
    CHARLESTON.
    Price et al v. Laing, Adm'r.
    Decided April 26, 1910.
    1. Executors and Administrators — Rights of General Creditor— ÉUI Against Eaecutor.
    
    A general creditor of a deceased person cannot maintain a bill in equity against tbe personal representative, to charge, in his hands, the personal estate only, without showing some ground of equity jurisdiction, such as inadequacy of the legal remedies, inability to obtain satisfaction of his debt by pursuit thereof to judgment and execution, or necessity for discovery.
    2. Same — Failure to File Inventory — Bill for Discovery.
    
    Mere failure of a personal representative to return an inventory of the personal estate within the time in which the law requires him to do so, will not sustain a bill for discovery and relief in such case. Such a bill must comply with the rule, requiring a showing of necessity for the discovery, due to indis-pendability of the evidence sought and inability to obtain it otherwise than by discovery.
    Appeal from Circuit Court, Greenbrier County.
    Bill by S. L. Price and others against Thomas K. Laing, administrator. Decree for defendant, and plaintiffs appeal.
    
      Affirmed.
    
    
      Renry Gilmer and J. A. Preston, for appellants.
    
      T. K. Laing and File & File, for appellees.
   PoefeNbarger, Judge:

S. Lewis Price and others filed their bill in the circuit court of Greenbrier county, against Thomas K. Laing, administrator with the will annexed of the estate of James Laing, deceased, to recover a minimum royalty or rental accruing to them under a lease of coal lands, made to the said James Laing in his life time and dated Jan. 10, 1906. The amounts claimed are $750.00, with interest from Jan. 1, 1908, $1,000.00, with interest from • April 1, 1908, and $1,000.00 with interest from July 1, 1908. Liability to rentals to accrue in the future under the lease is also set up. The only fact alleged as a special ground for jurisdiction in equity is the failure of the administrator to return any appraisement or inventory of the estate of his testator, within the time in which he is required by law to do so, with the additional charge that the plaintiffs do not know what assets came, or should have come, to his hands, applicable to the payment of the testator’s debts. The court having sustained a demurrer to the bill and dismissed it, an appeal has been taken.

It is earnestly insisted, upon the authority of Poling v. Huffman, 39 W. Va. 320, and Hale v. White, 47 W. Va. 700, that the failure of 'an administrator to file an inventory, render an account of sales or make the settlements required by law, or any other omission of duty on his pait, gives a creditor a right to sue him in equity, on the theory of a trust, disregarded or abused, for satisfaction of his debt out of the personal estate. The first of said cases was brought by a creditor, within six months from the date of the appointment of the administrator, and the question for actual decision was, whether the right of the administrator, given by statute, to institute a suit to subject the real estate of his decedent to the payment of his debts, in.the event of a deficiency of personal estate to pay them, is exclusive during that period of six months. In discussing that question, Judge DeNT undertook to 'state briefly the ancient remedies of a creditor of a decedent’s estate. In this connection, he said such a creditor might maintain a separate bill in chancery to compel payment of his individual debt out of the funds in the hands of the personal representative; a bill on behalf of himself and other creditors to ascertain and distribute both the real and personal estate; or a bill of discovery against the personal or real representatives of the estate, to discover the assets liable to the payment of his debts. For the first proposition, he cited no Virginia or West Virginia authority. For the last one, he cited Virginia decisions. None of this was matter of actual decision, except the second proposition above stated. That is settled doctrine, for which no authority need be cited. The real estate can be proceeded against only in equity. In Hale v. White, the effort was to charge the administrator by a bill in equity in respect to personal property only. There, Judge DeNT had occasion to review and accurately define what he meant by the statement made in Poling v. Huffman; and his conclusion was that equity has no jurisdiction oí such a case, unless some special ground therefor, such as necessity for discovery or the existence of an equitable demand, is shown. Point 1 of the syllabus emphatically declares this, saying: “A general creditor of a deceased person cannot sustain a bill in equity on a purely legal demand unless he shows that he has exhausted his legal remedy, or that such remedy, for some good cause, would be inadequate or unavailing.”

It is suggested in the opinion in that case, that failure to return an inventory may confer such jurisdiction on the ground of discovery, but this is necessarily an obiter dictum, as such failure of duty was not disclosed by the bill. To lack of necessity for decision of such a question, we may attribute the indefiniteness of the terms in which the suggestion is couched. It is not tested by, nor analyzed in the light of, the rules, applicable to bills for discovery and relief, and there is added the signfieant qualification, “and the creditor is thus prevented from knowing the true condition of the estate.” Taken all together, we think the opinion, as well as the syllabus, declares the bill must make out a case for discovery as ground for relief, or set up some other equity. Lack of an inventory does not necessarily deprive the creditor of information, enabling him to determine whether there are sufficient assets in the hands of the personal representative to satisfy his debt. He may know all about the condition of the estate, notwithstanding such omission of duty, or enough to make certain his ability to obtain satisfaction of his debt by pursuit of the legal remedies, and that is all the interest he has in the estate. Such knowledge suffices his purposes and demands fully. The exact condition of the estate is a matter of no importance to him, if he has sufficient knowledge to enable him to collect his debt, that being the full extent of his interest in the estate. Moreover, if it were, he may be abundantly able to prove the exact condition of the estate by competent witnesses, other than the defendant. A bill for discovery and relief must show indispensability of the information sought from the defendant and inability to obtain it otherwise than by discovery. Prewett v. Bank, 66 W. Va. 184 (66 S. E. 231); Dudley v. Niswander & Co., 65 W. Va. 461; Thompson v. Whittaker Iron Works, 41 W. Va. 574.

Some authority from other jurisdictions for the position that a single creditor may sue the personal representative in equity for satisfaction of his debt, without showing any special ground of equity jurisdiction, upon the theory of right to an accounting from the personal representative as a trustee, or right to go into equity to enforce the due administration of a trust, is .cited and insisted upon as being founded upon reason and sound principle. There are many instances, no doubt, in which the trust relation suffices to give jurisdiction in equity, but we are unable to see that the application of this principle is broad enough to cover a case of this kind. In law, the personal representative is not the agent of the creditor. There is no relation of express or direct contract between them, upon which a special duty to render an account can stand. Their relation is that of debtor and creditor, which makes the legal remedies applicable and available. While the personal representative is, in a sense, a trustee, his trust is created, not by contract, but by law. It is not a simple. ordinary trust, such as falls exclusively within the equity jurisdiction. Moreover, practically all the authorities relied upon found the jurisdiction upon a right to a discovery of assets, or to subject the real estate of the decedent in the hands of the heirs. The leading case in this country is Thompson v. Brown, 4 Johns. Ch. (N. Y.) 619. The bill in that case averred the necessity of discovery. The same is true of the bill in Kennedy v. Creswell, 101 U. S. 641. Most of the Yirginia cases relied upon were bills to charge the real estate, as well as to administer the personal estate, on the theory of a deficiency, of personal property. Rice v. Hartman, 84 Va. 251; Hurn v. Kellar, 79 Va. 415; Carter v. Hampton’s Admr., 77 Va. 631; Duerson’s Admr. v. Alsop, 27 Grat. 229. An exception to this rule, and authority for the position taken in the brief, may be found in Beverly v. Rhodes, 86 Va. 415, but that case is not clear on this point. The opinion is short and does not set forth the pleadings. The heirs seem to have been made parties, importing an attempt to charge the real estate. For all that we can see, the bill may have shown deficiency of personal estate, and necessity of resort to the real estate. Pomeroy’s Bq. Jur., section T56, is relied upon and seems to say the right of a creditor of a decedent to go" into equity for satisfaction of his debt is never denied, on tbe ground of want of jurisdiction, but, if this is the correct reading of the text, it is admitted, in a subsequent part of the section, that “Throughput the great majority of the United States, however, this jurisdiction of equity, even where not expressly abrogated, has become virtually obsolete.” Whatever .the doctrine may be elsewhere, Hale v. White, cited, the only decision of this Court, bearing directly on the question, denies such jurisdiction in this state, and a suit in equity, undgr such circumstances, is contrary to our practice.

Perceiving no error in the decree appealed from, we affirm it.

Affirmed.  