McCartin v. Adm'r of Traphagen

• Decision Date: 16 November 1887
• Citation: 11 A. 156,43 N.J.E. 323
• Parties: MCCARTIN v. ADMINISTRATOR OF TRAPHAGEN, Deceased, and others.
• Court: New Jersey Court of Chancery

11 A. 156

43 N.J.E. 323

MCCARTIN

v. ADMINISTRATOR OF TRAPHAGEN, Deceased, and others.

Court of Chancery of New Jersey.

November 16, 1887.

(Syllabus by the Court.)

On final hearing on bill, answers, and proofs taken in open court.

Gilbert Collins, for complainant. John N. Voorhees, for administrator of Henry M. Traphagen, deceased. A. O. Garretson, for Phebe A. Watson. John Linn, for William C. Traphagen.

VAN FLEET, V. C. The complainant is the youngest child of Myles McCartin, deceased. Mr. McCartin died testate in November, 1859. He left a widow and five children. By his will he directed that the one-third part of his estate, both real and personal, should be set apart for the use of his widow during life, and that the corpus of this part of his estate, on her death, should be divided equally among his five children. The other two-thirds of his estate he gave to his five children, and directed that the share of each child should be made over as he or she attained to 21 years of age. He appointed his widow, Mary Ann McCartin, and Cornelius Van Vorst and Henry M. Traphagen, the executors of his will. They all proved the will. Mr. Traphagen died intestate in May, 1884. This suit was brought in July, 1886. The persons made defendants are the surviving executrix and executor, (Mrs. McCartin and Mr. Van Vorst,) the administrator of Henry M. Traphagen, deceased, and also his heirs at law, namely, Phebe A. Watson, William C. Traphagen, and Henry Traphagen; and four of the testator's children, namely, Mary E. McCartin, Elizabeth C. McCartin, Isabella T. McCartin, and Myles F. McCartin. The suit has two objects: First, to procure a settlement of the estate of Myles McCartin, deceased, and a division of his property, under his will, among his beneficiaries; and, second, to compel his surviving executrix and executor, and the legal representative of his deceased executor, to make good to his estate the losses which, it is alleged, the estate has sustained in consequence of misconduct by the executors.

Several questions, growing out of objections made to the suit in respect to parties, and also to the competency of witnesses, must be decided before the questions arising on the merits can be considered.

1. As to parties. It is objected that the heirs at law of Henry M. Traphagen, deceased, are not proper parties. No relief is sought against them, except it is prayed that they, together with the administrator of Henry M. Traphagen, deceased, and the two surviving executors, may be decreed to account for the execution of the trusts of the will of Myles McCartin, deceased, and also for the administration of his estate in this court, instead of rendering their accounts in the orphans' court of the county of Hudson, where his will was admitted to probate. Heirs at law are answerable, to the extent of the value of the lands descended, for the debts of their ancestor, and also for damages arising from the breach of a covenant made by their ancestor, (Insurance Co. v. Meeker, 37 N. J. Law, 282;) and it is also well settled that an action may be maintained against the legal representative of a decedent, whether he died testate or intestate, to recover damages arising from a violation of the decedent's legal duty or a breach of trust. Tichenor v. Hayes, 41 N. J. Law, 193; Dodd v. Wilkinson, 41 N. J. Eq. 581, 7 Atl. Rep. 337. And it would seem to follow, as a necessary deduction from the right of action thus established, that any claim which may be made the basis of a recovery against the legal representative of a decedent will also be sufficient, as a ground of action, to support a recovery against his heir at law. But I know of no rule of law which imposes upon an heir the duty of rendering accounts, for his ancestor, in courts exercising probate jurisdiction. It is obvious that in the majority of cases no such duty can rest upon him, for he is without the means of performing it. On the death of a trustee, where the subject of the trust is personalty, the trust property, as well as the books and papers relating to its administration, pass to his legal representative, and not to his heir at law. And so, too, where the subject of the trust is realty, the books and papers showing the administration of trust pass, at least in the first instance, to the legal representative of the dead trustee, and not to his heir. I think, therefore, it is quite clear that the duty which the complainant seeks to have imposed upon the heirs at law in this case does not exist.

But the more important question is, have not the heirs at law of Henry M. Traphagen, deceased, such an interest in the subject-matter of this suit as renders them proper, though not necessary, parties? The bill alleges that Mr. Traphagen left a large amount of real and personal estate, which, to a considerable extent, has already been divided and distributed among his children. The proofs show that $10,000 of his personal estate has been distributed to each of his children, and that a comparatively small amount remains in the hands of his administrator. Personal estate is the primary fund out of which the debts and liabilities of a decedent must be discharged. The rule is settled that a legatee, who has received his legacy, is always bound, at the instance of creditors, to refund his legacy, if there is a deficiency of assets to pay debts, whether the deficiency arises from an original want of assets, or the waste of the executor. This liability flows from the superior right of creditors, and does not at all rest upon contract. The legatee is liable whether he has given a refunding bond or not. It is an obvious rule of justice that neither a legatee, nor one of the next of kin, shall be entitled to anything until the obligations and liabilities of the person through whom they derive their rights have been paid. Executor of Bilderback v. Rowe, Spen. 684; 1 Story, Eq. Jur. 92, 503; Fonbl. Eq. bk. 4, pt. 1, c. 2, § 5, note p; Lupton v. Lupton, 2 Johns. Ch. 626.

While it is undoubtedly true that no active relief can be given against the heirs at law, by the decree which may be made on this hearing, yet I think it is quite apparent that, if a decree should be made against the administrator of their ancestor, such decree might, in a subsequent proceeding, be made the proper foundation of relief against them. Even if they were not parties to this suit, I think they would be concluded by such decree, as to the amount for which their ancestor was liable, unless they could show that the decree was the product of fraud. Under this view it is quite plain that they have a vital interest in the result of this suit. There can be no doubt that they are proper parties under the rule adopted by Chancellor ZABRISKIE in Dorsheimer v. Rorback, 23 N. J. Eq. 46.

2. As to the competency of certain witnesses. The complainant called his mother and his three sisters to testify to transactions with Henry M. Traphagen, deceased, and statements made by him. Their evidence on these subjects was objected to, and the question is, were they competent to give the evidence objected to? And, first, as to the three Miss McCartins. Their position on the record is that of defendants, though their interest in the litigation is that of complainants. In respect to the whole subject-matter of the litigation, they have the same interest exactly that their brother, the complainant, has. The only possible difference which exists between them is that they are older than he is, and have consequently, if there has been laches, been guilty of greater laches than he has. In all other respects their positions are identical. This suit was brought as much for their benefit as it was for the benefit of the complainant. The bill so declares. It first alleges that the executors have wasted the estate of their testator, and that the complainant and the other beneficiaries under the will are therefore entitled to indemnity from the executors therefor, and then prays that such indemnity may be decreed to them. There can be no doubt that if the three Miss McCartins had taken their true position in the litigation; if they had placed themselves where their interests and their feelings place them; where they are in everything except the barest form,—they would have been incompetent to give the evidence objected to. Though they are defendants in form, they are complainants in fact. If a decree goes in favor of the complainant, it must, ex necessitate, give the same measure of relief to each of these defendants that it does to the complainat unless some special defense, peculiar to the defendants, and which exists against them alone, and not against the complainant, has been shown. The position of parties, having the same rights, in a suit of this kind, is a pure matter of arrangement, over which they have supreme control. The three Miss McCartins were necessary parties to this suit, but they were at liberty to choose their position. They could be either complainants or defendants, just as they saw fit. I have no doubt that they were made defendants, not because they did not want the suit brought, nor because they were unwilling to appear as complainants, nor because it was supposed there was any conflict between their interests and those of the complainant, nor because it was suspected that they might desire to make defense against the complainants' action, but because it was thought possible that, by making them defendants, they might be rendered competent to testify to declarations made by Mr Traphagen, and thus increase their chances, and those of their brothers, of being able to fasten a liability on Mr. Traphagen's estate.

The decision of the question under consideration must, of course, be controlled by the statute of 1880. The main design of that statute is, so far as it prescribes a rule of exclusion, to prevent a person who seeks, by judicial action, to fasten a claim on the estate of a decedent, from putting in proof,...