Opinion
05-31-1904
STEWART et al. v. FALLON et al.
Peter Backes, for complainants. Thomas F. Noonan, Jr., pro se. Harry B. Brockhurst, for Thomas Harrington. Jarvis M. Atkinson, for Thomas H. Stewart. Fagen & Murphy, for defendant Thomas Fallon. John F. Marrion, for defendant William Hayes.
Bill of interpleader by Cornelia Gertrude Stewart and another, as executors of the estate of Thomas C. Stewart, deceased, against Thomas Fallon and others. Decree in favor of claimants Thomas F. Noonan, Jr., and William Hayes, as assignee of Matilda T. Scott.
Peter Backes, for complainants.
Thomas F. Noonan, Jr., pro se.
Harry B. Brockhurst, for Thomas Harrington.
Jarvis M. Atkinson, for Thomas H. Stewart.
Fagen & Murphy, for defendant Thomas Fallon.
John F. Marrion, for defendant William Hayes.
BERGEN, V. C. The relief sought in this cause is a decree requiring the defendants to interplead for the purpose of establishing their respective claims to a fund held by the complainants as executors of the estate of Thomas Congdon Stewart, deceased. The bill of complaint shows that under the fifth paragraph of the testator's will a fund of $10,000 was set apart for the use during life of Thomas Harrington Stewart, the income thereof to be paid to him; that on the 18thday of May, 1899, the complainants, as executors, filed an account with the surrogate of the county of Passaic, which was afterwards allowed by the orphans' court, from which it appears that they had received as interest or income upon said fund the sum of $031.88 for the use of Thomas H. Stewart, who claims that the same should be paid to him; that they had paid for the account of Thomas, out of the said moneys, $225, leaving in hand $400.88, which they are ready to pay to such persons as may be by this court adjudged entitled thereto—and, contrary to proper practice, sets forth at great length, and with unnecessary particularity, not only the fact that different persons make a claim to the fund, but the character and nature of each claim, and the evidence in support of it.
It is not proper in a bill of interpleader for the complainant to state the case of the claimants. "He is only to set out the claims as made to him. It is enough for him to satisfy the court that there are opposing claims against which he is entitled to protection until they are so settled that he can pay with safety." Briant v. Reed, 1 McCarter, 271. A great part of the bill of complaint and of the answers filed by different defendants calls for the determination of questions already passed upon by the Chancellor in Stewart v. Stewart, 61 N. J. Eq. 25, 47 Atl. 633. All such matters I shall, of course, decline to consider, and confine myself to the ascertainment of the rights of the defendants to the fund which the complainants bad in hand at the time of the filing of their bill of complaint.
It appears from the pleadings and testimony that Thomas H. Stewart made numerous assignments not only of the income due to him from his father's estate, but also of any supposed interest, present or contingent, that he might have in the principal fund. In Stewart v. Stewart, above cited, the Chancellor used the following language: "It is sufficient to say that Thomas Harrington Stewart's interest is at present confined to the income. This he may doubtless assign and charge." The right to assign being thus determined, 1 have considered the question of priorities, and it appears to my satisfaction that the first assignment of income was made by Thomas to the defendant Thomas F. Noonan, Jr., by a deed bearing date the 11th day of June, 1897, according to the terms of which there was assigned to said Noonan, "out of all interest or income, coming due to me out of the said estate under and by his will," the sum of $100; that sum having been loaned and advanced to Thomas, and to secure the payment of which the assignment was made. It also appears that the defendant Noonan immediately gave notice of such assignment to the executors and trustees, and I therefore will advise that the defendant Noonan is entitled to be first paid from said income the sum of $100, with interest from the 11th day of June, 1897.
The second assignment bears date the 16th day of August, 1897, made by the said Thomas H. Stewart to Matilda T. Scott, by which the grantor sold and assigned to the grantee "all property, money, cash, legacy or legacies, interest, estate, dividend, or share of the estate, of the said Thomas C. Stewart," and recites that it was made to further secure the payment of a certain promissory note given by the son Thomas to the said Matilda T. Scott for $675, bearing date the same day, maturing two years after its date. It further appears that due notice of this assignment, and a copy thereof, were served personally upon Cornelia G. Stewart, one of the complainants, and that on the same day notice was sent by mail, with postage prepaid, properly addressed, to the executors and trustees of the last will and testament of the said Thomas C. Stewart. The testimony and exhibits further show that on the 15th day of August, 1900, the said Matilda T. Scott, by a written instrument, duly executed, assigned and transferred to the defendant William Hayes all the rights which she had in and to the legacy and income assigned to her by Thomas H. Stewart; and, in my judgment, the defendant William Hayes is secondly entitled to be paid out of such income the sum of $675, with interest thereon from the 16th day of August, 1899, or to such part thereof as the sum in hand will satisfy after first making payment to the defendant Noonan.
As the satisfaction of these two claims, which I find are entitled to priority in payment, will more than exhaust the amount in hand for distribution, it is unnecessary to determine the priorities of the other claimants.
The next question to be determined is the amount with which the complainants should be charged. According to their account as executors and trustees, allowed by the orphans' court of the county of Passaic, the whole amount of income due to Thomas H. Stewart was $631.88. They, however, claim an allowance of $225 for moneys which they say they have advanced and paid to Thomas. The right to make this payment is disputed by the defendants. The testimony of the complainant Meyers shows that $75 had been paid before be became an executor or trustee, and that the residue of $150 had been paid to the counsel of Thomas, in two payments of $75—the first on December 21, 1899, and the second on January 27, 1900. There is no testimony in the cause fixing the date when the first payment of $75 was made, but the two subsequent payments, amounting together to $150, were undoubtedly paid out of this income by the complainants long after they had received notice of the assignments of the income, and with full knowledge that the rights of others had intervened. Consequently they ought not to be now allowed a credit therefor. I do not charge them with the first paymentof 575, because the defendants made no effort to fix the time when that payment was made, and the presumption is therefore in favor of its legality.
My conclusion is that the complainants should account for the amount found in their hands as income due to Thomas H. Stewart at the time of the accounting set forth in the bill of complaint, viz., $631.88, less $75. The answer filed by the defendant William Hayes makes no claim for income under the assignment to him by Matilda T. Scott, but the evidence in the case offered and received without objection clearly establishes such assignment, and his answer may be amended to conform to the facts.
The unnecessary length of the bill of complaint and answers filed in the cause requires that the allowance of costs should be further considered, and I will hear counsel on that question when the decree is presented for advisement, notice of which should be given to the defendants.