Ayres v. Shepherd
| Decision Date | 10 November 1902 |
| Citation | 64 N.J.E. 166,53 A. 690 |
| Parties | AYRES v. SHEPHERD et al. |
| Court | New Jersey Court of Chancery |
Two suits by James Ayres against Charles K. Shepherd, executor, and others. Decrees for complainant.
I. O. Acton and J. W. Acton, for complainant.
J. Ogden Burt, for defendants.
REED, V. C. A single question is presented in both of these two cases,—a question arising under the provisions of the orphans' court act (P. L. 1898, p. 738, § Go). This question is whether the suits were prematurely brought. The owner of the equity of redemption, who is the assignee of the right of the mortgagor, died December 2, 1901, testate; naming in his will Charles E. Shepherd as his executor. The complainant, who held by assignment the two mortgages, on different portions of the real estate of the deceased owner of the equity of redemption, tiled these bills to foreclose his mortgages on March 21, 1899, within a period of less than six months from the death of the said owner. The defending executor has set up the provisions of the act Just mentioned, and insists that he was not suable by the complainant for this cause at the time the bill was filed.
This is the language of the statute: "To enable executors or administrators to examine into the condition of the estate and ascertain the amount and value thereof, and the debts to be paid out of the same, no action, either at law or in equity, except for funeral expenses, shall be brought or maintained against executors or administrators of the estate of any decedent, within six months after probate shall have been granted to such executor or executors in case of a will, or letters of administration shall have been granted to such administrator or administrators in case of intestacy, or with a will annexed, as the case may be, unless by special leave of the court wherein such action is intended to be brought." Inasmuch as the bills are purely foreclosure bills, seeking no relief against the executor as such, nor as accounting from him, the case of Trust Co. v. Vandegrift, 51 N. J. Eq. 401, 26 Atl. 985, would seem to settle the question mooted. In that case it was held that these statutory provisions do not include suits for foreclosure of a mortgage. But it is insisted that the facts in that case differ from this, in the particular that Mr. Shepherd by the will of the deceased owner was invested with certain control over the real estate, while in the decided case the representative was a mere administrator, whose duties were confined to the administration of the personal property of the intestate. Now, it does appear that in the will appointing Mr. Shepherd there are these provisions: It appears that the executor has taken charge of the mortgaged land under the power given him. It is...
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United States v. Britten
...property was by the will given specifically to the trustee, and so it differs materially from the case at bar. Cf. Ayres v. Shepherd, 64 N.J.Eq. 166, 167, 53 A. 690; 1 Scott on Trusts, Section It is alleged that the records kept of the dual administration establishes the fiduciaries as trus......
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Phair v. Federal Deposit Ins. Corporation
...of executor and that of trustee. Schenck v. Schenck's Ex'rs, 16 N.J.Eq. 174; Pitney v. Everson, 42 N.J.Eq. 361, 7 A. 860; Ayres v. Shepherd, 64 N.J.Eq. 166, 53 A. 690; In re Steelman's Estate, 87 N.J.Eq. 270, 99 A. 612; Caruso v. Caruso, 103 N.J.Eq. 487, 143 A. The contention of the executo......
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Travelers' Ins. Co. v. Baker
...grant absolute immunity see United Security Life Insurance & Trust Company v. Vandegrift, 51 N. J. Eq. 400, 26 A. 985, Ayres v. Shepherd, 64 N. J. Eq. 166, 53 A. 690. But, even if the statute had any application, it is not insurmountable, as leave of court may now be granted nunc pro tunc, ......