Opinion
04-12-1887
ROBINS and another v. ARNOLD, Adm'r, etc.
C. T. Cowenhoven, for complainants. Collins & Corbin, for defendant.
Bill for relief. On final hearing upon bill and answer.
C. T. Cowenhoven, for complainants.
Collins & Corbin, for defendant.
RUNYON, Ch. The object of this suit is to establish a claim (for trust funds) of the complainants against the insolvent estate of Wright Robins, deceased, the trustee, in order that the complainants may receive a dividend thereon, with the other creditors who duly presented their claims in this usual and prescribed way within the time limited by an order to limit creditors made by the orphans' court of Middlesex county. The complainants claim that they duly presented their claim by the filing by them of a bill in this court against the executrix within such limited period. The bill was filed for a discovery of the trust funds, and to follow them into certain land mentioned in the bill. The bill stated that there was due to the complainants in this suit, Theodore R. Robins and Margaret R. Robins, out of what was called the Maria Robins fund, about the sum of $17,720, and that there was due to them also their shares of what was called the Caroline McClure fund. It was not verified by any oath. The executrix did not answer. On August 6, 1884, the bill was dismissed as to the Maria Robins fund, and as to the other it was dismissed at the final hearing. Cuming v. Robins, 39 N. J. Eq. 46. On the fourth of September, 1884, the administrator de bonis non cum testamento annexo answered. The executrix was discharged, and he was appointed in May, 1883. He admitted the liability of the estate for the Maria Robins trust money to the amount of $17,750, besides interest. The order to limit was made April 8, 1882, and the nine months limited therein expired in January, 1883. An order barring creditors who had not proved their claims was made on the fifteenth of that month. The bill was filed in December, 1882. After the dismissal of that bill the complainants brought suit in this court in 1884 to establish their claim, by virtue of their interest in the Maria Robins fund to certai n land which they alleged the testator had purchased with money of that fund belonging to them. An answer was filed by the administrator. The suit resulted in a decree that some of the lands mentioned in the bill of which the testator died seized had been purchased with the money of that fund, and that it therefore belonged to the complainants, and that a certain sum of money of that fund should be charged on other land of the testator. Arnold v. Robins, 40 N. J. Eq. 723, 5 Atl. Rep. 173.
The complainants did not present their claim, as they might have done, in the form contemplated by the statute. The statute provides that claims "shall be presented in writing, specifying the amount claimed, and the particulars of the claim, and shall be verified under oath, or the bringing in of the same shall be of no effect." On the twelfth of April, 1882, the executrix represented to the orphans' court that the estate was insolvent, and on the third day of April, 1883, after having given due notice, she filed a report of che claims presented, and an account of the personal estate, and an inventory of the real estate. The complainant's claim was not included in the report. No exceptions were filed to the account, and on the twenty-second of May following the orphans' court decreed that the estate was insolvent. On themonth the executrix was discharged (as before stated) upon her own application, and the defendant was appointed administrator with the will annexed. She accounted, and her account was allowed, and she paid over the balance to the administrator. On the twenty-eighth of July, 1885, the latter applied to the orphans' court for an order for the sale of lands to pay debts. In his application for the order he stated the claims against the estate just as they were stated by the executrix in her report, before referred to, and stated that the appeal was pending from the decree of this court in the beforementioned suit, begun in 1884, and asked for an order for the sale of all of the real estate, except the land in question in that suit. In no report to the orphans' court was any mention made of the complainants' claim. The creditors and all other persons interested would have had the right to file exceptions to the claim if it had appeared in the report by the executrix. And the complainants, if they had the right to have it there, might have excepted because it was not there. The executrix did not answer the bill in Cuming v. Robins, and the answer of the administrator was filed long after the expiration of the period fixed in the order to limit. There was therefore neither verification nor admission of the claim in question within that period. In Mutual Ben. Life Ins. Co. v. Howell, 32 N. J. Eq. 146, it was held that the filing of a bill for foreclosure in this court, claiming decree for deficiency, was not a presentation of a claim for the deficiency within the meaning of the statute. See, also, Lewis v. Champion, 40 N. J. Eq. 59. The bill will be dismissed, but without costs.