72 N.J. Eq. 300 | New York Court of Chancery | 1906
The real controversy between the parties arises by reason of the failure of defendant to answer the interrogatories of the bill. Defendant’s answer avers, among other things, that his accounts have been settled in the orphans court and that complainant participated in that settlement. It is now urged on behalf of defendant that this statement of the answer exonerates him from specifically answering the interrogatories of the bill and from setting forth in his answer the accounts sought by complainant.
Motions against answers under rule 213 of this court have heretofore been confined to motions to strike out specific portions of the answer as insufficient, scandalous or impertinent, and have not been entertained to strike out an answer in its entirety. See Wilson v. American Palace Car Co., 63 N. J. Eq. (18 Dick.) 557, and cases there collected. Such motions would also seem to be inadequate to reach an objection that defendant has made no attempt to answer specific interrogatories in a bill. Exceptions to the answer would, I think, more appropriately reach such objections. Fuller v. Knapp, 24 Fed. Rep. 100. But inasmuch as the manifest purpose of the pending motions is to compel defendants to answer touching the matters inquired of in the interrogatories forming part of the bill, and the defendant claims that the adjudication of the orphans court, set forth in the answer, operates as a bar to the right of complainant to compel specific answers, I shall, under the right inherent in this court to control its pleadings, treat the motions as raising the question really in controversy between the parties. ’
The jurisdiction of this court over the accounts of executors and administrators, and to enforce the claims of creditors, legatees and next of kin, is well settled and has been frequently exercised. A bill may be filed for the recovery of a legacy or distributive share either before or after a settlement in the orphans court. An action at law to recover a distributive share of an estate is purely statutory and can be maintained only after a decree of distribution. This statutory remedy is a remedy given in addition to that existing in equity and in no way limits or qualifies the jurisdiction of this court over the subject. Frey
This court has held that when jurisdiction has been assumed by an orphans court in the settlement of an estate, it is not the right of a next of kin to change the forum of settlement at his pleasure. The chancellor must exercise his discretion and judge as to the propriety of the court of chancery’s interposing, and if any progress has been made in the orphans court in the settlement of the accounts, the court of chancery should not interfere with that tribunal unless there is shown some good cause for doing so, and fraud and mistake in the procurement of a settlement have been held to be the only grounds upon which this court will ordinarily look behind the settlement of an account in the orphans court, and that defects and errors in the account should be remedied in that court. Salter v. Williamson, 2 N. J. Eq. (1 Gr. Ch.) 480; Van Mater v. Sickler, 9 N. J. Eq. (1 Stock.) 483, 485; Clarke v. Johnston, 10 N. J. Eq. (2 Stock.) 287; Voorhees v. Voorhees’ Executor, 18 N. J. Eq. (3 C. E. Gr.) 223, 227; Search’s Administrator v. Search’s Administrators, 27 N. J. Eq. (12 C. E. Gr.) 137, 139; Titus v. Hoagland, 39 N. J. Eq. (12 Stew.) 294, 298; Matthews v. Hoagland, 48 N. J. Eq. (3 Dick.) 455, 491; Weyman v. Thompson, 50 N. J. Eq. (5 Dick.) 8, 22; Bird v. Hawkins, 58 N. J. Eq. (13 Dick.) 229; First National Bank v. Thompson, 61 N. J. Eq. (16 Dick.) 188, 205; Frey v. Demarest, supra. But these equitable principles which guide the exercise of this jurisdiction in no way militate against the property of a next of kin seeking, in this court, an ascertainment of a distributive share, in a proper case, where a decree of distribution has not been made by the orphans court, or in seeking a discovery by defendants touching
The bill in this case alleges fraud in the accounts filed in the orphans court. The allegations of fraud are not as specific as is desii able, but as the accounts are peculiarly within the knowledge of defendant an over-rigorous enforcement of the rule requiring charges of fraud to be specific should be guarded against. The bill also seeks, by a series of specific interrogatories, to ascertain information touching certain securities which have come to the hands of defendant in this and in another jurisdiction. These interrogatories cover fields of information peculiarly within the knowledge of defendant and are operative in the domain of equitable procedure to discover important information which could not be reached through any recognized procedure of the orphans court. Answers to these interrogatories and a complete statement of assets received and moneys expended would go far toward aiding this court in determining whether the orphans court settlements shall be here reviewed. In view of these elements of the bill it is entirely clear that the averments of the answer touching the orphans court settlement, and complainant’s participation in it, should not excuse defendant from answering all the material averments and interrogatories of complainant.
It would be inappropriate to at this time determine whether this court will review the proceedings already had in the orphans court. As already stated, the information sought by this bill is peculiarly essential to aid this court in that determination. An order will be advised directing defendant to answer fully all the interrogatories of the bill.
