"I.
Plaintiff is the surviving assignee of the Shackamaxon Bank
under an assignment made for the benefit of the creditors of
the bank in the month of May, 1885.
"II.
On Jan. 30, 1886, your orator and his then co-assignee
brought an action in this court, Dec. Term, 1885, No. 703
against the defendants Mary E. Yard and her husband Benjamin
H. Yard, executors of the will of one Charles S. Murphy. In
this action a judgment was recovered by the plaintiffs on
Oct. 5, 1891, in the Supreme Court of this state upon appeal
and certiorari.
"III.
This action was brought upon a bond given by said Murphy for
the faithful performance of duty by one Huggard. The bond was
dated May 1, 1873, and the breach was unknown, saving to the
parties to a fraud upon the bank, until the assignment of the
bank above mentioned. The amount recovered was $5,000.
"IV.
Charles S. Murphy (who was a surety) died June 8, 1876. His
will was proved before the register of Philadelphia. The
defendant, Mary E. Murphy (afterwards Yard) settled an
account as executrix of this will in the Orphans' Court
of Philadelphia, and the personal estate was awarded to her
as the legatee by a decree absolute November 8, 1879. The
amount thus awarded consists of securities and cash of the
value of $37,809.11.
"V.
In 1883 the said defendant, then bearing the name Mary E
Murphy, being about to marry with the defendant Benjamin H
Yard, joined with him in conveying, by three several
indentures, all her real and personal property to the
defendants, the Guarantee Trust and Safe Deposit Company, in
trust as to the personal property for herself, the said Mary,
for life, remainder to Alma H. Murphy, her daughter, for
life, remainder to the children, issue of the said daughter,
and if there is no issue, to the persons entitled to the
estate of the daughter under the intestate laws, with power
to the trustee to change the investments. The trusts as to
the real estate were the customary trusts in a marriage
settlement.
"VI.
By one of these deeds, dated Nov. 6, 1883, personal property
to the value of $18,000 was thus conveyed. By other deeds of
the same date real property of great value was conveyed on
similar trusts. In one there is a power of revocation given
to the said M. E. Murphy, and in the other a power to sell is
given to the trustee. The value of the personal property thus
conveyed far exceeds the amount recovered against the
defendants, by the judgment above recited, as executors of
Charles S. Murphy, and inasmuch as the defendant, Mary E.,
had received assets which were and are liable, and more than
sufficient to pay this debt and the costs of the suit, the
conveyance by her to the Guarantee Trust and Safe Deposit
Company was a legal fraud on your orator as a creditor of
Charles S. Murphy, the testator. The settlement on Alma H.
Murphy and her issue was voluntary. At no time did Mary E.
Yard give a refunding bond, as required by the act of
assembly.
"VII.
Inasmuch as the legal title to the assets has been, as your
orator is advised, transferred to the Guarantee Trust and
Safe Deposit Company, and as the securities have all been
changed, your orator is advised and avers that he requires
the aid of a court of equity to compel an application of so
much of the property received from the said Mary E. Murphy,
now Mary E. Yard, by the said Guarantee Trust and Safe
Deposit Company, to the payment of the debt due by her
testator, Charles S. Murphy, and to the costs of the action.
"VIII.
Your orator therefore requires the defendants, as directed by
the memorandum agreement, to answer specifically:
"1.
Whether in an action on a bond of Charles S. Murphy,
deceased, your orator recovered a judgment for $5,000 and
costs in the Supreme Court upon a writ of error to the
judgment of this court in the action brought in Dec. Term,
1885, No. 703.
"2.
Whether Mary E. Yard, then being Mary E. Murphy, and the
executrix and legatee of Charles S. Murphy, did, on Nov. 6,
1879, obtain a final decree of the Orphans' Court for the
City and County of Philadelphia, awarding the balance in her
hands as executrix on the final settlement of her account as
executrix of the said Charles S. Murphy, to herself as the
widow and sole legatee of the said Charles S. Murphy.
"3.
Whether the assets thus awarded and received or retained did
not consist of cash and personal securities of the value of
$37,809.11. If the value was different, what was the value of
the said securities.
"4.
Whether the said Mary E. Yard, then being Mary E. Murphy, did
not join in three deeds conveying her real and personal
estate, or the bulk of said estates, to the Guarantee Trust
and Safe Deposit Company in trust for herself upon her
intended marriage with Benjamin H. Yard, the defendant.
"5.
Whether by the said conveyance of the personal estate the
trusts declared of the property so conveyed were as stated in
the bill, and, if not, in what respect do they differ from
that statement, and what were the trusts that were declared.
"6.
Whether the property thus conveyed consisted in whole or in
part of property derived by her under the said adjudication
either specifically, or was the proceeds of property so
derived, or was purchased with said proceeds.
"7.
Whether the said Mary at the time of conveying the property
awarded by the said decree, or at any time, entered into any
and what bond for refunding the property awarded her in case
debts of the testator should be made to appear.
"8.
What was the age of Alma H. Murphy in November, 1883, and
what value or consideration was given by her for the
settlement on her in the deed of that date mentioned in the
bill.
"And
that the defendant may answer the premises, and especially
the specific interrogatories above mentioned as required by
the memorandum annexed, and that your orator may be declared
to be entitled to be paid the debt, interest, and costs of
the judgment recovered by him out of the assets of the said
Charles S. Murphy.
"2.
That the funds held by the Guarantee Trust and Safe Deposit
Company under the indentures above recited and which were
received from the said Mary E. Murphy may be declared
applicable to pay the said debt, interest, and costs.
"3.
That the said trust company be directed to sell so much
thereof as may be required for this purpose and apply the
proceeds to the payment of the said debt, interest, and
costs.
"4.
And that your orator may have such further and other relief
as to your Honorable Court shall seem meet.
"5.
And that process may issue to compel the defendants to appear
and answer the premises."
"1.
Because Benjamin H. Yard is improperly joined as a party to
said suit, inasmuch as he is not interested in any way in
this litigation, nor is any relief sought as against him.
"2.
Because said bill is drawn in direct violation of sections 17
and 39 in the equity rules.
"3. Because it does not appear that judgment has been
recovered against any of the defendants individually, and,
therefore, plaintiff has no standing to ask that he be
decreed to have a lien upon the property referred to in the
bill.
"4.
Because it does not appear that the judgment recovered
against said Mary E. Yard, as executrix, cannot be paid out
of the undistributed assets of the estate of said Charles S.
Murphy, deceased.
"5.
Because there is no averment that any of the assets conveyed
to the Guarantee Trust and Safe Deposit Company were, or ever
had been, assets of the estate of Charles S. Murphy,
deceased.
"6.
Because the real estate conveyed to said Guarantee Trust and
Safe Deposit Company, even if, at one time, it had been part
of the assets of the estate of Charles S. Murphy, deceased,
was at the time it was conveyed, and is now, freed and
discharged from all claims upon the part of said Shackamaxon
Bank, or on the part of plaintiff as its assignee."
