Koontz v. Koontz

Robinson, O. J., delivered the opinion of the Court. This is, it seems to us, an extraordinary proceeding. The bill is filed by certain heirs at law of David Koontz, and prays, in the first place, for the sale of his real estate, because the same is not susceptible of partition “ without loss and injury to the parties in interest.” Then it charges that David was administrator of his brother Salem Koontz, and 'that in the settlement of the estate he paid to Margaret, the widow of Salem, and to each of the children, large sums of money in excess of their distributive shares; and prays that they may account for the same. Then it charges that Margaret and each of the children received from David other large sums of money and for which they ought to be held accountable.

Then it charges that David, after Salem’s death, boarded with Margaret, and that she has in her possession books, papers and vouchers showing the dealings of David as administrator, all of which she ought to be compelled to produce. Then it charges that shortly before his death David, intending to pay over as administrator, money belonging to the heirs of Salem, drew his individual check 'for twenty-seven hundred dollars, payable to George T. Long, and that said check was paid to Long out of David’s private funds, and prays that Long may account for said sum. ³⁶⁰ And then it charges that a few days before his death, David paid to Annie E. Robinson and Mary E. B. Koontz, by checks, large sums of money, for which they ought to account. And the bill further charges that Mary G. Getty and John H. O. Getty, her husband, have, as administrators of David Koontz, received large sums of money, notes, bonds and other securities belonging to the decedent, and which they have not accounted for, and 'prays that the Court may take jurisdiction of and administer said estate. Thus, it appears, that the complainants are seeking relief in the same bill, in regard to separate and distinct matters, in no manner connected with each other, and against different defendants, having no interest in common as to the matters in controversy, 'and against whom there is neither a common nor co-extensive liability, thereby imposing upon each defendant the costs incident to the trial of the several demands against other defendants, in which he has no concern or interest whatever.

It can hardly be necessary to say that such a bill is multifarious and against every principle of pleading by which Courts are governed. No objection, however, was made to the bill on this ground in the Court below, and it becomes necessary, therefore to consider the several claims in regard 'to which relief is prayed. As to the real estate of David Koontz, all the parties admit, and the proof fully shows, that it is not susceptible of partition without loss and injury to the parties in interest, the Court, however, being of opinion that the bill was filed under section 48 of Article 16 of the Code, withheld it, in order that a guardian ad litem for the infant complainants might be appointed, and the answers of such infants might be filed. Section 48 authorizes the Court to decree the sale of any real or personal property in which an infant has an interest, if it shall appear by the deposition of two witnesses 'that it would be “for the benefit ³⁶¹ and advantage of such infant.” And section 49 provides that in all such cases the bill or petition shall be filed by the guardian or prochein ami of the infant, and that there shall be an appearance and answer of such infant by guardian to be appointed by the Court.

But the averments and proof clearly show, we think, that the bill before us was filed under section 116 of Article 16 of the Code, which provides for the partition and sale of real estate in which some of the parties having an interest are adults and some are infants; and this being so, it was not necessary that the Court should retain the bill in order that a guardian ad litem might be appointed. The guardian of the infants joined in the bill, and, upon proof that the property was not susceptible of partition without loss and injury, the complainants were entitled to a decree for its sale. As to the several allegations that David Koontz, administrator of Salem, had paid to Margaret, the widow of the latter, and to each of her children, sums of money in excess of their distributive shares, and that he had at other times paid to them out of his own private funds large sums of money, and that Margaret had in her possession books and accounts and vouchers belonging to David, it is sufficient to say there is no proof whatever to sustain these averments. It does appear, that David lived with his brother Salem up to the time of the death of the latter, and that he was appointed administrator of Salem, and 'that the assets coming into his