53 N.J. Eq. 660 | N.J. | 1895
(dissenting).
As I am unable to vote to affirm the decree in this cause, I deem it proper to briefly state my reasons.
By the two receipts exchanged between the parties, dated April 13th, 1876, and set out in the opinion of the vice-chancellor, appellant became the owner of certain personal property which she is estopped to deny belonged to the estate of her father, William Hance, deceased, and respondents, administrators
I think the learned vice-chancellor misconstrued the terms óf that receipt in respect to such payment. When appellant thereby gave authority to respondents, as administrators, to take out and deduct the price of that property from her share, on a final settlement of the estate, the authority conferred was, in my judgment, plainly limited to her share of such moneys as, upon such settlement, would be in the hands of the administrators. Obviously, the receipt did not create any charge upon appellant’s interest in the real estate of deceased which did not come to the hands of respondents as administrators.
If appellant’s distributive share in the hands of the administrators after final settlement should prove insufficient to satisfy the claim of respondents, doubtless an implied contract on her part at once arose to pay respondents so much of the purchase price as remained unpaid.
Respondents’ accounts, passed by the orphans court in 1884, show that appellant’s distributive share was, in fact, insufficient, and if that account was final, she thereupon became liable for the balance.
But such liability furnishes no ground for a resort to equity. Respondents’ remedy by an action at law was complete.
Respondents resorted to an action at law by issuing an attachment against the interest of appellant (who had become a nonresident) in the proceeds of the sale of real estate which had descended to her and others as the heirs-at-law of William Hance, and which had been sold by an officer of the court of chancery under a bill for its partition among the owners.
In aid of their proceedings at law, respondents had a right to ask the court of chancery to retain in its custody and control appellant’s share of such proceeds until the determination of the action at law. But there is nothing in the case justifying a court of equity in passing upon the liability of appellant and directing, as this decree does, the payment of her moneys to respondents upon a claim pending in the action at law yet undetermined.
For affirmance — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Van Syckel, Bogert, Brown, Smith, Talman — 10.
For reversal — Magie—1.