10 D.C. 78 (D.C.D.C. 1879), 4209, Creswell v. Kennedy

Docket NºEQUITY.— 4209.
Citation10 D.C. 78
Party NameCRESWELL ET AL., COMMISSIONERS OF FREEDMAN'S SAVINGS AND TRUST COMPANY, v. HARVEY KENNEDY, EXECUTOR.
AttorneyEnoch Totten , for complainant. Merrick & Morris , for defendants.
CourtSupreme Court of District of Columbia

Page 78

10 D.C. 78 (D.C.D.C. 1879)

CRESWELL ET AL., COMMISSIONERS OF FREEDMAN'S SAVINGS AND TRUST COMPANY,

v.

HARVEY KENNEDY, EXECUTOR.

EQUITY.— No. 4209.

Supreme Court, District of Columbia.

September Term, 1879

Enoch Totten , for complainant.

Merrick & Morris , for defendants.

Where an executor files an inventory, from which it appears that he has paid various debts amounting to nearly all the assets in his hands, and the complainant files his bill to enforce a sale of real estate to pay a debt due him from the estate largely exceeding the balance of assets so inventoried, and the executor interposes a plea averring that he has assets amply sufficient to pay all claims against the estate, and disputes the validity of complainant's debt, but avers his readiness to pay the same when its validity is established in a court of law, the court in equity, if satisfied that the debt is due, will decree the executor to pay the same without a resort to the law side of the court.

STATEMENT OF THE CASE AND DECISION.

The complainants in this cause exhibited their bill for the purpose of enforcing the sale of real estate, situated in the city of Washington, of which James C. Kennedy died seized, in order to pay the debts due from the estate. The bill alleges that the executor of the estate, Harvey Kennedy, has unlawfully distributed the personal property by paying the claims of some of the creditors in full and leaving others, the complainants amongst them, entirely unpaid, and that the personal estate is insufficient to pay the debts due from the estate. The bill also prays for a discovery and an account from the executor.

To this bill the executor and the heirs and legatees interposed a plea, averring that the executor has in his hands assets belonging to the estate, amply sufficient to pay all claims against the estate which have been presented; that the executor disputes the justice and validity of the complainants' claim, and alleges his readiness to pay the said claim so soon as the complainants shall have established the validity thereof in a court of law.

A replication was filed in behalf of the complainants, and testimony was taken. Since the bill was filed the trustee of Jay Cooke & Co.'s estate has interposed in the case by petition, asserting that he holds an overdue note made by the testator, for the sum of $3,500, which he seeks to collect.

From the bill and testimony in the case, it appears that James...

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