#### McLachlan and others vs. Staples and another.

M devised and bequeathed all his real and personal estate to N and appointed A and B his executors. N died in infancy, and A was appointed administrator of his estate. In an action by the heirs at law of N, against A and B, the complaint alleged that A had obtained the allowance of a fraudulent claim in his own favor against N’s estate; that both A and B had obtained the allowance in their own favor of fraudulent claims against M’s estate; that the plaintiffs were residents of a foreign country, and never had notice of the pendency of either of said claims, and the time for appealing from the allowance of them had expired; that the said A and B, or one of them, had received personal assets belonging to the estate of M, and the rents and profits of the real estate until the death of N, at which time said real and personal property was, and still continued to be, in the possession of the defendants or one of them; and that they had never rendered any account or made any settlement of their respective trusts; and demanded that the defendants should account with the plaintiffs concerning the matters aforesaid, and pay to the plaintiffs whatever might be found due from the defendants to either of said estates, and that the allowance of said fraudulent claims be set aside. *Held,*that the complaint was not objectionable for multifariousness, because it united a cause of action against both A and B as such executors, with a cause of action against A alone as such administrator, it being impossible to determine with what amount A should be charged as such administrator, without a settlement of the accounts of A and B as such executors.

In an action by the heirs of an estate against the administrator, to set aside an allowance of a claim in his favor, made during their absence in a foreign country, by commissioners appointed by the court of probate to examine and adjust claims against the estate, the complaint alleged that the administrator procured the appointment of the commissioners with a view to defraud the estate, and fraudulently procured the allowance in his favor, of an account for over $3,000, by false representations that it was justly due, when in fact the charges were enormously exorbitant, and the amount due him did not exceed $500; and set forth also a copy of the account so allowed, which was upon its face suspicious and tended strongly to sustain the charge of fraud. *Held,*that the allegations of fraud, though rather general, were perhaps as specific as the nature of the case would permit, and if true, were sufficient to set aside the allowance and settlement of the account in the probate court.

APPEAL from tbe Circuit Court for *Hacine*County.

*James McLachlan*died in February, 1852, having devised all bis estate to bis infant son, John McLachlan, and appointed the defendants, *Staples*and McKay, his executors. In December, 1857, John McLachlan died, at the age of seventeen years, and the defendant *Staples*was appointed his administrator. The present action was brought by the heirs at law of John McLachlan against *Staples*and McKay, and *449tbe complaint alleged in addition to tbe above facts, that each of tbe defendants bad money of James McLacblan in bands at tbe time of tbe death of said James, for wbicb neither of them had in any way accounted ; that they bad caused tbe *J „ S . . J*. personal property ol the estate or said J ames to be inventoried and appraised at much less than its real value; that they, or one of them, bad received tbe rents and profits of tbe real estate wbicb bad belonged to said James, amounting to about $400 or $500 a year, ever since bis death ; that neither of tbe defendants ever made any settlement of said estate or rendered any account of tbe moneys wbicb bad so come to bis bands, but bad appropriated tbe same to bis own use; that *Staples*bad presented a claim in bis own favor against said estate for over $100 and *McKay*bad presented a claim for $88.00 and procured their allowance, although tbe estate was not indebted to either; that no guardian was ever appointed for said John, but that said *Staples*bad assumed, without authority, to guide and direct Mm and bis affairs ; that after tbe death of said John, said *Staples*procured himself to be appointed administrator of bis estate ; that with a view to defraud said estate be obtained from tbe probate court tbe appointment of commissioners to examine and adjust claims against it, and fraudulently procured from them an allowance of an account in bis favor against tbe estate for over $3,000j that tbe charges in tbe account were enormously exorbitant, and tbe amount justly due to him did not exceed $500; that tbe plaintiffs were residents of a foreign country, and that no notice of tbe presentation of said claims was given to them; that the time for appealing from tbe allowance of said claims bad long since elapsed; that said *Staples*was seeking to have tbe real estate of said John McLacb-lan deceased, sold by an order of tbe county judge, for tbe payment of tbe claim so allowed in bis favor against tbe estate of tbe said John; that tbe only property belonging to said John at bis death was that devised and bequeathed to him by Ms father, and tbe same was at that time, and still continued to be, in tbe possession of tbe defendants, or of one of them; and that tbe estate of said John was not indebted to any one except Staples, and no other claim bad been allowed against it. *450*^*°^acGOUn* *Staples*against the estate of John McLacblan was made part of tbe complaint; and over $2,800 ^ consisted charges for boarding, washing, and attend-anee upon said John for about four years and a half, during his sickness, at the rate of $12 per week. The will of James McLachlan directed that the executors should retain the possession of the real estate during the minority of John McLachlan, for his interest and benefit. The complaint demanded judgment, that the defendants account to the plaintiff concerning the matters aforesaid, and that whatever might be found due from them to either of the said estates, should be paid to the plaintiffs as the heirs of said John; that the defendants account to the plaintiffs for the use and occupation of said real estate since the death of said James, and that the allowances of said claims in favor of each of the defendants be set aside, &c.

The defendants demurred to the complaint, on the grounds that the circuit court had no jurisdiction of the subject matter of the suit; that the complaint was multifarious; and that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer.

*N. H.*Joy, for appellants,

in support of the jurisdiction of the court, cited 1 Story’s Eq. Jur., §§ 580-548; 2 id., § 1058; Willard’s Eq. Jur., 490, 560-569; 1 Johns. Ch. R., 494, 510, 527; 4 id., 303; 2 Cow., 73. The allowance of a claim by the probate court is not conclusive upon a court of chancery, upon a bill seeking relief against the claim. *19*Yt, 403; 8 U. S. Dig., 117, § 5.

*Sanders &*Ladd, for respondents,

contended that the county court had jurisdiction over the matter in controversy. Constitution, art. VII, sec. 2; Rev. Stat., 560-570, 578, sec. 2, and 648. The appellants’ only remedy was by appeal from 'the county court. R. S., 650, sec. 24; 651, sec. 29; 654, secs. 54, 55. After jurisdiction is once acquired by a court of limited jurisdiction, its proceedings cannot be collaterally impeached, however irregular or erroneous. 12 Ohio, 253, 271; 15 id., 435, 443; 2 How. (U. S.), 308. As to the objection for multifariousness, they argued that a cause of action against two or more persons as executors of *451A, could not be joined witb a cause of action against one of sucb persons-as administrator of tbe estate of B. How. Pr. R, 419 ; 11 id., 242 1 Code R. (N. S.), 303; 20 Barb., 442; 21 id., 245. *McKay*cannot be beld to account for tbe property wbicb *Staples*took as tbe administrator of Jobn McLacblan. Tbe defendants must first account to Jobn McLacblan’s representative for tbe estate of tbeir testator ; and *Staples*is alone liable to account for tbe estate of bis intestate. Tbe claims set up are of so different a character that they cannot properly be litigated in one action. 1 Nan Santv. PL, 678. This is a good ground of demurrer. 2 Mad. CL, 234; Mitf. PL, 147. Tbe general rule on tbe subject is laid down in *Fellows vs.*Fellows, 4 Cow., 697; 5 Paige, 65.

April 10.

*By the Court,*

Cole, J.

We are satisfied that tbe allegations of fraud contained in tbe complaint, are sufficient, if true, to set aside tbe allowance and settlement of Staples’ account against tbe estate of Jobn McLacblan, made before tbe probate court. Tbe allegations are rather general, but perhaps they are as specific as tbe nature of tbe case will permit. It is averred in substance, that be, desirous of defrauding tbe heirs at law of Jobn, obtained letters of administration upon bis estate, and witb a fraudulent purpose got commissioners appointed to allow claims against that estate; that be presented bis claim amounting to over three thousand dollars, and by fraudulent representations that it was justly and honestly bis due, got tbe same allowed, &c. A copy of that account accompanies tbe complaint, and it certainly looks very suspicious, and tends strongly to sustain tbe allegations that fraud was used in procuring sucb a claim to be allowed. It may be susceptible of explanation, but upon its face it looks like a most unjust and unconscionable claim. If it can be shown that its allowance was obtained by fraud, then it can be impeached and set aside. For it is well settled that equity will relieve against judgments and decrees obtained by fraud. 1 Story’s Eq. Jur., sec. 252; Willard’s Eq., 160, and cases cited in notes. •

But it .is objected that several causes of action have been *452improperly united, by joining causes of action against tbe respondents as executors of tbe last will and testament of James McLacblan, witb a cause of action against *Staples,*as administrator of tbe estate of Jobn McLacblan. This objection presents a question of some difficulty, but we think it is not insuperable.

Tbe primary object and purpose of tbe action is to set aside tbe allowance of tbe claim of *Staples*against tbe estate of Jobn McLacblan deceased, and to bave him account for tbe moneys and property wbicb bave come into bis bands as administrator of that estate. Now it is absolutely necessary and essential for tbe accomplishment of this object, that tbe executors of tbe estate of James McLacblan settle their account as executors, before it can possibly be known witb what amount *Staples,*as administrator, should be charged. He was executor of one estate and administrator of tbe other. What be has received as executor and what as administrator, can only be ascertained on a settlement of tbe two accounts. There was an obvious impropriety in bis being appointed administrator of John’s estate. Eor tbe administrator of tbe last estate was tbe person to look after and attend to tbe settlement of tbe executors of James’ estate. It is evident there must be a considerable amount of rents and profits from tbe real estate. What has become of them ? Who is to be charged witb them, tbe executors of tbe estate of James McLacblan or tbe administrator of tbe estate of Jobn McLacblan ? As *Staphs*has been acting in *both*capacities, there is a complete confusion in tbe transactions and affairs of tbe two estates. Had tbe executors settled their account as they should bave done, there would then bave been no necessity for making *McKay*a party to this action. Now, although *McKay*is not implicated in tbe alleged fraud of procuring an unfounded claim to be allowed against tbe estate of Jobn McLacblan, yet be is á necessary party to some portion' of tbe case. Eor there cannot be a full accounting on tbe part of *Staples*without tbe previous administration is settled. It seems, then, impossible to proceed against *Staples*without *McKay.*Tbe affairs of tbe two estates bave become so blended and mixed together that there cannot be a settle*453ment of tbe one without a settlement of the other. We are therefore of the opinion that the objection of ness cannot be sustained. Besides, it is stated by Mr. Justice Story, in his work on Equity Pleadings, after a full review of the authorities, that there is not any positive, inflexible rule as to what, in the sense of the courts of equity, constitutes multifariousness, which is fatal to the suit on demurrer. These courts always exercise a sound discretion in determining whether the subject matters of the suit are properly joined or not, and whether the parties, plaintiffs or defendants, are also properly joined or not. It is not very easy, he adds, *a priori,*to say what is or what ought to be the true line regulating the course of pleading on this point. All that can be done in each particular case, as it arises, is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or the other class, where it is held not to be fatal. And in new cases it is to be presumed that the court will be governed by those analogies which seem best founded in general convenience, and will best promote the due administration of justice, without multiplying litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. Sec. 539 ; see also secs. 271 to 286. It appears to us that there is no way so convenient, or attended with so little expense, for settling the estates of James McLachlan and John McLachlan, as to settle them together in this action. All that *McKay*can complain of, in being joined in the suit, is that he has no interest in the litigation about John’s estate. But there must be a settlement by him and his co-executor, as incidental to the main purpose of this action, and a full accounting by *Staples*as administrator.

We therefore think the demurrer to the complaint on the ground of multifariousness was improperly sustained.

The order of the circuit court sustaining it must be reversed, and the cause remanded for further proceedings.