Leddel's v. Starr

| New York Court of Chancery | May 15, 1868

The Chancellor.

The bill in this case was filed by the complainant for the settlement of the estate of his testator, and for directions as to the disposition of certain funds or securities in his hands, claimed to belong to the estate of Jemima Leddol, the widow of the testator, whose administrator was made a party.

This application is made by the defendants, Jonas Denton and Frances his wife, on behalf of Frances Denton, a daughter of the testator, and legatee under the will. It is for two objects: the removal of the executor, and the appointment of a receiver.

This court has no power to remove an executor; that power belongs exclusively to the Orphans Court, and perhaps, in some cases, to the Ordinary. 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 lie will bo 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 But in such case he is not removed or superseded as executor.

It is objected to the application for a receiver, which is made by one of the defendants by petition in this suit, that a receiver cannot be appointed, except by bill for that purpose, and can in no case be appointed on application of a defendant in a suit.

A receiver is generally appointed on bill filed for that purpose, and rarely before answer, except under provisions by particular statutes. There are a few exceptional cases where a receiver has been appointed upon petition; but these are in the cases of infants, whose position as wards of the court gives them the right to apply by petition, or in cases similarly situated.

But I find no case in which a receiver has been appointed, as against a complainant, upon the application of a defendant. The matter of practice and precedents was inquired into and settled by Lord Langdale, in Robinson v. Hadley, 11 Beav. 614. I find no precedent anywhere, to sustain such practice. The whole theory upon which relief is granted in equity, is against such practice. No positive relief is ever granted to a defendant, except on cross-bill,’ and no relief, except it be founded on allegations in the bill, or other pleadings in the cause.

Nor is this a case in which a receiver Gan be appointed and kept in office until a cross-bill is filed to sustain the appointment. The authority referred to was a case where a receiver had been regularly appointed, but was about to be discharged upon an arrangement with the complainant, and a discontinuance of his suit. In that case, the court postponed the discharge of the receiver until a cross-bill could be filed by one of the defendants, so that the property might until then be retained under the control of the court.

The motion must he denied.