Long v. Majestre

1 Johns. Ch. 305 | New York Court of Chancery | 1814

The Chancellor.

It is, no doubt, the general rule of this court, that the creditor filing the bill against the executor, cannot make a debtor of the estate a party, for this would be taking the business out of the hands of the executor, and would lead to confusion in the administration of the estate, as every creditor would then be entitled to such a bill against every debtor. The same cases, however, admit that there are exceptions to the rule, as where the executor is insolvent, or there is collusion between the executor and the debtor, or where there is some other special case not exactly defined. (Utterson v. Mair, 2 Vesey, jun., 94. Alsager v. Rowley, 6 Ves. 748. Burroughs v. Elton, 11 Ves. 29.) As there is no suggestion of insolvency in the administrator, or of collusion, this case does not fall within those exceptions. But the strong objection to the demurrer is, that this is a special case, not within the reason of the general rule. It is more like the case of one partner calling the other to account; for, taking the charges in the bill to be true, as we must do in judging of the demurrer, the plaintiff was the ces tuy que trust, for whose use, and with whose money, the intestate carried on trade with the ant: and, as Lord Hardwicke observed, in Newland v. Champion, (1 Ves. 105.,) the case of partnership is very different from the other cases, and there were many instances where the surviving partner of a deceased debtor was made a party, so that there might be an account of the personal estate entire. And he said, in that case, that though there was no suggestion of collusion between the surviving partner and the representative of the deceased, yet the bill was not demurrable to, and an account was accordingly directed between the creditor of the deceased partner and the survivor. In this case, it appears to me, independent of all authority, that the plaintiff, upon his bill, is most fitly entitled to call from the defendant a full account of the latter copartnership, and that he can obtain such an account from no other source so fully and effectually as from the defendant, Tardy.

The demurrer is, accordingly, overruled, with costs.

Decree accordingly,,