| New York Court of Chancery | Nov 10, 1898
The four complainants are residents of New Jersey; the two defendants are residents of the State of New York. Neither of the defendants has been served with process, but each appeared separately and voluntarily.
The object of the suit is to enforce a decree rendered in favor of the complainants against the defendants by the supreme court of New York, and to fasten upon and keep within the jurisdiction of this court a sum of money which is about to 'be paid to the defendants, and which, by the decree of the New York court, was declared to be held in trust by the defendants for the complainants as to four-fifths thereof. The defendant Oliver M. Arkenburgh, under whose immediate control the fund was at the filing of the bill, submitted to the jurisdiction of the court, answered the bill, admitting the complainants’ equity, and the fund was paid into court, all before the defendant Eliza demurred. The payment into court was made in pursuance of an order made after hearing counsel for defendant Eliza.
The ground of the demurrer of the defendant Eliza is that the defendants are sued in a representative capacity, namely, as executors of a will proven in the State of New York, made by a testator domiciled in that state, and hence cannot be called to account in this jurisdiction.
The facts admitted by the demurrer are, that the defendants’ testator, Robert H. Arkenburgh, died seized of a tract of land situate near Rahway, in this state, which he held in trust (subject to certain encumbrances for taxes, assessments, &c., paid by him), as to four-fifths thereof, for the four complainants, and as to one-fifth thereof for himself. After his death and the proof of his will in New York the defendants, who were named as executors therein, by virtue of a power of sale contained therein
An appeal was taken from that decree, and it was affirmed by the appellate division of the supreme court, on the 25th of March, 1896.
Between the date of the original decree (October 29th, 1895) and the time of the filing of the bill herein the defendants received certain payments of principal and interest on the mortgage which, in the aggregate, overpaid the balance found due the
In February, 1897, the defendant Oliver M. Arkenburgh, at the instance and request of the complainants herein, but against the consent of his co-executrix, Eliza, filed a bill in this court to foreclose the mortgage, claiming it to have become due by reason of a breach of the condition of the bond in not paying taxes, with the result that on the 7th of September, 1897, a decree was made in favor of the said Oliver for the sum of $18,061.49. The case is reported as Arkenburgh v. Lakeside Residence Association, 11 Dick. Ch. Rep. 102. Eliza J. Arkenburgh was made a defendant to that suit. An appeal from that decree was taken by the defendants, which was dismissed on the 1st of March, 1898.
The complainants being in fear that the amount of the decree would be paid to the defendants and removed beyond the jurisdiction of the court, filed their bill in this cause April 6th, 1898, and obtained an order to show cause why the money should not be paid into this court, with the result above stated.
The particular objection which the complainants had to this money going beyond the jurisdiction of the court was that the defendant Oliver and the defendant Eliza had been, since the proof of the will, in constant litigation between themselves as to the administration of the estate, with the result that they are both under orders of the supreme court of New York to deposit all moneys received by them as executors with a trust company in New York, and that no payments should be made out of it by either without an order of that court. The result of this, as the complainants argue, would be that their money would be subjected to the risk of being tied up in the trust company, and they subjected to the expense and trouble of applying to the court for an order for its payment to them.
I am of the opinion that the demurrant’s point that the action is against the defendants in their representative capacity as foreign executors is not well taken. The rule invoked I think has no application to this case.
* I am unable to see how the estate proper of Arkenburgh— the fund of which that estate is composed — will in any sense be liable for the performance by the defendants of any decree which may be made against them herein. Should they receive the fund here in question and divert it to their own individual use, I do not see how anybody representing or having possession of the funds of the Arkenburgh estate can be compelled to make good the default. The action is a simple one to enforce a decree made by the courts of New York against the defendants as individuals and not as executors. The suit in New York was necessarily against them in a dual capacity. It, in effect, asked for an accounting with the estate of Robert H. Arkenburgh as to payments on encumbrances and receipts of principal and' interest, and it prayed for a declaration of the rights of complainants in the proceeds of the sale and conveyance by the executors of the lands held in trust, which proceeds they held as individuals, for it must be observed that the naming them as executors in the bond and mortgage was a mere descriptio personarum and did not vary their rights. They did not hold and claim the mortgage by the force of their letters testamentary, but precisely as if they had invested so much money loaned by themselves. In order to maintain their suit for foreclosure in this court they were not obliged to establish or prove any right or title through the will of their testator, or even to name themselves as executors. The naming them as executors in the bond
The rights of the complainants do not depend on the existence or probate of any will or anything contained therein, nor upon the fact that the defendants are or have been acting in a representative capacity; nor, as we have seen, does the enforcement of those rights interfere in anywise with the administration of the testator’s estate. The sole value of the circumstance of their claiming under a will was found in, and expended its force in, showing their capacity to make title to the land, in part payment of which the bond and mortgage were given.
The land which was the source of the fund was situate in this state. The bond and mortgage upon which the decree of the court in New York fastened a trust in favor of the complainants was located in this state. Its enforcement and collection was had in a court of this state, and the complainants are residents of this state. This circumstance seems to render it eminently just and right that the fund should be kept here to aid in the enforcement of the New York decree, and to save the complainants the expense of going into a foreign jurisdiction to enforce their rights, and also the additional expense which will naturally result from the disagreements between the, defendants personally. The authorities show that such circumstances are always considered in determining the question whether the court will assume jurisdiction over foreign executors.
And here it is to be observed that the defendant Oliver, who has the actual custody of the bond and mortgage, and who, at the instance of the complainants as eestuis que trust, enforced its payment by a bill filed by himself alone against the owner of the equity of redemption and the demurrant defendant, has appeared, answered and submitted to the jurisdiction of the court.
The demurring defendant, being a non-resident, was not obliged to appear, and in the absence of a voluntary appearance no decree could have been entered against her personally. So far as she is concerned, any decree that the court could have made would have been harmless.