Parrott vs. Nesbitt et al.

Money rule. Before Judge FAIN. Gordon superior court. August term, 1887.

Reported in the decision.

R. J. MCCAMY, W. J. CANTRELL & SON and O. N. STARR, for plaintiff in error.

W. R. RANKIN, DABNEY & FOUCHE and E. J. KIKER, contra.

BLANDFORD, Justice.

This was a rule brought by Willingham against the sheriff, to distribute a certain fund in the sheriff's hands, to wit, the sum of $1,125, arising from the sale of certain lands as the estate of William A. Nesbitt, under a fi.fa. in favor of Willingham. The sheriff answered that this fund was claimed by divers executions of older date than that of Willingham, to wit: an execution in favor of one Cullins against William A. Nesbitt, principal, and R. H. Nesbitt, security, on appeal bond; an execution in favor of Young, Jackson & Co. vs. William A Nesbitt, which had been transferred to R. H. Nesbitt; and an execution in favor of Mrs. Parrott, adm'x, vs. R. H. Nesbitt, adm'r. The Cullins execution was the oldest; the next in order of date being the Young, Jackson & Co. execution and the Parrott execution.

The matter was left to the court, without the intervention of a jury, and the court adjudged that the fund, after the payment of certain costs and attorneys' fees, be paid to R. H. Nesbitt, "to be applied first" to the Cullins fi. fa. To this Mrs. Parrott excepted.

It appears from the evidence that, in 1868, R. H. Nesbitt bought from his brother, William A. Nesbitt, a certain tract of land, and paid the purchase money therefor upon the Cullins execution, taking a transfer of that ex

Mayer vs. Hover.

cution to himself. A balance still remained due and unpaid on the execution. In 1873, certain lands belonging to William A. Nesbitt were sold by the sheriff, under the Young, Jackson & Co. execution; and a rule was brought against the sheriff to distribute the fund arising therefrom; to which the sheriff answered that the fund was claimed by the Cullins execution; but no final order of the court distributing the fund was ever made. Afterwards, other lands belonging to William A. Nesbitt were sold by the sheriff. If the amounts arising from these sales had been placed upon the Cullins execution, they would have more than extinguished it, and would have left something to go upon the Young, Jackson & Co. execution.

We think that, under the facts of this case, the court erred in ordering the fund in the hands of the sheriff in this case to be paid on the Cullins execution; and upon that ground, and without saying what is due on these other executions, we reverse the judgment of the court below.

Judgment reversed.

MAYER US. HOVER.

To an action of ejectment brought by David W. Mayer against Lemuel L. Hover, the defendant filed the following special plea: That the premises sued for were a portion of the property devised by John Hover to John F. W. Hover, it being provided by the will of John Hover that if the said John F. W. should die unmarried and without children or the representatives of children, before arriving at the age of twenty-one years, the property should be divided between the children of defendant and Mary A. C. Mayer, share and share alike; that the will was duly probated by defendant, nominated as one of the executors, and who duly qualified as such; that John F. W. Hover died before arriving at the age of twenty-one years, unmarried and without children or the representatives of children; that at the time of his death, there were in life only one child of defend. ant, named Benjamin, and two children of Mary A. C. Mayer; that

Mayer vs. Hover.

on January 11, 1863, after the death of one of the children of Mary A. C., a bill in equity was filed by her, her husband and her only surviving child then in esse, and said Benjamin Hover, the two children being infants represented by next friend, against defendant, as executor, in the superior court of Chatham county, to its May term, 1863, stating the facts of the will, the death of John Hover, the item of the will before referred to, the death of John F. W., defendant's refusal to distribute the property because of doubt as to the construction of the item and the relation of parties complainant to each other, and praying the court to construe the will, etc., and to direct distribution and the portion that each distrubutee should receive; that defendant, as executor, answered, admitting the facts, and at the January term, 1864, of the court, a decree was passed, after hearing, directing the defendant to distribute the property, one-half to Mary A. C., and the other half to the son of defendant; that he obeyed the decree; that the land for which plaintiff has brought his action was of the half allotted to the defendant's son; that after the execution of the decree, the son died intestate, and the defendant, as his father, became his sole heir; and that plaintiff is a son of Mary A. C., born after the rendition of the decree. In reply to this plea, the plaintiff insisted that the decree was void for want of jurisdiction in the court to construe a will devising a legal estate, except upon the application of the personal representatives, and because the court had no jurisdiction after the assent of the executor, it being admitted that the executor assented to the legacy mentioned, and that John F. W. Hover died without children, etc., as pleaded, on April 23, 1863.

Held: 1. Under the bill and answer, the court had jurisdiction to ren

der the decree in question; and to render the decree, it was necessary to construe the meaning of the item of the will, so as to determine how the property should be partitioned.

(a) It is well-settled that a court of equity has jurisdiction in cases of partition, whenever the remedy at law is insufficient, or the peculiar circumstances of the case render a proceeding in equity the more suitable and just.

2. The court having jurisdiction of the persons and the subject-matter contained in the bill, the decree was not void, and the plaintiff is bound by it, although he was not born until afterwards.

3. There is some doubt, from the record, as to the term to which the bill was made returnable. In such a case, it will be presumed that the chancellor had before him sufficient proof on the subject to authorize him to grant the decree at the time he did so.

4. The item of the will in question gave the property to the children of Lemuel and Mary per stirpes and not per capita. This being true, the present plaintiff has no right or interest in the half of the property which was distributed to the child of Lemuel.

July 11, 1888.

Mayer vs. Hover.

Wills.

Jurisdiction. Partition. Decrees.

Before

Judge ADAMS. Chatham superior court. December term, 1887.

The bill in question in this case was filed by S. A. Mayer and his wife, Mary A. C. Mayer, and by S. A. Mayer as next friend of Julia C. H. Mayer, alleged in the bill to be the only child of himself and his said wife, and as next friend of the only child of L. L. Hover, defendant in the bill. The bill alleged, among other things, that the only other child of S. A. and Mary A. C. Mayer, to wit, Margaret Mayer, had died about months before the filing of the bill and after the death of John F. W. Hover, the life tenant. No subpœna to any specific term of the superior court was prayed in the bill. Service of the bill was acknowledged and copy and subpœna waived on January 11, 1863. Upon the answer of L. L. Hover, executor, to this bill, appears no entry of filing, but the caption to this answer states the case as of January term, 1864, and at said term the decree in question was rendered.

The plaintiff in the present case was a son of S. A. Mayer and Mary A. C. Mayer, and was born May 30, 1865. Among other evidence, said plaintiff introduced the family bible of his father and mother, showing an entry of the birth of Margaret Mayer May 5, 1862, and of her death July 1, 1863.

Among other evidence, the defendant introduced the statement of the solicitor who represented the complainants in the bill above mentioned, to the effect that he had no knowledge touching the filing or non-filing of the bill and answer, and could only say that, from his method then of conducting business, from the case being an amicable one and from his having obtained acknowledgment of service a year before the decree, he had no

Mayer vs. Hover.

doubt that the bill was filed at the May term, 1863, of Chatham superior court.

The other material facts are stated in the opinion.

J. A. CRONK, R. R. RICHARDS and ISAAC BECKETT, for plaintiff.

CHAS. N. WEST, for defendant.

SIMMONS, Justice.

David W. Mayer brought his action of ejectment in the superior court of Chatham county for certain lots of Hover, the defendant, filed a special plea, as fol

land. lows:

"And the said defendant, for a further plea in this behalf, says that the said plaintiff ought not to have and maintain his aforesaid action against him, because, he says that the said plaintiff hath no title to the land and premises in the said plaintiff's declaration set forth and described; in this, that the said land and premises were a portion of the property devised by John Hover, by his last will and testament, to John Fortescue Warrington Hover, by which will it was provided that if the said John F. W. Hover should die unmarried and without children or the representatives of children before arriving at the age of twenty-one years, the said property should be divided between the children of the said defendant and Mary Ann Cornelia Mayer, share and share alike; that the said will was duly probated in the court of ordinary of Chatham county by the said defendant nominated by said will as one of the executors thereof, and that the said defendant duly qualified as executor thereof; that the said John F. W. Hover died before arriving at the age of twenty-one years, unmarried and without children or representatives of children; that at the time of his death, there were in life one child only of this defendant, Benjamin by name, and two children of the said Mary Ann Cornelia Mayer; that on the 11th day of January, 1863, and after the death of one of the said children of the said Mary A. C. Mayer, a bill in equity was filed by the said Mary A. C. Mayer and her husband, Serenus A. Mayer, and Julia Catherine Mayer, the only surviving child of the said Mary A. C. Mayer then in esse, and the said Benjamin, the said Julia Catherine Mayer and Benjamin Hover being infants and parties complainant by their next friend Serenus A. Mayer, against the said defendant, as executor as aforesaid, in the superior court of Chatham