1877. January Term.

Vaiden

& als.

V.

Stubblefield's ex'r.

from time to time, down to March 1864, makes deposits of his own money, so that he probably has at any time standing to his credit in bank a sum more than the amount of the assets deposited in bank by him; but it is Confederate money. Whether he continued his deposit after March 1864 does not appear. HELD: That by depositing the assets in his own name, mingling it with his own money, he became a debtor to the estate for the amount so deposited by him, and must account for it.

This was a suit in equity in the circuit court of Charles City county, brought in April 1868, by Henry D. Vaiden and Sarah M. his wife and others, devisees and legatees of John S. Stubblefield, dec'd, against Thomas H. Wilcox, executor of said Stubblefield, and on his death revived against his executor, for a settlement of the administration account of Wilcox upon the estate of said Stubblefield.

John S. Stubblefield died in July 1858, leaving a will, which was admitted to probate in the same month, and Thomas H. Wilcox qualified as his executor. By his will he directed his executor to sell his land; and he, among other things, gave to his widow the interest and profits of his land for her life, and at her death the principal was to be equally divided among his children and grandchildren; the grandchildren taking the parent's share. And after giving several small pecuniary legacies to some of his grandchildren, he gave the residue of his personal estate to his children and grandchildren in the same way. The parents of some of the grandchildren to whom the small legacies were given, were still living.

The executor seems to have proceeded very promptly to collect the debts due to the estate, and to sell both the land and personalty. The land sold for $9,000, the interest on which he paid to the widow until her death in January 1861; and he very soon thereafter distrib

1877. January Term.

Vaiden & als.

V.

Stubble

uted that fund among the parties entitled. The sales of the personalty and debts collected, after payment of debts, &c., amounted to $5,665.04; and he seems to have paid to legatees $3,359.80, leaving a balance in his hands in July 1861, of $2,305.24. This sum, the executor states in his answer, he then had in his hands, field's ex'r. and he was prevented paying it over at once to the legatees, by information he received that there were several bonds outstanding in the county of Surry in which Stubblefield was bound. After speaking of two debts in that county, of which he was for some time in ignorance, in which Stubblefield was bound as surety of E. P. Crenshaw, who had married his daughter, and which had been satisfactorily adjusted after much trouble and anxiety, he says, that being at the house of Wm. R. Wilson, in that county, and having expressed his satisfaction at the settlement of the last of these debts, and the belief it was the last debt in the county of Surry for which his testator was bound, Mr. Wilson replied, "No, sir, you are not through; I know of three or four bonds for which your testator is bound. I will do you the favor to procure a statement of them and send them to you.". Your respondent earnestly and particularly requested Mr. Wilson to do so at the earliest possible period of time, expressing at the time his great anxiety to rid himself of the estate of his testator, especially in view of the troubles then rapidly being developed."

The executor states at great length his actings in the administration of his testator's estate, and the grounds on which he claims exemption from liability for the amount in his hands. the condition of the country, and especially of the part of the country in which he lived, and had to conduct bis administration. He said that he deposited

These grounds refer to

January
Term.

Vaiden

& als.

V.

Stubble

the money in the Farmers and Exchange Bank in Richmond in which he deposited his own; and that he always had in these banks much more than the whole amount of assets in his hands; which was as safe as any personal security he could have taken for it in field's ex'r. Charles City. It appears, however, that he had no separate account in these banks as executor; but all moneys were deposited to his individual credit; and further, that though he had at all times to his credit in these banks more than the amount of the assets of Stubblefield's estate in his hands, he from time to time drew out and deposited, so that in 1864, though he had a large sum of money in the banks, it was in fact Confederate money.

In November 1868 the accounts were referred to a commissioner; and in September 1871 he returned his report. In the account settled by the commissioner the executor is charged with the sum of $2,305.24, as of the 15th of July 1861; and this is the only charge against him; and this is distributed among the four surviving daughters and the children. of a deceased daughter. To this report the executor of Wilcox excepted: 1st. On the ground that the executor should not have been charged with the sum of $2,305.24, which perished on his hands. 2d. That he should not be charged with interest, certainly not until the end of the war; and 3d. That the executor was a lawyer, and the evidence showed that he rendered various and valuable professional services to his testator's estate, for which no compensation was allowed him.

The cause came on to be finally heard on the 24th of September 1872, when the court sustained the first exception of the executor to the report, and dismissed the bill, though without costs. And the plaintiffs

1877. January Term.

Vaiden

thereupon applied to this court for an appeal; which was allowed. In this court the question was raised by the appellee, whether the bill should not have been dismissed for the improper joinder of parties; & als. the children of some of the living daughters, whose legacies had been paid, having been joined as plain- field's ex'r. tiffs.

Lyons & Stern and B. W. Lacy, for the appellants.

Wm. Green, for the appellee.

STAPLES, J. The first question is as to the misjoinder of parties. It is contended by the counsel for the appellee, that two or more of the plaintiffs, having been paid their respective legacies, have no interest in the suit, and are therefore improperly joined as plaintiffs; and this objection may be taken by demurrer or plea, or even at the hearing. Admitting that the point would be fatal if taken in due time, the question arises whether it can be made for the first time in this court.

In this country, it is believed, the rule is well settled, that in cases of misjoinder of parties as plaintiffs in equity, the objection must be made by demurrer if the defect is apparent on the face of the bill, or by plea or answer, if the defect does not so appear; and unless so made, the objection will not avail at the hearing, if a decree can be rendered without prejudice to the rights of parties. If the misjoinder cannot materially affect the propriety of the decree, the court will not regard it at the hearing, if the objection has not been made in the pleadings. Livingston v. Woodworth, 15 How. U. S. R. 546, 557; Trustees of Watertown v. Cowen, 4 Paige R. 510; Harder v. Harder, 2

V.

Stubble

1877. Sanf. Ch. R. 17; Newhouse v. Miles, 2 Alab. R., N. S., January Term. 460; Ellicott v. Ellicott, 2 Mary. Ch. R. 468; Bunce v. Gallagher, 5 Blatch. R. 490; Story Ch. Plead., sec. 188, 544.

Vaiden & als.

V.

Stubble

There are several well considered English cases field's ex'r. which hold that notwithstanding a misjoinder of parties plaintiff, the court permits a decree at the hearing when it appears that justice can be done to all the parties. In Rafferty v. King, 15 Eng. Ch. R. 604, 620, Lord Langdale, in adverting to the objection that one of the plaintiffs had no interest in the suit, said: "I think it is now too late. If the objection had been stated in the answer, the plaintiffs might have obtained leave to amend their bill and make John Rafferty a defendant instead of a co-plaintiff. In such a case as this, when the objection is reserved to the last moment, and even till after argument on the merits, I ought not to allow it to prevail." See also the cases cited in a note to that case, and Lambert v. Hutchinson, 13 Beavan R. 277; Dickenson v. Davis, 2 Leigh 401.

In the case before us the plaintiffs alleged to be improperly joined were infants at the time their legacies were paid, and nearly all of them so continued when this suit was brought. It is highly probable the other parties knew nothing of these payments. The defendant of course knew all about them. It was therefore the more incumbent upon him to make the objection in some form in the court below, and at an early stage of the proceedings. Had he done so, the plaintiffs might have dismissed their suit, and commenced a new one in the name of proper parties, or they might have amended their bill by striking out the names of those improperly joined, and making them defendants, if so advised.

This, however, is unnecessary in the present state