Opinion
10-20-1906
VAN HOUTEN v. HALL et al.
Preston Stevenson, for petitioner. Robert Williams, for respondents.
Bill by Rachel Van Houten against Joseph C. Hall and others for distribution of the residue of the estate of Rachel Van Houten, deceased. From a decree of the Court of Chancery (64 Atl. 460) ordering distribution, certain of the parties appeal. Heard on petition to permit enforcement of a portion of the decree. Petition denied.
Preston Stevenson, for petitioner. Robert Williams, for respondents.
BERGEN, V. C. From the final decree of this court ordering the distribution of a legacy under the will of Rachel Van Houten to be made per stirpes, and not per capita, between the devisee of the child of her deceased son and the children of her daughter, the children have appealed. The appellants now petition this court to permit the enforcement of the decree in their favor to a substantial extent, consenting that the devisee of the child of the son may participate in such distribution, but only to the extent she will be entitled should the appellants succeed in the Court of Appeals. In support of their petition the petitioners argue that, in any event, they will be entitled to at least what has been decreed to them by this court, and that, in carrying out the decree, the status will not be changed to the prejudice of the appellees. I can find no precedent permitting such a partial execution of a decree in a cause removed to, and now within, the jurisdiction of the Appellate Court by the act of the party asking its partial enforcement in this court. The purpose of the proceeding in which the decree appealed from was made was to determine the rights of numerous parties to a fund, the distribution of which requires the construction of a last will and testament. What view the appellate court may adopt it would not be proper for me now to anticipate, for it might reach a conclusion, not only different from the views expressed in support of this decree, but also at variance with the claims of the appellants.
In addition to what I have stated, I am of the opinion that during the pendency of this appeal this court ought not to partially execute it in behalf of one who, by his own act, has removed the proceedings to another jurisdiction; for, if the right to enforce this decree is not effected by the appeal, it would apply to the whole decree as well as" to a part of it, and to execute the entire decree would manifestly destroy the subject of the appeal. Penna R. R. Co. v. Nat Docks Ry. Co., 54 N. J. Eq. 647, 35 Atl. 433. That these petitioners are in great need of the money, the receipt of which they have postponed to a future time by their own appeal, is no reason why this court, if it has the power, should partially execute the decree in favor of those who complained of it. If the executors or trustees choose to act upon the decree made in this court, and to pay out part of the sum to the present applicants, on the ground that they will be entitled to at least that much on any decree which would be made in the Court of Appeals, they can do so taking that risk. The present application should be made to the Court of Appeals, which now has jurisdiction of the subject-matter, for any order that this court might make would itself be subject to appeal, thus creating a confusion that ought to be avoided, and I must decline to make any order for a partial distribution, except with the consent of all the parties interested in the fund.