Fairly v. Thompson

Fisher, J., delivered the opinion of the court. The object of this bill is to enjoin further proceedings, under a decree in the Probate Court of Greene county. The facts are these. One John Fairly, by his will, written in 1837, bequeathed certain slaves to his children. Some years thereafter, he gave the slaves thus bequeathed to his children, and placed them in possession of the slaves. The testator died about the year 1854, and the complainant, being the executor named in the will, inventoried the slaves which had been disposed of by the testator in his lifetime as part of his estate. This inventory is alleged to have been made through mistake. The appellees, John and Daniel Thompson, filed a petition in the Probate Court of said county for distribution, and united in this petition, without their knowledge or consent, the other children or parties alleged to be co-legatees, or distributees, of said estate. These other parties disclaimed, according to the allegations of the bill, all interest under said decree, or agency in procuring the same. It is clear, from the allegations of the bill, that the appellees, Thompsons, have not even a shadow of right to the property under the testator’s will, for the reason that the party through whom they claim, received during the lifetime of the testator, such interest as he intended her to have in the same. Under these circumstances* they should be held to the most rigid rule in regard to the enforce105 merit of the decree in their favor. It was clearly a fraud upon the jurisdiction of the court to join the numerous parties asserting no claim to the property, without their knowledge or consent, as co-complainants with the Thompsons, who were asserting an unjust claim. Aside from the question of costs thus enhanced by the joining of these parties, the claim asserted was of such a nature, that persons desiring to maintain a reputation for fairness would not assert, supposing the bill to be true; and they should not, therefore, without their consent, be placed in an attitude of asserting it. Suppose the decree of distribution should be carried out as made, and the parties should thus appear to claim under the will, it would be an abandonment of their titles under the gifts made by the testator, and they would be severally liable to the executor in another action for the property. They cannot claim the same property both under the will, and under a deed executed by the testator long before the will took effect. If they have gained an advantage by the decree for distribution, and elect to take under this decree, the complainant can compel them to surrender all claim under the gift, and to surrender the property to him before he can be required to execute the decree, as possession of the property is a pre-requisite to its execution. None of the parties, save those demurring to the bill, desire to bring about this state of things, and hence the impropriety of joining them in the petition without their consent. The decree, sustaining the demurrer to the bill, must be reversed, the demurrer overruled, and the defendants required to answer in sixty days.