Opinion
04-23-1908
BOWER v. BOWER et al.
A. H. Swackhamer, for complainant. David O. Watkins, for defendants.
Action in chancery by Elijah Dallett Bower against Elizabeth G. Bower and another, as executors of Elijah Bower, deceased, to recover a legacy. Bill dismissed.
The bill is filed for the recovery of a legacy. It avers that Elijah Bower, father of complainant, died March 13, 1907, leaving a will in which a legacy of $1,000 is given to complainant; that the will was probated March 26, 1907, and letters of executorship duly issued to defendants; that the accounts filed by defendants in the orphans' court show ample assets for the payment of the legacy; that by the terms of the will the legacy is now payable, but that defendants have notified complainant that they will not pay it.
The answer of defendants admits these averments of the bill, and asserts as a reason for their refusal to pay the legacy that complainant is indebted to the estate in an amount in excess of the legacy.
A. H. Swackhamer, for complainant. David O. Watkins, for defendants.
LEAMING, V. C. I am unable to entertain this bill. Section 3 of the orphans' court act (P. L. 1898, p. 716) gives that court jurisdiction for the recovery of legacies. While that statutory remedy is a remedy given in addition to that existing in equity, and in no way limits or qualifies the jurisdiction of this court over the subject, yet it is well settled that when jurisdiction has been assumed by the orphans' court, and progress has been made in that court in the settlement, the Court of Chancery should not interfere, unlesssome good cause is shown for doing so. The authorities in this state on this subject are collected in Van Dyke v. Van Dyke (N. J. Ch.) 65 Atl. 215. The bill discloses no good cause for the exercise of the jurisdiction of this court. It is urged that a construction of the will is necessary; but I think not.
Instead of demurring to the bill, defendants answered, and appended to their answer a clause which asserts that complainant is not entitled to equitable relief because of adequate remedy at law and prays for the benefit of that defense to the same extent as though a demurrer had been filed. I have not discovered the origin of that practice. It appears to me to have no place in the fundamental theories of equity pleading, and I can see but little utility in its adoption, although it appears to have found some sanction. It is recognized in Fletcher on Equity Pleading & Practice, § 294, and a form for its use is appended in section 311. See, also, Creely v. Bay State Brick Company, 103 Mass. 514; Chicago Exchange v. McClaughry, 148 Ill. 372, 36 N. E. 88; Outcalt v. Helme Co., 42 N. J. Eq. 665, 677, 4 Atl. 669, 9 Atl. 683. In view of the fact that no demurrer was filed, and complainant was in consequence compelled to go to a hearing on bill, answer, replication, and proofs, I think no costs should be taxed.
I will advise an order dismissing the bill, without costs.