
    Thos. Penny’s Admr. v. W. W. Penny’s Admr. et al.
    Demurrer — Parties to Suit.
    A suit was filed, in the nature of a bill quia timet, for the purpose of litigating the question of right to a debt collected by an administrator, there being a dispute between the heirs of two estates as to which.it belonged. The administrator was the personal representative of one of said estates and he joined the personal representative and heirs of the other estate as defendants, all being alike interested. Held: That a demurrer thereto should not have been sustained.
    APPEAL FROM ANDERSON CIRCUIT COURT.
    
      Kavanaugh, for Appellant.
    
      Draffin, for Appellee.
    June 30, 1867.
   Opinion of the Court by

Judge Peters :

There is some contradiction between the original petition and the amendment, resulting perhaps from a misunderstanding of the facts, or unskillfulness, on the part of the attorney who drew the original; but the amended petition was in the nature of a bill quia timet, and was brought for the purpose of litigating the question of right to the debt of $858.65 which the appellant, while administrator of W. W. Penny, deceased, collected, but had not accounted for in the settlement of the estate of the intestate, which he had made, entertaining a doubt, as he did, whether the money belonged to the estate of the intestate, W. W. Penny, or of the estate of Thomas Penny, deceased, whose personal representative he then was.

In order, therefore, to have the question properly and finally adjudicated to which estate the fund belonged, the suit was brought against the personal representative and heirs of W. W. Penny, all being alike interested in a final adjustment of the question necessary to settle the estates of said decedents, and the demurrer to the petition Was, therefore, improperly sustained. Wherefore, the judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings consistent with this opinion.  