5 D.C. 474 (C.C.D.C. 1838), 8607, Lupton v. Janney

Docket Nº:8607[1]
Citation:5 D.C. 474, 15 F.Cas. 1111
Opinion Judge:CRANCH, Chief Judge,
Party Name:LUPTON v. JANNEY.

Page 474

5 D.C. 474 (C.C.D.C. 1838)

15 F.Cas. 1111

LUPTON

v.

JANNEY.

No. 8607 [1]

Circuit Court, District of Columbia.

Oct. 1838. [2]

Bill in equity to open an executor's accounts after they had been settled more than twelve years in the orphans' court.

The plaintiff [Ann Lupton] was the widow and residuary legatee of David Lupton, junior, and the defendant [Phineas Janney] was his acting executor. The other executors were David Lupton, the father of the testator, and John McPherson, the father of the plaintiff. They all qualified, but as the defendant was the only one of the three residing in Alexandria, he took upon himself the whole burden of the administration. The bill states that the defendant rendered an inventory and sundry accounts to the orphans' court, by which it appeared that the estate was insolvent, and that the defendant was in advance for it. That the last account was rendered on the 5th of January, 1821. That the testator died in 1814. That if the accounts had been settled upon proper principles the estate would have been not only solvent, but a very handsome residuum would have remained to the plaintiff as residuary devisee. That the defendant should be charged with several debts due to the testator's estate which he might and ought to have collected; namely, $4,083.50, due by John McPherson & Son; $263.50 due by the same to Abijah Janney & Co., and assigned to the testator; $225, for plaster due by the same, and $140 due by the same to the testator upon open account; $223, due by Thomas Neil; and $4,959.43, which he charged as paid to Peter Saunders ‘ without sufficient or legal evidence that the money was in fact due.’ That there might be many other debts due to the testator which have been lost by the defendant's negligence, as he had returned to the orphans' court no list of debts, either sperate or desperate. The bill then prays that the defendant may render a due list of debts due to the testator at the time of his death; that the administration accounts may be all opened, and that a new and full account may be ordered to be taken; and it also prays for general relief. The bill was filed at May term, 1833. The defendant, ‘ saving to himself the benefit of exception to the jurisdiction of the court on the matter stated in the complainant's bill,’ and to the many errors, & c., answers, and among other things, admits that he returned the inventory and settled the accounts with the orphans' court, as stated in the bill; and that the plaintiff was not present at, nor summoned to attend at the sad settlements; but avers that they were legally made before a court having full jurisdiction of the matter, in the due course and regular exercise of its jurisdiction; and he relies on the said settlements in bar of the jurisdiction of this court, as a court of original jurisdiction, in the case stated by the plaintiff, in the same manner as if the same were specially pleaded. The defendant not waiving this defence, further answered, among other things, that the said Peter Saunders was a fair and bona fide creditor of the testator to the full amount of all payments made to him by the defendant as executor, after deducting all proper credits. He admits that no security was taken on the sale of the flour to John McPherson & Son; but denies that he is chargeable with negligence on that account. He states that the firm of John McPherson & Son was composed of John McPherson, the plaintiff's father, who was one of the executors, and Daniel McPherson, her brother. That she had given the executors a written authority to sell the real and personal property either at public or private sale, as they might deem most advantageous, a copy of which is exhibited. That when the flour was sold to John McPherson & Son, they were in good credit, and engaged in extensive business in Alexandria. That the flour was in store at the death of the testator, in November, 1814. That the sale was made on the 17th of April, 1815, on a credit of six months. That in May, 1816, the defendant succeeded in obtaining the note of John McPherson & Son, for $1,000, on account of the sale, with the said Peter Saunders as indorser; but they always refused to give their notes for any further amount, contending that the testator's estate was indebted to them in an amount equal, or nearly so, to the balance due for the flour. That in settlement with Saunders he was charged with the note of $1,000, and the testator's estate had credit for it. As to the note of John McPherson & Son for $263.50, and Thomas Neil's note for $223, he says they were taken by Peter Saunders, one of the firm of Abijah Janney & Co., (which firm was composed of Abijah Janney, the said Peter Saunders, and the testator, David Luption, jr.,) for one-third of the debts due to that firm by the said John McPherson & Son, and the said Thomas Neil respectively, and were delivered by Saunders to the defendant, (but not until March, 1817,) as the testator's share of the said debts; and that the said John McPherson & Son, and the said Thomas Neil were insolvent when the said notes were taken, and the defendant did not think himself warranted in incurring the expense...

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