2 Bradf. 1 | N.Y. Sur. Ct. | 1851
George G. Messerve, deceased, bequeathed to his executors ten thousand dollars in trust, to invest, and pay the interest to bis son George during life, and on bis death “to pay and distribute the said ten thousand dollars to and among the lawful issue of his said son George.”
George Sutton, Charles C. Dobbs, and Nicholas Dean, were named executors; they all qualified, but Sutton took the principal charge of the estate.
Catharine Ann Messerve, by her next friend, on the 17th of April, 1839, filed her petition before the Surrogate, wherein, after setting out the will of the testator, Messerve, and the decease of his son George, she claimed to be the only child and lawful issue of George, by his marriage with
Sutton and Dean, by their counsel, appear to have denied the allegation of the petitioner’s interest, contending that she was not the lawful issue of George Messerve, deceased. Upon this point testimony was taken at various intervals from February 11 to July 12; some six witnesses having been examined on the part of the petitioner, and fourteen on the part of the executors—all on the single subject of the alleged marriage and the legitimacy of the petitioner. On the 15th December, 1843, the Surrogate made a decree, wherein, after reciting the proceedings had, service of the citation upon Sutton and Dean, “ surviving executors,” their appearance by counsel, and denial that the petitioner was “the lawful issue of the said George Messerve, deceased,” and the hearing of the proofs of the respective parties, it was “ordered, adjudged and
An application is now made by the surviving executors,. Dean and Dobbs, to be permitted to furnish additional proof of the alleged previous marriage between the mother of Mrs. Clayton and Richard I. Schenck. Bow, this was the very point urged before the Surrogate, to which all the testimony adduced by the executors of Messerve was directed, and upon which the question of the legitimacy of Mrs. Clayton depends. After a litigation of some ten years or more, had I the power to hear additional evidence upon an issue which has been determined by the highest appellate court, I do not think it would be in consonance with the salutary rules that govern applications of this kind, to allow the parties what would, in effect, be the benefit of a new trial. There is no allegation of surprise, or of newly discovered testimony; and the evidence sought to be introduced is merely cumulative to the precise and only point at issue in this matter from the very beginning.
It is insisted, however, that the executor, Dobbs, has a right to raise this question of the legitimacy of Mrs. Clayton anew. I think not. It is not sought to make him personally liable; he has no personal interest at stake, and is now cited in only for the purpose of proceeding formally in the accounting. If he did not appear on the return of the original citation, he is certainly precluded by his own laches; if he did appear, and was represented in common with the other executors by Mr. Sandford, the mistake of supposing him dead was the fault of his own counsel, who drew the decree. He cannot, therefore, now, in either case, set up that he was not made a party to the appeal which was taken from that decree. Besides, it is well settled that each executor has an entire authority and interest in regard to the estate of the testator. The estate
It appears, on the accounting, that the executors of Sutton have made distribution of some portion of his estate, among his children mid legatees, and have also paid some of his debts in full. The estate now turns out to be insufficient for the payment of all the claims against it. Though the executors have acted in good faith, they are nevertheless liable to the creditors, to the full extent of all the assets of the deceased; and .these payments to the legatees and kin of the testator must be disallowed. It seems, however, that at the time of taking the inventory, the property directed by statute to be set apart by'the appraisers, for the benefit of minor children, was not so apportioned. This error may still be corrected, and the value of the property may be allowed the executors, on account of the moneys advanced by them for the support of the minors.
The charges in the accounts for debts paid, .in full must also be stricken out, and the executors allowed only for the amount to which such creditor whose debt has been paid in full would be entitled rateably with the other creditors, on the decree now to be entered for a final settlement of the accounts. The losses suffered by the executors by these overpayments, could easily have been avoided by reserving the funds necessary to meet all claims of which notice had been received. The advertisement for claims, under the statute, affords sufficient protection to the executor or administrator, if he pays or distributes after the period for the advertisement to run has expired. If he pays before, it is at his own risk, and he should suffer, in preference to an innocent creditor.