Child v. Wherry

• Decision Date: 19 May 1937
• Citation: 122 N.J.Eq. 61,192 A. 731
• Parties: CHILD v. WHERRY et al.
• Court: New Jersey Court of Chancery

192 A. 731

122 N.J.Eq. 61

CHILD

v. WHERRY et al.

Court of Chancery of New Jersey.

May 19, 1937.

Syllabus by the Court.

On notice and petition for an order to compel complainant to amend bill of complaint, add parties defendant, and furnish bill of particulars. Motion denied. Petition dismissed.

Suit by Francis Child, substituted administrator of the estate of Andrew Kirkpatrick, with the will annexed, against J. Frederic Wherry and another, executors of the last will and testament of Amy E. Kirkpatrick and others. On motion by defendants for order to compel complainant to amend bill of complaint, add parties defendant, and furnish bill of particulars.

Motion denied and petition dismissed.

Harry W. Sherman, of Newark, for complainant. Pitney, Hardin & Skinner, of Newark, for petitioners.

STEIN, Vice Chancellor.

Francis Child, substituted administrator with the will annexed of the estate of Andrew Kirkpatrick, in his bill of complaint charges that John Bayard Kirkpatrick, one of the executors and trustees of the estate of Andrew Kirkpatrick, committed numerous breaches of his trust as such executor and trustee in that he commingled the trust estate with his own; appropriated such trust assets to his own use; failed to account for the assets of the trust and to distribute to two of the children of Andrew Kirkpatrick the full amount of their respective share of their father's estate, which shares they were entitled to under his will.

John Bayard Kirkpatrick died in 1928, leaving a will naming his widow, Amy E. Kirkpatrick, as his sole beneficiary of his estate. Amy died in 1930, and under her will, J. Frederic Wherry and Ruth E. Loveland were named as executors.

The bill further charges that assets of the Andrew Kirkpatrick estate were commingled with John Bayard's assets at the time of the latter's death in 1928 and passed to his sole beneficiary, Amy, and in turn upon her death passed to her executors and distributees.

The object of the present suit brought by the successor trustee is to subject property in the hands of the defendants to the payment of an obligation to John Bayard Kirkpatrick, deceased, active executor and trustee of the estate of Andrew Kirkpatrick, and to account for personalty and the avails of realty held in trust by him and to discover, ascertain, and follow unadministered assets of the estate of Andrew Kirkpatrick into the hands of the distributees of John Bayard's estate who received them through his wife, Amy, and to impress thereon a lien. The suit is one for discovery and an accounting of administered property.

The petitioners, J. Frederic Wherry and Ruth E. Loveland, as executors of the last will and testament of Amy E. Kirkpatrick, Ruth E. Loveland, individually, Mary Caroline Burns, Michael Gallaway, and Betty E. Hedges, who are among the defendants named in the bill of complaint, move and by their petition upon this motion pray an order of the court to compel complainant (1) to amend his bill of complaint "so as to set forth a plain and concise statement of the facts upon which Complainant relies, * * * with dates and items, of the frauds, breaches of trust and wilful defaults which are charged in the Bill * * *," and (2) for an order that the complainant join as parties to the suit the unpaid legatees as necessary parties to these proceedings since they have a direct interest in the outcome of this suit.

It is charged in the bill of complaint that John Bayard Kirkpatrick never filed an accounting in the matter of the Andrew Kirkpatrick estate; that no accounting was ever filed in the estate of John Bayard Kirkpatrick, but that in the inventory of his estate there are securities after partial distribution thereof of the same kind as remain in the estate of Andrew Kirkpatrick, such as shares of the Federal Trust Company and of the Neptune Meter Company; that the assets and moneys of the estate of Andrew Kirkpatrick in the hands of John Bayard Kirkpatrick were commingled with his own and constituted part of his estate; that John Bayard Kirkpatrick withdrew funds from the estate of Andrew Kirkpatrick to his order individually and as "Attorney" and improperly mingled such funds with his own. The date of such withdrawals, together with the amount thereof are set forth, and it is charged upon information and belief that the books, papers, and records in the possession of Warren L. Jacobus, executor of the estate of John Bayard Kirkpatrick, either properly belong or relate to the administration of the estate of Andrew Kirkpatrick, and that for the proper protection of the interests of his estate an order be made that such books, records, and papers be turned over to complainant; that certain parcels of real estate therein specified were sold between the years 1904 and 1905 and the proceeds thereof never accounted for; that other property on Mt. Prospect avenue and on Arch street, both in Newark, N. J., were exchanged in 1909 for other properties on Seymour avenue and on Rose Terrace in Newark. The exact details...