74 N.J. Eq. 1 | New York Court of Chancery | 1907
(after statement).
The decrees made in the prerogative court on April 18th, 1899, passing the executors’ final account and the trustees’ first intermediate account, were not final adjudications, .that the bond and
“the appointment of a debtor as executor or executrix shall not, unless-otherwise expressed in the will, be construed to discharge such executor or executrix from the payment of the debt, but the said debt shall be considered assets in his or her hands, to be accounted for in the same-manner as any other part of the personal estate.”
The inventory charged all the executors prima, facie with the-appraised value of this debt as assets of the estate, and the continuance of this charge in the final account, without praying any allowance, made them all responsible (prima facie at least) for this amount as so much assets of the estate collected and in hand for distribution of the estate. In Weyman v. Thompson, 52 N. J. Eq. (7 Dick.) 263 (Court of Errors and Appeals, 1894), the-question of the effect of a decree on the joint final account of' executors was specially considered and decided, and the rule de
The decree entered on passing the executors’ final account, so far as it purported to be a decree of distribution, was not a matter properly included in the decree on the account. The jurisdiction of the prerogative court over accounts (of executors at least) is purely statutory, and, except by statute, the prerogative court has no authority to order distribution by executors under a will. Such distribution was purely a matter of chancery jurisdiction. In re Eakin, 20 N. J. Eq. (5 C. E. Gr.) 481 (Williamson, Ordinary, 1858). The constitutional and statutory jurisdiction of the prerogative court over executors extended only to the probate of wills, and the settlement of their accounts, and (prior to 1872 at least) did not include any power to order a distribution. Lord Cornbuy’s Instruction, Leam. & Spi. (Reprint) 639; Prerogative Court act of 1846; Gen. Stat. p. 1030. By the Orphans Court act (Revision of 1874; Gen. Stat. p. 2357 § 5) the ordinary was vested with the powers of the surrogate and orphans court, in relation to the settlement of the accounts of executors and trustees, but this section would not, I think, include the power to order distribution by executors. Ordinary v. Barcalow, 36 N. J. Law (7 Vr.) 15, 20 (Supreme Court, 1872, Chief-Justice Beasley). The one hundred and forty-sixth section of the Orphans Court act (Gen. Stat. p. 2389) expressly gives to the orphans court power to order distribution of intestate’s estates only, and although section 151 (Gen. Stat. p. 2391) also authorizes the orphans court, where an account of executors
So far, therefore, as the complainant seeks a decree to compel the executors to foreclose, relief must be denied, because the court will not undertake to control' or direct the judgment of the executors in the foreclosure of the mortgage. Especially must this direction be denied, in view of the fact that the bill ■alleges that Aaron Yan Houten, one of the executors, desires to foreclose, and this executor, called as complainant’s witness, says that the reason no attempt had been made to foreclose or collect the mortgage was that his co-trustees refused to do anything in the matter. He does not seem to have been advised, or to have supposed that he could himself foreclose the mortgage without their concurrence, and his failure to bring such suit heretofore
And so far, also, as the bill seeks a present decree against Mrs. Stevenson, in relation to her individual liability on the bond, by reason of the circumstances of the original loan, relief must be denied. Until the trustees properly pray allowance for the amount for which they have charged themselves for this security, or by some other proceeding to obtain a judgment or decree upon the bond, directly raising the question of the validity of the bond, brought by some person who is entitled, either in law-or equity, to recover the amount of the bond, the question of Mrs. Stevenson’s liability on the bond, by reason of the circumstances under which the original loan was made, is prematurely raised. The denial of this relief at this time is, therefore, without prejudice.
So far as the bill seeks equitable relief, by charging the- devises or bequests received by Mrs. Stevenson under the will with the amount of the bond, because of assurances to the testatrix that her share would be so liable, and that the testatrix, relying on these assurances, refrained from changing her will, the prayer must be denied, because of failure to prove any such representations or assurances by Mrs. Stevenson. Relief of this kind is based on