
    Whitfield Walker and others vs. Ludy F. Pinson, Ex’r.
    
      Jurisdiction — Account—Ordinary—Executor—Legacy.
    A decree by the Court of Ordinary against an executor for payment of a legacy to the assignee of the legacy, from which decree no appeal is taken, is no bar to a bill in equity by the assignee against the executor for account; the Court of Ordinary haying, under such circumstances, no power to enforce its decree.
    BEFORE INGLIS, CH., AT LAURENS, JUNE, 1861.
    This case -will be sufficiently understood from the Circuit decree, which is as follows:
    Inglis, Ch. Joel W. Pinson, late of Laurens District, who died some time prior to the 17th June, 1856, left in force at his death a will, whereof Ludy E. Pinson, the defendant in the present cause, was named and qualified executor. Jabez E. Pinson, a son of the testator, entitled under the disposition of the will to a pecuniary legacy of three hundred dollars, and a distributive share in the residue, on the 17th November, 1856, by his deed of that date, for the consideration of two thousand five hundred dollars to him paid, as is therein recited, assigned and conveyed all his interest in the estate to Whitfield Walker and William G. Glenn, partners in trade under the name of Walker and Glenn. On the 16th October, 1858, Walker and Glenn made a general assignment to Henry L.Euller of all their joint and separate estates for the benefit of creditors. Proceedings were subsequently instituted in' the Court of Ordinary for Laurens District for an account from the executor and a settlement and distribution of the estate, to which proceedings all the legatees and distributees appear to have been made parties. Walker and Glenn, in their capacity of assignees, intervened, and claimed the legacy to Jabez E. Pinson and his distributive share in the residue under Ms deed to them. The Ordinary made bis decree on the 10th June, 1859, determining the residue in the executor’s hands, ascertaining the shares of the several parties therein and the amount in money due to each, and ordering payment thereof. He disallowed the claim of Walker and Glenn, on the ground that the deed under which it was asserted had been executed under duress, and was consequently void, and required the executor, Ludy E. Pinson, to pay to Jabez R. Pinson himself the sum which had been ascertained to be the amount of Ms interest in the estate, to wit, two thousand and ninety-six dollars and ninety-eight cents. All parties acquiesced in this decree except Walker and Glenn, who, affirming the validity of the deed of Jabez R. Pinson and their consequent title to his interest in the estate, either absolutely or at least as a security for the satisfaction of certain claims held by them against him, and alleging error in the judgment in these particulars, brought their appeal upon these grounds: first, to this Court, and failing here, prosecuted the same before the Court of Appeals. At December term, 1859, the cause came to a hearing, and the judgment of the Ordinary, which had been affirmed here, was reversed, and the cause was “remitted to the Court of Ordinary, without prejudice to any equitable defence or claim to equitable relief on the part of Jabez R. Pinson against the said deed, to be asserted before the Ordinary, if he have jurisdiction, or elsewhere, as the said Jabez may be advised.”
    On the 15th June, 1860, the Ordinary made his final decree in the cause, and therein ordered “ that Ludy Pinson, executor of the estate of Joel W. Pinson, deceased, do pay the share of Jabez Pinson in the personal estate of said deceased, amounting to two thousand and ninety-six dollars and eighty-five cents, to Walker and Glenn, assignees under the deed of assignment made by the said Jabez to the said Walker and Glenn, with interest from the 8th March, 1859.”
    
      Whitfield Walker, William G. Glenn, and Henry L. Puller bring the present bill against Ludy P. Pinson in his capacity of executor of the will of Joel W. Pinson, alone. It is said at the bar, and to this the stating part of the bill seems to conform, that the object of this suit is to enforce the execution of the Ordinary’s decree, although no such relief is specifically prayed. The defendant objects that neither he nor Jabez B. Pinson was legally notified of the final hearing before the Court of Ordinary when the decree was rendered, of which the execution is now sought. The object of a citation or summons is to make the persons to whom it is ■ directed parties to the proceeding in the Ordinary’s Court. When this has been done, the parties must be considered in Court during the whole pendency of the suit, and until its consummation in the final judgment. It may be that, in a case like the present, where the hearing was not upon an adjournment from one day to another, of which all parties must take notice, those interested were entitled to some reasonable advertisement of the time and place of the further hearing. This much, according to the testimony of the Ordinary, the present defendant and Jabez B. Pinson seem to have had. The executor, in person, was verbally notified by the Ordinary of the time for the hearing, and in reply said, he should pay no further attention to it. The attorneys, who had represented Jabez B. Pinson throughout the whole previous course of the proceedings, were told of the day appointed for the hearing, and were requested to attend. They were present, and made no objection, on the ground of want of notice to their client personally, but declared they had no further showing to make for him. It seems to the Court that these parties cannot object to the Ordinary’s decree for the want of notice of the hearing.
    But has this Court jurisdiction to enforce the execution of a decree rendered in the Court of Ordinary upon a bill for this purpose merely ? This Court will, of course, entertain a suit to compel an executor to pay and deliver a legacy. But, in the present instance, what was originally only an equity has, by the proceedings before the Ordinary, become a clear legal right. Ordinary vs. Matthews, 7 Bich. 30. The demand for a legacy of unascertained value, which the present plaintiffs were equitably entitled, as assignees, to make, has now become merged in a judgment of a Court of competent jurisdiction. That which is here sought to be recovered is a decree in favor of the plaintiffs, Walker and Glenn themselves, against Ludy E. Pinson, the executor, for the payment, by the latter to the former, of a specific sum of money. The proceeding here, in this aspect of the case, is a mere action of debt upon judgment. The remedy is exclusively at law by suit in the Common Pleas. The ease of McCullough vs. Daniel (Harp. Eq. 255) seems, in this respect, to have been just such a case as the present, and is conclusive against the plaintiffs’ right to maintain the suit here.
    In Me Cullough vs. Daniel, the plaintiffs, besides seeking to enforce the judgment of the Court of Ordinary previously rendered against the executor, prayed also an account from him of his administration.^ The Court, refusing the former relief, gave the latter, and ordered the executor to “ account before the Commissioner for the administration of the estate of his testator,” without regard to the Ordinary’s decree. The report of this case in Harper is very brief. A particular or two may be found added by Hill, reporter, in a note to Miller vs. Alexander, where the case is cited with approbation by O’Neall, J., 1 Hill’s Ch. 28. In the present cause the only form of specific relief prayed for is, that the “ executor, Ludy E. Pinson, may be required by the decree of this Court to come to an account with the plaintiffs for his actings and doings as executor aforesaid, and upon such accounting to pay over to them whatever amount may be ascertained to be due them as assignees of Jabeü B. Pinson, with interest and costs.” The plaintiffs do not charge any specific errors in the accounting before the Ordinary, upon which his decree was founded, either apparent on the face of it or otherwise, or any fraud on the part of the executor, or collusion between him and the Ordinary, or any other matter of objection as constituting a ground for the examination of the account, or its restatement in this Court. O’Neall, J., in Miller vs. Alexander, already referred to, expresses an opinion, obiter, that upon such grounds a decree of the Ordinary might be reviewed in this Court. The case does not, however, so determine, as the question was not necessarily involved. The plaintiffs here insist that the decree of the Ordinary, now under consideration, is final and conclusive. The Court of Ordinary certainly has jurisdiction, at the instance of a residuary legatee, to call the executor to account for his administration, and to ascertain and decree payment of the share, and, except upon appeal, its judgment ought, as it would seem, according to all rule, to be regarded and treated in every other tribunal as conclusive upon the parties. Brown vs. Gibson, 1N. & McC. 326; Starke vs. Woodward, lb. 329; Botifern vs. Weyman, 1 McC. 156. When McCullough vs.Daniel was decided, appeals from the decrees made in the Court of Ordinary were required to be taken in all cases (including matters of account) to the Court of Common Pleas, and the practical difficulties attending the investigation of extended accounts, according to the modes of proceeding in that jurisdiction, probably led to some relaxation here of the general rule, and induced this Court to exercise its concurrent jurisdiction, even after decree of the Court of Ordinary. Wallis vs. Gill, 3 McC. 475; Ordinary vs. McClure, 1 Bail. 7; Chambers vs. Patton, lb. 130; Mitchell vs. Connelly, lb. 203; Neville vs. Robinson, lb. 361; Simkins vs. Cobb, 2 Bail. 60; Clark vs. West, 2 Bich. 314, are cases conceding or illustrating the embarrassment which such appeals occasioned to the law Court. The Act of 1839, Sec. 13, (11 Stat.42,) directs that appeals from any judgment, decree, &c., of the■ Ordinary, “upon a matter of account,” shall be brought to this Court; and provides,, that “ if the Court should approve of said decree, the party in whose favor it may be may forthwith issue his writ of fieri facias to enforce the same; if the Court should modify the said decree, it may order the Commissioner to restate the accounts, and, upon his report made and confirmed, the party in whose favor it may be shall be entitled to a writ of fieri facias to enforce the decree.” It can scarcely be, that in this state of the law this Court will sustain an original suit for an account and distribution, when the whole matter of the suit has been already adjudicated between the same parties in the Court of Ordinary. Restrained by the authority of McCullough vs. Daniel, as well as by sound reason, from decreeing the payment of the judgment rendered in the Ordinary’s Court, this Court does not feel at liberty, in the new condition of the statute law, to grant the relief which was accorded in that case, and which is specifically prayed for here, by ordering an account from the executor of his administration. If this could be done in any case of this kind, there is here a defect in the pleadings, as it seems to the Court, which it would bé necessary should be first cured. To a bill by a distributee or residuary legatee, calling upon the executor for a general account of his administration and a distribution of the surplus, all those entitled to participate in the distribution, being materially interested in the subject, ought to be made parties for the protection of the executor. And to a bill, by one claiming as assignee of one of the parties originally entitled, for such purpose, it would seem that the assignor should be a party. In the present case, the only parties are the claimants of the single share, as assignees, and the executor. With regret that a delay, already perhaps vexations, should be further protracted, this Court feels constrained to dismiss the bill, and it is so ordered.
    
      The complainants appealed from the decree, and now moved this Court to reverse the same, on the grounds:
    1. Because the complainants had no plain and adequate remedy at law, and were relievable only in this Court.
    2. Because Henry L. Puller, the assignee of Walter and Glenn, as well as the said Walter and Glenn, by virtue of their assignment to him, had only an equitable interest in the legacy of Jabez R. Pinson, which was subsequent to the assignment decreed by the Ordinary to be paid to Walter and Glenn, and his only remedy to recover the same was in this Court exclusively.
    3. Because the compláinants’ bill was well filed in this Court for an account against the executor, who was the only necessary defendant, as the decree of the Ordinary fixed the amount of Jabez R. Pinson’s legacy, and the other parties interested in the estate of Joel W. Pinson acquiesced therein as well as the said executor.
    4. Because the established practice is not to sue at law for a legacy, but to file a bill in this Court.
    
      Sullivan, for appellants,
    cited 1 Story Eq., Secs. 429, 430, 431; 3 Dan. Ch. Pr. 1689, 1691; Ludlow vs. Simons, 2 Cain Ca. 1; 10 Johns. 587; Caldwell vs. Giles, Riley Ch. 120; Sp. Eq. 427; 11 Rich. Eq. 110.
    
      Young and Simpson, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

The principal inquiry is, whether the plaintiff had a plain and adequate remedy at law. After a delay in the proceedings before the Court of Ordinary and in this Court, which the Chancellor says has been “already protracted and perhaps vexatious,” it would be a source of regret to find that, being now remitted by this Court to the ordinary tribunal, he should find the remedy incomplete. The plaintiff is satisfied with the final decree of the Ordinary made 15th June, 1860; has no ground of complaint or objection, and does not desire to appeal. Under these circumstances, the Act of 1839 affords him no remedy to enforce the decree, either by writ of fieri facias or otherwise.

The original demand in this case was that of a legatee against an executor for payment of a legacy: a subject peculiarly proper for the cognizance of a Court of Equity. The legatee had, however, invoked the aid of the Ordinary, and, pending the proceeding, Walker and Glenn intervened as assignees of this chose in action. They made a general assignment to the plaintiff for the benefit of their creditors. To carry into effect the decree of June, 1860, by requiring an account and payment, these proceedings were thereupon forthwith instituted. The Chancellor declared himself restrained by the authority of McCulloch vs. Daniel, Harp. Eq. 255. In that case it is worthy of remark that, although the prayer of the bill to enforce the decree was not allowed, the defendant was ordered to account in the Court of Equity for his administration of the testator’s estate. It appeared in the sequel that he rendered an account, and, on such accounting, the bill of the plaintiff was dismissed. The right of the plaintiff to enforce the decree of the Ordinary in a Court of law is commended in the circuit decree upon the ground, as stated by the Chancellor, that, “according to all rule, the judgment of the Ordinary is to be regarded and treated in every other tribunal as conclusive upon the parties.” In McCulloch vs. Daniel this is stated hypothetically. The judgment of the Ordinary, say the Court, “ if conclusive against the defendant, may be enforced by an action at law.” The result, however, demonstrated that such judgment was not regarded as conclusive upon the parties ; and such has been the decision of our tribunals even in an action upon the official bond of an administrator. See Simkins vs. Cobb, 2 Bail, 60. As we do not think tbe Act of 1839 affords any aid to tbe plaintiff in enforcing the judgment of the Ordinary in the existing circumstances, so neither do the provisions of that Act preclude him from asking the same measure of relief as was extended to the complainant in McCulloch vs. Daniel. If there be any defect in tbe pleadings, it may be amended by proper application to tbe Circuit Court, to which the cause is remanded; and tbe decree of tbe Chancellor is reformed accordingly.

Wardlaw and Inglis, J. J., concurred.

Decree reformed.  