| N.J. Super. Ct. App. Div. | May 15, 1887
While it is lawful for the ordinary, in his discretion, at the instance of a party aggrieved, to direct the prosecution of an executor’s bond in case the executor has not accounted within twelve calendar months as required by law, because such failure is a breach of the condition of the bond, it is not usual for him to do so, unless it shall appear that the delay has been contumacious or so continued as to work injury, and that some substantial good may be accomplished by the prosecution. In this case, the failure to account within the time required by law seemed to be contumacious, because of the apparent disregard of the citation of the orphans court. It now, however, appears that the executor responded in person to the citation, and advised with the court as to the propriety of filing liis account before he should be instructed by the supreme court of New York as to his duty as trustee with reference to the trust moneys, and it has also been made to appear that no substantial end will be served by the entry of judgment upon the bond at this time, but, on the contrary, that such judgment will oppress and vex the bondsmen. Webster’s Case, 1 Hal. Ch. 89, 97, Chancellor Halsted, sitting as ordinary and speaking of the prosecution of an administration bond for failure to account within one year, says: “ On the application of a proper person, an order for the prosecution of an administration bond may be made on this ground, though the ordinary might not feel constrained in all cases to make it on this ground alone. New estates are or can be settled within the year, and though the administrator might and ought to state an account within the year as far as he has gone (see Archbishop of Canterbury v. Wills, 1 Salk. 816), yet the omission to do this is not so serious a dereliction of duty as should constrain the ordinary in all cases to order a prosecution of the bond for that cause alone. In applications founded on that ground alone, the ordinary exercises his discretion. Great vexation and expense might be produced to little purpose by a prosecution for that cause alone.”
In Honnas’s Case, 1 McCart. 493, Chancellor Green says that
In Ordinary v. Poulson, 14. Vr. 33, Chief-Justice Beasley speaks of the power to order the prosecution of the bond being within the discretion of the ordinary, and of circumstances which will control the exercise of that discretion so that the prosecution will not be ordered for a mere technical breach of the condition of the bond unaccompanied by substantial dereliction of duty.
Upon the entry of judgment in the suit upon the bond, the judgment will be for the penalty, and the ordinary will then ascertain the damages. In doing this, he will order the settlement of the executor’s account in the orphans court (Ordinary v. Snook, 5 Hal. 65; Ordinary v. Barcalow, 7 Vr. 15), and, except in case of maladministration and consequent loss of assets, will not order the money to be brought in by the bondsmen. Ordinary v. Poulson, 14 Vr. 33.
In this case I think it would be vexatious and oppressive to the bondsmen to burden their properties with the lien of a judgment for $40,000 pending an accounting by the executor in the orphans court, and I will therefore, if the executor’s account shall be filed with the surrogate of Essex county within three days, order that the prosecution of the bond be stayed. If the executor shall not proceed with his accounting with proper expedition and in a satisfactory manner, or if it shall be made to appear that the bondsmen are becoming irresponsible, I will allow the prosecution of the bond to continue to judgment.