes against Mary Rutherford, and involves the validity of the assignment and release procured by Herman Thorn from Elizabeth Hait and the charges of knowledge, collusion, &c. in J. R., with a view to a decree against Mary R., executrix &c., H. Thorn is either a necessary party, from hi's having procured the assignment and his interest in establishing its validity, or he is not. That it was proper that he should be named as a defendant, to give him an opportunity of establishing the validity of the assignment and release, is, I think, clear. If he be a necessary party with the home defendant, for the purposes of a decree touching the validity or invalidity of the assignment and release, and J. R.’s knowledge, collusion,, &c., then the subpoena and order of publication as against him were proper, for they would make him sufficiently a party for that purpose. Whether he is a necessary party with the home97 defendant in this view of the case, I am not now called upon to-say : his counsel will advise him as to this. If the case be such that the court cannot give relief for want of jurisdiction over either the person or the subject matter, the jurisdiction may be objected to in any stage of the proceedings ; indeed the court would take judicial notice of it, and refuse any decree; it would not make a decree which it had no power to enforce. It is otherwise where the objection to the jurisdiction is that there is a perfect remedy at law: such objection must be taken by demurer or insisted on in the answer. I see no reason for vacating the order of publication. Motion denied.