Rogers v. King, 8 Paige Ch. 210

Rogers v. King

8 Paige Ch. 210 | New York Court of Chancery | 1840

The Chancellor.

The surrogate has concurrent jurisdiction with this court to call an executor or administrator to account. And if the same party who files a bill in this court against such executor or administrator subsequently cites him to account before the surrogate, the pendency of the suit here, for the same object, ought to be allowed by the surrogate as a valid objection to the proceeding there 5 in the nature of a plea in abatement. And where, in a suit properly instituted in this court, by any other creditor, legatee, or distributee of the estate, a decree for an account has been entered, for the benefit of all the creditors and other persons interested in the estate, such decree may be set up as a bar to any proceeding for an account before the surrogate. And this court, upon a proper application, would grant an injunction, as a matter of course, to stay any creditors or others from proceeding before the surrogate, and to compel them to come in and establish their claims under the decree here. (Moore v. Prior, 2 Young & Coll. Rep. 375. Paxton v. Douglass, 8 Ves. 520. Perry v. Phelps, 10 Idem, 39. Clarke v. Ormond, Jacob’s *212Rep. 122.) Although the respondents are made parties to the suit against the executors of Grade in this court, they are parties defendants; and the complainants in that suit, at any time before a decree for account, might deprive them of any benefit thereof by dismissing the bill. In analogy, therefore, to the established right of different creditors to proceed simultaneously, against the executor or administrator, in the same or different courts of equity, until a decree has been made in one of the suits, so that all may come in under the decree, the simple institution of a suit by one creditor in this court is not a sufficient ground for the surrogate to refuse the application for an account before him by another creditor. The decision of the surrogate in this case was therefore correct; and the order appealed from must be affirmed with costs. But as there is now a decree for an account, in the case which was pending before the vice chancellor at the time when these proceedings before the surrogate were instituted, the further proceedings in this matter, except for the collection of those costs, will be stayed of course ; and the respondents will be permitted to come in under that decree and participate in the taking of that account before the master.