Lyon v. Howard

By the Court.

Starnes, J.

delivering.the opinion.

[1.] For the purposes of the demurrer, the allegations of this bill must be taken as true; and so receiving them, they present a very strong case for the interposition of a Court pf Equity — one in which such a Court, only, can give adequate relief. They present a state of facts, of which the complainant could not have availed himself, in defence of the action instituted against him by the administrator ; for his .claim was .not on the estate of John Howard, but was an equitable claim upon this fund, as against the legatees, by -reason of ithe.ir *485■agreement; and no defence which he could have made to that action would, therefore, have afforded him .protection. The Court below did right in rejecting it, in the Common Haw action of the administrator against him. He should not, consequently, be prejudiced in his claim against these legatees, now asserted in Equity, by reason of the administrator’s judgment against him, if he can show reasons why they should be made to account with him concerning it; and he does exhibit such reasons, if he show that these legatees have agreed that this fund should go to the support of Mrs. Howard, that there are no other persons interested in this estate, and that his bill for the support of Mrs. Howard is correct.

It is not a good objection, that the complainant has a remedy at Common Law. That remedy is not adequate, for the reasons assigned in the bill. He can only have complete , protection, if his case be that which he has set forth by the aid of a Court which can hold back the hands of this administrator, until the legatees can be brought into account with the complainant — a Court having authority to bring all these parties •before it, and thus save multiplicity of suits, and accumulation •of expenses and costs.

[2.] Neither is it a good reason why this bill should have been dismissed, that the daughters of John Howard, and wives •of some of these defendants, were not made parties to the bill, as being entitled to an equitable settlement out of this fund. 1. The amount coming to each of these eleven legatees, out of five hundred and forty-two dollars, is so small as to make it questionable whether or not it would be expedient to give direction to it as a settlement upon wife and children. 2. If these femes covert should have been made parties, it might have been done by amendment. It is, perhaps, advisable that they should be made parties; but this can and should be done by amendment; and the bill should not, on this account, be dismissed. There may have been no formal motion to amend, but the principles of substantial justice, and the practice in Courts of Chancery, authorize a Chancellor, under such circumstances, to di*486■rect an amendment rather than turn the parties out of Court. ( Wade vs. Parker, 2 Keene, 59. Robert & Wife vs. West & Reid, 15 Ga. 148.)