Boerum v. Betts

Two proceedings are pending for the judicial settlement of the account of Charles C. Betts as executor of, and trustee under the will of John W'ortman, deceased. The first one was commenced on July 19th, 1882, by the filing of the petition of E. Rapelyea Beorum (Code, §§ 2516, 2517). Charles C. Betts had been previously declared a lunatic in April, 1882, and the Brooklyn Trust Company was then appointed his committee. The said petition only prayed for- a citation to the Brooklyn Trust Company, and accordingly a citation, returnable on July 28th, 1882, was issued to the said Brooklyn Trust Company, as committee of said Charles C. Betts, to render and settle the accounts of the acts and doings of said Charles C. Betts as executor and trustee under the last will and testament of John Wortman, deceased. The name of Charles C. Betts appears to have been inserted in the citation, in pencil, by some other person than the clerk of this court who made out the [473] said citation; anda paper purporting to be an affidavit of service, but not sworn to, is annexed to the said citation, showing that it was served on said Betts on July 20th, 1882. Assuming this citation to have been served on Mr. Betts as stated, jurisdiction over him was not acquired, for two reasons: 1st, the insertion of the name of Charles C. Betts in the citation was unauthorized; 2nd, the service was not made eight days before the return day of the citation (Code, § 2520; Small v. Edrick, 5 Wend., 137). F. Rapelyea Boerum does not appear to have been a creditor, or a party in any way interested in the estate. He alleges in his petition that he is the agent in fact of the children of Eliza Remsen, deceased, who are devisees under the will of JohnWortman; this does not, however, give him the right to present his petition for the judicial settlement of the account of the said executor and trustee (Code, §§ 2726, 2808); but the point is not raised by the Brooklyn Trust Company, which appears as the committee of Charles Betts, in answer to the citation issued in the proceeding. No petition was filed by said committee, praying that the said executor and trustee’s account might be judicially settled (Code, §§ 2728, 2729, 2809, 2810). The second proceeding was commenced on July 21st, 1882, by the filing of the petition of Phebe Ann Redding, one of the cestui que trusts under the will of John Wort-man. A citation returnable on July 31st, 1882, was issued, in this last proceeding, to the said Charles C. Betts, and to his committee, the Brooklyn Trust Company. This citation was served on the Brooklyn Trust Company but not on Mr. Betts. On the return day of this [474] citation, the proceeding was adjourned to September 4th, 1882, and a supplemental citation directed to be issued to Charles 0. Betts. This supplemental citation was made returnable on September 4th, 1882, and was served in time on Charles C. Betts but not on his committee. Neither in this last proceeding did the committee file a petition asking to have the accounts judicially settled under §§ 2728, 2729, 2809, 2810, but it filed the account with the clerk of this court on September 11th, 1882. Mr. Betts died on September 18th, 1882, and both proceedings were submitted for a decree on September 25th, 1882. On November 13th, 1882, the attorney for the children of Phebe Ann Redding filed an appearance for them, dated July 25th, 1882, but the children of Eliza Remsen have neither been cited nor appeared. On this state of facts, no decree can be made for the judicial settlement of the account filed. The citation was not properly served in either proceeding on Mr. Betts. All the necessary parties are not before the court, and upon Mr. Betts’ death the proceedings abated, before they were submitted to the court for decision (Leavy v. Gardner, 63 N. Y., 62J¡.; Matter of Grove, 61¡. Barb., 526, 63Jf)\ but if they did not, no decree could be made, affecting the estate of Mr. Betts, without bringing in his personal representatives, and even then this court could not make such a decree in these proceedings (Dakin v. Demming, 6 Paige, 95; Montross v. Wheeler, 4 Lans., 99; Farnsworth v. Oliphant, 19 Barb., 30).