Dodson v. Sevars

52 N.J. Eq. 611 | New York Court of Chancery | 1894

The Chancellor.

The object of the complainants’ bill is to secure payment of their claim by charging it, as far as may be, upon the assets of the estate of James Taylor which remain in the hands of the executors or are within their reach.

The executors have obtained a decree from the orphans court which bars the demands of creditors against them, and are protected by that decree from the complainants’ recovery in this action, except as to legacies in their hands which have not been paid over. Rev. p'p. 76Jh 765 §§ 6%, 66. Their failure to filer refunding bonds is presumptive evidence that the assets have not been paid by them to legatees. Rev. p. 765 § 68.

The bill alleges that no refunding bond has been filed, and the ■complainants rely upon the presumption which arises from that fact to charge the executors with having the entire estate yet in hand.

On the part of the executor’s it is urged that the bill admits, to some extent, that, the' estate has been paid over to legatees. But the difficulty in this contention is that it does not appear what that partial extent is. The admission of payment over is indefinite. -The allegations are that the property which was bequeathed to Mrs. Taylor for life, “ or some part of it,” and also that which was bequeathed to her absolutely, “ or some part thereof,” was paid over to her, and further, that she left a large amount of the property which was bequeathed to her absolutely undisposed of at her death, the exact amount being unknown to the complainants, which the executors of James Taylor have negligently failed to collect and take into their custody, and also that the property which was bequeathed to Mrs. Taylor for life, with remainder over to Ella F. Davis, consisted of the household furniture in her husband’s residence which she used during her life, and that the executors have neglected to take that property into their custody, but, on the contrary, have suffered- John Sevars, the father of Ella F. Davis and administrator of her estate, to take it into his possession. Thus the bill impliedly admits the paying over, the implication being that all the estate went to Mrs. Taylor except possibly some portion of that which was bequeathed to her- absolutely and the real estate on the corner of Taylor and Mercer streets, which, at her death, was to be sold by the executors. But the allegation from which the admission is had is indirect, uncertain and inquisitive in character, and until the discovery of particulars be had through the defendants’ answers, it should not be allowed to defeat or injuriously affect the complainants’ suit, and besides it does not go to a complete payment over, and therefore that which is not admitted to have been paid over is subject to the presumption stated.

A more serious defect, I think, is in the bill’s assumption that the executors of James Taylor are bound in duty to recover possession of the property bequeathed both for life and absolutely to Mrs. Taylor and paid over to her, for the purpose of distributing it to the estate of Ella F. Davis and Sarah M. Price and others, referred to in the will,’ respectively, or for any other purpose.

Having delivered over the life legacy, in due course, taking a proper receipt or inventory to the remainderman, as must be presumed, no suggestion being made to the contrary, the executors were discharged from any further duty or liability with reference to it. Thereafter it became the care of the person who was to take in remainder to see that the corpus thus delivered was not consumed or wasted. 1 Rop. Leg. 316; Lynde v. Estabrook, 7 Allen 68, 72; Hunter v. Green, 22 Ala. 329; Weeks v. Jewett, 45 N. H. 540; Executors of Howe v. White, 1 C. E. Gr. 411, 416. They might have required security for the benefit of the remainderman, but were not required to do so. Rev. p. 582 § 8; In re Ryerson, 11 C. E. Gr. 43.

The bill stated that the remaining personalty was bequeathed absolutely to Mrs. Taylor, with -the proviso added that if she should die intestate, leaving any part of it undisposed of, then the executors were to convert it into money and distribute it.

This statement of the will shows an absolute gift, for an indefinite time, with unlimited power of alienation. Such a gift is construed to carry to its recipient absolute ownership, and a gift of that which remains undisposed of, over, is held to be void. McClellan v. Larchar, 18 Stew. Eq. 17; Rodenfels v. Schuman, 18 Stew. Eq. 383; Wilson v. Wilson, 1 Dick. Ch. Rep. 324.

Thus, a large portion of the estate appears, by the bill, to be without the possession or reach of the executors.

Yet the bill shows that some part of the estate has not been delivered to Mrs. Taylor, and it seeks the discovery of and accounting for that part as well as for the other. It also seeks to subject real estate, which the will orders now to be converted into money by the executors and distributed to legatees, to the payment of its proper proportion of the complainants’ claim. It alleges that the executors of James Taylor are insolvent and intent on preventing recovery by the complainants, and it consequently seeks to restrain their disposition of the estate, and to have it reduced to moneys through the instrumentality of this court and applied to the payment of the complainants’ claim. I regard it to be fully established that such a suit is within the jurisdiction of this court, even though the complainants’ claim may not be established at law. 1 Story Eq. Jur. § 546; Frey v. Demarest, 1 C. E. Gr. 236, 239; Kennedy v. Cresswell, 101 U. S. 641; 2 Wms. Ex. 1718, 1719; Thompson v. Brown, 4, Johns. Ch. 619, 631.

It is observed that the defendants are the surviving executors of James Taylor — John Sevars individually and as administrator of the estate of Ella F. Davis, Sarah M. Price, Mary E. Sevars and the children of Joseph Lawton.

The surviving executors of James Taylor are made parties so that an account may be had of their dealings with the assets oi their testator’s estate, the assets with which they are chargeable may be had from them, they may be restrained from further acting as executors and may be removed from office. Sarah M. Price, Mary E. Sevars, the children of Joseph Lawtony and John Sevars, as administrator of the estate of Ella F. Davis, are made parties because they are each entitled to some share in the proceeds of the real estate, to be converted into cash, which is sought to be charged with a proportional payment of the complainants’ claim, and are concerned that the executors shall be fully charged for assets which came to their hands, or should have been collected and shall not be unduly credited, for, as the balance which was available for legacies may be increased,’ the proportional charge in this suit against the legacies that have not been paid over will be decreased. John Sevars, individually and also as administrator, is further made a party because he is alleged to have in his possession part of the assets which were paid over to Mrs.. Taylor. It is thus perceived that all the defendants, except John Sevars individually, are interested in the proposed accounting of the executors and the proposed disposition by this court of the assets not paid, in the place of the executors, and it follows that they are also interested in the incidental restraint of action by the executors, the removal of the executors from office, if that be possible by this court (Leddel’s Executor v. Starr, 4 C. E. Gr. 159), and the appointment of a receiver of the assets. All the defendants are interested in the prayer that they or some of them may be compelled to pay the complainants’ claim. But John Sevars individually is not interested or concerned either in the proposed accounting of the surviving executors, or in the court’s assumption of their duties and the incidental restraint of their action, or in the removal of the executors, or in the appointment of a receiver of the assets of the estate. He is interested only in the accounting which is sought to be had from him for the property which he had from Mrs. Taylor, which, as has been seen, was paid over to her and either belonged to her absolutely or was to go from her directly to the taker in remainder, concerning which the executors have no duty to perform and which is not within their reach, and in the prayer that the defendants, or some of them, may be decreed to pay the complainants’ claim. As the complainants can only recover from him assets which are held by him for the executors or which the-executors may recover from him, and it does not appear that he has assets of that character, the complainants do not show any equity against him for the recovery of any portion of their claim. Hence, the bill fails to show any equity against him individually. The remaining defendants, including John Sevars as administrator, are proper, if not necessary, parties to the suit.

Upon the question whether the bill is multifarious, the statement already made of the interests of the several parties shows that, with the exception of John Sevars in his individual capacity, they are all interested in all material parts of the relief sought. The determination already reached, that the bill fails to make a case against John Sevars individually, precludes the necessity of considering whether the bill is multifarious as to him. As to the others, it is not multifarious.

The demurrers will be overruled, except so far as John Sevars individually is concerned, and as to him, in that capacity, his demurrer will be allowed.