Streeter v. Braman
| Decision Date | 30 October 1909 |
| Citation | 74 A. 659,76 N.J.L. 371 |
| Parties | STREETER v. BRAMAN. |
| Court | New Jersey Court of Chancery |
Suit by Thomas W. Streeter, trustee in bankruptcy of Hammond Brarnan, against G. D. Braman, individually and as executor of Susie A. Braman, deceased. On demurrer to the complaint. Demurrer sustained.
John M. Dickinson, for complainant.
I. W. Carmichael and William M. Stockbridge, for defendant.
My conclusion is that the demurrer should be sustained.
1. The object of the bill is to transfer to this court the settlement of an executor's account now pending in the orphans' court of Ocean county. The main facts are as follows: The testatrix, Susie A. Braman, died March 8, 1907, leaving her estate to her two sons whom she appointed executors. One of the sons only, the defendant above named, qualified as executor. The other son is the bankrupt whose interest in the estate is now vested in the complainant. The will was proved in Ocean county on June 3, 1907. On or about December 1, 1908, Hammond Braman was adjudged a bankrupt by the United States district court in Massachusetts, and subsequently, whether one month or three months after the adjudication does not appear, the complainant was appointed trustee of the bankrupt's estate. On or about April 26, 1909, the defendant filed an inventory showing a single item, viz., cash amounting to $1,549.66, and at the same time filed a final account charging himself with the inventory and praying "allowance for various expenditures," none of which are questioned in any way. In view of the allegation that the defendant "although often requested" to file an inventory failed and refused to do so until he filed his account, and until the complainant had instituted proceedings to compel him to file such inventory, it is important to note that the delay in filing the inventory where the two brothers alone appear to have been Interested from June 3, 1907, until after December 1, 1908, is not significant of any substantial violation of duty on the part of the defendant, and that the inventory and final account were actually filed within four months after the adjudication of bankruptcy and within a less time, perhaps only a few weeks, after the complainant had been appointed trustee and acquired an interest which entitled him to call upon the defendant to account. An affidavit attached to the bill alleges that the complainant has filed exceptions to the account of the defendant in the surrogate's office of Ocean county. This affidavit of course cannot be considered as part of the bill, but counsel for the complainant in his brief treats the filing of exceptions as a fact presented to this court by the demurrer, and makes an argument in regard to that fact. It would seem that as against the complainant the bill might well be deemed amended so as to include the allegation that exceptions are pending in the Ocean county orphans' court. But, however this may be, no obstacle in the way of the filing and having a complete trial of exceptions in the orphans' court is suggested by the bill.
The bill sets forth that the testatrix received large amounts of money and securities during her lifetime, and that in 1903 she "turned over" moneys or securities amounting to $23,000 to the defendant to hold for her; that this property was owned by the testatrix at her death and formed part of her estate; that the testatrix also owned certain valuable jewelry and other chattels which "formed a part of her estate"; that the testatrix for three years next preceding her death lived with the defendant and during that time he had sole custody of her estate; that so far as the complainant is informed she made no disposition of any of her estate except the distribution of a certain sum specified; that the securities, etc., placed in the hands of the defendant together with the jewels and other chattels above referred to "should have been in the possession of said defendant and accounted for by him as assets of her estate." The bill also alleged that the relations between the testatrix and the defendant "were such as to preclude the idea of any gift of any property whatever" from her to him, and that as the complainant is informed, she made no other gift or distribution of the estate which she placed in the care and custody of the defendant.
Upon these facts the bill alleges that the complainant is advised and he avers that it is "wholly impracticable and impossible to proceed in the orphans' court of Ocean county to secure a complete accounting of the assets of testatrix's estate which court is without full, complete and adequate jurisdiction in the premises to compel the discovery by said executor of the assets of which his testatrix died seised or should have died seised, together with an account of the kind, character and amount thereof," and that the Court of Chancery alone has power to grant relief. The sole charge against the executor in the bill is that he has failed to inventory and account for a substantial portion of the estate of the testatrix. He is not charged with any fraud whatever unless the mere failure to account for assets before any opportunity has been afforded for an explanation is to be regarded as an indirect charge or suggestion of embezzlement. There is no specification of any objections to the account including the account of disbursements which the defendant has filed, excepting his failure to account for these assets which apparently at some time disappeared. There is no direct charge that the defendant had any portion of the estate of the testatrix in his possession at the time of her death for which he has failed to render an account. The exact charge is that certain assets "should have been in the possession" of the defendant, and should have been accounted for by him. There is no charge that the defendant is not absolutely responsible pecuniarily for any demand that may be made upon him growing out of his failure to discbarge his duty as executor and account for all the property of the deceased which...
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