Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-07-16
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY W.B. MARTIN,
DULANEY V. SMITH.

Supreme Court Of Appeals of Virginia.
June. 1899.
"A LEGATEE OR CREDITOR OF A
DECEDENTS ESTATE CANNOT
MAINTAIN y SUIT AGAINST HIS
PERSONAL PREVENTATIVE
AND ANOTHER WHO IS A DEBT
OR OF THE ESTATE. EXCEPT
UNDER SPECIAL CIRCUM-
STANCES.
STANCES ENIST EQUITY HAS
JURISDICTION.
phis was suit in equity against tho
executor of an estate and another who
owed 1t. The lower court dismissed the
bill on demurrer. and plaintiff appeal
ed. The case is shown in the opinion
OF the court
The court says:
In our opinion the bill sots out good
cause of action. AS was said by Judge
buchanan in Beatty V. Downing, &c Va.
"A leEatec or creditor of a decedent's
estate cannot maintain a suit against
the personal representative of the de-
cedent and another who is n debtor to
the estate. except under special circun-
stances. What constitutes such special
circumstances as will justify such n
Joinder has never been limited by any
precise and rigid rule. Those usually
relied on and held sufficient to author
lie such joindcr, are the insolvency Of
the PERSONAL representatives; collision
between him and the debtor; the fact
that the debtor was n partner of the
dccedcnt, or IL trustee holding proper
ty Tor or an agent of. The de ceden;."
The charge in this c;.se of COLLISION
is not as clearly made as l. might and
perhaps should have been, but We
gather from the whole bill, the aver
ments of which upon n demurrer are
10 be taken as true, that the executor
is un!aithful tn his trust and that he
is controlled In the performance of the
duties rcposcd in him by n desire un-
1aIIiy 10 protect ana promote the in
tercsts of Smith ana the widow. 20 the
neglect ana Injury Of the plaintiffs: ard
mat his relations with the plaintiff are
such tina; they dare not confer with or
ccnilde in him. lest any information
WHICH they might impart would be used
to their ultimate disadvantage, and
that, controlled by these influences. the
executor will make no effort to require
Smith and the widow to account for
thu money of which dccedent WAS pos
sessed at his death. and which i. is DIS
tinctly charged they took and appropri-
ated 10 their own use. l,are we have,
then. recognized subject of equity
Jurisdiction. 1t is true the plaintiffs
called upon the defendants for IL is
covery to aid the proof of he cas-. thus
presented. and they would have been
wholly within their rights had they de-
clined to answer the interroga :orics
plopounded. and it would have been
proper for the Circuit Court to have
sustained them in that position No
man can be required to crimnatc him
SELF, and SO it was held in me case of
Northwestern Bank V. Nelson, Graft
at page no. that "thc defendant is rot
bound 10 disclose or answer matters
which will expose him 10 pains, email
ties or punishment. or to a criminal
prosecution; and that il Is not Noes
sary that ii should be made To- appear
that the defendant will be certainly en-
posed to peril by making TIE discovery
sought, but it is enough II it appear
that by answering the intArroga torres
OF the bill. he will thereby be probably
subjected to danger" In tina; case the
bill was dismissed upon demurrer, but
the discovery sought was the sole
ground upon which the nterpnsition
OF court Of equity was invoked: here
MS we have seen. the bill states a case
for equitable relief Independent of such