5 Paige Ch. 132 | New York Court of Chancery | 1835
The object of the bill in this case appears to have been to obtain an account and' distribution of the esiale of Z. Burch, deceased, in the hands of the defendant as (he surviving administrator of his estate ; and to charge the defendant with the amount of certain leasehold premises, which were purchased or pretended to be purchased by him at an auction sale thereof. And the defendant was particularly called upon by the bill to set forth, in his answer, a full inventory of the personal estate, rights and cred- . its of the decedent as to items, value, dates, sums and persons ; and an account of the income of the real estate by him received, and of the rents and profits of the leasehold premises. By the bill, it also appears that the defendant was cited by the complainants to account before the surrogate; who, upon a hearing of the parties, found a balance due from the defendant, as administrator, of $420,20; which sum, with the costs of accounting, he was sentenced to pay. From the opinion of the circuit judge, which is before me, he seems to have supposed that the plea of the defendant was a plea to the relief sought by the bill. Upon examination, however, I am satisfied it is not a plea to any part of the relief, but is only a plea to so much of the bill as calls upon the defendant in his answer to set forth an account of the estate and of the admin
There is no doubt, in this case, that the surrogate should have considered the sale by the defendant, of the leasehold premises to himself, as inoperative and void. And he should ■have charged the defendant the full value of the premises, with interest from the time of the sale; or he should have charged him with the present value, and with the rents and profits received, over and above the ground rents, taxes, &c. I think the circuit judge was wrong, in supposing the surra
The decree was wrong, in giving liberty to the complainants to introduce proofs in relation to the sale of the freehold estate to the mother, with a view to establish a collusive and fraudulent sale. The fact that 45 acres of land, in the county of Dutchess, were sold by the administrators, under a surrogate’s order, for the very small sum of $35, and that the same land ,was shortly afterwards conveyed by the purchaser to the defendant, was certainly calculated to excite suspicion. But no charge is contained in the bill which could justify any decree whatever in this cause, relative to the freehold estate. And I do not find it even alleged that the defendant was ever in possession thereof; although the defendant is called upon by the prayer of the bill to give an account of the rents and profits. If the testimony to be taken should establish fraud and collusion, it could not benefit the complainants in the present suit. If there was any thing improper in relation to the sale of the freehold estate, they must seek their remedy in a new suit, and the decree in this case must be made without prejudice to their right to institute such a suit.
The decree of the court below must be reversed. And a new decree must he entered here, declaring that the sentence and decree of the surrogate, referred to in the pleadings in this cause, is binding and conclusive, between the parties to this suit, as to the balance due from the defendant, as the surviving administrator of the estate of Z. Burch, deceased; and directing the defendant to pay that amount, with interest thereon, from the time when the surrogate’s decree was entered, to the register of this court, to abide the further order of the court. The decree must also direct a reference to a master to take proof of the debts, if any, which exist against the estate, in favor of such creditors as shall come in and establish their claims before him ; the master giving the usual notices for íhe creditors to come in, as directed by the statute; And he