Brownlee v. Lockwood

The Chancellor. Joseph Brownlee, the father of the complainant, died at the city of New York, where ho resided, Hovember 3d, 1853, intestate. Administration of his estate, all of which was in that city, was granted to his widow, Abigail Brownlee, on the 23d of the same month. She took possession of his assets, and converted them all into money, except a leasehold estate in New York, of which she collected the rents until her death. In 1856, she purchased a lot in Jersey City with the money received, as administratrix, from the assets of the decedent, and built a house upon it, which was also paid for out of the assets of the decedent, she having no money except what she derived from his estate. The complainant was the son of the decedent, by a former wife, and was but a few years old at the death of his father; he had lived with and served his stepmother until ho was nearly grown, and afterwards gave to her his earnings until ho was almost of age, and was furnished with board and clothes by her, for which his-services and wages were a full compensation; he left her in 1860, about two years before her death. She paid all the debts of his father, but never rendered any account of her administration, or paid to the complainant any part of the estate of his father. The personal estate received by her [254] greatly exceeded the debts of the decedent, and was expended in purchasing the lot in Jersey Oity, and building the house upon it. After purchasing this lot, she removed to Jersey Oity, and resided there until her death. She died on the 30th of January, 1862, intestate, leaving her sister, the defendant Isabella Lockwood, her only heir-at-law. In July, 1862, administration de bonis non of the estate of Joseph Brownlee was granted by the surrogate of New York to the .defendant, David Lockwood, who resides in Jersey Oity, and who has since collected the rents of the leasehold property in New York; and he and his wife have, since the death of Abigail Brownlee, been in possession of the house and lot in Jersey Oity, and have received the rents. The complainant was the only issue of Joseph Brownlee, except one daughter, a twin sister of complainant, who has not been heard of by him for many years, and who is not known by him to be living. The complainant has no recollection of her; she was separated from the family, at an early age, and was adopted by a relative, with whom she afterwards lived. Her residence was in England. The bill prays that the house and lot in Jersey Oity may be decreed to be held in trust for the complainant, as purchased with the residue of the estate of his father, which belonged to him, wholly, or in part, as next of kin; and that the defendants may account for the assets of Joseph Brown-lee, received by Abigail Brownlee, as his administratrix; and that Lockwood may account for such assets as he has received. It does not appear that any one administered upon the personal estate of Abigail Brownlee, either here or in New York. These are the facts as stated in the bill, and for this argument, are to be taken as true. An administrator of an intestate, who resided out of this state, by letters granted in the place of his domicil, for assets situate in that jurisdiction, cannot be called to account in the courts of this state. This position is settled by numerous cases, and is not disputed by the counsel of the complainant. So far, then, as the complainant calls upon the [255] defendants to aceoiint for the assets received by Abigail Brownlee, in her life, and upon David Lockwood to account for those received under his administration, he can have no relief in this court. The sureties of Abigail may be sued in Yew York, on her administration bond, if their liability is not barred by a statute of limitation; but whether they would be liable to the next of kin for distributive shares, if not decreed by the proper court, depends upon the provisions of the laws of Yew York, which are not shown in this cause. She rendered no account in Yew York, and as she has no personal representative there, or elsewhere, so far as appears in this cause, it may be impossible to procure an account in the proper court. But this, if shown to be the situation of the case, would not give to the courts of this state the right to call her personal representative, and much less her heir-at-law, to account hero for the administration of the estate. The defendant, David Lockwood, can be made to account in the proper courts of Yew York, and of course is clearly within the rule, and cannot be called to account here. If such accounting was the only relief sought, the demurrer would be -sustained; but the bill alleges that Abigail Brownlee purchased the lot in Jersey Oity with the assets of the estate in her hands, after the payment of the debts of her intestate. This was the surplus of his estate, and by law belonged to his next of kin, of whom the complainant was one, and it was held by her in trust for them. It was not the less hold in trust because she had not yet accounted, or because no decree of distribution was made; the next of kin might not until then have been entitled to maintain a suit for it, or compel her to pay it over; but it was held by her in trust, like all money held by trustees, which is not payable to the cestui que trust until a certain time, or until a contingency which has not yet happened, and as such it is subject to the law of trusts. One principle of this law is, that if the trustee convert the money to his own use, and purchase property with it in his own name, such property is held in trust at the election of the cestui qua trust, who is [256] entitled to take the property if it has increased in value, or to call for an account of the trust money so misapplied. If it be true, as alleged in the bill, that this property was purchased with the assets of the decedent, she held it as trustee for the next of kin; and the defendant, Isabella Lockwood, to whom it descended, holds it in like trust. To ascertain the fact whether this property was purchased with money of the estate of Joseph Brownlee, it may be necessary to investigate the accounts of his administratrix. But this is not calling her to. account here, in the sense of the term in which such account cannot be called for in another jurisdiction than that where administration was granted. The accounting in this case is not for the purpose of settling the account, or making a decree of distribution, for which this court has no jurisdiction, but for. the purpose of ascertaining whether real property in this state, over which this court has jurisdiction, and exclusive jurisdiction, so far as the title is concerned, is held in trust by one resident of this state for another resident. There is no one before this 'court, who can be called to account for the administration of Abigail Brownlee, if the court had jurisdiction of the subject matter. She has no administrator, and the administrator de bonis non of her husband is only responsible for such unadministered assets as he has received, and can in no way be called upon to account for the mal-administration of his predecessor. And the weight of authority on the subject seems to hold that he could not call on the representative of the former administrator for the proceeds of property converted into money in her hands at her death, but only for assets existing in specie. Toller on Executors 450, note; 2 Williams on Ex’rs 865, note. The order made in the Ecclesiastical Court, In the goods of Hall, 1 Haggard 139, would seem to have an aspect to the contrary. But in that case the suit in the court of law was in the name of the Ordinary, and was for the benefit of the next of kin and creditors, and although it is stated that it [257] was brought by the administrator de bonis non, yet it clearly was not a suit by him, and does not establish the position that he could sustain a suit in his own name, or that the assets when recovered would be paid to him. David Lockwood, as administrator, is not a party to this suit, nor is it necessary or proper that he should be a party, as such. As the suit cannot be sustained for an account, either against the present administrator in New York, or for the administration of the first administrator, the ground of multifariousness urged on the argument, disappears under the ruling in Emans v. Emans, 1 McCarter 114, and in Varick v. Smith, 5 Paige 160, followed and approved in the decision in Purling v. Hammar, made at this term. To make multifariousness or misjoinder, there must be a combination of several distinct matters, on which relief could be granted in equity, if separate. As the demurrer is to the whole bill, and is too broad to be sustained, it must be overruled, as was the result in Banta v. Moore, 2 McCarter 97.