4 Paige Ch. 409 | New York Court of Chancery | 1834
Even if the executrix is right in sup» posing that the $18,000 of the legacy invested on bond and mortgage became the real estate of Mrs. Paterson by the release of the equity of redemption to the mortgagees, so that it descended to her heirs at law, and not to her husband, I have not the power, either upon a bill of review or otherwise, to correct the decision of a superior tribunal, by which the whole property was decreed to the husband. Neither do I see anyway in which these facts could be gotten before the court for the correction of errors, even if there was a rehearing there. They must rehear the cause upon the bill and answer, upon which the decree of this court was founded, and no such facte appear upon those pleadings. In this case, however, if the mortgage had been given directly to Mrs. Paterson, and the equity of redemption had been cast upon her by operation of law, it is doubtful whether a court of equity would consider the mortgage debt merged during her minority, so as to deprive herself or her husband of the benefit thereof as personal estate. (See Powell v. Morgan, 2 Vern. 90. Thomas v, Kemys, Id. 348. Donisthorpe v. Porter, Ambler, 600. 2 Eden’s Rep. 162, S. C. Jicklings Leg. Equit. Estates, 427, note y.) It is clear, however, that the executors, who were merely trustees for the purpose of investing the legacy so that she might receive the income thereof, as personal estate, had no right, without her consent and during her minority, to change the nature of the property so as to alter the course of descent. The husband, therefore, as her personal representative, had a right to insist that the mortgaged premises should be converted into money, or be conveyed to him, as a part of the personal estate.
The one hundred and eighteenth section of the title of the „ revised statutes relative to the court of chancery, (2 R. S. 185,) provides that if a complainant shall die, and there be no surviving complainant, or if the survivor shall neglect to proceed against the representatives óf the decedent to make them defendants in the suit, this court, upon the petition of the original defendant, may order such representatives to show cause, at a certain day to fee named in the order, why the suit should not stand revived in their names, or the bill be dismissed, as far as the interests of such representatives are concerned. It is insisted by the counsel for the surviving complainants and the representatives of J. Taylor, that this section only authorizes the court to make an order in the alternative. And that the representatives of the deceased complainant will he permitted to elect, either to have the suit stand revived in their names, or to have the bill dismissed as to them. I am satisfied, however, such was not the intention of the legislature ; but that, on the contrary, it was intended to give the court the power to make such order as would be applicable to the case. The object of this section, and of the three which immediately follow it, was to provide for the revival of suits, by a summary proceeding, in certain cases which had not been before provided for. It had been decided by this court that if a suit abated by the death of one of the complainants, before decree, it was at the election of the ‘surviving complainants to revive the suit, by bringing in his representa
Jl. G. Rogers, for. the surviving complainants, and
J. J. Rosevelt, for the executors of J. Taylor, appeared td oppose the revival of the suit.
J. Duer ty M. T. Reynolds, for the defendant.
The order to show cause why this suit should not stand revived in the name of the executors of John Taylor deceased, one of the original complainants, together with the surviving complainants, must be made absolute. Most of the objections now raised to the revival of the suit as against the executors of John Taylor were argued and fully considered upon the application for the order to show cause. It is only necessary, therefore, to refer to the opinion of the court upoii that application, in answer to the objections then considered. The decree of the court for the correction of errors is conclusive upon the parties here, not only as to their rights, but also as to the regularity of the decree. That court had jurisdiction of the case, and it does not belong to the court of chancery to set aside or disregard the decision of the appellate court, as irregular and unauthorized. The decree of that court must therefore be deemed to have the same effect here as if John Taylor had been alive at the time of making that decree, and had died afterwards. It is then a decree that John Taylor and the other complainants who joined with him in the answer to the defendant’s petition of appeal, account for and pay over to the defendant the legacy bequeathed to his deceased wife, with the income or accumulations thereof, under the direction of a master, and assign and deliver over to him the securities in which the same is invested. Even before the revised statutes, a defendant was entitled to revive a suit after a decree for an account had been entered, or any other decree upon which the rights of the parties had been definitively settled, and where the defendant could derive a benefit from a continuation of the proceedings in the suit. (Kent
It is, however, insisted, on the part of the executors of J. Taylor, that the whole cause of action survived against the surviving complainants, and that the suit cannot be revived against the representatives of Taylor. The suit is undoubtedly abated as to Taylor; and the petition of the defendant shows that the whole cause of action, or the claim of Paterson under the decision and decree of the appellate court, did not survive against the other complainants. The petition is a substitute for a bill of revivor, in which the party filing the same may always insert so much new matter as is requisite to show how and why he is entitled to revive the suit. Here the defendant shows himself entitled to revive the suit against the representatives of Taylor, on the decree to account and deliver over the securities in which the legacy or the avails thereof was invested, by showing those securities in the hands of the representatives of Taylor, and that such representatives had possessed themselves of the fund decreed to belong to the defendant, or a part thereof. A decree against several executors, or trustees, to account, is a decree that each account for so much of the estate or trust fund as he is justly chargeable with. And if one of them dies, after such a decree, the adverse party may revive the suit against his representatives, for the purpose of charging his estate with what had come to his hands ; or he may proceed against the survivors. (Hampson on Trustees, 84.) The bill of revivor in such a case, or the petition to revive,
The commencement of a suit against the executors, in a court of the United States of concurrent jurisdiction, by the residuary legatees, for the purpose of evading the effect of the decision of the court of dernier resort in this state, cannot alter the rights of Paterson in this suit. Even if that suit is prosecuted in good faith, and not in collusion with the representatives of Ellis, and if the federal courts should not consider themselves bound by the decision of the highest tribunal in this state on a question of local law, a recovery against the representatives in that suit, in favor of the residuary legatees, could not affect the right of Paterson to his wife’s legacy, under the decree in this cause. And if the executors should be compelled to pay it the second time, they must attribute it to their own neglect to make all the conflicting claimants parties to the suit instituted'by the executors to settle the construction of this will.
There must be a decree of this court to carry into effect the decree of the court for the correction of errors, and referring it to Master Codwise, to take the account, and to direct the trans= fer and delivery of the legacy and the securities in which it is invested, as directed by that court; the terms of the decretal order of this court to correspond as near as may be with the decree of the court of errors, adapting such decree to the suit, as it is now to stand revived, in the names of the executors of John Taylor in conjunction with the surviving complainants in the original suit. And any of the parties are to be at liberty to apply to this court from time to time for such further directions as may be necessary or proper to carry such decree into full effect.