Shands ex'x v. Grove

Citations

• 26 Va. 652
• 26 Gratt. 652

Syllabus

<p>I. G brings a creditor’s suit against the executrix of S, to subject the estate of S to satisfy a judgment. The order book of the court was destroyed, but some of the papers were preserved; and it was proved by a witness that G recovered a judgment against the R. T. Co. and issued execution upon it; and then, at the instance of S, sued out a suggestion against him as a debtor of the Co., and that S appeared in court and acknowledged his indebtedness to the Co., and judgment was rendered against him. The proceedings in both cases to the judgments are endorsed on the papers preserved. An account taken in the cause showed the executrix indebted to the estate for considerably more than the claim of the plaintiff, beside large assets in her hands; and an inquiry ordered as to the debts of S was not acted on, no other creditor making claim. Held :</p> <p>1. Gis entitled to recover his debt from the estate of S.</p> <p>2. The proceeding being against the estate of S as the debtor of G, the Co. was not a necessary party.</p> <p>3. No other creditor having presented a claim, and the executrix not having insisted upon the enquiry, a personal decree against her will not be reversed for the want of such enquiry, upon the objection first made in the appellate court.</p>