
    WHEELING.
    Rexroad v. McQuain et al.
    
    Submitted September 10, 1883
    Decided April 19, 1884.
    1. It is a cardinal rule in equity that all persons materially interested either legally or beneficially in the subject-matter of the suit, must be made parties to the suit. (p. 35.)
    
      2. In a suit in equity brought by one legatee against the administrator of the testator to have his legacy paid, when the fund out of which it is to be paid is not definitely ascertained, all the legatees having an interest in such fund must be made parties to such suit. (p. 35.)
    The opinion oí tlic Court contains a statement of tbe facts of tbe case.
    
      George A. Blakemore for appellant.
    
      W. H. H. Flick for appellee.
   Snyder, Judge:

Suit in equity brought August, 1871, by Solomon Eexroad against- George McQuain in tbe circuit court oí Pendleton county to recover tbe proceeds of certain personal property. Tbe plaintiff avers in bis bill that his father, Jacob Eexroad, died testate in 1861, possesed of considerable personal property; that by bis will lie bequeathed to him, the plaintiff, all bis live stock, bis household and kitchen furniture, farming implements, mill irons .and two slaves; that the estate with the will annexed was committed to the defendant for administration, on October 3, 1861, by an order-of the county court of said county then acting under the seceded State government of Virginia, at Eichmond, the defendant being the sheriff of said county under said seceded government; that as such administrator the defendant took possession of said estate, had the property appraised and sold, but has never made any settlement ot his transactions as such administrator or accounted to the plaintiff for any part of said property or its proceeds. He prays that the defendant may be required to settle his transactions updn said estate so far as they affect the property bequeathed to the plaintiff before a commissioner and that ho may recover any balance due him and have general relief.

Johnson Sites was on his own petition subsequently made a party defendantto the cause aud filed his answer, in which he states that in 1867, he was sheriff of Pendleton county, and that by an order of the county court the estate with the will annexed of said Jacob Eexroad, deceased, was committed to him as such sheriff for administration, but no estate has ever come into his hands and he has done nothing as such administrator.

In April, 1872, the defendant, McQuain, filed his answer in which he admits the material- allegations of the bill, but denies that the plaintiff is, under the will of his father, entitled to all the personal property of the testator or the proceeds. Pie says said property was sold to pay the debts of the estate aud denies that the plaintiff is entitled to recover anything from him on account of said property.

The canse was referred to a commissioner to settle the respective administration accounts of the defendants Mc-Quain and Sites upon said estate. After several recommit-tals, the commissioner filed his final report, dated August 9, 1877, in which he finds a balance of three hundred and eighty-eight dollars and fifty-eight cents due from defendant McQain, to the plaintiff on account of the proceeds of the property bequeathed to the plaintiff and seventy-two dollars due from said defendant on account of the other property which came to his hands.

MuQuain excepted to this report, but in the view this Court takes of .the case it is unnecessary to state his exceptions.

The court, on April 28, 1880, after deducting the interest lor the period of the war from the amount found by the commissioner in favor of the plaintiff against McQuain, overruled the exceptions, confirmed the report, except as to said interest, and gave a decree for three hundred and fifty - ono dollars and twenty-two cents with interest and costs in favor of the plaintiff against the defendant McQuain, but made no order whatever in reference to the seventy-two dollars mentioned in the commissioner’s report. From this decree McQuain appealed.

It appears from the will of the testator, exhibited in this cause, that he had five children all of whom are devisees or legatees by the will. The testator disposes of all his lands and the greater part of his personal property specifically, but a part of his personal property and the debts due him, if any, he. makes no specific disposition of and this part of his estate would necessarily pass in equal portions to all of his children subject to the payment of his debts. All the said children were, therefore, necessary parties to this suit. It is true that the testator declares in his will that all his heirs shall pay an equal part of his just debts, but this does not release the administrator of the estate from liability to the creditors to the extent that assets came into his hands. The creditors have a right to look to the administrator notwithstanding the charge to which the testator lias subjected the property willed to his children.

The evidence shows that the testator was considerably indebted at the time of his death and nothing appears to show that this indebtedness had been discharged. From the great length of time that has elapsed, it may be possible that these debts have been paid, but if so, it is not disclosed by whom they were paid.

While a legatee whose legacy has been consented to by the executor may sue the executor for it at law without joining the other legatees—Brown v. Ricketts, 3 Johns. Ch. 553—still, where the fund out of which the legacies arc to be paid proves insufficient or is subject to debts, which requires a proportional abatement, from each legatee, all the legatees must be parties. Richardson v. Hunt, 2 Munf. 148; Sheppard v. Starke, 3 Id. 29; Sillings v. Bumgardner, 9 Gratt. 273.

In this cause none of the legatees, except, the plaintiff, -were parties and for that reason, I suppose, the seventy-two dollars reported by the commissioner were not decreed to any one. It is evident that this sum should have been applied in some way. But as no debts were 'reported against the estate and .the legatees were not before the court, no proper disposition could have been made of it. It is a cardinal rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit must be made parties in order that complete justice may be done to the rights of all such parties in one suit—Story’s Eq. Pl. § 72. It was, therefore, error for the court to proceed in this cause without having required the plaintiff to amend his bill by making all the legatees parties.

McQuain was a lawful administrator—Clay v. Robinson, 7 W. Va. 348; McClure v. Johnson, 14 Id. 432. But he having become such administrator while the war was flagrant and Confederate money was the general currency in circulation in Pendleton county, it was not a violation of his duty to sell the property on a credit of ten months to be paid in the currency used by the people of that county in the transaction of their business. The plaintiff seems to have acquiesced in said sale by paying for property purchased for him at the sale in Confederate money. It is proven that the estate was then considerably indebted and some of the creditors were demanding their debts. I do not think, therefore, that the appellant, McQuain, committed any breach of duty in selling the property when and as he did. But having sold the property, it was clearly his duty, when ho collected the proceeds, to have paid the same over to the creditors or the legatees or to have shown some legal and valid reason why he did not do so. If the condition of the country was such that he could be present there to sell the property and collect'the proceeds, it is not easy to see why he could not also attend there and pay over the money to those entitled. In November, 1862, when the sale-money became due it is not likely that any one in that county would have refused to receive it on debts or in payment of legacies—Simmons v. Trumbo, 9 W. Va. 358.

It seems, however, that the said administrator did not in fact pay over any considerable part of said proceeds to any one. All he paid, so far as the record here discloses, was certain taxes and the expenses of the sale and a few small debts. In settling his accounts for these transactions, had entirely with Confederate currency, he should be charged and credited with the full amount received and paid out without scaling either the debits or the credits. Estill & Eakle v. McClintic, 11 W. Va. 399.

If said administrator is properly chargeable for that part of the proceeds of said sale which he failed to disburse in Confederate money, but which was paid to him in that currency, as it seems from the facts now before us he is so chargeable, what is the extent of his liability? As the proper parties are not before the court it is not intended to decide, by what we have said or may say in this connection, whether the administrator is or is not chargeable for all or any part of the money belonging to said estate which became worthless on his hands. It is merely intended to decide the extent of his liability in case he is ultimately found to be properly chargeable with said fund. As we have held the sale of the property was legal and proper under the circumstances, the administrator could not be charged with the property as such but only with the proceeds which was Confederate money. These proceeds could not by the terms of the sale and the tenor of the notes given at the sale by the purchasers have come into his hands until the 4th day of November, 1862, the time at which the credit given at the sale expired and the sale-notes matured. The measure of his liability then would be the value of the Confederate money which he then collected or should have collected for the said property. The said undisbursed proceeds should, therefore, be scaled as of November 4, 1862, the date of the maturity of the sale bonds and not as of the date of the sale, except as to such sums as were collected by him on the day of the sale. Jarrett v. Nickell, 9 W. Va. 345; Dearing v. Rucker, 18 Gratt. 426, 438; Planter's Bank v. Union Bank, 16 Wal. 483.

Thesaid money to be scaled accordingto the rule laid down by this Court in Bierne v. Brown, 10 W. Va. 748. For the error aforesaid the said decree of the circuit court must be reversed with costs to the appellant; and this cause is remanded to the circuit court with directions to that court to permit the plaintiff, if ho asks to do so, to amend his bill by making all the legatees of Jacob Rexroad, deceased, defendants, to have the administration accounts of the defendants McQuain and Sites, respectively, upon the estate of said Rex-road fully and finally settled, and for further proceedings there to be had according to the principles announced in this opinion.

Reversed. Remanded.  