페이지 이미지
PDF
ePub

•133

were

on

the court entered an order on May 7, 1872, petition setting out that after the ratification with the consent of the solicitors for Mary of the auditors' report it had been found White and for the guardian ad litem, re that a payment of $1,523.25, made to the firm ferring the cause to the auditor to state an of P. White & Co. by John J. Joyce, had not account of the property and transactions of been credited to him; that this error could the partnership, and an account of what might not have been discovered from the books. be found to have been due from one partner alone, but was made to appear by explanato the other at the dissolution of the part tions of certain items; and that the auditors nership which existed from June 1, 1865, to had since become satisfied that in justice to June, 1870, reserving to the defendants the the estate of John J. Joyce, deceased, this benefit of the statute of limitations, if the error and others should be corrected. The plea thereof should be valid in the premises complainant prayed that the order confirming as a defense. It was ordered that the audit the report might be set aside, and the cause or advertise for the creditors of the firm to again be referred to the auditors, with propappear before him and prove their claims; er directions. that the right be reserved to the defendants The report was vacated on July 12, 1876,53 and the complainant to deny the same, or and the cause sent back to the auditors, with: plead to them; that the auditor state an ac directions to restate the account, and to make count of all debts and claims against the such corrections therein as might be necespartnership; that he have leave to employ sary. The alleged error pointed out in the such competent persons as might be agreed petition was corrected in a second report filed upon by the parties to the cause to assist by the auditors on February 13, 1877, which him; that the complainant have the right to showed that the amount due from the estate surcharge and falsify, if need be, the books, of Patrick White to the complainant was accounts, etc., kept by Patrick White; and $2,706.98, with interest from June 1, 1870. that the auditor take the depositions of all A decree ratifying the second report, and witnesses produced before him in reference again directing a sale of the partnership real to the partnership affairs, and file such depo estate, was entered on May 29, 1877, by consitions with his report.

sent of the defendants' solicitors. By consent of the solicitors for the defend On motion of the complainant, and with ants, John F. Hanna and Thomas J. Myers the consent of the solicitors for the defend

July 9, 1872, appointed *special ants, leave was granted him on May 24, 1882 auditors to assist the auditor in the cause, to file a supplemental and amended bill. A and to take testimony; and afterwards, on bill styled by him a "supplemental bill" was December 5, 1873, by consent as aforesaid, filed on the same day, in which he set out John F. Riley was substituted in the place of the proceedings above mentioned, and stated John F. Hanna, who was absent from the that since the time of filing of the original city. The special auditors proceeded to ex

bill one of the defendants, who was at that amine the books, vouchers, etc., of the part time an infant, had reached the age of 21 nership, and to take testimony; and on June years. The complainant averred that the trus18, 1875, their report was filed, signed (the tees appointed to sell the said real estate had, solicitors for defendants consenting) by John

after advertising a sale, and taking due steps F. Hanna as special auditor, and by Walter to effect the same, been unable to get a bid S. Cox, auditor of the court. The report

for either of the pieces of property. He stat. showed that the estate of Patrick White was ed that one of the said parcels was purindebted to the complainant in the sum of chased by Patrick White for the sum of $1,937.90, with interest from June 1, 1870, $572.72 at a sale made in pursuance of a deand to Robert White, a brother of Patrick cree entered in a suit brought by the firm White, in the sum of $294.23. It further ap against one of its debtors, and that the othpeared thereby that there was due to the er parcel had been conveyed to the partners said firm from the firm of Joyce & Fisher, by another debtor in payment of a debt of one of the members of which was the afore about $800. The complainant then set out the said John J. Joyce, the sum of $1,789.18 on descriptions of five certain parcels or lots of notes, and the sum of $199.88 upon open ac land in the city of Washington of which Patcount.

rick White died seised. He alleged that PatThe cause was heard upon bill, answers, rick White died intestate, leaving the said exhibits, proofs, and auditors' report; and a Mary White as his widow, and the other dedecree, consented to by the solicitors for de fendants as his only heirs at law; that Pat. fendants, was entered on September 9, 1875, rick White did not leave sufficient personal confirming the said report, and adjudging estate to pay all debts and claims against that Mary White, administratrix, was indebt him; that on September 24, 1872, Mary White ed to the complainant and to Robert White filed her account as administratrix, showing in the amounts aforesaid. It was decreed that after paying all the debts filed against that, it appearing to the court that there were the said estate there was left the sum of not suflicient assets to pay the complaint and $1,321.96; that this amount was distributed Robert White, the partnership real estate be by the court to Mary White as the widow of sold.

Patrick White, and as the guardian of her On July 12, 1876, the complainant filed a infant children, and had all been expended

901

in the education of her children, and in sup tors might be required to alle al the partnerporting herself and* them; and that at the ship books and papers in their possession time of the said distribution the complain with the clerk of the court. ant's claim against Patrick White's estate The complainants filed their answer to had not been ascertained by a decree of the this petition on December 14, 1883, admitcourt. The complainant prayed that Mary ting that the Joyce & Fisher notes, and the White, as administratrix, and in her own open account of that firm, were in favor of right, might answer the supplemental bill; the firm of P. White & Co., but averring, that a guardian ad litem might be appointed on information and belief, and from referfor the infant defendants; that the said real ence to certain exhibits filed with the anestate of which Patrick White died seised, or swer, that the sum of $731.38 had been as much thereof as might be necessary to collected from the estate of John J. Joyce. pay the complainant the amount due him, They also answered the allegations of the might be sold.

petition with regard to other alleged errors Andrew J. Joyce died on June 8, 1882. His in the second auditors' report, and stated death was suggested to the court on the 22d that they should not be surprised to find of that month, and upon motion of his exec that errors in favor of and against Andrew utrix and executor, Frances M. Joyce and J. Joyce had been committed in making the William J. Miller, they were on that day auditors' account, since they believed that made parties complainant, and the cause was to make up a true account from the books, revived in their name.

papers, and vouchers of the partnership Mary White was appointed guardian ad would be impossible, and that if the second litem of the infant defendants on July 5, report should be set aside it should be up1882, and as such filed her answer in person on certain terms, stated in the answer, on the 12th of the same month, giving a among which was that the pleas of the statstatement of the ages of the said infants, by ute of limitations should be overruled, as which it appeared that one of them was un such pleas were abandoned at the hearing der 14 years of age, and the others above that of the cause, although such fact was not age; that the defendants were the only heirs embodied in the decrees confirming the audiat law of Patrick White; that the trustees tors' reports. appointed to sell the said partnership prop The petition was on August 2, 1884, diserty had attempted and failed to do so; that missed. the prices paid for the property by the firm On April 8, 1884, Ann Joyce, the widow were as stated in the supplemental bill; that of John J. Joyce, and Mary A. Joyce, CathPatrick White died seised of the real estate erine Joyce, Philomena Joyce, Fannie Joyce, described in the supplemental bill; that he Monica Joyce, and Joseph L Joyce, the adult did not leave sufficient personal estate to pay children of John J. Joyce and Ann Joyce, all the debts and claims against the same, filed ano intervening petition stating that and submitting the rights of the infant de John J. Joyce died on May 12, 1871, leaving fendants to the protection of the court. On surviving him, as next of kin and heirs at the same day she filed her answer as a de law, the petitioners, and alleging that during fendant in the supplemental bill, admitting the lifetime of John J. Joyce he was engaged the matters and things therein set forth to be in the grocery business in the city of Washsubstantially true.

ington with Andrew J. Joyce and Patrick The court entered a decree on the same White; that about the year 1858 lie was enday, September 12, 1882, directing that the gaged in the said business with Patrick said iive parcels of land of which Patrick White, under the firm name of P. White & White died seised be sold, appointing trustees Co.; that, being indebted to Andrew J. to make the sale, and providing for the man Joyce, it was agreed that the latter should ner of advertising the same, etc.

take his place in the firm until his indebtOn August 9, 1883, Mary White filed a peti-edness should be paid; that for this purpose tion alleging that the auditors, in their Andrew J. Joyce became a member of the amended report, had failed to charge John J. said firm in his place; that while the busiJoyce, of the firm of Joyce & Fisher, former ness continued it was managed and controlly the representative of Andrew J. Joyce in led by Patrick White and John J. Joyce, the firm of P. White & Co., with the sum of and the profits thereof were appropriated $1,789.18 due on notes of Joyce & Fisher, by them to their use, and not by Andrew which bad been given by the latter firm for J. Joyce, he being only nominally connected the stock and good will of the firm of P. with the firm, for the purposes aforesaid. White & Co., and the sum of $199.88 due on The petitioners showed that Andrew J. open account, and that the auditors had made Joyce left a will providing, among other certain other errors, specifically referred to in things, that all his interest in the said the petition, whereby the defendants were firm, after deducting therefrom the sum of greatly injured. She therefore prayed to have $800, being the amount of the said debt the decree confirming the second auditors' re due by John J. Joyce to Andrew J. Joyce port set aside, and the cause referred to the at the time the latter became nominally a auditor of the court to state an account of the partner in the said tirm, should become the partnership affairs, and that the special audi property of John J. Joyce. It was alleged

[ocr errors]

that the reason for the bequest was that the September, 1882, and that James R. White, interest of Andrew J. Joyce in the said firm Lewis C. White, Charles A. White, and Fran. really belonged to John J. Joyce. The will cis P. White were yet infants, and set out the was filed with the petitioner as an exhibit, proceedings theretofore had substantially as as was also an instrument of writing execut they appear above. They alleged that there ed on April 8, 1884, referred to in the peti was error in the decree of September 12, 1882, tion, whereby Andrew J. Joyce made the entered in pursuance of the prayers of the same disposition of his interest in the firm supplemental bill, for the reasons that the as was afterwards made in his will, subject original bill was brought to settle the affairs to the said deduction of $800. The petition of the partnership, and did not allege that ers further showed that the cause was re Andrew J. Joyce was the creditor of Patrick ferred to special auditors, and that the J. White; that the infant children of Patrick auditors found that a large amount of mon White were not necessary or proper parties ey was due to Andrew J. Joyce; that for to the original bill, and could not be bound the reason that certain errors had been dis- by proceedings had thereon; that, inasmucb covered in the auditors' report, the report

as the orders and decrees in the original prowas set aside, and further proceedings were ceeding were almost all entered by consent, directed to be had for the purpose of cor the infants could not be bound thereby, even recting the same, and also that another aud if they were proper parties; that the auditors' itor was substituted in the place of one of reports showed that there was a large amount the auditors who made the report; that the of assets belonging to the firm of P. White auditors subsequently appointed had found, & Co., and that the trustees appointed to dis and were about to award, that Patrick pose of the assets had never reported to the White was not indebted to Andrew J. Joyce, court what disposition, if any, bad been made at the time of the dissolution of the partner of the same, or what application had been ship of P. White & Co., in an amount ex made of the proceeds; that the indebtedness ceeding the indebtedness of John J. Joyce found by the decree of May 29, 1877, was to Andrew J. Joyce, as aforesaid, and that, against Mary White as administratrix of therefore, if such award should be con Patrick White, and against his personal esfirmed, and the court should decree that tate only, and could not establish the claim Patrick White was not indebted to Andrew against Mary White and the said infants as J. Joyce, such decree would, as the petition the widow and heirs at law of Patrick White; ers believed, be a bar to any recovery by that the so-called supplemental bill was an the representatives of John J. Joyce against entirely new cause, and of a different nature the estate of Andrew J. Joyce for any in from the original cause, being brought by a terest which John J. Joyce owned in his life creditor of a deceased debtor against his time in the firm of P. White & Co.; that heirs, infants and adults, to subject his real the petitioners were interested in the ques estate to the debt claimed to be due; that, tion of the amount which might be found the proceeding by supplemental bill thus be due in the accounting in the cause; and ing an original action, the complainant therein that a complete determination of the con was bound to prove his claim as against the troversy could not be had without their defendants, and that the proceedings in the having the right to be heard.

suit against the administratrix, including the The court entered an order on April 15, auditors' reports, were without effect, and 1884, permitting the petitioners to intervene could not properly be used as against the de as complainants, and referring the cause to fendants in the supplemental bill, though in the auditor of the court to further state the fact they were so used, and no proof was account between the parties, and to take made by the complainant in that bill; tbat further testimony.

the court appointed a guardian ad litem for On April 18, 1884, Joseph I. Joyce, adminis the infants, without it anywhere appearing trator of John J. Joyce, deceased, and Ann that they had nominated, or declined to pomJoyce, and Mary A. Rodriguez, Catherine inate, a guardian, although the record showed Fisher, Philomena Joyce, Fannie Joyce, Moni. them to be over 14 years of age; that the orca Joyce, and Joseph I. Joyce filed an inter der appointing the guardian ad litem did not vening petition, in which was repeated the recite on whose motion it was made, and was allegations of the said petition of Ann Joyce in the handwriting of the solicitor of the comand others, filed on April 8, 1891. Leave to plainant in the supplemental bill, and that withdraw, amend, and refile this petition was the answer of the guardian at litem, which granted on May 2, 1881. The petitioners was also in the handwriting of the complainwere made parties complainant in the cause ants' solicitor, admitted all the allegations of on May 13, 1884.

the supplemental bill; that the decree foundOn June 13, 1884, an order was entered re ed upon the supplemental bill purported to straining further proceedings under the de be entered by consent of the solicitor of the cree of Septeniber 12, 1882, and on the same defendants therein, whereas the record did not day the defendants in the original and supple show that they appeared by solicitor; tbat mental bills, upon leave granted by the court, the infants could not be bound by the confiled a bill of review. Therein they stated sent of a guardian ad litem or solicitor; that that Mary S. White had become of age since the decree was absolute, and did not give the

OD

Infants a day after they should become of ing of the solicitor for the complainants in age to show cause against the same; that one the supplemental bil; and admitted that the of the defendants in the supplemental bill bad decree of September 12, 1882, was absolute, since become of age, and, by the bill of re and did not give a future day in court to such view, showed cause why the said decree of the defendants as were infants, and should be reversed and set aside; that it ap stated that they were advised that in such peared from proceedings had since the enter a case a decree is never given to infant deing of the said decree that the administrator fendants when they shall have become of age of John J. Joyce was the real party com to show cause against the decree. plainant, and that John J. Joyce, as a partner Joseph I. Joyce, administrator, and Ann in the firm of Joyce & Fisher, was indebted Joyce and others, demurred to the bill of reto the firm of P. White & Co. in the sum of view; and, the demurrer having been over$1,537.99, with interest from June 1, 1870, ruled, they appealed to the said court, in genand also in the sum of $163, with interest eral term. Afterwards, on April 28, 1886, from June 1, 1870, which sums were among Joseph I. Joyce, administrator, filed an anthe uncollected assets of the firm of P. White swer adopting the answer of Frances M. & Co., one-half of which should be applied Joyce and William J. Miller as his own. to the payment of any indebtedness of Pat Testimony was taken with relation to alrick White before his real estate should be legations of the bill of review concerning sold to pay debts alleged to be due to John various items of account, etc.; and the cause J. Joyce or bis administrator; that the record coming on to be heard upon the bill of rein the case since the entry of the decree view, answers, and proceedings thereon, a de. founded upon the supplemental bill presented cree was entered November 22, 1888, new facts in the case, and brought in new whereby the said decree of September 12, complainants, against whom the defendants 18S2, was reversed. The defendants in the (complainants in the bill of review) had a bill of review took an appeal to the said good defense; that, since the entry of the court in general term, where, on December said decree, errors had been discovered in 2, 1890, the said decree of reversal entered the auditor's account injurious to the estate in special term was set aside and the bill of of Patrick White. The complainants prayed review dismissed. Thereupon the complainthat the decree of September 12, 1882, might ants (defendants in the original proceedings) be set aside.

appealed to this court. Frances M. Joyce and William J. Miller, executrix and executor, filed their answer to

A. S. Worthington and Henry Wise Garnett, the bill of review on June 13, 1884. They re

for appellants. James Coleman and William ferred at some length to matters set out in

J. Miller, for appellees. the bill of review bearing upon the correctness of certain items of the auditor's report, Mr. Justice SHIRAS, after stating the and relating to the state of the accounts be facts in the foregoing language, delivered the tween the parties, and in reference to the opinion of the court. grounds upon which the complainants asked The view that we take of this case renders the court to treat the decree of September 12, it unnecessary for us to consider all the 1882, as erroneous, the respondents denied questions presented by its somewhat comthat the complainants in the bill of review plicated facts, and discussed in the arguwere improperly joined as defendants in the ments and briefs of counsel. original bill; admitted that the supplemental The bill originally filed on November 29, bill was filed as a creditor's bill by a creditor | 1871, by Andrew J. Joyce, as surviving partof a deceased debtor against his heirs, both ner of the firm of P. White & Co., against adults and infants, to subject the deceased Mary White, the administratrix of Patrick debtor's real estate to the payment of his White, the deceased member, alleging that indebtedness, and that the supplemental bill there had never been a settlement of the was filed on the alleged ground that the de- | affairs of the partnership, and that upon ceased debtor did not leave a sufficiency of such settlement there would be a balance personal assets to pay his debts; averred that due the complainant, was, upon such allethe indebtedness of the deceased was found gations, altogether a proper one, in enterby a decree of the court in the cause, and was taining which no fault can be found with proved by the supplemental bill and by the the court below. And as it further appears sworn answers of the adult defendants, Mary that there was real estate which had been White and Francis P. White, and the sworn purchased with firm money, and which was answer of the infant defendants through standing in the name of Patrick White, it Mary White, their guardian ad litem, and by may be conceded that there was no imthe administratrix of Patrick White's estate; propriety in making the widow and children admitted that the decree appointing Mary of the deceased partner parties defendant to White guardian ad litem did not show on such bill. Of course, the only purpose in whose motion the appointment was made, making the widow and heirs parties was to and that it did not show that the infant de estop them from claiming title to the real fendants nominated, or declined to nominate, estate standing in the name of Patrick a guardian, and that it was in the handwrit White which belonged to the firm, and the

[ocr errors]

143

sale of which was necessary to pay the part come to the bill of review filed on June 13, nership debts.

1884, by the widow and children of Patrick The bill alleged that the children of Patrick White, by which it was sought to set aside White were infants, under the age of 21 the decree of September 12, 1882. The bill years, and asked that the court appoint a complained of many mistakes of fact and guardian ad litem; and the record discloses irregularities in the proceedings, which we that the court so appointed one James White, do not find it necessary to notice. What we who filed an answer as such, in which it do deem essential allegations are those in was alleged that said infants.could not ad which it is stated that the original bill, filed mit or deny the allegations of the bill of on November 29, 1871, was a bill in equity complaint, and that the guardian therefore brought by a surviving partner to settle the submitted their rights and interests to the affairs of the copartnership, and that the bill protection of the court. This answer was filed May 24, 1882, upon which the decree of filed January 5, 1872.

September 12, 1882, was founded, was an Auditors were appointed to state an ac entirely new cause, of a different character count, and the case was so proceeded in that and nature from the original cause, being a on May 29, 1877, a decree was entered con bill in equity by a creditor of a deceased firming the auditors' report decreeing that debtor against his heirs, infants and adults, there was du from Mary White, adminis to subject his real estate to the debt claimed tratrix of Patrick White, deceased, to the to be due; that this was a suit under the act complainant, the sum of $2,700, with inter of Maryland of 1785 (chapter 72), and could est from June 1, 1870; that there was due not properly be regarded as supplemental to by the partnership the sum of $294; that the first bill. the real estate mentioned in the bill was The section of the act referred to is in the partnership property, and was to be sold in following terms: order to settle the partnership and pay the "If any person hath died, or hereafter shall indebtedness, and appointing trustees to die, without leaving personal estate sufficient make such sale.

to discharge the debts by him or her due, and No further proceedings are disclosed by shall leave real estate which descends to a the record until, on April 20, 1880, the trus minor or person being idiot, lunatic, or non tees, who had been appointed to make sale compos mentis, or shall devise said real estate of the real estate, filed their bond condi to a minor or person being idiot, lunatic, ornon tioned for the faithful performance of their compos mentis, the chancellor shall have full duties.

power and authority, upon application of any On May 24, 1882,-more than 11 years creditor of such deceased person, after sumafter the death of Patrick White, and 5 moning such minor and his appearance by years after the entry of the decree settling guardian, to be appointed as aforesaid, and the account between the partners, and or hearing as aforesaid, and the justice of the dering the sale of the partnership real es claim of such creditor is fully established, if, tate,-Andrew Joyce filed another bill, which upon consideration of all the circumstances, it he styled a "supplemental bill," in which, shall appear to the chancellor to be just and after stating that the trustees had, after ef proper that such debts shall be paid by a sale fort made, failed to sell the said partner of such real estate, to order the whole or part ship real estate, it was alleged that Patrick of the real estate so descending, or devised to White had died seised and possessed of cer be sold for the payment of the debts due by tain real estate, and it was asked that a de the deceased." cree should be granted ordering the sale of This statute was considered by this court in such real estate. To this bill Mary White, the case of Ingle v. Jones, 9 Wall. 495, and it administratrix of Patrick White, deceased; was held that "it makes the proceeding Francis P. White, a son who had become of against the administrator and the heir, when age since the filing of the first bill; Mary the latter proceeding is necessary, entirely inWhite, widow; Mary S. White, James R. dependent of each other. The duties of the White, Lewis C. White, and Charles A. administrator are confined to the personal esWhite, minor children of Patrick White, de tate, and never extend beyond it. If that ceased,-were made defendants. By an or be insufficient to discharge the debts, and it der made July 5, 1882, Mary White, the be necessary to resort to the realty of the demother, was appointed guardian ad litem, ceased for that purpose, a proceeding against and as such she filed an answer in which it the heir must be instituted. In that event, was stated that said infant defendants sub whatever has been done by the administrator mitted their rights to the protection of the is without effect, as to the property sought to court. Mary White and Francis P. White be charged. A judgment against the adminisfiled an answer admitting the allegations of trator is not evidence against the heir. The the bill. The result was a decree dated Sep demand must be proved in all respects as if tember 12, 1882, ordering a sale of the real there had been no prior proceeding to effect estate of Patrick White, deceased.

its collection, and the statute of limitations Without repeating the history of the sub may be pleaded with the same effect as if sequent proceedings, which are detailed at there had been no prior recovery against the lengtb in the statement of the facts, we personal representative."

« 이전계속 »