Goodyear v. Bloodgood, 1 Barb. Ch. 617

Goodyear v. Bloodgood

1 Barb. Ch. 617 | New York Court of Chancery | 1846

The Chancellor.

The objection that the complainants have not taken out letters of administration, with the will annexed, of the goods of T. Goodyear deceased unadministered, is not well taken. This is not a bill to recover a debt due to the estate of the testator, Goodyear, which must be sued for by the personal representatives of the latter. But it is a bill by his legatees, and those who have succeeded to their rights, to recover from the personal representative of the surviving executor of Goodyear moneys which were in the hands of such executor, and which he held as trustee for the complainants, at the time of his death, and which he ought to have accounted for and paid over to them. The persons beneficially entitled to the fund have therefore properly filed their bill, in their own names, to recover from the executor of Bloodgood the moneys which were owing to them from his deceased testator. The cases cited by the counsel for the appellant are cases where claims were made to recover debts due to the personal representatives of the decedent, or property belonging to the estate, which had been taken or appropriated by strangers without authority of the rightful representatives ; or to charge the estate to the prejudice of the rights of the executor, or administrator, as such. Thus in the case of Phelps v. Sproule, (4 Sim. Rep. 318,) the complainant made a claim "a? heir at law of the decedent, against the personal repre*622sentativeof the latter, to have the purchase money of land, bought by the testator in his lifetime, paid out of his personal estate. The bill was therefore properly filed against Betsey Olive, who Was administratrix with the will annexed; of the testator. As she was also the executrix of J. S. Olive, who had possessed himself of the estate of W. Phelps, the original testator, without making probate of the will, the complainant prayed that Betsey Olive might, in her character of executrix of J. S. Olive, account for the property which had come to the hands of the latter in his lifetime. But upon her death, the right to call bet executor to account, as the executor of the executrix of J. S. Olive, for the estate of the original testator which had been wrongfully taken by J. S. Olive, devolved on Prior, the administrator with the will annexed of W. Phelps, the original testator; and it did not belong to the lieir at law of the latter, who was claiming to have the personal estate applied to the payment of the debt due by him for the purchase money of the lands which had descended to the complainant as heir. And as there was no collusion.charged between Prior, the representative, of the estate of Phelps, and Sproule, the representative of the person who had appropriated the funds of that estate without authority, the complainant, whose claim was against the representative of the estate of Phelps alone, could not revive his suit against Sproule as the substituted executor of J. S. Olive.

Nor was it necessary in the case under consideration, that the administrator with the will annexed of T. Goodyear should be made a party to the suit, in any form. The averment in the bill that the debts and funeral expenses of the decedent have been fully paid, shows that the legatees alone have an interest in compelling the executor of Bloodgood to account for and pay over to them their moneys which Bloodgood had received and misapplied in his lifetime. Neither is the objection that the personal representatives of Cowan are not parties to this bill well taken. The whole charges in the bill relate to the negligences and defaults of Bloodgood alone; except'as-to the neglect to inventory the whole property. And, as Bloodgood'was the surviving executor, the legal presumption is. that all the property not inven*623toned, and which had not been duly administered at the time of the death of Cowan, must have gone into the hands of Blood-good as such survivor.

Higgins, the trustee under the post-nuptial contract of Mrs. Fitzgerald, was not a necessary party ; and his conveyance of the trust fund to the complainant Fitzgerald, so far as the personal estate was concerned, was fully authorized, under the circumstances stated in the bill. As to the real estate, it was conveyed upon a trust not authorized by the revised statutes, and therefore no estate xvhatever vested in the trustee. If the trust is correctly stated in the bill, the legal estate remained in Mrs. Fitzgerald, so far as the land was concerned, and descended to her children at her death; subject to her husband’s estate as tenant by the curtesy. The personal estate, hoxvever, vested in Higgins originally, as her trustee, subject to her power of appointment. But upon her death without making any appointment thereof, it would belong to her husband, under the statute of distributions. Higgins then, with Fitzgerald’s assent, could lawfully convey it to him in trust for his children, instead of transferring it to him absolutely and for his oxvn benefit; as he was authorized to do. And the cestuis que trust, under the conveyance from Higgins in trust for the children of Fitzgerald, being parties to the suit, there is no danger that any person can hereafter disturb the account which may be taken in this suit, against the executor of Bloodgood, for that share of the fund which has come to the hands of his testator.

The decretal order appealed from must therefore be affirmed.