Opinion
Argued February 18, 1879
Decided March 25, 1879
James Thomson, for appellant. Alex. Thain, for respondents.
The facts alleged to sustain the prayer of the complaint for an injunction are not sufficient. It alleges the giving of releases and assignments, and that the surrogate disregarded them when presented to him in the proceedings in his court. It is not alleged that he had or had not the power to consider and pass upon them. It alleges that the estate of Mrs. Youle is not represented in the proceedings; because the will left by her has not been admitted to probate. It does not allege that it is the fault of the surrogate that it has not been; nor does it show what is the reason, or the lack of reason therefor. We might content ourselves with a judgment that the complaint does not set forth facts sufficient to show a cause of action, and that the demurrer is well taken.
It is plain however, that there can be no final and complete settlement of the plaintiff's accounts, until the estate of Mrs. Youle is represented; and until it is determined by an authentic adjudication whether the releases and assignments are valid, and what is the force and effect of them.
It is therefore well, that if the plaintiff is so advised, he should amend his complaint, and make averments which will tender an issue upon the validity of the releases, and the effect of them, to relieve him from liability to the makers of them, and to vest in him their interest in the estate of his intestate, so that there may be such an adjudication. How he is to effect the probate of the will of Mrs. Youle by this suit in equity, we are unable to perceive; but while it is pending, he may compel proceedings which will bring about the issuing of letters testamentary or of administration, so that her estate may be a party before the surrogate on his accounting.
The proceedings before the surrogate should not go forward so far, as that the releases if upheld will be of no avail to him; or that by want of proper appearance of parties there, his accounting will not be final as to all concerned, or appearing to be concerned in the estate of his intestate. Nor need those proceedings be entirely suspended. The accounting may be had, so far forth, as that the balances for or against him may be ascertained, and all things be in readinees for the entry of a final decree.
Hence he ought to have an injunction, upon his complaint, if he shall amend it as above indicated, restraining the proceedings in the surrogate's court beyond the point mentioned above.
Our judgment should be, that the judgment on the demurrer be affirmed, with costs, with leave to the plaintiff to amend his complaint on payment of costs, and within twenty days after notice served upon his attorneys of the judgment of this court having been made the judgment of the court below.
All concur, except RAPALLO and ANDREWS, JJ., absent.
Judgment affirmed.