WINSOR v. PETTIS

George H. Browne Charles H. Parkhurst, for the respondents, in support of the demurrers.

It appears from the bill that Mary H. Pettis was appointed and acted as administratrix of the estate of her deceased husband, James M. Pettis. It is a necessary legal presumption from allegations of this character, which appear in the bill, that said administratrix returned an inventory. That being the case, so far as the bill seeks to bring into this controversy the personal estate of the decedent, it is perfectly clear that the complainants have a full, adequate, and complete remedy at law. Blake v. Butler, Adm'r, 10 R.I. 133. This bill demands an account of the personal estate of the late James M. Pettis. It is hardly necessary to quote authority to satisfy the court that Mrs. Mary H. Pettis, in her representative capacity as administratrix of her deceased husband, should be and is a necessary party defendant to this bill. She is not made such party, and is only charged, as are the rest of the defendants, generally and indefinitely, with some kind of undefinable conduct which led Mr. Pettis to convey to his wife and his two children, by independent instruments of different dates certain real estate; and with equal indefiniteness somebody is sought to be charged with some kind of responsibility touching certain personal property for which, as administratrix, if anybody, she can only be held to be accountable. She is not such party, therefore there is a non-joinder to which this demurrer is directly applicable. And on this ground the demurrer should be sustained.

The court will keep in mind the fact that this bill is brought by the children of a first wife against those born of a second, who is the surviving widow. It charges the fraudulent procurement, and a fraudulent combination to procure, the transfers and conveyances of property, real and personal, to the three defendants, by a violation and abuse of the trust and confidence reposed in them by James M. Pettis, the decedent.

The deeds of real estate are described in the bill and are set forth as exhibits thereto. There then follows a charge touching certain funds deposited in certain savings banks, which the three defendants are charged with having procured from James M. Pettis, deceased, fraudulently and by abuse of his confidence in them, and that the same were placed "in the hands, or under the control, of the said respondents, or some one or more of them."

Following that is an allegation to the effect that with the funds so acquired a mortgage was purchased originally made by one Darling to one Aylesworth, and transferred, not to the three defendants but to only one, to wit, Mary H. Pettis, and subsequently the amount of said mortgage by said Darling, together with amounts previously due from him to the said James M. Pettis, deceased, were compelled to be paid, as the bill charges, to the defendants or some one of them, but to which is not alleged, nor does any suggestion as to which appear: but the bill concludes with a series of interrogatories which are not addressed to any one of the several defendants, but which are each addressed to all.

How can Miss Ednah H. Pettis answer these questions, so far as they relate to any deed made by her father to her mother or her brother, and how can either of the last named persons reply as to any deed made to Ednah H. Pettis?

How, also, can all of these defendants answer as to the bank stock or its proceeds, referred to in the second interrogatory, and alleged in the bill to have been transferred to Mary H. Pettis, widow and administratrix of the decedent? The allegation is distinct in the bill; and the question asked in the interrogatories, which are neither numbered nor directed to any particular defendant, distinctly sets forth that the transfer of the mortgage was made to Mary H. Pettis, one only of the defendants.

How can James L. Pettis and Ednah H. Pettis make any answer to an interrogatory which is directed to them, and which their mother alone can answer ?

The charge of "combining and confederating," "the use of undue influence upon the weak and infirm mind of an aged father," "the abuse and violation of trust and confidence reposed," cannot avail these complainants to support the charges which they have made.

Each of these defendants is certainly entitled to know what specific charges of violation and abuse of trust or confidence, or of fraudulent procurement and inducement, or fraudulent obtaining, are made against him or her; and because such charges are not specifically made in this bill the demurrer of each of the defendants should be sustained.

It is a rule in equity that two or more distinct subjects cannot be embraced in the same suit. The offence against this rule is termed multifariousness, and will render a bill liable to a demurrer. 1 Daniells' Chan. Prac. (4th Am. ed.) 334, 335, 559; West v. Randall, 2 Mason, 201; Carter v. Treadwell, 3 Story, 51; Boyd v. Hoyt, 5 Paige, 79; Swift v. Eckford, 6 Paige, 27; Jackson v. Leggett, 2 Barb. Ch. 581; Story Eq. Pl. §§ 271, 530.

Charles S. Bradley, James Tillinghast John F. Lonsdale, for the complainants, contra.

The complainants have no adequate remedy at law as to the personal property.

a. Chapter 174, §§ 18, 19, of the Gen. Stat. R.I. provides no adequate remedy, because it only applies to cases where the person summoned and examined by the court is "suspected of concealing or of having embezzled or conveyed away any of the personal estate left by the testator or intestate." A Court of Probate might well decline to take jurisdiction under that statute in a case like that made by the present bill, where the property is alleged to have been transferred by the intestate in his lifetime, and it is sought to set aside such transfer on account of its having been obtained by undue influence. Such a case could properly be reached by a Court of Equity alone, particularly where the administratrix, as in this case, is alleged to have been guilty herself of the fraud and of collusion with others.

b. Chapter 179 of the Gen. Stat. R.I., Of the Settlement of Accounts of Executors and Administrators, affords no adequate remedy in the case made by the bill. That statute makes it the duty of executors and administrators to account annually, confers upon the Probate Court power to issue a citation to executors and administrators requiring them to account; and enacts that in case they do not account after being cited, they shall be held responsible for the full value of the personal property of the decedent, and shall be entitled to no compensation. It does not apply to a case like the present one. The Probate Court does not seem to be clothed with any power to compel the administrator to account.

The administration of intestate estates is an established branch of equity jurisdiction, concurrent with the Court of Probate. Mallett v. Dexter, 1 Curtis, 178; Pratt v. Northam, 5 Mason, 95; Blake v. Butler, 10 R.I. 137; Rathbone v. Lyman, 8 R.I. 158.

A Court of Equity having acquired jurisdiction by the allegation and establishment of undue influence over the mind of the intestate, and the procuring thereby of transfers of his property, will go on and administer the whole estate. Daboll et al., Adm'rs, v. Field et al. 9 R.I. 266.

If there be a remedy by statute, there being none by common law, the jurisdiction of a Court of Equity in the case remains intact. The remedy by statute does not destroy or oust the jurisdiction of a Court of Equity. Story Eq. Jur. § 80; Rathbone v. Lyman, 8 R.I. 158.

The bill is not multifarious. It alleges a combination upon the part of all the defendants to secure from the deceased by undue influence over his weak and impaired intellect, and by abuse and violation of the trust and confidence reposed in them by him, the conveyance to them of his entire estate. The mere fact that they took by separate instruments, executed at different times, is consistent with the existence of a combination or plan on their part as alleged in the bill, and does not therefore render the bill liable to objection upon demurrer for multifariousness. The object of the suit is single, to compel the restoration of the real and personal estate acquired by the fraudulent combination of the defendants. The bill alleges certain transactions, all parts of one scheme of fraud, in no wise so distinct and disconnected as to render their consideration perplexing to the court or injurious to the interests of any of the respondents. Story's Eq. Pl. § 530; Campbell v. Mackay, 1 Myl. C. 603; Attorney General v. Craddock, 3 Myl. C. 85; Salvidge v. Hyde, 5 Madd. 138; Earl Vane v. Rigden, L.R. 5 Ch. Ap. 663; Poynton v. Poynton, L.R. 12 Eq. 547; Coates v. Ligard, L.R. 19 Eq. 56; Sanders v. Kelsey, 10 Jur. 833; Innes v. Mitchell, 4 Drew. 97, 98; Bowers v. Keesecher, 9 Iowa, 422; Gaines v. Chew, 2 How. U.S. 619; N.E. Com. Bank v. Newport Steam Factory, 6 R.I. 190; Arnold v. Arnold, 9 R.I. 397.

The character of the wrong charged in the bill is of itself of such a nature as to preclude a statement of the special manner in which such particular fraudulent transfer was obtained.

Mary H. Pettis is made a party to the bill, and it is stated that she was appointed administratrix of the estate of her deceased husband, and relief is sought against her in that capacity.