BYRD V. BELDING. VOL. 18 BYRD'S ADM.
V.
BELDING'S HEIRS. In order to charge the heirs and legal representa lives, by decree of a court of chancery, with the debts of their faller, it is incumbent on the complainant, firs , to establish his demand against their father ; and then make it appear that lands or slaves had descended, or assets been distributed to them fiom their fathei 's estate, which were chargeable with the payment of the debts. ( Walker ad. v. Byers, 15 Ark. 253.) The answer of the defendant, as tu a matter within his personal knowledge, b-ing s sant to, and responsive to the bill, must be taken as true, unless it is over urned by two witnesses, or one with strong corroborath.g ci rcums • tutees. After the submi, s.on to final he trim; and decree of a bill bi charge the hei rs with a debt of their father, the comp'ainant, having failed to establish by Ii s depos:tions that the heirs had received any assets, moved a refeience t the master to ascertain what ass .1.s had c nue to their hands firma their fathet's f-state: Held, that. it was the business of the court to ascerta'n from the pleadings and evidence whether the heirs had received assets, cte. : that if they had, then the court 'night have required the master to Incer ain their character and value. Appeal fron? the C;rcuit Court of .Pulas-ki Ounty in Chancery. ON. WILLIAM H. FEILD, Cir-H cuit Judge. Trapnall, for the appellan t. Fowler, for the appellees. NGLISH,C. J. On the 29th of [C119 August, 1837, Aaron AT. Sabin, as administrator of Ludovicus Belding, deceased, filed a bill in the Pulaski circuit court, against Richard C. Byrd, seeking a decree against him for a sum of money, which the bill charged was due
JULY TERM, 1856. BYRD V. BELDING. from Byrd to Belding, upon a contract descent from the said Ludovicus, at his closing up a mercantile partnership, death, a large estate in lands." That which had previously existed between no administration de bonis non had them. Byrd answered the bill, on the been taken, and none ever would be 3d of April, 1839, filed a cross-bill taken on said estate, etc. against Sabin, as such administrator, Prayer, that the cause be revived, praying the allowance of a demand and proceed against the said heirs of against the estate of Belding for $795, Belding, and that the complainant have which, he alleged, was due from Beld- the relief against them which he ing to him upon the same contract. sought against the administrator, etc. Sabin answered the cross-bill; and up- The answer of the heirs of Belding on an irregular hearing of the two bills, controverts the validity of the demand the court decreed to Sabin a part of his set up by Byrd against their father, on demand against Byrd, but refused to grounds which we deem itainnecessary allow the claim of Byrd against the es- to notice; and in response to so much of tate or Belding. Byrd appealed from the bill as charges them with having the decree to this court, and it was re- received assets, etc., they .say: "They versed for irregularity in these proceed- deny that they have received into their ings. See Byrd v. Sabin OR ad., 8 Ark. hands of the assets and estate of their 279. said father anything whatever, or that After the cause was remanded, Sabin such estate has been distributed as set filed a replication to the answer of forth in the said bill; and they submit Byrd to the origihal bill; and Byrd filed to this honorable court, whether the a replication to the answer of Sabin to said Byrd has any right either .at law the cross-bill; and the cause was set or-in equity to call upon these defend-down for hearing. ants to pay the same even if said de-At the June term, 1849, it seems that mand was due to him from their said the death of Sabin was suggested upon father or his said administrator." the record, and proceedings upon the A replication was tiled to the answer, original bill terminated. and the cause came on to be heard up-At the December term, 1849, Byrd on the pleadings and evidence; and filed a bill of revivor and supplement after they were read to the court (ex-against Wm. H. Gaines and wife, Ma- cept the deposition of Robinson,which ria (formerly Maria Belding), Albert the court excluded), the complainant Belding, George Belding and Henry moved to refer the cause to the master Belding, the heirs and legal represen- to ascertain what assets had come to tatives of Ludovicus Belding, deceased. the hands of defendants from their In which, after reciting a history of all father's estate, which the court over-the previous proceedings had upon his ruled, and proceeded to render a decree cross-bill against F . abin, as adminis- dismissing the bill for want of equity: trator of Belding, he alleges by way of from which complainant appealed to 12041 supplement, *that Sabin had this court. long before his death closed the admin- Afterwards, Byrd departed this life, istration of the estate of 13elding, with and his adMinistrator, Marcus L. Bell, the exception of the two canses above was made a party. referred to: "and distributed the saute In order to entitle Byrd to the relief to a large amount, to-wit: the . Sum of which he sought . against the heirs of five thousand dollars, to the said de- Belding, it was incumbent on him fendants, as the heirs of the said Ludo- .first to establish his demand against vicus, who had long before received by their father; and then to make it appear
BYRD V. BELDING, VOL. 18 12P] *that lands or slaves had de- of sa id Belding at his death. Also a scended, or assets had been distributed horse. to them from their father's estate, "The administrator told me, that he which were chargeable with the pay- had collected all that could be collected, ment of the debt. See Walker as adm. and that he had returned the estate to v. Byers,14 Ark. 253, 246, and note 2 Belding's widow. thereof. *"There were the two negroes [*122 Let it be conceded that the demand above named, and the increase of the was proven by the deposition of Rob- woman. inson, and that the court below should "The same negroes were left by the have permitted this deposition to be adminisixator in the possession of the read as insisted by appellant. Let it widow and heirs of said Belding, and also be conceded that the claim was still so remain, except Daniel, who has not barred by the statute of limitations, since died." nor the statute of non-claim : —all of The appellees excepted to so much which questions we deem it unneces- of Mrs. Sabin's deposition as stated sary to decide,—then, let us enquire what the administrator had told her : whether the appellant made out his which was clearly incompetent to case against the heirs? charge them. The answer of the heirs, positively If the balance of the deposition con-denying that any assets or estate of duces to prove that the slaves referred their father whatever, had come into to were distributed, or descended to their hands, was sworn to. It was nec- the heirs, from their father's estate, it essarily a matter within their personal is only the deposition of one witness, knowledge, and being responsive to without any corroborating circum-the bill, must be taken as true, unless stances: and fails to overturn the truth it is overturned by the oath of two wit- of the answer. nesses, or of one, with strong corrobo-The loose and uncertain allegation rating circumstances, in the bill, that the heirs had received, The only depositions taken or read by descent from their father, a large by Byrd, on this branch of the case, estate in lands, is sustained by no were those of Lawson Runyon and proof whatever. Mrs. Sabin. But the appellant insists that the Runyon states that Belding, at the court should have referred the cause time of his death, left an estate, but to the master to ascertain what assets he did dot know the amount. That had come to the hands of the appel-Sabin was the administrator, but wit- lees from their father. The proposition ness did not know whether the admiu- amounts to this : —After the complain-istration had been closed and settled ant had submitted the cause for final up, or not. He inferred that there was hearing and decree, and the pleadings property left in the hands of the widow, and evidence had been read to the but how much, or what became of it, court, the depositions of complainant he knew not, failing to establish the very point at His testimony proves nothing in the issue—that the heirs had received as-hands of the heirs. The widow of sets, subject to the satisfaction of their Belding was -not a party to the bill, father's debt—he moved the court to Mrs. Sabin testifies as follows : refer the matter to the master to make "I was informed by the administra- out the case for him. It was the busi-thr, Aaron N. Sabin, that two negroes, ness of the court to ascertain from the Daniel and Louisa, were the property pleadings and depositions in the case,
JULY TERM, 1856. whether the heirs had received assets, etc., subject to be charged with the payment of complainant's debt. If not, the complainant was entitled to no decree against them. If they had, the court then might have required ihe master to ascertain and re-part the character and value of such assets, etc. As to the powers and duty of a master, see Digest, ch. 28, see. 70. .Remsen v. Remson, 2 Johns. ch. R. 495. After a careful examination of the whole record in this case, we have concluded to affirm the decree of the court below, and 123) *thus tin Illy terminate a litigation which has been protracted for nearly tweLty years, and survived both of the parti,s io the contract out of which the disputation arose. Absent, Hon. T. B. Hatily. Cited.--30-639; 40-440.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.