#### *Williams v. Williams & als.

April Term, 1854,

Richmond.

Administrators—Right to Have Proceeds of Land Applied to Debt-Case at Bar.*—W. who is a creditor of T, qualifies as his administrator, and exhausts the personal estate in payment of debts, leaving himself still a creditor. The heirs of T file a bill in the County court tor the sale of liis land, and the same is sold upon a credit, and a part of it is purchased by W, who executes his bond for the purchase money. W then files his bill in the Circuit court to enjoin the payment of the purchase money of the land to the heirs, claiming that he is entitled to have it applied in satisfaction of his debt. Harm:

1. Same—Same—Same.—That W is entitled to have the proceeds of the land applied to the payment of his debt.

2. Same—Same—Enjoining: Payment of Purchase Money to Heirs.—That the injunction should only go to restrain the payment of the purchase money to the heirs of T; and should not restrain the collection of the money by the County court.

3. Same—Same—Same—Where Petition Should Have Been Filed.—Although it would have been more regular for *W*to connect himself by petition or bill, with the proceedings in the County court, in which the fund had been realized, yet there is no serious objection to the mode of proceeding adopted by him. The County court, instead of directing the money to be paid to the heirs, may direct it to be paid to such person as may be appointed to receive it by the Circuit court: Or one of the suits may he removed to the court in which the other is pending.

In August 1847 Francis Williams filed his bill in the Circuit court of Pittsylvania, in which he charged that Thomas & Robert W. Williams, who were partners, made their negotiable note for six thousand dollars, payable to John McAlister, which was endorsed by McAlister and the plaintiff for the accommodation of the makers, and was discounted for them by the Farmers Bank of Virginia at Danville. That the note not being paid at maturity, was duly protested, and was paid by the plainti ff. That *52soon thereafter Robert W. Williams and Mc-Alister became insolvent, and Thomas Williams died. That the plaintiff qualified *as administrator of Thomas Williams, and had disbursed the whole personal estate in the payment of debts; and that there was yet due to him upon said note, as was shown by his administration account which had been settled by commissioners of the court of probat, the sum of two thousand five hundred and seven ty-eight dollars and eight-four cents of principal and one hundred and fifty-eight dollars and ninety-seven cents of interest. He further charged that Thomas Williams owned at his death certain real estate which he specified. That the heirs of Williams, with a full knowledge that the personal estate of their ancestor was exhausted, and that a large balance was still due to the plaintiff, had filed a bill in the County court of Pittsylvania for the sate of the said real estate; that the same had been sold under the decree of that court. That at that sale the plaintiff had become the purchaser of one lot at the price of one hundred and seven dollars, and had executed his bond with security to the commissioner; and that the other real estate had been sold to Lewis Hall, for one hundred and ninety-one dollars, who had likewise executed his bond for the amount to the commissioner. o That the said commissioner had since died, and there was no representative of his estate. That the said heirs had little or no estate of their own; and notwithstanding the large debt due to the plaintiff, they threatened to enforce payment of the purchase money for the lot purchased by him, and also to collect the amount due from Hall. That he was advised that he was entitled to have the proceeds of the real estate of Thomas Williams applied to the satisfaction of the debt due him. And making the heirs of Thomas Williams and Hall and his surety parties defendants, the plaintiff asked that the heirs might be enjoined from collecting the said purchase money, and that Hall and his surety might be enjoined from pa3ring to them; and that the ^'proceeds of said real estate might be applied in part satisfaction of the debt due to him; and for general relief.

The injunction was granted: But on the motion of the defendants without filing an answer, the court dissolved the injunction. And thereupon the plaintiff applied to this court for an appeal, which was allowed.

Stanard and Bouldin, for the appellant.

There was no counsel for the appellees.

*

Adminstratrors—Right to Have Proceeds of Laud Applied to Debt.—In the principal case, it was held that an administrator, who was also a creditor and who had, out of the assets of the estate, paid the debts, could enjoin the payment of the purchase money of the land to the heirs and have it applied to the payment of his debt. This was practically-followed in Easley v. Barksdale, 75 Va. 286.

The principal case is cited in Saddler v. Kennedy, 26 *W.*Va. 642, hut shown not to be relevant to that case.

See monographic *note*on “Executors and Administrators. ”

MONCURE, J.,

delivered the opinion of the court :

The court is of opinion that the appellant’s bill makes out a good case for equitable relief, and entitled him to an injunction to prevent the widow and heirs of the intestate Thomas Williams from receiving the purchase money of his real estate, but not to prevent the collection of the money under the order of the County court. The suit in that court was instituted before the appellant’s suit in the Circuit court; and the latter should not interfere with the former suit, except to prevent the payment of the money to the widow and heirs until the appellant’s claim can be adjudicated. It would perhaps have been more regular if the appellant, instead of bringing his suit in the Circuit court, had connected himself, by petition or bill, with the proceedings in the County court in which the fund had been realized. But the course which he has pursued is free from serious objection, and need not occasion any conflict of jurisdiction between- the two courts; as the County court, instead of directing the money to be paid to the widow and heirs, can direct it to be paid to such person as may be appointed to receive it by the Circuit court. Or if it be more convenient to have both suits in the same court, that object can be effected by a removal of one of them into the court in which the other is pending. *Code, ch. 174, p. 657. The court is therefore of opinion that the court below erred in dissolving the injunction in toto, without plea or answer, instead of dissolving it in part and overruling the motion as to the residue, according to the principles above indicated. It is therefore decreed and ordered, that so much of the order of the court below as is above declared to be erroneous, be reversed, and the residue thereof affirmed, with costs to the appellant against the appellees, who are heirs of the said Thomas Williams; and the cause is remanded for further proceedings.

Decree reversed.