Bentley v. Dixon, 60 N.J. Eq. 353

Bentley v. Dixon

60 N.J. Eq. 353 | N.J. | 1900

The opinion of the court was delivered by

Magie, Chancellor.

I entirely approve the conclusions reached in the court below, both as to the construction of Peter Bentley’s will, and as to the proofs establishing the right of respondents to relief of the nature afforded by the final decree appealed from.

At first I felt much doubt as to the propriety of sustaining the whole decree without some modification.

One of the prayers of the bill was that appellant might be removed from the office of executrix of her husband’s will. The learned vice-chancellor recognized the entire want of power in *360the court of chancery to decree such removal. Starting with that well-settled doctrine, it seemed that a decree permanently enjoining appellant from the performance of every function of her office was incongruous. If the court of chancery cannot expressly remove an executor, it surely cannot effect a practical removal by stripping the executor of all his powers, and conferring those powers upon a receiver appointed by the court of chancery. A temporary restraint, pending application for removal directed to the proper court, would doubtless be within the power of the chancellor.

But my doubt has been removed by the following considerations :

When this decree was made the situation of the estate indicated that the powers and duties devolved upon appellant were those both of an executrix and a trustee. She had unlimited power to sell testator’s real estate, and practically that was all that remained of his estate. The proceeds of such-sales were doubtless to be devoted by her, as executrix, to the payment of any remaining debts of the testator. But after the payment of debts they were to be held by her, in trust, for ultimate disposition to those named in the will, at her death or marriage, she being meanwhile entitled to the income therefrom.

In my judgment the rule of equitable relief in such circumstances was correctly laid down by Chancellor Zabriskie thus: "When an executor is also trustee, and the matters in his charge as trustee can be separated from those confided to him as executor, this court may remove or supersede him as trustee; but in such case he will be left to execute and perform any duty devolving upon him as executor. In proper cases this court will enjoin him from proceeding further in the execution of his duties as executor, and will appoint a receiver and direct him to pay over the estate in his hands to the receiver to be administered under the direction of the court. But in such case he is not removed or superseded as executor.” Leddell v. Starr, 4 C. E. Gr. 159.

It is evident from the context that the "proper cases” intended by the chancellor for restraint by injunction, and for the appointment .of a receiver, are those where the functions of executor and -trustee are intermingled and inseparable.

*361Here the powers and duties devolved upon appellant were intermingled and inseparable. The chancellor, in order to exercise his undoubted jurisdiction to restrain her from continuing to act as trustee, necessarily restrained her action as executrix, and, in my judgment, such incidental restraint was entirely within his jurisdiction.

I therefore vote to, affirm.

For affirmance — Ti-ie Chancellor, Chief-Justice, Van Syckel, Garrison, Lippincott, Gummere, Ludlow, Bogert, Hendrickson, Adams, Vredenburgi-i — 11-

For reversal — None.