Bulkley v. Staats

The Surrogate.—This application is novel in its character, and should be dismissed unless expressly sanctioned by some statute or fairly to be inferred therefrom. It is not a claim against the deceased, but has arisen against the executor, or guardian, or both, since his death. It is a claim based on a contract between the petitioner and the guardian,' sanctioned by the executor, and this court is asked to enforce it. If it had power to do so, it would also have power to adjudicate it if it were contested, as its lack of authority in this respect is confined to claims against the deceased which are disputed. If Surrogates’ courts can entertain such applications, why could they not entertain applications, on a proper state of facts, to compel the specific performance of contracts made by executors and guardians % In looking into the will in this case, I find that the executor has power to sell and convey the real estate of the deceased. Suppose he had contracted to sell and convey it to the petitioner and then refused to convey, can it be pretended that this court, on her application to enforce it, would have any 526 jurisdiction in the premises? Clearly not; and yet it seems to me the cases are parallel. If power exist here to enforce one contract, why not all ? Executors, guardians and trustees, in the discharge of their various duties, are constantly making contracts, and if these courts could take cognizance of actions springing from them, there might be little leisure for the discharge of other duties. The power given a Surrogate to regulate and control the/ conduct of executors, &c., must be exercised in the mode pointed out by some statute. I find- no such statute authorizing this proceeding. The counsel for the petitioner has called my attention to a decision of the learned and distinguished Surrogate Calvin, of New York, in the Matter of the Estate of Beattie, imperfectly reported in the Daily Register of January 12, I860, and claims for it that degree of consideration to which his utterances are justly entitled. I have great respect for his opinion, and should hesitate long before differing from him on any subject to which" his attention had been directed. But I see nothing in" the case referred to that leads me to suppose any objection like that discussed here was there interposed. His attention was simply drawn to the question of the liability of the executrices to pay a person not interested in the estate, a claim she made for the boarding and" nursing of a minor legatee, during his sickness, and not" to his authority to enforce payment. The application must be dismissed.