McElroy v. Hatheway

Graves J. In December, 1871, complainant joined as surety with the defendants Quimby and Hooker on the bond given by defendant Hatheway pursuant to the statute as executor and residuary legatee under the will of his father, Gilbert Hatheway, then lately deceased, and about a year ago he filed this bill against his principal and co-sureties for discovery and relief in equity. The final purpose of the bill is to transfer the whole remedial jurisdiction over the settlement of the estate from the court of probate to the court of chancery, and to compel, by the authority of the latter court, the executor and residuary legatee and the co-sureties to discover and trace from the death of the testator to the present time all parts of the estate, and through a receiver to enforce an absolute surrender by the executor and legatee, of the whole assets to the court in order that it may assume to conduct the administration to final settlement. No such bill can be maintained. The court has no jurisdiction to override the title of a residuary legatee in the way and on the grounds set forth and the complainant has mistaken his remedy if he has any. There may be cases no doubt when the court, proceeding [401] in accordance with its own maxims and keeping within the limits given to it in this State, would find some way for ■relieving the surety by hastening the principal and preventing him from using his opportunity to oppress and defraud his surety. The present bill proceeds on a theory altogether different, .and it was properly dismissed.