Morris v. Mowatt
4 Paige Ch. 142
New York Court of Chancery
1833
Check Treatment
The Chancellor.

I am inclined to think that the affidavit of Morris in support of this claim is wholly insufficient to authorize the master to take cognizance of it; even if the complainants had a right, as general creditors, to come in under the decree and establish such a claim. To enable a creditor to come in under a decree to prove a claim, which is not stated or not referred to in the pleadings or proofs in the cause, he should present the particulars of his claim to the master, accompanied by his affidavit in support thereof. In this affidavit the claimant must swear, either positively or according to his information and belief, that the amount claimed is justly due, as set forth in the particular of his claim; and that neither the claimant, nor any person by his order, or, to his knowledge or belief, for his use, hath received the amount thus claimed or any part thereof, or any security or satisfaction whatsoever for the same or any part thereof. (Bennett’s Office of Master, 54, and App. 24. Brown’s Ch. Pr. 825.) The object of this affidavit is not to prove the claim; which, if contested by any person having a right to contest the same, must be supported by legal proof. But it is to guard against fictitious claims, which the parties presenting the same do not themselves believe to be founded in justice ; although they may be able to produce documentary or other evidence in support of their claims sufficient to show a prima facie case of indebtedness. As a farther guard against unjust claims of creditors coming in under a decree, the master, upon the application of any party interested in opposing such claims, may examine the claimants an oath as to their claims, or any payments or set offs which ought in equity to be allowed on account of the same. (See 105í7t Rule.) Moms, the only one of the complainants who has verified this petition, or the charge before the master, does not in terms swear that he believes the amount of this new *146claim is justly due from the estate of J. Mowatt, jun.; or that the amount, as reported due by the master, was less than the balance actually due from that estate. On the contrary, I should infer from the manner in which the petition and the verification of this claim is drawn, that he did not think the whole amount claimed was justly due. I allude to the sum of $1098,-73, deposited in the bank of New-York, which was received by Morris. I presume, however, he intended to represent to the master that he believed the residue of the claim was justly due; although from the manner in which the papers are drawn he has not actually sworn that he believed any thing was due beyond the amount reported by the master in the first suit. If the case turned upon this question alone, I should permit the petitioners to renew their application, upon a^ proper verification of their claim.

I am not prepared to say, however, that a creditor who has filed a bill for a specific claim against an estate, and where the usual decree has been obtained for an account, and that all the creditors be permitted to come in, can go before the master and prove another and distinct demand, not set up in the bill or referred to in the decree. In this case the complainants seek to go much further. They have filed their bill for a specific amount, as the balance due them from the estate of J. Mowatt, jun. as one of the trustees of Sands; and they have obtained a decree establishing that demand in this suit. And they now ask permission to go before the master and prove a claim for an additional sum, on the ground that the balance due from the estate of Mowatt, as claimed in their bill and established by the decree in this cause, was not the true balance, but that the amount due is in fact much larger. As the decree in the present suit has settled the balance due from the testator to the complainants, on account of monies received by him as oneof the assignees of Sands,it is impossible, consistently with the regular and ordinary practice of the court, to permit any alteration in the amount of that indebtedness, without a re-hearing of the cause, with a view to the modification of the decree. That, however, cannot be granted on this petition. But even if a re-hearing was granted, as the bill lays no foundation for this additional claim, it would be erroneous to allow *147the decree to be so modified as to permit the complainants to go before the master on such a claim. The remedy in such a case must be by opening the whole proceedings in the'suit, and allowing the complainants to amend their bill. But that cannot be done here, as the real estate, devised by the will, has been already sold and conveyed under the decree, and the costs have also been paid out of the fund received on such sale. Although the decree in the original, suit against the executors, may not be conclusive, as to the amount of the indebtedness, in a suit by the same complainants against the devisee^ yet if the account taken in that suit is now to be opened dr disregarded, for the purpose of correcting any errors in favor of the complainants, the defendants, in common justice, must have the same privilege of re-investigating that account, for the purpose of showing that a less sum was due. But I am satisfied that after the lapse of more than ten years, and when the only persons who could probably understand and protect the rights of the defendants are dead, it would be improper to permit these complainants to set up this new claim against the •estate, under the supposition that it had been overlooked, both by their counsel and the master, when the account was taken in the former suit.

The petition must therefore be dismissed, with costs to the parties, who have attended to oppose this application. Directing those costs to be paid out of the fund, would, in effect, be a direction that they should be paid by the parties who have successfully resisted this new claim,