Merselis v. Mead

The Chancellor. That part of the prayer of the bill which is founded on an alleged agreement by the executors to become jointly responsible to the complainant for a certain amount, including several bonds and mortgages and other securities not yet collected, and which prays that the executors jointly may be decreed to pay to the complainant that certain amount, cannot, upon the proofs in the case, be granted. The executors, in tho several partial accounts which had been exhibited to the Or [572] phans’ Court and allowed, had accounted separately; and no objection was made to that mode of accounting, nor any effort to make the executors answerable jointly ; and there is no evidence to show that either of the separate accountants ever agreed to become liable for what had been received by either of the others ; nor any evidence sufficient to show that the executors assumed the uncollected securities and agreed to account to the residuary legatees for the amount of them. By the last separate accounts of the executors settled before the Orphans’ Court there was found to be in the hands of the executor Mead, $-; and in the hands of the executor Ward, $-; and in the hands of the executor Schuyler, |-- y and by the order-of that court the executors were ordered to distribute the amounts in their hands. Another part of the prayer of the bill is, that if the executors cannot be held liable on the agreement set out in the bill, (the alleged agreement on which the first part of the prayer is founded) then that the executors may be decreed to pay to the complainant the amount so ordered by the Orphans’ Court to be paid to her, with interest thereon, and that they account for the residue of the personal estate which was not included in the accounts allowed by the Orphans’ Court; and that they may be decreed to pay to the complainant the amount which on such accounting shall be found due to her ; and for such further and other relief &c. No final account has ever been settled by the executors in the Orphans’ Court. The partial accounts which have been exhibited to and allowed by the Orphans’ Court cannot prevent the complainant’s bringing the executors into this court for a final settlement. This is as far as it is necessary to go at present. It will be referred to a Master to take and state the accounts of the executors ; and all further equity and directions are reserved until the coming in of the Master’s report. It was argued on the part of the defendant Mead, that, inasmuch as the Orphans’ Court had made an order for the distribution of the several amounts found in the hands of the respective executors by the partial accounts exhibited to and allowed by the [573] Orphans’ Court, the complainant could ask no relief in this court in reference to those amounts ; for that the power of the Orphans’ Court to compel the distribution was ample. The question here presented is, whether, when on partial settlements by executors the Orphans’ Court order distribution of the moneys then in hand, and they are not distributed, and the complainant comes into this court for a final settlement, and the estate is finally settled here, this court cannot act in reference to the balances struck against the executors by the Orphans’ Court on the partial settlements, and adopt its own measures to compel their payment. It seems to me that, as long as the estate is not finally settled, this court may direct a statement of the whole account from the beginning, and take its own measures to compel the payment of the moneys found in the hands of the executors by such account, notwithstanding the Orphans’ Court have, on partial accounts, directed the distribution of the balances thereby found to be in the hands of the executors. It will be referred to a Master to take and state the accounts of the executors ; and all further equity and directions are reserved until the coming in of the Master’s report. Order accordingly.