Opinion
(June Term, 1845.)
1. In a suit by several joint legatees against the executor for distribution of the fund out of which the legacies are to be paid, if one of the legatees be dead, it is good cause of demurrer that the personal representative of such legatee is not made a party, either plaintiff or defendant.
2. It is not sufficient to allege in the bill that such legatee has no representative, for it is the duty of the plaintiffs to procure a representative; nor does it make any difference that the plaintiffs are the next of Kin and entitled to the share of such deceased legatee.
3. Where a bill is filed by persons in the character of legatees, and it neither sets out in its body the contents of the will, nor is a copy of it annexed, a demurrer by the defendants will be sustained, for the Court can not see that the plaintiffs are legatees.
This was an appeal from an order of the Court of Equity of MOORE, at Spring Term, 1845, his Honor, Judge Pearson presiding, overruling a demurrer, which had been filed by the defendants, and directing them to answer over. (532)
The plaintiffs state in their bill that William Martin died in 1819 having made his will in writing, in which he appointed several persons his executors, all of whom died intestate, except Archibald McBryde and Atlas Jones, who are also dead; that the defendant, Lydia McBryde, is the executrix of Archibald McBryde, and Samuel Lancaster, the other defendant, the executor of Atlas Jones. The will of William Martin was duly proved, and they state that a copy of it is annexed to their bill, which they pray may be taken as a part thereof. They allege that William Martin died, entitled to a large estate, real and personal, which came to the hands of his executors, and that, since the death of McBryde, a portion of it, to wit, two bonds have came into the possession of his executors, defendant, Lydia McBryde. They further state that they, together with Flora Martin, who is dead without issue and intestate, and without any representative, are the devisees and legatees under the will of William Martin. It appears, further, that Atlas Jones survived Archibald McBryde. The plaintiffs pray an account of the assets of Martin in the hands of the defendant Lydia McBryde, and a general account from the executors of A. McBryde and A. Jones. No copy of the will of Martin is attached to the bill, nor does any such copy appear among the exhibits of the case. A demurrer to the bill was filed by the defendant, Lydia McBryde, and overruled by the Court, from which, by leave, the said defendant appealed.
No counsel for the plaintiff.
J. H. Haughton, Mendenhall, Strange and Winston for the defendant, Lydia McBryde.
A demurrer is filed on the part of the defendant, Lydia McBryde. Several causes of demurrer are assigned, but as two of them are, in the opinion of the Court, decisive of the case, it has not been thought necessary to notice the others, and no more of the case, made by (533) the bill, is stated, than is required to shew the application of the demurrer.
The third special cause of demurrer assigned is, the want of parties. The bill alleges that Flora Martin is a legatee, under the will of William Martin, and that she is dead, and no person representing her is made a party. From the frame of the bill we are to suppose that, if legatees at all, they are jointly so. One object of a court of equity is to do complete justice to all persons interested in the matter in controversy before it. It is, therefore, a general rule that all persons interested in the subject ought to be made parties to the suit, either plaintiffs or defendants. This rule, however, admits of several qualifications, as where some of the parties are out of the jurisdiction of the Court, or where they are so numerous that it would be very inconvenient to make them all parties. Mitf. Pl., 164 166 2 Mad., Ch. 178. The bill will be sustained, if the excuse for not making them parties appears on the face of the bill. So, when a party interested is dead, his representative must be brought in, and, if there be none, he, who seeks a division of the fund, must procure a representative. Branch v. Branch, 5 N.C. 132; Shaw v. Shaw, Ib., 334; Bryan v. Green, ante, 167; 2 Mad., Ch. 178. In this case it is shewn in the bill that Flora Martin is a legatee under the will. It is not sufficient to authorize the Court to proceed without her representative to state that he has none. The plaintiffs ought to have procured one. Nor is it sufficient that the plaintiffs are, or may be, her next of kin, and are entitled to her personal property. They are not the only persons interested in her estate. If there are creditors, their claims are of superior dignity and are first to be attended to. We would observe, the case comes before us, as by appeal, and there is no motion to amend by making parties or otherwise.
Another cause of demurrer has been assigned; that the bill is defective in its frame. A demurrer in equity is similar to one in law, and is an appeal to the Court, whether the defendant shall be compelled to answer the bill. It is for cause apparent upon the face of the bill. The plaintiffs have made the will of William Martin a part of their bill, without annexing a copy, nor does the bill set forth any part of the contents (534) tents of the will, except the appointment of executors, nor that the plaintiffs are next of kin. The bill is therefore defective in its frame. We can not see, as the plaintiffs profess to shew, nor does the bill shew that they are the legatees of William Martin. If the will had been set forth, it might have appeared that, under it, they have no interest.
The interlocutory order, overruling the demurrer, ought to be reversed, the demurrer sustained, and the bill dismissed without prejudice.
PER CURIAM. ORDERED TO BE CERTIFIED ACCORDINGLY.
Cited: May v. Smith, 45 N.C. 199; Mitchell v. Mitchell, 132 N.C. 352.
(535)