2 Barb. Ch. 430 | New York Court of Chancery | 1847
The petition of appeal was informal in not designating who were intended to be made respondents; by praying that they might answer the petition. (Kellett v. Rathbone, 4 Paige's Rep. 102. Gardner v. Gardner, 5 Id. 170.) The parties, however, who are interested in the matters appealed from, and who have voluntarily appeared and answered the petition of appeal, cannot now object that the petition of appeal is informal as to them. But those against whom no proceedings have been had in this court, and who have not appeared or answered, cannot in any proper sense be considered as parties. And the decree of the surrogate can neither be affirmed nor reversed so far as their rights are concerned ; but the appeal must simply be dismissed, so far as it seeks a reversal or modification of the decree, in any respect, which will affect their interests. The part of the decree, how
The charges of Schuyler Valentine, for expenses in attending upon the probate of the will, and upon the settlement, are not verified in the manner required by law to make them evidence in his own favor; in the absence of written vouchers for the payments. The statute requires that the executor shall swear positively to the fact of payment; specifying when, and to whom, the payment was made. (2 R. S. 92, § 55.) It does not appear, however, that any objection to this account, or to the form of the oath to the same, was made by the appellant before the surrogate. And it is wholly improbable that such an objection was made by the appellant, who was himself allowed several items of expenses of a similar character, upon a general affidavit annexed to his account; and without specifying at what time, or to whom, such payments were made. It would, therefore, be unreasonable to allow an objection of this kind to be taken on appeal, when it might perhaps have
In relation to the claim of the respondent Frederick Valentine, I think the surrogate erred in holding that the appellant was bound to account to him, or that he was entitled to claim any part of the estate in the hands of the appellant. Even if a parol submission and award was not binding upon the parties, the statement of the account between them, by Ferris and McDonald, at their request, and the subsequent giving of the receipt in full, by the legatee, upon the basis of that statement, should be considered as conclusive between the parties; unless one of them could show that a mistake had been committed of which he was ignorant at the time. In other words, the party seeking to open such a settled account, should be able to show such a case as would have enabled him to file a bill in equity to surcharge and falsify the account. And the evidence before me does not make out such a case. Indeed the testimony shows that certain items paid to Frederick himself, and which were disallowed in the appellant’s account against the estate, either because they were barred by lapse of time or otherwise, would, as between the appellant and Frederick, have been propel charges against the latter’s third of the estate given to the residuary legatees. I also think there was a valid and binding submission and award, between these parties, which the surrogate was not authorized to disregard; even if it was evident, from the testimony before him, that Ferris and McDonald
By the principles of the common law, it was not necessary that a submission to arbitrators should be in writing; except where the controversy was in relation to land, or to some matter as to which it was incompetent for parties to make a valid and binding agreement by parol. (Billings' Law of Awards, 9. Kyd on Awards, 7. Walters v. Morgan, 2 Cox’s Ch. Cas. 369.) And where a submission is verbal, and without any provision therein that the award shall be in writing, a verbal award is valid. (Cable v. Rogers, 3 Buls. Rep. 311.) In the case of Wells v. Lain, which came before the court of errors in 1835, (15 Wend. Rep. 99,) I was strongly inclined to the opinion that the provisions of the revised statutes required all submissions to arbitrators to be in writing. But the court of dernier resort having decided otherwise, in that case, I do not feel myself authorized to adhere to my own opinion in opposition to that decision. In the present case, there can be no doubt, from the testimony.of Ferris and McDonald, that the parties intended to submit to them the question as to what, sum was due from the appellant, to F. Valentine as one of the residuary legatees. And where a matter is submitted to arbitrators, it is not necessary that there should be any express agreement to abide by the award when made. For the law implies such an agreement from the very fact of submission. So much of the decree appealed from, therefore, as declares that there is a balance due to the respondent, Frederick Valentine, of the funds in the hands of the appellant, and so much thereof as directs the appellant to pay such supposed balance, and so much of the decree as allows costs to the said respondent, on the proceedings before the surrogate, and directs the payment thereof by the appellant, must be reversed. And Schuyler Valentine and Frederick Valentine having both appeared by the same solicitor, and joined in their answer to the petition of appeal, and the appellant having failed in his appeal as to one of them, and succeeded as to the other, neither of those parties is to have costs as against the other upon the appeal.
The funds in the hands of the executors for the benefit of the lunatic and his children were held by them in their characters of executors; and the trust and the executorship were inseparable. The appellant, therefore, was not entitled to double commissions, first in his character of' executor and again in his character of trustee. The case would have been different if the executors had been directed by the will to pay-over this part of the fund to one of their number, as a trustee,
The costs of James Valentine were rightfully allowed against the estate, as it was proper for him to call for an account, not only for the purpose of seeing that the fund in which he had an interest was regularly invested, but also to ascertain the amount of that fund. The fact that it was to be held in trust by the executors until the death or restoration of the lunatic to sanity, did not form any objection to the settlement of the account for the purpose of determining what the amount of the trust fund was; although the executors could not be decreed to pay over the money, until the time arrived for its payment, either to the lunatic or to his children, in conformity to the directions of the will. But as James Valentine is not a party to the appeal, this part of the decree can neither be affirmed nor reversed. Nor can the court, upon the appeal between the present parties only, alter or modify the decree in relation to the surrogate’s fees Some part of those fees must have arisen
Several other questions are raised by the appellant’s counsel which cannot properly be disposed of, on account of the absence of the necessary parties. All that is proper to be done, therefore, is to dismiss the appeal as to every part of the decree, except as to the parts thereof which I have before disposed of between the appellant and the respondents Frederick and Schuyler Valentine. The proceedings must also be remitted to the surrogate of the county of Westchester; to the end that such parts of the decree appealed from as are not reversed, may. be carried into effect in that court.