Patten v. Patten

• Decision Date: 02 March 1920
• Docket Number: No. 1616.,1616.
• Citation: 109 A. 415
• Parties: PATTEN v. PATTEN.
• Court: New Hampshire Supreme Court

109 A. 415

PATTEN

v. PATTEN.

No. 1616.

Supreme Court of New Hampshire. Sullivan.

March 2, 1920.

Exceptions from Superior Court, Sullivan County.

Bill in equity for accounting and discovery by Russell F. Patten against Lambert D. Patten, resulting in dismissal of the bill on defendant's motion, and plaintiff excepts. Exception sustained.

Bill in equity for an accounting and discovery. The ground of complaint alleged is that the plaintiff and defendant are coexecutors of and residuary legatees under the will of Mary L. Patten, late of Claremont; that Lambert owes the estate money; that he refuses to give an account of the same; and that the estate has been so far administered that no one is interested therein except the residuary legatees. There was no personal service upon the defendant, who is a nonresident. He appeared specially and moved to dismiss the bill:

"(1) Because this court has no jurisdiction of the parties. (2) Because this court has no jurisdiction of the subject matter set forth in said bill. (3) Because the allegations contained in said bill do not constitute a cause of action cognizable in this court."

Subject to exception, the motion was granted by Marble, J., who transferred the case from the May term, 1919, of the superior court.

Frank H. Brown and Hurd & Kinney, all of Claremont (H. N. Hurd, of Claremont, orally), for plaintiff.

Allen Hollis and William W. Thayer, both of Concord (Wm. W. Thayer, of Concord, orally), for defendant.

PEASLEE, J. A special appearance for the purpose of objecting to want of jurisdiction over the defendant must be limited to that purpose. If it be extended so as to present another question for decision by the court, this objection is waived and jurisdiction is conferred. "He cannot take the chance of succeeding on any other objection to the case made against him, and at the same time reserve his exception to service or notice." Merrill v. Houghton, 51 N. H. 61, and cases cited. In this case the defendant has appeared and argued questions that are entirely distinct from that of jurisdiction over him. It follows that the first objection is no longer open.

The motion to dismiss the bill because its allegations "do not constitute a cause of action cognizable in this court" presents the question whether the subject-matter of the complaint is one exclusively within the jurisdiction of the probate court. The remedy here sought has always been available in the English courts of chancery. Allen v. Story, (1585) Toth. 86; Franco v. Franco, 3 Ves. Jr. 75; Peake v. Ledger, 8 Hare, 313. It has frequently been applied in this country. Elmendorf v. Lansing, 4 Johns. Ch. (N. Y.) 562; Wood v. Brown, 34 N. Y. 337; Sheehan v. Kenuelly, 32 Ga. 145; Stiver v. Stiver's Heirs, 8 Ohio, 217.

There are manifest and substantial reasons why this should he so. "It follows from the unity of the estate of several executors or administrators, which is such that in relation thereto they are all considered as one person in law, first, that each has power to take possession of the assets, which neither of the others can hinder, and that, having taken possession, neither of the others can take them from him; and, secondly, that they can neither contract with one another, nor bring an action at law against one or more of their number, because a man cannot be both plaintiff and defendant in the same cause, and in bringing an action all must join as plaintiffs. Now it would be clearly irrational and unjust to hold any person responsible for the acts of others which he can neither control nor prevent, and equally unjust and unwise co dispense with any of the elements of protection of the estates of deceased persons which the vigilance, prudence, and good faith of all or any one of the joint executors or administrators affords; hence it is the duty of all and each of them to interpose when any jeopardy to the interests of the estate by the negligence or bad faith of a coexecutor or coadministrator comes to their notice. This they may do by invoking the aid of a court of equity, which, upon proof of mismanagement or jeopardy to the estate by any one or more of the executors or administrators, will restrain him from further meddling with the estate, and compel him to restore the funds in his hands, unless a complete remedy is given in the probate court." 2 Woerner, Adm. 739, 740.

But it is argued that the rule of the common law is immaterial here because our statutes give to probate courts exclusive jurisdiction over the matter involved. There are two answers to this proposition. The remedy sought is not in any real sense a part of the settlement of the estate in the probate court, and if it were, the statutes of the state have from the beginning undertaken to preserve this remedy against a coexecutor.

An examination of the history and development of statutory probate law in this state shows that there never has been a time when the probate court had exclusive jurisdiction over controversies between coexecutors. The origin of our probate court is traced to the ecclesiastical courts of England, the jurisdiction of which was practically limited to the probate of wills, the granting of administration, and suing for legacies. 3 Blk. Com. 95. In every other respect the control of estates, executors, and administrators was exclusively in the common-law and chancery courts. Woerner, Adm. § 145. In this state even the appointment of judges of probate depended upon charters and unwritten law until after the Revolutionary War. Smith's MSS. Probate Law, Smith, 505, 514. The constitutional amendment of 1792-93 conferred exclusive jurisdiction substantially in accord with the English practice. "All matters relating to the probate of wills and granting letters of administration shall be exercised by the judges of probate." Const, pt. 2, $ 79 (80).

It is evident that the idea of exclusive jurisdiction in the probate court over all matters relating to the settlement of estates originated with the statutes of a later date. As the law stood in colonial times, proceedings by aggrieved legatees or creditors was by suit against the executor or administrator, and upon proof of waste, execution issued against him personally. Laws 1726, p. 50. The probate bond was then required of executors only in certain cases, and then as a substitute for an inventory. While this remedy by an action for waste is still available (P. S. c. 191, § 25), it is no longer in common use. "This seems unnecessary, as the action upon the probate bond is preferable." Com'rs Rep. R. S. c. 164, § 14, note. The retention of this provision shows a continuing legislative purpose to preserve the right to proceed against a delinquent executor independent of proceedings in the probate court,

The only colonial statute bearing directly upon the question here involved is one enacted in 1714, providing, generally, how executors should account and that they should be liable personally in case of waste. It also provided that—

"Any Executor being a Residuary Legatary, may bring his Action of Acompt against his Co-Executor or Executors of the Estate of the Testator in their Hands; and may also Sue for, and Recover his equal and rateable Part thereof; and any other Residuary Legatary shall have like Remedy against the Executors." Laws 1726, p. 50.

This statute was re-enacted in 1789. Laws 1789, p. 75. At the...