Morris ex rel. Grinnage v. Dorsey, 77 N.J. Eq. 460

Morris ex rel. Grinnage v. Dorsey

77 N.J. Eq. 460 | New York Court of Chancery | 1910

Leaming, V. C.

First. Hpon the present record it is impossible to award preliminary relief upon the ground of fraud and collusion asserted by the bill. The affidavits filed in behalf of defendants necessitate the present conclusion that they have proceeded in good faith.

Second. In a bona fide action at law against a residuary devisee, as such, for a debt of the testator, a recovery of judgment necessarily establishes the debt as a just debt of the testator. Objection is now made in behalf of complainant that the present record nowhere discloses that Mary L. Williams, against whom the two judgments were recovered, was in fact a residuary devisee of Martha Morris, or received assets as such, or that either *463of the judgments against her was recovered against her as such residuary devisee for a debt of her testator. I incline to the view that the evidence afforded by the transcripts of the proceedings before the law court, when considered in connection with the amendments to the pleadings as recorded in the minutes of the law court, sufficiently disclose the facts stated; but I think the present determination of that question is unnecessary for the reasons hereinafter considered.

Third. Assuming that the several recoveries by Deaton and Johnson against Mary L. Williams were recoveries against her as devisee of Martha Morris, and that one was for a just debt of Martha Morris and the other for her funeral expenses, and that the judgment debtor has, as such devisee, received assets to the combined amount of the two judgments; and that the two claims were, by such judgments, sufficiently established to warrant or even require the present administrator of James H. Morris to recognize the judgments as claims payable under the terms of the will of James H. Morris, has the orphans court jurisdiction to order the sale of the lands in question under the provisions of the statute for the sale of lands for the payment of debts ? I think not. The proceedings which have been taken to procure the order of sale have been under and pursuant to the provisions of the statute which authorizes the orphans court to order land sold for the payment of debts of a testator or intestate. The claims for which the present sale is about to be made are not debts of James H. Morris. The will of James H. Morris contemplates that these claims shall be paid out of his estate; but they are not his debts. The direction in his will to the effect that if his widow should die leaving debts of her own, such debts should be paid out of his estate, is, as stated by the supreme court in the case already referred to, in the nature of a legacy; and the same may be said as to the provision for the payment of the funeral expenses of his widow. I know of no legislation which clothes the orphans court with power to order the sale of real estate to thus enable an executor to comply with the directions of a will. If no power of sale of real estate is vested in an executor by the terms of a will he can only acquire that power from the orphans court in such cases as the statute has author*464izecl that court to confer the power. The legislature has empowered the orphans court to authorize the sale of lands of a. testator or intestate for the pajunent of 'the debts of the testator or intestate when the personal property is insufficient for that purpose; but the statute goes no further. Certain words of this statute have been held to indicate a legislative intent to embrace in that statute expenses and allowances in the settlement of the estate (Personette v. Johnson, 40 N. J. Eq. (13 Stew.) 173), but the “debts” referred to throughout the act are debts of decedent.

I will advise a preliminary writ pursuant to the prayer of the bill.