Beach v. Norton

Daggett, J. The object of this bill is to draw before the superior court the settlement of the estate of the late Birdsey Norton. It alleges, that his last will and testament has been proved before the court of probate in the district of Litchfield, within which the deceased last dwelt, and before competent courts in the states of Massachusetts, New-York and Ohio, where properly belonging to the deceased remained at his death. No proceedings have been had in relation to the settlement of this estate before any of these courts, excepting that an imperfect inventory has been made out, by the executors residing in Connecticut, which inventory was exhibited to the court of probate in Litchfield district. In this condition, the plaintiff seeks to obtain a decree of the superior court, by which this estate shall be finally settled. In this general view, it is a very singular and mbst unprecedented bill, and cannot, without a departure from the provisions of our statute, respecting the settlement of estates, testate, intestate and insolvent, as well as the whole course of proceedings on this subject, be sustained. The statute vests in the court of probate, the whole power of settling estates ; and this court has had occasion, several times, of late, to express a very decided opinion, that the superior court could not interfere in questions of property cognizable by the court of probate, except by virtue of its appellate jurisdiction, through a regular appeal. Bacon v. Fairmun & al 6 Conn. Rep. 121. Pitkin v. Pitkin & al. 7 Conn. Rep. 307. Bailey & al. v. Strong & al., 8 Conn. Rep. 278. Such an interference is the less to be countenanced, as an appeal lies from “ any order, sentence, denial, decree or judgment of a court of probate.” Slat. 208. tit. 32. c. 1. sec. 36. This is a sufficient reason to dismiss the bill. But I do not mean to lay down the position, that the aid of a court of chancery can never be properly sought, in relation to an estate in settlement before the court of probate. Such aid may be wanted, perhaps, in certain cases; and the judgment of a court of probate may thereby be affected. Hence, it be — 205 — comes necessary to look into t his bill, arid enquire-if any facts are stated to warrant the interference of the superior court, _ The allegations of the bill and the positions of counsel, will now be considered. !• One allegation insisted on, is, that the inventory made out by him and his co-executors, and returned to the court of probate, is very imperfect. It contained many things appraised too high, — many too low, — many perishable articles, which decayed and are lost, — many notes of hand and debts, which have proved to be bad : Especial'y, that the interest of the deco ased in the partnership of Birdsey Norton & Co. was estimated at 12,105 dollars, and on settlement of the concern, it appeared to be only 6,900 dollars; and that the interest of the deceased in the partnership of Norton, Bush & Co., inventoried at 34,871 dollars, proved to be nothing, but the company were deeply insolvent. It is very clear, that here is no difficulty, which cannot be removed, by the court of probate. It is the unquestionable duty of that court, not only to correct all errors which may have arisen in inventories, but to receive additional inventories, and to settle the account of the executors upon the basis of equity. Nor is there anything suggested to induce a belief that there is not both the power and the exposition of the court of probate to settle this account. 2. The next allegations, which deserve notice, are those which respect the seven co-partnerships with various persons in the state of New-York, in which the deceased had an interest to the amount of 100,000 dollars ; also certain choses in action, amounting to 11,151 dollars, besides about 20,000 dollars more, of which the deceased was owner of two third parts with E. F. Norton and Nathaniel Norton, due from George Smith and sixteen others (the only specifications in the bill) and certain other choses in action belonging to the deceased in New-York, amounting to 50,000 dollars, and others in the state of Ohio, amounting to 7,000 dollars, which, the plaintiff says, were all committed to the management of F. A. Norton and Erastus Lyman, two of the executors ; and that all the documents, inventories and accounts in relation thereto, are in their hands, and they refuse to permit the plaintiff to see and examine them ; and they are imperfectly noticed in the inventory already mentioned. The objections to this part of the bill are very numerous- A few of them will be noticed., — 206 — First., here are no specifications, except in one instance, the debts due from Geo. Smith and sixteen others. All the other allegations are most general, and lay no foundation for any relief. It would be impossible to defend against such allega" tions. Secondly, every object may be attained, by proceedings before the court of probate. The 21st section of the statute, (tit. 32. Enlates.) authorizes the court, in express terms, to call executors and administrators “ to account for and concerning the estate of the deceased person, entrusted to their charge;” But the plaintiff does not show, that he ever even demanded an account of his co-executors ; but he simply saysj that they refuse to let him see and examine those accounts, &c. which are in their possession. Nor is there any suggestion, that he has ever applied to the court of probate to call them to account, according to the provisions of the statute. Thirdly, by the 16th section of the statute mentioned, the court of probate is vested with full power to obtain possession, by a summary process, of all property, or any bills, bonds, notes and accounts, or any thing that may tend to disclose the estate, and to examine, on oath, any person charged with the possession of such property, or the evidence thereof, after a demand by the executor, and a refusal. In fact, there is no doubt that the court of probate may compel the production of any papers. These courts have all the powers of a court of chancery, and in some respects much greater, in relation to the trial of questions within their jurisdiction. 3. The bill farther charges, that F. A. Norton and Erastus Lyman have 100,000 dollars of the estate of the deceased, and have exclusively managed it; — that there was a loss of 50,000 dollars, by their neglect and mismanagement in relation to the copartnership of H. & N. Norton'; and 40,000 dollars more, by Elisha Beach ; 5,000 dollars, by Alpheus Richards, and 7,000 dollars by Augustus Porter ; and that F. A. Norton and Erastus Lyman have each concealed 100,000 dollars fraudulently', and have appropriated it to their own use. If the plaintiff had been compelled to make oath to the bill, as is the practice in Great-Britain, and in some, if not all, of the statesj such general, sweeping and undefined allegations might, perhaps, not have appeared. But do they lay any foundation for the interposition of a court of chancery ? Let the plaintiff first settle his account with the court of probate, as far as it can be — 207 — settled, and then apply to that court to compel the other executors to account. If that court will not make such art order, it will then be competent for him to appeal to the superior court. In that mode, and in that only, can the estate be settled according to law. And here it may not be improper to notice a suggestion on the bill, that 60,000 dollars of debts, and for aught which appears, all the debts due from the estate of the deceased, have been paid ; and that 200,000 dollars and more of personal property remains. It certainly becomes the plaintiff, in view of these suggestions, to be more precise in his allegations of what he, as executor, has done, and of what the defendants have neglected to do. 4. It appears, by the plaintiff’s allegations, that much of liiis property lies within the jurisdiction of the courts, to which appertains the settlement of estates in New-York and Ohio. Eefore these courts the will has been proved ; and the plaintiff seeks an account of this property, and avers, th it the estate cannot be settled, by the court of probate in L tchfield, without it. The bill, however, no where suggests a word respecting any inventory made and exhibited to those foreign courts, or any settlement of any claims, or any proceedings before them. It simply shows, that the will has been proved in those courts. It is impossible to say, that, consistently with any rule of law, the plaintiff is entitled to any relief from any court, on these allegations in the bill. The objections to the bill in this view are unanswerable. First, there is no method of making those abroad parties, so as to affect their rights- . Secondly, the superior court of Connecticut cannot exercise any jurisdiction or controul over those courts, or their proceedings, but they will proceed to settle the estate regardless of any interference of any court here. For Thirdly, it is impossible to decide in our courts the rights of the parties to these foreign assets. Those rights depend on local laws, by which the duties and responsibilities of the executors are to be ascertained. The lex loci rei sitae is of paramount force in all questions relative to the nature and amount oft the assets, and the manner in which they are to be treated, allowance of debts, order of payment and expenses of settling me estate, and all the proceedings, by which the final result is to be ascertained. The lex domicilii governs in the final dis — 208 — tribution. Storer & al. v. Hinkley, 1 Root, 413. Perkins & v. Williams, 2 Root 462. Riley v. Riley, 3 Day 74. Slocum v. Sanford, 2 Conn. Rep. 533. Sumner v. Child, 2 Conn. Rep. 627. per Gould, J. Williams & al. v. Storrs & al. 6 Johns. Chan. Rep. 353. Where any property shall have been received, by the order of those courts, it will doubtless be inventoried by the executors before our court of probate, and will be ready for distribution, on the settlement of the estate. It is not here intended to say, that no action can be sustained nor claim enforced against F. A. Norton and Erastus Lyman for neglect or mismanagement in relation to that portion of the estate, which, according to the suggestions in the bill, has been under their controul. It is only decided, that no foundation is laid in the bill for the interposition of a court of chancery. 5. Jurisdiction is insisted, on the ground of the legacies being specific. There are, to be sure, specific legacies of a clock^ watch, furniture, &c. and specific devises of real estate to the widow and to F. A. Norton. But in one sense, this will disposes of his whole estate specifically ; for the disposition varies, in several respects, from a distribution under our statute. But it would be strange to infer, that for this reason, aid should be sought in a court of chancery. The will is perfectly intelligible : there can be no ambiguity, nor any pretence of any, except to draw the settlement of this estate from the appropriate tribunal into the superior court. The testator gives 7000 dollars, in Bridgeport bank stock, to his wife ; and he declares, that this bank stock is a part of the one-third of the personal estate, which he had devised to her in the clause immediately preceding. It would have been difficult to have employed language more explicit. 6. The plaintiff also states, that there are difficulties existing respecting moneys, which have been received in discharge of mortgages of real estate, and out-standing contracts, given, by the deceased, while living, to convey land, which the executors have been compelled to adjust, and take up ; and the question now is, whether lands thus situated are real or personal estate ; as also in respect of lands mortgaged to the deceased, which the executors have been compelled to accept in lieu of the debts secured by such mortgages ; and also there are many other embarrassments in the settlement of so large an estate. And can either or all these reasons render it necessary, that a — 209 — court of chancery should assume a jurisdiction, when the court of probate is fully authorized and empowered to decide all these questions ? Shall a court of probate settle only those estates, which present no perplexing questions ! If there are difficulties, it is the duty of the court, to whom the jurisdiction over this subject appertains, to overcome them. Nor is there any just reason to apprehend a failure of justice ; as from any decree or order of the court of probate, as before shewn, an appeal lies to the same court to which this bill is brought. 7. There is yet another ground, urged by the plaintiff. This is founded on the 4th and 5th sections of the statute, tit. l.Account. The 4th section authorizes an executor, who is also a residuary legatee, when all or any part of his legacy is with-holden from him, by his co-executor, to bring his action of account against him : and the 5th section provides, that where there shall be such a claim,, by one co-executor against two or more co-executors, the remedy shall be by bill or petition in equity. This is not, in any respect, the case of a co-executor where a legacy is withholden from him. The plaintiff is not a legatee, and therefore, not entitled to any legacy. It seems to me, then, that on no ground stated in the bill is there any foundation for relief; and that the superior court be so advised. The other Judges were of the same opinion. Demurrer to be sustained ; affd Bill dismissed.