Opinion
06-25-1887
WOOLEY v. PEMBEETON.
Wilbur A. Heisley, for complainant. George C. Beekman, for defendant.
On bill for account on hearing of bill, pleas, and answer.
Mathias Wooley, the complainant, was appointed administrator pendente lite of Caroline Pemberton, deceased, by the orphans' court of Monmouth county in 1883, as caveats had been filed against the admission of decedent's will to probate by two of her children, John P. Pemberton and Henry H. Pemberton. The deceased left real estate on Third avenue and Monmouth avenue, Long Branch, New Jersey, and at Asbury Park, New Jersey. The property on Monmouth avenue, Long Branch, and at Asbury Park, was left undevised, but the property on Third avenue, Long Branch, was devised to the only daughter, Caroline H. Pemberton. The will did not purport to charge any of the personal property or real estate with the payment of decedent's debts. In 1884 the orphans' court admitted the will (to probate) and taxed the costs at $1,018.64. This decree was successively appealed from to the prerogative court and the court of errors and appeals, (reported in 4 Atl. Bep. 770, and 7 Atl. Rep. 642.) During the time that elapsed, and while administrator, the complainant had collected as rents and profits from the two undevised properties, after payment of all expenses, about $1,800. Of the costs in the orphans' court, $600 was for counsel fees, and, upon the agreement of the three children, and by the advice of their counsel, he paid that amount ($600) out of the rents. An appeal was taken from the decision of the orphans' court to the prerogative court of New Jersey, but the latter court sustained the decree of the court below; and the costs, about $450, were ordered paid out of the estate. From the prerogative court an appeal was also taken to the court of errors and appeals, with a like result, and the costs ordered paid out of the estate.
The complainant, judging from the inventory, supposed that the personal property would more than pay the debts, and therefore used all the moneys received from rents in paying costs, and proceeded to sell the personal property, but was restrained by an injunction from the court of chancery granted to the said Caroline H. Pemberton, who claimed title to said property, which left but a few hundred dollars as the proceeds of all the personal property. By a suit in partition between the three children, the undevised lands above mentioned were sold by order of the court of chancery. As the estate is insufficient now to pay the liabilities, debts, and expenses incurred by litigation, the complainant asked to have sufficient of the proceeds of such partition sale paid to him to be used in paying off the expenses and debts above mentioned. Caroline H. Pemberton is willing to agree to this, but John P. Pemberton and Henry H. Pemberton resist it, and claim it should be paid out of the devised real estate. This application is still pending.
The complainant, also relying on the belief that the personal property would pay the debts, allowed the statutory time of one year within which the lands could be sold to pay the debts, to expire, and therefore he filed the bill asking for relief, as, on an accounting with the heirs, and settling the costs of litigation, he is embarrassed, and has no funds for that purpose, nor to reimburse himself for time, labor, and trouble; and that said properties be decreedliable for the payment of the debts, costs, and expenses; and that it also be decreed whether Caroline H. Pemberton's title to the personal property be full and complete.
Caroline H. Pemberton is the only defendant that appears, and she filed two pleas; the first claiming that the complainant has no legal standing in court, as by the decrees of various courts the will has been admitted to probate, and by its provisions the said defendant, Caroline H. Pemberton, appointed sole executrix. The second claims an acknowledgment under oath filed by the complainant in the Monmouth county orphans' court, acknowledging the defendant's title to the personal property, and asking for permission to sell the lands.
Wilbur A. Heisley, for complainant. George C. Beekman, for defendant.
YAN FLEET, V. C. Neither plea shows a defense. The first is grounded on a misapprehension. The plea assumes that the complainant sues as administrator pendente lite. This is a mistake. What his bill alleges in respect to the character in which he sues is this: that he was lately administrator pendente lite of Caroline Pemberton, deceased, and that, while acting in that capacity, he did certain things by direction of the courts, and with the consent of the defendants, which render it necessary that the defendants, in order that justice may be done to him, shall account to him. His suit, strictly speaking, is prosecuted in his individual capacity. Its object is to obtain relief touching certain matters in which he became involved while acting in a representative capacity. But, if it were otherwise,—if he had sued as administrator,—1 think he would still have a right to maintain his action. Though out of office, he is still liable to account, and this liability gives him a right to compel those for whom he has acted to perform their just obligation to him. There can be no doubt that, if he had paid a debt of the person whom he represented, out of his own money, there being no money in his hands belonging to the estate with which to make the payment, and the debt having been one which it was necessary to pay to prevent a sale of the property of the estate at a sacrifice, and his control over the estate had terminated before he had an opportunity to reimburse himself, he would have been entitled to protection in equity. And, whether he brought his suit as late administrator or as an individual, his action, for all substantial purposes, would have been for his own personal benefit. Such, in fact, is the purpose of his present suit.
The question, whether the first plea sets up a sufficient defense or not, I think must be regarded as res adjudicata. The bill has been held to be sufficient to entitle the complainant to a decree. Woolley v. Pemberton, 41 N. J. Eq. 394, 5 Atl, Rep. 139. This adjudication covers both the sufficiency of the complainant's title and of the facts alleged in support of it. The second plea seems to have been designed to interpose an estoppel, but it lacks the fundamental essential of a defense of that character. However, if it had been sufficient, it could not be allowed to stand. A defendant in equity can plead only a single plea without special leave first granted. 1 Daniell, Ch. Pr. 609.
Both pleas must be overruled, with costs.