entitled to the fund now in the hands of G. I demand was made upon the administrator by H. A. Kunst, administrator of Adolphus any person entitled to receive any part of this Armstrong, deceased. The bill alleges: That estate, nor that a tender was made of a suffithere is in the hands of said administrator cient refunding bond, as required by section large sums of money derived from the sale 29 (sec. 4055), c. 87, Code; (4) and does not of personal property administered by him, aver the failure of said administrator to which he should account for and turn over settle his accounts, as required by law, nor to plaintiffs, unless such property should be state any reason why the said William B. determined by the court to belong to other Lynch, executor, has not availed himself of claimants. That certain other parties, who the provisions of section 31 (sec. 4057), c. 87, are numerous, and who are made defendants Code; (5) nor that any order was made by to the bill, claim an interest in the estate of the county court of Taylor county, requiring Adolphus Armstrong, and in the estate of said administrator to make distribution of the Louisa Ann Armstrong, deceased, and that estate in his hands, nor any excuse for the plaintiffs are not advised as to the source or failure of the plaintiffs to make application the right of such claims, and therefore ask to said county court for such an order; (6) that the same be adjudicated by the court. that complaint is made against said Kunst, The bill also makes certain persons, claiming administrator, and against other defendants, to be creditors of the estate of Louisa Ann on account of several distinct matters and Armstrong, deceased, parties, and asks that causes, in many of which, as appears by the the amount of their claims be ascertained bill, the said administrator is not interested; and adjudicated. It avers that said G. H. A. (7) that there is a misjoinder of parties, and Kunst, administrator of Adolphus Armstrong, the bill is multifarious and without equity; deceased, declines to pay over to plaintiffs, and (8) that the real estate of said Louisa or to any of them, the personal estate now Ann Armstrong, deceased, is not brought into in his hands for distribution, because of the the suit along with the personalty. various conflicting claims thereto made by some of the defendants to this suit, and also declines to institute a suit himself for the purpose of determining who are entitled to said estate now in his hands, and that, in consequence thereof, plaintiffs have been impelled to bring this suit for the purpose of determining the conflicting claims to the personal estate in his hands and having proper distribution thereof.

Plaintiffs pray that said administrator may be required to account for and pay over the funds which came, or should have come, into his hands as administrator of Adolphus Armstrong, deceased, and that the same may be distributed among the parties lawfully entitled thereto; that the question as to who are the rightful heirs at law and distributees of Adolphus Armstrong be adjudicated, and the various conflicting claims to the personal estate be settled and determined; and that said administrator be decreed to turn over the same to the persons lawfully entitled thereto, and also for general relief.

Separate demurrers in writing were filed to the bill by the aforesaid administrator and by Stella G. Madagan and others, stating the grounds thereof. The demurrers were overruled, and the court, on its own motion, has certified the questions arising thereon to this court.

It is claimed by demurrants: (1) That of the many plaintiffs named, only Wm. B. Lynch, executor of the will of Louisa Ann Armstrong, deceased, has shown any right to demand relief against said administrator; (2) that the plaintiffs seek by one bill to distribute the estate of Adolphus Armstrong, deceased, and also to settle the executorial accounts of William B. Lynch, and to distribute the estate of Louisa Ann Armstrong,

[1] The object of the suit, plainly apparent from the face of the bill, is to settle the conflict among many claimants to one and the same personal estate. It is not possible to determine all these conflicting claims in one action, perhaps not in many actions, at law. Equity has jurisdiction, in order to avoid a multiplicity of suits, if for no other reason. Rader v. Neal, 13 W. Va. 373. It has jurisdiction, also, for the purpose of an accounting by the administrator of Adolphus Armstrong, deceased, and to compel a disbursement by him among the parties entitled to the personal estate. Jurisdiction in matters of accounting is one of the most comprehensive that equity has assumed. Castleman, 5 Rand. 195, 16 Am. Dec. 741, and Tillar v. Cook, 77 Va. 477.

Graff v.

The bill avers the administrator has refused to account for and pay over the estate in his hands to plaintiffs, or to any of them. Who has a right to compel him to do so, if not those who are entitled to the distribution? Demurrants insist that Wm. B. Lynch, executor of Louisa Ann Armstrong, deceased, is the only one entitled to the assets belonging to her estate, and therefore the only one having a right to compel such accounting. The averments of the bill sufficiently answer this contention. It avers the pendency of a suit in a court of Monroe county, Ohio, brought to contest the will of Louisa Ann Armstrong, and a compromise agreement, entered into by her executor, acting under authority conferred on him by the will, and by all other parties interested in her estate, either as legatees or as her distributees, except W. W. Shoch, trustee, Mary Abigail Shoch Batten, and the heirs of Elias Fisher, deceased, by which her estate was administered and distributed, without regard to the outcome of

held:

terest in plaintiffs as entitles them to main- | conflicting claims of right to the estate of tain this suit. Louisa Ann Armstrong. deceased, between [2, 3] The plan of distribution provided by plaintiffs and the defendants, is one of the the will was thereby changed, and the ex-principal questions presented by the bill. ecutor relieved from further responsibility of "Persons are not improper defendants who administering the estate according to the are so connected with the case made as to terms of the will. The distribution according be directly interested in obtaining or resistto that agreement is binding on all the dev-ing the specific relief asked in the bill or givisees and distributees, except said Shoch, en in the decree." Zell Guano Co. v. Heathtrustee, and Mrs. Batten and the heirs of erly, 38 W. Va. 410, 18 S. E. 611; Jones' Elias Fisher, deceased, whose interests are Ex'r v. Clark et al., 25 Grat. 642; Almond protected by the agreement, and distributes v. Wilson, 75 Va. 613. The case last cited the estate and divests the said executor of was a suit in equity by the creditor to subtitle. It was stated by counsel for the ad- ject the estate of his debtor to the lien of a ministrator of Adolphus Armstrong, deceased, judgment. The bill alleged that the estate in oral argument, that the only interest said had been fraudulently conveyed to various administrator had in the suit was to safe- persons, all of whom were made defendants, guard the estate of Adolphus Armstrong, but did not charge any combination or conand see that it was properly administered, federacy among the alienees. The court and he was relieved from further liability on account of his office. A sufficient answer to the objection that the realty was not brought in is that the administrator has nothing to do with the real estate of Adolphus Armstrong, deceased. But, as the heirs of a decedent are also his distributees, the court, in a suit to compel an accounting and distribution, where there are conflicting claimants of the fund, has the power to determine who are the heirs. Russell v. Madden, 95 Ill. 485; Alexander v. Leakin et al., 72 Md. 199, 19 Atl. 532. In the latter case plaintiffs, who were nonresidents, claimed as next of kin, against the administrator and others, the personalty of the estate in the hands of the administrator for distribution. They had actual notice of the appointment of a day for distribution under direction and control of the orphans' court, as provided in section 143, art. 93, Code of Maryland, and declined to submit to its jurisdiction, and brought a suit in equity to have their claims and the claims of all others adjudicated and settled in a court of chancery. The court held :

"That equity will entertain the bill, and not remit the parties to the ex parte and inconclusive proceedings of the orphans' court."

The same rule must be applied here. The will, a copy of which is exhibited with the bill, expressly empowers Wm. B. Lynch, the executor, "to bring or compromise any suits with reference to the settlement of this estate in any court or courts in the land as he may deem proper." This is his authority for entering into the compromise agreement. If the Ohio court should hold the will not to be the will of Louisa Ann Armstrong, Wm. B. Lynch was without authority to dispose of the estate by the agreement. Nevertheless, the agreement having been entered into by her heirs and distributees, it is binding on them and disposes of her estate in any, event. Plaintiffs have a common interest in the subject-matter of the suit and are therefore properly joined; and according to the averments of the bill defendants are likewise interested in the same question and therefore

"The bill is not multifarious. Although a plaintiff cannot demand several matters of different natures against several defendants, a demurrer will not lie, even though the defendants be unconnected with each other, where there is one common interest centering in the point in issue in the cause.'

From Story's Equity Pleading, § 76c, we quote the following:

The truth is that the general rule in relation to parties does not seem to be founded on any positive and uniform principle, and therethe application of any universal theorem as a fore it does not admit of being expounded by test. It is a rule founded partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of courts of equity to suppress multifarious litigation, and partly in the dictate of natural justice, that the rights of persons ought not to be affected in any suit, without giving them an opportunity to deWhether, therefore, the common fend them. formulary be adopted, that all persons materially interested in the object of the suit ought to be made parties, we express but a general truth in the application of the doctrine, which is useful and valuable, indeed, as a practical guide, but is still open to exceptions, and qualifications, and limitations, the nature and extent and ap plication of which are not, and cannot, independently of judicial decision, be always clearly defined."

To the same effect is 1 Hogg's Eq. Proc. § 136, wherein the author says:

"A bill will not usually be regarded as multifarious, where the matters joined in the bill, though distinct, are not absolutely independent of each other, and it will be more convenient to dispose of them in one suit. A bill against several defendants, who have a common interest centering in one point, will not be held multifarious."

The bill in the present case alleges some of the defendants claim an interest in the estate of Louisa Ann Armstrong, deceased, by virtue of contracts made with her in her lifetime, or with persons claiming to act for her under power of attorney, and others of them claim by inheritance. These conflicting interests can properly be determined and adjudicated in this suit.

The bill avers that the administrator of Adolphus Armstrong, deceased, declines and

1910, she made and executed still another will. After her death the second will was presented for probate by her sister, Margaret Dunn, and the probate of it was resisted by her husband, R. S. Prindle, upon the ground that the testatrix was not of sufficient capacity to make a will on the 24th of February, 1910. Upon a hearing in the county court the will was refused probate and the proponent appealed from that judgment to the circuit court of Cabell county. In the circuit court a trial was had before a jury, which jury found that the paper presented was not the true last will and testament of Jennie Carpenter Prindle. The circuit court refused to set aside this verdict, but rendered judgment thereon against the proponent of the will, who has brought the case here for

tiffs, or to any of them, the funds in his | February, 1910, she made and executed a will, bands. It was therefore needless to tender and that again on the 24th day of February, a refunding bond, as provided by section 29, c. 87, Code. The court must first determine who are the proper distributees, before the administrator can know of whom he should demand such a bond, even if he has a right to demand it at all in a case like this, where all the parties are before the court. That section, as well as section 31 of the same chapter, are specially applicable in case of ex parte settlements in the county court. It is not alleged there are any creditors of Adolphus Armstrong's estate. The bill alleges that the legatees and distributees of Louisa Ann Armstrong, who are the plaintiffs, are entitled to all the assets in the hands of the administrator of Adolphus Armstrong, deceased, and in determining the conflicting claims thereto, in this suit, the chancellor has the right and power to protect the adminis-review. trator by his orders and decrees in the cause, and in that event a refunding bond would not be necessary.

The only errors assigned are that the court erred in refusing to set aside the verdict of the jury, and to render judgment for the The foregoing observations lead to an af-proponent of the will, notwithstanding such firmance of the decree overruling the demurrers.

An instruction embodying abstract propositions of law where there is no evidence to which to apply them, or some of them, is properly refused.

Appeal from Circuit Court, Cabell County. Proceeding by Margaret Dunn for the probate of the will of Mrs. Jennie Prindle, deceased, opposed by R. S. Prindle. From a judgment of the circuit court against the proponent on appeal from the probate court's denial of probate, she appeals. Affirmed.

Pendleton L. Williams, of Huntington, and Clarence E. Copen, of Winfield, for appellant.

RITZ, J. The capacity of Mrs. Jennie Carpenter Prindle to make a will is the issue involved in this case. In the fall of 1909 Mrs. Prindle developed a very severe cancer upon her right breast. Notwithstanding the attention of physicians and the treatment administered by them, her condition grew worse until her death on the 13th day of March, 1910. It appears that on the 15th day of

verdict, and also that the court erred in refusing to give to the jury a certain instruction asked by the proponent.

Upon the trial of this case in the court below the proponent introduced the subscribing witnesses to the will who testified that they had been well acquainted with Mrs. Prindle; that they had known her for several years prior to her death, and that their relations with her were of an intimate, neighborly character; that on the evening of the day upon which the will was executed they were called to the home of Mrs. Prindle for the purpose of witnessing the will, and at her request signed their names as subscribing witnesses. They testify that because of Mrs. Prindle's infirmity she was unable to sign her own name with her right hand, but that one of the subscribing witnesses held her left hand and traced her name upon the paper at her direction. They testify that on this occasion she showed no signs of mental incapacity; that her condition, in so far as her mentality was concerned, was in no wise different from what it had always been during the time they had known her; that she appeared to be entirely conscious of what she was doing, knew what property she had, and what disposition she was making of it. Other witnesses are introduced, including close relatives of Mrs. Prindle, who were with her almost constantly during her illness, who testify that at the time of the making of this will, and in fact during all of the time that she was ill, her mind was in no wise affected by her physical infirmity; that she was perfectly conscious at all times of what property she owned; and that on the occasion of the making of the will she was entirely capable and knew fully the disposition she was making of her property. The evidence to show competency is very strong.

equal opportunity to observe the condition of Mrs. Prindle testified directly opposite to each other. If the witnesses introduced by the proponent of the will were believed by the jury, then this was the last will and testament of Mrs. Prindle. If, however, the witnesses introduced by the respondent are to be believed, then Mrs. Prindle was without the capacity to make a will, or to do any other valid and binding act at the time of the execution of this paper. Peculiarly this case was for the jury, and their verdict will not be set aside upon the ground that it is contrary to the weight of the evidence.

[2] Objection is made that the court refused to give to the jury proponent's instruction No. 5, as follows:

On the other hand, the respondent intro- evidence in this case that a manifest injusduced two physicians who had attended Mrs. tice has been done? That the verdict of the Prindle during her illness. The attentions jury is plainly wrong? The testimony was of one of these physicians covered the period in sharp conflict. Witnesses with apparently from the fall of 1909, when she first became ill, until her death in March, 1910. The attentions of the other covered the latter part of her illness. Both of these physicians testify that during the latter part of Mrs. Prindle's life from some time in January, 1910, until her death, she was without the capacity to make a will; that she was during all of the time under the influence of opiates administered to her for the purpose of relieving the severe pain from which she suffered; that in addition to the effect of these opiates upon her mind, the poison from the cancer had so permeated her system that its vitality was entirely destroyed, and that the combined effect of the opiates administered to her and the poison from the cancerous condition had so far affected her will power and her mentality that she was incapacitated to do anything intelligently; that her will was destroyed; and that she was without the power to determine anything for herself. Her husband also testified that he was with her a very large part of the time during her last illness; that he neglected his business for the purpose of remaining with her and administering to her, and that during this time she was so far under the influence of these opiates, and so far affected by the poison from the cancerous condition, that she was without power to determine anything for herself, and her capacity was entirely gone, and he says that the reason he did not present this will, or the one executed earlier, for probate, is that he knew that she was not competent at the time she made either of the wills to know what disposition she was making of her property, or really to have an intelligent idea of the character or extent of her estate. Upon this highly conflicting evidence the jury found that the paper was not the true last will and testament of Mrs. Prindle, and we are now asked to set aside that verdict because the same is contrary to the weight of the evidence.

[1] The uniform holding of this court has been that where a jury has rendered a verdict upon conflicting evidence, and this verdict has been sustained by the trial court, the same will not be set aside, unless it clearly appears that manifest injustice has been done, and that such verdict is a plain deviation from the right of the matter involved. The fact that the trial court who heard the case has refused to set aside the verdict and has given it the stamp of his approval will be given great weight in this court. Smith v. Parkersburg Co-Operative Association, 48 W. Va. 232, 37 S. E. 645; State v. Hunter, 37 W. Va. 744, 17 S. E. 307. Citation of authorities to support this proposition might be indefinitely extended, but these suffice to illus

"The court instructs the jury that in order for a woman to make a valid will, it is not necessary that she should possess the highest qualities of mind, nor that she should have the same strength of mind that she may formerly have had; that the mind may be in some degree debilitated; the memory may be enfeebled; she may possess weakness of understanding, eccentricity of character, and even want of capacity to transact many of the ordinary business affairs of life, but is sufficient if she possess mind enough to understand the nature of her property, to know the object of her bounty, and to comprehend the disposition of her property in its simplest forms."

This instruction may correctly propound an abstract proposition of law, but unless there is evidence in the case to which the propositions embodied in the instruction can be applied, then it was not error for the court to refuse it. It must be borne in mind that the witnesses for the proponent testified clearly and explicitly that Mrs. Prindle's mind was in no manner impaired; that it was just as strong and clear as it had ever been; while the witnesses for the respondent testified that her mind was impaired to such an extent that she was without capacity to know what she was doing, or to determine any matter which required the exercise of judgment. How then can it be said that there is evidence to justify some of the statements contained in this instruction? For instance, what evidence is there that her memory had become enfeebled? What evidence is there that she possessed weakness of understanding, when one contention is that her understanding was complete, and the other that she was without the capacity to understand at all? What evidence is there that she displayed eccentricities of character? When we attempt to apply the evidence in this case to these statements we find that the court very properly refused to give this instruction. It must be assumed when the court gives an instruction he thereby tells the jury that there is evidence in