Opinion
11-05-1890
YOUNG v. SCHELLEY.
L. De Witt Taylor, for complainant W. H. Morrow, for demurrant.
L. De Witt Taylor, for complainant W. H. Morrow, for demurrant.
The bill shows that Ebenezer S. Young, deceased, by his last will gave legacies to his brothers and sister, and provided that, in case of the death of any of them before the death of the testator, then the said legacies should be paid to the survivor. In case of the failure of sufficient personal property to pay said legacies, they were expressly charged upon the real estate. This bill is filed to charge said legacies upon the land, and to procure a sale thereof to pay them. Three of said legatees, Mark S., Samuel, and Mary, have died, but since the death of the testator. It is charged in the bill that, although they died since the death of the testator, the said legacies given to them lapsed. No personal representative of such deceased legatee is brought into court; for this demurrer is assigned. It is admitted by counsel for the complainant that if the allegation of the bill that the legacies became lapsed be true, there should be a personal representative of the legatee in court. I believe he also admits that such legacy did not lapse. The demurrer to this extent is therefore well founded. The bill also shows that the executors named in the last will and testament are both dead. It shows also that William S. Young, who was the acting executor, (the other executor refusing to join in administering the estate,) left a last will and testament in which Frank H. Schumaker was made executor, who is also dead. The bill further shows that no one has been appointed to settle and further administer the estate of said Ebenezer S. Young, deceased, or to execute the provisions of his said will respecting the payment of said legacy, and charges that it is not necessary that any person should be appointed for that purpose. Hence no one is before this court competent to represent the estate of the said Ebenezer S. Young, and, for the absence of such party, another cause of demurrer is assigned. This also seems to me to be well founded. The impression of counsel seems to be that because he alleged the personal estate was all exhausted, and that a portion of the real estate had been sold under a power given in the will for the payment of debts, therefore the necessity of having a personal representative of the deceased was overcome. As in the former case, upon the argument, I think counsel admitted that upon principle such view was not tenable. Tyler v. Bell, 1 Keen, 826, 829, 2 Mylne & C. 109. Therefore to this extent the demurrer will be sustained.
A further question is raised ore tenus. Ebenezer S. Young was domiciled in this state at the time of his death. Although letters testamentary were issued to both executors named in the will, William S. only acted, he taking charge of the estate. Before he had filed any account, he died in the state of Pennsylvania, the place of his domicile, leaving a last will and testament, and naming an executor therein. Although he left such last will and testament, and appointed an executor thereof, such executor has made no accounting or settlement of the estate of Ebenezer S. Young which came to the hands of the said William S. Young. Nor is there any person brought before this court representing the estate of the said William S. Young. It is insisted that the absence of such party is good ground for demurrer. This I think is not well founded. If a legal personal representative of Ebenezer S. Young be appointed, he will represent the whole estate under the law, and will be entitled to every part and parcel thereof not claimed by his creditors or legatees in any foreign jurisdiction. If there be assets belonging to said estate not within this jurisdiction,it will be his duty to discover the same, and to take proper steps, by way of ancillary administration, in whatever sovereignty or jurisdiction they may be found, to recover the same. I am aware that it is not necessary that the ancillary administrator should be the same as the domestic; or that the appointment of the latter should precede the former. But, when the circumstances of this case are considered, it seems highly proper that the insistment of the demurrant should not prevail. The bill alleges that the debts have all been paid, and that the personal estate has all been administered, although there has been no accounting. It also alleges that, in order to discharge all of the debts, it was necessary to sell a parcel of the land. These statements for the purpose of the present argument must be taken as true. With them before me, I have been unable to discover any rule in equity that would require this complainant to go into a foreign jurisdiction and incur the expense of an ancillary administration there upon the estate of Ebenezer S. Young when there is nothing there to be administered.
Section 2 of the act relating to executors and administrators (Revision, 3961 expressly declares that "no executor of an executor shall. as such, be authorized to administer on the estate of the first testator, but, on the death of the sole or surviving executor of any last will and testament, letters of administration with the will annexed of the assets of the first testator, left unadministered, shall be issued by the surrogate of the proper county to some proper person, who shall, before the issuing thereof, give bond,", etc. This being the law of the domicile, the executor of the last will of William S. Young had no authority, except under local law, and in the interests of creditors and legatees residing in Pennsylvania, to administer upon the estate of the said Ebenezer S. Young; and that, I apprehend, could not be done as such executor, but only by an ancillary administrator, in aid of the settlement of the estate in New Jersey, which, under the statute referred to, must be proceeded with by an administrator with the will annexed. I think correct practice and the proper settlement of this estate require such an administrator with the will annexed to be brought into this court, and that when that is done the protection which the law designs to be extended to every party and to every interest will have been provided for. These views are not inconsistent with the case of Normand's Adm'r v. Grognard, 17 N. J. Eq. 425; Hunter v. Bryson,5 Gill & J. 483; nor with any of the numerous authorities found in the note to Goodall v. Marshall, 35 Amer. Dec. 483. The demurrant is entitled to costs.