Buchanan v. Buchanan
Decision Date | 09 February 1909 |
Citation | 71 A. 745,75 N.J.E. 274 |
Parties | BUCHANAN et al. v. BUCHANAN. |
Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Court of Chancery.
Bill by George Buchanan and others against Reba Russell Roselle Buchanan. Decree for plaintiffs (68 Atl. 780), and defendant appeals. Reversed and remanded.
Carrow & Kraft, for appellant.
John W. Westcott, for respondents.
This suit was brought in equity by the heirs at law and next of kin of Dr. John Buchanan, deceased, to impress a trust ex maleficio upon certain real and personal property in the possession of the defendant, which it was claimed was derived from or purchased with moneys embezzled from the decedent. The complainants allege in their bill that they are the only next of kin of the late Dr. Buchanan; that at his death he owed no bills; that no letters of administration were taken out on his estate; that Dr. Buchanan was the owner of and conducted a large and profitable business in proprietary medicines and in the publication of medical works; and that the defendant, while acting as his clerk or assistant, appropriated to her own use, both before and after his death, the profits of the business, together with moneys and other property of the decedent, and invested the same in specific real and personal property. The relief prayed for was that the defendant be required to deed to the complainants the real estate in her name, that she pay over to them and account for all moneys and deliver all securities in her possession or under her control, all of which were claimed to belong to the decedent's estate, and that the complainants should have full discovery and an injunction against the disposition of the property. The defendant by her answer denied that the business referred to belonged to the deceased, and averred that the business and its earnings and the real and personal property described were all her own, and that Dr. Buchanan had no money or property at the time of his death. The learned Vice Chancellor found the essential facts to be as stated in the bill, and advised a decree, enjoining the defendant from in any wise disposing of the property in her possession or under her control until the appointment of an administrator, to whom, when appointed, defendant is required to surrender the same. The decree, in accord with the theory of the bill, was in effect an adjudication, which stripped the defendant of all title to the property in her possession or under her control, and directed her to surrender it to an administrator, when appointed. The defendant appeals from the decree, and urges that the complainants as next of kin, have no standing in equity to recover or to establish a resulting trust as to property of a decedent which is in the actual possession of and claimed by a third person, but that such equitable rights and remedies vest only in the executors or administrators as the duly appointed personal representatives of the decedent.
We think that this position is well taken. Heirs, next of kin, and creditors cannot, in their own names, prosecute actions at law or suits in equity to recover the unadministered estate of a decedent or to collect debts or other choses in action due him. Such suits can be maintained only by the qualified personal representatives of the deceased.
Heretofore the precise question involved in this case does not appear to have been fully considered by this court, although the basic principle was recognized and applied by our Supreme Court in 1813, in Mathis v. Sears, 3 N. J. Law, 1943, and by the Court of Chancery in 1831, in Shaver v. Shaver, 1 N. J. Eq. 437. In 1889 the Court of Chancery (Van Fleet, V. C.) touched upon the doctrine in Hayes v. Hayes, 45. N. J. Eq. 461, 17 Atl. 637, affirmed by this court as Hayes v. Berdan, 47 N. J. Eq. 567, 21 Atl. 339.
Chancellor Williamson, in 1857, in Harrison v. Righter, 11 N. J. Eq. 389, applied the rule even where the next of kin of a deceased partner sought to call the surviving partner to account, the administrator being a party defendant, and held that, in the absence of collusion, a suit could not be maintained.
In Mathis v. Sears, supra, the children of Paul Sears, deceased, sued the defendant on the ground that their father during his lifetime had paid the defendant for a piece of land; that the defendant had promised their father a deed, but had failed to perform. The plaintiffs recovered judgment below. The Supreme Court reversed, saying:
From the opinion in Shaver v. Shaver, supra, a chancery suit by the next of kin to recover a legacy claimed to be due their ancestor, we quote the following: After referring to and recognizing the right of next of kin to bring executors or administrators to an account, the court adds: "But in this case the complainants seek to get in their hands the moneys of the estate or of the intestate, not from the administrator, but from some third person in whose hands the property happens to be; and to get it, not for the purpose of paying debts, or applying it in a course of administration, but of appropriating it directly to their own use."
The same principle was recognized in the decision of Vice Chancellor Van Fleet in Hayes v. Hayes, supra:
That the law has been so applied, whether the next of kin sue at law upon debt or for conversion of property belonging to the estate of the deceased, or whether they invoke the aid of a court of equity, may be shown by a brief review of the leading cases in England and the United States.
An early case (1737) is Bickley v. Donington, 2 Eq. Cas. Abr. 253, in which a legatee brought suit against the executor and debtors of the estate of the deceased. Lord Chancellor Hardwicke dismissed the bill in the following words:
In 1802, Lord Eldon, in deciding the case of Alsager v. Rowley, 6 Ves. 748, followed the same rule and quoted with approval from the notes of Lord Hardwicke.
Later, the Court of Chancery applied the doctrine strictly in Stainton v. The Carron Company, 18 Beav. 140. Legatees filed a bill against the defendant company, in which the testator had been shareholder and agent, and against the legal representatives of the estate, for an accounting and settlement of alleged dealings between the testator and the company, and for a decree requiring the company to turn over certain funds to the executors. Sir John Romilly, Master of the Rolls, sustained a demurrer to the complaint in the following concise language:
In Walker v. Walker, 25 Law Times Rep. 481 (1871), a bill was brought by legatees against Margaret Walker and the executors of the will. The complaint alleged that the testator, during his lifetime, had purchased stock of the Bank of Scotland in the name of his sister Margaret; that she held it merely as trustee for the testator, and that it formed part of his estate. Complainants prayed for a declaration accordingly, and for a transfer of the said stock to the executors. Lord Romilly dismissed the hill on the ground that "the executors were the proper persons to sue to recover assets belonging to the testator's estate."
In the United States courts, the case of Allen v. Simons, 1 Curt. 122, Fed. Cas. No. 237 (U. S. Circuit Court for Rhode Island), is not only parallel to the case at bar, but is also a leading authority. William Simons died intestate, leaving personal property consisting of a newspaper plant. The bill alleges that, after the death of the intestate, William Simons, Jr., continued to run the business under an apparent title; that he had been merely an agent before his father's death, and that the documents under which he claimed title were invalid. The answer of the heirs of William Simons, Jr., was that he held a valid title to the property in his own name, and not as trustee. Judge Curtis, in refusing to allow the bill for account and surrender of the property, adhered to the well-established rule: ...
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